Doctrine of Tenure Flashcards

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0
Q

Why is the Doctrine of tenure the basis of our land?

A

In AG v Brown in 1847, it was decided that the feudal doctrine of tenure from UK was brought to Australia upon settlement.

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1
Q

Can the holder of a fee simple alienate their land?

A

Under s21, Owners can.

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2
Q

What is the position of the Commonwealth’s sovereignty in terms of land?

A

Cooper v Stuart held that Australia was settled on Terra Nullius which meant that it was inhabited. As a result all laws from British UK were imported into Australia.

AG v Brown - Case that established that the Crown had absolute ownership and beneficial ownership of all land in Australia.

In Mabo No 1 - the court held that the Crown in fact did NOT have absolute and beneficial ownership of all land The land was inhabited at the time of settlement, but the Crown merely acquired a radical title to land, which was subject to unextinguished Native Title.
Furthermore, it was held Australia was NOT settled on Terra Nullius and was NOT unoccupied in 1788 at the date of settlementt.

This meant a modified doctrine of Tenure applied in Australia; that is that the Crown only had a radical title.

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3
Q

What is the position of the Crown’s power where there is a lease involved?

A

When a lease expires, the Crown’s interest is exactly the same, the ownership does not expand to a full beneficial title over that area of land. It remains a radical title - Wik v Queensland

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