Australias black legal history Essay

AUSTRALIA’S BLACK LEGAL HISTORY

Formally representing King George III’s prerogative power, Captain Cook’s symbolic claiming of Australia for Britain on January 26 1788 interrupted a 40,000 year land use tradition that had existed under a grundnorm quite alien to that which Australian Aboriginals were to be subjugated.

THE PREROGATIVE POWERS AVAILABLE TO GEORGE III IN 1788

English law assigns powers to acquire new territory to the Crown as part of its prerogative.”   As the Crown has discretion to determine the extent of its dominions, it is informative to consider its intentions concerning territorial acquisition. King George III’s exercise of his prerogative powers between 1788 and 1823 become a crucial factor affecting New South Wales Aboriginal inhabitants.

Disputes concerning whether Australia would become a settled or conquered colony were determined by the exercise of prerogative powers relating to the conduct of foreign affairs, and as such, were unchallengeable by the courts , providing the Crown an opportunity to play a pivotal role in determining territorial acquisition.   Much of the unease expressed in the cases following stem from use of this prerogative and affirmation of Australia as a settled colony.

William and Mary’s enthronement following James II’s departure during the Glorious Revolution provided Parliament with unassailable rights to legislate for colonial territories, though Parliamentarian concern with domestic politics induced contentment with the Crown and its Ministers’ administration of colonial affairs.   As the Crown retained its prerogatives except where removed by Parliament, opportunities to exploit prerogative powers remained.   Increasing use of prerogative powers to establish mechanisms for regulating colonial affairs validated intricate systems of legal control, legitimating Crown intervention in wideranging colonial matters.

Calvin’s Case , the leading authority concerning territorial acquisition, determined...