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Recognition of Indigenous Land Rights in Australia

Discuss about the Australian Constitution.

Terra nullius is a Latin term which has been derived from the law of Rome which means a long which no one has possession over that is land not belonging to anyone. This term has been used in the international law widely for describing such territories that have not been subjected to any of the state’s sovereignty or over which there was initially a sovereign however this sovereign either implicitly or expressly relinquished the sovereignty that it had.

In Australia a significant case being the “Mabo” case (Mabo v. Queensland (No. 2)) in which land right was recognized by the Meriam people who traditionally owned in the Torres Strait the Murray Islands including the islands of Dauer, Waier, and Mer. Six of the seven judges of the High Court on 3rd June 1992 upheld the claims and made a ruling that the continents land were not “terra nullius” or “land which belongs to no-one”  when the settlement by the Europeans began, and there was an entitlement that the Meriam people had entitlements on the occupation, use, possession and enjoyment against the whole world over the Murray Islands land.

In this case, the legal doctrine of native title was inserted by the High Court into the law of Australia. It was recognized as a fact by the High Court that in the Australia the Indigenous people who lived there for thousands of years and who had been enjoying over the land rights according to their own customs and law. They piece by piece had been disposed of the land that belonged to them when the colony grew, and this dispossession underwrote Australia's development as a nation. Thus, the court decided not to apply the doctrine of terra nullius to the case and declared the possession of the land to the Meriam people. 

Under the Constitution of Australia Section 109 provides that when there is an inconsistency of the law of the State with the Commonwealth law then it will be the Commonwealth law which shall prevail for the law of the State and the law of the state shall be held to be invalid to the extent that it is inconsistent with the Commonwealth law.

The term "invalid" does not mean under section 109 that it is in the positivist sense that the State Law would become invalid and that there is a lack of the power of the parliament of the state to pass the law. Though the State Law is enacted with complete validity, it is just that does not continue to operate. Thus, for section 109 to be in operation, it is required that there should be a valid Commonwealth law and a valid State Law (Carter v Egg and Egg Pulp Marketing Board (Vic) , 1942).

The Australian Parliament, the major subject on which it can enact laws has been enumerated under section 51 of the Constitution. However under section 51 the subjects that have been enumerated do not fall exclusively under the purview of the Parliament of Australia. They are rather concurrent in the sense that the parliaments of the State too can make laws of the subjects that have been enumerated under the section 51 however under section 109 of the Constitution the State Laws shall be trumped over by the federal laws. In a Constitutional idiom, there shall be an overriding effect that the federal law will have over the State laws that are inconsistent and there is a very broad jurisprudence that has been given by the Australian High Court with respect to this.

Native Title and the Doctrine of Terra Nullius

The idea of division of power is also called "separation of powers." The Constitution of the United States has influenced heavily this philosophy as per which the Executive, Judicial and Legislative branches of the government of United States have been kept separate from each other to ensure that there is no abuse of powers.

The Constitution of Australia in the first three chapters defines largely three different groups, the Executive, the Judiciary and the Parliament and the roles that are played by these groups in the governance of Australia.  The power of managing and making law has been divided between these three groups. The principle of separation of power is what the division has been based on. There is, however, no complete separation of power in Australia because some roles of the Executive, Judiciary, and the Parliament are overlapping with each other. An example of this is that the ministers and the Prime Minister are a part of the Parliament and the Executive. The judges of the High Court, ministers, and the Prime Minister are appointed officially by the Governor-General, who is the Executive's and the Parliament's part. The Constitution's Section 61 states that the Commonwealth's executive power is vested in the Queen, and the Governor-General as the representative of the Queen shall be exercising these powers. Meaning thereby that there are certain powers which have been vested with the Governor-General for acting on the Queen's behalf, however, the Governor-General's role is not just defined under the Australian Constitution, but it is also defined by tradition and custom. 

Note: An imagery representation of the division of power in Australia


A fixture at the most basis level means something which to the land is attached in a manner that the object becomes the land's part. Therefore, upon selling of the land, it shall include the fixtures on the land as well.

Though theoretically the concept of fixture seems to be quite simple however there are various considerations which are required to be taken into account while determining whether there object that is to the land attached should be considered as a fixture or whether it is chattel (explained below) and establishing this difference may not always be simple in some regards it may also be so that the test for considering whether an object is a chattel or a fixture proves to be a superficial test. 

Personal properties which cannot be moved are Chattels, such as household appliances or furniture. Chattels can be included additionally when the land is being sold or moved, and there are cases where the chattels have become fixtures with the ability of being moved by the third party if the actual rights of the property are held by them.

There is as mentioned above a difficulty that arises in ascertaining the whether the property is a chattel or a fixture and this can be seen in the case of Australian Provincial Assurance Co Ltd v Coroneo wherein it was held by the New South Wales Supreme Court whether or not seats which had been bolted to the floor and were attached to each other in a theatre could be considered as chattels or fixtures. The court ultimately held that these seats were chattels and not fixtures (Assurance Co Ltd v Coroneo, 1938). 

Understanding Section 109 of the Australian Constitution

Tenant Chattels

Chattels which are fittings and fixtures and perhaps even the furnishing of the tenant which the previous tenants leave in the premises of the landlord and are still there on the property when the property is re-let by the landlord to another tenant.  Fixtures are generally that which are attached to the land in a way that it becomes part of the law in law. Meaning thereby the chattels that the tenants owned will convert into fixtures and becomes the land’s part and therefore this chattel upon being affixed to the land becomes the land owner’s property thus, converting the tenant’s chattel into landlord’s fixtures.

When determining whether a property is a fixture that will pass on to the landlord or will it remain with the tenant the Territory or State legislation may be needed to be considered. A fixture is a Landlord's fixture which the tenant cannot remove. This can either be a fixture which at the time of leasing the property was attached to the land or the tenant during the tenancy installed the same. For purposes of dilapidations there normally is no difference between the items and fixtures of the landlord that are the parcel and part of the building.  

A bailment generally occurs when voluntarily possession is received by the bailee however the goods’ ownership is retained with the bailor who has the right of the receiving back the goods at the time when there is an end to the bailment.  Bailment is stated to be a “sui generis” subject. It is stated that it tends to overlap with property laws, law contract, and tort, without being a part of these laws. It is not even regarded to be a trust, since it is only chattels that bailment deals with, thus excluding it from the purview of having the right over equitable interest and land as well. 

An act of the possessor or owner of goods who will be the bailor, transferring the goods possession to an another individual who will be the bailee constitutes a bailment with the understanding there will be a redelivery of these goods as soon as the condition or time for them being transferred elapses or has been completed. In most of the bailment cases the contract is between bailee and bailor however even without a contract a bailment can exist.

There are various types of bailments which exist, and the classification that exists in the present is based on the Cogg v. Bernard case largely, these are (Coggs v Bernard, 1703):

  • Gratuitous bailments.
  • Bailments for reward.

The bailees have had five main duties:

  1. They have to take good care of the good

Traditionally the view was that the gratuitous bailee unless there has been gross negligence there is no breach of duty on this part the premise being that the more benefit which is received means more standard of care that is owed (Coggs v Bernard (1703)).  However, the current view is that duty to take care responsibly is something that that is owed in all the circumstances however what circumstance shall amount to a breach shall be dependent upon the bailment's nature and circumstances nature (W.G.H. Nominees Pty. Ltd. v. Tomblin, 1985).

  1. Possession of the goods bailed should be retained

The Division of Power in Australia

It is necessary for the bailee to ensure that the possession of the products that have been bailed is retained.

  1. Redelivery or Return of goods

It is the duty of the bailee to ensure that the goods that there will be a redelivery of the goods of the bailor as soon as the condition or time for them being transferred elapses or has been completed.

  1. There is no conversion or misuse of goods that have been bailed

This duty is to ensure that the bailee does not covert or steal the goods (Morris v CW Martin & Sons). Conversation means appropriating the property of another person for their own use. In the case of Morris v CW Martin & Sons the bailor who was the owner delivered to a furrier fur for cleaning it and this was sub-bailed by the furrier to a fur cleaner specialist (Morris v CW Martin & Sons Ltd, 1966).  The fur was stole by one of the specialist's employees. The court opined that there had been a breach of duty by the furrier since there was the duty to them for ensuring that the goods were not stolen.

  1. There is no dispute towards the title of the bailor

It is the duty of the bailee to ensure that the title of the bailor is not disputed in any manner. 

In the context of the law of contract a clause of exclusion is a term in a contract which seeks to either exclude or limit the liability for breach of contract. Clauses of exclusion are clauses which are written down usually, which states that upon the happening of certain events one of the parties shall not be held responsible. An example of this is when joining a gym the contract of gym usually includes a clause that states that during the exercise upon the occurrence of injury the gym shall not be responsible for it.  For a fee is a car is parked in public car-park for a given fee there will be the contract that states that theft or any damage to the vehicle while the car is parked there. As long as these clauses have been included in the contract properly and are not in contradiction of law, the clause shall be valid.

A contract between two parties might provide that one of the parties will not be held liable in case there is a breach that has been caused due to the employee’s negligence of if one of the parties is found guilty of a breach under the contract they will be liable to pay an amount for the damage that has been caused. If drafted properly these clauses shall have effective as exclusion. However there are certain statutory provisions which limit or prevent the exclusion clauses use and most common are the restriction on these clauses in contracts relating to consumers.

The verboseness of these clauses is the result of arguably a traditional approach that is contortionist taken by the courts of common law to the exclusion clauses' interpretation. The High Court and House of Lords in its recent decisions have been of moving away from the tendency of construing the language into not meaning patently what patently the language is trying to state. This exclusion clauses’ newfound resilience comes at a price which is very high. This generous approach towards the clause under common law has left a principle that had been well established as doctrine and principle have now come in doubt. In Australia, the Supreme Court continues to be divided when it comes to the applicability of rules with respect to the clauses of exclusion which is often cited through the Canada Steamship Lines v. The King case (Canada Steamship Lines v. The King case, 1952). 

Coggs v Bernard , 2 Ld Raym 909 (1703).

Assurance Co Ltd v Coroneo, 38 SR (NSW) 700 (1938).

Carter v Egg and Egg Pulp Marketing Board (Vic) , HCA 30 (1942).

Canada Steamship Lines v. The King case, UKPC 1 (1952).

Morris v CW Martin & Sons Ltd, 1 QB 716 (1966).

W.G.H. Nominees Pty. Ltd. v. Tomblin, 39 SASR 117 (1985).

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