Friday, April 25, 2014

Tenancy Culture Studies: coming of age

It’s the 99th anniversary of the invasion of Gallipoli. The Tenants' Union pays tribute to the staggering sacrifice and loss of over 11,500 ANZAC troops between April 25th and December 20th 1915.

We acknowledge the significance of this day, as it gives cause to reflect upon the tragic cost of international conflict. War has left many an indelible mark upon history, and it continues to shape a range of contemporary concerns. Indeed, as we recall on April 25th every year, Australia is no exception. Today we’d like to acknowledge the impact of international conflict upon Australia’s Indigenous men, women and children – our nation’s first people are no strangers to its scars.

There’s no doubt that World War I, and the period in which it occurred, take up a significant place in history. For students of Tenancy Culture, it was a time of ferment and change in housing policy across industrialised parts of the world. At the turn of the century, as more and more people flocked towards the world’s urban centres on the trail of wages and other worthwhile pursuits, the demand for inner city housing outstripped markets’ capacity to supply. The resulting slums presented an impetus to develop ‘solutions’ from both an economic and a social point of view: policy makers were concerned with the relationship between workers’ incomes and costs, but also the perceived risk to social order that close communities of the “dangerous classes” might pose.

Indeed, there is much to say about this period of housing and welfare reform. But with the centenary of World War I drawing near, we can save those discussions for another time. After all, Australians are more inclined to reflect upon World War I – and Gallipoli in particular – in terms of its impact upon our national identity. We regard it as a sort of ‘coming of age’ of our nation. That’s not surprising, given the more formal shackles of colonisation had not long been removed, and independence granted, when we trundled our children off to war. The young nation of Australia was barely emerging from the shadows of an Empire, held together by military discipline, tradition and conquest, when the war broke out. On the ‘global stage’ of World War I, the ANZACs made a name for themselves as fit and competent soldiers. These hapless, good-natured lads showed Australia as a stoic nation; unpretentious and cavalier in the face of authority, they distinguished Australia from its English past. This much we know from the history books, and our annual observance of ANZAC day.

But an English past is not so easy to shake. When we talk of ‘coming of age’, we’d do well to recall our nation’s pre-history – the colonial years before Australia’s ‘birth’ as a federation. Today, the Institute of Tenancy Culture Studies does just that.

In a remarkable coincidence, the Swiss philosopher, diplomat and legal scholar Emer de Vettel was born 300 years ago today – April 25th 1714. De Vettel’s major work, Les Droit des Gens, was published in 1758. It was translated into English as Law of Nations in 1760, and was highly influential.

Law of Nations was essential reading for American revolutionaries throughout the War of Independence and the establishment of the United States of America. (It is believed that George Washington failed to return a copy, borrowed in late 1789, to the New York Society Library.) And when the British Empire sought to make up for the loss of its American colonies, sailing south to establish the penal colony of New South Wales, the theories and concepts outlined in Law of Nations were very much in fashion.

Law of Nations was the first comprehensive written account of international law. It served as a manual on the legal rights and duties owing from one state to another while in pursuit of expansionist goals. In Law of Nations we find the expression of Terra Nullius, as it was understood by late 18th Century colonialists. Nations had a duty to use all land available to them. They were justified in annexing unused lands when occupied land could no longer accommodate them. They could appropriate ‘savage’ lands where prior occupants did not put them to an accepted use. Acquired lands would become subject to the laws of the occupying nation.

Thus it was that New South Wales was established, and the laws of England brought into force. The High Court’s Mabo decision confirms that Australia’s Aboriginal societies functioned according to highly developed customary law, including a sophisticated system of land law that should have withstood the Law of Nations’ assumptions about possession. But this was not like anything the colonialists had ever encountered, and it was not in their interests to understand it – or to recognise it for what it was. The Mabo decision came in 1992 – more than 200 years after English colonisation. By then, Australia had long established the English systems of laws, and courts, and government, and property...

The English common law of property is a curious beast. At its heart is the concept of tenure – a system of title that dates back to feudal times. It is based on the idea that the Crown holds all land by radical title, and from this all other title derives. An interest in land could be granted from the Crown, then transferred down from one tenant to the next, in a sort of medieval pyramid scheme. Each new grantee’s tenure determined their obligation to the Crown, as well as their interest in the land. In this way, it also determined the grantee’s social rank, and established an economic order. At the top of the order, rights in property could mean wealth and influence. At the bottom, it meant toil. Labour, military or clerical service was a fair exchange for shelter and the protection of the Lord.

By the late 18th century feudalism was a thing of the past, and the law of property had evolved. The idea of radical title had declined in England to the extent that it was no longer an important legal principle. Social and economic order was based on mercantile trade and investment, and was starting to be influenced by the progress of industry. Wealth was as much about access to the means of making, buying and selling things, as it was to the ownership of land. But in 1847, in the case of Attorney-General v Brown, the Supreme Court of New South Wales confirmed that land in the new colony was held ‘of the Crown’. Radical title had been imported into New South Wales, allowing the colonists to assume sovereignty over the entire domain, and ownership of all its land.

Thus, Australia’s land law was borne of the convenient fusion of mercantilist and feudalist principles. The pathway to colonial wealth was the exploitation of productive land. For many, the possibility of owning land – to be given a grant in fee simple – was now more real than ever before. The alternative was to live ‘at the will of the landlord’ – the fragile tenure of tenancy-at-will that would have been familiar to many convicts and early Settlers within the public service. The eventual expansion of the colony meant that a seemingly endless supply of land – deemed unoccupied and in want of lawful possession – was there to be carved up and doled out to all who could make something of it. It can’t have taken long for the English born convicts to see that, if one day given their freedom, they could transcend more than just a criminal past: they could remain in the colony, claim a grant of land, and join the ranks of the Gentry in a new social order.

There is no doubt that wealth and social standing did not come without adversity, or hard work. Conventional history tells of hardship and triumph as the English adapted to a new environment. Less so, it tells of the frontier conflict as Settlers encountered resistance from the Aboriginal population – those whose lands were being carved up and fenced off, with each new expansion of the colony. And as the Settlers dug in, the Aboriginal people had to adapt to the their altered conditions, too. For Aboriginal societies, based on kinship, ties to country and the transfer of cultural knowledge from one generation to the next, the displacement from land and spread of disease was highly destructive. Ultimately, Aboriginal people had no choice but to find a place on the fringes of the new order. For those who could adapt – on either side of this colonial divide – the renewed emphasis of feudal norms was perhaps inevitable. Those who held land could become rich, powerful and ultimately free. Those who did not would have to work for them.

There’s a new study that begins here: the history of Aboriginal housing. But, having already taken up a large amount of time in reaching this point, we’ll leave that for another day too. In the meantime we’ll return to the beginning of the 20th Century, and note that while Australia’s non-Indigenous sons and daughters were unwittingly preparing for its 'coming of age' during World War I, its Aboriginal people were living subject to laws like the Aborigines Protection Act 1909 (NSW). These laws prevented Aboriginal people from owning land, and required them to live on government or missionary operated ‘reserves’ where their lives were closely regulated. Exemptions were possible, but only for those prepared to depart from their Aboriginality. For those people, segregation policies applied all the same.

But before we can conclude today's study, we must ask: can these lessons of history be applied to the circumstances of today? Are there parallels between colonial expansion and the growth of our major metropolitan centres? Our national preference for the fee simple remains intact, while the tenancy-at-will has really only been slightly modified: legal protections are now much stronger for those living in most forms of rented accommodation, but security of tenure remains weak. But colonies expanded on the back of an appetite for productive land, and it is the speculative trade of unproductive land that currently marks our pathway to wealth. This leaves us in a similar predicament to that which the early 20th Century reformers encountered: the market does not deliver affordable housing in our cities, where it is needed most.

So – what reform lies ahead? Can we change the way we treat transactions about land, without changing the age old ways we think about land entirely?


  1. Fantastic piece!

  2. 'Exploitation of courage, if I may be allowed to say a thing so obvious, was the essential tragedy of the War, which, as everyone now agrees, was a crime against humanity.' – Siegfried Sassoon (1928)

    Lest we forget.


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