Paul Babie, ‘Completing the Painting: Legislative Innovation and the “Australianness” of Australian Real Property Law’

Abstract
This article considers legislative innovations in Australian real property law and the role played by legislators through exercises of Parliamentary sovereignty. The legislative role is equal to that of the judiciary in the creation and modification of new forms of property in relation to land. To demonstrate this thesis, the article examines: (i) the ‘invention’ of Crown perpetual and State leasehold interests, rights to occupy, and strata title; (ii) the decoupling of land ownership from riparian rights, and (iii) the ownership of mines and minerals. The true ‘Australianness’ of Australian real property has been produced not only through judge-made law, but also, and equally importantly, through the legislature, which has altered every aspect of how the common law once viewed land as surface, airspace, and subsurface. It is for this reason that judges and legislators must be viewed as co-equal partners in the creation of ‘Australian’ real property law.

Babie, Paul T, Completing the Painting: Legislative Innovation and the ‘Australianness’ of Australian Real Property Law (September 11, 2017). (2017) 6 Property Law Review 157; U of Adelaide Law Research Paper No 2017-24.

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