The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was the first recognition at law of the traditional ownership of land in Australia by Aborigines. It provides means whereby Aborigines claiming to have a traditional land claim to certain types of land in the Northern Territory can demonstrate that ownership to the Aboriginal Land Commissioner. If he finds that there are traditional Aboriginal owners of the land he reports that finding to the Commonwealth Minister for Aboriginal Affairs and may recommend a grant of it to a Land Trust. Sometimes problems in ascertaining which, if any, Aboriginals are the traditional Aboriginal owners of the land claimed arise from the difficulty inherent in expressing the land tenure system of one culture in the language of another. The author illustrates this with examples from one land claim hearing and argues that the use of interpreters is desirable to enable the claimants to put their case clearly and for the Commissioner to understand more fully the intricacies of Aboriginal land tenure systems.

Following recent disagreement between the Commonwealth and Victorian Solicitors-General over whether the States have power to employ aliens in public offices in view of section 3 clause 5 of the Act of Settlement 1701 (U.K.), this Article considers whether that clause applies in the States and, if it does, whether they or the Commonwealth can amend or repeal it. These issues are examined in light of the common law on the employment of aliens in public office, the reasons for the enactment of the Act of Settlement, and the question whether, and to what extent, the doctrine of paramount force applies to legislation enacted prior to the establishment of a colony.

The Article concludes that section 3 clause 5 did not apply in Australia, either by reception or by paramount force, although the common law on the employment of aliens applied by reception; and the common law did not disqualify naturalized persons from holding public office. The authors argue that in any event, Commonwealth legislation, validly enacted under the “Naturalization and aliens” power (section 51(xix)) has removed any disabilities the Act of Settlement might have imposed on the employment of naturalized persons. Moreover, pursuant to section 51(xxxviii), the Commonwealth could authorize the States, or any of them, to pass legislation repugnant to Imperial legislation extending to the State by paramount force.

Notwithstanding the inclusion of “Admiralty and maritime jurisdiction” within the constitutional grant of federal judicial power, current Admiralty jurisdiction in Australia is based solely on a nineteenth century Imperial statute, the Colonial Courts of Admiralty Act 1890. That this has remained the case for so long is regrettable, and reflects in part a traditional deference to Imperial control over international shipping (although lately there have been indications of greater legislative assertiveness over maritime matters generally), and in part a reluctance to interfere with the present allocation of jurisdiction among State courts.

A concerted effort is now under way to lay the foundation for the creation of a modern indigenous Admiralty jurisdiction, and with this in mind, the author sets out to examine the nature and extent of the current colonial jurisdiction, its interrelationship with the federal jurisdiction under section 76(iii) of the Constitution, and the desirability of abandoning the rigid nineteenth century base of the former to realise the full twentieth century promise of the latter.

Constitutional law — Law for establishing any religion — Grant of Financial Assistance to States — Validity of Commonwealth legislation providing financial assistance to non-government schools — Constitution ss. 96, 116