Today is the Bicentenary of the NSW Supreme Court. It’s kind of a big day in the modern colony if you really think it through.
It is 200 years to the day since the proclamation of an act of British Parliament that established an independent judiciary in the NSW Colony and Van Diemen’s Land (half the Aus mainland & Tas). This was the final indicia of what we’d recognise as separation of powers and responsible government to be instituted on these lands and waters.
This was the practical application of imperium (sovereignty of territory). Not just sovereignty of power (dominium) and direct British Government control through Governors/Colonial Office, the Brit armed forces and colonial militia as was the case from 1788-1823.
(Mild over-simplification here)
17 May 1824 marks the day that the written formalities for ‘creating a future Straya’ were put in place . It is when 2000 years of Roman Law-to-1066 + 700 years of English Common Law became enforceable on lands and waters with 65,000 years’ worth of pre-existing laws and customs that we’d take another 168 years to recognise ever existed.
Mine is a somewhat more nuanced take than the classic Blackstonian view that the English simply took their laws with them everywhere on the planet they went.
17 May 2024 is 200 years since Ancient Roman/Latin words like imperium, dominium, terra nullius, habeas corpus, prima facie, caveat emptor, habeas corpus, nemo dat, actus reus, mens rea, de facto, quid pro quo, cui bono, ad hominem, ultra vires, prima facie and subpoena have carried weight of consequences and deep, serious meaning in the common law of Australia despite this being a language that only a few still understand and can parse-out. These latin words symbolise the societal rules most of us agree to obey.
The layperson takes in what gets taught in whatever school system they went through else Legal Latin is this mysterious sounding, almost magic spell-like set of words which then get filtered through various pop culture representations of what lawyering actually is. Most recall caveat emptor from year ten commerce classes.
Mea culpa = something you do when you stuff up.
Magna Carta = the Sovereign Citizen’s cure-all.
Status quo = the state of affairs that the lawful use of force is required to maintain under our present system of economic relations.
Terra nullius is very much a Legal Latin Strayan creature. It’s the one legal latin term that 90% of the population understand without too much difficulty. Technically, TN was never actually a thing until 1835 via Governor Bourke’s Proclamation (which didn’t actually mention the words terra nullius), but was drafted upon very high level legal advice that terra nullius as an extension of the Roman Law doctrine of res nullius (a thing unowned/a land uncultivated) and could thus be used as the legal basis for European occupation of these lands and waters from 1788 onwards. Raising a flag and chanting magic words is claiming mere possession of land. Neither Cook, nor Philip nor Dirk Hartog, William Dampier nor Abel Tasman or any other European prior to British Lawyers in 19th Century who caused absolute carnage with it. Cooper v Stuart, an 1889 Privy Council case on the right of the Crown to resume land for public use and benefit is another excellent marker where, whilst the phrase terra nullius is not used, the presence of the doctrine is as obvious as dog’s bollocks. Or put more articulately by barrister David Ash (as per link above):
TN deserves the inverted commas given.
Mat Henderson 