None of the persons affected by the judgment (the Aborigines or the land owners) were represented in Mabo v Queensland (1991:1).
It is a fundamental principle of the entire legal system, that the court deals with disputes that are before it. The reason is that if the court decides an issue too widely they might be led into errors because they are unaware of the issues that may arise in the future.
It is also fundamental to due process that persons who are not a party to litigation should not be affected by a decision. Basic principles of natural justice require that all parties affected by a decision should be before the court. The judges chose in their wisdom (or foolishness) to ignore this fundamental principle of the legal system.
Justice Brennan said:
Nor can the circumstances which might be thought to differentiate the Murray Islands from other parts of Australia be invoked as an acceptable ground for distinguishing the entitlement of the Meriam people from the entitlement of other indigenous inhabitants to the use and enjoyment of their traditional lands. As we shall see, such a ground of distinction discriminates on the basis of a race or ethnic origin for it denies the capacity of some categories of indigenous inhabitants to have any rights or interests in land. (Mabo v Queensland 1992:1S).
A fundamental basis of rational discrimination principles is that differentiation on ground of reason and principle is permissible. There are sound reasons for regarding the Meriam people as fundamentally different from the Aboriginal people for two reasons. (i) The former had a continued and unbroken association with the land during the nineteenth and twentieth centuries. (ii) They were a settled agricultural community, unlike the Aborigines on the mainland who were nomadic in character.
The judgments of the 6 judges carry the implication that what is said about the Murray Islanders also applies to Aborigines. Having raised that implication, they cannot defend the decision by falling back on attempts to distinguish between what is the ratio of the case and binding and what is not. They have by the manner in which their judgments are expressed and the public issues raised made it difficult to confine the decision to specific issue which were decided in the case.
The High Court could have confined its decision. It chose not to do so. It must bear the consequences for that choice. The High Court cannot claim that its decision has been misrepresented or more has been read into it than was intended. They provided a clear basis for misunderstanding and misrepresentation.
Hulme provides a devastating critique of the above quotation from Justice Brennan. (Hulme 1993:143-145).
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