Mabo 2 and policy issues

Posted by Anton Hughes on Tuesday, October 17, 2006 with No comments
Mabo and Others v Queensland (No. 2) (1992) 175 CLR 1

Per Brennan J at [29]:
"The peace and order of Australian society
is built on the legal system. It can be modified to bring it into conformity
with contemporary notions of justice and human rights, but it cannot be
destroyed. It is not possible, a priori, to distinguish between cases that
express a skeletal principle and those which do not, but no case can command
unquestioning adherence if the rule it expresses seriously offends the values
of justice and human rights (especially equality before the law) which are
aspirations of the contemporary Australian legal system. If a postulated rule
of the common law expressed in earlier cases seriously offends those
contemporary values, the question arises whether the rule should be maintained
and applied. Whenever such a question arises, it is necessary to assess
whether the particular rule is an essential doctrine of our legal system and
whether, if the rule were to be overturned, the disturbance to be apprehended
would be disproportionate to the benefit flowing from the overturning."
At [39]:
"The theory that the indigenous inhabitants of a "settled"
colony had no proprietary interest in the land thus depended on a
discriminatory denigration of indigenous inhabitants, their social
organization and customs. As the basis of the theory is false in fact and
unacceptable in our society, there is a choice of legal principle to be made
in the present case. This Court can either apply the existing authorities and
proceed to inquire whether the Meriam people are higher "in the scale of
social organization" than the Australian Aborigines whose claims were "utterly
disregarded" by the existing authorities or the Court can overrule the
existing authorities, discarding the distinction between inhabited colonies
that were terra nullius and those which were not."
At [42]:
"Whatever the justification advanced in earlier days for refusing to recognize
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. The expectations of the international community accord in this
respect with the contemporary values of the Australian people. The opening up
of international remedies to individuals pursuant to Australia's accession to
the Optional Protocol to the International Covenant on Civil and Political
Rights (68) See Communication 78/1980 in Selected Decisions of the Human
Rights Committee under the Optional Protocol, vol.2, p 23 brings to bear on
the common law the powerful influence of the Covenant and the international
standards it imports. The common law does not necessarily conform with
international law, but international law is a legitimate and important
influence on the development of the common law, especially when international
law declares the existence of universal human rights. A common law doctrine
founded on unjust discrimination in the enjoyment of civil and political
rights demands reconsideration."
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