Independent attitudes, race and justice

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This article is a topic within the subject Introducing Law & Justice.


Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 231-249 (Chapter 10).


[1]Until the 1960s, Australian law was very closely tied with English law, with the Privy Council being the ultimate court of appeal in Australia

  • After the Australia Act and the High Court case Viro v the Queen[2] showed that this was no longer the case and that High Court decisions are the most authoritative source of law. From here Australia could be seen as a purely independent legal nation

Race and Justice

[3] From the outset, the central issue for Indigenous Australians was the lack of recognition to their right to land. This led to quite severe social and cultural consequences as are seen today. The most famous case in this respect is also one of the most important in Australian history. This is the case of Mabo and Ors v Queensland (No 2) [4]. In his judgment, Brennan J discussed very important themes as discussed on the case page and below summarised.

However; first we look at some history behind Eddie Mabo and the case.

Eddie Mabo

  • In 1982, Mabo, David Passi and James Rice launched an action in the original jurisdiction of the HC to argue that they owned their land and had since time immemorial.
  • The Qld government passed the Queensland Coast Islands Declaratory Act 1986 which confirmed that the Qld government had annexed the Murray islands to acquire sovereignty and extinguish land rights.
  • The case was heard in the HC in 1986 and judgement delivered in the Mabo (no.1): it held that the Qld Act was invalid because of the Racial Discrimination Act 1975 (Cth).
  • The matter was then sent for hearing on the facts to the Qld Supreme Court, and Moynihan J delivered a problematic determination of the facts in 1989, as he said that Mabo was not entitled to the land as he was not Benny Mabo’s son.
  • Mabo died of cancer in January 1992 when there were four days of arguing in the HC beginning on 28th May 1991 - eventually, in June 1992, native title was recognised.

Mabo (No 2)

  • Brennan J acknowladges that the court cannot back down on fundamentally immoral decisions in the past as it would fracture the ‘skeleton of principle which gives the body of our law its shape and internal consistency.’
  • However, he declares that the Murray Islands is not a Crown land and that the Meriam people are entitled to it.
  • Essentially, regarding native title he says:
    • When a clan or group has continued to acknowledge and practice the rules and customs based on their traditions, and their connection with the land has been substantially maintained, their traditional title can be maintained. However, if time has washed these away, then native title has also been washed away.
    • Native title originates from the traditional laws and customs by the ind inhabitants - it is not an institute of the common law and hence not alienable by the common law; It can only by alienated by the laws from which it is derived.

There were three bases on which the common law held that the Sovereign acquired absolute beneficial ownership of all land in the Murray islands:

  • “There is no other proprietor” – thus denies indigenous inhabitants having a proprietary interest in the land.
  • Feudal doctrine of tenure – that as the Crown has universal ownership of English land, so must they own all Australian land too.
  • Patrimony of the nation” – all land in a colony is the patrimony of the nation and therefore the Crown acquired ownership on behalf of nation.
    • Prerogative basis mentioned by Stephen J in Seas and Submerged Lands Case.

Native title after Mabo

[5] Many changes occurred after Mabo to recognise the idea of native title.

  • The Keating Government passed the Native Title Act 1993 (Cth) to establish a legislative framework for the Mabo principles - there were then a serious of state cases to try and extinguish possible native title.
  • The next significant question was whether pastoral leases extinguish native title - Queensland held that pastoral leases in Qld may co-exist with native title rights and interest, but the rights of the pastoralist displace many native title rights and interests.
  • The Wik decision prompted a political backlash as Howard in 1997 proposed a ten-point plan to amend the Native Title Act, reduce the scope of native title and applications for it as it increased the level of extinguishment and introduced further barriers and obstacles.
  • In 2002, the HC weakened it by diluting the requirements for extinguishment, discussed in Yorta Yorta Aboriginal Community v. Victoria [7].
    • The Yorta Yorta case concerned land and waters in the south-east corner of the continent where Indigenous people had experienced seven or eight generations of non-indigenous presence and activity, which posed problems for the ‘traditions and customs’ aspect of establishing native title.


There have been many changes to Indigenous policy and the law regarding Indigenous people. Some examples include:

  • In 1967, Australians voted in a referendum to give the Commonwealth the power to make laws with respect to Aboriginal people - Aboriginal people would now be included in the census, receive general benefits.
  • The White Australia Policy formally ended in 1973 - the dictation test was abolished in 1958 and multiculturalism became an issue of pride.

However, one large problem that needed to be reconciled was regarding the clash between customary Indigenous law and the common law, and under which system Indigenous Australians would fall. This was discussed in Walker v State of NSW [8] where it was found that all are equally benefitted and restrained by the common law - there cannot be multiple legal systems.


Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, p 231
  2. (1978) 141 CLR 88
  3. Textbook, pp. 232-249
  4. (1992) 175 CLR 1
  5. Textbook, pp. 250-263
  6. (1996) 141 ALR 129
  7. (2002) 77 ALJR 356
  8. (1994) 182 CLR 45
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