LAWS50024 Final: Principles of Public Law Detailed Case Notes
26 Jul 2018
School
Department
Course
Professor
PPL Case Bank
CASE NAME
PAGE
Mabo v Queensland [No 2] (1992) 175 CLR 1
2
Port Macdonnell Professional Fisherman’s Association Inc v South Australia
(1989) 168 CLR 340
8
XYZ v Commonwealth (2006) 227 CLR 532
10
Singh v Commonwealth (2004) 222 CLR 322
14
Sue v Hill (1999) 199 CLR 462
18
Nicaragua v United States (Merits) ICJ Rep 1986, 14
23
Plaintiff S157 v Commonwealth (2003) 211 CLR 424
25
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR
73
27
Egan v Willis (1998) 195 CLR 424
30
Brown v West (1990) 169 CLR 195
33
Ruddock v Verdarlis (2001) 110 FCR 491
36
Williams v Commonwealth (2012) 248 CLR 156
42
Bropho v Western Australia (1990) 171 CLR 1
46
Jurisdictional Immunities of the State (Germany v Italy) [2012] ICJ Reports 99
49
Plaintiff M70 v Minister for Immigration and Citizenship (Malaysian Declaration
Case) (2011) 244 CLR 144
52
Horta v Commonwealth (1994) 181 CLR 183
56
Case concerning East Timor (Portugal v Australia) [1995] ICJ Reports
59
Kuczborski v Queensland [2014] HCA 46
60
Dietrich v R (1992) 177 CLR 292
62
Slaveski v Smith & Anor [2012] VSCA 25
67
Corrina Hovarth v Australia, Communication No. 1885/2009 (22 April 2014)
74
Al-Kateb v Godwin (2004) 209 CLR 562
76
Madbury v Madison 1 Cranch 137 (1803) (US)
80
2
Mabo v Queensland [No 2] (1992) 175 CLR 1
Topic: The State and Territory, Australian Public Law, relationship between
international and domestic public law
Judges: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
Date: June 3rd, 1992
Plaintiff: Mabo & Meriam People
Defendant: State of Queensland
Material Facts:
• Murray Islands were occupied by the Meriam people long before European contact
• 1879, the Islands were annexed to the Colony of Queensland in absolute owner because there is no
other proprietor, denying that indigenous inhabitants possessed a proprietary interest
• Plaintiffs sought declaration, inter alia, that the Meriam people were entitled to the Murray Islands
‘as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said islands’
• Queensland government argued that when the land was settled as terra nullius, the law of England
became the law of the colony and, by that law; the Crown acquired the ‘absolute beneficial
ownership’ of all land in the territory.
• In 1985 the Queensland Government attempted to terminate the proceedings by enacting the
Queensland Coast Islands Declaratory Act 1985, which declared that on annexation of the islands in
1879, title to the islands was vested in the state of Queensland "freed from all other rights, interests
and claims whatsoever".
Type of dispute:
Native title, constitutional & real property law
Legal issues:
• Can the HCA examine UK sovereignty and determine the legitimacy of its actions?
• What legal rights to the land did the UK gain on acquisition of the territory?
• Validity and ramifications of doctrine of terra nullius
Core Issue = Legal consequences that flowed from acquisition under municipal law. NB These consequences
depend on type of territory. Note the issue was NOT whether occupation of Australia etc was legitimate this is
a non-justiciable issue. The acquisition of territory was an exercise of the prerogative executive power
Outcome:
Court ruled in favour of Mabo
The majority of the High Court concluded that common law in Australia did actually recognise a derivative of
native title through a prior interest in the land which survived the original colonisation of Australia by the
British. Additionally, it was concluded that when indigenous Australians have established a clear and definitive
connection to a section of land, and this connection has not been removed by any action, decision or
legislative reform of the Government, which would have interfered with the pre-existing connection - then the
common law will recognise the land as native title.
Rationes:
1. The Meriam People were directly descended from those described in the evidence from early
European records.
2. The acquisition of sovereignty by the British Crown purports to a radical title as oppose to an absolute
title in the instance that native title is not extinguished, and the rights and interests of the Indigenous
people still exist.
3. Native Title in respect to a particular fraction of land - regardless of its classification by common law –
is preserved in accordance with the traditional rights and customs of the aboriginal people who have
a clearly defined causal connection with the land.
4. Native title could be extinguished by Governmental power if there was a clear and transparent
intention to do.
3
Court’s reasoning:
Acquisition of sovereignty – Non-justiciable
▪ Non-justiciability of acquisition of territory [pg. 31]
o ‘The acquisition of territory by a sovereign state for the first time is an act of state which
cannot be challenged, controlled or interfered with by the courts of that state’ (Citing Gibbs J
in Seas and Submerged Lands Case). It is a non-justiciable issue. [pg. 31]
o Precludes any contest between executive and judiciary as to whether territory is or is not
within Crown’s Dominion
o Murray Islands annexed by exercise of prerogative (mode of acquisition of foreign territory
recognized as valid under common law)
❖ Still lies within prerogative power of the Crown to extend its sovereignty and
jurisdiction to areas of land or sea over which it has not previously claimed or
exercised sovereignty or jurisdiction. For such extension the authority of Parliament
is not required [pg. 32]
o Such prerogative action is an act of state and its validity not justiciable in municipal courts
▪ But they can examine the legal consequences: ‘Although the question whether a territory has been
acquired by the Crown is not justiciable before municipal courts, those courts have jurisdiction to
determine the consequences of an acquisition under municipal law’ [32]
Acquisition of territory
▪ By common law, law in fore in a newly-acquired territory depends on the manner of its acquisition by
the Crown [pg. 32]
▪ IL recognizes conquest, cession and occupation of territory that was terra nullius as 3 effective ways
of acquiring sovereignty [32]
▪ Provided that discovery was confirmed by occupation and the indigenous inhabitants were not
organized in a society that was united permanently for political action – to such territories, colonial
nations applied doctrine of acquisition of territory that was terra nullius [32]
▪ Recognition of sovereignty over territory of ‘backwards people’ and by state practice permitted
acquisition of such territory by occupation rather than conquest [32]
▪ Justifications for this: [pg.33]
➢ Benefits of Christianity and European civilization
➢ New territories could be claimed by occupation if land not cultivated as Europeans had right
to bring land into production if they were left uncultivated by Indigenous
▪ Murray Islands – Meriam people devoted gardeners, living peacefully in a land-based society under
some sort of governance by the Mamoose and London Missionary Society (as mentioned before not
for Court to decide whether acquisition of Islands was valid)
Reception of the Common Law to Australia:
The enlarging of the concept of terra nullius by international law to justify the acquisition of inhabited territory
by occupation on behalf of the acquiring sovereign raised some difficulties in the expounding of the common
law doctrines as to the law to be applied when inhabited territories were acquired by occupation or
settlement. [pg. 35]
• IF conquest or cession- previous system of legal principles is modified but essentially retained, Crown
had prerogative power to make new laws for a conquered country although subject to laws enacted
by Imperial Parliament (for cession, may be limited by treaty of cession)
• IF settled we assume there was no previous law or ownership or sovereign thus settlers brought their
law with them: not only the law of colonialist but law of the land
▪ Blackstone [pg.34]
- If an uninhabited country be discovered and planted by English subjects, all the English laws then
in being, which are the birth right of every subject, are immediately there in force
- Great restrictions: subjects only carry with them only so much of the English law, as is applicable
to their own situation and the condition of an infant colony
Document Summary
Po(cid:396)t ma(cid:272)do(cid:374)(cid:374)ell p(cid:396)ofessio(cid:374)al fishe(cid:396)(cid:373)a(cid:374)(cid:859)s asso(cid:272)iatio(cid:374) i(cid:374)(cid:272) (cid:448) outh aust(cid:396)alia (1989) 168 clr 340. Victorian stevedoring and general contracting co pty ltd v dignan (1931) 46 clr. Plaintiff m70 v minister for immigration and citizenship (malaysian declaration. Slaveski v smith & anor [2012] vsca 25. Madbury v madison 1 cranch 137 (1803) (us) Mabo v queensland [no 2] (1992) 175 clr 1. Topic: the state and territory, australian public law, relationship between international and domestic public law. Judges: mason cj, brennan, deane, dawson, toohey, gaudron and mchugh jj. Material facts: murray islands were occupied by the meriam people long before european contact. 1879, the islands were annexed to the colony of queensland in absolute owner because there is no other proprietor, denying that indigenous inhabitants possessed a proprietary interest. In 1985 the queensland government attempted to terminate the proceedings by enacting the. Queensland coast islands declaratory act 1985, which declared that on annexation of the islands in.
