First Nations’ sovereignties and the Australian common law: Unfinished business for the High Court

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

Common law ownership rights in land by indigenous peoples were not recognised in Australia until the landmark decision of the High Court of Australia in Mabo.1 In that case, the High Court declared that Australian common law recognises what it called ‘native title’, the entitlement of the indigenous inhabitants of Australia to their traditional lands in accordance with their laws and customs. This writer has previously published in this Journal a detailed explanation of native title and the Mabo case and their effect on mineral development.2The current article is concerned with Australian native title issues as they affect oil and gas exploration and production.

The continuing existence and operation of the traditional law of Aboriginal and Torres Strait Islander peoples has – relatively recently – been explicitly acknowledged in Australian law. In emerging case law on the subject, the High Court of Australia has confirmed the common law recognition of the survival of Indigenous Australian law. However, in determining what it is that is recognized by the common law – in interpreting Indigenous Australian ‘traditional laws and customs’ – the High Court has disregarded the knowledge reposed in those with authority or expertise in Indigenous Australian law, relying instead upon concepts and assumptions from the jurisprudence of English legal philosopher, HLA Hart. The influence of Hart’s theory in the Australian High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’ is problematic, because it contains an obvious pre-legal–legal dualism reminiscent of the ‘state of nature’ – ‘civil society’ mechanism that was instrumental in the application of terra nullius to Australia. At the heart of The Concept of Law lies the notion of progression from a ‘primitive community’ with only primary rules, to an advanced legal system with a combination of both primary and secondary rules. In this article, I investigate how Indigenous Australians are positioned in relation to Hart’s pre-legal–legal dualism. I examine the ‘primitive’, pre-legal society in The Concept of Law, and its counterpart, the advanced legal system, to analyze the position of Indigenous Australian societies and law in Hart’s scheme. Finally, I analyze the construction of the dualism and consider its impact on the High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’.

When the High Court decided Australian Broadcasting Corporation v Lenah Meats Pty Ltd (‘Lenah’) in 2001, it left the door open for a common law tort of interference with privacy. However, privacy claims brought since Lenah have seen courts interpret that judgment restrictively, some holding that tortious remedies are unavailable. The importance of the High Court’s decision for the development of privacy protection through tort law should, therefore, be reaffirmed. In addition to the confirmation in Lenah that a tort of interference with privacy is recognisable in Australian common law, there are good reasons why the courts should now recognise this tort. There is a sufficiently strong normative demand that the common law intervene to protect individual privacy, and tort law is the most appropriate mechanism. When courts are presented with privacy cases reflecting that normative demand and fitting within tort law’s remedial capacity, they should recognise and apply a tort of interference with privacy.

Australia in Maps is a compilation of cartography taken from the collection of over 600,000 maps held at the Australian National Library. Included in this collection are military maps, coastal maps and modern-day maps for tourists. The map of the eastern coast of ‘New Holland’ drawn by James Cook when he ‘discovered’ Australia in 1770 is included. Also published is Eddie Koiki Mabo’s map drawn on a hole-punched piece of paper showing traditional land holdings in the Murray Islands in the Torres Strait. This map became a key document in Eddie Mabo’s fight for native title recognition, a fight which became the precursor to native title rights as they are known today. The inclusion of these two drawings in a collection of maps defining Australia as a country illustrates the dichotomies and contradictions which exist in a colonial nation. It is now fifteen years since the Native Title Act 1994 (Commonwealth) was developed in response to the Mabo cases in order to recognise Indigenous customary law and traditional relationships to the land over certain (restricted) parts of Australia. It is 220 years since the First Fleet arrived and Indigenous land was (and remains) illegally possessed through the process of colonisation (Moreton-Robinson Australia). Questions surrounding ‘country’ – who owns it, has rights to use it, to live on it, to develop or protect it – are still contested and contentious today. In part, this contention arises out of the radically different conceptions of ‘country’ held by, in its simplest sense, Indigenous nations and colonisers. For Indigenous Australians the land has a spiritual significance that I, as a non-Indigenous person, cannot properly understand as a result of the different ways in which relationships to land are made available. The ways of understanding the world through which my identity as a non-Indigenous person are made intelligible, by contrast, see ‘country’ as there to be ‘developed’ and exploited. Within colonial logic, discourses of development and the productive use of resources function as what Wetherell and Potter term “rhetorically self-sufficient” in that they are principles which are considered to be beyond question (177). As Vincent Tucker states; “The myth of development is elevated to the status of natural law, objective reality and evolutionary necessity. In the process all other world views are devalued and dismissed as ‘primitive’, ‘backward’, ‘irrational’ or ‘naïve’” (1). It was this precise way of thinking which was able to justify colonisation in the first place. Australia was seen as terra nullius; an empty and un-developed land not recognized as inhabited. Indigenous people were incorrectly perceived as individuals who did not use the land in an efficient manner, rather than as individual nations who engaged with the land in ways that were not intelligible to the colonial eye. This paper considers the tensions inherent in definitions of ‘country’ and the way these tensions are played out through native title claims as white, colonial Australia attempts to recognise (and limit) Indigenous rights to land. It examines such tensions as they appear in the media as an example of how native title issues are made intelligible to the non-Indigenous general public who may otherwise have little knowledge or experience of native title issues. It has been well-documented that the news media play an important role in further disseminating those discourses which dominate in a society, and therefore frequently supports the interests of those in positions of power (Fowler; Hall et. al.). As Stuart Hall argues, this means that the media often reproduces a conservative status quo which in many cases is simply reflective of the positions held by other powerful institutions in society, in this case government, and mining and other commercial interests. This has been found to be the case in past analysis of media coverage of native title, such as work completed by Meadows (which found that media coverage of native title issues focused largely on non-Indigenous perspectives) and Hartley and McKee (who found that media coverage of native title negotiations frequently focused on bureaucratic issues rather than the rights of Indigenous peoples to oppose ‘developments’ on their land). This paper aims to build on this work, and to map the way in which native title, an ongoing issue for many Indigenous groups, figures in a mainstream newspaper at a time when there has not been much mainstream public interest in the process. In order to do this, this paper considered articles which appeared in Australia’s only national newspaper – The Australian – over the six months preceding the start of July 2008. Several main themes ran through these articles, examples of which are provided in the relevant sections. These included: economic interests in native title issues, discourses of white ownership and control of the land, and rhetorical devices which reinforced the battle-like nature of native title negotiations rather than emphasised the rights of Indigenous Australians to their lands. Native Title: Some Definitions and Some Problems The concept of native title itself can be a difficult one to grasp and therefore a brief definition is called for here. According to the National Native Title Tribunal (NNTT) website (www.nntt.gov.au), native title is the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs. The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. Native title is therefore recognised as existing on the basis of certain laws and customs which have been maintained over an area of land despite the disruption caused by colonisation. As such, if native title is to be recognised over an area of country, Indigenous communities have to argue that their cultures and connection with the land have survived colonisation. As the Maori Land Court Chief Judge Joe Williams argues: In Australia the surviving title approach […] requires the Indigenous community to prove in a court or tribunal that colonisation caused them no material injury. This is necessary because, the greater the injury, the smaller the surviving bundle of rights. Communities who were forced off their land lose it. Those whose traditions and languages were beaten out of them at state sponsored mission schools lose all of the resources owned within the matrix of that language and those traditions. This is a perverse result. In reality, of course, colonisation was the greatest calamity in the history of these people on this land. Surviving title asks aboriginal people to pretend that it was not. To prove in court that colonisation caused them no material injury. Communities who were forced off their land are the same communities who are more likely to lose it. As found in previous research (Meadows), these inherent difficulties of the native title process were widely overlooked in recent media reports of native title issues published in The Australian. Due to recent suggestions made by Indigenous Affairs Minister Jenny Macklin for changes to be made to the native title system, The Australian did include reports on the need to ensure that traditional owners share the economic profits of the mining boom. This was seen in an article by Karvelas and Murphy entitled “Labor to Overhaul Native Title Law”. The article states that: Fifteen years after the passage of the historic Mabo legislation, the Rudd Government has flagged sweeping changes to native title to ensure the benefits of the mining boom flow to Aboriginal communities and are not locked up in trusts or frittered away. Indigenous Affairs Minister Jenny Macklin, delivering the third annual Eddie Mabo Lecture in Townsville, said yesterday that native title legislation was too complex and had failed to deliver money to remote Aboriginal communities, despite lucrative agreements with mining companies. (1) Whilst this passage appears supportive of Indigenous Australians in that it argues for their right to share in economic gains made through ‘developments’ on their country, the use of phrases such as ‘frittered away’ imply that Indigenous Australians have made poor use of their ‘lucrative agreements’, and therefore require further intervention in their lives in order to better manage their financial situations. Such an argument further implies that the fact that many remote Indigenous communities continue to live in poverty is the fault of Indigenous Australians’ mismanagement of funds from native title agreements rather than from governmental neglect, thereby locating the blame once more in the hands of Indigenous people rather than in a colonial system of dispossession and regulation. Whilst the extract does continue to state that native title legislation is too complex and has ‘failed to deliver money to remote Aboriginal communities’, the article does not go on to consider other areas in which native title is failing Indigenous people, such as reporting the protection of sacred and ceremonial sites, and provisions for Indigenous peoples to be consulted about developments on their land to which they may be opposed. Whilst native title agreements with companies may contain provisions for these issues, it is rare that there is any regulation for whether or not these provisions are met after an agreement is made (Faircheallaigh). These issues almost never appeared in the media which instead focused on the economic benefits (or lack thereof) stemming from the land rather than the sovereign rights of traditional owners to their country. There are many other difficulties inherent in the native title legislation for Indigenous peoples.

Aboriginal economic relations have been misconstrued as a type of primitive exchange in at least one native title case discussed in this paper. The pursuit by Aboriginal native title claimants of recognition at law of customary economic rights as inherent in, or an adjunct of, native title rights failed in Yarmirr and Others v. Northern Territory of Australia and Others (1998) 156 ALR 370 (the ‘Croker Island case’) for several reasons. The applicant's native title was found to be non‐exclusive of other interests, and a right to trade in resources of the sea was rejected. This case was argued in part by relying on historical material regarding Macassan trading arrangements. The profound alterity of Aboriginal relationships among persons and things, as the Croker Island evidence of property and trade relations demonstrates, have been re‐constituted in legal discourse as an absence of economic relations. In this paper, we argue that there is no sound basis for the distinction made between commercial and non‐commercial native title rights, whether in the Native Title Act 1993 (Commonwealth of Australia), or in recent judicial reasoning. We contend that native title rights and interests constitute a sui generis species of property relations that enable economic rights as conceived in Aboriginal tradition and custom to circulate in the modern market. Aboriginal customary economic relations of and between Aboriginal groupings are markedly distinct from, yet not incommensurable with, the normative conception of economic relations in the Australian market. We argue that a reformulation of the current Australian legal ideas about economic life is necessary for the recognition of Aboriginal economic institutions in native title claims and other economic arenas.

In its first 60 years the High Court showed a complete deference to English precedent, and did not of itself initiate changes to common law doctrines. The High Court took its first steps towards autonomy in common law matters only in the 1960s when it abandoned its policy of following decisions of the House of Lords, thereby ending the practice of automatically incorporating English common law developments into Australian law. It is shown that the Court acquired a willingness to overturn ‘recent’ common law rules (those of 20th century origin) after the abolition of appeals from the High Court to the Privy Council in the 1970s. The elimination of appeals from State Supreme Courts to the Privy Council in the 1980s led to a further broadening of the range of doctrines the Court was prepared to reconsider. Notably, since the 1990s, the Court has shown its willingness, in compelling circumstances, to overrule ancient common law doctrines acquired before Federation. This paper gives a detailed account of the emergence and expansion of the High Court's willingness to overrule common law precedent. It reveals how the High Court's autonomy in common law matters was developed in distinct stages that are linked to Australia's changing legal, political and socio-economic ties with Britain, and its growing sense of an independent national identity.

It is now twenty years since the High Court of Australia designated ‘native title’ as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2]. Common law jurisprudence, however, continues to struggle to create the appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It struggles, in short, to create an appropriate meeting place of laws. In light of recent attempts to amend the Native Title Act 1993 (Cth), it is timely, then, to return to the first question that is addressed in the meeting of laws in Australia, that of the authorisation of laws and the quality and conduct of the meeting place. Here the meeting of Australian common law and Indigenous law in Australia is tracked in terms of a brief history of common law jurisdictional practice, the jurisprudence of the conduct of lawful relations in and through s 223 of the Native Title Act, and official forms of responsibility for lawful relations.

The Sayed Case in the District Court of Western Australia required the court to decide on the issue of a witness in niqab. The defendant, in this case a Muslim man, said that a prosecution witness wearing niqab created a disadvantage for the defense and wanted her to provide her testimony without a face veil. While this is a narrow characterization of the issue for the court, the case sparked much controversy including calls for the government to regulate forms of Muslim women’s dress as was the case in France and Belgium. At present, while many Muslim women in Australia do not cover either their hair or face, the common law and statute do not prescribe or proscribe any form of dress for Australians. The call by some Muslims, such as in the Sayed Case, for the imposition of limits on Muslim dress, employs the scholarship of foreign Muslims who they support. This paper calls for the rejection of such prescriptive formulations of both Australian law and the local expressions of Islamic law. Others such as Katherine Bullock, an Australia Muslim academic, support women’s choice in the broadest terms ‒ and this paper supports the primary sources of Islam, the traditional Islamic scholarship, and is deeply acculurated in the Australian ethic of personality autonomy and choice for all, including Muslims women. While they are both independent works, both Bullock’s work and the common law as articulated by the judge in the Sayed Case are strongly supportive of allowing women the choice of covering themselves. This paper contends that Australian common law, as confirmed in the Sayed Case, is reflective of a broader Muslim consensus and should be retained as the status quo.

The Sayed Case in the District Court of Western Australia required the court to decide on the issue of a witness in niqab. The defendant, in this case a Muslim man, said that a prosecution witness wearing niqab created a disadvantage for the defense and wanted her to provide her testimony without a face veil. While this is a narrow characterization of the issue for the court, the case sparked much controversy including calls for the government to regulate forms of Muslim women’s dress as was the case in France and Belgium. At present, while many Muslim women in Australia do not cover either their hair or face, the common law and statute do not prescribe or proscribe any form of dress for Australians. The call by some Muslims, such as in the Sayed Case, for the imposition of limits on Muslim dress, employs the scholarship of foreign Muslims who they support. This paper calls for the rejection of such prescriptive formulations of both Australian law and the local expressions of Islamic law. Others such as Katherine Bullock, an Australia Muslim academic, support women’s choice in the broadest terms ‒ and this paper supports the primary sources of Islam, the traditional Islamic scholarship, and is deeply acculurated in the Australian ethic of personality autonomy and choice for all, including Muslims women. While they are both independent works, both Bullock’s work and the common law as articulated by the judge in the Sayed Case are strongly supportive of allowing women the choice of covering themselves. This paper contends that Australian common law, as confirmed in the Sayed Case, is reflective of a broader Muslim consensus and should be retained as the status quo.

It is 10 years since the Native Title Act 1993 (Cth) was passed in response to the High Court's Mabo decision. Those years have been marked by an interplay between the common law and statute. Following the High Court's decision in Ward and Yorta Yorta, this interplay has been starkly enunciated and redefined. The Act is dominant and the common law has been almost relegated, at least for the moment, to a historical artefact. Noel Pearson described the process most dramatically: Ten years in the sunshine of the Rule of Law was all that black Australians were fated to enjoy. How is it that such a determinate view of the state of native title could be made a mere 10 years after the promise engendered by the Mabo decision? While there is little doubt that the nature of the rights emerging from both the common law and the Act have been significantly diminished by both the Native Title Amendment Act 1998 (Cth) and the recent decisions in Ward, Yorta Yorta and Wilson v Anderson, it is indisputable that the recognition and protection of native title as a result of Mabo provided the underpinning for a realignment of relationships between indigenous and non-indigenous Australians. Indigenous rights and interests in land can no longer be ignored or cast aside. This article argues that in spite of both legislation and the courts diminishing the concept of native title and the rights associated with it, the process of change unleashed by Mabo and the Native Title Act 1993 (Cth) cannot be reversed. The question now is where this process of change will lead.

Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication. One important effect of this development has been to focus Australian constitutional debate on the long standing and rich tradition of constitutional protection of speech in the United States. Reference to American constitutional law is not unprecedented. The United States Constitution has long been a source for Australian constitutional lawyers. It was extensively referred to by the framers of the Australian Constitution and over the century since the framing, it has been a constant point of reference for the High Court of Australia. However, the influence of the First Amendment is particularly significant since the Bill of Rights and the other rights provisions of the United States Constitution have traditionally been thought of as a part of the American constitutional tradition which Australia does not share. The influence of American constitutional jurisprudence, and specifically First Amendment law, in the High Court of Australia has never been more significant than in the most adventurous of its decisions on the freedom of political communication: Theophanous v Herald and Weekly Times and Stephens v West Australian Newspapers. Here, the High Court significantly expanded the protection of political communication by adopting a rule similar to the New York Times v Sullivan doctrine. That is, the Court limited the capacity of political figures to bring actions for defamation. However, most unusually for recent decisions of the High Court, these cases were reconsidered and considerably reformulated by the Court only three years after they were first announced, in Lange v Australian Broadcasting Commission. The short life of these cases appears to lend fuel to those who argue against the use of the American precedent, and specifically First Amendment jurisprudence, in interpreting the Australian Constitution. In this article, I will join those who have expressed such concerns. My focus, however, is somewhat different from previous analyses. I will consider a difference between the two systems that has been overlooked: the different jurisdictions of the highest appellate courts. The High Court, unlike the Supreme Court of the United States, has jurisdiction to hear appeals from all courts, state and federal. In hearing these appeals, it has jurisdiction over matters of common law as well as federal law and the Constitution. The significance of the High Court's role as the interpreter of the common law was highlighted by Theophanous and Stephens. In those cases, argument was addressed to the High Court on both the protection of freedom of speech by the Constitution and by the common law of defamation. Had it been so inclined, the Court could have avoided the constitutional issue entirely through a decision on the common law. However, the principal basis of the decision of the majority was the Constitution. In my view, the Court’s failure to appreciate the significance of its common law jurisdiction helps explain where the High Court went wrong in Theophanous and Stephens, and how it might have avoided facing so serious a challenge to recent cases as it did in Lange. Before proceeding to make this point, however, I devote Part I of this article to explaining the nature and origins of the High Court’s jurisdiction on matters of common law and compare it to the jurisdiction of the United States Supreme Court. In Part II, I outline Theophanous and Stephens and compare the constitutional approach of the majority to the common law approach of two of the dissenting Justices. Part III contains the heart of my argument. I consider how the High Court ought to proceed when a case before it can be decided either by the common law or by interpretation of the Constitution. I argue that the common law brings with it significant advantages so that in many cases where the two overlap, the High Court ought to prefer the common law and I use Theophanous and Stephens to illustrate my point. In Part IV, I identify more precisely the kinds of cases in which the benefits of a common law solution should lead the High Court to prefer it and defend my argument against some of the most obvious objections to it. Finally, in Part V, I consider the reformulation of the Theophanous doctrine in Lange and the extent to which that decision is responsive to the critique I have launched.

This seminar is a reflection on legal practice in native title. It considers whether the common law, the Native Title Act, and the way lawyers and anthropologists practise together covertly assimilate or give the appearance of assimilating indigenous people to the dominant culture, thus destroying the basis on which native title is established. Traditional owners are the 'other' within the dominant culture. Eddie Mabo used the common law to achieve his ends, without necessarily internalising the dominant culture. However the development of the law since Mabo (No 2) has altered the relationship between the law and claimants. The courts have conceived of native title as sui generis, often denying it the benefits of the common law, or else they are obsessed with putting a common law label on native title rights and interests. This means that native title, which is defined by common law as customary law, fails to measure up to our own common law standards. Where it does, it becomes part of the dominant system and the values and (legal) culture of the dominant group is impliedly internalised by traditional owners as part of recognition. The Native Title Act now squeezes Eddie Mabo's use of common law into a process driven administrative/judicial hybrid - it requires adherence to the dominant, and the dominant recognises the participants as of the dominant culture - there is no other place for them (eg alongside). Lawyers, as part of the dominant system, use peoples' stories, knowledge etc as evidence, taking it out of traditional owners’ framework and into the common law. If lawyers don't allow their clients’ voice to be heard (as to identity, whether they accept and adhere to the dominant paradigm) then are lawyers complicit in creating an understanding of traditional owners as having internalised the dominant value system? The common law’s perception of traditional owners has dismantled culture to demonstrate the ongoing integrity of traditional law and custom (required to prove native title). In this process the common law takes ownership thus destroying what it apparently sought to protect.

The Evidence (Discreditable Conduct) Amendment Act 2011 (SA) came into operation on 1 June 2012. The Act makes important changes to the admission and use of evidence of bad character in criminal proceedings. The new Act is intended to clarify and refine what has long proved to be a complex and confusing area of the criminal law. This article first explains the context of the new Act by outlining the history of the use of bad character evidence (including the particular types of bad character evidence; propensity evidence, similar fact evidence and context or background evidence) in the Australian common law. The article does this because the new Act is influenced by the common law. The article then compares and contrasts the common law with the new Act and its initial judicial interpretation, while conducting a critical analysis of the new Act. This article notes that the operation of the new Act rests on two assumptions, first, that evidence of bad character can be adduced in wider circumstances than the current Australian common law provides without unfairly prejudicing the accused and, secondly, that juries can understand and apply judicial directions as to the appropriate use of bad character evidence, including the use of judicial directions for limited purposes. Both of these assumptions have been often doubted. This article examines the two assumptions, referring to research about jury decision making, and concludes that they are both sound. This supports the approach taken by the Act, in which bad character evidence can be properly used in somewhat wider circumstances than the common law would allow. Finally, this article considers the intended operation of the new Act and asks whether it is likely to prove successful in bringing some semblance of clarity and order to this notoriously difficult area and justify the confidence expressed in it by the South Australian Attorney-General and resolve what he aptly described as the Schleswig-Holstein question of the criminal law.

This chapter considers common law versus statutory approaches to enforcing foreign judgments through an Australian lens, albeit a lens that analyses how the general approaches of Australian and other common law countries affect the United States. It emphasizes, in particular, the long-arm jurisdictional double standard and how that works, mentions some U.S. responses to this, and, not without trepidation by the author, draws some conclusions about the utility of a U.S. Federal statute. Further, if there was a Federal statute, which contained a reciprocity requirement, greater incentives might exist for countries-again, countries like Australia-to modify their own recognition and enforcement practice, particularly in relation to long-arm jurisdiction, and so diminish the double standard which presently bedevils the Australian common law in this area. Finally, the chapter draws attention to some Trans-Tasman developments, and some Trans-Pacific possibilities. Keywords: Australian judgment; common law; foreign judgments; long-arm jurisdictional double standard; statutory approaches; Trans-Pacific developments; Trans-Tasman developments; U.S. federal statute