Professor Shaunnagh Dorsett

Dorsett, S.G. & McVeigh, S. 2012, Jurisdiction, 1, Routledge, Oxford.

Gray, J., Edgeworth, B., Foster, N. & Dorsett, S.G. 2012, Property Law in New South Wales, 3, LexisNexis Butterworths, Australia.

Dorsett, S.G. & Hunter, I. 2010, Law and Politics in British Colonial Thought, Palgrave Macmillan, New York.

Dorsett, S.G. & McVeigh, S. 2013, 'Section 223 and the shape of native title: the limits of jurisdictional thinking' in Rowse, T; Ford, L (eds), Between Indigenous and Settler Governance, Routledge, Oxon, pp. 162-173.

Dorsett, S.G. 2012, ''Destitute of the Knowledge of God': Maori Testimony before the New Zealand Courts in the Early Crown Colony Period' in Diane Kirkby (ed), Past Law, Present Histories, ANU E-Press, Canberra, pp. 39-57.
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was to allow colonial legislatures to pass acts or ordinances to allow their indigenous inhabitants to give unsworn testimony before the courts. Unsworn testimony was testimony given by those who were not able to take the oath. At common law the rule was that evidence could only be given on oath, rendering those devoid of religious belief incompetent to testify. In British colonies, therefore, this rule resulted in most of the indigenous inhabitants being unable to give evidence before English courts. This was particularly problematic in the Australian colonies. The imperial Act of 1843 was the outcome of various ine"ectual attempts to allow for such evidence by way of local act or ordinance, particularly in New South Wales and, more latterly, Western Australia. While some attention has been paid to the politics and processes of law reform concerning unsworn testimony in empire, and the ways in which such reforms formed part of broader disputes about the shape of colonial governments,2 these discussions have almost entirely revolved around the Australian colonies.3 New Zealand has received comparatively little attention.

Dorsett, S.G. 2011, 'De-Vesting the Foreshore: Crown Ownership, Maori Rights and the Marine and Coastal Area (Takutai Moana) Act 2011' in Carruthers, P; Mascher, S; Skead, N (eds), Property and Sustainability Selected Essays, Thomson Reuters, Sydney, pp. 55-68.
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Dorsett, S.G. 2010, 'Sovereignty as Governance in the Early New Zealand Crown Colony Period' in Dorsett S and Hunter I (eds), Law and Politics in British Colonial Thought: Transpositions of Empire, Palgrave Macmillan, New York, USA, pp. 209-228.
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This chapfer discusses the movement of laws and the transmission of ideas across Empire,' In parricuiac, it rracesseveral ways in which sovereignty was understood in certain British intellectual contexts during [he key period of the first half of the nineteenth ceorury, and the various constructs of sovereignty that were employed in response co specific circumstances of colonial governance. The topic around which chis consideration of sovereignty is organized is char of the problem of the ordering of empire and of the management of colonial relations, both between merropole and colony, and with respect to the internal legal order of one colony-New Zealand

Dorsett, S.G. 2010, 'The Act that almost was: The Fijian Qoliqoli Bill 2006' in Lee Godden and Maureen Tehan (eds), Sustainable Futures: Comparative Perspectives on Communal Lands and Individual Ownership, Routledge, London, UK, pp. 290-306.
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Dorsett, S.G. 2007, 'An Australian Comparison on Native Title to the Foreshore and Seabed' in Claire Charters and Andrew Erueti (eds), Maori Property Rights and the Foreshore and Seabed, Victoria University Press, Wellington, New Zealand, pp. 59-82.
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In November 2004, the New Zealand Parliament passed the Foreshore and Seabed Act (FSA).1 In so doing. it passed legislation which goes further towards denying Maori the opportunity to establish aboriginal title than comparative legislation which affects indigenous land rights in any other common law country. In essence the FSA removes the right of Maori to apply to Te Kooti Whenua Maori (the Maori Land Court) for territorial customary claims. It extinguishes aboriginal territorial claims to the foreshore and seabed and replaces such claims with a right to argue before the High Court that aboriginal title would have existed but for the legislation. However, there is no accompanying guarantee of compensation for this extinguishment. Finally. it allows for an application for recognition of a non-territorial customary right. known as a customary rights order, to be made to either the Maori Land Court or the High Court. Again, this statutory provision replaces common law jurisdiction.

Dorsett, S.G. 2007, 'Mapping Territories' in Shaun McVeigh (ed), Jurisprudence of Jurisdiction, Routledge, Oxon, UK, pp. 137-158.
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Picture two images, both of a native title claim area. The first is a map of the claim area, demarcated by latitude and longitude. The areas that cannot be claimed are marked with hatching. There are Crown reservation numbers, and a scale in kilometres - in fact, all the things we expect in a tenure map. I The other image is a painting on canvas, in a form that westerners have labelled 'dot painting'. Yet both address similar concerns, albeit expressed through different cultural lenses: in Western legal terms, jurisdiction, territory and ownership; for the Pila Nguru - the creators of the painting - the Tjukurrpa.

Dorsett, S.G. & McVeigh, S. 2007, 'Questions of Jurisdiction' in Shaun McVeigh (ed), Jurisprudence of Jurisdiction, Routledge, Oxon, UK, pp. 3-18.
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Questions of jurisdiction have been central to Western legal traditions, yet finding a place within jurisprudence and the philosophy of law to pose such questions has not been obvious. By contrast, the practice of the law is preoccupied with questions of jurisdiction and the arrangements of the authority to judge in matters of law. Despite this, the work of practitioners lacks anything but the 'thinnest' of descriptive accounts of what it means to engage with questions of jurisdiction. It is as if legal thought cannot, or can no longer, articulate the terms of its own existence. To introduce Jurisprudence of Jurisdiction, this chapter returns to some of the central topics of jurisdiction in order to investigate the modes or manner of coming into law and of being with law.

Dorsett, S.G. 1998, 'Land Law and Dispossession: Indigenous Rights to Land in Australia' in Susan Bright and John Dewar (eds), Land Law Themes and Perspectives, Oxford University Press, Oxford, pp. 279-301.

Dorsett, S.G. & McVeigh, S. 2012, 'Conduct of Laws: Native Title, Responsibility, and Some Limits of Jurisdictional Thinking', Melbourne University Law Review, vol. 36, no. 2, pp. 470-493.
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[It is now twenty years since the High Court of Australia designated `native title+ as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2]. Common law jurisprudence, however, continues to struggle to create the appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It struggles, in short, to create an appropriate meeting place of laws. In light of recent attempts to amend the Native Title Act 1993 (Cth), it is timely, then, to return to the irst question that is addressed in the meeting of laws in Australia, that of the authorisation of laws and the quality and conduct of the meeting place. Here the meeting of Australian common law and Indigenous law in Australia is tracked in terms of a brief history of common law jurisdictional practice, the jurisprudence of the conduct of lawful relations in and through s 223 of the Native Title Act, and oicial forms of responsibility for lawful relations

Dorsett, S.G. 2011, 'Procedural Innovation: The First Supreme Court Rules of New South Wales and New Zealand', Australian Bar Review, vol. 35, pp. 128-151.
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This article looks at the first rules of the Supreme Courts of New South Wales and New Zealand. In both colonies the first Chief Justice put in place simplified rules, appropriate, as they saw it, for the needs of a young colony in which there was a single superior court. This paper places these rules within the context of Empire and then examines two facets of them: initiating civil litigation and the relationship between law and equity in a single superior court. For colonial judges, the ability to draft their own rules was one of the most significant ways in which they could adapt English law to the circumstances of their own colonies and influence the development of the shape, form and development of their respective legal systems.Most importantly, many of their reforms were undertaken ahead of those in England and could have provided both inspiration for, and evidence of success of, simplifications that could easily be achieved.

Dorsett, S.G. & Lafferty, G.D. 2010, 'Good Faith and the Fair Work Act: Its Potential, in Light of the New Zealand Experience', The Economic and Labour Relations Review, vol. 21, no. 1, pp. 53-68.
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This article addresses the potential of the Fair Work Acts good faith bargaining provision to enhance good faith bargaining and employment relationships, using New Zealand's good faith provisions under the Employment Relations Act 2000 as a comparative frame of reference. It explores the limitations of the Fair Work Acts compliance-based approach to good faith, which consists mainly of the parties presenting a legally defensible appearance of not acting in bad faith. In contrast, the New Zealand legislation aims to suffuse good faith with considerable content and definition, enabling parties to the employment relationship to extend good faith well beyond bargaining. In contrast to the Employment Relations Act, the formalistic, procedural approach promoted by the Fair Work Act is unlikely to encourage a significant cultural change towards meaningful good faith principles and practices.

Dorsett, S.G. 2010, 'Making Up the Issue: The Judge's Role in Formulating Actions in the Crown Colony Period- Pharazyn v Smith (1844)', Victoria University of Wellington Law Review, vol. 41, no. 3, pp. 427-452.
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This article considers one althe key procedural innovations of the first Supreme Court rules - the making up of the issue - through the lens of the Supreme Court decision in Pharazyn v Smith (J 844). Making up the issue referred to the process whereby pleadings were drafted in conference with the judge hearing the case. This contrasted with the English system of the time 0/ a series of written exchanges between parties designed to identify the disputed issues of fact and law, and in which the role afthe judge was essentially a passive one. Through Pharazyn v Smith we can see one of the ways in which judges sought to modify English laws to the circumstances of the colony, as well as the judges' role in shaping litigation, and hence law, in the infant colony.

Dorsett, S.G. 2009, 'Sworn on the Dirt of Graves: Sovereignty, Jurisdiction and the Judicial Abrogation of 'Barbarous' Customs in New Zealand in the 1840s', The Journal of Legal History, vol. 30, no. 2, pp. 175-197.
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This paper examines the judicial construction of jurisdiction over Maori in the 1840s in New Zealand. Using new data, including case material and extra-judicial commentary, it examines the first decisions by the New Zealand Supreme Court on crime between Maori (crime 'inter se'). In so doing, it briefly places New Zealand in a broader context of settler colonies, and considers how colonial judges (such as Chapman J of the Supreme Court of New Zealand) fashioned the common law to fit the contingency of local circumstance, thereby playing their part in constituting local sovereignty. Finally, the article also considers the reaction of settlers to Maori crime and these decisions.

Dorsett, S.G. & McVeigh, S. 2008, 'The Persona of the Jurist in Salmond's Jurisprudence: On the Exposition of "What Law is..."', Victoria University of Wellington Law Review, vol. 38, no. 4, pp. 771-796.
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Dorsett, S.G. 2007, 'Prospective Joint Venturers and Fiduciary Duties: A Comment on the SCNZ decision in Chirnside v Fay', Journal of Equity, vol. 2, no. 1, pp. 221-228.
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This comment considers a recent decision of the Supreme Court of New Zealand on the fiduciary duties owed by prospective joint venturers. As one of the first cases concerning equity heard by the new court, it provides an interesting insight into the possible approach of the court to this area of law. The comment first looks to the imposition of liability and examines the different approaches taken by the court, focusing on the problems of imposing liability in early pre-contractual joint venture cases. The comment then considers the impact these problems may have had on remedy, highlighting the remedial flexibility which characterises equity jurisdiction in New Zealand. In September 2006 the Supreme Court of New Zealand handed down its judgment in Chirnside v Fay, a case concerning the nature of the obligations between joint venturers and attendant remedies for breach of fiduciary duty.1 Those interested in equity matters may remember that the 2004 Court of Appeal decision in Chirnside attracted some attention, most notably for the court+s somewhat controversial application of a loss of chance analysis to the calculation of quantum.2 The Supreme Court decision, therefore, was eagerly awaited to see whether that court would uphold such an analysis or substitute a more orthodox approach. Chirnside v Fay is one of the first cases determined by the new Supreme Court which falls squarely within the area of equity.3 Chirnside v Fay was, therefore, a chance to gauge that court+s likely approach to equity jurisdiction and no better case could be found than one whose subject matter lies at the heart of equity: the fiduciary obligation.

Dorsett, S.G. 2006, 'Aboriginal Rights in the Offshore: Maori Customary Rights under the Foreshore and Seabed Act 2004 (NZ)', Griffith Law Review, vol. 15, no. 1, pp. 74-110.
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This article considers the new Foreshore and Seabed Act 2004 (NZ). This Act was passed in response to the Court of Appeal decision in Ngati Apa in 2003, which determined that Maori customary rights had not been extinguished in the foreshore. The Act constitutes one of the more significant international developments in Aboriginal rights in recent years. This article will situate the main aspects of the Act within Commonwealth native title jurisprudence. In particular, it contrasts the approach of the New Zealand courts, and the subsequent legislation, with that of the High Court of Australia, and to a lesser extent the Supreme Court of Canada, in recent years. The article concludes that the New Zealand Act constitutes a particularly ungenerous approach to Aboriginal rights: one that imposes significant hurdles on claimants, even in comparison to Australian native title law.

Dorsett, S.G. & McVeigh, S. 2005, 'An Essay on Jurisdiction, Jurisprudence and Authority: The High Court of Australia in Yorta Yorta(2001)', Northern Ireland Legal Quarterly, vol. 56, no. 1, pp. 1-20.
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Like the common law legal ordering of England and Wales, the ordering of British colonisation has, in many ways, been an affair of jurisdiction. It is through jurisdiction that the authority of the common and imperial laws have been asserted, and it is through questions of jurisdiction that the legal settlement of the colonies has been effected. Post-colonising and postcolonial settlements have frequently turned to constitutional orders to reconstitute normative relations between the conceptual register of nation (state)-sovereignty-territory and that of land and people. However, questions of jurisdiction remain. This is nowhere more so than

Dorsett, S.G. & Godden, L. 2005, 'Interpreting Customary Rights Orders under the Foreshore and Seabed Act: The New Jurisdiction of the Maori Land Court', Victoria University of Wellington Law Review, vol. 36, no. 2, pp. 229-256.
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Dorsett, S.G. 2002, ''Since Time Immemorial': A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry', Melbourne University Law Review, vol. 26, no. 1, pp. 32-59.

Dorsett, S.G. & McVeigh, S. 2002, 'Just So: "The Law Which Governs Australia is Australian Law"', Law and Critique, vol. 13, no. 1, pp. 289-309.

Dorsett, S.G. & Godden, L. 2000, 'The Interaction of Planning Law and Native Title', Environment and Planning Law Journal, vol. 17, no. 5, pp. 374-382.

Dorsett, S.G. 1999, 'Restitution of Urban Land in South Africa: the Story of District Six', The University of New South Wales Law Journal, vol. 22, no. 1, pp. 180-204.

Dorsett, S.G. & Godden, L. 1999, 'Tenure and Statute: Re-Conceiving the Basis of Land Holding in Australia', Australian Journal of Legal History, vol. 5, no. 1, pp. 29-40.

Dorsett, S.G. 1997, ''Clear and Plain Intention': Extinguishment of Native Title in Australia and Canada Post-Wik', Griffith Law Review, vol. 6, pp. 96-121.

Dorsett, S.G. 1996, 'Comparing Apples and Oranges: The Fiduciary Principle in Australia and Canada after Breen v. Williams', Bond Law Review, vol. 8, no. 2, pp. 158-181.

Dorsett, S.G. 1995, 'Civilisation and Cultivation: Colonial Policy and Indigenous Peoples in Canada and Australia', Griffith Law Review, vol. 4, no. 2, pp. 214-238.

Dorsett, S.G. 2010, 'Case Note: R v E Hipu', Victoria University of Wellington Law Review, vol. 41, no. 1, pp. 89-96.

Dorsett, S.G. 1999, 'Restitution of Land Rights in South Africa', Indigenous Law Bulletin, vol. 4, no. 23, pp. 9-11.

Dorsett, S.G. 1996, 'Apsassin v. The Queen in Right of Canada: Re-examining the Source of the Crown's Fiduciary Obligations to Indigenous Peoples', Aboriginal Law Bulletin, vol. 3, no. 79, p. 7.

Dorsett, S.G. 2012, 'Networks, Trajectories and Comparative Legal History: Burton's Draft 1838 Act for the Amelioration of the Aboriginal Natives', Law, Spaces, Cultures and Empire: Engagements and Legacies, Singapore, July 2012.

Dorsett, S.G. 2011, 'Adapting Law to the Circumstances of the Colony: The First Supreme Court Rules of New South Wales and New Zealand', The Twentieth British Legal History Conference, Cambridge, July 2011.

Dorsett, S.G. 2011, 'Adapting Law to the Circumstances of the Colony: The First Supreme Court Rules of New South Wales and New Zealand', Forbes Lecture 2011 - the Annual Lecture of the Francis Forbes Society for Australian Legal History, Sydney, November 2011.

Dorsett, S.G. & McVeigh, S. 2011, 'Managing the Meeting of Laws: Native Title, Plurality and the Limits of Jurisdictional Thinking', Between Indigenous and Settler Governance, Sydney, Australia, August 2011.

Dorsett, S.G. 2011, 'Why Archive? The New Zealand Lost Cases Project', Rare Books Lecture, Melbourne, October 2011.

Dorsett, S.G. 2010, 'De-vesting the Foreshore: Crown Ownership, Maori Rights and the Proposed Foreshore and Seabed Act 2010', Australlian Property Law Teachers Conference, Perth, September 2010.

Dorsett, S.G. 2010, 'The Precedent is India: Sovereignty, Jurisdiction and Hobson's 1840 Draft Legislation for the Modification of Criminal Laws in their Application to Maori', Owning the Past: 29th Annual ANZLHS Conference, Melbourne, December 2010.

Dorsett, S.G. 2009, ''Defects of Religious Principle' and Unsworn Maori Testimony in the New Zealand Courts 1840-1850', 28th Annual Australian and New Zealand Law and History Conference, Victoria University of Wellington, December 2009.

Dorsett, S.G. 2009, 'Perspectives on Sovereignty as Colonial Administration in the Early New Zealand Crown Colony Period', Transpositions of Empire, Prato, Italy, April 2009.

Buck, A., Dorsett, S.G. & Salter, B. 2008, '' A one -man Selden society',or,recovering colonial case law: The Kercher Reports and their influence', The 27th Australian and New Zealand Law and History Society Conference, Adelaide, December 2008.

Dorsett, S.G. 2007, '"New Quilts from Old Rags": The Status of Indigenous Peoples in Colonial New South Wales', 18th British Legal History Association Conference, Oxford, Oxford, July 2007.

Dorsett, S.G. 1998, 'Comparative Native Title: Learning from other Jurisdictions', UNSW Symposium on Native Title:facts, fallacies and the future, Sydney, May 1998 in Native Title: Facts, Fallacies and the Future,, UNSW, Sydney.

Godden, L. & Dorsett, S.G. 2000, 'The Contractual Status of Indigenous Land Use Agreements', Land, Rights, Laws: Issues of Native Title, Canberra, pp. 1-12.

Dorsett, S.G., Godden, L. 1998, 'A Guide to Overseas Precedents of Relevance to Native Title', AIATSIS Press, Canberra, pp. 1-283.