Justice Brennan And Settled Colonies
In his judgment in the 1992 Mabo decision, Justice Brennan considered these issues:
'When British colonists went out to other inhabited parts of the world, including New South Wales, and settled there under the protection of the forces of the Crown, so that the Crown acquired sovereignty recognised by the European family of nations under the enlarged notion of terra nullius, it was necessary for the common law to prescribe a doctrine relating to the law to be applied in such colonies, for sovereignty imports supreme legal authority. The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a "desert uninhabited" country. The hypothesis being that there was no local law already in existence in the territory the law of England became the law of the territory... Colonies of this kind were called "settled colonies". Ex hypothesi the indigenous inhabitants of a settled colony had no recognised sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were taken to be without laws, without a sovereign and primitive in their social organisation.'
'When British colonists went out to other inhabited parts of the world, including New South Wales, and settled there under the protection of the forces of the Crown, so that the Crown acquired sovereignty recognised by the European family of nations under the enlarged notion of terra nullius, it was necessary for the common law to prescribe a doctrine relating to the law to be applied in such colonies, for sovereignty imports supreme legal authority. The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a "desert uninhabited" country. The hypothesis being that there was no local law already in existence in the territory the law of England became the law of the territory... Colonies of this kind were called "settled colonies". Ex hypothesi the indigenous inhabitants of a settled colony had no recognised sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were taken to be without laws, without a sovereign and primitive in their social organisation.'
Keywords: Brennan, Justice Gerard, colonialism, Common Law, High Court of Australia, terra nullius, 1992
Still: Courtesy High Court of Australia.
Author: Nettheim, Garth
Source: Brennan, Justice
Author: Nettheim, Garth
Source: Brennan, Justice