Law, Love and Australia’s Unfinished Retreat from Terra Nullius

This book lays out a roadmap for establishing common law recognition of Aboriginal customary law in Australia. Currently, Aboriginal customary law is recognised in limited circumstances through native title, which applies only to rights and interests over traditional lands or waters. This book argues that, if a carefully constructed claim is accepted by an Australian Court, Aboriginal customary law could potentially be recognised across a wide range of legal areas, including criminal law, family law, succession, environmental law, and criminal procedure. Importantly, this would also afford legal recognition to organic Indigenous governance structures. It also proposes a roadmap for establishing a hybrid equitable-constitutional fiduciary obligation that the Crown would owe Indigenous Australians. This could provide valuable protections to Indigenous rights and societies from impositions made by legislatures and executives purporting to exercise powers under the Australian Constitution.

Distinctive in its approach, this volume is among the first post-2020 works to explore a common law pathway for recognising and furthering the rights of Indigenous societies, governance systems, and legal frameworks, at a time when most scholarship has focused on express constitutional recognition or recognition via treaties and agreements (notably in Victoria).

The book builds on the landmark High Court decision in Love v Commonwealth (2020), where the Court recognised that Aboriginal Australians, owing to their enduring connection to country, could not be considered ‘aliens’ under the Constitution . While Love initially addressed alienage and constitutional protections, this work argues that its reasoning opens the door to broader common law recognition of Indigenous Australians’ rights, laws, and governance structures, beyond the scope of native title.

Through careful legal analysis and a proposed claims framework, this book contributes to an emergent body of scholarship exploring the legal consequences of recognizing Aboriginal Australians’ enduring connection to country, offering a path toward meaningful expansion of Indigenous legal recognition in Australia, and bringing Australian law closer to the more progressive Indigenous rights doctrines of common law North America.