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Published online by Cambridge University Press: 01 January 2025
In PGA v The Queen, the High Court found that a legal rule ceased to exist well before many people thought it did. In Mabo v Queensland [No 2], the Court found that a legal rule came into existence well before many people thought it did. These conclusions are obviously different, and so are the reasons that led to them. But in both decisions the Court relied on the foundation of a legal rule to account for the rule's validity over time. In PGA, the rule was founded on another legal rule. In Mabo, the rule was founded on an historical fact. I explain how the Court reasoned with these foundations, and what this reasoning suggests about the nature of the common law in Australia.
I'm grateful to Patrick Emerton for many discussions about this paper. Thanks also to Jamie Blaker, Sophie Maltabarow, Nathan Van Wees and the anonymous referees for their suggestions.
1 (2012) 245 CLR 355 (‘PGA’).
2 (1992) 175 CLR 1 (‘Mabo’).
3 See, eg, Dworkin, Ronald, Law's Empire (Hart Publishing, 1986)Google Scholar; Greenberg, Mark, ‘The Moral Impact Theory of Law’ (2014) 123 Yale Law Journal 1288Google Scholar.
4 Emerton, Patrick, ‘The Centrality and Diversity of the Invisible Constitution’ in Dixon, Rosalind and Stone, Adrienne (eds), The Invisible Constitution in Comparative Perspective (Cambridge University Press, forthcoming)Google Scholar.
5 For an argument that legal texts cannot stipulate all kinds of legal inference, see ibid.
6 See, eg, SirMason, Anthony, ‘Legislative and Judicial Law-Making: Can We Locate an Identifiable Boundary?’ (2003) 24 Adelaide Law Review 15, 18Google Scholar; Beever, Allan, ‘The Declaratory Theory of Law’ (2013) 33 Oxford Journal of Legal Studies 421, 421CrossRefGoogle Scholar; Carrigan, Frank, ‘A Blast from the Past: The Resurgence of Legal Formalism’ (2003) 27 Melbourne University Law Review 163, 164Google Scholar; Convery, Jane, ‘Lord Goff's Swansong: Restitution, Mistake of Law, and the Retrospective Effect of Judicial Decisions’ (1999) 3 Edinburgh Law Review 202, 207CrossRefGoogle Scholar.
7 Beever, above n 6.
8 Ibid 425–6.
9 See Convery, above n 6, 207; Beever, above n 6, 432–41.
10 Beever, above n 6, 427–31. The theory is sometimes understood in the performative sense that judges ‘declare’ the law's content: see PGA (2012) 245 CLR 355, 420 [178] (Bell J), citing R v P, GA (2010) 109 SASR 1, 4 [9] (Doyle CJ); Giannarelli v Wraith (1988) 165 CLR 543, 585 (Brennan J); Kleinworth Benson Ltd v Lincoln City Council [1999] 2 AC 349, 378–9; Andrei Marmor, ‘The Separation Thesis and the Limits of Interpretation’ (1999) 12 Canadian Journal of Law & Jurisprudence 135, 142.
11 Dworkin, Ronald, Taking Rights Seriously (Harvard University Press, 1977) 24, 26Google Scholar.
12 See, eg, MacCormick, Neil, Legal Reasoning and Legal Theory (Clarendon Press, revised ed, 1994) 231–2CrossRefGoogle Scholar; Hart, H L A, The Concept of Law (Clarendon Press, 2nd ed, 2012) 259–63CrossRefGoogle Scholar.
13 These words, and indeed this idea, are borrowed from the account of ‘conserving interpretations’ in Raz, Joseph, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford University Press, 2009) 254CrossRefGoogle Scholar.
14 See PGA (2012) 245 CLR 355, 371 [23]; Mabo (1992) 175 CLR 1, 42; Wik Peoples v Queensland (1996) 187 CLR 1, 179–80 (Gummow J). But the Court has on occasion commented favourably on the theory: see Atlas Tiles Ltd v Briers (1978) 144 CLR 202, 208; Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583, 586; Giannarelli v Wraith (1988) 165 CLR 543, 585–7.
15 PGA (2012) 245 CLR 355, 357–8, 361.
16 Ngaire Naffine and Joshua Neoh, ‘Fictions and Myths in PGA v The Queen’ (2013) 38 Australian Journal of Legal Philosophy 32.
17 (1996) 187 CLR 1, 184 (‘Wik’).
18 Emerton, Patrick and Goldsworthy, Jeffrey, ‘The Brennan Court’ in Dixon, Rosalind and Williams, George (eds), The High Court, the Constitution and Australian Politics (Cambridge University Press, 2015) 261, 274 n 89CrossRefGoogle Scholar.
19 PGA (2012) 245 CLR 355, 366 [9].
20 Ibid 364 [3], 376 [42]. Bell J presented two alternative formulations of the rule: at 431–2 [213].
21 SirHale, Matthew, Historia Placitorum Coronae (London Professional Books, first published 1736, 1971 ed) vol 1, ch 58, 629Google Scholar, cited in PGA (2012) 245 CLR 355, 365 [4], 375 [37] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). However, the rule's existence at the time of Hale's publication has been questioned: PGA (2012) 245 CLR 355, 376 [40], [42] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); R v L (1991) 174 CLR 379, 401 (Brennan J).
22 (1888) 22 QBD 23 (‘Clarence’), cited in PGA (2012) 245 CLR 355, 390–1 [96] (Heydon J).
23 [1992] 1 AC 599.
24 Ibid 610–11.
25 PGA (2012) 245 CLR 355, 426 [198] (Bell J).
26 Criminal Code 1899 (Qld) s 347, as amended by Criminal Code, Evidence Act and Other Acts Amendment Act 1989 (Qld) s 31; Criminal Code 1902 (WA) s 323, as amended by Acts Amendment (Sexual Assaults) Act 1985 (WA) ss 8, 10; Criminal Code 1913 (Tas) s 325, as amended by Criminal Code Amendment (Sexual Offences) Act 1987 (Tas) s 18: see R v L (1991) 174 CLR 379, 402; PGA (2012) 245 CLR 355, 365 [5].
27 CLC Act s 73(3), as inserted by Criminal Law Consolidation Amendment Act 1976 (SA) s 12 (‘CLC Amendment Act’), cited in PGA (2012) 245 CLR 355, 368 [13].
28 CLC Act s 73(5), as inserted by CLC Amendment Act s 12. The circumstances related to assault, gross indecency, humiliation and the ‘threat of the commission of a criminal act against any person’.
29 PGA (2012) 245 CLR 355, 384–5 [67] (Heydon J), 415–16 [164], 443 [244] (Bell J); Larcombe, Wendy and Heath, Mary, ‘Developing the Common Law and Rewriting the History of Rape in Marriage in Australia: PGA v The Queen’ (2012) 34 Sydney Law Review 785Google Scholar.
30 (1991) 174 CLR 379.
31 Ibid 390 (Mason CJ, Deane and Toohey JJ), 402–3 (Brennan J), 405 (Dawson J).
32 PGA (2012) 245 CLR 355, 397 [115] (Heydon J).
33 Larcombe and Heath, above n 29, 803. The immunity was removed entirely by the Criminal Law Consolidation (Rape) Amendment Act 1992 (SA) s 2.
34 See Doyle CJ's comment, at first instance, that a ‘mistaken understanding by Parliament of the state of the common law when it enacts a statutory measure … has no legal effect’: R v P, GA (2010) 109 SASR 1, 8 [37].
35 See PGA (2012) 245 CLR 355, 369 [18], 384 [64] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); R v L (1991) 174 CLR 379, 389–90, 401, 405. For an argument in support of this finding, see PGA (2012) 245 CLR 355, 361–2 (parties’ submissions); Lesses, Kos, ‘PGA v The Queen: Marital Rape in Australia’ (2014) 37 Melbourne University Law Review 786, 788Google Scholar.
36 No statute had retrospectively repealed the immunity: PGA (2012) 245 CLR 355, 368 [13].
37 Ibid 369 [18], 384 [64] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
38 Ibid 384 [64].
39 Ibid 369 [18], 385 [65].
40 Ibid 392 [100], 385–97 [71]–[113] (Heydon J), 426 [198], 440 [232] (Bell J).
41 Ibid 397 [115], 398 [120], 402–6 [128]–[136] (Heydon J), 416 [165], 443 [242], 444 [245] (Bell J). But see, on the compatibility of retrospective rule-making with the rule of law, Endicott, Timothy, ‘Adjudication and the Law’ (2007) 27 Oxford Journal of Legal Studies 311, 317–18, 325CrossRefGoogle Scholar; Endicott, Timothy, ‘The Coxford Lecture: Arbitrariness’ (2014) 27 Canadian Journal of Law & Jurisprudence 49, 63CrossRefGoogle Scholar. Cf Fuller, Lon L, The Morality of Law (Yale University Press, revised ed, 1969) 53Google Scholar.
42 In the discussion below, I use the term ‘legal rules’ to refer to basically any legal proposition. That is, I do not draw any distinction between ‘rules’ and ‘principles’, and I take this approach because no such distinction emerges from the majority's reasoning.
43 PGA (2012) 245 CLR 355, 373 [30] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (citations omitted). Gummow J possibly hinted at this reasoning in Wik (1996) 187 CLR 1, 180.
44 See the final instalment of his ‘Foundation Trilogy’, Second Foundation (Gnome Press, 1953).
45 (1909) 10 CLR 89 (‘Brown’).
46 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, 614–15 (Gummow J) (‘Thompson’), quoted in PGA (2012) 245 CLR 355, 373 [31].
47 (1909) 10 CLR 89.
48 Ibid 95 (emphasis added), quoting Cuenod v Leslie (1909) 1 KB 880, 886 (Fletcher LJ), citing Capel v Powell (1864) 17 CBNS 743 (Erle CJ).
49 Thompson (1996) 186 CLR 574, 614 (Gummow J). The House of Lords decided the same question in Edwards v Porter by preserving the husband's liability. So it is at least doubtful whether reliance on the foundation relation is permissible in English law. In Thompson, the High Court suggested that the minority's reasoning in Edwards v Porter was consistent with its own approach: see Edwards v Porter [1925] AC 1, 10, quoted in Thompson (1996) 186 CLR 574, 614–15; PGA (2012) 245 CLR 355, 374 [31].
50 PGA (2012) 245 CLR 355, 376 [41]. Cf at 417 [173] (Bell J).
51 I am grateful to an anonymous referee for drawing this problem to my attention and for proposing the particular example that I discuss here.
52 Again, thanks to an anonymous referee for suggesting this possibility .
53 Marmor, Andrei, Legal Theory and Interpretation (Hart Publishing, 2nd ed, 2005) 97Google Scholar.
54 (2012) 245 CLR 355, 441 [235]. In fairness, Bell J's insistence seems connected to the fact that it was ‘submitted [by the respondent] that legal and social changes to the status of married women had produced the result that the immunity had ceased to be a rule of law’: at 437 [224] (emphasis added).
55 Ibid 402 [126].
56 State Government Insurance Commission (SA) v Trigwell (1979) 142 CLR 617, 627 (Gibbs J) (‘[a]lthough the rules of the common law develop as conditions change, a settled rule is not abrogated because the conditions in which it was formulated no longer exist’) (‘Trigwell’), quoted in PGA (2012) 245 CLR 355, 401–2 [126] (Heydon J).
57 PGA (2012) 245 CLR 355 384 [65].
58 426 A 2d 38 (NJ, 1981) (‘Smith’).
59 Ibid 42 [2]. Admittedly, the distinction between social and legal conditions is blurred in the majority's statement that ‘[i]n the years since Hale's formulation of the rule, attitudes towards the permanency of marriage have changed and divorce has become far easier to obtain’ (emphasis added).
60 Larcombe and Heath, above n 29, 802.
61 Naffine and Neoh, above n 16, 48; Richard Sletvold, ‘PGA v The Queen: Do Laws Just Disappear?’ (2012) 33 Adelaide Law Review 573, 579.
62 Naffine and Neoh, above n 16, 47.
63 This sort of claim would have to grapple with the precedent of Brown v Holloway and the majority's citation of SirSalmond's, John paper, ‘The Theory of Judicial Precedents’ (1900) 16 Law Quarterly Review 376Google Scholar, in support of the reasoning: see below n 91. I am grateful to an anonymous referee for prompting me to acknowledge this view of the decision.
64 John Rawls, ‘Two Concepts of Rules’ (1955) 64 Philosophical Review 3, 3.
65 PGA (2012) 245 CLR 355, 432 [214].
66 Ibid 399 [122].
67 Sletvold, above n 61, 574. Sletvold says that the following cases have cited PGA for this proposition: Barclay v Penberthy (2012) 246 CLR 258; R v Gee (2012) 113 SASR 372; R v Won [2012] SADC 117 (14 September 2012). This assessment is misleading, I think. R v Gee (2012) 113 SASR 372, 419 [205] notes that the decision ‘demonstrates that a previously held general view in the profession may be shown to be incorrect’. Barclay v Penberthy (2012) 246 CLR 258, 283 [40] notes that a ‘rule of the common law [can] become a legal fiction because it depends upon another rule which is no longer maintained’. Kiefel J in Barclay said that PGA stands for the proposition that ‘common law courts can decide to no longer maintain a rule of law which has become no more than a legal fiction because the reason or foundation for it no longer exists’: at 313 [154]. (But Kiefel J did not specify that the reason or foundation must consist in a legal rule or conception.) In R v Won [2012] SADC 117 (14 September 2012) [26]–[31], the South Australian District Court quoted passages from PGA, but ultimately found that the case did not assist it.
68 This reference is part of the majority's citation of Viscount Cave's dissent in Edwards v Porter [1925] AC 1, 10: see PGA (2012) 245 CLR 355, 374 [31]. The above translation was taken from Lesses, above n 35, 825–6, quoting Broom, Herbert and Kersley, R H, A Selection of Legal Maxims: Classified and Illustrated (Sweet & Maxwell, 10th ed, 1939) 97Google Scholar (citations omitted).
69 Lesses, above n 35, 826.
70 I leave aside the question of whether the legislature could ever expound a rule in this manner.
71 Brown (1909) 10 CLR 89, 95, citing Capel v Powell (1864) 17 CBNS 743.
72 PGA (2012) 245 CLR 355, 376 [41].
73 See Bell J's claim that, by the time of Hale's publication, ‘the justification for the immunity may have come to rest more upon the notion that the criminal law ought not to intrude into the marital bedroom, than upon the fiction of the wife's irrevocable consent’: ibid 417 [173]. See also her claim that ‘by 1976, the justification for that immunity was not perceived to depend upon the concept of irrevocable consent to intercourse, since the Parliament of South Australia abolished that presumption while maintaining the immunity save for offences committed in circumstances of aggravation’: at 425 [197].
74 Bell J claimed that ‘by 1976, the justification for that immunity was not perceived to depend upon the concept of irrevocable consent to intercourse, since the Parliament of South Australia abolished that presumption while maintaining the immunity save for offences committed in circumstances of aggravation’: ibid 425 [197].
75 Ibid 383 [61].
76 See, eg, R v L (1991) 174 CLR 379, 391 (Brennan J): ‘The legal nature of the institution of marriage is not to be found in the common law’.
77 PGA (2012) 245 CLR 355, 373 [30].
78 It is worth noting that the majority's conclusion was expressed in the same terms as Dawson J's finding in R v L that ‘the institution of marriage in its present form provides no foundation for [the immunity]’: R v L (1991) 174 CLR 379, 405, quoted in PGA (2012) 245 CLR 355, 374 [32]. However, for his purposes, Dawson J relied on legal developments between the 1930s and 1991. The implication of the majority's finding is that Dawson J need not have referred to these developments; the relevant change had already occurred.
79 See Matrimonial Causes Act 1858 (SA); Matrimonial Causes Act 1860 (Tas); Matrimonial Causes Act 1861 (Vic); Matrimonial Causes Act 1863 (WA); Matrimonial Causes Act 1865 (Qld); Matrimonial Causes Act 1873 (NSW), cited in PGA (2012) 245 CLR 355, 381 [56].
80 See PGA (2012) 245 CLR 255, 381 [54], citing Matrimonial Causes Act 1857, 20 & 21 Vict, c 85, ss 27, 31.
81 PGA (2012) 245 CLR 355, 381–2 [57], citing Divorce Act 1889 (Vic); Divorce Amendment and Extension Act 1892 (NSW).
82 Smith, 426 A 2d 38, 44 (NJ, 1981), quoted in PGA (2012) 245 CLR 355, 382 [59].
83 The Court said that ‘the duty of matrimonial intercourse was one of imperfect legal obligation because it could not be compelled by curial decree’: PGA (2012) 245 CLR 355, 383 [60], citing Bartlett v Bartlett (1933) 50 CLR 3, 12, 15, 18. It is possible that Australian courts did not have this power even prior to the divorce legislation: PGA (2012) 245 CLR 355, 380–1 [53]–[56].
84 PGA (2012) 245 CLR 355, 384 [62], citing Roach v Electoral Commissioner (2007) 233 CLR 162, 195–6 [70]–[71].
85 The majority notes only that the franchise legislation may be ‘added’ to the divorce legislation as a ‘significant’ statutory development: PGA (2012) 245 CLR 355, 384 [62].
86 Ibid 384 [63], quoting Wright v Cedzich (1930) 43 CLR 493, 505.
87 The majority also raised a third possibility, which is that the English ecclesiastical courts’ recognition of an ‘obligation not to refuse sexual intercourse wilfully and persistently’ undermined the rule of irrevocable consent: ibid 383 [60], quoting R v L (1991) 174 CLR 379, 396 (Brennan J). The respondent did rely on R v Jackson [1891] 1 QB 671, 679, in which Lord Halsbury disputed that the husband had ‘complete dominion over the wife's person’.
88 See, eg, the bases on which state and federal laws were found to be inconsistent in Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 and Mabo v Queensland (1988) 166 CLR 186.
89 PGA (2012) 245 CLR 355, 438 [227]. Bell J pointed to the enactment of the immunity in the Criminal Code Act 1924 (Tas) following the divorce legislation.
90 See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563.
91 SirSalmond, John, ‘The Theory of Judicial Precedents’ (1900) 16 Law Quarterly Review 376, 383Google Scholar, quoted in PGA (2012) 245 CLR 355, 371 [24].
92 Fuller, above n 41, 122, 198–9.
93 Dworkin, Ronald, ‘Philosophy, Morality, and Law—Observations Prompted by Professor Fuller's Novel Claim’ (1965) 113 University of Pennsylvania Law Review 668, 678CrossRefGoogle Scholar; Finnis, John, Natural Law and Natural Rights (Oxford University Press, 2nd ed, 2011) 280Google Scholar.
94 A survey by the College of Law ranked Mabo as the most influential High Court decision, saying that it ‘inserted’ native title into Australian law, that it ‘altered the very law on which this land mass was colonised’: The College of Law, Top 10 Most Influential Court Cases of the Last 40 Years (11 June 2014) <https://www.collaw.edu.au/news/2016/11/15/top-10-most-influential-court-cases-of-the-last-40-years>. Another list of landmark cases says that the case ‘recognised that Australia wasn't terra nullius at settlement: it was inhabited’: ‘10 Landmark Cases: How to Protect Rights Without a Bill of Rights’, Right Now (9 January 2014) <http://rightnow.org.au/news/10-landmark-cases-how-to-protect-rights-without-a-bill-of-rights> (emphasis added). Gummow J's thesis is consistent with the second description.
95 For sympathetic accounts of Mabo, see Wik (1996) 187 CLR 1, 235 (Kirby J); Webber, Jeremy, ‘The Jurisprudence of Regret: The Search for Standards of Justice in Mabo’ (1995) 17 Sydney Law Review 5, 24Google Scholar; SirMason, Anthony, ‘Law-Making Role: Reflections’ in Blackshield, Tony, Coper, Michael and Williams, George (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 422, 424Google Scholar; Laster, Kathy, Law as Culture (Federation Press, 2nd ed, 2001) 130, 132Google Scholar. For critical accounts, see Moens, Gabriël A, ‘Mabo and Political Policy-Making by the High Court’ in Stephenson, M A and Ratnapala, Suri (eds), Mabo: A Judicial Revolution: The Aboriginal Land Rights Decision and Its Impact on Australian Law (University of Queensland Press, 1993) 48, 49, 52–6Google Scholar; SirGibbs, Harry, ‘Law-Making Role: Further Reflections’ in Blackshield, Tony, Coper, Michael and Williams, George (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 424, 425Google Scholar.
96 (1996) 187 CLR 1, 184.
97 Ibid 179–80. He also mentioned that legal change can ‘stem[] from alterations in the legal system’: at 180.
98 Ibid 175, 180.
99 Ibid 179. See also Justice W M C Gummow, ‘Law and the Use of History’ in Justin T Gleeson and Ruth C A Higgins (eds), Constituting Law: Legal Argument and Social Values (Federation Press, 2011) 61, 65.
100 See Cooper v Stuart (1889) 14 App Cas 286, 291, quoted in Wik (1996) 187 CLR 1, 181.
101 See, eg, Mabo (1992) 175 CLR 1, 64–9 (Brennan J), 110–1 (Deane and Gaudron JJ), 192–6 (Toohey J). See also Wik (1996) 187 CLR 1, 155 (Gaudron J). This aspect of the law of native title has changed since Mabo. For commentary, see Bartlett, Richard H, Native Title in Australia (LexisNexis Butterworths, 2nd ed, 2004) 46 [4.3], 65–9 [6.2]–[6.14]Google Scholar.
102 For further clarity: the nature of the Crown's title should be distinguished from the question of whether a particular native title claim should be upheld. As Toohey J said, ‘a distinction should be noted between the existence of traditional title and the nature of the title’: Mabo (1992) 175 CLR 1, 184. See also Yanner v Eaton (1999) 201 CLR 351, 382–3 [72] (Gummow J); JusticeFrench, Robert and Lane, Patricia, ‘The Common Law of Native Title in Australia’ (2002) 2 Oxford University Commonwealth Law Journal 15, 26CrossRefGoogle Scholar.
103 See, eg, Perry, Melissa and Lloyd, Stephen, Australian Native Title Law (Lawbook, 2003) 11Google Scholar; Nettheim, Garth, ‘Judicial Revolution or Cautious Correction? Mabo v Queensland’ (1993) 16 University of New South Wales Law Journal 1, 2, 16Google Scholar; Bartlett, Richard, ‘Mabo: Another Triumph for the Common Law’ (1993) 15 Sydney Law Review 178, 184–5Google Scholar; Bartlett, Native Title in Australia, above n 101, 11 [1.22]; JusticeFrench, Robert, ‘The Role of the High Court in the Recognition of Native Title’ (2002) 30 University of Western Australia Law Review 129, 130Google Scholar; McHugh, P G, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford University Press, 2011) 91CrossRefGoogle Scholar.
104 See Mabo (1992) 175 CLR 1, 57–8 (Brennan J): ‘It must be acknowledged that, to state the common law in this way involves the overruling of cases which have held the contrary’.
105 If this explanation commits me to a controversial view of (at least some) historical facts as objective phenomena that do not change in the light of interpretations of history, I suppose I must accept that. Historians may be uneasy about my use of the term ‘historical fact’. E H Carr used this term in What is History? (Cambridge University Press, 1961) to refer to a fact about the past that was given prominence in a work of historical scholarship. So, for Carr, ‘historical facts’ are a subset of the collection of all facts about the past. On Carr's account, whether a fact is an ‘historical fact’ depends of course on the views of the historian, and so an ‘historical fact’ is not objective in that sense. But Carr did not deny that certain facts about the past (which might become ‘historical facts’) are objective and discoverable.
106 For discussions of the High Court's use of history, see, eg, Selway, Bradley, ‘The Use of History and Other Facts in the Reasoning of the High Court of Australia’ (2001) 20 University of Tasmania Law Review 129, 152Google Scholar; Irving, Helen, ‘Constitutional Interpretation, the High Court and the Discipline of History’ (2013) 41 Federal Law Review 95CrossRefGoogle Scholar.
107 In Mabo, the Court found that the Crown's acquisition of sovereignty could not be challenged: (1992) 175 CLR 1, 31 (Brennan J). It also said that it would revisit the legal conclusion that Australian territory was ‘settled’: at 39–40, 79, 182.
108 Ibid 48 (citations omitted).
109 Ibid 79–82 (Deane and Gaudron JJ), 182 (Toohey J).
110 See Section IV(C)(3).
111 The defendants argued that absolute title was founded on alternative legal propositions, all of which were rejected: Mabo (1992) 175 CLR 1, 46–54. For an account of native title which is not grounded in the rule M(h), see Dorsett, Shaunnagh, ‘“Since Time Immemorial”: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry’ (2002) 26 Melbourne University Law Review 32, 49, 57–8Google Scholar.
112 Mabo (1992) 175 CLR 1, 50 (Brennan J). See also at 182–3 (Toohey J).
113 Ibid 58, 60 (Brennan J).
114 See, eg, ibid 26 (Brennan J).
115 A-G (NSW) v Brown (1847) 1 Legge 312, 316 (Stephen CJ) (‘A-G v Brown’), quoted in Mabo (1992) 175 CLR 1, 26 (Brennan J), affd Randwick Municipal Council v Rutledge (1959) 102 CLR 54, 71 (Windeyer J); New South Wales v Commonwealth (1975) 135 CLR 337, 439 (Stephen J) (‘Seas and Submerged Lands Case’). The cases did not use the terminology of ‘absolute title’, but the decisions expressed the title in terms of exclusive ownership: see Mabo (1992) 175 CLR 1, 28; Mabo v Queensland (1988) 166 CLR 186, 236. Isaacs J said that the ‘whole of the lands … were already in law the property of the King of England’: Williams v A-G (NSW) (1913) 16 CLR 404, 439 (emphasis altered). See also Seas and Submerged Lands Case (1975) 135 CLR 337, 439 (Stephen J), citing A-G v Brown (1847) 1 Legge 312, 317–20.
116 Cooper v Stuart (1889) 14 App Cas 286, 291, quoted in Mabo (1992) 175 CLR 1, 36–7 (Brennan J), 103 (Deane and Gaudron JJ); Wik (1996) 187 CLR 1, 181 (Gummow J). The Privy Council also said that the territory was ‘peacefully annexed’: Cooper v Stuart (1889) 14 App Cas 286, 291, quoted in Mabo (1992) 175 CLR 1, 181 (Toohey J). For a discussion of the pre-Mabo cases which concludes that those cases shared the ‘common assumption that the [annexed] lands were vacant, ie, unowned and unoccupied’, see McNeil, Kent, ‘A Question of Title: Has the Common Law Been Misapplied to Dispossess the Aboriginals?’ (1990) 16 Monash University Law Review 91, 102Google Scholar.
117 Mabo (1992) 175 CLR 1, 38, 40 (Brennan J). Deane and Gaudron JJ referred to the descriptions as ‘bare assertion’: at 103–4. The Court admitted that its own knowledge of the historical facts was limited: at 99 (Deane and Gaudron JJ).
118 See, eg, ibid 109.
119 Ibid 58.
120 Ibid.
121 Ibid 102. See also at 38.
122 Ibid 48 (emphasis altered).
123 ‘[A-G v Brown] was not followed in Mabo [No 2] but its historical role remains’: Wik (1996) 187 CLR 1, 109 (Toohey J).
124 The common law doctrine of ‘deserted and uncultivated land’ corresponds with the doctrine of terra nullius in international law: see Mabo (1992) 175 CLR 1, 36 (Brennan J); Secher, Ulla, ‘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”’ (2004) 27 University of New South Wales Law Journal 703, 733Google Scholar; Secher, Ulla, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” (Pt 1)’ (2006) 13 Australian Property Law Journal 107, 133Google Scholar.
125 Mabo (1992) 175 CLR 1, 36, 40, 58 (Brennan J).
126 See, eg, Advocate-General (Bengal) v Ranee Surnomoye Dossee (1863) 2 Moo N S 22, 59; 15 ER 811, 824, cited in Mabo (1992) 175 CLR 1, 36; In re Southern Rhodesia [1919] AC 211, 233–4, cited in Mabo (1992) 175 CLR 1, 39.
127 Mabo (1992) 175 CLR 1, 29, 30, 39, 42.
128 Ibid 40–2, citing Western Sahara (Advisory Opinion) [1975] ICJ Rep 12.
129 Mabo (1992) 175 CLR 1, 42.
130 See Mabo (1992) 175 CLR 1, 33–4 (Brennan J), citing Sir William Blackstone, Commentaries on the Laws of England (17th ed, 1830) book II, ch 1, 7; Mabo (1992) 175 CLR 1, 182 (Toohey J). In Van Krieken's view, Toohey J found it ‘unnecessary to “overturn” terra nullius at all, because he correctly s[aw] no reason to dignify the mere presumption of the absence of indigenous occupation with the designation of a legal “doctrine” requiring “overturning”’: Krieken, Robert Van, ‘From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship’ (2000) 23 University of New South Wales Law Journal 63, 74Google Scholar. For other accounts of the enlarged doctrine of terra nullius, see Bartlett, Native Title in Australia, above n 101, 23 [2.23]; Bryan Keon-Cohen, Mabo in the Courts: Islander Tradition to Native Title: A Memoir (Chancery Bold, 2011) vol 1, 556.
131 See, eg, Secher, ‘The Doctrine of Tenure in Australia Post-Mabo (Pt 1)’, above n 124, 136; Secher, Ulla, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” (Pt 2)’ (2006) 13 Australian Property Law Journal 140, 141Google Scholar.
132 See, eg, Ulla Secher, ‘The Doctrine of Tenure in Australia Post-Mabo (Pt 2)’, above n 131, 163–4: ‘although the High Court accepted that Australia was a settled territory, six justices changed the law that applies to a colony acquired by settlement where the colony was not previously uninhabited’ (emphasis added).
133 Mabo (1992) 175 CLR 1, 45, citing Sir William Blackstone, Commentaries on the Laws of England (17th ed, 1830) book II, ch 1, 8. See also Mabo (1992) 175 CLR 1, 48, citing Sir Martin Wright, Introduction to the Law of Tenures (4th ed, 1792) 5.
134 (1608) Davis 28; 80 ER 516 [Sir John Davies trans, A Report of the Cases and Matters in Law, Resolved and Adjudged in the King's Courts in Ireland (Dublin, 4th ed, 1762) 78, 110–1], cited in Mabo (1992) 175 CLR 1, 49. Case of Tanistry was cited by the plaintiffs: Mabo (1992) 175 CLR 1, 9.
135 Mabo (1992) 175 CLR 1, 102. At the very least, the English law of colonisation recognised that that the ‘English common law [including the doctrine of tenures] necessarily applied in so far as … such laws were applicable to the conditions of the new Colony’: Sammut v Strickland [1938] AC 678, 701, quoted in Mabo (1992) 175 CLR 1, 80 (Deane and Gaudron JJ).
136 (1971) 17 FLR 141 (‘Milirrpum’).
137 On the failure of the earlier cases to address native title, see Wik (1996) 187 CLR 1, 181 (Gummow J); Bartlett, Native Title in Australia, above n 101, 3 [1.6]; O’Connor, Pamela, ‘Aboriginal Land Rights at Common Law: Mabo v Queensland’ (1992) 18 Monash University Law Review 251, 253Google Scholar.
138 Milirrpum (1971) 17 FLR 141, 267, quoted in Mabo (1992) 175 CLR 1, 39 (Brennan J).
139 Milirrpum (1971) 17 FLR 141, 243–5. Unlike Brennan J, Blackburn J found that native title rights were not allowed for in Blackstone's Commentaries: at 206.
140 See ibid 243. See also Van Krieken, above n 130, 67.
141 Cf Secher, ‘The Doctrine of Tenure in Australia Post-Mabo (Pt 1)’, above n 131, 137.
142 Bartlett, Native Title in Australia, above n 101, 26 [2.27]. See also French, ‘The Role of the High Court in the Recognition of Native Title’, above n 103, 130.
143 Frederick Schauer, ‘Authority and Authorities’ (2008) 94 Virginia Law Review 1931, 1935–7.