The reception of land law into the Australian colonies Post-Mabo: the continuity and recognition doctrines revisited and the emergence of the doctrine of 'continuity pro-tempore'

In Mabo and Others v State of Queensland (No.2), the High Court undermined the basic assumption that had guided all Australian real property law since colonisation: the legal consequences that flow from the feudal character of the English doctrine of tenure no longer apply ipso jure in Australia; title to land is no longer exclusively derivative; all titles to land can no longer, theoretically, be traced back to a Crown grant. Consequently, although the High Court confirmed that the doctrine of tenure is an essential principle of Australian land law, six members of the Court made it clear that the grundnorm of Australian real property law is no longer the English, and thus feudal, doctrine of tenure; instead, it is the Australian doctrine of tenure with radical title as its postulate. Nevertheless, since the decision in Mabo, discussion has focused on the meaning of native title and the practical implications of its judicial recognition. This paper, however, considers the effect of the Court’s decision on the reception of English land law. Indeed, it will be shown that the applicability of the Australian doctrine of tenure was only possible because the High Court clarified the doctrine of reception as it applied to Australia. Although the High Court accepted that Australia was a settled territory, the new element introduced by the Court was the recognition of a new class of settled colony at common law. By ascribing to Australia the status of a settled, yet inhabited, colony, the Court was free to prescribe a doctrine relating to the law that applied in the colony. In doing so, the Court considered the relevance of the doctrines of continuity and recognition as well as the scope of the Crown’s prerogative powers in a settled, yet inhabited, colony. It is argued that, as a result of the High Court’s restatement of the common law, there is a new doctrine prescribing the system of law that applies upon settlement of an inhabited territory: a modified doctrine of reception, which includes the doctrine of continuity pro tempore (a merged version of the continuity and recognition doctrines)