Disinterested truth: legitimation of the doctrine of tenure post-Mabo

This article argues that it is time for the complete abolition of feudal tenure in Australian land law and its replacement with an allodial model better able to promote proprietary independence, equality and cultural neutrality. The article considers the questionable constitutional legitimacy of adopting strict feudal tenets in a territory already inhabited by indigenous occupants. It goes on to examine the various legitimation devices that the courts have utilised to sustain the feudal construct and the effect that Mabo has had upon feudal orthodoxy. In particular, the article outlines why post-Mabo tenure is incapable of embracing a pluralist land system; it is suggested that the Eurocentric character of feudal tenure and the structural impediments associated with the acceptance of a non-Crown title prevent it from ever being able to effectively integrate native title into the structure of property law. In light of this, the article argues that post-Mabo tenure lacks both legal and social legitimacy and the 'disinterested' perpetuation of this system must be brought to an end. The article argues that the time has well and truly come to replace feudal tenure with an allodial model based broadly on the system that has developed in the United States but with particularised adaptations. The removal of the Crown and its associated cultural assumptions from the land framework would, it is argued, allow land interests to develop according to their individual cultural origins. This would create a more responsive and balanced system better equipped to embrace the developments of contemporary common law jurisprudence.

Feudal tenure and native title: revising an enduring fiction

This article argues that the feudal doctrine of tenure continues to endure as the foundation for Australian land law despite its obvious social and historical irrelevance. The doctrine of tenure is a derivation of feudal history. The article examines some of its historical foundations with the aim of highlighting the disparity between the fiction of this inherited form and the reality of a colonial Australian landscape. Particular attention is given to the fact that Australian feudal tenure was always a passive framework. It was disconnected with the landscape and therefore incapable of responding to the needs of colonial expansion. This resulted in a clear disparity between feudal form and the reality of a land system populated by statutory grants. The article argues that feudal tenure was never truly devised as a responsive land system but rather, adopted as a sovereignty device. In this sense, legal history was utilised with the aim of promoting imperial objectives within colonial Australia. Tenure was equated with absolute Crown ownership over all Australian territory despite the fact that this was inconsistent with the orthodox tenets of feudal tenure.
The article argues that the consequence of adopting feudal tenure and absolute Crown ownership has been the estrangement of indigenous rights, title and culture. The creation and legitimisation of a land framework with a fundamentally Eurocentric perspective completely destroyed indigenous interests during the settlement and colonial era. It created an imperial ideology where colonists silently accepted the denial of indigenous identity. The decision of the Mabo High Court to reassess this historical perspective and accept the validity of proven native title claims clearly disturbed tenurial assumptions. However, the High Courts' reification of the feudal form created a fundamental paradox: indigenous title was accepted as a proprietary right within a framework incapable of and unequipped to recognise the fundamentally different cultural perspectives of customary ownership. The article argues that native title cannot evolve within a common law framework that regards ownership as a derivation of the English Crown. It is suggested that ultimately, a pluralist property culture, where indigenous and non-indigenous title exist as equalised entities, can only be properly nurtured with the full and absolute abolition of the feudal doctrine of tenure.

Mineral law and the doctrine of rights : a microscope of magnification?

The doctrine of rights has become part of private law jurisprudence. In this article the application of the doctrine in two decisions dealing with surface support in mineral law is examined. It is argued that the decision of Kriegler J in Elektrisiteitsvoorsieningskommissie v Fourie, namely, that the right to surface support is an entitlement, is more correct than Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd in which it was decided that the right to surface support is a competence. It is submitted that depending on the legal location of the entitlement in the relationship between owner and miner of land one may simply refer to either an owner's entitlement to surface support or a miner's entitlement to undertake opencast-cast mining.

Constitutionalism, good faith and the doctrine of specific performance: rights, duties and equitable discretion

This article will explore the European roots of the doctrine of specific performance and the influence of transformative constitutionalism on these in recent times. The question whether specific performance is available as of right (as in the civil law), or only subject to judicial discretion (as in the common law), will be investigated. The demonstrated impact of constitutional rights on contract law in the mixed system of South Africa will be contrasted with developments in English and Australian contract law, where the common-law rules are more deeply entrenched and the potential scope for human rights-based development of these is arguably smaller, though still important. The article will argue, using comparative rules on specific performance as an example, that the concept of a duty of good faith or contractual fairness is likely to play a greater role in future in all three of the countries under consideration, reducing the common/civil/mixed legal systems divide.

The South African Doctrine of Notice: a comparative law perspective

The doctrine of notice was received into South African law in Cohen v Shires, Mchattie and King (1881-1884) 1 SAR TS 41 by reference to a 17th century Dutch decision and English equity.The reception of the polar star of equity has led to doctrinal problems and differing views as to requirements for the operation of the doctrine ever since. This is illustrated in the decision of the Supreme Court of Appeal in Meridian Bay Restaurant (Pty) Ltd v Mitchell 2011 (4) SA 1 (SCA). The Court mentioned fraud and equity as the doctrinal basis but also accepted the view that the doctrine is an anomaly which does not fit into the principles of either the law of delict or property law.The Court required actual notice (or dolus eventualis) and wrongfulness for the operation of the doctrine of notice. In the following discussion of the decision it is argued that for the operation of the doctrine it should be required that: (a) a prior personal right aimed at the acquisition of a real right existed; (b) a holder of a subsequent personal right was actually aware or foresaw the possibility of the existence of the prior personal right; and (c) the holder of the real right nonetheless infringed upon the prior personal right by concluding a subsequent contract and obtaining registration of the real right in the deeds office.

Australian property law: cases, materials and analysis

"CONTENTS: Concepts of Property; Possession and Title; Fixtures, Encroachment and Boundaries; Adverse Possession; The Doctrine of Tenure and Estates; Leases; Native Title; Equitable Interests; Priority Rules; The Torrens System; Unregistered Interests; Easements; Covenants; Mortgages; Co-ownership."--Provided by publisher.

History and attributes of selected Australian multi-tenure reserve networks

The need for conservation planning across the landscape, regardless of tenure, is widely recognised. In Australia, attempts to coordinate the management of conservation lands are characterised by models such as Biosphere Reserves and Conservation Management Networks. This paper outlines the history behind the formation and development of three networks in Australia—the Bookmark Biosphere Reserve, the Gippsland Plains Conservation Management Network, and the Grassy Box Woodlands Conservation Management Network—with particular emphasis on the tenure and protection attributes of the various components within these networks. Despite having a similar number of components, the total area represented in the networks varied markedly. There were few similarities in the proportion of components of various tenures and protection mechanisms among networks. Composition of networks is likely to be strongly influenced by both historical factors (degree of subdivision, land ownership and remaining vegetation) and contemporary factors (aims of the network and willingness of landowners to participate). Continued research into both the evolution and the physical and social dynamics of multi-tenure reserve networks enables a better understanding of their operation, and will ultimately assist in improved conservation planning across the landscape.

Contribution of multi-tenure reserve networks to biodiversity conservation

A consistent and integrated approach to nature conservation across the landscape and regardless of tenure is widely recognised as essential in ensuring the effective conservation of biodiversity. 'Multi-tenure reserve networks', which incorporate public and private lands managed for conservation, are considered a means of achieving landscape scale conservation. Biosphere Reserves (BR) and Conservation Management Networks (CMN) are characteristic models in Australia. This thesis aims to evaluate the role of such networks in protecting biodiversity, specifically by: (1) analysing the spatial configuration (size, shape, connectivity) of networks and their individual components; (2) evaluating the contribution of networks (in real terms and in reporting procedures) to biodiversity conservation objectives; (3) analysing the influence of the attitudes and perceptions of land managers on the functionality of networks; and (4) evaluating the influence of coordinating bodies on network functionality. In order to account for deficiencies in existing classifications of conservation lands, a new classification system was developed for this thesis - the Conservation Lands Classification. This classification incorporates conservation mechanisms on public and private lands and forms the basis for comparing network components in three Australian case studies - the Bookmark BR located in the Murray Mallee of South Australia, the Gippsland Plains CMN on the eastern Gippsland Plains of Victoria and the Grassy Box Woodlands CMN across the inland slopes of New South Wales. The spatial configuration of individual components within networks was measured using spatial analysis techniques within a geographic information system (GIS). GIS was also used to measure the contribution that networks made to a comprehensive, adequate and representative reserve system through the ecosystems they protected. The attitudes and perceptions of landowners and managers within the networks were obtained using questionnaires. Questionnaires were also sent to network coordinators. Statistical and descriptive analysis was conducted on the results. The sizes of individual components varied markedly between the three networks, however within each network public reserves were on average larger than private conservation lands. Although levels of physical connectivity varied between networks, Bookmark BR and Gippsland Plains CMN showed greater similarity to each other than to the Grassy Box Woodlands CMN. The findings raise important questions about the real and perceived differences in the BR and CMN models. All networks, and particularly those components outside the public protected area estate, contributed to enhancing the protection of ecosystems unrepresented or under-represented in the reserve system, although the extent of this contribution varied between networks. Trade-offs between reserve design efficiency and a contribution to a comprehensive, adequate and representative reserve system were evident between networks. Bookmark BR was characterised by high connectivity, strong reserve design integrity but a lower contribution to protecting under-reserved ecosystems, whereas the opposite was evident in the Grassy Box Woodlands CMN. Over 88% of managers considered their involvement in multi-tenure reserve networks to be a positive or very positive experience. A lack of resources and time for management were considered major limitations of these networks. The majority (80%) of private land managers within networks were willing to be included in a national reserve system of conservation lands. This has important implications for the Australian National Reserve System, which currently incorporates mostly public land. The changing nature of the network coordination arrangements suggests an organic fluid evolution of network structures is likely, contrasting with the desire for legalistic and administrative rigidity promoted by government agencies. The thesis concludes that all the networks studied contribute in varying degrees to biodiversity conservation. The key factors influencing the current and potential contribution that such networks make are: (1) the aims, directions and restrictions set by or imposed upon the coordinating body; and (2) the biophysical nature of the surrounding bioregion and resultant historical land use and tenure pattern. Although the successful operation of such 'multi-tenure' networks ultimately relies on the willing participation of private landholders, ongoing institutional support is likely to be required for maintaining networks in the longer term. Considering networks are increasingly formed outside of the influence of government institutions, this presents a significant challenge for effective coordinated conservation.

Moral rights and substantiality: some questions of integration

Now that Australia has its long awaited legislation protecting the moral rights of authors, a new phase in the development of the rights begins. It must be asked how the incorporation of the rights into the existing copyright legislation, and their subjection to existing doctrines, will affect their operation. And how will existing doctrines be challenged and extended by the existence of the rights? Ultimately these questions will be worked out in the courts. The present article offers a consideration of one area where the legislature has purported to integrate moral rights into the existing scheme but where the practicalities oftheir integration are still unclear. It examines the interplay of moral rights with the doctrine of substantiality, suggesting that any clarification of what substantiality means in the moral rights context will be contingent upon the emergence of more precise definitions of what moral rights are and what interests they are intended to protect.

Doubles or nothing : the problem of binding truth to being in the work of Alain Badiou

In this article, I discuss how things go with the "Nothing" in the work of Alain Badiou, a topic which is evidently central to his thought, and which has received a great deal of attention in the commentary to date. As this problem is inaccessible outside of Badiou’s deployment of mathematics, I will suggest how accounts of Badiou’s work remain flawed insofar as they evade his mathematical demonstrations, and I attempt to clarify how mathematics operates in his system. I then examine the consequences that such a use of mathematics has for Badiou’s doctrine of the nothing. I conclude with a discussion of some of the difficulties that the nothing continues to pose to Badiou, which have not (yet) been satisfactorily resolved. These difficulties devolve from the problematic of the incessantly doubling void.

Sex and the surgeon's knife: the family court's dilemma...informed constent and the specter of iatrogenic harm to children with intersex characteristics

The article focuses on the opinion of the Australian High Court on the doctrine of informed consent and the judicial reasoning including the supporting medical evidence in sex assignment cases. The author explains that the remaining credible basis for the jurisdiction assumed by the Family Court in such cases rests in the inability of parents as guardians to give their informed consent to irreversible surgical procedures.