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VOL. 80 PART 5 SEPTEMBER 2022
Brennan, had allowed such acquisition only where the land was truly
“desert” and “uninhabited”.31 In refusing to enforce the contemporary
results of this allegedly historical doctrine—the “enlarged notion of terra
nullius”—Justice Brennan was explicit that his court could modify the common
law to account for the inequities history had left in Australian society:
Although our law is the prisoner of its history, it is not now bound by
decisions of courts in the hierarchy of an Empire then concerned with
the development of its colonies. … The law of this country is entirely
free of Imperial control. The law which governs Australia is Australian
law. … Increasingly since 1968 … the common law of Australia has been
substantially in the hands of this Court. Here rests the ultimate responsibility
of declaring the law of the nation. … The peace and order of Australian
society is built on the legal system. It can be modified to bring it
into conformity with contemporary notions of justice and human rights
… No previous case can command unquestioning adherence if the rule
it expresses seriously offends the values of justice and human rights
(especially equality before the law) which are aspirations of the contemporary
Australian legal system. If a postulated rule of the common law
expressed in earlier cases seriously offends those contemporary values,
the question arises whether the rule should be maintained and applied.
Whenever such a question arises, it is necessary to assess whether the
particular rule is an essential doctrine of our legal system and whether,
if the rule were to be overturned, the disturbance to be apprehended
would be disproportionate to the benefit flowing from the overturning.32
In this manner, Justice Brennan overruled historical precedent in a way
not often seen in the common law world. He refused to follow older judgments
that had been based on “the enlarged notion of terra nullius”: “the
Court can overrule the existing authorities, discarding the distinction
between inhabited colonies that were terra nullius and those which were
not. … The fiction by which the rights and interests of indigenous inhabitants
in land were treated as non-existent was justified by a policy which
has no place in the contemporary law of this country”.33
In the result, six out of seven members of the High Court agreed that Australian
common law should reject “the notion that, when the Crown
acquired sovereignty over territory which is now part of Australia it thereby
acquired the absolute beneficial ownership of the land therein”.34 The court
thus took the British Crown’s sovereignty as a given—indeed, it concluded
that the acquisition of sovereignty by a country could not be challenged in
municipal (i.e., national) courts, as it is a matter of international law35—but
accepted that “the antecedent rights and interests in land possessed by the
indigenous inhabitants of the territory survived the change in sovereignty”
and now constitute “a burden on the radical title of the Crown”.36
After the High Court’s decision, it became “repeated wisdom that in
Mabo, the High Court ‘rejected’ or ‘reversed’ the ‘doctrine of terra nullius’,