Australian Common Law System versus the British Civil Law


AustralianCommon Law System versus the British Civil Law

Australiais one of the countries with the judicial systems that apply theprinciples of the common law to settle the court cases. The Mabov. Queenslandis one of the key court cases that can be used to illustrate theapplication of the principles of the common laws in Australia. 1The Mabov. Queenslandwas brought before the High Court of Australia by the members of theMeriam community in 1982. 2The Meriam people aimed to oppose the Queensland Amendment Act thatwould have facilitated the establishment of a system facilitating thegrant of land on trust for Torres Strait Islanders and Aboriginals.

Thelitigation was to assess whether the mode of possession of land couldbe recognized under the principle of native ownership as provided inthe common law. The plaintiff held that the possession of the landfor a long time made the communities the legal owners. Defendantsargued that the application of the law of England started when thecolony became part of the dominions of the Crown. 3Consequently, the Crown had acquired the absolute ownership of theland that was initially possessed by the Meriam people. Based on thedefendant’s argument, it would be feasible to apply the concept ofterranulliusthat is supported by the British civil law and override the nativetitle that was provided. This paper discusses Australia`s compliancewith Common law versus Civil law in the case of Mabov. Queenslandand it is a response to Session 2: A Common Law Traditions.

1.Australian Institute of Aboriginal and Torres Strait IslanderStudies, Mabocase,(2016), AIATSIS &lt

2.Morris Shireen, “Re-evaluating Mabo: The case for native titlereform to remove discrimination and promote economic opportunity”(2012) 5 Land,Rights, Laws: Issues of Native Title,p. 7.



Thecase of Mabov. Queenslandprovides a clear illustration of the weaknesses as well as thestrengths of applying the common and civil law in the administrationof justice. This illustration is accomplished by showing how theapplication of the two types of legal system can lead to differentjudgments. The British civil law was based on the concept of terranullius,which is a Latin term that is used to mean “nobody’s land”. 4The application of the terranulliusconcept would have resulted in unjust treatment of the aboriginal andmembers of the Meriam community. The concept holds that any territorythat has never been considered as a sovereignty state or a dominionof another state does not belong to anybody.

Theapplication of the common law, allowed the court to recognize thenative titles that the Meriam people used to identify private landbefore the arrival of the Europeans in Australia. The common lawprovides a fair approach for addressing the issue of historicalinjustice with regard to ancestral land. The common law acknowledgedthe fact that the Meriam people and other aboriginal communitiespossessed the land that they reside on, although they did not havethe documents to prove the ownership. 5The Meriam people held land as private property and it was inheritedby the subsequent generations, which is an adequate proof that therewas a system indicating its ownership as well as the transfer. Theexistence of land tenure has been used to argue that the Meriampeople had a unique form of sovereignty that justifies their right topossess the ancestral land. 6

4.AIATSIS, Mabocase,(2016), AIATSIS &lt

5.Morris Shireen, “Re-evaluating Mabo: The case for native titlereform to remove discrimination and promote economic opportunity”(2012) 5 Land,Rights, Laws: Issues of Native Title,p. 4.

6.Ibid,p., 12.


Differentlegal systems can lead to varying types of judgment when used toanalyze the same case. The case of Mabov. Queenslandprovides a suitable example that can be used to compare the possibleoutcomes of different legal system, including the British civil andthe Australian common law. The application of the common law resultedin the recognition of existence of the sovereignty of the Meriampeople. The common law also acknowledged the existence of a landtenure system prior to the arrival of the British settlers. Althoughthe Meriam people did not have the formal documents that could beused as the formal title deeds, the fact that they held land asprivate property that could be transferred as inheritance wassufficient to justify the existence of a tenure system under thecommon law. The application of the British civil law, on the otherhand, would have rendered the ownership of land to the Britishsettlers and ignore the concerns of the aboriginal Australians whooccupied the land before the colonist could arrive. The concept ofterranulliuswould result in an unfair decision because it favored the Britishsettlers. Therefore, the Australia’s compliance with common lawhelped the Meriam people access justice and the legal ownership oftheir land.


AustralianInstitute of Aboriginal and Torres Strait Islander Studies, Mabocase,(2016), AIATSIS &lt

MorrisShireen, “Re-evaluating Mabo:The case for native title reform to remove discrimination and promoteeconomic opportunity” (2012) 5 Land,Rights, Laws: Issues of Native Title1-16.