NSW and Commonwealth NSW and Commonwealth Legal and Constitutional Legal and Constitutional

HistoryHistory

Topic 9Topic 9

Control could be claimed Control could be claimed either:either:

by conquest;by conquest; by cession (that is when one by cession (that is when one

country ceded its sovereignty country ceded its sovereignty to another); orto another); or

by settlement.by settlement.

Sir William Blackstone in the Sir William Blackstone in the CommentariesCommentaries

““It hath been held that if an uninhabited country It hath been held that if an uninhabited country be discovered and planted by English subjects be discovered and planted by English subjects all the English laws then in being, which are the all the English laws then in being, which are the birthright of every English subject, are birthright of every English subject, are immediately there in force…But this must be immediately there in force…But this must be understood with very many and very great understood with very many and very great restrictions. Such colonists carry with them only restrictions. Such colonists carry with them only so much of the English law as is applicable to so much of the English law as is applicable to their new situation and the condition of an infant their new situation and the condition of an infant colony”colony”

Instructions to Governor Philip Instructions to Governor Philip by Letters Patentby Letters Patent

““endeavour by every possible means endeavour by every possible means to open an intercourse with the to open an intercourse with the natives and to conciliate their natives and to conciliate their affections, enjoining all our subjects affections, enjoining all our subjects to live in amity and kindness with to live in amity and kindness with them”them”

European views of land ownershipEuropean views of land ownership

““tribes cannot take to themselves tribes cannot take to themselves more land than they have need of more land than they have need of or can inhabit and cultivate. Their or can inhabit and cultivate. Their uncertain occupancy of these vast uncertain occupancy of these vast regions cannot be held as a real regions cannot be held as a real and lawful taking of possession”and lawful taking of possession” (de Vattel)(de Vattel)

Cooper Cooper v v StuartStuart (1889) 14 App Cas 286(1889) 14 App Cas 286

““There is a very great difference between There is a very great difference between the case of a Colony acquired by conquest the case of a Colony acquired by conquest or cession, in which there is an or cession, in which there is an established system of law, and that of a established system of law, and that of a Colony which consisted of a tract or Colony which consisted of a tract or territory practically unoccupied, without territory practically unoccupied, without settled inhabitants or settled law, at the settled inhabitants or settled law, at the time when it was peacefully annexed to time when it was peacefully annexed to the British dominions. The Colony of New the British dominions. The Colony of New South Wales belongs to the latter class.” South Wales belongs to the latter class.” ((Lord WatsonLord Watson))

Two questions:Two questions:

given Australia’s early status as a penal given Australia’s early status as a penal colony, when did English law apply?colony, when did English law apply? Settled by legislation: Settled by legislation: The Australian The Australian

Courts Act 1828Courts Act 1828 what was included as “English law”? what was included as “English law”?

Statute law, common law, and how much Statute law, common law, and how much of the common law? of the common law? Settled by common law: Settled by common law: State State

Government Insurance CommissionGovernment Insurance Commission v v TrigwellTrigwell (1979) 142 CLR 617 (1979) 142 CLR 617

Gibbs J in Gibbs J in Trigwell Trigwell at 625-6 at 625-6 ““Legislation passed after [the date of reception] will of Legislation passed after [the date of reception] will of course not be applicable…But the common law which course not be applicable…But the common law which was adopted is not frozen in the form which it was adopted is not frozen in the form which it assumed in 1836 [the date of reception in SA]. It is assumed in 1836 [the date of reception in SA]. It is the common law rules as expounded from time to time the common law rules as expounded from time to time that are to be applied…If it is not right to say that the that are to be applied…If it is not right to say that the principle of principle of DonoghueDonoghue v v StevensonStevenson [1932] AC 562 [1932] AC 562 became part of the law of South Australia in 1836, it is became part of the law of South Australia in 1836, it is at least true to say that a body of principles, including at least true to say that a body of principles, including those that developed into the rule subsequently those that developed into the rule subsequently expressed in that case, formed part of the law of expressed in that case, formed part of the law of South Australia from 1836 onwards…This…means South Australia from 1836 onwards…This…means that parts of the common law which are suitable to a that parts of the common law which are suitable to a more advanced state lie dormant until occasion arises more advanced state lie dormant until occasion arises for enforcing them…”for enforcing them…”

Early government in the colonyEarly government in the colony

Personal rule of the governorPersonal rule of the governor Letters patentLetters patent 1788-1814: almost unrestricted autocratic 1788-1814: almost unrestricted autocratic

powerspowers Executive or administrative authorityExecutive or administrative authority Government by proclamationGovernment by proclamation

Criminal courtCriminal court

11 February 1788 – first sitting of criminal 11 February 1788 – first sitting of criminal courtcourt

Ellis Bent: Ellis Bent: “The Judge-Advocate is …at “The Judge-Advocate is …at once, the Committing Magistrate, Public once, the Committing Magistrate, Public Prosecutor and Judge; and he is called Prosecutor and Judge; and he is called upon to decide the legality of the upon to decide the legality of the informations drawn up and exhibited by informations drawn up and exhibited by himself”himself”

Civil courtCivil court

Kable’s case: July 1788Kable’s case: July 1788

Legislative powerLegislative power

Governor exercised executive power Governor exercised executive power pursuant to Letters Patentpursuant to Letters Patent

Courts exercised judicial power, pursuant Courts exercised judicial power, pursuant to legislation passed by the Imperial to legislation passed by the Imperial ParliamentParliament

No local legislative institutionsNo local legislative institutions

New South Wales Act, 1823New South Wales Act, 1823 First form of Parliament in Australia – a Legislative First form of Parliament in Australia – a Legislative

Council to advise the GovernorCouncil to advise the Governor Together, the Legislative Council and the Governor Together, the Legislative Council and the Governor

had power to make laws for the ‘peace, welfare and had power to make laws for the ‘peace, welfare and good government’ of the colony of New South Wales. good government’ of the colony of New South Wales.

BUT: laws could not be inconsistent with the laws of BUT: laws could not be inconsistent with the laws of England. England.

Legislative Council had 5-7 members, who were not Legislative Council had 5-7 members, who were not elected, but appointed by the British Secretary of elected, but appointed by the British Secretary of State. It could not initiate legislation –only discuss State. It could not initiate legislation –only discuss those matters raised by the Governor. those matters raised by the Governor.

Van Diemen’s Land established as a separate colony;Van Diemen’s Land established as a separate colony; Reformed court systemReformed court system Executive Council created.Executive Council created.

The Australian Courts Act 1828The Australian Courts Act 1828

Increased the size of the Legislative Council to Increased the size of the Legislative Council to between 10-15 membersbetween 10-15 members

Removed the power of the Governor to make Removed the power of the Governor to make laws without the concurrence of a majority of the laws without the concurrence of a majority of the Council. Council.

Public discussion of legislative proposals was to Public discussion of legislative proposals was to be encouraged, and the Governor was required be encouraged, and the Governor was required to publish details of legislative proposals at least to publish details of legislative proposals at least 8 days prior to their presentation to the 8 days prior to their presentation to the Legislative Council. Legislative Council.

Introduced trial by jury. Introduced trial by jury. Set the date of reception for New South Wales Set the date of reception for New South Wales

and Van Diemen’s Land as 25 July 1828. and Van Diemen’s Land as 25 July 1828.

Australian Constitutions Act Australian Constitutions Act (No 1) 1842.(No 1) 1842.

Made provision for the first Made provision for the first representativerepresentative, , parliamentary body. parliamentary body.

2/3 Legislative Council to be2/3 Legislative Council to be elected elected from amongst from amongst those those menmen who satisfied certain who satisfied certain propertyproperty requirements. The other 1/3 were still to be appointed requirements. The other 1/3 were still to be appointed by the Crown. by the Crown.

Enlarged the Legislative Council to 36 membersEnlarged the Legislative Council to 36 members Separated the Governor from the Legislature, Separated the Governor from the Legislature,

introducing for the introducing for the first time in the colony the notion first time in the colony the notion of three separate branches ofof three separate branches of government: government: legislature, executive and judiciary. legislature, executive and judiciary.

Vested limited fiscal responsibility in the Legislative Vested limited fiscal responsibility in the Legislative Council, in particular the disbursement of the revenue Council, in particular the disbursement of the revenue from taxation. This gave them a source of power in from taxation. This gave them a source of power in any struggles with the Governor.any struggles with the Governor.

Australian Constitutions ActAustralian Constitutions Act(No 2) 1850(No 2) 1850

Made provision for the Legislative Council Made provision for the Legislative Council to enact legislation to set up a bicameral to enact legislation to set up a bicameral legislature, subject to Royal Assent;legislature, subject to Royal Assent;

Created Victoria, and allowed for the Created Victoria, and allowed for the establishment of legislative structures in establishment of legislative structures in Van Diemen’s Land, South Australia and Van Diemen’s Land, South Australia and VictoriaVictoria

Constitution StatuteConstitution Statute 1855 1855

Passed by Imperial ParliamentPassed by Imperial Parliament Established a bicameral legislature, with a Established a bicameral legislature, with a

fully elected lower housefully elected lower house Formalised principle of Formalised principle of responsible responsible

governmentgovernment with Ministers responsible to with Ministers responsible to the Parliament for the functioning of their the Parliament for the functioning of their departments, and departments, and

The cabinet system, with the Constitution The cabinet system, with the Constitution providing for the role of the Governor-in-providing for the role of the Governor-in-Council as the central executive authority.Council as the central executive authority.

Representative government?Representative government?

Direct election of members of Direct election of members of parliament – or appointment?parliament – or appointment?

Who elects? Development of Who elects? Development of universal franchise.universal franchise.

XXXVI. Notwithstanding anything herein-before contained, the XXXVI. Notwithstanding anything herein-before contained, the Legislature of the said Colony, as constituted by this Act, Legislature of the said Colony, as constituted by this Act, shall have full Power and Authority, from Time to Time, by shall have full Power and Authority, from Time to Time, by any Act or Acts, to alter the Provisions or Laws for the Time any Act or Acts, to alter the Provisions or Laws for the Time being in force under this Act or otherwise, concerning the being in force under this Act or otherwise, concerning the Legislative Council, and to provide for the Nomination or Legislative Council, and to provide for the Nomination or Election of another Legislative Council, to consist Election of another Legislative Council, to consist respectively of such Members to be appointed or elected respectively of such Members to be appointed or elected respectively by such Person or Persons, and in such Manner, respectively by such Person or Persons, and in such Manner, as by such Act or Acts shall be determined: Provided always, as by such Act or Acts shall be determined: Provided always, that it shall not be lawful to present to the Governor of the that it shall not be lawful to present to the Governor of the said Colony, for Her Majesty's Assent, any Bill by which any said Colony, for Her Majesty's Assent, any Bill by which any such Alteration in the Constitution of the said Colony may be such Alteration in the Constitution of the said Colony may be made, unless the Second and Third Readings of such Bill made, unless the Second and Third Readings of such Bill shall have been passed with the Concurrence of Two Thirds shall have been passed with the Concurrence of Two Thirds of the Members for the Time being of the said Legislative of the Members for the Time being of the said Legislative Council and of the said Legislative Assembly respectively: Council and of the said Legislative Assembly respectively: Provided also, that every Bill which shall be so passed for any Provided also, that every Bill which shall be so passed for any of such Purposes shall be reserved for the Signification of of such Purposes shall be reserved for the Signification of Her Majesty's Pleasure thereon, and a Copy of such Bill shall Her Majesty's Pleasure thereon, and a Copy of such Bill shall be laid before both Houses of the Imperial Parliament for the be laid before both Houses of the Imperial Parliament for the Period of Thirty Days at the least before Her Majesty's Period of Thirty Days at the least before Her Majesty's Pleasure thereon shall be signified.”Pleasure thereon shall be signified.”

Colonial Laws Validity Act 1865Colonial Laws Validity Act 1865

S.2: Colonial legislatures were only bound by S.2: Colonial legislatures were only bound by statutes of the Westminster Parliament which statutes of the Westminster Parliament which were were expressly extendedexpressly extended to them; to them;

S3: no colonial law was to be regarded as void S3: no colonial law was to be regarded as void because it was repugnant to English law unless because it was repugnant to English law unless it was in relation to legislation which applied to it was in relation to legislation which applied to the colony by the colony by paramount forceparamount force,,

S5: colonial legislatures have the power to S5: colonial legislatures have the power to amend their own constitutions providing only amend their own constitutions providing only that such laws were passed in accordance with that such laws were passed in accordance with the the manner and formmanner and form laid down by existing law. laid down by existing law.

Phillips Phillips v v EyreEyre [1870] LR 6 QB 1 [1870] LR 6 QB 1at 20-1 per Willes J :at 20-1 per Willes J :

““that the repugnancy in English law which that the repugnancy in English law which avoids a colonial act, means repugnancy avoids a colonial act, means repugnancy to an Imperial statute or order made by the to an Imperial statute or order made by the authority of such statute, applicable to the authority of such statute, applicable to the colony by express words or necessary colony by express words or necessary intendment”intendment”

1902 Constitution s71902 Constitution s7

““The Legislature may, by any Act, alter The Legislature may, by any Act, alter the laws in force for the time being the laws in force for the time being under this Act or otherwise concerning under this Act or otherwise concerning the Legislative Council or Legislative the Legislative Council or Legislative Assembly.”Assembly.”

‘‘Manner and form’ provisionManner and form’ provision

A ‘manner and form’ provision is one A ‘manner and form’ provision is one which requires specific procedural which requires specific procedural requirements to be met before a law (or requirements to be met before a law (or the Constitution) can be changed (eg a the Constitution) can be changed (eg a special not a simple majority or a special not a simple majority or a referendum.)referendum.)

New s7A: Referendum for Bills with New s7A: Referendum for Bills with respect to Legislative Councilrespect to Legislative Council

(1) The Legislative Council shall not be (1) The Legislative Council shall not be abolished or dissolved, nor shall: abolished or dissolved, nor shall:

(a) its powers be altered,….(a) its powers be altered,…. (c) any provision with respect to the (c) any provision with respect to the

persons persons capable of being elected or of sitting capable of being elected or of sitting and and voting as Members of either House of voting as Members of either House of Parliament be enacted, or …Parliament be enacted, or …

except in the manner provided by this section.except in the manner provided by this section. (2) A Bill for any purpose within subsection (1) (2) A Bill for any purpose within subsection (1)

shall not be presented to the Governor for His shall not be presented to the Governor for His Majesty’s assent until the Bill has been Majesty’s assent until the Bill has been approved by the electors in accordance with this approved by the electors in accordance with this section. section.

Constitution andConstitution and Parliamentary Parliamentary Electorates and Elections Electorates and Elections

(Amendment) Act, No. 75(Amendment) Act, No. 75, (1978), (1978)

Legislative Council became a House of 45 Legislative Council became a House of 45 members members directly elected by the people directly elected by the people by a system of proportionalby a system of proportional representation.representation.

Extension of franchiseExtension of franchise

1855:1855: Possessors of freehold estates of the clear value Possessors of freehold estates of the clear value

of £100/-/- within the electorate of £100/-/- within the electorate Persons holding licences from the government Persons holding licences from the government

to depasture lands within the electorate to depasture lands within the electorate Occupiers of houses of the clear annual value of Occupiers of houses of the clear annual value of

£10/-/- in the electorate, and £10/-/- in the electorate, and Possessors of leasehold estates of the annual Possessors of leasehold estates of the annual

value of £10/-/-, the leases of which at the date value of £10/-/-, the leases of which at the date of registration had not less than 3 years to runof registration had not less than 3 years to run

FranchiseFranchise

1858: franchise extended to all adult males who 1858: franchise extended to all adult males who had lived in an electorate for the preceding six had lived in an electorate for the preceding six months and were either British citizens by birth months and were either British citizens by birth or had been naturalised for five years and had or had been naturalised for five years and had lived in the colony for the preceding two. Police, lived in the colony for the preceding two. Police, serving members of the armed forces, paupers serving members of the armed forces, paupers and prisoners were barred from voting.and prisoners were barred from voting.

1893: property vote abolished; six month 1893: property vote abolished; six month residence requirement abolished.residence requirement abolished.

1902 : vote given to women1902 : vote given to women

Constitution Act 1902 (NSW)Constitution Act 1902 (NSW)

an act of the NSW Parliament, not the an act of the NSW Parliament, not the Imperial parliament. Imperial parliament.

Current ConstitutionCurrent Constitution Makes clear that federation was not Makes clear that federation was not

intended to diminish the powers of the intended to diminish the powers of the States.States.

S.5 provides:S.5 provides: ““The Legislature shall, subject to the The Legislature shall, subject to the

provisions of the Commonwealth of Australia provisions of the Commonwealth of Australia Constitution Act, have power to make laws for Constitution Act, have power to make laws for the peace, welfare and good government of the peace, welfare and good government of New South Wales in all cases whatsoever…”New South Wales in all cases whatsoever…”

Balfour DeclarationBalfour Declaration

Changing relationship between England Changing relationship between England and coloniesand colonies

““autonomous communities within the autonomous communities within the British Empire, equal in status, in no way British Empire, equal in status, in no way subordinate to one another in any aspect subordinate to one another in any aspect of their domestic or external affairs, though of their domestic or external affairs, though united by a common allegiance to the united by a common allegiance to the Crown, and freely associated as members Crown, and freely associated as members of the British Commonwealth of Nations.”of the British Commonwealth of Nations.”

Statute of WestminsterStatute of Westminster

Gave formal expression to the Balfour Gave formal expression to the Balfour Declaration, Declaration,

s4: provided that no British Act, passed after the s4: provided that no British Act, passed after the commencement of the Statute, would apply to commencement of the Statute, would apply to any Dominion, unless the Dominion had any Dominion, unless the Dominion had expressly requested and consented to itexpressly requested and consented to it

s2: repealed the repugnancy doctrine contained s2: repealed the repugnancy doctrine contained in the in the Colonial Laws Validity Act,Colonial Laws Validity Act,

s3 conferred on the Dominions the power to s3 conferred on the Dominions the power to make laws of extra-territorial application.make laws of extra-territorial application.

BUT….BUT….

s9: protected the constitutional position of s9: protected the constitutional position of NSW and the other statesNSW and the other states

s10(1): provided that the operative s10(1): provided that the operative provisions of the legislation would not provisions of the legislation would not come into effect in a particular Dominion come into effect in a particular Dominion until that dominion had passed legislation until that dominion had passed legislation to that effect.to that effect.

Australia – 1942 – Statute of Westminster Australia – 1942 – Statute of Westminster Adoption Act – backdated its operation to Adoption Act – backdated its operation to 3 September, 19393 September, 1939

The Australia Acts 1986The Australia Acts 1986

s1:s1:“No Act of the Parliament of the United “No Act of the Parliament of the United Kingdom passed after the commencement Kingdom passed after the commencement of this Act shall extend, or be deemed to of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State extend, to the Commonwealth, to a State or Territory as part of the law of the or Territory as part of the law of the Commonwealth, of the State or of the Commonwealth, of the State or of the Territory.”Territory.”

Australia ActsAustralia Acts s2: State legislatures can make laws with extra s2: State legislatures can make laws with extra

territorial operationterritorial operation s3: s3: The Colonial Laws Validity Act 1865The Colonial Laws Validity Act 1865 shall not shall not

apply to laws of the States made after the apply to laws of the States made after the commencement of the Australia Acts. commencement of the Australia Acts.

s6: State constitutions could only be amended in s6: State constitutions could only be amended in accordance with the manner and form laid down accordance with the manner and form laid down for amendment by the existing law for amendment by the existing law

s11: provided for the complete abolition of s11: provided for the complete abolition of appeals to the Privy Council from any Australian appeals to the Privy Council from any Australian court otherwise than as provided for in the court otherwise than as provided for in the Federal Constitution. Federal Constitution.

MaboMabo v v Queensland (No.2) Queensland (No.2) (1992) (1992) 175 CLR 1.175 CLR 1.

Brennan J [23]:Brennan J [23]:

““Oversimplified, the chief question in this Oversimplified, the chief question in this case is whether [the annexation of the case is whether [the annexation of the Murray Islands by Letters Patent from the Murray Islands by Letters Patent from the British government and legislation British government and legislation passed by the Qld parliament on 1 August passed by the Qld parliament on 1 August 1879] …had the effect …of vesting in the 1879] …had the effect …of vesting in the Crown absolute ownership of, legal Crown absolute ownership of, legal possession of and exclusive power to possession of and exclusive power to confer title to, all land in the Murray confer title to, all land in the Murray Islands.”Islands.”

Defendant’s argument:Defendant’s argument:

““when the territory of a settled colony when the territory of a settled colony became part of the Crown’s dominions, the became part of the Crown’s dominions, the law of England so far as applicable to law of England so far as applicable to colonial conditions became the law of the colonial conditions became the law of the colony and, by that law, the Crown acquired colony and, by that law, the Crown acquired the absolute beneficial ownership of all land the absolute beneficial ownership of all land in the territory so that the colony became the in the territory so that the colony became the Crown’s demesne and no right or interest in Crown’s demesne and no right or interest in any land in the territory could thereafter be any land in the territory could thereafter be possessed by any other person unless possessed by any other person unless granted by the Crown.” granted by the Crown.” per Brennan at [25]per Brennan at [25]

Consequences of this argument:Consequences of this argument:

““the interests of indigenous inhabitants in the interests of indigenous inhabitants in colonial land were extinguished so soon as colonial land were extinguished so soon as British subjects settled in a colony, though British subjects settled in a colony, though the indigenous inhabitants had neither ceded the indigenous inhabitants had neither ceded their lands to the Crown nor suffered them to their lands to the Crown nor suffered them to be taken as the spoils of conquest. be taken as the spoils of conquest. According to the cases, the common law According to the cases, the common law itself took from indigenous inhabitants any itself took from indigenous inhabitants any right to occupy their traditional land…”right to occupy their traditional land…”Brennan Brennan J at [28]J at [28]

““Judged by any civilised standard, Judged by any civilised standard, such a law is unjust and its claim to be such a law is unjust and its claim to be part of the common law to be applied in part of the common law to be applied in contemporary Australia must be contemporary Australia must be questioned.”questioned.”

Approach of Court:Approach of Court:

““In discharging its duty to declare the In discharging its duty to declare the common law of Australia, this Court is common law of Australia, this Court is not free to adopt rules that accord with not free to adopt rules that accord with contemporary notions of justice and contemporary notions of justice and human rights if their adoption would human rights if their adoption would fracture the skeleton of principle which fracture the skeleton of principle which gives the body of our law its shape and gives the body of our law its shape and internal consistency.” internal consistency.” (at [29])(at [29])

High Court and precedentHigh Court and precedent

“…“…this Court is free to depart from English this Court is free to depart from English precedent which was earlier followed as precedent which was earlier followed as stating the common law of this country…it stating the common law of this country…it cannot do so where the departure would cannot do so where the departure would fracture what I have called the skeleton of fracture what I have called the skeleton of principle….The peace and order of Australian principle….The peace and order of Australian society is built on the legal system. It can be society is built on the legal system. It can be modified to bring it into conformity with modified to bring it into conformity with contemporary notions of justice and human contemporary notions of justice and human rights, but it cannot be destroyed.”rights, but it cannot be destroyed.” (at [29])(at [29])

Accommodation of contemporary Accommodation of contemporary values by common lawvalues by common law

““If a postulated rule of the common law If a postulated rule of the common law expressed in earlier cases seriously offends expressed in earlier cases seriously offends those contemporary values, [of justice and those contemporary values, [of justice and human rights] the question arises whether human rights] the question arises whether the rule should be maintained and applied. the rule should be maintained and applied. Whenever such a question arises, it is Whenever such a question arises, it is necessary to assess whether the particular necessary to assess whether the particular rule is an essential doctrine of our legal rule is an essential doctrine of our legal system, and whether, if the rule were to be system, and whether, if the rule were to be overturned, the disturbance to be overturned, the disturbance to be apprehended would be disproportionate to apprehended would be disproportionate to the benefit flowing from the overturning.” the benefit flowing from the overturning.” (at (at [29])[29])

‘‘Terra nullius’ a fictionTerra nullius’ a fiction

““As the basis of the theory is false in As the basis of the theory is false in fact and unacceptable in our society, fact and unacceptable in our society, there is a choice of legal principle to be there is a choice of legal principle to be made in the present case. This Court made in the present case. This Court can either apply the existing can either apply the existing authorities…or the Court can overrule authorities…or the Court can overrule the existing authorities, discarding the the existing authorities, discarding the distinction between inhabited colonies distinction between inhabited colonies that were terra nullius and those which that were terra nullius and those which were not.” were not.” (at [39])(at [39])

BUT…BUT…

““However, recognition by our However, recognition by our common law of the rights and common law of the rights and interests in land of the indigenous interests in land of the indigenous inhabitants of a settled colony inhabitants of a settled colony would be precluded if the would be precluded if the recognition were to fracture a recognition were to fracture a skeletalskeletal principle of our legal principle of our legal system.”system.” (at [43])(at [43])

““It was only by fastening on the notion that a It was only by fastening on the notion that a settled colony was terra nullius that it was settled colony was terra nullius that it was possible to predicate of the Crown the possible to predicate of the Crown the acquisition of ownership of land in a colony acquisition of ownership of land in a colony already occupied by indigenous already occupied by indigenous inhabitants….If that hypothesis be rejected, inhabitants….If that hypothesis be rejected, the notion that sovereignty carried the notion that sovereignty carried ownership in its wake must be rejected too. ownership in its wake must be rejected too. Though the rejection of the notion of terra Though the rejection of the notion of terra nullius clears away the fictional impediment nullius clears away the fictional impediment to the rejection of indigenous rights and to the rejection of indigenous rights and interests in colonial land, it would be interests in colonial land, it would be impossible for the common law to recognize impossible for the common law to recognize such rights and interests if the basic such rights and interests if the basic doctrines of the common law are doctrines of the common law are inconsistent with their recognition. ” inconsistent with their recognition. ” (at[46])(at[46])

WHY?.....WHY?.....

““A basic doctrine of the land law is the doctrine of A basic doctrine of the land law is the doctrine of tenure…and it is a doctrine which could not be tenure…and it is a doctrine which could not be overturned without fracturing the skeleton which overturned without fracturing the skeleton which gives our land law its shape and consistency. It is gives our land law its shape and consistency. It is derived from feudal origins. The feudal basis of derived from feudal origins. The feudal basis of the proposition of absolute Crown ownership”. the proposition of absolute Crown ownership”. (at (at [47])[47])

““It is far too late in the day to contemplate an…other It is far too late in the day to contemplate an…other system of land ownership. Land in Australia which system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure has been granted by the Crown is held on a tenure of some kind and the titles acquired under the of some kind and the titles acquired under the accepted land law cannot be disturbed.” accepted land law cannot be disturbed.” (at[49])(at[49])

Radical title/absolute ownershipRadical title/absolute ownership““The Crown was treated as having the radical title to all the The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired land in the territory over which the Crown acquired sovereignty. The radical title is a postulate of the doctrine of sovereignty. The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign’s and what parcels of land should be kept as the sovereign’s beneficial demesne. By attributing to the Crown a radical title beneficial demesne. By attributing to the Crown a radical title to all land within a territory over which the Crown has to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown, assumed sovereignty, the common law enabled the Crown, in exercise of its sovereign power, to grant an interest in in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the land to be held of the Crown or to acquire land for the Crown’s demesne. The notion of radical title enabled the Crown’s demesne. The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown’s owner of unalienated land required for the Crown’s purposes. But it is not a corollary of the Crown’s acquisition purposes. But it is not a corollary of the Crown’s acquisition of a radical title to land in an occupied territory that the of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants.” the exclusion of the indigenous inhabitants.” [50/51][50/51]

Recognition of native titleRecognition of native title

““Recognition of the radical title of the Crown Recognition of the radical title of the Crown is quite consistent with recognition of native is quite consistent with recognition of native title to land.” title to land.” (at[52])(at[52])

““Where a proprietary title capable of Where a proprietary title capable of recognition by the common law is found to recognition by the common law is found to have been possessed by a community in have been possessed by a community in occupation of a territory, there is no reason occupation of a territory, there is no reason why that title should not be recognised as a why that title should not be recognised as a burden on the Crown’s radical title when the burden on the Crown’s radical title when the Crown acquires sovereignty over that Crown acquires sovereignty over that territory”. territory”. (at [53])(at [53])

Extinction of native titleExtinction of native title

““The dispossession of the indigenous inhabitants The dispossession of the indigenous inhabitants of Australia was not worked by a transfer of of Australia was not worked by a transfer of beneficial ownership when sovereignty was beneficial ownership when sovereignty was acquired by the Crown, but the recurrent exercise acquired by the Crown, but the recurrent exercise of a paramount power to exclude the indigenous of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial inhabitants from their traditional lands as colonial settlement expanded and land was granted to the settlement expanded and land was granted to the colonists. Dispossession is attributable not to a colonists. Dispossession is attributable not to a failure of native title to survive the acquisition of failure of native title to survive the acquisition of sovereignty, but to its subsequent extinction by a sovereignty, but to its subsequent extinction by a paramount power.” paramount power.” (at [63])(at [63])

Scylla and Charybdis of Scylla and Charybdis of extinction of native titleextinction of native title

Maintenance of continuous (and continuing) Maintenance of continuous (and continuing) native titlenative title ““Once traditional native title expires, the Once traditional native title expires, the

Crown’s radical title expands to a full beneficial Crown’s radical title expands to a full beneficial title” title” (at [66])(at [66])

Which has not been extinguished by a Crown Which has not been extinguished by a Crown grantgrant ““Sovereignty carries the power to create and to Sovereignty carries the power to create and to

extinguish private rights and interests in land extinguish private rights and interests in land withinwithin the Sovereign’s territory”the Sovereign’s territory” (at [73])(at [73])