Mabo Trial CourtIntroduction Mabo has provoked a remarkable upsurge of interest in the High Court and its decisions, certainly not seen since the Tasmanian Dam’s case1 was decided over eleven years ago. The decision resulted in the creation of a new principle of great public significance. The wider role undertaken by the High Court has exposed the judiciary to a number of moral and political criticisms.2 One such argument has centred on whether the High Court overstepped the boundary of its judicial functions, as allotted to it within the separation of powers doctrine, and adopted a character increasingly legislative in appearance. Mabo v Queensland Mabo basically decided that common law recognised native title; proof of native title needed to be proved by indigenous inhabitants having through their rules and customs a traditional association with the land and finally, that native title could be extinguished either by the Crown or the Indigenous people themselves.3 The High Court also abolished terra nullius because it was false in fact as the Indigenous inhabitants of Australia had social organisations and laws which were neither non-existent or sufficiently +barbaric+ as pointed out by Blackburn J in Milirrpum v Nabalco Pty Ltd.4 The doctrine was inconsistent with International Law, as it had been rejected in Advisory opinion on Western Sahara5, and offended many international treaties which Australia was a signatory. Brennan J thought that to apply such a concept was racially discriminatory and perpetuating injustice.6 The removal of terra nullius from common law was essentially a policy decision and this seemed most problematic for the many who cry that the High Court has trespassed into the legislative sphere. It has been asserted that it is Parliament+s responsibility not the Courts to severe te dead wood from the common law, no matter how unjust.7 This can be seen in the wider context as implying that judges when exercising judicial power subscribe only to the declaratory theory of law; their duty is to declare the law as it is and not how it should be. If this is so, and policy decisions are alien to judicial power8 , then Mabo has made a change to the separation of powers. This must be dispelled in order to return he decision back into the realms of the judicial sphere. The Separation of Powers The separation of powers doctrine asserts that governmental functions can be divided into three categories: legislative, executive and judicial; that the institutions of government should be similarly divided into the three neat compartments of legislature, executive and judiciary – with the consequence that the functions and institutions of government are kept strictly independent of one another.9 Friction between the three institutions is nothing new as the confrontation of King James I and Lord Coke in Prohibitions Del Roy10 illustrates. The dispute between the King, as the head of the Executive Government, and the judges over the right to exercise judicial power ended ultimately, and thankfully with the judge+s triumphing. In Australia, the Commonwealth of Australia Constitution Act 1900 (Cth) appears to reflect the separation of powers doctrine. Within the Constitution are three Chapters titled: ‘Chapter 1 – The Parliament’. ‘Chapter II – The Executive Government’, and ‘Chapter III – The Judicature’. Three sections ‘vest’ each of the functions of government in one of these institutions11 . s1 (Chapter I) provides: ‘The legislative power of the Commonwealth shall be vested in a Federal Parliament…’. s61 (Chapter II) declares: ‘The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative…’. s71 requires: ‘The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction…’. However the division between the Legislature and the Executive is still not heavily defined because responsible government is the central feature of the Australian Constitutional System. Responsible Government, inherited from our Westminster traditions requires the executive branch to be directed by Ministers who are members of, and politically supported by the Legislature.12 However, between the legislature and executive powers on the one hand and judicial power on the other, there is great devage.13 Justice Deane in Street v Queensland Bar Association14 described the independence of the judiciary as the most important guarantee that a citizen enjoys under our Constitution. The case of R v Kirby; Ex parte Boilermakers Society of Australia15 helped define the courts view of the separation of powers doctrine in Australia. The case essentially decided that power which was not judicial or incidental thereof, could not be conferred on or exercised by a Federal Court or on a State Court exercising federal jurisdiction; and power which is judicial can not be conferred on or exercised by any body that is not a +court+ within the meaning of s71 of the Constitution.16 One definition of judicial power can be found in the judgement of Griffith CJ in Juddart Parker v Moorehead17 where he said it was the power that a court has of necessity to decide controversies between its subjects, and is not exercised until a tribunal which has authority to give a binding decision is called upon to take action. However the High Court has not been able to reach a consensus as to an agreed defintion of of what judicial power is. This is highlighted in the joint judgements of Dixon CJ and McTiernan J in R v Davison where they said, +Many attempts have been made to define judicial power, but it has never been found possible to frame a definition that is at once exclusive and exhaustive.+18 Former Chief Justice, Sir Owen Dixon believes that courts when exercising such power should only apply strict and legalistic approaches to decalre the law.19 Other judges believe, when faced with changing circumstances, that Dixon CJ+s view is not the only way judicial institutions can operate. This has been emphasised by Windeyer J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd20 where he believed that the boundary of the legislature and the judiciary neither by logic or language had ever been clearly and rigidly drawn. For centuries it has always been the belief that courts make new principles and alter old ones, by merely elaborating on statues, this too is the creation of law.21 Kitto J in R v Davison22 believed that legislation, administration and judicial decisions are different stages of the same power or function, namely the making rules which regulate the behaviour of citizens. However different skills and professional habits are needed at different levels of law making. Judicial law-making, requires a high degree of consistency by reasoned elaboration and reference to established concepts and principles. The judge is able to draw on the collective wisdom of the past and act in an interpretative manner; most of all judge-made law in reality is very gradual and incremental.23 The law-making function of a court is different from that of a legislature. It is merely an incident of the duty to adjudicate a dispute between litigants. It arises from a necessity to do justice between the parties and those who stand in similar situations. Thus the rules and principles formulated by judges have been rooted in the facts of particular cases.24 It is the arguments presented that bring to light the issues and the diverging paths open to a court. Judges must take account of relevant policy considerations (for principles of law ultimately rest on underlying considerations of policy) and they have an eye to the practical consequences o the decisions they make.25 Judges, however, are not left at large to do what they please like the legislator. In Burnie Port Authority v General Jones Pty Ltd, McHugh J said the High Court+s facilities, techniques and procedures were not adapted to legislative or law reform activities.26 The question whether a particular legislative enactment is a necessary or even a desirable solution to a particular problem is in large measure a political question best left for resolution to the political process. See Castelmaine Tooheys v South Australia27 regarding s92 of the Constitution and Mason J in Commonwealth v Tasmania28 regarding the external affairs power. Precedent, too curbs judicial law because it proscribes a certainty in the law, which intermediate courts are bound to observe and any changes in the direction of it are left to the highest court in the land. The High Court is not bound by its own decisions, but will not lightly depart from them. See John v Commissioner of Taxation (Cth)29, because no justice is entitled to ignore the reasoning of his predecessors, and to arrive at his own judgement, as though the pages of law reports were blank30 . +In essence stare decisis is an exercise in judicial policy which calls for an assessment of a variety of factors in which judges balance the need for continuity, consistency and predicability against the competing need for justice, flexibility and rationality.+31 The Changing Face of the High Court Since Sir Anthony Mason became Chief Justice of the High Court in 1987, the application of policy considerations in the High Court has become more apparent. The development of the common law has however always produced controversy. In Detrich v The Queen32 , the decision had he effect of giving an accused indigent a right to legal aid. In the case, Brennan J highlighted that while courts have a broad charter, it was limited by the separation of powers, doctrine of precedent and judicial reasoning. He said changes in common law did not come when a judge felt like it, but rather when it was just and rightful, as believed by society. 33 There is no denying the High Court has taken a more activist role in its common law decisions and interpretation of the Commonwealth Constitution. As Sir Anthony himself said, +Nothing is more likely to bring about an erosion of public confidence in the administration of justice than the continued adherence by the courts to rules and doctrines which are unsound and lead to unjust outcomes+34 . This approach is no doubt different to the +strict and complete legalism+ used by the court when Sir Owen Dixon was a judge and continued by his successors in Barwick and Gibbs. However, neither the Mason conception nor the Dixon conception of the role of the judicary can be said to be right or wrong. That would be a purely subjective assessment since each has its relative advantages and disadvantages. What is important, is that both judge+s methods and techniques, although different, are still equally consistent with the notion of the High Court only exercising judicial power. This must be remembered when examining the separation of powers doctrine in light of the decision in Mabo. Conclusion The High Court in the Mabo decision has done no more than what has been done in the United States35, Canada36 and New Zealand37, only it happened much later presumably because Aboriginal Australians could not until recent times get access to the courts. The belief that the doctrine of terra nullius was still strong and long standing in the decisions of Australian courts leading up to the decision in Mabo is wrong. The court did not overturn a vital precedent rather it reflected the changing views held by Australian courts in decisions leading up to Mabo. This was not a +bolt from the judicial blue+ but one of several recent decisions in which the court is facing up to its functions in the era when the declaratory theory of the judicial role is abandoned and the fashioning of a distinctly Australian legal system is being ventured.38 The Mabo decision did not neglect the impact native title could have on our Real Property law. Brennan J clearly contemplated that the acknowledgment of native title would have minimal39 , if any, impact on existing titles and land use under Australian law. Certainly, Aboriginal lawyers did not see Mabo as a goldmine. Noel Pearson said that Mabo had come far too late in the day for the great majority of Aboriginal people who remain fringe dwellers in their own land40. Michael Mansell echoed similar remarks.41 The legislature, did not wish to abolish Mabo, they approved of it and improved on it by passing the Native Title Act 1993 (Cth). It is concluded that the separation of powers has not been transformed after the decision on the 3 June 1992 because the judges were only exercising judicial power. Footnotes 1 Commonwealth v Tasmania (1983) 158 CLR 1 2 The Hon G.E. Fitzgerald, +Law Reform – the Judge+s Role+, The Mayo Lecture, 2 September 1994, p.8. 3 Brian Keon-Cohen, +Eddie Mabo and Ors v The State of Queensland+, Aboriginal Law Bulletin, vol. 2, no. 56, 1992, p.22. 4 McGuiness, P. 1992, The Australian, 13 Oct, p.3. 5  1 CJR 12. 6 Mabo v Queensland (1992) 66 ALJR 408 at 422. 7 Morgan, H. 1993, +Mabo, Australia & the High Court+, The Reporter, Iss4, p8 at 12. 8 Kirby, M. 1994, +In Defence of Mabo+, The Reporter, Issue 1, p18. 9 Hanks, P. 1994, Australian Constitutional Law: Materials and Commentary, 5th Edn, Butterworths, Sydney, NSW, p227. 10 (1607) 71 ER 1342 11 David Malcolm, ‘High Court and Democracy’. The West Australian , 25 June 1994, p. 47. 12 Gibbs, H. 1987, +The Separation of Powers – A Comparison+, Federal Law Review, Canberra, Vol. 17, p151 at 152. 13 Moore, H. 1920, Constitution of the Commonwealth of Australia, 2nd Edition. 14 (1989) 63 ALJR 715 at 737. 15 (1956) 94 CLR 254 16 Zines, L. 1992, +The High Court and the Constitution+, 3rd Edition, Butterworths, Sydney, NSW, p151. 17 (1909) 8 CLR 330 at 357 18 (1954) 90 CLR 357 at 366 19 McHugh, M. 1988, +The Law-Making Function and the Judicial Process – Part II+, Australian Law Journal, Vol 62, p116 at 127. 20 (1970) 44 ALJR 126 at 138. 21 Polyukhovich v The Commonwealth (1991) 65 ALJR 521 at 526. 22 (1954) ALR 377 at 392-93 23 Mason, A. 1993, The Australian, 8 Nov, p11. 24 Burnie Port Authority v General Jones Pty Ltd (1994) 68 ALJR 331. 25 Mason, A. 1993, The Australian, 8 Nov, p11. 26 Burnie Port Authority v General Jones Pty Ltd (1994) 68 ALJR 331. 27 (1990) 64 ALJR 145 at 152-53 28 (1983) 158 CLR 1 at 125-26 29 (1989) 166 CLR 417 at 438-39 30 Queensland v Commonwealth (1977) 139 CLR 585 at 599 per Gibbs J. 31 Mason, A. 1988, +The Use and Abuse of Precedent+, Australian Bar Review, Vol. 4, p93 at 111. 32 (1993) 67 ALJR 1 33 Ibid at 18 34 Mason, A. 1994, +Courts must apply just, sound rules+, Australian Lawyer, May, p14. 35 United States v Santa Fe Railroads (1941) 314 US 339 36 Calder v Attorney General of British Columbia (1973) SCR 313 37 R v Johnson (1847) NZPCC 387 38 Kirby, M. 1994, +In Defence of Mabo+, The Reporter, Issue 1, p18. 39 Mabo v Queensland (1992) 107 ALR 1 at 69 40 Pearson, N 1993, +204 Years of Invisible Title+, in Mabo: A Judicial Revolution, Stephenson, M.A. & Ratrapala, UQ Press, St Lucia Qld at 82. 41 Mansell, M. 1992, +The Court gives an Inch but takes another Mile+, Aboriginal Law Bulletin, Vol. 2, No. 57, p4 at 6. 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