The majority in Mabo expressed fundamental disagreement with the pre-existing law. The principal judgment was that of Brennan J which attracted sufficient support in the Court to answer this description. In his judgment (175 CLR at 42) he says:
"The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country."
His Honour then refers to the decision of the Privy Council in Re Southern Rhodesia and goes on—
"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted".
There follows the assertion that the expectations of the international community accord in this respect with the contemporary values of the Australian people. His Honour then proceeds to develop a thesis that international law is a legitimate and important influence on the development of the common law and in consequence he states that a common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.
There is thus no pretension that the numerous judges who had affirmed the previous rule had misunderstood it or mis-stated it. The position taken by the learned judge is rather that that rule must be abandoned and a new one take its place. The fact that this change in the law ex post facto divested from the Crown property it had held for the Australian people and all of them for 200 years and re-vested it in a tiny proportion of the population was not thought worthy of mention. There was also no recognition that the previous case law was being replaced. There was no overruling of the earlier cases, as demanded by basic canons of judicial precedent and legal methodology.
How can judges change the law? The traditional role of the judge is to interpret the law. Interpretation of the law provides some basis for modification. But fundamental change in the law can be done in one of three ways.
First, the judge can express his fundamental disagreement with the pre- existing law for whatever reasons and state a new rule or set of rules. This would involve "over ruling" the cases which declared the pre-existing law.
Second, the judge could ignore precedent and prior decisions and make a statement of new law. This is the approach which the late Justice Murphy sometimes adopted.
Third, the judges could pretend that they were following existing law and manipulate previous decisions to obtain the desired results. Courts in Australia, and other common law countries have done this for generations, but the changes have been within narrow confines and involved relatively minor modifications.
In Mabo, the Court adopted the third approach. They did not claim to change the law and overrule a previous decision, therefore, there was no need for justification. but they could have directly provided a rationale for changing the law. This justification would not have been based on judicial reasoning. The provided justification would have been based on their political philosophy and conception of what is just. This was however indirectly provided in parts of the judgment. However what they did, did not involve minor modifications, but fundamental change. The reasons they provided for the new interpretations are contentious, superficial and sometimes false. (See Connolly 1993; Hulme 1993; Ratnapala and Stephenson 1993: 1-23, 48-62, 206-19). They would have avoided the criticisms which may be levelled against their judgements by adopting the first approach.
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 reinterpreted by the High Court. This has, in effect, denied the right of the people 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 and also the earlier Mabo decision has however had the effect of changing an area of law which could only be changed by State Parliaments. Thus the Mabo Edict, and also the earlier Mabo decision, 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 in its responsibility to uphold the Constitution there is no avenue for appeal.
Under a basic principle of the legal system, the Parliament of a State has the power to modify the common law by an Act of Parliament. 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 (which the 6 judges of the High Court 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.
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