As I pointed out in a previous post, the Privy Council advice in 1889 did not make a decision on how sovereignty was acquired. All they said was that the land was “without settled inhabitants or settled law” for the purposes of figuring out how English law can be smoothly applied in the territory.

Today I realised I am not the only one who has noticed this. Judge Jacobs picked up on this 5 April 1979 (Coe v Commonwealth 24 ALR 118),

“I go now to the third part of the proposed statement of claim. This is in parallel with the second part. Whereas the second part is based upon the assumption that New South Wales was a settled colony of the Crown, the third part is based upon the allegation that the colony was conquered territory. I do not think that paragraphs in this alternative form ought to be struck out. The view has generally been taken that the Australian colonies were settled colonies; but, although that view was expressed in Cooper v Stuart (1889) 14 App Cas 286 and in Randwick Municipal Council v Routledge (1959) 102 CLR 54, there is no actual decision of this court or of the Privy Council to that effect. The plaintiff should be entitled to rely on the alternative arguments when it comes to be determined whether the aboriginal inhabitants of Australia had and have any rights in land.”

Judge Jacobs, dissenting opinion

The majority opinion says this;

For the purpose of deciding whether the common law was introduced into a newly acquired territory, a distinction was drawn between a colony acquired by conquest or cession, in which there was an established system of law of European type, and a colony acquired by settlement in a territory which, by European standards. had no civilized inhabitants or settled law. Australia has always been regarded as belonging to the latter class: see Cooper v Stuart (1889) 14 App Cas 286 at 291

This confirms what I wrote in my other post. Without settled inhabitants or settled law (the wording in the Privy Council advice) means without law from Dutch settlers. It does not mean without established law. It does not mean sovereignty was acquired on the basis that the territory was considered a terra nullius.

“Australia was settled” – this is another made-up doctrine, like terra nullius was. It has never been confirmed with any authority.