Bones of Contention: The Right to Possession of the Body of the Deceased under Australian Law as a Property Right

Abstract

Death comes to all. And in all cases, someone must see to the disposal of the body. In common law jurisdictions such as Australia, the person tasked with disposing of the body of a particular deceased person is said to hold a right to possession in relation to that body. By giving one particular individual physical and decision-making control over the deceased body at issue, this common law right to possession of the body of the deceased ('the right to possession') plays a vital role in the resolution of legal disputes relating to the treatment and disposal of the dead. Such disputes are increasing both in number and in frequency, and a thorough understanding of the law that underpins them is necessary. Nonetheless, judicial engagement with, and academic consideration of, the right to possession is inconsistent and inconclusive, particularly as regards that right's juridical status. This Thesis addresses this key gap in our understanding by responding affirmatively to the question 'is the right to possession of the body of a deceased person, as it currently exists in the Australian common law, a property right?' In answering this question, this Thesis undertakes a doctrinal analysis of a core group of 56 Australian post-death dispute cases, adopting an evaluative framework that requires both internal and external consistency. The right to possession is first acknowledged as having particular, recognisable salient features that identify that right as an independent, established legal incident and allow it to operate in a predictable way in any given post-death dispute. Having determined the right to possession to be an internally consistent and cohesive legal incident, this Thesis then engages in an exercise of analytical jurisprudence to identify the essential attributes of property and to assess whether the right to possession possesses those attributes as a matter of external consistency. This Thesis adopts an exclusion essentialist theory of property, drawing especially on the work of James Penner. It defines the taxonomical branch of the private law that is property as those legal rules that work to protect our interest in exclusively determining the use to which our 'thing' is put. Assessing the right to possession's compliance with the structural framework expected of property rights that results from this definition, this Thesis reaches the preliminary conclusion that the right to possession is indeed proprietary in nature. It then analyses the external consistency of each of the right's internal salient features with this preliminary conclusion, ultimately confirming that the right to possession of the body of a deceased person as it currently exists in the Australian common law is a property right.