If property law is perceived as primarily real estate law, then the system appears relatively unproblematic. As an administrative tool, the Torrens sys-tem ensures efficient, convenient conveyancing, security of title and the protection of bona fidepurchasers, and hence a buoyant property market – all of which bolsters the dream of home ownership in which Australians putatively have a stake. This wide diffusion of home ownership – including an overrepre-sentation of certain immigrant groups – further contributes to the impression held by a predominantly urban population that all is right with the world of land regulation. The current regime for the regulation of land interests only appears to confront its own cultural specificity in dealing with Aboriginal land.
The tendency, then, is to think that cross-cultural perspectives begin and end with Native Title.
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124 Schultz, J, ‘Judicial Acceptance of Immediate Indefeasibility in Victoria’ (1993) 19 Monash Law Review326, 333.
Similarly, it has become a commonplace to admit that ‘property’ is, in fact, about the relations between people rather than the ownership of things, yet apparently neutral – or ‘efficient’ or ‘convenient’ – property regimes may actu-ally conceal social relations. The current distribution of tenure ignores the social processes, the structures of disadvantage, that underlie such a distribution. For example, studies that go behind the statistics regarding tenure, show that non-English-speaking migrants pay a higher proportion of their incomes on housing – as owners, purchasers and renters – than other groups, and that Asians pay more than non-Asians. An income unit is considered to be in ‘hous-ing stress’ if its gross weekly income is in the lowest 40% and its hous‘hous-ing costs as a proportion of income are 30% or more. Purchasers from Lebanon and Vietnam are more likely to be in stress than other purchasers, and private renters from Lebanon, Vietnam, Greece and the Netherlands suffer the most likelihood of stress.125 With regard to private rental, 67% of immigrants rent during their first years of settlement. Even five years after arrival, more than half the immigrant population is still renting, indicating a possible constraint in their ability to purchase housing. It would appear ownership increases accord-ing to duration of residence, explainaccord-ing why New Zealanders and Vietnamese represent a low proportion of owner/purchasing households compared with Italians and Greeks. Finally, it would appear that immigrants are overrepre-sented on public housing waiting lists (although not, as of 1990, as actual tenants). The housing experience of these migrants will find little place in a core course such as property law. Even if a property law course were to include res-idential tenancies in its syllabus, this would still leave out that notable proportion of newly arrived migrants who are in informal tenancy arrange-ments.126
In this chapter, we have offered our explorations of the current property regime as a cultural artefact rather tentatively and obliquely. The dearth of research in this area that we could draw on is itself noteworthy. A ‘real estate’
perspective fails to question the differential involvement of particular groups in the benefits and privileges, the costs and burdens, of property ownership.
Nor does it question the interests that are recognised and protected by property rules, and the cultural meanings that are thereby consolidated.
There is also the interesting and largely unexplored issue of how people whose lives have been marked by displacement relate to home. This entails more than explaining the persistence of the home ownership dream in settler societies generally, as does Constance Perin referring to ‘the experiences of immigrants or their ancestors raised in a lingering feudalism, landless them-selves or the younger brothers of those inheriting the patrimony, so that the sting of limited rights and privileges in property relations remaining today so
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125 Junankar et al, above n 107.
126 See Fong, J and Mora, A (eds), Informal Tenancies Amongst Non-English Speaking Immigrants, 1990, Sydney: Tenants Resource and Advice Centre.
explicitly in lease forms may also account for the higher value on owning both house and land’.127The link between emigration and desire for land has been a feature of Australian life since 1788, a point noted by Heather Goodall.128 Australian governments have actively promoted home ownership as the pre-ferred form of tenure, and we have suggested how the indebtedness that flows from this may consolidate particular social relationships. Studies of Asian migrants in the United Kingdom indicate home is very much perceived as a strategic asset for purposes of upward mobility and commercial enterprise.129 We would hesitate to transfer such insights directly to Australia, but they show the importance of developing a ‘phenomenology of housing’.130Such a devel-opment is important because it will allow property law teachers to begin to ask the question: what has been the experience of migrant groups in those situa-tions covered by the subject property law? And, following from this, is there a mismatch between those experiences and the presumptions by which the law currently operates?
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127 Perin, above n 110, 62.
128 Goodall, above n 6, 42–43.
129 Werbner, P, The Migration Process: Capital, Gifts and Offerings Among British Pakistanis, 1990, New York: Berg.
130 Susan Thompson’s work, above n 123, is a useful contribution to such a project. Her study indicates that for migrant women in Australia, pace Werbner’s conclusion, home ownership offers important forms of ontological security.
INTRODUCTION
Tort law – or, more particularly, personal injury law – is a context-rich area of legal study. The ‘everydayness’ of tort cases makes them a particularly abun-dant field for cross-cultural perspectives.1 Patricia Peppin argues that the examination of negligence ‘requires analysis of the relatedness of people, or of people and institutions, and requires the imaginative process of placing oneself in various real and hypothetical positions’.2 She goes on to say that for this reason negligence law, in contrast to the intentional torts, has a greater potential to respond to the cultural pluralism of the late 20th century.3The fact that, as yet, this potential has hardly been realised, probably has to do with another important fact about tort law. That is, its concern with richly diverse, relational scenarios is constrained by a framework of culturally specific, ‘objective’, indi-vidualistic approaches. The ‘reasonable man’ is perhaps the most notorious of these, but notions of reasonable foreseeability, of time, space and causality, of injury and damage, all need to be interrogated. To help with this we follow Peppin and suggest asking the following questions of negligence law:
● Does negligence law take account of the social reality of subordinate groups’ place in society?
● Does it handle constructively, or merely reflect, the unequal nature of society?