Mabo v Queensland (1988)
Encyclopedia
Mabo v Queensland was a significant court
case
decided in the High Court of Australia
on 8 December 1988. It found that the Queensland Coast Islands Declaratory Act, which attempted to retrospectively abolish native title
rights, was not valid according to the Racial Discrimination Act 1975
.
(of the Mer Islands in the Torres Strait
) and the Government of Queensland
, in which several Meriam people, principally Eddie Mabo
, contested that they had certain native title rights over the Murray Islands. In 1985, the Queensland Government passed the Queensland Coast Islands Declaratory Act, which was intended to retrospectively abolish any such native title rights, if they existed.
The Meriam people sought a demurrer
to prevent the Queensland Government from relying on the Coast Islands Act in their defence to the main case.
s was that the Coast Islands Act was invalid, because it was contrary to the Racial Discrimination Act 1975, a law passed by the Parliament of Australia
. Section 109 of the Constitution of Australia
provides that where an Act of a State parliament
is inconsistent with an Act of the Parliament of Australia, the state act is invalid to the extent of the inconsistency. As such, the plaintiffs argued that the Queensland Government was not able to rely on the Coast Islands Act as part of their defence in the main case. The Queensland Government argued that the Act was valid, and had the effect of extinguishing any rights which the plaintiffs may have had, which may have survived annexation
of the islands in 1879.
Both parties agreed that the case should proceed on the assumption that the plaintiffs did actually hold native title rights, although the question had not been decided yet. The court agreed that the Coast Islands Act did operate to extinguish native title rights, if indeed they did exist. The main question was thus whether the Coast Islands Act was valid.
Section 10(1) of the Act provides that Commonwealth or State laws which deprive a person of one race or ethnic group of a right enjoyed by another group, then that law does not have effect. An important question was whether laws which have the effect of removing or limiting rights which are held only by a certain group falls under section 10(1).
to own and inherit property. They said that the effect of the Coast Islands Act was to arbitrarily deprive the Meriam people of their traditional property, by denying their native title rights. As such, their right to own and inherit property was limited. By this reasoning, the demurrer was allowed and the Queensland Government was not allowed to rely on the Coast Islands Act.
by the Kerrigan family lawyer Dennis Denuto.
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
on 8 December 1988. It found that the Queensland Coast Islands Declaratory Act, which attempted to retrospectively abolish native title
Native title
Native title is the Australian version of the common law doctrine of aboriginal title.Native title is "the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs"...
rights, was not valid according to the Racial Discrimination Act 1975
Racial Discrimination Act 1975
The Racial Discrimination Act 1975 is a statute passed by the Australian Parliament during the Prime Ministership of Labor Gough Whitlam....
.
Background to the case
The case was closely related to another proceeding in the High Court (Mabo v Queensland (No 2), decided in 1992) which was a dispute between the Meriam peopleMeriam people
Mer , in the eastern group of Torres Strait Islands off the northern tip of Australia, is home to the Meriam people.The Meriam people are perhaps best known for their involvement in the High Court of Australia's Mabo decision which fundamentally changed land law in Australia - recognising...
(of the Mer Islands in the Torres Strait
Torres Strait
The Torres Strait is a body of water which lies between Australia and the Melanesian island of New Guinea. It is approximately wide at its narrowest extent. To the south is Cape York Peninsula, the northernmost continental extremity of the Australian state of Queensland...
) and the Government of Queensland
Government of Queensland
The Government of Queensland is commonly known as the "Queensland Government".The form of the Government of Queensland is prescribed in its Constitution, which dates from 1859, although it has been amended many times since then...
, in which several Meriam people, principally Eddie Mabo
Eddie Mabo
Eddie Koiki Mabo was a Torres Strait Islander who is known for his role in campaigning for Indigenous land rights and for his role in a landmark decision of the High Court of Australia that overturned the legal fiction of terra nullius which characterised Australian law with regards to land and...
, contested that they had certain native title rights over the Murray Islands. In 1985, the Queensland Government passed the Queensland Coast Islands Declaratory Act, which was intended to retrospectively abolish any such native title rights, if they existed.
The Meriam people sought a demurrer
Demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection...
to prevent the Queensland Government from relying on the Coast Islands Act in their defence to the main case.
The case
The main argument of the plaintiffPlaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
s was that the Coast Islands Act was invalid, because it was contrary to the Racial Discrimination Act 1975, a law passed by the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
. Section 109 of the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
provides that where an Act of a State parliament
Parliaments of the Australian states and territories
The Parliaments of the Australian states and territories are legislative bodies within the federal framework of the Commonwealth of Australia. Before the formation of the Commonwealth in 1901, the six Australian colonies were self-governing, with parliaments which had come into existence at various...
is inconsistent with an Act of the Parliament of Australia, the state act is invalid to the extent of the inconsistency. As such, the plaintiffs argued that the Queensland Government was not able to rely on the Coast Islands Act as part of their defence in the main case. The Queensland Government argued that the Act was valid, and had the effect of extinguishing any rights which the plaintiffs may have had, which may have survived annexation
Annexation
Annexation is the de jure incorporation of some territory into another geo-political entity . Usually, it is implied that the territory and population being annexed is the smaller, more peripheral, and weaker of the two merging entities, barring physical size...
of the islands in 1879.
Both parties agreed that the case should proceed on the assumption that the plaintiffs did actually hold native title rights, although the question had not been decided yet. The court agreed that the Coast Islands Act did operate to extinguish native title rights, if indeed they did exist. The main question was thus whether the Coast Islands Act was valid.
Section 10(1) of the Act provides that Commonwealth or State laws which deprive a person of one race or ethnic group of a right enjoyed by another group, then that law does not have effect. An important question was whether laws which have the effect of removing or limiting rights which are held only by a certain group falls under section 10(1).
The decision
The majority judgement of Justices Brennan, Toohey and Gaudron found that native title rights, if they did exist, should really be treated as part of a broader human rightHuman rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
to own and inherit property. They said that the effect of the Coast Islands Act was to arbitrarily deprive the Meriam people of their traditional property, by denying their native title rights. As such, their right to own and inherit property was limited. By this reasoning, the demurrer was allowed and the Queensland Government was not allowed to rely on the Coast Islands Act.
Consequences
This case was a significant step towards the recognition in the main case, Mabo v Queensland (No 2), that native title existed.In popular culture
The case is referred to in the film The CastleThe Castle (film)
The Castle is a 1997 Australian comedy film directed by Rob Sitch. It starred Michael Caton, Anne Tenney, Stephen Curry, Sophie Lee, Eric Bana and Charles 'Bud' Tingwell. The screenwriting team comprised Sitch, Santo Cilauro, Tom Gleisner and Jane Kennedy of Working Dog Productions.The Castle was...
by the Kerrigan family lawyer Dennis Denuto.
External links
- Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Reports, 1994-2009 http://www.humanrights.gov.au/social_justice/sj_report/ and Native Title Reports, 1994-2009 http://www.humanrights.gov.au/social_justice/nt_report/index.html