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Jago, Claire --- "Aboriginal Customary Law: A Source of Common Law Title to Land" [2014] UTasLawRw 21; (2014) 33(2) University of Tasmania Law Review 360


Aboriginal Customary Law: A Source of Common Law Title to Land

Ulla Secher

Hart Publishing, 2014, pp 534, ISBN 9781849465533, $198

Aboriginal Customary Law: A Source of Common Law Title to Land contributes to the discussion of property law in Australia in two primary ways. First, it provides a thorough analysis of the historical and contemporary context of indigenous land rights in Australia. Second, it suggests that common law indigenous land rights are able to exist within this context.

Secher’s main proposal is that the decision in Mabo[1] laid the foundation for the recognition of Aboriginal customary law as a source of common law title to land. She argues that the High Court’s rejection of the view that sovereignty conferred absolute beneficial ownership of all land on the Crown and development of the concept of radical title creates scope for such a common law claim, whether title arose before or after sovereignty.

Although operating alongside native title, one of the main practical benefits of Secher’s hypothesis is that it would allow recognition of a greater range of indigenous land rights. Secher refers to the Darug[2] case as an illustration of land rights denied under native title that would arguably be recognised by a customary law source of common law title. As such, title would be a creature of – rather than merely recognised by – the common law, it would be less vulnerable than native title to extinguishment and more adaptable than native title to social and cultural changes. Another practical benefit is that the test for proof of common law customary title may be more easily met by oral evidence and the operation of common law presumptions than a native title claim.

Secher primarily develops her own work in this area.[3] Her interpretation and analysis of pre and post-Mabo authorities – as well as Australian and overseas legal history – is thorough, and her research contributes to gaps in existing historical literature. The true contribution of Secher’s work, however, is clearly her formulation and application of an alternative foundation for Aboriginal land title. Through a process that could be described as ‘backwards induction’, Secher carefully analyses the impact of Mabo on the Australian system of land law. She notes that the High Court in Mabo provided a result so far as Aboriginal land rights were concerned, but that crucial questions went unanswered and important reasoning went unexplained. Secher elucidates some of the reasoning behind the development and application of radical title and its impact on contemporary Australian land law. She refers to the pre-Mabo understanding of land law, the distinctions in reasoning in Mabo, subsequent reasoning in cases such as Wik[4] and Ward[5], and developments in both the Australian context and in the approach of other jurisdictions. Secher’s analysis of the doctrine of tenure, radical title and aboriginal land rights in Canada is particularly important. By discussing the development of the Canadian jurisprudence and the operation of these principles on substantiating a common law claim based on customary title, Secher demonstrates the possible content and application of such title in Australia.

Secher’s reasoning is clear. While the later parts of Secher’s work formulate her own hypothesis, the reasoning in Part I is a relatively detailed summary of pre-Mabo land law, and contributes well to legal history.

Secher’s work is, however, quite long for a book of this kind. The overall accessibility of the book may have been improved if it were more concise. Discussion of the development of the feudal doctrine of tenure, the effect of judicial notice of tenure on indigenous land rights and the meaning of ‘radical title’, for example, is quite extensive. Although Secher’s analysis of the true definition of radical title is imperative to the crux of her conclusions later in the book, much of the earlier analysis could have been dealt with more briefly so as to not detract from the otherwise compelling nature of the work. Similarly, analysis of the case law is extensive and, overall, the book could have been improved by removing some of this description, using more concise language, or by greater use of headings. As it stands, it is easy for a reader to lose grasp of the importance of the case analysis, which may result in a lack of understating of some of the nuances of Secher’s work.

Overall, Aboriginal Customary Law: A Source of Common Law Title to Land is an excellent book. It contributes an alternative source of indigenous land rights to an area of law that is rich with possibility for reform. Secher’s work is innovative and well-reasoned. Whether or not her ultimate conclusion is accepted, her research provides many insights into Australian land law. Importantly, Secher’s comparisons with other jurisdictions could have practical implications should a fitting case arise. While the length and language of Secher’s work may at times be a barrier for some readers, this is a very minor drawback of an otherwise persuasive and engaging book.

Claire Jago[∗]

The Right(s) to Water : The Multi-Level Governance of a Unique Human Right

Pierre Thielbörger

Springer-Verlag Berlin Heidelberg, 2014, pp 236, ISBN 9783339073, $161

Pierre Thielbörger's The Right(s) to Water suggests that a human right to water exists under international law. While often viewed as a socio-economic right, Thielbörger argues that the right to water can be seen as legal in nature. The book contends that the right to water is unique, composed of different layers which cannot be understood as a standalone right. For the right to water to be accepted, it must co-exist with domestic laws and other pre-existing human rights such as the right to life and the right to adequate standards of living.

Thielbörger determines whether having a human right to water can aid in the global water crisis by answering three core research questions: First, does a human right to water exist? Second, to what extent does it exist? Third, can it practically make a difference to those affected by it? The book demonstrates how, if access to water is suitable to be a legally enforceable human right, it can be practically implemented to aid the global water crisis. These research questions are addressed in three main chapters of the text.

Thielbörger provides a theoretical critique of objections to water as a human right in international law. Thiellbörger correctly acknowledges the lack of any existing self-standing and legally binding human right to water. As such, he turns his focus instead to determining whether or not a right to water can exist logically, philosophically or conceptually, and if it does, whether this right should exist at all. Thielbörger establishes a convincing case for a human right to water, by illustrating that there is no credible case against one through the acknowledgement but ultimate rejection of all objections to the contrary. He does so through a clever method of argument utilised by the French Philosopher Descartes, the ‘method of doubt’.Rather than merely outlining his line of reasoning for the existence of a right to water, the focus by Thielbörger on the opposing side of the argument reinforces the strength of his argument.

Thielbörger offers a practical assessment of how reforms and developments can move towards the implementation of a human right to water in international law. Thielbörger analyses several measures which he views as necessary in order for the right to water to be effective. For instance, the independent monitoring of compliance and non-compliance of the right as well as enforcement of the right in the private sector in the wake of water privatization in practice. Thielbörger objectively compares these measures with current practice and acknowledges that the list is neither exhaustive nor sufficient for the right to be effective. However, he admits that without them the right is unlikely to evolve. Thielbörger's analysis of each of these is thorough and objective, readily identifying the areas that require further development for the right to water to exist on a real as well as theoretical level.

In concluding the book, Thielbörger asserts that now is the crucial time to bring awareness to the human right to water. While critics may discount the right to water as an ‘impossibility’ to implement in reality, Thiellbörger contends that such reasons are not reasonable excuses for avoiding this right. Rather, he emphasises that it is often the hardest rights to obtain which are the ones that need the most attention.

The possibility of developing this right is made more achievable by the author’s realistic viewpoint that the overall aim is not to have equal global water standards but to achieve the minimum standards globally. Access to clean and sanitary water is crucial to sustaining human life and is not an issue that should be discarded because it seems impossible to achieve.

The book describes the continual movement of resolutions and creation of global awareness about how the right is being violated and how to maintain compliance with treaties already in existence. The literature provides positive and practical mechanisms to move closer to recognising the right as legally binding under international law, particularly in emerging customary international law.

The book is easily accessible to a diverse range of audience from academics, students or simply those with a general interest in human rights. Regrettably, Thielbörger does not give a definitive answer of how to develop and implement the right. However, the author acknowledges this, suggesting that there are no concrete answers in this field.

The author has previously been published in well-respected academic journals, including a piece regarding the human right to water versus investor rights and appears to be leading the way in water rights in international law.[6] Thielbörger is passionate about the recognition of a human right to water but is also realistic about its present status.

The theories and arguments found throughout this book are original, thorough and illustrate well-researched ideas for redevelopment and re-conceptualisation of the right for the future. It will no doubt be an influential tool in not only shaping and transforming future academic writing but also practical developments of the human right to water in years to come.

Courtney Wood[∗]

The Remaking of the Courts: Less-Adversarial Practice and the Constitutional Role of the Judiciary in Australia

Sarah Murray

Australia: The Federation Press, 2014, pp 320, ISBN 978186279409, $99

The Remaking of the Courts provides a comprehensive analysis of less-adversarial dispute settlement processes and their relationship to Federal and State constitutional restrictions affecting the courts. Acknowledging the significant social changes which have affected the role of the courts over time, Sarah Murray’s book effectively evaluates the many and varied roles which judicial officers have taken upon themselves as case managers and mediators.

Further to this, she considers whether these functions undermine judicial independence in the context of the limitations placed upon their power by Chapter III of the Constitution. Such analysis invites an evaluation of the extent to which the restrictions placed upon the judicial role can be loosened to allow judges to perform socially necessary and appropriate roles without infringing fundamental principle. The book successfully stimulates a discussion about the extent to which it is appropriate to expand the judicial role. It also effectively joins the generally separate studies of constitutional law and dispute resolution, making it a unique contribution to existing scholarship.

The foundation of Murray’s analysis is arguably the ongoing tension which exists in the context of the separation of judicial power, and the effectiveness of the legal framework that protects it. It is clear that the role of the judge in the federal court system is largely prescribed by the Boilermakers[7] principle, which only permits the exercise of non-judicial power if incidental to the execution of judicial power.

Similarly, on a state level, courts may not be vested with functions which are incompatible with their role as receptacles for judicial power under Chapter III of the Constitution.[8] Such limitations maintain the separation of the judiciary from the legislature and executive.

However, the advent of less-adversarial justice has led to more active judicial roles, such as problem-oriented judging and involvement in case management and mediation. While Murray argues that these tasks can be undertaken in accordance with the current limitations placed on judges by the Constitution, she asserts that the current separation of powers ‘over-constitutionalises’ the judicial role. Further, she argues that the current approach fails to provide accurate guidance as to the activities that can lawfully be undertaken by judges in the less-adversarial context. This observation is concerning, as it is likely that less-adversarial justice will only become more prominent in the future. To prevent this, Murray proposes an ‘incompatibility’ test based on the principle from Kable,[9] which allows a purported interference with Chapter III to be assessed with regard to numerous factors, including the purpose of the power to be conferred and the overall functions of the court seeking to exercise that power. This is said to provide further clarity as to the extent to which judges may undertake less-adversarial roles within the court system.

Murray has structured her analysis in three main parts. The book commences with an overview of the less-adversarial system of justice and the normative principle of neo-institutionalism which has guided the change to the judicial role. This is combined with an outline of the current constitutional system, which she seeks to reinvent through her own work.

While the intention of this part of the book is to provide a sound foundation for the analysis that follows, much time is spent informing the reader of basic concepts, particularly in relation to dispute resolution and the separation of powers. These aspects of the book weaken its depth, insofar as they provide an introduction to the systems of less-adversarial justice and constitutional law which the reader is likely to be familiar with. However, this information also allows the book to stand alone as an independent resource, making it a valuable tool for practicing lawyers and academics alike.

The book then assesses the constitutionality of three less-adversarial processes (judicial case management, judicial mediation and drug courts) by using the current Boilermakers test. Consistent with her overarching argument, Murray successfully reconciles the purpose of each mechanism with the constitutional restrictions on the courts.

The most effective part of this analysis is the identification of safeguards in each case which must be met if the less-adversarial process is to continue to be consistent with Chapter III. It is possible that similar safeguards may be applied to other less-adversarial processes not analysed by Murray, for example, the practice of judicial interview in the Family Court which is another inherently controversial issue.[10] In this regard, she succeeds in instigating a useful dialogue about the ‘lines’ that a judicial officer must not cross while performing such work, and provides further guidance to policy makers and judicial officers who create guidelines to regulate judges’ conduct in those contexts.

The discussion of whether the current system permits less-adversarial processes forms a useful precursor to the development of a new inquiry as to whether less-adversarial processes undermine the judicial role which is examined in Part III. Here, Murray expands on current Chapter III methodology (and specifically that applied to State courts in Kable) to provide a way of determining whether the Constitution is infringed by a particular judicial activity.

At the same time, Murray attempts to avoid the imposition of criteria that the courts are unable to work with. In this context, a ‘judicial’ or ‘non-judicial’ categorization would become irrelevant and is replaced by a multifactorial approach to determine whether a function is incompatible with a Chapter III court’s exercise of judicial power.

In light of the changing curial environment highlighted by Murray, the test effectively streamlines a number of factors used by the High Court into a systematic inquiry which considers the impugned practice in a historical and cultural context by considering the other functions that the court performs. While this approach appears to be far removed from the current approach taken by the High Court, Murray accurately highlights that the historical development of the courts is an important factor in determining whether the new tasks they are asked to perform are consistent with Chapter III.

A fundamental strength of The Remaking of the Courts is Murray’s effective use of a range of academic sources in developing her argument. This involves a combination of social research, normative theory, and constitutional jurisprudence from both Australian and other jurisdictions. The synthesis undertaken in this regard demonstrates the need for the courts to adapt in light of changing societal norms, and for the tests that examine the court’s conduct to also adapt accordingly. This point is particularly relevant when the need for institutional legitimacy is considered; if the courts are unable by virtue of onerous Chapter III limitations to perform important tasks then this may undermine their ongoing legacy. In this regard, Murray provides an effective justification for the reform of the judicial role.

While it is clear that the Boilermakers case remains good law, Murray’s clear discussion of the need for the courts to adapt to societal needs is a valuable contribution to a discussion that will become increasingly important in the years to come. As court are provided with a larger number of less-adversarial roles, the need to clearly determine whether those roles are compatible with Chapter III is a legitimate concern; in this regard, Murray succeeds in bringing together a number of strands of thought to provide a cohesive and logical proposal for reform.

Luke Ogden[∗]


[1] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[2] Gale v Minister for Land & Water Conservation for New South Wales [2004] FCA 374.

[3] See, eg, Ulla Secher, ‘Implications of the Crown’s radical title for statutory regimes regulating the alienation of land: ‘Crown Land’ v ‘Property of the Crown’ Post-Mabo’ [2008] MonashULawRw 1; (2008) 34(1) Monash University Law Review 9; Ulla Secher, ‘The doctrine of tenure in Australia post-Mabo: replacing the ‘feudal fiction’ with the ‘mere radical title fiction’ – Part I(2006) 13(2) Australian Property Law Journal 140.

[4] Wik Peoples v Queensland (1996) 187 CLR 1.

[5] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1.

[∗] Final year BEc-LLB (Hons I) student at the University of Tasmania and Board Member of the University of Tasmania Law Review for 2014.

[6] Pierre Thielbörger, ‘The Human Right to Water versus Investor's Rights’ in Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds), Human Rights in International Investment Law and Arbitration (Oxford University Press, 2009).

[∗] Final year BA-LLB (Hons) student at the University of Tasmania, and member of the Editorial Board of the University of Tasmania Law Review for 2014.

[7] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 (‘Boilermakers’).

[8] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 (‘Kable’).

[9] Ibid 86.

[10] See Megan Mitchell, ‘Children’s Access to Justice in Australia’s Family Law System’ (2013) 25(3) Legaldate 4, 4.

[∗] Final year BA-LLB (Hons I) student at the University of Tasmania and Board Member of the University of Tasmania Law Review for 2014.


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