Academic journal article Melbourne University Law Review

Conduct of Laws: Native Title, Responsibility, and Some Limits of Jurisdictional Thinking

Academic journal article Melbourne University Law Review

Conduct of Laws: Native Title, Responsibility, and Some Limits of Jurisdictional Thinking

Article excerpt

[It is now twenty years since the High Court of Australia designated 'native title' as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2]. Common law jurisprudence, however, continues to struggle to create the appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It struggles, in short, to create an appropriate meeting place of laws. In light of recent attempts to amend the Native Title Act 1993 (Cth), it is timely, then, to return to the first question that is addressed in the meeting of laves in Australia, that of the authorisation of laws and the quality and conduct of the meeting place. Here the meeting of Australian common law and Indigenous law in Australia is tracked in terms of a brief history of common law jurisdictional practice, the jurisprudence of the conduct of lawful relations in and through s 223 of the Native Title Act, and official forms of responsibility for lawful relations.]

CONTENTS

  I Introduction
 II Jurisdiction
III A Meeting of Jurisdictions and of Laws
 IV Conduct of the Meeting Place
  V The Quality of Meeting
 VI The Meeting Places of the Jurisprudent
VII Concluding Comments

I INTRODUCTION

It is now 20 years since the High Court of Australia designated 'native title' as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2] ('Mabo'). (1) Common law jurisprudence, however, continues to struggle to create an appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It has struggled, in short, to create an appropriate meeting place of laws. It is timely, then, to return to the first question that is addressed in the meeting of laws in Australia, that of the jurisdictional authorisation of laws and the quality and conduct of the meeting place of law. In this essay we address this concern as a question of the conduct of lawful relations.

An image of the meeting of laws, and of a meeting place of laws, can be quite direct and simple. It could be imagined as two people meeting, acknowledging, and engaging a lawful relation. It can also be more mediated. In Western legal idioms, a meeting place can be figured through the arrangements of the sacred meeting places of religious life, or the deliberative, affective, and profane meeting places of the court, the theatre, or the market of the city or state. It could also be the diplomatic space of meeting or the 'free' space between laws that has characterised some accounts of international law. The image of the meeting place is valuable, even if it is difficult to concepttualise, because it allows us to understand something of the meaning of the conduct of lawful relations.

For those who live with the idioms of the common law tradition there are a number of established forms of engagement of the conduct of lawful relations between peoples and laws--such as through treaty making or through dispossession. Relations between laws could be phrased in terms of a very limited engagement--where engagement is simply a matter of how one jurisdiction satisfies itself of the relevance (or not) of another. An engagement of laws could also be concerned with the processes, protocols, and procedures that create and arrange relations of laws. In the case of the engagement of laws, it could mean the acknowledgement of and contribution to the creation of a middle ground, or a meeting place, of laws. While a meeting point of law might suggest the observation of the meeting of laws, a meeting place directs attention to the understanding of the quality or character of the meeting. In this essay we track the formation of a meeting place of law in terms of practice of jurisdiction and the conduct of lawful relations. Specifically, this essay addresses the Australian common law understanding of the meeting of laws as one of a meeting of jurisdictions. …

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