The Land and the Man or Woman: Two Creations, One Principle
Quod natura non dat, legislator non praestat — What nature does not give, the legislator cannot provide.
Three articles have now addressed the rights of Australians whose status as British subjects vested at birth, the inherited rights of their children, and the natural law foundation that underlies both. This final article in the series draws together those threads and adds one more, drawn from the scholarship on colonial land title discussed earlier.
The argument is simple, though its implications are profound. The land of Australia and the men and women born upon it share the same foundational characteristic. Neither was created by any Parliament, any King, or any government. Both existed before any colonial instrument was drafted. Both were subjected to the same foundational claim of authority. And in both cases, that claim was always defective at its root.
Two Creations
Consider first the land.
Australia existed before any European vessel arrived at its shores. Its soil, its rivers, its mountains and plains were not brought into being by any Act of Parliament, any Letters Patent, or any proclamation by any sovereign. They were here. Prior peoples had lived upon them, known them, named them, and held rights over them under their own laws for tens of thousands of years before any coloniser arrived with a piece of parchment and a claim of sovereign authority.
Mabo v Queensland (No 2) (1992) 175 CLR 1 acknowledged what had always been true. The land was not empty. The doctrine of terra nullius was a legal fiction, and a dishonest one. The common law, when it finally confronted the truth, held that prior existing rights survived unless clearly and expressly extinguished by the sovereign. The land had rights attached to it that no colonial proclamation had created, and that no colonial proclamation could simply erase by assertion.
Now consider the man or woman.
Every man and every woman arrives in the world before any Parliament has had any say in the matter. The capacities of reason, conscience, will, and moral judgment that define the human man or woman are not legislative creations. They are not the product of any government’s benevolence. They arrive with the man or woman, inherent in their nature, prior to and independent of any political authority that may subsequently seek to regulate, limit, or extinguish them.
As Blackstone stated in his Commentaries on the Laws of England, the absolute rights of man are inherent in nature and exist independently of society and government. As Locke stated in his Second Treatise of Government, men and women are endowed by their Creator with natural rights that no government created and that no government can legitimately take away without consent. As Magna Carta acknowledged in 1215, the liberties of free men are not grants from the Crown. They are pre-existing realities that the Crown is obliged to recognise and protect.
Two creations. One principle. Neither the land nor the man or woman owes their existence or their fundamental character to any temporal authority.
The Colonial Claim and Its Defect
When the British Crown claimed sovereignty over the Australian continent, it proceeded on the assumption that the land was legally empty, that no prior law existed, and that the Crown’s proclamation was sufficient to vest in the Crown absolute title to all land within the claimed territory.
As the academic analysis of Lilienthal and Ahmad demonstrates, that claim was always defective. The English law of land title was grounded in feudal custom that had subsisted in England since Anglo-Saxon times. It was not a universal law of nature. It was a local custom, specific to England, and the principle stated by Noy held that any custom should not be construed so as to allow a man to do a wrongful act. Importing that custom into Australia by force, over the prior rights of existing inhabitants, was itself a wrongful act. A custom transplanted by wrongdoing cannot take lawful root.
The Crown’s claim to allodial title was therefore, from the outset, no more than colour of title. It had the appearance of title. It lacked the lawful foundation that genuine title requires. The mala fides of the acquisition defeated any claim to convert that colour of title into a valid and absolute holding.
Now apply the same analysis to the man or woman.
When the Parliament of Australia, acting through the Australian Citizenship Amendment Act 1984 (Cth), purported to remove British subject status from men and women in whom that status had vested at birth, it proceeded on an equivalent assumption. It assumed that because Parliament had, through the Nationality and Citizenship Act 1948 (Cth), given formal recognition to British subject status, Parliament therefore had authority to remove that recognition and thereby extinguish the status itself.
But as three articles in this series have now demonstrated, that assumption was false. British subject status did not arise from the 1948 Act. It arose from birth within the dominions of the Crown, by operation of the common law rule of jus soli, confirmed and preserved by statute but not created by it. Parliament acknowledged what already existed. It did not create it. And what Parliament did not create, Parliament cannot simply take away, any more than the Crown could take away the prior rights of those who inhabited the land before any colonial proclamation was made.
The 1984 Act, on this analysis, has the same character as the colonial land grants. It has the appearance of extinguishment. It lacks the lawful foundation that genuine extinguishment requires.
The Earth Does Not Belong to Kings
The feudal maxim that underlay English land law was nulle terre sans seigneur – there is no land without its lord. Every parcel of land, in the feudal conception, was held ultimately of the Crown as paramount lord. The Crown owned everything. Private holders held their land as grants from the Crown, subject to services and obligations, and those grants could in theory be revoked or modified by the Crown’s superior authority.
That conception was always fiction even in England, and it was admitted to be fiction by the courts and commentators who applied it. Allodial ownership – ownership free from any superior lord – was the theoretical ideal, and in jurisdiction after jurisdiction the feudal dues were commuted, the tenures were abolished, and the land gradually approached the allodial ideal even if it never fully reached it.
In Australia the fiction was even more transparent. The Crown did not grant the land to itself out of some pre-existing superior interest. The Crown simply declared that it owned everything, on the basis of a voyage of discovery and a planting of a flag. That declaration, made over land already inhabited and already subject to prior law, was not a legal act of acquisition. It was, as Lilienthal and Ahmad argue, a wrongful act dressed in legal language.
The earth does not belong to Kings because Kings declared it so. It was here before Kings existed. Its prior inhabitants held rights over it that preceded any royal claim. Those rights did not disappear because a sovereign said they did.
The Man or Woman Does Not Belong to Parliaments
By precisely the same reasoning, the man or woman does not belong to Parliaments.
A Parliament that enacts a statute granting rights to its citizens is performing a legitimate function within its proper sphere. A Parliament that enacts a statute acknowledging and confirming rights that already exist is performing the same function. Both are exercises of legitimate authority.
A Parliament that enacts a statute purporting to extinguish rights that it did not create, that vested independently of its authority in a man or woman at their birth, and that the man or woman affected has never consented to surrender, is doing something fundamentally different. It is not exercising authority within its proper sphere. It is asserting an authority it does not possess.
The natural law tradition, from Aquinas through Grotius, Locke, and Blackstone, has always recognised this distinction. Positive law derives its authority from natural law. A positive law that contradicts natural law is not, in this tradition, truly law at all. It is, as Augustine stated and Aquinas confirmed, an act of violence dressed in legal form. Lex iniusta non est lex – an unjust law is no law.
The application to the present argument is direct. A statute that purports to extinguish a status vested at birth in a man or woman, without that man or woman’s consent, without acknowledgement of the prior existing nature of that status, and without clear express authority derived from any legitimate source, is not an exercise of lawful authority. It is a claim of authority that the common law, the natural law, and the constitutional tradition underlying both do not support.
What Mabo Said About Both
Mabo is usually understood as a case about land. But the principle it articulated reaches further than land.
Brennan J held that the common law recognises rights that exist prior to and independently of the sovereign’s enactments. The sovereign’s acquisition of territory does not extinguish those rights unless the sovereign acts with clear and express intention to do so. And even then, the legitimacy of such extinguishment is subject to scrutiny against the standards that the common law itself sets.
That principle is not confined to real property. It is a statement about the relationship between sovereign authority and prior existing rights of any kind. Rights that pre-exist the sovereign’s enactments are not the sovereign’s to give or take away at will. They may be regulated. They may be balanced against competing rights and interests. But they cannot be extinguished by mere assertion of authority, any more than the Crown could extinguish native title by the mere act of planting a flag.
The man or woman, like the land, has rights that pre-exist any sovereign claim. Those rights were not created by Parliament. They cannot be extinguished by Parliament. They can only be regulated, within the proper sphere of legitimate governmental authority, with due regard to the natural justice and procedural fairness that Magna Carta and the common law have always required.
The Common Root
Land and man or woman share a common root. Both were created before any government existed. Both have had claims of sovereign authority asserted over them, claims that were grounded in assertions of power rather than in any principle of natural justice. Both have been the subject of legal instruments purporting to define, limit, and extinguish rights that those instruments did not create.
And in both cases, the deepest traditions of the common law, natural law, and constitutional principle say the same thing. You cannot extinguish what you did not create. You cannot take without giving. You cannot assert authority over that which existed before your authority did. And where you purport to do so without clear, express, and just authority, the law will not assist you, because the law, properly understood, was never your instrument for that purpose.
The land endured the colonial claim. Its prior rights survived, as Mabo confirmed, wherever they were not clearly and expressly extinguished. The man or woman can make the same claim, on the same foundation, for the same reason.
Both are creations that preceded and transcend any temporal authority. Both carry rights that no King proclaimed and no Parliament enacted. Both are entitled to have those rights acknowledged, protected, and not extinguished without consent.
A Declaration for Both the Land and the Man or Woman
A man or woman who wishes to place this complete position on formal record may wish to bring together the declarations from all four articles in this series into a single comprehensive notice. That notice would assert, in summary, the following.
That the land upon which I was born existed before any colonial claim was made over it, and that the rights attaching to it are grounded in prior existing law that no proclamation created and no statute can simply erase.
That I, a man or woman of flesh and blood, was born before any Parliament had authority to define or extinguish my status, and that my rights as a man or woman and a British subject arose from my birth, not from any legislative grant.
That the natural law tradition underlying the common law, confirmed in Magna Carta, Blackstone, Locke, Potter v Minahan, and Mabo, holds that rights which no government created are not the government’s to extinguish.
That I do not, by engaging with any government agency or officer, consent to the extinguishment of any right, status, or entitlement that was not the government’s to take.
That all such rights are expressly reserved, without waiver, without limitation, and without prejudice, under the Crown of the United Kingdom, within the Commonwealth as proclaimed and gazetted, at common law, and under the natural law that underlies them all.
Justitia est constans et perpetua voluntas jus suum cuique tribuendi — Justice is the constant and perpetual will to render to each what is their due.
This article is for information purposes only and does not constitute legal advice. Readers seeking to rely on any of the principles discussed should obtain independent advice from another source.
Last Updated 6 months ago
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