Aboriginal I Claims to Seas in Australia

2002 ◽  
Vol 17 (1) ◽  
pp. 1-31
Author(s):  
Victor Prescott ◽  
Stephen Davis
Keyword(s):  
Western Australia ◽  
Common Law ◽  
High Court ◽  
Native Title ◽  
Sea Bed ◽  
The Common ◽  
High Court Of Australia

AbstractIn 1992 the famous judgment in the Mabo (No.2 case), in the High Court of Australia, determined that the common law of Australia recognised and protected native title claims in accordance with traditional laws and customs. Within six years nearly 800 claims had been lodged with the Native Title Tribunal and 70 per cent of them were in Queensland and Western Australia. Nearly one-third of those claims included areas of sea. Before 1992 scholars had demonstrated that clan estates included marine sections along tropical coasts. Only two claims to seas or sea-bed have been tested in the courts. This paper reviews five questions that will recur in future similar cases. They deal with the location of claims, their possible extent, the evidence that will justify them, the delimitation of successful claims and accommodations regarding the use of claimed seas between indigenous and other peoples.

Part I Foundations, Ch.2 Settlement

2018 ◽  
Author(s):  
Waugh John
Keyword(s):  
Indigenous Peoples ◽  
Common Law ◽  
Legal Framework ◽  
Land Ownership ◽  
High Court ◽  
Native Title ◽  
The Status ◽  
The Common ◽  
The Law ◽  
Indigenous Land

This chapter explores the law of Australian colonization and its relationship with the laws of Australia's Indigenous peoples. A line of legal continuity links the Australian Constitution to the imposition of British law made during the colonization of Australia and to the decisions of colonial courts that treated the Australian colonies as colonies of settlement. Those decisions, after some initial doubts, displaced the diverse and intricate laws of Australia’s Indigenous peoples, who have occupied the continent for tens of thousands of years. Only in relation to native title to land have later courts made a major reassessment of the status of Indigenous laws. There, the High Court has challenged the factual assumptions of earlier decisions and found accommodation for Indigenous land ownership within the common law, but left the legal framework of colonization otherwise intact.

scholarly journals Citation as a measure of ‘impact’: Female legal academics at a disadvantage?

2019 ◽  
Vol 44 (4) ◽  
pp. 267-274
Author(s):  
Katy Barnett
Keyword(s):  
United States ◽  
Preliminary Data ◽  
Common Law ◽  
Academic Work ◽  
The United States ◽  
High Court ◽  
Elite Universities ◽  
The Common ◽  
High Court Of Australia

This article discusses whether the demand that law academics show citations by a superior court is disadvantageous to women, using the citations of academic work by the High Court of Australia from 2015, 2016 and 2017. The preliminary data show that male academics were cited much more often than female academics (even for works written after 1999), and academics who were cited were associated primarily with ‘elite’ universities in Australia, England and the United States. The use of citation by superior courts may not really show ‘impact’ but may rather indicate that the common law displays historical and unconscious biases.

Consideration and the Joint Promisee

1978 ◽  
Vol 37 (2) ◽  
pp. 301-312 ◽  
Author(s):  
Brian Coote
Keyword(s):  
Common Law ◽  
High Court ◽  
Important Group ◽  
Reasonable Degree ◽  
The Common ◽  
High Court Of Australia ◽  
Husband And Wife

It is one of the best-known axioms of the common law of contract that consideration must move from the promisee. Expanded, this means that no person can in contract enforce a promise for which he has not provided consideration. As a principle, it has on its side the highest authority and a reasonable degree of antiquity.Ten years ago, however, the High Court of Australia came up with a formula which, while purporting to respect the principle, would, if accepted, have the effect of reducing its impact in a potentially important group of cases. In Coulls v. Bagot's Executor and Trustee Co. Ltd. four of the five High Court judges expressed the view that a joint promisee, if she were party to a contract, could sue to enforce it notwithstanding that she had not herself furnished any part of the consideration. The case concerned a widow whose late husband had contracted to grant a licence to a quarrying company for the extraction of metal from a quarry which the husband owned. Under the contract royalties were to be paid to the husband and wife jointly while they both lived, and there after to the survivor of them. The wife's only part in the proceedings had been to append her signature to the contract document. Barwick C.J. and Windeyer J. (dissenting) held that the plaintiff was a party to the contract and, as a joint promisee, could enforce it notwith-standing that her husband alone had provided the consideration. McTiernan, Taylor and Owen JJ. agreed that if she had been a party the fact that it was her husband who had provided the consideration would not have been an impediment to her.

scholarly journals Reconsidering Osmond

2019 ◽  
Vol 8 (1) ◽  
Author(s):  
Charles Noonan
Keyword(s):  
Public Service ◽  
Common Law ◽  
Administrative Law ◽  
Decision Makers ◽  
High Court ◽  
Natural Justice ◽  
The Past ◽  
The Common ◽  
High Court Of Australia ◽  
Made In

Over thirty years has now passed since the High Court of Australia held in Public Service Board (NSW) v Osmond that the common law imposes no obligation on administrative decision-makers to provide reasons for their decisions. Despite this, significant developments made in Australian administrative law since Osmond was decided may in fact cause major difficulties to a rule that has survived the past thirty years largely unscathed. In particular, this paper demonstrates that although the emergence of Li unreasonableness is unlikely to give rise to a common law duty to provide reasons, the principles of natural justice provide a solid doctrinal foundation for the High Court to reconsider the position expressed in Osmond. 

scholarly journals Children in the Criminal Justice System: the High Court Cases of GW and RP

2018 ◽  
Vol 7 (1) ◽  
pp. 14-21
Author(s):  
Gregor Urbas ◽  
Michael Harris
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Responsibility ◽  
Common Law ◽  
Criminal Proceedings ◽  
High Court ◽  
First Case ◽  
The Common ◽  
High Court Of Australia

In two decisions handed down in 2016, the High Court of Australia considered legal measures designed to deal with children in the criminal justice system in an age-appropriate manner. The first case, The Queen v GW, was a prosecution appeal involving the unsworn evidence of a child witness. In this decision, the High Court reviewed the common law and statutory background to unsworn evidence, and gave important guidance on the proper approach to dealing with such evidence in proceedings. The second case was RP v The Queen, which involved the criminal responsibility of a child defendant, and in particular the application of the doli incapax presumption. In this decision, the High Court reviewed the common law background to doli incapax, and gave guidance on its application in criminal proceedings. This commentary discusses both cases and the principles underlying the High Court’s reasoning.

Do the Walls Have Ears? Indigenous Title and Courts in Australia

2000 ◽  
Vol 28 (2) ◽  
pp. 185-212 ◽  
Author(s):  
Peter R. A. Gray
Keyword(s):  
Land Tenure ◽  
Legal System ◽  
Common Law ◽  
Native Title ◽  
Life And Death ◽  
Indigenous Law ◽  
The Common ◽  
Aboriginal Law ◽  
High Court Of Australia

Australia has always been a place of legal pluralism. Before the British colonists brought with them the common law and the statute law of England, there were indigenous systems of law. Indeed, there were very many of them. They did not cease to exist just because English law was imported. Sadly, for over 200 years, their existence was not officially recognised by the Anglo-Australian legal system. In 1992, in Mabo v State of Queensland [No.2], the High Court of Australia did more than “invent” native title. It made this nation officially a legally pluralist one. The common law now recognises, and gives effect to, indigenous law with respect to land tenure and, possibly, with respect to other aspects of life and death as well. Native title is what indigenous law says it is, no more and no less, except to the extent that non-indigenous law operates to “extinguish” or “impair” native title. The first inquiry in any application for a determination of native title must be as to the continuing existence of an indigenous legal system and the manner in which that legal system deals with entitlements in relation to the relevant land. If such a system survives and gives entitlement to people, it must then be asked whether non-Aboriginal law has “extinguished” or “impaired” those entitlements. In truth, this inquiry is as to whether the non-indigenous legal system has withdrawn its recognition of those entitlements, because of its creation of interests, or recognition of activities, incompatible with the continuing existence of indigenous entitlements. The entitlements continue to exist in indigenous law, despite any “extinguishment” or “impairment.”

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

scholarly journals INTERPRETATION AND RECTIFICATION IN AUSTRALIA

2017 ◽  
Vol 76 (3) ◽  
pp. 483-486 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
New South ◽  
Common Law ◽  
New South Wales ◽  
High Court ◽  
South Wales ◽  
Housing Corporation ◽  
Lower Courts ◽  
The Law ◽  
High Court Of Australia

Both interpretation and rectification continue to pose problems. Difficulties are compounded by blurring the boundary between the two. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47, the High Court of Australia overturned the decisions of the lower courts which had held that performance bonds could be interpreted in a “loose” manner in order to correct a mistake. However, the documents could be rectified in order to reflect the actual intentions of the parties. This decision should be welcomed: the mistake was more appropriately corrected through the equitable jurisdiction than at common law. Significantly, the concurring judgments of French C.J. and Kiefel J. highlight that the law of rectification now seems to be different in Australia from the law in England. It is to be hoped that the English approach will soon be revisited (see further P. Davies, “Rectification versus Interpretation” [2016] C.L.J. 62).

Binding non-signatories to arbitration agreements—who are persons ‘claiming through or under’ a party?

2019 ◽  
Vol 35 (3) ◽  
pp. 375-386
Author(s):  
Vicky Priskich
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
International Arbitration ◽  
Appellate Courts ◽  
High Court ◽  
Appeal Court ◽  
The Status ◽  
Court Proceedings ◽  
The Uk ◽  
High Court Of Australia

Abstract The International Arbitration Acts of the UK, Australia, Singapore, and Hong Kong recognize that third persons who are non-signatories to an arbitration agreement but who are ‘claiming through or under’ a party to the arbitration agreement have the status of a party.1 In the UK and Singapore that status means not only that court proceedings involving such non-signatories may be stayed in favour of arbitration but it also binds them to an award. In Hong Kong that status binds non-signatories to an award. In Australia, that status affects whether court proceedings involving non-signatories are stayed in favour of arbitration. A recent judgment by a majority of Australia’s highest appeal court, the High Court of Australia, in Rinehart v Hancock Prospecting Pty Ltd2 has taken a different approach to that prevailing in England as to the range of persons who are capable of ‘claiming through or under’ a party to the arbitration agreement, thereby significantly expanding the range of disputes involving non-signatories that must be referred to arbitration.3 The issue has not arisen for determination before appellate courts in Singapore or Hong Kong. Rinehart therefore represents an important development in common law jurisdictions, compelling arbitration between a signatory and non-signatory to an arbitration agreement.

Sign in / Sign up

Export Citation Format

Share Document