The Chief Justice Sir Anthony Mason in an extra-judicial forum defends the Mabo judgement. He said the rejection of Terra Nullius was entirely consistent with the decision of the International Court of Justice in the Hague (Mason 1993:23).
The Australian judiciary is bound by the Constitution to uphold Australian Law. See covering clause 5 of the Constitution. Appeals to the Privy Council after some difficulties were abolished. The deference of the High Court to an alien Court is unconstitutional.
Sir Anthony was also quoted as saying
"to put Mabo in perspective I should say that in its decision the Court has done no more than the courts have done in the United States, Canada and New Zealand' (Mason 1993:23).
The decisions in those cases were substantially based on treaties made with indigenous people. The legal foundation of native land claims was to be found in treaties. In Australia, there were no treaties of that kind. Therefore there was no underpinning for the Mabo decision.
The cases in the above jurisdictions are subjected to a careful and detailed analysis by the Hon Peter Connolly (Connolly 1993:100-104) which reveals that each of the US, Canadian and New Zealand cases involved, not nomads, but indigenous people who occupied and exercised rights over defined areas if territory.
These cases were totally irrelevant to the claims of the mainland Aborigines, but were more relevant to the rights of the Meriam Islanders.
The Chief Justice is also recorded as saying that the rejection of the doctrine of terra nullius by the High Court is
"entirely consistent with the rejection of that doctrine by the International Court in the Western Sahara Cases (Mason 1993:23).
Connolly points out through a careful analysis of the order of the International Court of Justice that the Court proceeded to reject not the doctrine of terra nullius but Spain's claim that the Western Sahara in 1884 answered that description (Connolly 1993:104-105).
Sir Anthony may be correct in a narrow sense - providing a generalisation and ignoring the qualifications. The Chief Justice of Australia's highest court could have with advantage paid more attention to accuracy and truth.
No Judgment From The Chief Justice
Mason CJ and McHugh J delivered an unusual joint judgment of two paragraphs about the result of the case in terms of the judgments of the seven justices. They identified themselves with the judgment of Brennan J.
The Chief Justice of the High Court did not write a separate judgment in a case which provided the most controversial judgment the High Court has ever delivered. It is monumental in the nature and extent of the departure from precedent and its law making character.
The judgment of Brennan J has been analysed and found wanting by legal commentators (Connolly 1993; Hulme 1993, Ratnapala and Stephenson 1993:1-23, 48-62).
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