70102 Lecture Notes - Lecture 3: Milirrpum V Nabalco Pty Ltd, Terra Nullius, Larissa Behrendt
Seminar 3 –
• Elizabeth Ellis, Principles and Practice of Australian Law (Thomson Reuters, 3rd ed, 2013)
[2.10]-[2.50].
• What does paramount force mean
2.11 Terra nullius
- Public international law in the 18th C was not concerned with human rights but the right
of colonial powers to acquire new territory.
- Ale to auie soeeigty though a otio of settleet, – land populated by
people considered to be too primitive to have a system of law.
- This was a legal justification but was not factual on two counts: 1. It was not terra nullius,
there were 300,000 -1.5 million as living there. 2. Indigenous people had a sophisticated
social organisation with a system of laws. (e.g in the Gove land rights case) Blackburn J
noted that there was indeed a highly sophisticated society.
- Hoee, he also oted they laked popietay iteest ad theefoe it as’t util
Mabo that any real recognition was made.
2.12 The reception of English law
- Blackburn J. Ethnocentricism because rights in land was only synonymous with property
rights as recognised under English system of land law.
- Unlike colonies conquered or ceded colonies with existing laws, those acquired by
settlement (e.g what was considered in Australia) automatically have all the laws of the
conqueror in place at time of acquisition.
- Not oly ae ihaited osideed too akad to hae las i plae ut thee eig
no cultivation of land meant that there was no barrier to dispossession.
- This is how English law came to be
2.20 Evolution of responsible and representative government
- In the early years of settlement it was unclear whether NSW, for example, could have
Eglish la applied to it ee though it as assued to e a “ettled olony.
- This was resolved by the Australian Courts Act 1828, Section 24.
- However, in practice it had a limited operation.
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Document Summary
Seminar 3 : elizabeth ellis, principles and practice of australian law (thomson reuters, 3rd ed, 2013) Public international law in the 18th c was not concerned with human rights but the right of colonial powers to acquire new territory. A(cid:271)le to a(cid:272)(cid:395)ui(cid:396)e so(cid:448)e(cid:396)eig(cid:374)ty th(cid:396)ough a (cid:374)otio(cid:374) of (cid:862)settle(cid:373)e(cid:374)t,(cid:863) land populated by people considered to be too primitive to have a system of law. This was a legal justification but was not factual on two counts: 1. It was not terra nullius, there were 300,000 -1. 5 million as living there. Indigenous people had a sophisticated social organisation with a system of laws. (e. g in the gove land rights case) blackburn j noted that there was indeed a highly sophisticated society. Ho(cid:449)e(cid:448)e(cid:396), he also (cid:374)oted they la(cid:272)ked (cid:862)p(cid:396)op(cid:396)ieta(cid:396)y i(cid:374)te(cid:396)est(cid:863) a(cid:374)d the(cid:396)efo(cid:396)e it (cid:449)as(cid:374)"t u(cid:374)til. Blackburn j. ethnocentricism because rights in land was only synonymous with property rights as recognised under english system of land law.
