Mabo represents an exercise by the judiciary in law making on grounds of justice and good conscience which steps outside the boundaries of their tradition and training. Law "reform" as distinct from "change" of the law carries the connotation of a beneficial movement. It is arguable that Mabo, all factors considered, is an unjust decision which involves legal change but not law reform. It has created a platform for further unjust legislation drafted by the Commonwealth Government and enacted by Parliament. Deep divisions in the Australian community will be the ultimate consequence.
Bill Hassall asks:
What kind of madness is it that leads the established organs and institutions of a nation which prides itself on its legal, democratic and constitutional traditions, to deliberately create a monster; a legal monster of separateness based on race, of divisions of its people based on race, of legal privilege, of uncertainty, of vast indeterminate cost, of certain injustice, of indeterminate consequence, of upheaval of long established and sound legal principles; and in doing so put at risk a groping towards a free and equal society in which an indigenous people can take their place as equals. (Hassall 1993:11)
I have only touched the fringes of Mabo and its implications, which include: the policies of the government and the consequences, the rape of the common law and the Constitution, federal state relations, the inherent injustices and impracticalities of the Government proposals, the manner in which the ensuing debate has been conducted by the political correctness movement (cant phrases, vigorous assertions and character assassinations of critics of Mabo, as a substitute for rational argument), the economic implications, the position of people who lose rights in land for no fault of their own, the racial divisions generated and the consequences for Australian society and nationhood.
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