Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case

1974 ◽  
Vol 6 (1) ◽  
pp. 150-173
Author(s):  
L. J. Priestley
Keyword(s):  
18Th Century ◽  
Common Law ◽  
Land Rights ◽  
Limited Extent ◽  
Native Title ◽  
The Common ◽  
The Law

Mr Priestley disagrees with the view expressed by Dr Hookey in his article “The Gove Land Rights Case”, that to a limited extent the common law recognized native communal title to land. Instead he suggests that the decision in Johnson v. M'Intosh which Dr Hookey regards as an exposition of this common law position, was an exposition of the law of Virginia as it had developed to the end of the 18th century. As such it may give guidance in the development of Australian law but similar conclusions should be drawn only in circumstances of sufficiently similar commencement and development. Mr Priestley concludes that in Milirrpum v. Nabalco Pty Ltd there was not evidence of such similarity before the court.

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.

Land Tenure, Property, and Development

2000 ◽  
Author(s):  
Peter Dale ◽  
John McLaughlin
Keyword(s):  
Land Tenure ◽  
Common Law ◽  
Land Rights ◽  
Customary Law ◽  
Natural Object ◽  
Statutory Law ◽  
Present Context ◽  
The Common ◽  
The Law ◽  
Over Time

The law provides a complex set of rules that have evolved within each society to ensure its orderly running and the peaceful behaviour of its members. The law may take several forms, amongst which broadly speaking, there is statutory law and customary law. Under statutory law, all rules and regulations are written down and codified; under customary law there is no written record but it is assumed that the code is well known by all members of society. In some jurisdictions there is the common law which grew out of customary law; over time the judgements of the courts have been written down and now create precedents whereby new cases can be judged. many jurisdictions have legal regimes that combine in some fashion statutory and customary law. The law of property deals both with relations between people (in personam) and of persons to things (in rem). The law recognizes different types of interest in property and makes a distinction between the physical objects and the abstract rights associated with their use. Land as real or immovable property is in many jurisdictions taken to include all things attached to it such as buildings and other permanent fixtures. It also usually includes the minerals below the soil and the air above, unless these are specifically excluded. In some countries, however, a distinction is made between ‘land’ as a natural object with soil and a surface and ‘property’, which is taken to mean the buildings and other man-made objects attached to the land. In the present context, land will be regarded as including all construction and development, while the word ‘property’ will normally be used more specifically to relate to the abstract nature of land. Rights describe what may be done with property; they are abstract but none the less real in their effect. They have been described as being like a bundle of sticks associated with any property, one stick for each thing that can be done with the property.

Does Aboriginal Law Now Run in Australia?

1979 ◽  
Vol 10 (2) ◽  
pp. 161-187 ◽  
Author(s):  
Barbara Hocking
Keyword(s):  
United States ◽  
Property Rights ◽  
Common Law ◽  
Land Rights ◽  
Native Title ◽  
Legal Problems ◽  
Critical Scrutiny ◽  
The Common ◽  
Aboriginal Law

The author examines development through the cases of recognition by the common law of the doctrine that customary traditional native law and native title is recognized in colonies settled by the British, She concludes that at common law when the British Crown acquires sovereignty over a territory, pre-existing property rights are preserved and that a clear expression of intention to the contrary is necessary to extinguish them. She then notes a number of relevant United States and Canadian cases on the issue of the land rights of their aboriginal inhabitants. The decision in Millirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia is subjected to critical scrutiny and it is concluded that the decision does not concur with the established common law. Finally, some of the legal problems involved in the recognition, by statute, of aboriginal land rights are discussed.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

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 Thabo Meli Revisited: The Pernicious Effects of Result-Driven Decisions

2013 ◽  
Vol 77 (1) ◽  
pp. 41-55
Author(s):  
Kenneth J. Arenson
Keyword(s):  
United Kingdom ◽  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Limited Extent ◽  
Natural Consequence ◽  
Privy Council ◽  
The Public ◽  
Adversarial System ◽  
The Common

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

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