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Chapter 1: The Legal System: legal foundations, the Constitution and
statute law
Page numbers refer to Australian Business Law 6 th edition.
Page 10 Was terra nullius central to the Mabo decision?
Page 10 Important cases and events relating to „native title‟ claims during the
19th century
Page 10 Additional important cases and events relating to „native title‟ claims
during the 20th century prior to the Mabo decision
Page 12 The Ben Ward Case: Major precedent on native title
Page 17 The Separation of Powers
Page 29 Recent case demonstrating the literal rule
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Page 10
Was terra nullius central to the Mabo decision?
Apparently the first usage of the term terra nullius in an Australian or British Court
did not occur until 1979 in Coe v the Commonwealth (1979) 53 ALJR 403, which is
outlined below. The three legally accepted grounds for the acquisition of a new
territory were well established in British law before 1788. The distinguished jurist and
writer Blackstone summed them up as follows: 'You may acquire it [territory] by
force, acquire it as a gift or take land that has no owner'. See Commentaries of the
Law of England (1765).
Some modern critics, principally s the historian Michael Connor, have argued
that Blackstone's third category is significantly different from the terra nullius concept
which is an 'invention' of the late 20th century. See The Invention of Terra Nullius:
Historical and Legal Fictions on the Foundation of Australia, Michael Connor,
Mcleay Press, 2005. Former Chief Justice Mason, one of the six majority judges in
the Mabo Case, has commented recently that terra nullius played only a minor role in
the decision. Instead, common law principles rather than international law formed the
foundation stones. He has stated that terra nullius 'had been around for a very long
time before the expression gained currency… In a sense what Britain thought about
its international law grounds for establishing sovereignty over Australia [in 1788]… is
beside the point. It wasn't a critical issue in Mabo, because the court accepted that
Britain had established sovereignty over Australia and it wasn't open to the courts to
challenge.'
The critical issue in the case was – 'did the British crown on the establishment of
sovereignty… acquire an absolute and universal right to land so that no other person
could hold any right or interest in those lands except by crown grant'.
Justice Mason finished the interview by explaining that he saw the opposition to
the Mabo decision as coming from „…People who are against the just society, who
want to repudiate any notion the state has a responsibility to assist backward people or
handicapped people; the recognition in Mabo that these people have rights is
anathema to them‟. Judge breaks silence on Mabo, Deborah Hope, The Australian, 25
February 2006.
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Page 10
Important cases and events relating to 'native title' claims during the 19th
century
R V Ballard (1829) Sydney Gazette, 23 April
Ballard, an Aboriginal, was accused of killing Borrindire, another Aboriginal, near
the Domain in Sydney. Two judges of the New South Wales Supreme Court ruled
that the court lacked the jurisdiction to hear cases involving disputes between
native people. Chief Justice Forbes stated: “I know of no principle of municipal or
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national law, which shall subject the inhabitants of a newly found land to the
operation of the laws of the finders, in matters of dispute, injury or aggression
between themselves”.
Justice Dowling went further: "The Englishman has no right wantonly to
deprive the savage of any property he possesses or assumes a dominion over…"
Rejection of the Batman Treaty. In 1835 Batman entered into two land 'treaties'
with aboriginal people in the Melbourne and Geelong area. Governor Bourke and
subsequently the British Colonial Office annulled the treaties on the grounds that
the Crown was the only legal owner of all lands in the new colony.
R v Murrell (1836)
Seven years later, the two judges in the previous case, reversed their position.
Murrel, an Aboriginal, was accused of killing another Aboriginal. His lawyer
argued that the court lacked jurisdiction because the native people had their own
recognisable laws. Justice Burton strongly rejected this view features of this ruling
were:
The native people were too primitive to have laws and sovereignty of their
own. "Aboriginal practices are only such as are consistent with the state of
the grossest darkness and irrational superstition and although in some
cases being a show of justice - are founded entirely upon principles
particularly in their mode of vindication for personal wrongs upon the
wildest most indiscriminatory notions of revenge."
British laws were the only ones that applied in the colony. Therefore,
Aborigines were obliged to follow them and could also enjoy the
protection of them.
Chief Justice Forbes and Justice Dowling reversed their views in R V Ballard
by strongly concurring with Burton. They may have been won over by white
settler criticism to their previous ruling and the increasing opposition of British
colonial office to recognizing that the native people had any rights to land
ownership as evidenced by its reaction to the Batman Treaty.
Comment: Even Justice Burton conceded that the native people had some
rights. "The aboriginal natives of New Holland are entitled to be recognized by
civilised nations as a free and independent people, and are entitled to the
possession of those rights which are such are valuable to them." However, this
comment was not included in the official law report of the case.
A Select Committee on Aborigines (1837) reported to the House of Commons that
aborigines were 'barbarous…[and]…so entirely destitute … of the rudest forms of
civil polity, that their claims, whether as sovereigns or proprietors of the soil, have
been utterly disregarded'.
Attorney General (NSW) v Brown (1847) 1 312. The New South Wales Supreme
Court upheld the policy of the British Colonial Office. It found that the Crown had
acquired full legal title to the colony's territories because they had essentially been
uninhabited at the time of the first settlement.
Cooper v Stuart (1889) 14 App. Cas. 286 at 291. The Privy Council ruled that in
1788 the Colony of New South Wales had 'consisted of a tract of territory
practically unoccupied, without settled inhabitants or settled law'. The court saw
this position as self evident; reaching it without the benefit of any evidence to
support its view.
A committee of the Institute of International Law (1888) in Lausanne Switzerland
used the term territorium nullius as one of the ways in which possession could be
asserted over a territory by a 19th century colonizing power. The term was
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eventually defined as "Any region not effectively under the sovereignty or
protection of a state…whether inhabited or not".
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Page 10
Additional important cases and events relating to 'native title' claims during the
20th century prior to the Mabo decision
In 1965 Professor DP O'Connell, Professor of International Law at University of
Adelaide, commented in his textbook International Law, that 'Since the Australian
Aborigines were held incapable of intelligent transactions with respect to land,
Australian was treated as terra nullius'.
In 1975 the International Court of Justice (ICJ) produced an 'advisory opinion' on
whether the Western Sahara region had been terra nullius when it was colonised
by Spain in 1884 (only five years after the annexure of the island of Mer). The
opinion concluded that the area was not terra nullius as it had been (and was)
inhabited by people organised in tribes.
Coe v Commonwealth (1978) 18 ALR 592. Aboriginal litigants launched a legal
action against the Commonwealth that was partly based on the Western Sahara
advisory opinion. Justice Mason of the High Court dismissed the claim,
explaining 'Whatever that decision may say it has no relevance to the domestic or
municipal law of Australia based on the Constitution which this court is bound to
apply'.
Coe v Commonwealth (1979) 53 ALJR 403. The litigants referred to above
appealed Mason's decision to the full bench of the High Court. Although the case
failed Justice Murphy strongly relied on the terra nullius argument contained in
the Western Sahara advisory opinion. The High Court rejected the claim. This
appears to have been the first time terra nullius was referred to in an Australian
court or British Court. 408.
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. Justice Blackburn rejected an
aboriginal claim to traditional or communal land. Although he felt bound to
follow the Privy Council decision in Cooper v Stuart he was impressed by the
abundance of evidence that the indigenous people had operated under a
government of laws: “The evidence shows a subtle and elaborate system highly
adapted to the country in which the people led their lives, which provided a stable
order of society and was remarkably free from the vagaries of personal whim or
influence. If ever a system could be called 'a government of laws, and not of men
it is that shown in the evidence before me'.”
Cooper v Stuart (1889) 14 App. Cas. 286 at 291. The Privy Council ruled that in
1788 the Colony of New South Wales 'consisted of a tract of territory practically
unoccupied, without settled inhabitants or settled law'. The Privy Council saw
this position as self evident. It was reached without the benefit of any evidence to
support that view.
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Henry Reynolds, in his book The Other Side of the Frontier, argues that the
Australian legal system was established on the doctrine of terra nullius. Reynolds'
book was cited as an important historical reference by some members of the
majority in the Mabo case.
Source: Recognition of Indigenous Legal Autonomy in Nineteenth Century New South
Wales, Bruce Kercher.
ACCC homepage
The Mabo Decision RH Bartlett, Australian Property Law Journal, Vol 1, No 3,
1993.
The Invention of Terra Nullius: Historical and Legal Fictions on the Foundation
of Australia, Michael Connor, Mcleay Press, 2005.
Judge breaks silence on Mabo by Deborah Hope, The Australian, 25 February
2006.
Mabo and beyond, Native Title Roundup, May 1994,Allens Arthur Robinson
http://www.allens.com.au/
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Page 12
The Ben Ward Case: Major Precedent on native title
The following material provides more detail on the Ben Ward cases.
The main legal ruling in the Wik Case (1996) was that a native title claim in
mainland Australia could be heard. As of 2005, the main High Court and Federal
Court rulings on the extent of native title arose from a series of cases known
collectively as the Ben Ward Case.
CASE EXAMPLE
THE BEN WARD CASE [2002]
Native titleholders lose their right to control land covered by State leases. They
cannot stop mining or claim minerals or petroleum. Other rights may survive.
In 1994 Ben Ward and the Miriuwung-Gajerrong people claimed native title over
8000 square kilometres in the East Kimberleys that includes the Argyle diamon d
mine, part of the Ord River Irrigation Scheme and a national park in the Northern
Territory. Most of the land was subject to pastoral and mining leases or vested for
public use, such as roads. The claimants had not lived in some parts for significant
periods.
Justice Lee of the Federal Court found that: (a) the claimants proved native title
through their strong ancestral connection with the land; (b) the pastoral and mining
leases had 'suspended' but not extinguished native title; (c) native titleholders had the
right to share in mineral and petroleum resources.
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The Full Federal Court agreed that native title had been established. However, a
majority (2:1) reversed Justice Lee's decision. They found native title was wholly
extinguished by mining leases and pastoral leases (where the pastoralists had fenced
or improved the land).
A majority of the High Court (5:2) held that: native title did not apply to leases
for the Argyle diamond mind or the Ord River project. Other areas in dispute had to
be referred back to the Federal Court. Their key findings were:
• Native title creates a 'bundle of rights'. State leases extinguish the right to
control access but leave other rights intact. Titleholders cannot stop mining but they
may retain other interests, such as hunting rights.
• The Wik decision remains. The rights of pastoralists and miners prevail over
those of native titleholders.
• Native title rights do not exist over sub-surface minerals and petroleum:
Western Australia v Ward; Attorney-General (NT) v Ward; Ningarmara v Northern
Territory [2002] HCA 28.
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Page 17
The Separation of powers
LAW IN ACTION
SIR JOH AND THE SEPARATION OF POWERS
This is an edited version of an examination of Sir Joh Bjelke-Petersen, the then
Premier of Queensland, by Michael Ford, barrister, during the Royal Commission into
the Queensland Police Force in 1988.
Ford: What do you understand by the doctrine of the separation of powers under
the Westminster system?
Sir Joh: The stock?
[Ford repeated his question.]
Sir Joh: I don‟t know which doctrine you refer to.
Ford: There is only one doctrine of the separation of powers.
Sir Joh: Yes, that‟s right and I believe in it very strongly and I believe in the rights
of the people under the law and their right and freedoms.
Ford: I am asking about your understanding of the doctrine of the separation of
powers.
Sir Joh: Sure. The separation of the doctrine is where the government stands and
where the community stands and where the instruments of government
stand.
Ford: No.
Sir Joh: Well, you tell me and I‟ll tell you whether you‟re right or not.
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[Ford explained that the doctrine was the principle that the police, the government of
the day and the judiciary should, as far as possible, operate independently
of each other and without interference.]
Sir Joh responded: Sure. That‟s correct.
Source: The Australian, 7 December 1988, Native Title Rights.
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Page 29
Recent case demonstrating the literal rule
The following case demonstrates the ongoing influence of the literal rule. It could also
be classified as an example of the golden rule.
CASE EXAMPLE
THE STUFFED CHICKEN CASE [2003]
In every jurisdiction except Western Australia retailers of meat are required by statute
to offer their products for sale on the basis of their weight. A Sydney butcher who had
offered stuffed and marinated raw chicken fillets by price was charged with breaching
s 25(4) of the NSW Trade Measurement Act 1989, which defines meat as „… so much
of a slaughtered animal as is ordinarily sold for human consumption (whether or not
after being subjected to a process of any kind)‟.
The prosecutor claimed that combining raw chicken and other food was a
process. The butcher argued that this interpretation was false as it would prevent
products such as corned beef sandwiches or steak and kidney pies being sold by price.
Justice Young of the Supreme Court of NSW held that: there was no dictionary
definition or precedent to support the view that a „process‟ involved combining
products or refining them to produce new ones. Thereofore marinating and stuffing
was more likely to be a form of manufacture, which did not breach s 25(4).
Superintendent of Trade Measurement v Salmon [2003] NSWSC 1113.
Comments: This case was the first superior court precedent on this issue and is
likely to be strongly persuasive in other jurisdictions unless the current legislation is
specifically amended to prevent 'ready to cook' meat being sold by price.
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