Thursday, September 21, 2017

Seven from Dorsett on NZ and Australian Legal History

Shaunnagh Dorsett, University of Technology Sydney, Faculty of Law, has posted seven recent papers from her backlist on SSRN.

Jurisprudences of Jurisdiction: Matters of Public Authority, (2014) 23 Griffith Law Review 569-588.  Coauthored with Shaun McVeigh, Melbourne Law School:
This essay examines a number of jurisdictional engagements that point to difficulties in joining or separating relations between public authority, jurisprudences of jurisdiction and the writing of jurisprudence.
The Court of Claims and the Resolution of Informal Land Claims in New South Wales 1833-1835, (2014) 4 Property Law Review 5:
This article discusses a little known 19th century legal institution: The New South Wales Court of Claims. Established in 1833, its remit was to determine who had the better or best title to land in situations where informal land practices had led to uncertain or conflicting claims to land. Despite its important position within the framework of early land law, its operation has been overshadowed by later land institutions, such as the Torrens system. An examination of this court, however, has two benefits. Most obviously, it can shed light on how the mass of informal and conflicting titles was resolved in New South Wales. More broadly, an examination of the court’s practice reminds us that the connections between colonial institutions cannot be determined from their enacting statutes, but rather must be disinterred from their day to day workings.
‘Since Time Immemorial’: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry, Melbourne University Law Review, Vol. 26, 2002
In the 10th anniversary year of the decision in Mabo, this article offers one possible account of the relationship between native title and the common law The article provides a description of this relationship, based on an account of common law jurisdiction and the ways in which the common law historically used the concept of jurisdiction in order to supplant other sites of adjudication and authority. The article traces the jurisdictional story of the common law,from its origins as one of many decentralised legal spaces, through the important first colonial context of Ireland,to the new settlement of New South Wales, and the first encounters with 'the natives'. It then examines the decisions in Mabo, Wik and others, and concludes that in 'recognising 'and constructing the interest of native title, the common law relied on the same techniques which characterised its earlier encounters with the 'other' in the English domestic and Irish colonial contexts. It is only by understanding the way in which native title has come to be at common law that we can explore its possibilities and limitations as a vehicle for justice.
The First Procedural Code in the Empire: New Zealand 1856, (2017) 27 NZULR 690-214
In 1856 New Zealand enacted a new regime for civil procedure. In so doing, it became the first colony in the Empire to create a comprehensive code of civil procedure. Innovative and wide ranging, its authors drew on multiple sites from around the Empire (and beyond), instituting reforms not yet possible in England, and establishing the foundations for New Zealand’s modern system of civil procedure. This article traces the origins of, and inspirations for, the 1856 Code. It focuses on two key aspects of reform: pleading and ‘fusion’. The article seeks to draw attention to the neglected history of procedure in general and to the place of New Zealand in the story of nineteenth century procedural reform in England and its Empire in particular.
'The Precedent is India': Crime, Legal Order and Governor Hobson's 1840 Proposal for the Modification of Criminal Law as Applied to Maori, (2014) 1 law&history 29-55
This article considers the 1840 draft Act by Captain (later Governor) Hobson for the modification of criminal law as applied to Maori. Never enacted, Hobson’s plan was the first in a series of Acts which used exceptional criminal laws as a mechanism for imposing legal order. More broadly, an examination of Hobson’s also contributes to a growing literature which considers the key tranfsitional period of the second and third decade of the nineteenth century, a period which witnesses the movement from a more pluralised empire to one in which a more recognisably ‘modern’ form of territorial sovereignty is emerging.
Metropolitan Theorising: Legal Frameworks, Protectorates and Models for Maori Governance 1837-1838, (2016) 3 law&history 1-27
This article considers the little-known 1838 proposal by Robert Torrens for the establishment of a native government in New Zealand. In so doing, it joins recent literature which seeks to move away from doctrinal or juridical legal history through an exploration of the ways in which legal concepts were used in the first part of the nineteenth century by colonial actors as tools, deployed for political advantage, rather than in strict reliance on them as a particular legal form. In so doing, however, this article also contends that although legal concepts were often malleable and could be, and were, deployed in this way, those who relied on them were also bound by Imperial constitutional principles which, while often broad and ambiguous, nevertheless acted as limits on the deployment of these concepts.
Travelling Laws: Burton and the Draft Act for the Protection and Amelioration of the Aborigines 1838 (NSW), in Legal Histories of the British Empire: Laws, Engagements, Legacies (Routledge, 2014), ed. Shaunnagh Dorsett and John McLaren.
In 1838 Justice Burton produced a draft act for the protection and amelioration of the aborigines in New South Wales. Responding in part to the 1837 Select Committee on Aborigines (British Settlements) and in part to local conflict, this act arguably constituted the first attempt in the empire to create a comprehensive legal regime to regulate settler-Aboriginal relations. The chapter traces those influences upon which Burton drew - in particular slave legislation in Trinidad and the regulation of the labour of the Khoikhoi in the Cape – and looks at how amelioration and protection were re-fashioned into a new act for new circumstances.