King George III's Prerogative Analysis

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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…show more content…
The only case to date directly addressing this issue is Nabalco v Milirrpum, the Gove Land Rights Case, which supported this view. Blackburn J’s assertion that “on the foundation of New South Wales … and of South Australia, every square inch of territory in the colony became the property of the Crown” is currently being challenged by Mabo. The High Court’s decision in Mabo will require a re-examination of the notion of land rights at common law, whilst N.L.C. v Commonwealth carries this potential
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