Ngura Weeks 1-5

What year were the Yirrkala Bark Petitions?

1963

Magna Carta 1215

Foundational legal document issued by King John of England. Established formal limits on royal power (King subject to rule of law) and protections for aristocratic rights and privileges (e.g. no taxation before consent). Post MC, collaboration between monarch and nobility became more institutionalised (Appleby)

How does Appleby describe parliament in the 17th century?

An event not an institution (ad hoc gathering of ruling elites).

1640s english civil war

1642-1649; War between Charles I and Parliament over King. P wins, showing that monarchical authority could be challenged. (Appleby)

According to the Whig interpretation of the period, why was there conflict between Parliament and Charles I in 1642-49?

A fundamental clash of constitutional principle between a despotic monarchy seeking to disregard law, liberty and limited government and a Parliament valiantly committed to defending and extending them. (Appelby)

What is responsible government

A system establishing the accountability of the executive government to Parliament. (Appelby)

Explain the origins of “Responsible Government”

1688 Glorious Revolution, which established the necessity for monarchs and their advisers to govern through & secure support within Parliament. However, many specific features of RG (e.g. exec collectively responsible to P by commanding a majority of votes in Lower House, ministers who are senior members exec must be members of P) were only established in 2nd half of 19th century. (Appleby)

What was the 1688 Glorious Revolution and its significance?

Conflict between King James II and ruling elites saw King forced from throne and shift in power from monarch to parliament. Significant because it successfully defended important public law principles and institutions (limited monarchy, parliamentary sovereignty, constitutionalism, the rule of law and judicial independence) against arbitrary and unchecked political power. However, mostly maintained prevailing social order - “victory for P over monarch…not a victory for democracy” (Appleby)

1689 Bill of Rights

Parliament formalised the post-revolution settlement. Confirmed parliament’s supremacy. Monarch cannot: suspend laws, impose taxes, or maintain a standing army in peacetime
without parliamentary approval. Free elections to P and requirement for regulator parliamentary sessions. Cornerstone of constitutional monarchy, reinforcing law and limits on executive power. (Appleby)

1701 Act of Settlement

Add on to Bill of Rights - monarch cannot dismiss judges anymore. Only Parliament can, and only for instances of misbehaviour. Strengthens judicial independence. (Appleby)

Entick v Carrington (1765)

King’s Chief messenger, Carrington, broke into writer Entick’s property, stole his pamphlets and caused 2000 GPB of damage. They argued that it wasn’t a breach of the law as they had King’s orders. Court found that executive has no power to act against an individual's property rights unless expressly authorised by law. “If it is in the law, it will be found in our books” - Lord Camden

Who made the Yirrkala Näku Dhäruk Bark Petitions and why?

The Yolgnu people in the Arnhem land in NT seeking land rights recognition. Protesting against the mining of bauxite on their traditional lands, permitted under Minerals (Acquisition) Ordinance 1953 (NT). 300sqm Arnhem land removed without consultation about land excision. No forum for them to express opposition.

What was the significance of the artwork around the Näku Dhäruk Bark Petitions?

The clan designs representing clans whose lands were threatened by mining activity. The Yolngu artistic system enables the relationship between people and land to be precisely encoded in paintings. For the Yolngu, the inclusion of clan designs on the petition was a demonstration of their ownership of the land.

Who passed the Minerals (Acquisition) Ordinance 1953 (NT)?

The Commonwealth government under S 122 of Constitution. Until 1974, laws made about NT made by Cth.

S 122 of Constitution - Territories

• Gives the Federal Parliament plenary power to make laws for the government of Commonwealth Territories including the power to grant them representation in Parliament.

• Not absolute; power is subject to the "just terms" guarantee for property acquisition under s 51(xxxi).

Constitution S 51 - Concurrent powers

• 39 provisions on matters about which Cth government can make laws, as well as states

• Subject to S 109 - Cth. law prevails

Constitution S 52 - Exclusive Powers of the Parliament

• Exclusive matters which only Cth can make laws on

• Remember context of states already having legal apparatus at time of creation of Constitution

Explain when S 109 is applicable

• S 109: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

• Applicable in 2 scenarios: Direct inconsistency and Covering the Field Inconsistency

• Direct = Impossible to obey both laws or where a state law takes away a right or privilege that is set out by Commonwealth

• CTF = When CP has enacted a law in relation to a particular subject matter, evinced intention to CTF and State attempts to regulate same area

What is an example of S 109 in action

• Mabo v QLD (No 1) (1988)

• In response to ongoing case, QLD parliament passed Queensland Coast Islands Declaratory Act 1985

• In 1988, High Court found that the act conflicted with S 10 (1) Racial Discrimination Act 9175 (Cth)

• Qld statute invalid

What did the Queensland Coast Islands Declaratory Act 1985 say

Any rights that Torres Strait Islanders had to land after the claim of sovereignty in 1879 is hereby extinguished without compensation

Constitution S 51 (18) - Influx of criminals

• Federal Parliament can legislate to prevent the entry of criminals from outside Australia & regulate movement of convicted criminals between Australian States.

• Included in C since Federation

• Reflects historical context of concerns from the late 19th-century Australian colonies about convicts or "undesirables" arriving from other places.

S 51 (17) - immigration and emigration

• Allows Parliament to regulate entry of non-citizens in and out of Australia

• Historically, used to support restrictive immigration policies e.g. White Australia Policy

S 51 (19) - aliens

• Federal Parliament can make laws regarding "naturalization and aliens" e.g. define who is a citizen, control immigration, and determine the status of non-citizens within Australia, encompassing the power to deport. 

• Love v Commonwealth 2020 - Aboriginal people cannot be aliens even if born overseas

S 51 (26) - races power

• Parliament has power to make laws for people of “any race for whom it is deemed necessary to make special laws”

• Originally designed in 1901 to restrict migrant labourers

• Previously excluded Aboriginal people, but exclusion removed following 1967 referendum

• Kartinyeri v Commonwealth 1998 confirmed races power allows Cth to pass disadvantageous laws

Spearing of Captain Phillip

• 7 September 1790

• Speared his collarbone

• Ritual known as “Payback”; Phillip gathered that it was a formalised occasion

• Strictly ordered no counter-attacks on Aboriginal people

Killing of McIntyre

• Captain Phillip's game keeper killed by Pemulwuy via death spear

• Highly likely McIntyre was killing Aboriginal people

• 10 Dec 1790

• Turning point for Anglo and Native relations; sparked Phillip’s outrage

Bennelong

• Wangal clan in Eora Nation

• Kidnapped on 25 Nov 1789 under authority of Governor Phillip to facilitate communication and understand local culture

• Adapted well, liked by Phillip and colonists

• Escaped April 1790 and went back to his own community

• Voluntarily travelled with Phillip to England (1792-95); first Aboriginal man to visit UK

• When he returned home and went back to traditional ways he was rejected by colonial society, branded alcoholic and “savage”

When did the small pox outbreak begin?

1789

When did First Fleet arrive

1788

S 51 (29) - External affairs

S 51 (30) - relations with the islands of the Pacific

S 51 (31) - acquisition of property on just terms

Just terms = requirement means fair and full compensation for the acquisition. Commonwealth gvt cannot take property without proper compensation.

What did the Yolgnu people ask for in the Yirrkala Näku Dhäruk Bark Petitions (2 points)

• House of Representatives to form a Committee with interpreters to hear the views of the Yirrkala people about the excision

• No arrangements be entered into with any company that will destroy the livelihood and independence of the Yirrkala people

Who was Paul Hasluck?

Minister for Territories 1951-1963. Rejected Yirrkala Bark Petitions by using cultural authority against the Yolgnu people.

How did Paul Hasluck use cultural authority against the Yolgnu people?

He argued that since the petitions were not signed by elders, they were not authoritative. Despite the effort made by the Yolgnu people to express their grievances in a form recognised by Anglo-Austrlian system and bridge gap of understanding. The Yolgnu thus sent another petition thumb-printed by elders.

What were the outcomes of the Yirrkala Bark Petitions?

Establishment of Committee in 1963 (as per request). But no halt to the mining. Committee recommended that sacred sites be protected, that compensation for loss of livelihood be paid and that a dedicated committee monitor the mining project. Milirrpum v Nabalco (1971).

Explain the background of Milirrpum v Nabalco 1971, also known as the Gove Land Rights case.

The Yolngu people, the traditional owners of Arnhem Land (which includes the Gove Peninsula), had petitioned the Australian House of Representatives in August 1963 with bark petitions after the government had sold part of the Arnhem Land reserve that year to a bauxite mining company, Nabalco without consultation with the traditional owners. However, in 1968 the Commonwealth government granted a special mineral lease to the company over the land for a period of 42 years.

Milirrpum v Nabalco (1971)

• First litigation on native title in Australia

• Yolgnu People argue that if the gvt will take their land away, they are entitled to compensation under S 51 (31) just terms

• Blackburn J has to decide if Yolgnu people have a recognisable proprietary interest in their land? Aka can common law recognise doctrine of communal native title?

• “Subtle and elaborate system” of laws “free from vagaries of person whim and influence” & use and enjoy land

• But inability to exclude others from land or alienate land to others, so no property rights in the land

• No communal native title

• Mine proceeds

What were the significance of the Tent Embassies?

Tents set up outside Parliament House on 26 January 1972 in response to Millirrpum v Nabalco 1971. 30 Jan Land Rights protests. Symbolic of being alien in own country. Gained international attention.

What was the 1973-1974 Woodward Royal Commission?

• Aboriginal Land Rights Commission

• Response to Milirrpum v Nabalco 1971

• Established by Whitlam Government to find an appropriate way to recognise the traditional land rights in NT

• Recommendations led to creation of Aboriginal Land Rights (NT) Act 1976 (Cth).

Explain origins and significance of Aboriginal Land Rights (NT) Act 1976 (Cth).

• Legislation introduced by Whitlam gvt using recommendations from Woodward Royal Commission

• Diluted version passed by Fraser gvt

• First Australian law allowing for inalienable freehold title, meaning the land is held in trust, cannot be sold or mortgaged, and ensures the return of country to its traditional owners.

What did the Aboriginal Land Rights (NT) Act 1976 (Cth) do?

• Converted all former Aboriginal reserves in NT into inalienable freehold land

• Established Land Councils to represent traditional owners, negotiate with developers, and manage land management

• Allowed claims to be made on Crown land if a traditional relationship proven

• Major step in restoring rights lost by colonisation but also issues (e.g. backlogs = substantive injustice)

What does inalienable freeholder land mean?

Unique form of land tenure that guarantees that land remains in Aboriginal hands for future generations, preventing it from being sold, lost, or mortgaged.