The actual ratio decidendi of the decision relates only to the Murray Islanders. The legal basis for that decision, that native title survived European settlement is not necessarily much broader. Native title, as it emerges from the Mabo case, is a fragile right which would have long since been extinguished in most areas of Australia.
However, the actual consequences of the Mabo Edict are unknown. Time and Time again, a narrow decision of the Court in public law areas has formed the basis of novel and profound doctrines generally leading to centralisation of power in the hands of the Commonwealth. For example, the Engineers case, which overruled previous doctrines reserving power to the States, has formed the basis of future decisions of the Court which have enabled the Commonwealth to significantly enhance its powers at the expense of those of the States.
The 'Concrete Pipes' case provided a limited extension of the Commonwealth Corporations power. But from a small beginning the power has expanded inexorably. There are some areas of uncertainty. But it appears that the end result is to give the Commonwealth complete power over any thing remotely related to a corporation. The High Court provided one restraint - denying to the Commonwealth power over incorporation of companies. But even in this area, by bribing and pressurising the states, the Commonwealth was able in the end to impose its own legislation. This happened because the High court provided no checks and balances.
A series of cases on the external affairs power have dramatically enhanced the ability of the Commonwealth to enact domestic legislation on the basis of international treaties. The Australian Constitution was carefully drafted to maintain a division of legislative power between the States and the Commonwealth. This was done to assuage reservations which the then Colonies (later to became States), especially the smaller colonies, had about entering into a federal system likely to be dominated by the political and economic might of New South Wales and Victoria. Guarantees were included in the Constitution to prevent subjugation of the States to the Commonwealth by carefully outlining what powers were to be exercised by each tier of government. Such a division of powers forms the essence of a federal system, and federation would not have occurred without the establishment of such constitutional guarantees. It was clearly understood that these guarantees would not be removed or changed except by popular referendum.
However, the decisions of the Court relating to the External Affairs power have effectively removed any barriers to Commonwealth power posed by the federal nature of the Constitution. In Koowarta v Bjelke-Petersen, The Franklin Dam and subsequent cases, the Court has held that where a Treaty has been entered into by the Commonwealth Government, the Commonwealth Parliament has the power to legislate in the area covered by the treaty. Prior to these decisions, the ability of the Commonwealth to legislate in pursuance of Treaty obligations had been subject to a number of restrictions. The High Court swept away some of these restrictions, and removed any practical significance attached to the others. Thus, it stated as a limitation, that the Commonwealth could not enact legislation on basis of a Treaty entered into merely to gain legislative power in that area, yet this limitation appears to have no practical effect. It would be virtually impossible to establish that any Treaty entered into by the Commonwealth was "colourable" in this sense. To do so would require an enquiry by the Court into legislative and executive motive, which is well beyond the normal scope of judicial activity.
Given the plethora of Multilateral Treaties, relating to a virtually unlimited range of topics, the Court's interpretation of the External Affairs power conferred an almost plenary legislative power on the Commonwealth. The Constitution has been effectively rewritten in a manner which undermines its entire spirit and ignores the specific provisions of Section 128 which allow for alteration by referendum alone. A Commonwealth appointed High Court ,therefore, significantly expanded Commonwealth power in a manner which denied the right of the people of Australia to express their views. If the High Court had been true to its role as interpreter of the Constitution, the power of Parliament would not have been extended, other than by the referendum mechanism which was provided by the framers of the Constitution to ensure that the rights of the States are maintained.
The Commonwealth has under the Constitution the power to enter into a Treaty on any subject matter, notwithstanding the federal division of power. This was a principle the founding fathers were aware of. They were equally aware that legislation was required to implement a Treaty, otherwise it would only bind the Commonwealth in international law, having no effect on Australian municipal law. However, the draftsmen of the Constitution intended that the constitutional limitations on the power of Parliament would mean that the Commonwealth would have to obtain the agreement of the States on matters which were within the State's area of legislative competence. It was not intended that the Commonwealth's plenary power to enter into Treaties would enable Parliament to undermine the State's powers of self-government.
As a consequence, the legislative power of the Commonwealth is limited only by political, rather than legal, factors. The power is therefore likely to be used only against those sections of society who are weak or lacking in political influence. Interest groups in society who are vocal about their interests are likely to be the greatest beneficiaries of expanded Commonwealth power. In the Franklin Dam case, the Commonwealth was able to override the government of Tasmania, Australia's smallest and politically least significant State, in order to satisfy the wishes of mainland environmental activists.
As we have seen again with Mabo, the External Affairs decisions by which the Court has extended the power of the Commonwealth have related to socially sensitive issues, such as racial discrimination or protection of the environment. The final results were therefore motivated by a desire to achieve a "politically correct" result. In the pursuit of the "right" result, the Court abandoned legal principle and refused to acknowledge the wider consequences of their decision. As a result, the federal structure of Australian governance has suffered irreparable damage.
There is a strong possibility that Parliament, the High Court and the Native Titles Tribunal will take the doctrine of native title far beyond the ratio of Mabo.
Another problem with the Mabo edict lies not so much in the decision itself, as in its potential use by the Commonwealth as a springboard for wide-ranging reforms. Prior to Mabo, the Commonwealth would have faced a number of constitutional constraints had it independently attempted to legislate on the issue of land rights.
There is no constitutional grant of Commonwealth power with respect to land management which is (was) a recognised area of State legislative power. The ability of the Commonwealth to pass such legislation under the "Race Power" is, as yet, uncertain.
The Commonwealth would have had to pay compensation to any non-Aboriginal land owners who lost their land as a result of the legislation.
Land management is a governmental function of the States, and wide scale interference would probably have been prohibited by rule in Melbourne Corporation v The Commonwealth.
In the face of sustained interest group pressure, and the difficulties of proof associated with native title (it would appear that native title can only be established by reference to the claimant's own culture), tribunals determining native title may adopt a low standard of proof. This could lead to a proliferation of claims.
These wider consequences can be traced to the Court's abandonment of common law methodology. Judicial law-making is generally a gradual process, with changes occurring over years. Extensions occur within an existing framework, and only on the basis of the issue directly before the court. Wide statements of principle which extend beyond the immediate issue are avoided for the precise reason that such statements may have unintended consequences and amount to judicial usurpation of the legislative function.
With the Mabo Edict the Court has initiated a radical change, ignored the pre-existing legal framework and extended the result of the case well beyond its direct issue The Court stated it was "fictitious" to consider all forms of native title to be extinguished at settlement, yet it is equally fictitious to state, in the face of express decisions to the contrary (Milirrpum; Gerhardy v Brown), that the Australian common law has always recognised native title. The Mabo Edict must be likened to retrospective legislation, extending over two centuries backwards in time.
The polemic that has followed Mabo highlights the fact that from a constitutional viewpoint it was not (except in relation to the Murray islanders) a judicial decision at all. Most of the controversy has centred on how the Court's decision should be "implemented", by federal or State legislation, or both. Yet the hallmark of a genuine judicial decision is that it requires no legislative implementation, for the simple reason that it states what the law is, and applies it to the facts. Each time a court applies a principle to new facts it is to a degree developing the law, but sweeping new proclamations of policy, or calls to arms that require Acts of parliament to put them into effect, are quite outside the judicial function. The Mabo case, therefore, except in relation to the Murray islanders, represents yet another usurpation by the Court of the constitutional powers of the Australian parliaments and people.
The public response to the case reinforces that conclusion. The function of the Courts is to settle the disputes that arise in a society, not to exacerbate them. Although even the most irreproachably judicial decision can on occasion be controversial, there is no precedent for the storm that has been unleashed by Mabo, or for the spectacle of a chief justice entering the media spotlight to attack critics of one of his court's judgements. When a pronouncement of a court has the effect of detonating a verbal civil war in the way this one has, one is entitled on that ground alone to ask whether the judicial machinery is malfunctioning. (Walker et al:1993:12)
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