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HIGH COURT DECISION ON MABO - (I) THE ESTABLISHMENT OF NEW SOUTH WALES

The international law of the eighteenth century consisted essentially of the rules governing the relations and dealings among the nations of Europe. Under it, the three main theoretical methods by which a State could extend its sovereignty to new territory were cession, conquest and settlement. Settlement was initially seen as applicable only to unoccupied territory. The annexation of territory by "settlement" came, however, to be recognised as applying to newly "discovered" territory which was inhabited by native people who were not subject to the jurisdiction of another European State. The "discovery of such territory was accepted as entitling a State to establish sovereignty over it by "settlement", notwithstanding that the territory was not unoccupied and that the process of "settlement" involved negotiations with and/or hostilities against the native inhabitants.

The consistent references to "our territory called New South Wales" in the two Commissions (152) and in the Instructions (153) from George III to Captain Arthur Phillip indicate a view that at least part (154) of the new Colony had automatically become British territory by 1770 by virtue of Cook's discovery and various pronouncements of taking "possession ... in the Name of His Majesty" (155). In the context of the contemporary international law, however, the preferable view is that is was the intention of the Crown that the establishment of sovereignty would be by "settlement" in the extended sense explained above and would be effected when, after the arrival of the First Fleet, Phillip complied with his Instructions and caused his second Commission as Governor to be read and published "with all due solemnity" (156). Even on that approach, there are problems about the establishment of the Colony in so far as the international law of the time is concerned. In particular, contemporary international law would seem to have required a degree of actual occupation of a "discovered" territory over which sovereignty was claimed by settlement and it is scarcely arguable that the establishment by Phillip in 1788 of the penal camp at Sydney Cove constituted occupation of the vast areas of the hinterland of eastern Australia designated by his Commissions (157). However, in so far as the establishment of British sovereignty is concerned, those problems do not exist for the purposes of our domestic law.

Under British law in 1788, it lay within the prerogative power of the Crown to extend its sovereignty and jurisdiction to territory over which it had not previously claimed or exercised sovereignty or jurisdiction (158). The assertion by the Crown of an exercise of that prerogative to establish a new Colony by "settlement" was an act of State whose primary operation lay not in the municipal arena but in international politics or law. The validity of such an act of State (including any expropriation of property or extinguishment of rights which it effected) could not be challenged in British courts (159). Nor could any promise or undertaking which it embodied by directly enforced against the Crown in those courts (160). The result is that, in a case such as the present where no question of constitutional power is involved, it must be accepted in this Court (161) that the whole of the territory designated in Phillip's Commissions was, by 7 February 1788, validly established as a "settled" British Colony.


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