‘Home’ Among the Gumtrees: The Experience of Home under Australian Real Property Law and in Property Theory

Abstract

This thesis considers the experience of home in Australian law, and the relevance of law to that experience. It defines that experience as, ideally, encompassing a feeling of security, self-identity and relationships and family. Three case studies are presented which demonstrate areas of Australian property law undermining that home experience for individuals in housing. Having demonstrated the capacity for property law to undermine home, the thesis advances proposals for legislative reform in relevant areas to better protect the home experience. The thesis also addresses the problem of home as a matter of property theory, whereby it is argued that home – the experience – is capable of being the subject matter of property systems. Property systems can thus be designed to protect home, as well as to ensure distributions of that experience to ensure human flourishing. In terms of its design and legitimacy, Australia’s property system must ensure home – the experience – for all. This argument is advanced, drawing on a particular interpretation of the personhood and human flourishing theories of property. The argument developed draws attention to the fact that some people in society have more than enough property in which to experience home, while others live in precarious housing or do not have even a roof over their head in which to experience home. The property system further undermines the experience of home through unequal distributions of ownership, which perpetuates the injustice of a lack of home.