1. NSW and Commonwealth Legal and Constitutional History Topic 9

2. Control could be claimed either:  by conquest;  by cession (that is when one country ceded its sovereignty to another); or  by settlement.

3. 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”

4. 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”

5. 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)

6. 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 )

7. 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

8. 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…”

9. 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

10. 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”

11. Civil court  Kable’s case: July 1788

12. 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

13. 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.

14. 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.

15. 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.

16. 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

17. 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-in- Council as the central executive authority.

18. Representative government?  Direct election of members of parliament – or appointment?  Who elects? Development of universal franchise.

19. 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.”

20. 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.

21. 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”

22. 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.”

23. ‘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.)

24. 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 … (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. 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. (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.

25. 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.

26. 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

27. 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

28. 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…”

29. 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.”

30. 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.

31. 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

32. 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.”

33. 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.

34. 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.”

35. 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]

36. 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]

37. “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.”

38. 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])

39. 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])

40. 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])

41. ‘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])

42. 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])

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])

44. 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]) “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])

45. 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]

46. 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])

47. 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])

48. 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])