Case Study Mabo/Essay Federalism

Topics: Australia, Native title, Common law Pages: 8 (2840 words) Published: December 5, 2011
Federalism is a form of government which unites separate political entities, within a national system whilst still retaining their independence (AUSTRALIANPOLITICS.COM, 2011). In this essay it will be discussed that the ‘Mabo Decision’ and the implementation of the Native Title Act, 1993, is an example of this and will be analysed whilst unearthing the challenges and benefits which were exhumed within this historical test case, whilst explaining the impact of the High Court Ddecision.

The Australian system of government is a federal system incorporating characteristics of both the British system and that of the United States. The Australian Constitution provides for a Westminster type parliament, an upper house (Senate) and a Lower House (House of Representatives) with an Executive consisting of elected Members of Parliament. The Senate, however, like its United States counterpart, is representative of the States, with the High Court, similar to the United States Supreme Court, as the judicial annotator of the Australian Constitution and the Federal Government's legislation.

The courts have also played an important role in developing the common law to provide recognition for various human rights. The most historically challenging example of this was the recognition of Aboriginal native title in the Mabo High Court ruling.

The ‘Mabo decision’ was named after the leading plaintiff Edward ‘Koiki’ Mabo in a native title challenge put to the government of Queensland and the Federal government of Australia. The other Murray Islander (Meriam people) plaintiffs were: Celuia Mapo Salee, James Rice, Sam Passi and his brother Father Dave Passi. On May 20, 1982, the plaintiffs’ statement of claim was lodged at the Brisbane registry of the High Court of Australia. The claims lodged included the rights to both land and sea surrounding the island. The state of Queensland’s jurisdiction ended at the 3 mile limit and the Commonwealth assumed control of the sea from there. For strategic reasoning the plaintiffs restricted their evidence to ownership of fish traps and reefs along the coast, within the 3 mile limit. A little under three months after filing the claim, the Queensland government responded with a summons to ‘strike out’ the claim. This legal tactic was adjourned indefinitely by the High Court of Australia’s Justice Dean and Queensland didn’t raise it ever again. Queensland’s hardened approach continued throughout the duration of the case. Including the introduction of the ‘Queensland Coast Islands Declaratory Act, 1985’, under the rule of Premier Bjelke- Petersen. This act was passed to extinguish whatever rights and interests the Meriam people may have had under their traditional law. It also was designed to extinguish traditional rights with effect from 1879 when Queensland annexed the islands, without any compensation or legal rights of appeal. “The Murray Islanders argued that the Queensland Coast Islands Declaratory Act, 1985, denied them equality before the law and the enjoyment of their right to own property and arbitrarily deprived them of their property. These are human rights protected by article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination. (Australian Human Rights Commission, 2011)” On June 19, 1985 Mabo challenged this Act in the High Court in what would be known as, Mabo and Others v Queensland (No. 1, 1988). On December 8, 1988 the High Court passed down its decision and by the narrowest margin, four to three, found in favour of Mabo on the basis of racial discrimination and ruled the act invalid. After an adjournment which lasted more than two years, it was back to the Queensland Supreme Court for reconvened hearings on May 2, 1989. These hearings were held on Murray and Thursday Islands for the convenience of local witnesses which included 24 Islanders called to give evidence in support of the plaintiffs. Queensland...
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