Mabo Amends
State Constitutions
From Part 1 of 'The High Court In Mabo' (1995)

The High Court has over the years fundamentally changed the Constitution. Federalism involves a division of powers between the Commonwealth and the States. The High Court appointed by the Commonwealth has over the years interpreted the Constitution in a manner which has led to a gradual translocation of power from states to the centre. This process has continued since 1920. But it has never moved so quickly and fundamentally as under the Chief Justiceship of Sir Anthony Mason. (Cooray and Ratnapala 1987, Cooray 1985 (ed) pp 27-34, Connolly 1993, Hulme 1993, Stone (ed) 1992 ix-xxi, 1-68, 105-58 (especially 105-140).

The Constitution has been enlarged in such a manner that the people have been denied their right to sanction amendments to the Constitution.

Sections 106 and 107 provide protection to State Governments and Parliaments from restriction of their power, except under the Constitution. The Mabo Edict has however had the effect of changing an area of law which could only be changed by State Parliaments under the pre-Mabo (..??). Thus the Mabo Edict has the effect of changing State law by the new concept of native title and also amending the Constitution, avoiding section 128.

If the Commonwealth Parliament had legislated, compensation to the owners would have had to be provided under 51(xxxi) of the Constitution.

How can section 128 be circumvented? The Constitution is what the High Court says it is. If the High Court is false to their oath and responsibility to uphold the Constitution there is no avenue for appeal.

Under the doctrine of parliamentary sovereignty, the Parliament of a State has the power to modify by an Act of Parliament common law principles. But what is "native title"? It is the creation of the High Court acting without the authority of the Constitution or any other source. If native title is part of the common law (a view which 6 judges of the High Court seem inclined towards) the effects of the Mabo Edict could be altered or repealed by a State Parliament.

But such legislation will probably be invalid under the Racial Discrimination Act (Commonwealth) 1975. This Act is based on the extension of the external affairs power which is a previous legislative edict by the High Court.

Any such State Act of Parliament could also be overreached by the Commonwealth Parliament acting under a variety of powers provided to it through expanded interpretation of the Constitution by the Commonwealth.

The Commonwealth Parliament has the power to reduce the effect of the Racial Discrimination Act. But it probably will not have the political will to do so due to a number of factors. There are the political restraints arising from the uproar by minority interest groups which would be the natural consequence of any attempt to modify the Racial Discrimination Act. The Commonwealth will also not be willing to forego the substantial extension of power which the Mabo Edict has provided.