The legal fiction upon which Australia was founded refers to the British doctrine, “terra nullius”. The phrase translates to “land without ownership”. When Australia was founded, even though the colonisers acknowledged the presence of the Indigenous they considered the Aboriginals too primitive to be actual owners. The Aboriginals were considered too primitive with no identifiable hierarchy or political structure. This legal fiction had a significant impact on Australia with the widely known Mabo Case. In May 1982, Eddie Mabo and four other plaintiffs of the Murray Islands pursued confirmation of their traditional land rights in the High Court of Australia. Their claim had been that Murray Island (Mer) had been previously inhabited and had been possessed by the Meriam people with their own social and political organisations. After 10 years and the death of Mabo, on June 3 1992, the High Court ruled that the lands of Australia were not terra nullius when European settlement occurred and the Meriam people were entitled to the lands of Murray Island. Then in December 1993, the Native Title Act was produced as part of the Commonwealth’s response to the High Court’s decision to protect the native lands of Aboriginals. The legal fiction has therefore had a major impact on Australia’s legal history with the introduction of the Native Title Act where the Aboriginal and Torres Strait Islanders were compensated for the dispossession of their lands.
In the context of the Australian Constitution, ‘exclusive power’ refers to the powers that are solely reserved for the Commonwealth over the States. The States are not able to legislate in these powers. Examples of the exclusive powers include foreign affairs and defence. Concurrent power refers to those that can be exercised by both the States and the Commonwealth, that is, both the State and Federal government can make laws in such areas. Examples include taxation and marriage, it must also be understood that always when in dispute, federal law will always prevail over state law. Residual power refers to when exclusive powers were given to Commonwealth at Federation, the remaining powers stayed with the States. These remaining are the residual powers and only the States can make laws in these areas. Examples of residual power include education and transport.
* i) Modbury Triangle Shopping Centre v Anzil (1999) SASC 335 ii) The court in which the hearing was made was the Supreme Court of South Australia * i) London Artists v Littler  2 QB 375
ii) The case was heard at the Supreme Court of Judicature in the House of Lords * i) Drinkwater & Ors v Howarth  NSWCA 222
ii) The case was heard at the NSW Court of Appeal
* i) Gambrielli v Caparelli (1974) 54 DLR (3d) 661
ii) The case was heard at the Ontario County Court
* i) Department of Housing and Works v Smith [No 2]  WASCA 25 ii) The case was heard at the Supreme Court of Western Australia
Since the District Court of WA is a lower court than the Supreme Court of WA, and the case of the Department of Housing and Works v Smith was held at the Supreme Court of WA, it is a binding precedent on a judge of the District Court of WA.
In the context of the doctrine of precedent:
i) Intermediate Court: a court beneath the court of last resort in a jurisdiction ii) Distinguish: a technique used in legal reasoning to avoid following a precedent by pointing out material differences between the facts of the two cases iii) Appellate Jurisdiction: the authority of a court to hear and decide an appeal case iv) Follow: Judges have to 'follow' the binding precedent when making decisions even though they don’t agree with it. v) Obiter Dicta: words in a reported judgement which is not part of the essential judicial decision
- Certainty: it creates an element of certainty in law and probable outcomes can be predicted -...
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