DOCSLIB.ORG

Ill 1111111111 Ill 3 4067 02207142 6 Y- J� 599 ·118 87� 199�

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Ill 1111111111 Ill 3 4067 02207142 6 Y- J� 599 ·118 87� 199� JC599. A8B74 1998 Ill 1111111111 Ill 3 4067 02207142 6 y- J� 599 ·118 87� 199� S6)J 1111111111111 111 3 4067 02207 142 6 Frank Brennan is Adjunct Fellow of the Research School of Sciences at the Australian National University; an Honorary Visiting Fellow in the Law Faculty of the University of NSW; and Director ofUniya, the Jesuit Social Justice Centre in Sydney, NSW. This book draws fromhis experience in Washington, D.C., where as a Fulbright Scholar in 1995-96 he studied at the Center for Australian and New Zealand Studies at Georgetown University, and observed the Su­ preme Court and theUnited Nations in session. His first book, Too Much Order with Too Little Law was a study of civil liberties in Queensland. He has written extensively on Aboriginal self-determination, land rights and social justice in arti­ cles published worldwide, He is the author of several books in the area including: One Land, One Nation; Sharing the Country; Land Rights Queensland Style; and is co-author of" Finding Common Ground and Reconciling Our Differences. In 19lt9.Frank Brennan won the United Nations Association of r. • • ' • • • -: Australia Media Peace Award for articles written in support of Aboriginal rights; and in 1994 he was named by the National Australia Day Council as an Achiever of the Year for his contribution to the Aboriginal Community. He was made an Officer of the Order of A4s�alia (AO) in 1995 for services to Aboriginal Australians; and in 1997 was listed by the National Trust as a Living National Treasl:lre. Frank Brennan joined the Jesuits in 1975, was admitted to the Queensland Bar in 1977 and ordained a Catholic priest in 1985. He has had a longstanding interest in the contributionChristian churches can make throughout the world to the formulation of public policy and the recognition of the human rights of marginalised groups, especially indigenous peoples and refugees. Otherbooks by Frank Brennan Too Much Order with Too Little Law LandRights Queensland Style Sharing the Country One Land, One Nation Co-author of: Finding Common Ground: An Assessment of the Bases ofAboriginal Land Rights Reconciling Our Differences A Bill of Rights for Australia? A provocative and timely proposal to balance the public good with individual freedom FRANK BRENNAN SJ University of Queensland Press ss&H L- 5544 • 0 1·=·9 J (Monogr--aphs 1998 RlES QUEENSLAND LlBRA r=DC.ItlTV I OF 1HE.UNl V.-nv ..,� ANDL'ffi Ri\� • � OF··�·.t�� r.e.F.NSL �� · 'tio�·.-.-..n "' • _ --r · ·- ·L\ , ·· �·r- ( " . .. � 1. · Tf Th"'� .. • • 'v - '\- < \ •. • r"' ....ll"lYf"t D T,V .:. .. ·J - • • v r· ,. : �-.•; • .n L \ l U l''' J"\· ('"• � . , '·· � J ('...,J4 ....., C J• • �-. 0 'v v \ Fii-Stp ublishe4 I �9!ttyll.t riiversity of Queensland Press Box 42, St Lucia, Queensland4067 Australia @ FrankBrennan 1998 This book is copyright. Apartfrom any fair dealing for the purposes of private study, research, criticism or review, as permitted under the Copyright Act, no partmay be reproduced by any process without written permission. Enquiries should be made to the publisher. Typeset by University of Queensland Press Printed inAustralia by McPherson's Printing Group Distributed in the USA and Canadaby International Specialized Book Services, Inc., 5804 N.E. Hassalo Street, Portland, Oregon 97213-3640 Cataloguing in PublicationData National Libraryof Australia Brennan, Frank, 1954- Legislating liberty. Includes index. 1. Civil rights - Australia. 2. Human rights - Australia. I. Title. 342.94085 ISBN 0 7022 3011 1 To the late Justice William J. Brennan Jr (1906-1997), (US Supreme Court Justice 1956-1990) � who inspired me in his judicial espousal of human rights without altogether converting me to the constitutional entrenchment of such rights Contents ... Acknowledgments Vlll . Foreword by Tony Fitzgerald AC QC lX Introduction 1 1. Public discourse about right and wrong, rights and freedoms /3 2. Australian proposals for a bill of rights 2/ 3. The United States Supreme Court: determining what is right for the United States 47 4. The quandary: Australia, the United States and gay rights - different process, surprising outcome 56 5. The past: Australia, the United States and abortion - different process, similar outcome 73 6. The present: Australia, the United States and euthanasia - similar debate, different forum 95 7. The future: free speech - a fundamental right on shifting sands 124 8. Indigenous rights: moving beyond equality as sameness 146 9. Reconstituting Australia without a bill of rights 169 Endnotes 189 Index 195 Acknowledgments As a Fulbright Scholar in 1995-96 I was privileged to be the first Visiting Research Fellow at the Center for Australian and New Zealand Studies, Georgetown University, Washington DC. I am grateful to the late Justice William J. Brennan and his staff, the Georgetown Law Center, the Jesuit communities at K Street and Georgetown, and the staff at the Australian embassy in Washington and at the Australian mission to the United Nations for their hospitable opening of the doors to the United States and to the world of rights beyond our Australian horizons. Here at home I am grateful to the Research School of Social Sciences at the Australian National University and the Australian Institute of Jesuit Studies for providing me with the opportunity to write. I am grateful to the staff at Uniya, the Jesuit Social Justice Centre, for their assistance and support, especially MargaretPress, Lisa Macdonald and Rachel Hutka. I am indebted to Tony Fitzgerald for his foreword evoking his passionate and judicious concern for what is right for Australia. Foreword Legislating Liberty is an important book by an outstanding Australian. Father Frank Brennan, SJ, AO, D.Univ, is a Catholic priest, lawyer, advocate for Australian Aborigines and Torres Strait Islanders, and expo­ nent of reconciliation between those peoples and the wider Australian community. His book is a timely reminder of important and difficult issues that have been, or are being, resolved in many countries, but have not been widely considered and discussed in Australia. Regrettably, the 1998 Con­ stitutional Convention was confined to issues related to Australia's pro­ gression to a republic (and presumably so too will be the 1999 referendum). By international standards, Australian constitutionalism is severely stunted and its human rights jurisprudence is underdeveloped. Individual and minority rights based on inherent human worth and dignity are widely recognised in international instruments and are protected by the constitu­ tional rights. The rights of Australians are essentially those which they are permitted to retain or are given by their parliaments, which are virtually supreme, with almost total legislative power. That legislative power, which was divided between the Commonwealth and the States when Australia became a single nation at federation, is subject to only a small number of express and implied constitutional restrictions. There is little political enthusiasm for the general adoption of international human rights prin­ ciples into Australian law. Although Australia has made numerous inter­ national commitments to human rights, many have not been implemented by legislation. On the other hand, a Bill to permit Australian officials to ignore international obligations entered by the Australian government which have not been made part of Australia's domestic law has been passed by the House of Representatives and is before the Senate. In countries with constitutionally entrenched individual and minority rights, legislative and executive powers are subject to broad, judicially enforced constraints, and a dynamic judiciary is routinely involved in decisions concerning the nature and extent of government power. Austra­ lian courts exercise a narrower, more conservative role. The High Court's cautious identification of implied constitutional restrictions on legislative power in the text and structure of the Commonwealth Constitution, more or less contemporaneously with its use of international standards in recognising the ·native title' of indigenous Australians and extending the obligations of administrative decision-makers, provoked political hostility X Foreword towards the judiciary which is unprecedented in recent Australian history. Debate on the appropriate power spheres of legislature, executive govern­ ment and judiciary is sure to continue, and is almost certain to increasingly include argument on whether there should be an Australian bill of rights, and if so, what its status and contents should be. A number of factors are likely to complicate that debate. Much of the discussion is likely to involve the rhetorical use of ambiguous concepts. For example, democracy is often erroneously spoken of as if it requires or permits majority decisions to be given effect on all issues in all circumstances, and as though government decisions neces­ sarily reflect majority will. A majority of seats in the lower house (in Queensland the only house) of a parliament does not necessarily depend on the support of a majority of voters. And, even if a government is elected by a majority of voters, usually the only choice which voters had was between the sets of policies of rival parties. Economic issues commonly dominate, often combined with accumulated dissatisfaction with the fail­ ings of the government that was in power prior to the election. While executive governments are formally responsible to parliaments, factional­ ism and tight party discipline enable oligarchies to control the political process. In such circumstances, electoral success is a flimsy foundation for a claim to majority support for a law which derogates from individual or minority rights. In any event, a government which perceives political advantage in unjust laws plainly cannot be deterred by an improbable prospect of electoral defeat. Aphorisms which are favoured in the often confused discussion of democracy, human rights and the functions of the legislative, executive and judicial branches of government includethe rule of law, equality under the law and justice according to law. All are importantprinciples, although equality, for example, is an extremely complex and elusive concept.
Load more

Recommended publications
  • From Mabo to Yorta Yorta: Native Title Law in Australia
    Washington University Journal of Law & Policy Volume 19 Access to Justice: The Social Responsibility of Lawyers | Contemporary and Comparative Perspectives on the Rights of Indigenous Peoples January 2005 From Mabo to Yorta Yorta: Native Title Law in Australia Lisa Strelein Australian Institute of Aboriginal and Torres Strait Islander Studies Follow this and additional works at: https://openscholarship.wustl.edu/law_journal_law_policy Part of the Indian and Aboriginal Law Commons Recommended Citation Lisa Strelein, From Mabo to Yorta Yorta: Native Title Law in Australia, 19 WASH. U. J. L. & POL’Y 225 (2005), https://openscholarship.wustl.edu/law_journal_law_policy/vol19/iss1/14 This Rights of Indigenous Peoples - Essay is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. From Mabo to Yorta Yorta: Native Title Law in Australia Dr. Lisa Strelein* INTRODUCTION In more than a decade since Mabo v. Queensland II’s1 recognition of Indigenous peoples’ rights to their traditional lands, the jurisprudence of native title has undergone significant development. The High Court of Australia decisions in Ward2 and Yorta Yorta3 in 2002 sought to clarify the nature of native title and its place within Australian property law, and within the legal system more generally. Since these decisions, lower courts have had time to apply them to native title issues across the country. This Article briefly examines the history of the doctrine of discovery in Australia as a background to the delayed recognition of Indigenous rights in lands and resources.
    [Show full text]
  • SCOTUS and the Origins of Australia's Scabrous Constitutional Signature Benjamen Franklen Guss
    Br. J. Am. Leg. Studies 10(1) (2021), DOI: 10.2478/bjals-2021-0001 The Engineers Case Centenary: SCOTUS and the Origins of Australia’s Scabrous Constitutional Signature Benjamen Franklen Gussen* Sahar Araghi** ABSTRACT Since the Engineers Case decision in 1920, the role of the United States Constitution in interpreting the Australian Constitution has been diminished, leading to inefficiencies in High Court of Australia (HCA) dealing with constitutional issues. To explain this thesis, the article looks at the 7,657 cases decided by the HCA, from the first case in 1903, to the 31st of August 2020, the centenary of the Engineers Case. The analysis identifies outliers that have much higher complexity (in terms of word- length) than the other judgments. This complexity has one common denominator: comparative analysis with the United States Constitution. The article explains why this common denominator has resulted in such complexity, and concludes with possible research extensions on the roles of the Australian judiciary in embracing SCOTUS jurisprudence when interpreting the Australian Constitution. KEYWORDS High Court of Australia (HCA), Supreme Court of the United States (SCOTUS), The Engineers Case, Constitutional Signature, Complexity CONTENTS I. Introduction ....................................................................................... 29 II. Overview of High Court Cases 1903-2020 ...................................... 31 III. First Tier Outliers .......................................................................... 33 1
    [Show full text]
  • A Regional Approach to Managing Aboriginal Land Title on Cape York1
    Chapter Thirteen A Regional Approach to Managing Aboriginal Land Title on Cape York1 Paul Memmott, Peter Blackwood and Scott McDougall In 1992 the High Court of Australia for the first time gave legal recognition to the common law native title land rights of the continent's indigenous people.2 The following year the Commonwealth Government of Australia passed the Native Title Act 1993 (NTA), which introduced a statutory scheme for the recognition of native title in those areas where Aboriginal groups have been able to maintain a traditional connection to land and where the actions of governments have not otherwise extinguished their prior title. Native title as it is codified in the NTA differs from Western forms of title in three significant ways. Firstly, it is premised on the group or communal ownership of land, rather than on private property rights; secondly, it is a recognition and registration of rights and interests in relation to areas of land which pre-date British sovereignty, rather than a formal grant of title by government (QDNRM 2005: 3); thirdly, it may coexist with forms of granted statutory title, such as pastoral leases, over the same tracts of land. While native title is a formal recognition of indigenous landownership and sets up a process of registration for such interests, it remains a codification within the Western legal framework, and as such is distinct from, though related to, Aboriginal systems of land tenure as perceived by Aboriginal groups themselves. This distinction is exemplified in the sentiment often expressed by Aboriginal people that their connection to country, and the rules and responsibilities attaching to this connection, continue to apply, irrespective of the legal title of the land under `whitefellow law'.
    [Show full text]
  • Seeing Visions and Dreaming Dreams Judicial Conference of Australia
    Seeing Visions and Dreaming Dreams Judicial Conference of Australia Colloquium Chief Justice Robert French AC 7 October 2016, Canberra Thank you for inviting me to deliver the opening address at this Colloquium. It is the first and last time I will do so as Chief Justice. The soft pink tones of the constitutional sunset are deepening and the dusk of impending judicial irrelevance is advancing upon me. In a few weeks' time, on 25 November, it will have been thirty years to the day since I was commissioned as a Judge of the Federal Court of Australia. The great Australian legal figures who sat on the Bench at my official welcome on 10 December 1986 have all gone from our midst — Sir Ronald Wilson, John Toohey, Sir Nigel Bowen and Sir Francis Burt. Two of my articled clerks from the 1970s are now on the Supreme Court of Western Australia. One of them has recently been appointed President of the Court of Appeal. They say you know you are getting old when policemen start looking young — a fortiori when the President of a Court of Appeal looks to you as though he has just emerged from Law School. The same trick of perspective leads me to see the Judicial Conference of Australia ('JCA') as a relatively recent innovation. Six years into my judicial career, in 1992, I attended a Supreme and Federal Courts Judges' Conference at which Justices Richard McGarvie and Ian Sheppard were talking about the establishment of a body to represent the common interests and concerns of judges, to defend the judiciary as an institution and, where appropriate, to defend individual judges who were the target of unfair and unwarranted criticisms.
    [Show full text]
  • Of the Barrister Class by the Hon Michael Mchugh AC, Introduction
    THE RISE (AND FALL?) OF THE BARRISTER CLASS BY THE HON MICHAEL McHUGH AC INTRODUCTION* The Hon Justice Michael Kirby AC CMG As barristers go, Michael McHugh's career was unusual. There was little about it that was privileged - except his intellect and drive. Born in Newcastle, he moved with his family to North Queensland at the age of seven because his father was seeking wartime work in the mines. On his return to Newcastle, at the age of thirteen, he attended the Marist Brothers' school. There, and from his father Jim, he learned two Irish Catholic lessons that were to remain with him throughout his life in the law. First, that there are rules to be obeyed. And secondly, that civil liberties matter. To the disappointment of Jim McHugh, the young Michael left school at age fifteen. He took odd jobs, including that of the proverbial telegram boy. But his questioning intellect soon took him back to the * Notes on which were based remarks in the Common Room of the New South Wales Bar Association on 20 August 2007 on the delivery by the Hon Michael McHugh AC of a Lecture in the series on Rhetoric. 2. Hamilton High School at night. He gained his matriculation. In 1958 he commenced studies for the Barristers' Admission Board, working during the day as a clerk for the Broken Hill Proprietary Co. Michael McHugh was admitted to the New South Wales Bar in 1961. He read with two fine advocates who once frequented this common room: John Wiliams QC, himself from Newcastle, and John Kearney QC.
    [Show full text]
  • Surviving Common Law: Silence and the Violence Internal to the Legal Sign
    SURVIVING COMMON LAW: SILENCE AND THE VIOLENCE INTERNAL TO THE LEGAL SIGN Peter D. Rush* It is a not uncommon situation nowadays: an indigenous person comes before the common law courts in Australia and asks for a response to the demands of injustice suffered. She is a member of the stolen generations and asks for relief.1 Another is accused of a crime and questions the jurisdiction of the court to hear and determine his claim. He appears before the High Court of Australia as “Denis Bruce Walker, Bejam, Kunminarra, Jarlow, Nanaka Kabool, of Moongalba, via Goompie, Minjerribah, Quandamooka. I am the son of Oodgeroo of the tribe Noonuccal, custodian of the land Minjerribah.” He wants to be adjudged not only by the judges of the common law but also by the council of the Noonuccal. “I suspect you and your friends are trifling with me,” interjects the judge.2 Another tells the court that current as well as past and future governments are the heirs-at-law of the dispossession and death of the Wiradjuri people. Declarations recognizing aboriginal sovereignty and granting reparation for the appropriation of land and for the genocide of the Wiradjuri are requested. The High Court judge directly rejects the idea that any * Professor of Law, Law School, University of Melbourne, Melbourne, Australia. This article was presented at the Derrida/America conference held at the Benajmin N. Cardozo School of Law, New York, February 20-21, 2005. Thank you to Nasser Hussain for extensively discussing the thesis of the article and making sure that it did not get lost in the writing, and to Tom Dumm.
    [Show full text]
  • Report of the Select Committee on Native Title Rights in Western Australia
    REPORT OF THE SELECT COMMITTEE ON NATIVE TITLE RIGHTS IN WESTERN AUSTRALIA Presented by the Hon Tom Stephens MLC (Chairman) Report SELECT COMMITTEE ON NATIVE TITLE RIGHTS IN WESTERN AUSTRALIA Date first appointed: 17 September 1997 Terms of Reference: (1) A Select Committee of five members is hereby appointed. Three members of the committee shall be appointed from among those members supporting the Government. (2) The mover be the Chairperson of the Committee. (3) The Committee be appointed to inquire into and report on — (a) the Federal Government’s proposed 10 Point Plan on native title rights and interests, and its impact and effect on land management in Western Australia; (b) the efficacy of current processes by which conflicts or disputes over access or use of land are resolved or determined; (c) alternative and improved methods by which these conflicts or disputes can be resolved, with particular reference to the relevance of the regional and local agreement model as a method for the resolution of conflict; and (d) the role that the Western Australian Government should play in resolution of conflict between parties over disputes in relation to access or use of land. (4) The Committee have the power to send for persons, papers and records and to move from place to place. (5) The Committee report to the House not later than November 27, 1997, and if the House do then stand adjourned the Committee do deliver its report to the President who shall cause the same to be printed by authority of this order. (6) Subject to the right of the Committee to hear evidence in private session where the nature of the evidence or the identity of the witness renders it desirable, the proceedings of the Committee during the hearing of evidence are open to accredited news media representatives and the public.
    [Show full text]
  • Native Title – a Constitutional Shift?*
    University of Melbourne Law School JD Lecture Series 24 March 2009 Native Title – A Constitutional Shift?* Introduction The recognition of indigenous customary title to land and waters in Australia has been a part of Australia's constitutional history, constitutional in the "C" and "c" senses. That is not surprising for it has involved fundamental questions about the basis upon which Australia was colonised in the 18th century, the relationship between the law of the colonies, the common law of England, the provisions of the written Constitution that came into existence in 1901 and the law and custom of the indigenous inhabitants. The constitutional story is also part of a story of Australia's emergence as a nation State in a global community of nations which has become in some respects a global society. In this lecture I will offer an overview of major developments leading to the recognition of indigenous land rights in Australia. Pre-history The colonisation of inhabited territories has given rise over many generations to acute social, economic and legal questions which persist to the present day. Some of those legal questions, relevant to customary title for land, were set out by Professor Kent McNeil in his book, Common Law Aboriginal Title1: * This paper reproduces elements of previous papers given by the same author including: French, "The Constitution and the People" in French, Lindell and Saunders (eds) Reflections on the Australian Constitution (Federation Press, 2003) at 68-85; French, The Role of the High Court in the Recognition
    [Show full text]
  • Native Title from the Perspective of International Standards'
    Native Title from the Perspective of International Standards' Sarah Pritchard* I. Introduction In 1992 in Mabo v Queensland (No 2)2 the High Court of Australia held that the common law of Australia recognises a form of native title to land. The Court held that pre-existing rights to land survived colonisation and continue to exist today, where they have not been extinguished by legislation or by an action of government which shows a clear and plain intention inconsistent with the continued exercise of native title rights. The Federal Government responded to Mabo (No 2) with the passage of the Native Title Act 1993 (Cth) (NTA). In 1996 the new Federal Government introduced a Bill proposing a number of amendments to the NTA. Also in 1996, in Wik Peoples v Queensland, the High Court held that the granting of a pastoral lease did not necessarily extinguish native title, and that the rights of native title holders can coexist with those of pastoral leaseholders.3 In 1997 the Government introduced a Native Title Amendment Bill incorporating amendments to the NT A proposed in 1996, as well as amendments arising specifically out of the High Court's Wik decision. After protracted rounds of debate in the Senate in November and December 1997, April 1998 and July 1998, the Native Title Amendment Bill was passed by the Senate on 8 July 1998. The Native Title Amendment Act 1998 (Cth) (NTAA) received the Royal Assent on 27 July. The commencement of its provisions on 30 September 1998 will conclude a turbulent period in Australian political life.
    [Show full text]
  • Aboriginal History Journal: Volume 21
    Aboriginal History Volume twenty-one 1997 Aboriginal History Incorporated The Committee of Management and the Editorial Board Peter Read (Chair), Rob Paton (Secretary), Peter Grimshaw (Treasurer/Public Officer), Neil Andrews, Richard Baker, Ann Curthoys, Brian Egloff, Geoff Gray, Niel Gunson, Luise Hercus, Bill Humes, Ian Keen, David Johnston, Harold Koch, Isabel McBryde, Diane Smith, Elspeth Young. Correspondents Jeremy Beckett, Valerie Chapman, Ian Clark, Eve Fesl, Fay Gale, Ronald Lampert, Campbell Macknight, Ewan Morris, John Mulvaney, Andrew Markus, Bob Reece, Henry Reynolds, Shirley Roser, Lyndall Ryan, Bruce Shaw, Tom Stannage, Robert Tonkinson, James Urry. Aboriginal History aims to present articles and information in the field of Australian ethnohistory, particularly in the post-contact history of the Aborigines and Torres Strait Islanders. Historical studies based on anthropological, archaeological, linguistic and sociological research, including comparative studies of other ethnic groups such as Pacific Islanders in Australia will be welcomed. Issues include recorded oral traditions and biographies, narratives in local languages with translations, previously unpublished manuscript accounts, resumes of current events, archival and bibliographical articles, and book reviews. Editors 1997 Rob Paton and Di Smith, Editors, Luise Hercus, Review Editor and Ian Howie Willis, Managing Editor. Aboriginal History Monograph Series Published occasionally, the monographs present longer discussions or a series of articles on single subjects of contemporary interest. Previous monograph titles are D. Barwick, M. Mace and T. Stannage (eds), Handbook of Aboriginal and Islander History; Diane Bell and Pam Ditton, Law: the old the nexo; Peter Sutton, Country: Aboriginal boundaries and land ownership in Australia; Link-Up (NSW) and Tikka Wilson, In the Best Interest of the Child? Stolen children: Aboriginal pain/white shame, Jane Simpson and Luise Hercus, History in Portraits: biographies of nineteenth century South Australian Aboriginal people.
    [Show full text]
  • The Toohey Legacy: Rights and Freedoms, Compassion and Honour
    57 THE TOOHEY LEGACY: RIGHTS AND FREEDOMS, COMPASSION AND HONOUR GREG MCINTYRE* I INTRODUCTION John Toohey is a person whom I have admired as a model of how to behave as a lawyer, since my first years in practice. A fundamental theme of John Toohey’s approach to life and the law, which shines through, is that he remained keenly aware of the fact that there are groups and individuals within our society who are vulnerable to the exercise of power and that the law has a role in ensuring that they are not disadvantaged by its exercise. A group who clearly fit within that category, and upon whom a lot of John’s work focussed, were Aboriginal and Torres Strait Islander peoples. In 1987, in a speech to the Student Law Reform Society of Western Australia Toohey said: Complex though it may be, the relation between Aborigines and the law is an important issue and one that will remain with us;1 and in Western Australia v Commonwealth (Native Title Act Case)2 he reaffirmed what was said in the Tasmanian Dam Case,3 that ‘[t]he relationship between the Aboriginal people and the lands which they occupy lies at the heart of traditional Aboriginal culture and traditional Aboriginal life’. A University of Western Australia John Toohey had a long-standing relationship with the University of Western Australia, having graduated in 1950 in Law and in 1956 in Arts and winning the F E Parsons (outstanding graduate) and HCF Keall (best fourth year student) prizes. He was a Senior Lecturer at the Law School from 1957 to 1958, and a Visiting Lecturer from 1958 to 1965.
    [Show full text]
  • The Reception of Land Law Into the Australian Colonies Post-Mabo 703
    2004 The Reception of Land Law into the Australian Colonies post-Mabo 703 THE RECEPTION OF LAND LAW INTO THE AUSTRALIAN COLONIES POST-MABO: THE CONTINUITY AND RECOGNITION DOCTRINES REVISITED AND THE EMERGENCE OF THE DOCTRINE OF CONTINUITY PRO-TEMPORE ULLA SECHER* I INTRODUCTION In rejecting the view that sovereignty conferred absolute beneficial ownership of all land on the Crown and in holding that the Crown acquired only a radical title to all land, the High Court in Mabo v Queensland (No 2)1 (‘Mabo’) undermined the basic assumption that had guided all Australian real property law since colonisation. Thus, the legal consequences that flow from the feudal character of the English doctrine of tenure no longer apply ipso jure in Australia: title to land is no longer exclusively derivative; all titles to land can no longer theoretically be traced back to a Crown grant. Consequently, although the High Court confirmed that the doctrine of tenure is an essential principle of Australian land law, six members of the Court made it clear that the grundnorm of Australian real property law is no longer the English (feudal) doctrine of tenure; instead, it is the Australian doctrine of tenure with radical title as its postulate.2 Nevertheless, since the decision in Mabo, discussion has focused on the meaning of native title and the practical implications of its judicial recognition. This article, however, considers the effect of the Court’s decision on the reception of English land law. Indeed, it will be shown that the applicability of the Australian doctrine of tenure was only possible because the High Court clarified the doctrine of reception as it applied to Australia.3 In this context, although the High Court rejected the common law classification of inhabited land * LLB (Hons 1), James Cook University, PhD, University of New South Wales; Barrister of the Supreme Court of Queensland; Lecturer in Law, James Cook University.
    [Show full text]