NSW and Commonwealth
Legal and Constitutional
History
Topic 9
Control could be claimed either:
 by conquest;
 by cession (that is when one country
ceded its sovereignty to another); or
 by settlement.
Sir William Blackstone in the
Commentaries
“It hath been held that if an uninhabited country
be discovered and planted by English subjects
all the English laws then in being, which are the
birthright of every English subject, are
immediately there in force…But this must be
understood with very many and very great
restrictions. Such colonists carry with them only
so much of the English law as is applicable to
their new situation and the condition of an infant
colony”
Instructions to Governor Philip
by Letters Patent
“endeavour by every possible means
to open an intercourse with the
natives and to conciliate their
affections, enjoining all our subjects
to live in amity and kindness with
them”
European views of land ownership
“tribes cannot take to themselves
more land than they have need of
or can inhabit and cultivate. Their
uncertain occupancy of these vast
regions cannot be held as a real
and lawful taking of possession”
(de Vattel)
Cooper v Stuart
(1889) 14 App Cas 286
“There is a very great difference between
the case of a Colony acquired by conquest
or cession, in which there is an
established system of law, and that of a
Colony which consisted of a tract or
territory practically unoccupied, without
settled inhabitants or settled law, at the
time when it was peacefully annexed to
the British dominions. The Colony of New
South Wales belongs to the latter class.”
(Lord Watson)
Two questions:
 given Australia’s early status as a penal
colony, when did English law apply?
 Settled by legislation: The Australian
Courts Act 1828
 what was included as “English law”?
Statute law, common law, and how much
of the common law?
 Settled by common law: State
Government Insurance Commission v
Trigwell (1979) 142 CLR 617
Gibbs J in Trigwell at 625-6
“Legislation passed after [the date of reception] will of
course not be applicable…But the common law which
was adopted is not frozen in the form which it
assumed in 1836 [the date of reception in SA]. It is
the common law rules as expounded from time to time
that are to be applied…If it is not right to say that the
principle of Donoghue v Stevenson [1932] AC 562
became part of the law of South Australia in 1836, it is
at least true to say that a body of principles, including
those that developed into the rule subsequently
expressed in that case, formed part of the law of
South Australia from 1836 onwards…This…means
that parts of the common law which are suitable to a
more advanced state lie dormant until occasion arises
for enforcing them…”
Trigwell’s case
 Mason J: example of problem solving
 IRAC method
 Mason J: discussion of separation of
powers, and different roles of Court and
Judiciary
 Discusses nature of common law and
what was received as ‘law’.
STATE GOVERNMENT
INSURANCE
COMMISSION v
TRIGWELL
(1979) 142 CLR 617
[629]
MASON J. This is an appeal from a decision of the Supreme Court of South
Australia (King J.) in which judgment was entered for the first respondents
("the Trigwells") against the appellant Insurance Commission.
The Trigwells had brought an action for damages for personal injuries which
they had sustained when the vehicle in which they were travelling was
involved in an accident with a vehicle driven by one Christine Avis Rooke.
By their statement of claim, the Trigwells alleged negligence on the part of
Miss Rooke. Miss Rooke had been killed in the accident and the appellant
was sued as her compulsory third party insurer.
The second respondents ("the Kerins") were also joined as defendants in the
action. By their statement of claim, the Trigwells alleged that Miss Rooke
had collided with two sheep on the highway immediately before the accident
and that, as a result [630] of, or in an attempt to avoid, the collision with the
sheep, she had collided with the Trigwells. It was alleged that the presence
of the sheep on the highway was the result of negligence on the part of the
Kerins and further, or in the alternative, that the presence of the sheep
constituted a nuisance which the Kerins had failed to prevent. The Kerins
were sued as the occupiers of land adjoining the highway on which the
accident had occurred.
The Trigwells claimed that either the deceased driver or the Kerins or both
had been responsible for the accident.
By its defence, the appellant denied that there had been negligence on
the part of the deceased driver and alleged that, even if there were such
negligence, the respondent Eric Gerald Trigwell, who had been driving
the Trigwells' vehicle at the time of the accident, was guilty of
contributory negligence. The appellants also issued a third party notice
for contribution against the Kerins.
The Kerins denied the allegations of negligence and nuisance. They
maintained that, by virtue of the rule in Searle v. Wallbank , they were
not liable in negligence for the loss and damage suffered by the
Trigwells in the accident. They also denied that they were under any
duty to prevent any nuisance which might be found to have existed.
The Kerins alleged that there had been contributory negligence on the
part of Eric Gerald Trigwell, an allegation which he denied, and issued a
third party notice for contribution against the appellant.
King J. held that the deceased driver had been guilty of negligence,
thereby causing the accident in which the Trigwells had been injured,
and that the Trigwells were therefore entitled to succeed against the
appellant Insurance Commission. He held that there had been no
negligence on the part of the respondent Eric Gerald Trigwell.
His Honour concluded that the Kerins were under no liability in
either nuisance or negligence. His Honour held that the
presence of the two sheep on the highway was incapable of
constituting a public nuisance for which the Kerins were
responsible. Moreover, he held that, applying the rule in Searle
v. Wallbank, in the circumstances of the case, the Kerins were
under no duty of care to prevent the sheep from straying on to
the highway and hence that no negligence on the part of the
Kerins could be established. His Honour followed the decision of
the Full Court of the Supreme Court of South Australia in
Bagshaw [631] v. Taylor which held that the rule in Searle v.
Wallbank was applicable in South Australia.
In the result, then, judgment was entered for the Trigwells
against the appellant Insurance Commission. In this Court, the
appellant challenged the finding that there had been negligence
on the part of the deceased driver. The appellant also contested
the conclusion of the Supreme Court that the Kerins were under
no liability in negligence. It was submitted that the rule in Searle
v. Wallbank did not form part of the law of South Australia and
that, accordingly, upon the evidence, there should have been a
finding of negligence made against the Kerins.
In the alternative, it was argued that, if the rule in Searle v.
Wallbank did form part of the law of South Australia, there
were, in this case, "special circumstances" within the
meaning of the rule which justified a finding of negligence
against the Kerins. Finally, the appellant contended that
the Supreme Court had erred in concluding that the Kerins
were not guilty of nuisance. The Trigwells, who crossappealed, supported the appellant's case against the
Kerins.
It will be convenient to consider first the liability of the
Kerins in negligence. This depends very largely on what
was decided in Searle v. Wallbank. Bray C.J. in Bagshaw
v. Taylor has examined the effect of the decision and the
operation in Australia of the principle which it enunciates.
However, as this case is in effect an appeal against
Bagshaw v. Taylor and as this Court has greater freedom
to depart from a decision of the House of Lords than the
Supreme Court of a State, it is necessary that I say
something of Searle v. Wallbank.
There the House of Lords decided that the owner or
occupier of a property adjoining the highway is under
no legal obligation to users of it so to keep and
maintain his hedges, fences and gates as to prevent
animals from straying on to it, and that he is not
under any duty as between himself and users of it to
take reasonable care to prevent any of his animals,
not known to be dangerous, from straying on to it
The decision has been much discussed, indeed
criticized, but its effect is to settle what has been the
common law of England from early times.
We were invited to hold that the case was wrongly
decided and to say that the earlier cases supported
the view that the landowner or occupier of land was
not immune from liability to negligence arising from
his failure to fence securely his land so as to prevent
stock from straying and causing injury to users of the
highway. It is not an invitation to which I would
accede…..
[632] Salmond on Torts, 17th ed. (1977), p. 344,
refers to the rule as "long-standing" and as one
which "was founded upon our ancient social
conditions and was in no way related to, or liable
to be qualified by, such matters as the relative
levels of fields and highway, the nature of the
highway, or the amount of traffic upon it". The
author cites Brock v. Richards as authority for
this statement.
It has been suggested that the rule is of modern
or recent origin, notably by Lord Wright in
Brackenborough v. Spalding Urban District
Council, in a speech to which Lord Greene M.R.
called attention in Hughes v. Williams. However,
an examination of the authorities shows that its
antecedents are ancient.
The attack on Searle v. Wallbank was chiefly founded on
the claim that the rule which it enunciated is illogical and
that the conditions on which it was based historically have
altered in a fundamental way. According to the appellant,
it is illogical that the occupier of land should be liable for
damage done to a neighbour's property by reason of his
animals straying and that he should be immune from
liability for personal injury done by his animals (not known
to be dangerous) straying on to the [633] highway
through his failure to maintain his fences. The explanation
for this apparent illogicality is, of course, to be found in the
historical facts. As Neville J. said in Heath’s Garage Ltd. v.
Hodges : “In my opinion the experience of centuries has
shown that the presence of domestic animals upon the
highway is not inconsistent with the reasonable safety of
the public using the road.”
It is then said that as there was a radical change in the relevant
conditions, a change brought about by the development of
roads and highways, the growth of fast-moving motor traffic on
a large scale and a substantial increase in the fencing of
properties, the House of Lords should have held that the rule
was no longer appropriate to modern circumstances and that
the ordinary principles of negligence should apply to the
occupier of land whose straying animals caused accidents on
the highway. In short, it is argued that the House of Lords
should have reviewed the existing law in conformity with the
suggestions made by the Court of Appeal in Hughes v. Williams
I do not doubt that there are some cases in which an ultimate
court of appeal can and should vary or modify that which has
been thought to be a settled rule or principle of the common law
on the ground that it is ill-adapted to modern circumstances. If it
should emerge that a specific common law rule was based on
the existence of particular conditions or circumstances, whether
social or economic, and that they have undergone a radical
change, then in a simple or clear case the court may be justified
in moulding the rule to meet the new conditions and
circumstances. But there are very powerful reasons why the
court should be reluctant to engage in such an exercise.
The court is neither a legislature nor a law reform agency. Its
responsibility is to decide cases by applying the law to the
facts as found. The courts facility, techniques and procedures
are adapted to that responsibility; they are not adapted to
legislative functions or to law reform activities. The court does
not, and cannot, carry out investigations or enquiries with a
view to ascertaining whether particular common law rules are
working well, whether they are adjusted to the needs of the
community and whether they command popular assent. Nor
can the court call for and examine, submissions from groups
and individuals who may be vitally interested in the making of
changes to the law. In short the court cannot, and does not,
engage in the wide-ranging inquiries and assessments which
are made by governments and law reform agencies as a
desirable, if not essential, preliminary to the enactment of
legislation by an elected legislature. [634]
These considerations must deter a court from departing too
readily from a settled rule of the common law and from
replacing it with a new rule. Certainly, in this case they lead to
the conclusion that the desirability of departing from the rule
in Searle v. Wallbank is a matter which should be left to
Parliament.
It is beyond question that the conditions which brought the rule
into existence have changed markedly. But it seems to me that
in the division between the legislative and the judicial functions
it is appropriately the responsibility of Parliament to decide
whether the rule should be replaced and, if so, by what it should
be replaced. The determination of that issue requires an
assessment and an adjustment of the competing interests of
motorists and landowners; it might even result in one rule for
urban areas and another for rural areas. It is a complicated
task, not one which the court is equipped to undertake.
My conclusion is, then, that we should accept that what was
and has been the common law for England was correctly
decided by Searle v. Wallbank. The next question is whether
the law as declared by the House of Lords in that case
represents the law of South Australia. The proper approach to a
determination of such a question was adopted by the Supreme
Court of Victoria in Brisbane v. Cross, and by the Supreme
Court of South Australia in Bagshaw v. Taylor. Accordingly, the
inquiry must be whether the law in Searle v. Wallbank was
applicable in the colony of South Australia upon its settlement
and further, whether the law, if so applicable, has been varied
or abolished by subsequent local legislation.
It is a well-established principle that, in settled colonies,
so much of the common law of England is introduced as
is applicable to the situation of the colonists and the
condition of the colony (see Halsburys Laws of England,
4th ed., vol. 6, p. 589; Cooper v. Stuart). The applicability
of the law in question depends not upon whether the
court considers the law suitable or beneficial for the
colony, but upon whether the law is capable of
application in the colony (Delohery v. Permanent Trustee
Co. of N.S.W.). The date upon which the applicability of
the English common law to the settled colony of South
Australia falls to be considered has been fixed by local
enactment. Section 3 of Act No. 9 of 1872 (S.A.)
provides that "In all questions as to the applicability of
any laws or statutes of England to the Province of South
Australia, the said province [635] shall be deemed to
have been established on the 28th day of December
1836".
The issue, then, is whether the common law of England, as
settled by the decision of the House of Lords in Searle v.
Wallbank, was applicable, in the relevant sense, to the colony
of South Australia on 28th December 1836. There is no
reason for holding that the rule in Searle v. Wallbank was
inapplicable in South Australia on that date. The physical
conditions obtaining in the colony—those relating to the state
of the roads and fencing of land, and to the presence of
straying stock upon the highways—were not so markedly
different from those existing in England that the law could be
said to be inapplicable to the colony. There was nothing in the
legislation in force in the colony as at 28th December 1836
that had the effect of making the relevant common law
inapplicable to the colony.
Subsequent statutory provisions such as s. 14 (2) of the
Impounding Act, 1920 (S.A.), permitting the impounding of
cattle wandering or straying upon the road and, in effect, the
imposition of a penalty upon the owner of the cattle, have not
displaced the common law because they confer no private
right of action upon a person injured by the straying cattle
(see Searle v. Wallbank).
There has been no counterpart in South Australia to the
legislation in Western Australia which required and
encouraged the fencing of properties, legislation which was
relied upon by the Supreme Court of Western Australia to
justify the conclusion that the rule in Searle v Wallbank is not
part of the law of that State (see Thomson v. Nix).
The view might be taken that conditions prevailing in Australia,
or some parts of Australia, are more suited to the [636]
retention of the rule in Searle v Wallbank than the conditions
which prevail in the United Kingdom. Not only is Australia
predominantly rural in character but its rural interests centre
very substantially around the raising and keeping of livestock.
I mention these considerations, not with a view to saying that
the rule ought to be retained, but so as to emphasize the point
that the issue of retention or abolition calls for an assessment
and a adjustment of conflicting interests, the principal interests
being those of the rural landowner and occupier and those of
the motorist.
The fact that the United Kingdom Parliament has
abolished the rule has no relevance for us, except to
confirm my opinion that the question should be left to
Parliament. As conditions here differ from those which
prevail in the United Kingdom we cannot automatically
assume that all Australian legislatures, or that the South
Australian Parliament in particular, would take the same
view as that which has been taken in England. With
great respect to Samuels J.A. who thought otherwise in
Kelly v. Sweeney I do not consider that the abolition of
the rule by the United Kingdom Parliament on the
recommendation of the English Law Commission is a
relevant consideration for this Court.
We must proceed, therefore, on the footing that Searle v.
Wallbank forms part of the law of South Australia.
Early government in the colony
 Personal rule of the governor
 Letters patent
 1788-1814: almost unrestricted autocratic
powers
 Executive or administrative authority
 Government by proclamation
Criminal court
 11 February 1788 – first sitting of criminal
court
 Ellis Bent: “The Judge-Advocate is …at
once, the Committing Magistrate, Public
Prosecutor and Judge; and he is called
upon to decide the legality of the
informations drawn up and exhibited by
himself”
Civil court
 Cable v Sinclair [1788] NSWKR 7 : July
1788
Legislative power
 Governor exercised executive power
pursuant to Letters Patent
 Courts exercised judicial power, pursuant
to legislation passed by the Imperial
Parliament
 No local legislative institutions
New South Wales Act, 1823
 First form of Parliament in Australia – a Legislative






Council to advise the Governor
Together, the Legislative Council and the Governor
had power to make laws for the ‘peace, welfare and
good government’ of the colony of New South Wales.
BUT: laws could not be inconsistent with the laws of
England.
Legislative Council had 5-7 members, who were not
elected, but appointed by the British Secretary of
State. It could not initiate legislation –only discuss
those matters raised by the Governor.
Van Diemen’s Land established as a separate colony;
Reformed court system
Executive Council created.
The Australian Courts Act 1828
 Increased the size of the Legislative Council to




between 10-15 members
Removed the power of the Governor to make
laws without the concurrence of a majority of the
Council.
Public discussion of legislative proposals was to
be encouraged, and the Governor was required
to publish details of legislative proposals at least
8 days prior to their presentation to the
Legislative Council.
Introduced trial by jury.
Set the date of reception for New South Wales
and Van Diemen’s Land as 25 July 1828.
Australian Constitutions Act
(No 1) 1842.
 Made provision for the first representative,




parliamentary body.
2/3 Legislative Council to be elected from amongst
those men who satisfied certain property
requirements. The other 1/3 were still to be appointed
by the Crown.
Enlarged the Legislative Council to 36 members
Separated the Governor from the Legislature,
introducing for the first time in the colony the notion
of three separate branches of government:
legislature, executive and judiciary.
Vested limited fiscal responsibility in the Legislative
Council, in particular the disbursement of the revenue
from taxation. This gave them a source of power in
any struggles with the Governor.
Australian Constitutions Act
(No 2) 1850
 Made provision for the Legislative Council
to enact legislation to set up a bicameral
legislature, subject to Royal Assent;
 Created Victoria, and allowed for the
establishment of legislative structures in
Van Diemen’s Land, South Australia and
Victoria
Constitution Statute 1855
 Passed by Imperial Parliament
 Established a bicameral legislature, with a
fully elected lower house
 Formalised principle of responsible
government with Ministers responsible to
the Parliament for the functioning of their
departments, and
 The cabinet system, with the Constitution
providing for the role of the Governor-inCouncil as the central executive authority.
Representative government?
 Direct election of members of
parliament – or appointment?
 Who elects? Development of
universal franchise.
XXXVI. Notwithstanding anything herein-before contained, the
Legislature of the said Colony, as constituted by this Act,
shall have full Power and Authority, from Time to Time, by
any Act or Acts, to alter the Provisions or Laws for the Time
being in force under this Act or otherwise, concerning the
Legislative Council, and to provide for the Nomination or
Election of another Legislative Council, to consist
respectively of such Members to be appointed or elected
respectively by such Person or Persons, and in such Manner,
as by such Act or Acts shall be determined: Provided always,
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
such Alteration in the Constitution of the said Colony may be
made, unless the Second and Third Readings of such Bill
shall have been passed with the Concurrence of Two Thirds
of the Members for the Time being of the said Legislative
Council and of the said Legislative Assembly respectively:
Provided also, that every Bill which shall be so passed for any
of such Purposes shall be reserved for the Signification of
Her Majesty's Pleasure thereon, and a Copy of such Bill shall
be laid before both Houses of the Imperial Parliament for the
Period of Thirty Days at the least before Her Majesty's
Pleasure thereon shall be signified.”
Colonial Laws Validity Act 1865
 S.2: Colonial legislatures were only bound by
statutes of the Westminster Parliament which
were expressly extended to them;
 S3: no colonial law was to be regarded as void
because it was repugnant to English law unless
it was in relation to legislation which applied to
the colony by paramount force,
 S5: colonial legislatures have the power to
amend their own constitutions providing only
that such laws were passed in accordance with
the manner and form laid down by existing law.
Phillips v Eyre [1870] LR 6 QB 1
at 20-1 per Willes J :
“that the repugnancy in English law which
avoids a colonial act, means repugnancy
to an Imperial statute or order made by the
authority of such statute, applicable to the
colony by express words or necessary
intendment”
1902 Constitution s7
“The Legislature may, by any Act, alter
the laws in force for the time being
under this Act or otherwise concerning
the Legislative Council or Legislative
Assembly.”
‘Manner and form’ provision
 A ‘manner and form’ provision is one
which requires specific procedural
requirements to be met before a law (or
the Constitution) can be changed (eg a
special not a simple majority or a
referendum.)
New s7A: Referendum for Bills with
respect to Legislative Council
(1) The Legislative Council shall not be
abolished or dissolved, nor shall:
(a) its powers be altered,….
(c) any provision with respect to the persons
capable of being elected or of sitting and
voting as Members of either House of
Parliament be enacted, or …
except in the manner provided by this section.
(2) A Bill for any purpose within subsection (1)
shall not be presented to the Governor for His
Majesty’s assent until the Bill has been
approved by the electors in accordance with this
section.
Constitution and Parliamentary
Electorates and Elections
(Amendment) Act, No. 75, (1978)
 Legislative Council became a House of 45
members directly elected by the people
by a system of proportional
representation.
Extension of franchise
1855:
 Possessors of freehold estates of the clear value
of £100/-/- within the electorate
 Persons holding licences from the government
to depasture lands within the electorate
 Occupiers of houses of the clear annual value of
£10/-/- in the electorate, and
 Possessors of leasehold estates of the annual
value of £10/-/-, the leases of which at the date
of registration had not less than 3 years to run
Franchise
 1858: franchise extended to all adult males who
had lived in an electorate for the preceding six
months and were either British citizens by birth
or had been naturalised for five years and had
lived in the colony for the preceding two. Police,
serving members of the armed forces, paupers
and prisoners were barred from voting.
 1893: property vote abolished; six month
residence requirement abolished.
 1902 : vote given to women
Constitution Act 1902 (NSW)
 an act of the NSW Parliament, not the
Imperial parliament.
 Current Constitution
 Makes clear that federation was not
intended to diminish the powers of the
States.
 S.5 provides:
 “The Legislature shall, subject to the
provisions of the Commonwealth of Australia
Constitution Act, have power to make laws for
the peace, welfare and good government of
New South Wales in all cases whatsoever…”
Balfour Declaration
 Changing relationship between England
and colonies
 “autonomous communities within the
British Empire, equal in status, in no way
subordinate to one another in any aspect
of their domestic or external affairs, though
united by a common allegiance to the
Crown, and freely associated as members
of the British Commonwealth of Nations.”
Statute of Westminster
 Gave formal expression to the Balfour
Declaration,
 s4: provided that no British Act, passed after the
commencement of the Statute, would apply to
any Dominion, unless the Dominion had
expressly requested and consented to it
 s2: repealed the repugnancy doctrine contained
in the Colonial Laws Validity Act,
 s3 conferred on the Dominions the power to
make laws of extra-territorial application.
BUT….
 s9: protected the constitutional position of
NSW and the other states
 s10(1): provided that the operative
provisions of the legislation would not
come into effect in a particular Dominion
until that dominion had passed legislation
to that effect.
 Australia – 1942 – Statute of Westminster
Adoption Act – backdated its operation to
3 September, 1939
The Australia Acts 1986
s1:“No Act of the Parliament of the United
Kingdom passed after the commencement
of this Act shall extend, or be deemed to
extend, to the Commonwealth, to a State
or Territory as part of the law of the
Commonwealth, of the State or of the
Territory.”
Australia Acts
 s2: State legislatures can make laws with extra
territorial operation
 s3: The Colonial Laws Validity Act 1865 shall not
apply to laws of the States made after the
commencement of the Australia Acts.
 s6: State constitutions could only be amended in
accordance with the manner and form laid down
for amendment by the existing law
 s11: provided for the complete abolition of
appeals to the Privy Council from any Australian
court otherwise than as provided for in the
Federal Constitution.
Imperial Acts Application Act
1969 (NSW)
 Australian Courts Act 1828 (Imp)– s24
 Governor by proclamation or courts could
resolve questions of which UK law was
applicable in the colonies
 For how long did received UK law continue in
force?
 Law Reform Commission Report 1967
Imperial Acts Application Act
1. Schedule One – 31 Imperial Statutes to
be retained – but restated as part of NSW
law
2. Schedule Two – 25 Imperial Statutes so
valuable – preserved in existing form – eg
Magna Carta
3. All other Imperial Statutes – from Statute
of Merton, 20 Henry III AD 1235-36 – are
repealed (e.g. Witchcraft Act 1735(9 Geo.
II c. 5))
Mabo v Queensland (No.2) (1992)
175 CLR 1.
Brennan J [23]:
“Oversimplified, the chief question in this
case is whether [the annexation of the
Murray Islands by Letters Patent from the
British government and legislation
passed by the Qld parliament on 1 August
1879] …had the effect …of vesting in the
Crown absolute ownership of, legal
possession of and exclusive power to
confer title to, all land in the Murray
Islands.”
Defendant’s argument:
“when the territory of a settled colony
became part of the Crown’s dominions, the
law of England so far as applicable to
colonial conditions became the law of the
colony and, by that law, the Crown acquired
the absolute beneficial ownership of all land
in the territory so that the colony became the
Crown’s demesne and no right or interest in
any land in the territory could thereafter be
possessed by any other person unless
granted by the Crown.” per Brennan at [25]
Consequences of this argument:
“the interests of indigenous inhabitants in
colonial land were extinguished so soon as
British subjects settled in a colony, though
the indigenous inhabitants had neither ceded
their lands to the Crown nor suffered them to
be taken as the spoils of conquest.
According to the cases, the common law
itself took from indigenous inhabitants any
right to occupy their traditional land…”Brennan
J at [28]
“Judged by any civilised standard,
such a law is unjust and its claim to be
part of the common law to be applied in
contemporary Australia must be
questioned.”
Approach of Court:
“In discharging its duty to declare the
common law of Australia, this Court is
not free to adopt rules that accord with
contemporary notions of justice and
human rights if their adoption would
fracture the skeleton of principle which
gives the body of our law its shape and
internal consistency.” (at [29])
High Court and precedent
“…this Court is free to depart from English
precedent which was earlier followed as
stating the common law of this country…it
cannot do so where the departure would
fracture what I have called the skeleton of
principle….The peace and order of Australian
society is built on the legal system. It can be
modified to bring it into conformity with
contemporary notions of justice and human
rights, but it cannot be destroyed.” (at [29])
Accommodation of contemporary
values by common law
“If a postulated rule of the common law
expressed in earlier cases seriously offends
those contemporary values, [of justice and
human rights] the question arises whether
the rule should be maintained and applied.
Whenever such a question arises, it is
necessary to assess whether the particular
rule is an essential doctrine of our legal
system, and whether, if the rule were to be
overturned, the disturbance to be
apprehended would be disproportionate to
the benefit flowing from the overturning.” (at
[29])
‘Terra nullius’ a fiction
“As the basis of the theory is false in
fact and unacceptable in our society,
there is a choice of legal principle to be
made in the present case. This Court
can either apply the existing
authorities…or the Court can overrule
the existing authorities, discarding the
distinction between inhabited colonies
that were terra nullius and those which
were not.” (at [39])
BUT…
“However, recognition by our
common law of the rights and
interests in land of the indigenous
inhabitants of a settled colony
would be precluded if the
recognition were to fracture a
skeletal principle of our legal
system.” (at [43])
“It was only by fastening on the notion that a
settled colony was terra nullius that it was
possible to predicate of the Crown the
acquisition of ownership of land in a colony
already occupied by indigenous
inhabitants….If that hypothesis be rejected,
the notion that sovereignty carried
ownership in its wake must be rejected too.
Though the rejection of the notion of terra
nullius clears away the fictional impediment
to the rejection of indigenous rights and
interests in colonial land, it would be
impossible for the common law to recognize
such rights and interests if the basic
doctrines of the common law are
inconsistent with their recognition. ” (at[46])
WHY?.....
“A basic doctrine of the land law is the doctrine of
tenure…and it is a doctrine which could not be
overturned without fracturing the skeleton which
gives our land law its shape and consistency. It is
derived from feudal origins. The feudal basis of
the proposition of absolute Crown ownership”. (at
[47])
“It is far too late in the day to contemplate an…other
system of land ownership. Land in Australia which
has been granted by the Crown is held on a tenure
of some kind and the titles acquired under the
accepted land law cannot be disturbed.” (at[49])
Radical title/absolute ownership
“The Crown was treated as having the radical title to all the
land in the territory over which the Crown acquired
sovereignty. The radical title is a postulate of the doctrine of
tenure and a concomitant of sovereignty. As a sovereign
enjoys supreme legal authority in and over a territory, the
sovereign has power to prescribe what parcels of land and
what interests in those parcels should be enjoyed by others
and what parcels of land should be kept as the sovereign’s
beneficial demesne. By attributing to the Crown a radical title
to all land within a territory over which the Crown has
assumed sovereignty, the common law enabled the Crown,
in exercise of its sovereign power, to grant an interest in
land to be held of the Crown or to acquire land for the
Crown’s demesne. The notion of radical title enabled the
Crown to become Paramount Lord of all who hold a tenure
granted by the Crown and to become absolute beneficial
owner of unalienated land required for the Crown’s
purposes. But it is not a corollary of the Crown’s acquisition
of a radical title to land in an occupied territory that the
Crown acquired absolute beneficial ownership of that land to
the exclusion of the indigenous inhabitants.” [50/51]
Recognition of native title
 “Recognition of the radical title of the Crown
is quite consistent with recognition of native
title to land.” (at[52])
 “Where a proprietary title capable of
recognition by the common law is found to
have been possessed by a community in
occupation of a territory, there is no reason
why that title should not be recognised as a
burden on the Crown’s radical title when the
Crown acquires sovereignty over that
territory”. (at [53])
Extinction of native title
“The dispossession of the indigenous inhabitants
of Australia was not worked by a transfer of
beneficial ownership when sovereignty was
acquired by the Crown, but the recurrent exercise
of a paramount power to exclude the indigenous
inhabitants from their traditional lands as colonial
settlement expanded and land was granted to the
colonists. Dispossession is attributable not to a
failure of native title to survive the acquisition of
sovereignty, but to its subsequent extinction by a
paramount power.” (at [63])
Scylla and Charybdis of
extinction of native title
 Maintenance of continuous (and continuing)
native title
 “Once traditional native title expires, the
Crown’s radical title expands to a full beneficial
title” (at [66])
 Which has not been extinguished by a Crown
grant
 “Sovereignty carries the power to create and to
extinguish private rights and interests in land
within the Sovereign’s territory” (at [73])