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HIGH COURT DECISION ON MABO - (II) THE INTRODUCTION OF THE COMMON LAW
The common law of this country had its origins in, and initially
owed its authority to, the common law of England (162). under the
common law of England, a distinction has traditionally been drawn,
for the purposes of identifying the law of a new British Colony,
between colonies where British sovereignty was established by
cessation or conquest and colonies where such sovereignty was
established by settlement or "occupancy" (163). In cases of cessation
and conquest, the pre-existing laws of the relevant territory were
presumed to be preserved by the act of State constituting the
Colony but the Crown, as new Sovereign, could subsequently legislate
by proclamation pending local representative government. The position
was quite different in the case of a settled Colony. Where persons
acting under the authority of the Crown established a new British
Colony by settlement, they brought the common law with them. The
common law so introduced was adjusted in accordance with the
principle that, in settled colonies, only so much of it was
introduced as was "reasonably applicable to the circumstances of the
Colony" (164). This left room for the continued operation of some
local laws or customs among the customs as part of the common law.
The adjusted common law was binding as the domestic law of the new
Colony and, except to the extent authorised by statute, was not
susceptible of being overridden or negatived by the Crown by the
subsequent exercise of prerogative powers. Putting to one side the
Crown's prerogative to establish courts and representative local
government, the overall position was succinctly explained by the
Privy Council in
Sammut v. Strickland
(165): the "English common law necessarily applied in so far as
such laws were applicable to the conditions of the new Colony. The
Crown clearly had no prerogative right to legislate in such a
case."
A fortiori
, the Crown had no prerogative right to override the common law by
executive act without legislative basis. It follows that, once the
establishment of the Colony was complete on 7 February 1788, the
English common law, adapted to meet the circumstances of the new
Colony, automatically applied throughout the whole of the Colony as
the domestic law except to the extent (if at all) that the act of
State establishing the Colony overrode it. Thereafter, within the
Colony, both the Crown and its subjects, old and new, were bound
by that common law.
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