Chapter 5 ― High Court of Australia

The Constitution of Australia is based broadly on the principle of ‘responsible government’ and the separation of powers doctrine, where the powers of the Constitution are shared or divided amongst the Parliament, the Executive and the Judiciary. The High Court of Australia is the principal or premier court of Australia and determines, among other things, issues of constitutional law and the laws of Australia.

In re Judiciary and Navigation Acts, the High Court held that the High Court cannot give advisory opinions.[1] It has no power or jurisdiction to determine abstract questions of law without the right or duty of any body or person being involved. The High Court’s constitutional function, which is judicial, is to give relief inter partes or ex parte and must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law.[2]

In North Ganalanja Aboriginal Corporation and Anor for and on Behalf of the Waanyi People v The State of Queensland and Ors, the question of advisory opinions by the High Court came up for determination.[3]

McHugh J. in considering the granting of special leave on the pastoral issue, said:

39. Obviously, the Court could not grant special leave to decide the pastoral lease point if it concluded that special leave to appeal should be granted on the procedural issue on the ground that the Tribunal erred in refusing the application of the Waanyi People. Upon granting leave and allowing the appeal on the s 63 procedural issue, the only order that the Court could make was the one that it did make. That is to say, that the judgment of the Federal Court be set aside, that the appeal to that Court be allowed and the Registrar be directed to accept the application of the Waanyi People. If the Court had also granted special leave and purported to give an opinion on the extinguishment issue, it would have given an opinion which it had no constitutional jurisdiction to give. The opinion of the Court would have been an advisory opinion. It would have been giving an opinion on a matter that did not arise because, ex hypothesi, the order of the Court on the procedural issue would direct the Tribunal to accept the application. The Constitution gives this Court no jurisdiction to give advisory opinions in either its original or its appellate jurisdiction.

Kirby J. held on the question of the limits of advisory opinions:

42. I cannot agree for a moment with the proposition that the determination by the Court of the “pastoral lease question” would have amounted to the impermissible provision of an advisory opinion, forbidden by the Constitution and the Court’s past authority. Nobody suggested during argument that it would be so. In my opinion this is because, manifestly, it would not.

43. The current rather narrow state of authority on the Court’s original jurisdiction to provide advisory opinions may one day require reconsideration as the Court adapts its process to a modern understanding of its constitutional and judicial functions. Since In re Judiciary and Navigation Acts was decided in 1921 there has been a substantial development in the understanding of what the judiciary in Australia may properly do in discharging its proper functions. For example, the scope of the availability of the beneficial remedy of a declaration, to deal with an apprehended threat of invasion of rights, has expanded greatly, overcoming in the process some of the same resistance as lay behind the refusal to provide advisory opinions. The judicial function is not frozen in time. This Court should remain alert to developments in judicial procedures which further, in proper ways, the defence of the rule of law. So far as is compatible with the judicial function, courts should endeavour to be constructive and useful to parties in dispute. If courts do not adopt this attitude, those parties will look to other means, rely on their power or be left unrequited by their expensive visits to the courts.

Of course, the “pastoral lease question” was settled by Wik Peoples v Queensland (“Pastoral Leases case”).[4]

The plaintiffs litigated Mabo No. 2 by alleging that since time immemorial their ancestors, and, thus, they, had owned and had rights in particular areas of land on the Murray Islands, the surrounding sea and seabed and reefs in accordance with their laws, customs, traditions and practices and that the annexation of the islands by Queensland in 1879 was subject to the rights of their predecessors in title. They sought various declarations to that effect. Importantly, the plaintiffs sought declarations in respect of particular plots of land or with respect to the seabed, seas and fringing reefs allegedly owned by those individuals and their family groups—ultimately 36 blocks were claimed by Eddie Mabo, one by Dave Passi and four by James Rice.[5] Moynihan J observed that during the course of the hearing the pleadings (statement of claim, defences and replies) evolved through a number of editions. A final version was handed up to the High Court on 31 May 1991 with a further addition on 3 June 1991.[6]

Set out below are the statements by each Justice of the issue or matter before the court for determination:

Mason C.J. and McHugh J. made no specific comment.

Brennan J. The plaintiffs are members of the Meriam people. In this case, the legal rights of the members of the Meriam people to the land of the Murray Islands are in question.

Deane and Gaudron JJ. The issues raised by this case directly concern the entitlement, under the law of Queensland, of the Meriam people to their homelands in the Murray Islands.

Toohey J. 2. The plaintiffs claim that they or the Meriam people are, and have been since prior to annexation by the British Crown, entitled to the Islands: (a) as owners (b) as possessors (c) as occupiers or (d) as persons entitled to use and enjoy the Islands. The declarations now sought give primacy to the rights of the Meriam people rather than to those of the individual plaintiffs.

Dawson J: 3. The plaintiffs are Murray Islanders and members of the Meriam people. Each of them claims rights in specified parcels of land on the Murray Islands. The basis of their claims is, alternatively:

(a) their holding the land under traditional native title;

(b) their possessing usufructuary rights over the land; or

(c) their owning the land by way of customary title.

The observant reader will note that the Justices stated the issue before the court differently. Brennan, Deane and Gaudron JJ. stated the issue in the broadest of terms. Toohey J. stated that the issue had moved from the rights of the individual plaintiffs to the Meriam people. While Dawson J. stated the issue as pleaded by the plaintiffs.

The exercise of judicial power by the court is in the making of its orders, not the giving of its reasons.[7] On first reading the judgments of the Justices, one is struck by the polemical argument relating to mainland Aboriginals. Only after reading Dawson J’s judgment, which is straight up and down, does the reader realise that his reasons fit his decision like a glove, which was to refuse the declarations sought by the plaintiffs. The same cannot be said of Brennan, Deane, Gaudron and Toohey JJJJ. (Gang of Four).[8]

How were Mainland Aboriginals joined?

Brennan J.: 24. 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 race or ethnic origin for it denies the capacity of some categories of indigenous inhabitants to have any rights or interests in land. It will be necessary to consider presently the racial or ethnic basis of the law stated in earlier cases relating to the entitlement of indigenous people to land in settled colonies.

Deane and Gaudron JJ.: 1. …Those issues must, however, be addressed in the wider context of the common law of Australia. Their resolution requires a consideration of some fundamental questions relating to the rights, past and present, of Australian Aborigines in relation to lands on which they traditionally lived or live.

Toohey J.: 11. Before proceeding further, one more point should be noted. While this case concerns the Meriam people, the legal issues fall to be determined according to fundamental principles of common law and colonial constitutional law applicable throughout Australia. The Meriam people are in culturally significant ways different from the Aboriginal peoples of Australia, who in turn differ from each other. But, as will be seen, no basic distinction need be made, for the purposes of determining what interests exist in ancestral lands of indigenous peoples of Australia, between the Meriam people and those who occupied and occupy the Australian mainland. The relevant principles are the same.

The Gang of Four joined mainland Aboriginals without a factual basis, without reference to legal rules, or procedural grounds and, most definitely, without notice to interested parties.

In a discussion on the Mabo No. 2 decision, the following question was asked:

Do you think it was necessarily good law to extend the Mabo decision to the other parts of Australia when, in fact, it is not absolutely necessary to do so in order to find that the Meriam people had native title?

The learned professor replied,

Yes. That aspect of the decision has been subject to some criticism. My view on that is that it was essential for the High Court to make some statement of principle.[9]

Then he was asked a further question:

Granting what you have said about the need for the Court to consider the generality of the application of the Mabo decision to the mainland of Australia, would you care to express a view as to whether it was justified in pursuing that line in the absence of any representation from either Aboriginals or non‑Aboriginals from the mainland of Australia? It appears to me that the Court made that decision and that application in the total absence of any representation from persons greatly affected.

To which the learned professor replied,

In the Mabo decision, the High Court did not purport to decide any particular claim of native title in respect of any land other than the Murray Islands. What it did was declare certain principles; and that is a time‑honoured function of the courts in our constitutional system. It is a function that the English courts have been performing for at least four centuries, probably longer, and it is a function which our courts have been performing ever since European occupation of this country and the inheritance of English law.[10]

The replies by the learned professor confirmed (a) that the High Court had purported to make rulings on law relating to mainland Aboriginals and (b) that the High Court had the constitutional power to make declarations on certain principals of law when it felt the need. In Air Canada v Secretary of State for Trade, Lord Wilberforce observed: “[T]he task of the court is to do, and be seen to be doing, justice between the parties … There is no higher or additional duty to ascertain some independent truth.”[11]

My view of what the Gang of Four (Brennan, Deane, Gaudron and Toohey) did was to purport to give an advisory opinion on the issue of native title on mainland Australia. They had fallen victim to the Big Picture syndrome. Although the professor was wrong in saying the High Court has constitutional jurisdiction to give advisory opinions, he supports my analysis of what Brennan, Deane, Gaudron and Toohey (Gang of Four) were doing, which was unconstitutional.

I now turn to Mason C.J. and McHugh J. who said, 4. The formal order to be made by the Court accords with the declaration proposed by Brennan J. but is cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration in par.2 of the formal order.

The above statement by Mason C.J., in my view, confirms and reinforces my analysis of the judgments of Brennan, Deane, Gaudron and Toohey (Gang of Four) that they contained advisory opinions on the law relating to the settlement of mainland Australia and, therefore, should be dismissed as unconstitutional.

There is an important issue arising from this and that is, some might argue or suggest that, although the ratio decidendi of Mabo is very narrow, the judicial reasoning by the Gang of Four, in particular Brennan J., might be treated as obiter dicta and nevertheless remain authoritative regarding mainland Aboriginal land rights. If that part of the judgment which constitutes the advisory opinion is unconstitutional, then the reasoning can have no authoritative value. The historical narrative adopted by the Gang of Four is a tawdry example of the doxa of the Black Armband school in which an overlord is said to oppress the underdog with trickery, treachery and dishonesty dressed up as solemn principles of law, like discovery coupled with terra nullius and social Darwinism. The narrative is hearsay, not sworn testimony tested in a court of law according to the principles of due process and natural justice, where each party is represented by his chosen advocate.[12]

On the other hand, some commentators have viewed the inclusion of mainland Aboriginals in the judgments as a gross example of judicial overreaching. Judicial overreaching often equates with judicial law making. In common law jurisdictions, the theory is that the function of the court is to make declaratory judgments, reaffirming pre-existing customs or case law. However, an often-quoted criticism of the common law is that it is judge made law. On occasion, critics have gone a step further and labelled some judgments as clear examples of the judiciary legislative function.

This idea of the High Court in Mabo No. 2 overstepping the boundaries of the declaratory theory of strict and complete legalism is a wonderful cover or red herring. It is a fertile area of constant controversy amongst academics, who make a living from the debate. I refer the reader to Michael Kirby’s article The Politics of Mabo for a discussion on how the High Court was simply updating the common law of Australia to reflect modern concepts of social justice.[13] From Kirby’s judgment in North Ganalanja Aboriginal Corporation and Anor for and on Behalf of the Waanyi People v The State of Queensland and Ors above, the reader can deduce that Kirby is gung-ho when it comes to moving away from the strict theory of judicial restraint to the new policy of judicial creativity. Mabo No. 2 is a wonderful illustration of the political power and the lack of accountability of the High Court, which is often concealed from the public.

Quis custodiet ipsos custodes? (Who will guard the guardians?) That section or part of the judgments of Brennan, Deane, Gaudron and Toohey (Gang of Four) relating to mainland Aboriginals might be labelled a Noble Lie – certainly, the narrative outlined by the Gang of Four relating to the treatment of mainland Aboriginals is. The overwhelming failure of full blood Aboriginals to thrive and prosper under white settlement has confounded many Australians from the first day Arthur Phillip stepped ashore. The reaction or empathy to this collapse of tribal society has ranged across a wide spectrum to the extreme view that their situation is one of national tragedy reflecting very badly on the national ethos. That position is taken by those suffering from the delusion of historical revisionism which includes most minorities whether indigenous, ethnic, sexual, political, religious etc. and, of course, leftwing groups whether political, academic, feminists, environmentalists, journalists, social, etc.

Intervention by Attorneys-General.[14]

The Australian Law Reform Commission recommended that s 78A of the Judiciary Act be amended to provide for intervention by the Attorney-General of the Commonwealth and the Attorney-General of each State and Territory as follows:

The section should be amended to confer on each Attorney-General a right to intervene in non-constitutional matters that raise an important question affecting the public interest in the jurisdiction represented by that Attorney-General. The court should be given a power to direct whether the right of intervention shall be exercised by the presentation of written submissions, oral argument, or both.[15]

Although the ALRC made no mention of Mabo No. 2, but given the uproar the decision caused, perhaps, the recommendation seems reasonable.

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[1] [1921] HCA 20; 29 CLR 257.

[2] See Final Report of the Constitutional Commission 1988, PP no. 229 of 1988, Vol. 1, pp 414-417.

[3] [1996] HCA 2; (1996) 185 CLR 595 8 February 1996.

[4] [1996] HCA 40; (1996) 187 CLR 1; (1996) 141 ALR 129; (1996) 71 ALJR 173 (23 December 1996).

[5] White, The Honourable Margaret AO — “Mabo v State of Queensland (No 2): a personal recollection, (QSC)” [2016] QldJSchol 31. See pp 71-72 above.

[6] See appendix 20 & 21, A Mabo Memoir: Islan Kustom to Native Title, B Keon-Cohen 2013, Zemic Press p 506.

[7] Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45, 64 (Barwick CJ and Kitto J).

[8] The Gang of Four was a Maoist political faction who came to prominence during the Chinese Cultural Revolution (1966–1976) for their excesses in the Cultural Revolution. The same might be said of Brennan, Deane, Gaudron and Toohey.

[9] Crommelin ″Mabo: The Decision and the Debate″ Papers on Parliament No. 22, February 1994.

[10] Crommelin ″Mabo: The Decision and the Debate″ Papers on Parliament No. 22, February 1994.

[11] [1983] 2 AC 394 at 438.

[12] By the end of this book, I will have demonstrated that the Gang of Four were committed converts to Henry Reynolds’ history of Australia and willing implemented his dogma disregarding constitutional safeguards and the judicial safeguards of due process.

[13] Michael Kirby, Source: The Australian Quarterly, Summer, 1993, Vol. 65, No. 4, The Politics of Mabo (Summer, 1993), pp. 66-81

[14] Re: S78B, Mabo & Ors v Queensland & Anor (B12/1982) (“Mabo Case”) – Volume 8 – Transcript Before Mason CJ [1991] HCASCF 19 (20 March 1991) pp 9-11. Peter Connolly CBE, QC, observed: “While not a mystery, it has not been apparent to most of us that the Commonwealth was at first a defendant, managed to extract itself from that position, and become an intervener, and ultimately made no submission to the court. In other words, the Commonwealth instead of defending the interests of Australians generally ran dead. There can be no doubt that it thereby accepted a share of responsibility for the outcome.” Weekend Australian, September 11-12, 1993, p 24.

[15] ALRC 92 The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, 31 July 2001, Recommendation 14-1.

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