Fiat justitia ruat caelum — let justice be done though the heavens fall: a formula demanding that a legal question be examined on its merits, whatever the examination might disturb.

See also Coe v Commonwealth (1979)

A Matter of Precedent: What Olivia Barr’s Article Invites Australian Law to Examine

The Narrow Claim, Stated Precisely

Associate Professor Olivia Barr’s article, “A Matter of Precedent: Are All Questions of First Nations Sovereignty Really Non-Justiciable in Australian Courts?” [2026] UNSWLawJl 4; (2026) 49(1) UNSW Law Journal 62, makes a claim that is technical in form and significant in consequence. It does not argue that First Nations sovereignty exists, was retained, or ought to be recognised. It argues something narrower, and, on the orthodox law of precedent she assembles, supported by a substantial body of High Court authority: that the one appellate authority Australian courts, litigants, and scholars have relied on for fifty years to treat the question as closed, Coe v Commonwealth (1979), never actually closed it.

Coe was decided on a four-judge appellate bench that split evenly, two to two. Under section 23(2)(a) of the Judiciary Act 1903 (Cth), an evenly divided decision results in the decision appealed from being affirmed by operation of the statute, without any majority reasoning capable of constituting binding precedent. Barr traces an unbroken line of High Court authority, Tasmania v Victoria (1934), Western Australia v Hamersley Iron Pty Ltd [No 2] (1969), Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981), Re Wakim; Ex parte McNally (1999), and Perara-Cathcart v The Queen, holding consistently, across nine decades, that such a deadlock creates no binding ratio at all. She argues that aspects of Mason CJ’s 1993 treatment of Coe contributed significantly to the subsequent assumption that the earlier decision had settled the question.

Implications Beyond the Immediate Question

Although Barr’s article is directed to the question of First Nations sovereignty, its reasoning has broader implications for the legal treatment of sovereignty as a foundational concept. The following observations are analytical implications rather than claims made by Barr herself.

Sovereignty is not a subject that can be cleanly quarantined to one group’s legal status; it is the foundational concept from which everything else in a legal system, land law, criminal jurisdiction, the Constitution itself, ultimately derives its authority. If a court were ever to properly examine, for the first time, whether the Crown’s acquisition of sovereignty over the continent was exclusive, absolute, and untroubled by any coexisting legal order, that examination would necessarily require consideration of foundational questions concerning the legal basis of Crown sovereignty over Australia, questions that ultimately underpin the legal system applying to everyone within Australia. That is not the same as saying such an examination would alter the legal position of non-Indigenous Australians; a court could recognise some form of continuing Indigenous sovereignty without disturbing that position at all.

This connects to a gap in the law worth stating carefully, because it has already been partly exposed by the Court’s own reasoning. Colonial law recognised three modes of territorial acquisition: settlement, cession, and conquest, each carrying different legal consequences. Cooper v Stuart (1889) 14 App Cas 286 classified Australia as settled, on the express premise that it was “practically unoccupied, without settled inhabitants or settled law.” In Mabo v Queensland (No 2) (1992) 175 CLR 1, Brennan J found that premise factually false: Aboriginal and Torres Strait Islander peoples held organised societies, law, and continuing connection to land, which is precisely why native title was found to have survived. Whether the historical facts identified by later scholarship, and acknowledged in Mabo, invite reconsideration of aspects of the traditional legal classification of Australia as a settled colony is a question that has not been judicially determined.

A substantial body of Australian historical scholarship documents sustained conflict across the colonial frontier. Henry Reynolds’ The Other Side of the Frontier and Forgotten War are among the leading works, and the University of Newcastle’s Colonial Frontier Massacres project has verified more than 300 massacre sites using primary colonial records, documenting sustained and often lethal conflict across more than a century of frontier expansion. Under orthodox common law doctrine, conquest traditionally carried different consequences for the continued operation of existing local laws, subject to subsequent alteration by the Crown. Whether that historical pattern bears on the correct legal classification of the acquisition is a question that has never been finally determined by a court following full consideration of the issue, notwithstanding that sovereignty has been argued, in various forms, in a number of cases.

What Barr’s Article Actually Opens, and What It Does Not

It is important to state the limits of this honestly, because overstating them would misrepresent both the article and the doctrine it rests on. Barr’s argument does not touch the separate international law doctrine that the fact of the Crown’s acquisition of sovereignty is an act of state. She is not arguing that Australian sovereignty is invalid, or that the general legal system lacks foundation. Her argument is that Coe, specifically, never had the precedential weight to foreclose examination of whether Aboriginal and Torres Strait Islander sovereignty was retained, coexisted with, or was displaced by, the Crown’s. Removing Coe as an obstacle does not answer that question; it removes the procedural reason it has never been properly asked. As Barr herself concludes, “the question of whether or not to put this issue before the Court is, of course, a strategic question that can only be answered by First Nations peoples.”

An Invitation, Not a Conclusion

What this article invites is examination, not a predetermined outcome. The orthodox principles of precedent on which Barr relies are well established. Her application of those principles to Coe presents a substantial doctrinal argument that deserves careful consideration. What a court would find if it examined the underlying substantive question properly, for the first time in Australian legal history, is genuinely unknown, and the likely shape of any recognition, on the pattern of Mabo itself, would sit within the existing constitutional order rather than displace it. But the honest position is that a foundational legal question, widely treated as settled for fifty years on the strength of an evenly divided appellate decision that, on Barr’s analysis, established no binding ratio decidendi, remains open. That is worth stating clearly, and worth Australian courts, and the Australian legal profession, examining directly.

Sources

• Barr, Olivia, “A Matter of Precedent: Are All Questions of First Nations Sovereignty Really Non-Justiciable in Australian Courts?” [2026] UNSWLawJl 4; (2026) 49(1) UNSW Law Journal 62.
• Coe v Commonwealth (1979) 53 ALJR 403.
• Mabo v Queensland (No 2) (1992) 175 CLR 1.
• Cooper v Stuart (1889) 14 App Cas 286.
• Tasmania v Victoria (1934); Western Australia v Hamersley Iron Pty Ltd [No 2] (1969) 120 CLR 74; Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Perara-Cathcart v The Queen.
• Judiciary Act 1903 (Cth) s 23(2).
• Henry Reynolds, The Other Side of the Frontier (1981); Forgotten War (2013).
• University of Newcastle, Colonial Frontier Massacres in Australia Project.

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