New Developments in Law

• What is the background behind Mabo v Queensland 1992?


  • The Meriam people occupied the Murray Islands, specifically the Mer Islands until it was annexed in 1879 by Queensland
  • They inherited English law and carved out interests such as leases and licences
  • Crown's title to and possession of the "unoccupied lands of the colony" couldn't be challenged
• What were the plaintiffs' claims in Mabo v Queensland 1992?


  • Their interests and those of their predecessors survived acquisition by the Crown
  • Their rights became a dimension of the settled common law after this point
• What were the defendant's arguments in Mabo v Queensland 1992?


  • Crown had absolute beneficial ownership
  • Native title never existed and if so it was extinguished by the state
  • Queensland govt tried to create statute to extinguish native title
• What was the judgment in Mabo v Queensland 1992?


  • Six of seven judges held that the Meriam people possessed the land
  • Their collective rights survived the annexation of the Islands by Queensland
  • Brennan J recognised and abandoned the fiction of terra nullius
• What were the criticisms of the judgment in Mabo v Queensland 1992?


  • Emphasised that native title could be extinguished by the Crown
  • First Peoples have to fight for their rights to be "recognised"
  • Settled legal institutions embody an imbalance
• What were the facts of Yearworth v NHS North Bristol Trust 2009?


  Six men being treated for cancer stored their sperm and a malfunction in the clinic destroyed it
• What causes of action did the plaintiffs take?

  • Tortious personal injury and tortious damage to their property
• Detail the person injury action in Yearworth

  • Dismissed by the court
  • Court acknowledged that the sperm ejaculated was done with a "view of its being kept"
  • Maintenance of a living nexus
• Detail the damage to their property action in Yearworth

  • The men entrusted the clinic to hold their sperm and were trusted to take care of it within a 10 year period
  • The men had given up certain rights but that wasn't sufficient enough to eliminate the property claim
• What was the significance of Yearworth v NHS North Bristol Trust 2009?


  • Suggests a basis for bodily property claims that are separate from application of work and skill
  • Contrasts established legal doctrines preventing identification of property claims in one's own body or tissue
• What is the background for Moore v Regents of the University of California 1990?


  • Moore was being treated at UCLA by Dr Golde for leukemia
  • Dr Golde was collecting bodily samples (without informed consent)
  • Based on the samples, Dr.G created a commercially valuable cell line
  • M sued Dr.G and UCLA alleging a failure of informed consent
• What were Moore's arguments in Moore v Regents of the University of California 1990?


  • Moore argued conversion but for something to be stolen from you, it needs to be yours to begin with
  • M argued G breached his fiduciary duty to properly inform M of his intentions and obtain consent
• What was the decision in Moore v Regents of the University of California 1990?


  • No one has an absolute right to the products of their body as they aren't unique
  • The court rejected arguments that his spleen should be protected as property as these rights are protected by informed consent
  • The manufactured cell line are the only possible object of property
• What is meant by Watson’s description of property law as ‘granting something that was never theirs to grant?’ Why is that significant for our understanding of the Mabo v Queensland (1992) case?


  • Watson's description underscores the historical injustice of denying indigenous peoples their rightful ownership and control over their traditional lands
  • The Mabo case challenged the doctrine of terra nullius, which upheld that Australia was unoccupied by any settled society before British colonization