Succession and Indigenous Australians : addressing Indigenous customary law notions of 'property' and 'kinship' in a succession law context

The purpose of this article is to critically evaluate the existing capacity of Indigenous people to exercise succession rights against their estate. This article begins with a discussion of the sources of the general succession laws in Australia, noting that they have derived from UK law, where the common law notions of property, property rights and family, including the expectational right to succeed to property, are all important factors. These common law notions do not easily fit within the spectrum of Indigenous customary law. Generally, many Indigenous Australians will die without executing a valid will (ie, they die intestate) and it is here that this article undertakes an examination of the general intestacy laws in all Australian jurisdictions noting the inadequacy of the provisions to recognise Indigenous persons’ spiritual and cultural obligations to property, land or otherwise, together with a failure to distinguish extended Indigenous kinship relationships under Indigenous customary law. It is argued that Indigenous people who die intestate should be supported by a flexible and adaptive intestacy framework, responsive to the full customary and cultural responsibilities of the deceased, thus promoting an organic and developmental approach to succession entitlements.

RE Kevin and the right of transsexual persons to marry in Australia

This article considers the decision of the Family Court of Australia in Re Kevin (Validity of Marriage of a Transsexual) [2001] FamCA 1074, which was upheld by the Full Court of the Family Court of Australia in February 2003. Re Kevin was the first case in Australia to deal directly with the question of whether a transsexual person could marry under Australian law. In the past, Australia had adhered to the judgement of Ormrod J in Corbett v Corbett [1971] P. 83, which set the benchmark for what is ‘male’ and what is ‘female’ under the common law. Prior to Re Kevin the question of what is a man and what is a woman for the purposes of marriage in Australia mirrored the strict biological test established in Corbett. In other words, the Australian courts relied upon biological factors, as espoused by Ormrod J, when determining a person's true sex. In Re Kevin, Chisholm J examined in detail what it is to be a man or woman, but unlike Ormrod J considered ‘brain sex’ to have a significant impact on a person's view of their own innate sexual identity. The Full Court of the Family Court agreed with the powerful and well-reasoned judgement of Chisholm J at first instance.

The gender composition of boards of property trust IPOs in Australia from 1994 to 2004

This study investigates the gender composition of the boards of directors of Australian property trust IPOs from 1994 to 2004. Like mining and industrial company IPOs, we find that property trust IPOs in Australia generally do not require female directors for the initial equity capital raising. We also find that larger IPOs during 1994 to 1999 tended to engage more women directors but that this relation was not significant in property trust IPOs from 2000 to 2004.

Preventative detention and the right of personal liberty and security under the International Covenant on Civil and Political Rights, 1966

Preventive detention enables a person to be deprived of liberty, by executive determination, for the purposes of safeguarding national security or public order without that person being charged or brought to trial. This paper examines Article 9(1) of the International Covenant on Civil and Political Rights, 1966 to assess whether preventive detention is prohibited by the phrase 'arbitrary arrest and detention '. To analyse this Article, this paper uses a textual and structural analysis of the Article, as well as reference to the travaux preparatoires and case law of the Human Rights Committee. This paper argues that preventive detention is not explicitly prohibited by Article 9(1) ofthe International Covenant on Civil and Political Rights 1966. If preventive detention is 'arbitrary', within the wide interpretation of that term as argued in this paper, it will be a permissible deprivation of personal liberty under Article 9(1) of the International Covenant on Civil and Political Rights, 1966. Preventive detention will, however, always be considered 'arbitrary' if sajeguards for those arrested and detained are not complied with, in particular the right to judicial review of the lawfulness of detention.

The pricing of property trust IPOs in Australia

Following Brounen and Eichholtz (2002) this paper adds to the international literature investigating the underpricing of REIT initial public offerings (IPOs), with a study into Australian property trusts. This study finds that initial day returns can in part be explained by forecast profit distributions (or dividends) and the market sentiment towards property trusts from the date of the prospectus to the date of listing. There is some support for the “winners curse” explanation of underpricing with evidence that large investor or institutional involvement at the outset of the IPO also has some explanatory power.

The characteristics of property trust IPOs in Australia

This paper follows Ling and Ryngaert (1997) and Brounen and Eichholtz (2001) who investigate the underpricing of REIT initial public offerings (lPOs) in the United States and Europe respectively. This study adds to the international literature by investigating Australian property trusts. It reports a variety of descriptive statistics on 37 Australian property trust IPOs from 1994 to 1999. What it also contributes is the finding that some IPOs have extremely low volumes of shares traded on the first day so the simple use of a closing price at the end of the first day to determine underpricing returns (without reference to the volume of trading) may not always be the optimum method of calculating these returns.

The gender composition of boards of property trust initial public offerings

This paper follows Dimovski and Brooks (2004) which identified a relatively low proportion of female directors on the boards of Australian mining and industrial company initial public offerings (IPOs). This study investigates the gender composition of the boards of directors of Australian property trust IPOs from 1994 to 1999. We find that property trust IPOs in Australia generally do not require female directors for the capital raising. We also find that larger IPOs tend to engage more women directors but that retail property trust IPOs tend to engage fewer women directors.

Factors influencing the direct costs of property trust IPOs

Underwriting, legal, accounting and valuation costs average around 3.3%, 0.39%, 0.23% and 0.12% of proceeds raised and are substantial costs to property trust initial public offering (IPO) issuers. As such, identifYing factors that influence these costs is important. This paper investigates factors influencing these costs as well as the total direct costs of raising equity capital by property trust IPOs in Australia from 1994 to 2004. The results suggest clear economies of scale in direct costs. In addition, IPOs that employ more debt are likely to have higher capital raising costs while those that have proportionally higher net asset values and offer stapled securities (and likely to be engaged in property development activities) have lower capital raising costs.

Principles of property law

This comprehensive text covers all of the materials relevant to property law in a detailed and thorough manner. The second edition examines the basic tenants of property law,as well as specific property interests such as land interests and the way in which these interests are conveyed, registered and co-ordinated.The book considers the development of native title as a legally recognised form of property in Australia and how such an interest sits within the common law and statutory infrastructure. Principles of Property Law is a vital book for students studying this complex area and is also a valuable addition to the library of academics and practitioners interested in this field.

Competition and unitization in oil extraction : a tale of two tragedies

This paper compares two organizational modes for extracting oil from a common pool: unitization and competitive extraction. The analysis suggests that the general presumption that unitization is surplus enhancing relative to competitive extraction may not always be valid due to contractual incompleteness associated with unitization contracts. While competitive extraction suffers from the tragedy of the commons, unitization can be subject to the dual tragedy of the anticommons. This provides an explanation for the puzzle confronting the oil industry that firms are often reluctant to voluntarily enter unitization agreements.

Behaviours of property investors: an investigation on the risk perceptions of Australian property fund managers

Recent finance and real estate empirical and analytical studies have demonstrated that downside risk appears as an intuitively appealing risk measure in which it is more consistent with investors' behaviours. Conversely, qualitative studies into the behaviours of investors, particularly real estate investors, have been relatively limited. This study seeks to address this shortfall and aims to examine the behaviours of property fund managers towards downside risk. A survey was conducted in order to investigate the risk perceptions of property fund managers and determine whether they only require compensation for bearing with higher downside risk. The acceptance level of downside risk in the property funds industry in Australia is also examined. The findings reveal that downside risk is more consistent with how investors individually perceive risk. However, there is also a gap between theoretical assertions and practice in which downside risk is not commonly used in the practice. The results give an insight into the knowledge base of property investors towards downside risk.