The Meaning of Property PDF

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Essay on the meaning of property. Received a distinction....

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32850981

THE MEANING OF PROPERTY The concept of property is one of significant legal and indeed philosophical complexity that given consideration fades into an immeasurable obscurity when property is defined in common law. Professor Kevin Gray examines the ‘propertiness’ of property and concludes that when describing tangible property, it may indeed be easier to explain foremost what is not property. The suggestion from Gray that property may be better explained by examining the power-relation behind the resource or object with particular regards to power of excludability is likely correct. This paper examines the reasons why this criterion is a suitable explanation for property as a concept and suggests how property is understood in Australian law. I

GRAY’S CONCEPT OF PROPERTY

Property is a legal concept that is dynamic, fluid, and ever evasive from a sufficient narrow legal definition. ‘Property in Thin Air’ examines the various ways in which property is a term of both wide signification and the extensive limits of property to which there is no definitive answer. Professor Gray suggests that ‘property is not about enjoyment of access but control over access.' 1 Gray links this notion to the idea that certain resources belong to the commons in the interest of certain social goals and the fulfilment of these goals must preside over claims of property. 2 Gray suggests that property is ‘a collective human response to a world of limited resources…’ This communicates his belief that property is an expression of a human need to protect shared resources necessary for social interaction and to solidify individual material needs.3 Shared resources that benefit the growth and enjoyment of human interactions in society are identified as ‘commons, ’ or they are resources that ‘belong to the world.'4 Gray highlights these resources due to the fact they are ‘…perceived to be so central or intrinsic to constructive human coexistence that it would be anti-social that these resources be removed from the commons.'5 It is therefore suggested that property is a legal structure that has distinct moral characteristics that limit property rights where infringement of freedom exists. Gray 1 Kevin Gray, 'Property in Thin Air' (Pt Cambridge University Press) (1991) 50(2) The Cambridge Law Journal 252, 294. 2 Ibid 280. 3 Ibid 306. 4 Ibid 305. 5 Ibid 281.

32850981 uses the example of linguistic exclusion from property to emphasises the role of moral or practicable exclusion in claims of personal property, as we value freedom to communicate more than freedom to possess.6

Gray’s argument is that the legal, moral, and physical criteria of excludability about resources are fundamentally more useful to understanding property than trying to define what property is. It is my opinion that Professor Gray is likely correct in his assessment that property is best understood utilising the criterion of excludability Gleeson CJ, Gaudron, Kirby and Hayne JJ agreed with Gray in Yanner v Eaton stating that ‘…property does not refer to a thing … it is a description of a legal relationship with a thing’.7 The illusion of property exists in the idea that it is tangible, physical, and realised as a legal entity. Where it becomes socially or morally undesirable to regulate access to the benefit of the shared resource, the law interferes and rejects a claim of property. 8. In West Australian Land Co v Forrest it was considered unconscionable to sell land which had been declared as ‘commons’ to a private contractor as this would regulate control over access to the public with socially undesirable results.9 This case illustrates that an understanding of excludability defines property as a power-relationship between a person and a ‘thing’ with the government endorsing or restricting that power. Rights of property must defer to essential human or civic rights and the best way to identify areas where these rights can be impeded is to assess the moral, social, or practicable criteria in relation to excludability from these resources.

II

DESCRIBING PROPERTY

Hayne and Bell JJ referring to the meaning of ‘property’ in JT International v Commonwealth stated that ‘…it has long been recognised that property is used sometimes to indicate the tangible or intangible objects to which legal rights of privileged relate.’ 10 The law understands property as a bundle of rights in which certain physical and non-physical resources are concerned. Blackburn J in 6 Ibid. 7 Yanner v Eaton [1999] HCA 53, 365-6. 8 Gray, above n 9 West Australian Land Co v Forrest [1894] AC 176. 10 JT International SA v Commonwealth (2012) 86 ALJR 1297, 175.

32850981 Milirrpum v Nabalco identified that property implies the right to use or enjoy, the right to exclude others, and the right to alienate.’ 11Similarly in legislation, the Lands Acquisition Act 1989 does not define property; it does however define interest in a land as ‘ (i) legal or equitable interest in the land, … (ii) restriction on the use of the land … (iii) any other right including charge, power, interest, or privilege over land’.12 The changing dynamic of property as seen in UWA v Gray further illustrates how the legal meaning of property has to encompass much more than just physical objects. 13 In JT International SA v Commonwealth, Hayne and Bell JJ discuss the meaning of property in the Constitution 14 and reach a conclusion that ‘It may not be possible …to attempt to chart the boundaries of what is meant in [s 51] by “property”.’15 The principle of reference was established in Telstra Corp Ltd v Commonwealth with Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ asserting that property is primarily a control over access to resources; that the meaning of property is elusive and rarely refers only to the object or resource itself. 16 Hence the law principally considers property to be legally sanctioned power over resources and things. This view has progressed from more general descriptions of property as seen in Minister of State for Army v Dalziel in which Starke J said that property ‘… extends to every species of valuable right and interest including real and person property, … incorporeal hereditaments, … rights of way, rights of profit, … and choses in action’. 17 Earlier ideas about property such as in Buckinghamshire County Council v Moran, implied the assertion of control of access was fundamental in determining possession and property. 18 Ultimately the law should operate under the principle established in Telstra Corp v Commonwealth and approach issues regarding property and possession regarding its substance as a bundle of rights.

11 Milirrpum v Nabalco (1971) 17 FLR 141. 12 Lands Acquisition Act 1989 (Cth) s 6. 13 Where the courts held that a patent was the property of the individual under the Patents Act 1990 (Cth) s 13(2): University of Western Australia v Gray (No 20) [2008] FCA 498, [89]. 14 Australian Constitution s 51(xxxi).This particular section entitles Parliament to power allowing acquistion of 'property' from any State or person: 15 JT International SA v Commonwealth (2012) 86 ALJR 1297, 175. 16 Telstra Corp Ltd v Commonwealth (2008) 234 CLR 210, [43]-[45]. 17 Minister of State for the Army v Dalziel [1944] HCA 4, 200. 18 The dispute of possesion was given to the claimant as it was proven he had intention and had asserted control of the land to the exclusion of all others: Buckinghamshire County Council v Moran [1990] Ch 623.

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CONCLUSIONS

Gray’s determination of criteria fundamental to understanding property serve as an effective principle to dissipate the relative obscurity of the concept of property. The law can only operate to regulate this relationship and prevent undesirable control of access socially beneficial shared resources. Gray suggests that property remains largely undefined because it is insufficient to describe objects that we possess, the law better understands property as a legally endorsed power over objects and things regulated under the scope of moral and practicable criteria.

The principle established in the High Court case of Telstra Corp v Commonwealth contributes to a modern understanding of property in Australian law. 19 Case law suggests that the courts are willing to adopt a view of property that is adaptive and expansive that is within the limits of reasonableness. The concept of property is fundamentally a category of reference that is ambiguous at best; the law likely operates most effectively when assessing the criteria for excludability when considering property rights.

19 Telstra Corp Ltd v Commonwealth (2008) 234 CLR 210.

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BIBLIOGRAPHY A Articles/Reports 'Some Fundamental Legal Conceptions as Applied in Judicial Reasoning', (1913) 23 Yale Law Journal 16 Commission, Australian Law Reform, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Report No 127 (2015) Gray, Kevin, 'Property in Thin Air' (Pt Cambridge University Press) (1991) 50(2) The Cambridge Law Journal 252 LexisNexis, Halsbury's laws of Australia, vol 1 (at 26 April 2017) '355 Real Property' [355-75]

B Cases Allen v Roughley [1955] 94 CLR 98 Bride v Shire of Katanning [2013] WASC 59 Buckinghamshire County Council v Moran [1990] Ch 623 Minister of State for the Army v Dalziel [1944] HCA 4 University of Western Australia v Gray (No 20) [2008] FCA 498 West Australian Land Co v Forrest [1894] AC 176 Yanner v Eaton [1999] HCA 53 Graham v Peat (1801) 1 East 244 Pickering v Rudd (1815) 171 ER 70 Lord Advocate v Lord Lovat (1880) 5 App Cas 273 Grace Brothers Pty Ltd v Commonwealth (1946) 79 CLR 269 Milirrpum v Nabalco (1971) 17 FLR 141 Telstra Corp Ltd v Commonwealth (2008) 234 CLR 210 JT International SA v Commonwealth (2012) 86 ALJR 1297 C Legislation Australian Constitution Interpretation Act 1984 (WA) Lands Acquisition Act 1989 (Cth)

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