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National Observer Home > No. 56 - Autumn 2003 > Articles


Professor Leslie R. Marchant

The most disconcerting outcome of the Mabo and native land title affair is that the High Court turned the Australian system of parliamentary democracy topsy turvey, by assuming the role of law maker in place of Parliament. For the legal judgment laid down new principles for the nation that required new legislation by Parliament. It should have been the other way around. The matter should have been discussed by the elected Parliament, laws passed, and the judicial branch set to make judgments on these where required.


The Westminster System of parliamentary democracy, inherited by Australia, is fashioned like this: the citizens are sovereign, and hold sovereign power. They are all governed according to the Rule of Law no matter how high or insignificant they are placed. The laws that rule citizens are passed by an elected Parliament.


A system of checks and balances was created, as the absolutist monarchies crumbled, to ensure that this system prevailed. This was done by separating powers into three branches of government.


Parliament, elected by citizens and representing these is the highest sovereign body in the land. It alone can raise and spend taxes, and pass laws.


The Executive Branch, known as the Crown, and formed by Cabinet and Ministers of the Crown and public servants, administers the laws passed by parliament. It cannot make laws or decrees or raise or spend taxes without the authority of the elected Parliament.


The third branch, the Judiciary, also cannot make laws. Its role is purely judicial, that is, administering justice, and making judgments according to the laws passed by Parliament.


There have been departures from this pattern. After strong, ambitious political parties emerged with ideologies, the parties which won elections often claimed to have a mandate to govern and carry out their program without parliamentary obstruction. This gave rise to “Executive Style Government” led by Chief Ministers and their Cabinets, with Parliament being undermined or bypassed, or treated as a rubber stamp so that the laws passed reflected the party platform or ideology. The late Patrick O’Brien, in such works as The Executive State: W.A. Inc. and the Constitution, 1991, wrote extensively on the rise of the Executive State in which Ministers acted like monarchs of old, manipulating parliament for their own purpose, or treating it as an obstruction.


More recently, some judges who believe they can fashion the State and its citizens better than elected parliaments have followed the same direction. But in their case this is done, especially at High Court level, by way of judgments which take on the appearance of Common Law binding all. The main difference between the Executive Branch and the Judiciary when they try to lay down the law, is that Cabinet members are also elected Members of Parliament. They can operate in that sphere. Judges cannot. They are appointed. The only way open for them to pass the laws they think should be passed, is to stand for Parliament to join the legislative branch where their proposals will be debated by elected members. Newly appointed High Court Judge, Justice Dyson Heydon, has written a comprehensive, incisive study of this in an article entitled “Judicial activism and the death of the Rule of Law”.


It was in the debate stage of legislation, that the weakness of the Mabo decision and about native land rights, and the weakness of the Westminster System of government in Australia, were both revealed. For the debates were confined to the judiciary which was not as well equipped as Parliament for that process. They purported to be primarily legal discourses. And Parliament never got the chance to broaden these, as should happen in a modern parliamentary democracy.


Five basic issues, four legal and historical, and one about ethics, should have been addressed and thoroughly discussed as soon as the project about “native title” was mooted. The four legal ones were first, whether the Torres Strait Islander Mr. Mabo was the right choice of person to make decisions about Australian Aborigines? Secondly, what place is held by the Torres Strait Islands in the Commonwealth of Australia? Thirdly, did any other power have or previously have sovereign rights in Australia? Fourthly, was Australia a Terra Nullius, as discussed by the High Court? The ethical question that needed to be discussed, was not “who owns the land?”, but, in view of the world need for food, “how should the land in Australia be used?” and “who should use the land? to ensure the production of plenty”?.


These issues were never explored or discussed, although the standing and acceptance of the final legal judgment by others would rest upon them. For disregarding them promised not only that the Australian High Court judgment would be of little or no use in helping to guide other nations with similar situations, who should have been offered a well thought out precedent to follow. It also promised to cause persistent problems with the judgment at home.


The main cause of ignoring the basic issues, and relegating them to the margin, is that they, like the form of land ownership existing in Australia, are the products of history, and history seldom has a function in legal judgments which primarily are based on the expression and usage of words and terms, although historical evidence is sometimes brought in and referred to.


These four legal issues which needed to be addressed, are primarily historical. They belong to, and were fashioned by the colonial past when Australia was settled by Britain in a spasmodic manner, with the idea of bringing its lands into production to add to the wealth of nations and prosper people globally in the way envisaged by

intellectuals in the Age of Enlightenment who sought the world to be in a more natural state.



The High Court’s election of the Torres Strait Islander, Mr. Mabo, to decide on the position of Australian Aborigines consequent to colonisation by Britain, is unimpressive. An historian would not have made that choice. For those islands and the people on them were closely linked with New Guinea and its people, as missionary and other records show. More important, the Torres Strait Islanders, unlike aboriginal people on mainland Australia, have an agricultural socio-economy. They are not hunters and fishers and food gatherers. They use their land for production. Missionaries in the London Missionary Society, in fact were so impressed by this, that they considered converting and training Torres Strait Islanders to serve as a vanguard to send to convert the Australian Aborigines, and lead them to “advance” economically from the state of “hunting and food gathering”, to be tillers of the land.


Choosing Mr. Mabo was rather like having an American Court select a resident of Puerto Rico, to make a judgment about the Indians on the plains of North America.


The Torres Strait Islands and the Commonwealth

Little time was spent by the High Court, apart from Justice Brennan, on discussing the Torres Strait Islands. Views were concentrated primarily on New South Wales. But Mr. Mabo’s homeland has nothing to do with that part of Australia. The Torres Strait Islands were not included in the area annexed by Cook in 1770, to become New South Wales. Those islands were annexed by the colony of Queensland more than a century later, in doubtful circumstances, posing the legal problem “Can colonies colonise?”. Brennan misses these complexities, which are relevant in history, for Britain was reluctant to move. The islands, which probably should have gone to New Guinea, after federation ended up as part of the Commonwealth of Australia, providing it with an advantage in northern waters which the Mabo judgment might have endorsed and confirmed.


This possible endorsement opens the way for two critical comments, both concerned with 1990s politics, by future historians. It could be claimed that, while other colonial powers decolonised in the face of growing liberation movements, the High Court has stifled any such attempt in the Torres Strait Islands by integrating them into a national Australian structure, and funding them, instead of allowing them to become independent like others. It could also be claimed that this arrangement, made by the High Court, preserves Australian control over the busy Strait that separates Australia from New Guinea, and forms a seaway from the Indian Ocean to the Pacific. That Strait, which is of value strategically and commercially, is now in the sole hands of Australia. This matter, which concerns the pattern of the Pacific, might have been raised by an informed parliamentarian, and debated, if native title had been handled by the Parliament.



The third item, which should have been roundly discussed, was the neighbourly one of did any other state or nation possess “sovereign rights” in Australian territory, either by claim or usage? The point about this is that it would add a new dimension to the British annexation of native lands in Australia.


This factor in Australian history has not been explored by scholars, as it should have been. Emphasis, instead, has been placed on, and funding primarily devoted to finding out which European power first discovered and charted the Australian continent. Ample evidence exists to show that Australia has a more complex and diverse history, especially on its northern and western sides. For the western coast forms part of the Indian Ocean rim which saw great civilisations rise and explore and spread, while the northern part, which abuts the Spice Islands and shares the same monsoons, lies close enough to be part of the empires created in that monsoon region. Documentary and other evidence, including botanical and Aboriginal legend, indicates that offshore reefs and coastal parts in northern Australia formed part of the oceanic territories of the Sultanates formed in Indonesia. There certainly is evidence of rice being cultivated at Cape York. What the Chinese and later empires such as the Portuguese did was incorporate overseas territories as vassal states. The point about this in regard to Australia is that the tribal system found in Australia did not permit that usage which required a structured government.


What Britain did in these circumstances, when it decided to settle the northern part of the continent, was to extinguish all other sovereign rights by imposing the British Rule of Law, in particular those for customs and immigration. This was not difficult to do, for by then the Dutch had undone the power of the Indonesian Sultanates, whose power completely disappeared as a result of the Dutch colonial policy of direct rule.



This raises the fourth point about Australia being classified as Terra Nullius (sic) when it was annexed, as the High Court and others have claimed. This classification, which is in error, and imaginative, is quickly dismissed. There is not one mention of Australia being a Terra Nullius in any document in any archives in any relevant nation in Europe. For that term had a special legal meaning which limited the usage of the term to uninhabited places such as Kerguelen Island and Heard Island and Antarctica which were annexed in special ways. Australia had long been known to be inhabited like the New World in America, and was settled in the same context.



The ethical factor which should have been discussed concerns the problem of feeding the world’s growing population, and stems from Thomas Malthus (1766-1834) who posed this problem during years of hardship in Europe, in his Essay on the Principle of Population as it affects the future improvement of Society. This appeared in 1798, not long after New South Wales was settled and brought into production. The moral point raised by this was should lands not in production, then called “waste lands”, be farmed to benefit the world and its people. No doubts were held about the need for this at the time. Hopes were high. Science helped by promising more productive and better strains of animals and more productive yields. That is why volumes of research reports from the Royal Society went to New South Wales from the beginning, to make it a new granary.


Some people, mainly in view of traditional usage, were hurt in the process of converting “waste lands” to production. In Britain, for example, some villagers suffered when the commons were enclosed to help the controlled production of sheep and other stock. This resulted in displacements and personal hardship as has been well recorded. But the matter was not clear-cut. Varieties of moralities were involved, with increased and improved production being the constant aim. This complexity was pinpointed, together with the moralities involved, in a divisive international political action. When Poland was partitioned in 1772, 1793 and 1795, with large tracts going to Russia in 1793 in particular, Britain was not impressed. Russia, however, made the argument against this move difficult by claiming that it was acting for “the good” by converting the large estates kept by a few for “hunting and food gathering noblemen”, to agricultural production. The extensive lands used by hunters and food gatherers abroad were viewed in the same light. Did a few people have the right to tie up lands that could be used for agricultural production?


Certainly the tribal peoples living on what were viewed as “waste lands”, could be incommoded, and their life style radically changed if their land was brought into production. This matter, which was addressed by Aboriginal Protection Societies and concerned individuals at the time, posed serious moral questions which should have been thoroughly explored and debated in the Mabo affair, for the problem of feeding the world’s rising population has not diminished. It has, in fact, grown and is still relevant. Besides this, in modern times, land reform has sometimes taken the form of appropriating the land of productive farmers to distribute to those who are not productive, as happened in China under Mao, and in Zimbabwe, with disastrous results. The course followed in Western Australia after British settlement was to leave the indigenous tribes as they were, and let individual members decide whether to follow a new life style. Some took up occupations. Some farmed. For many settlers, having Aboriginals join in modern society seemed preferable to leaving native peoples as displays for tourism.





The Australian High Court judges’ account of how the Torres Strait Islands people came under their jurisdiction and that of other courts in Australia is glibly presented. One judge, Justice Brennan, lists reasons for its annexation by Queensland, but misses the basic reason. The point is that the Torres Strait Islands were annexed by Britain during the international partition of the Pacific which coincided with the colonial scramble for Africa and the slightly later scramble for Asian territory which resulted in colonisation by means of leasehold territory in China, such as in the case of the New Territories in Hong Kong which evidenced a new style of colonial expansion. Britain participated in this partition which was done in accordance with then accepted principles of international law.


The annexation of the Torres Strait Islands with its own indigenous people, was prompted by the colony of Queensland which did not possess the legal right to extend its colonial boundaries. That was the sole right of the Parliament in Westminster. Colonies cannot legally colonise.


Other territories in the Pacific were acquired by Britain for its Second Empire during the partition of that ocean, in different ways with different arrangements and conditions. Unlike the Torres Strait Islands, each of these colonial territories later achieved independence in one form or another during the period of decolonisation when Britain withdrew from abroad to become involved with regional growth in Europe. Unlike Britain, Australia did not decolonise. It preserved its control over its acquisitions giving its High Court continued jurisdiction in these overseas territories which were not originally included in the colony of New South Wales.


This point is relevant to the understanding of the current situation in regard to the Torres Strait Islands. For what has happened is that the Australian High Court judges have assumed the duties of international court judges. Their Mabo decision is not only of domestic interest and significance. What they have decided in regard to Australian colonial territory may have repercussions abroad. For Mabo seems to have been designed as more than a test case for Australia, and a precedent.


Of interest in this regard is the case of Fiji. This was acquired by Britain in 1874, a hundred years after it was visited by Cook. There Fijians retained large measures of self government under Fijian leaders of rank. The continuance of this traditional system was threatened by British colonial developed Indian immigration. These immigrants settled and acquired property which promised to cause conflict. This emerged when the Fijian chiefs acted to preserve traditional native rights. The interesting thing about this as far as Australia is concerned is that the Australian Government, primarily for political ideological reasons, supported the immigrant Indian group, the not traditional Fiji native owners of the island.

This appears contrary to the line the Australian follows in regard to its own colonial territories. Torres Strait Islanders remain owners of their land as in New Guinea where native land ownership, in general, was maintained and protected.



Although the Mabo case related to the Torres Strait Islanders, the Hight court judges inexplicably wrote at length about the Australian situation. The written judgment by Justices Deane and Gaudron, for example, cover 36 pages, extending from page 56 to page 91 in the judgment. On the second page of this the judges devote two lines plus one word about the Torres Strait Islands where Mr. Mabo lived. The next thirty pages are devoted to the subject of New South Wales which is remote geographically, historically and legally from the Torres Strait Islands. In the last five pages the judges come back to the subject.


What is also essential here is to explain how Australia was annexed and occupied. This was done in different parts of the continent at different times. Britain did not annex Australia in 1770 and occupy it in 1788 as the High Court judges imply. New Holland, as the continent was then known, was politically partitioned as a result of the first partition of the Pacific and later the Indian Ocean which began after the Seven Years War (1756 - 1763).The western part of the continent was not acquired by Britain until 1829, nearly half a century after Cook took New South Wales. Western Australia therefore has totally different political and legal foundations from those of New South Wales, and had totally different relations with the aborigines in that territory. And these relations were made in accordance with legal authorities which were totally different from those in the mid 18th century which are used and quoted by the Australian High Court judges who treat New South Wales as if it were all of Australia. For by the time Western Australia was founded as a colony, Vattel no longer provided the guiding principles of international law.


The current danger is that the High Court account of the history of Australian annexation and that of the Torres Strait Islands may be used as the authoritative text for present and future debate on the topic and to justify now and for posterity political actions which will be taken in accordance with the High Court’s image of Australian history. This should not be allowed to happen. Bad texts, even if they are accepted and praised by some who approve the ideas in them, cause irreparable damage and do not win intellectual respect. They are viewed critically by uncommitted scholars who are well informed, and are invariably discounted and ridiculed by writers in later ages where there exist more balanced views and less over-riding conviction amongst historians and other commentators who use their talents to serve fashionable causes.


Quadrant, January ñ February 2003


National Observer No. 56 - Autumn 2003