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Much ado about Mason

By Dilan Thampapillai - posted Wednesday, 18 July 2007

The publication of Jason Pierce’s book Inside the Mason Court Revolution: The High Court of Australia Transformed has stirred up the smouldering embers of past controversies on judicial activism. The frank and anonymous comments contained within Pierce’s book purport to be from past and present members of the judiciary. The comments are candid and those quoted by Janet Albrechtsen in her article in The Australian (July 14, 2007) are indeed controversial.

It would appear that some members of the judiciary are scathing in their appraisal of the Mason court whereas others are less than complimentary in their views on politicians. There is equally much division in their views on the appropriate role of the judiciary within the legal system.

No doubt Pierce’s book will be a fascinating insight into the Mason Court. It will also be quite illuminating in relation to the private views of our nation’s judges. Though a caveat must be added that the opinions are all anonymous. That said, there is no suggestion that the opinions are not genuine.


However, whether the book really challenges our perceptions of the Mason court, its place in history and the proper role of the judiciary, is quite debatable. Indeed, while the so-called traditionalists might rail against the decisions of the Mason court there has yet to be a convincing analysis to suggest that its two landmark decisions, Mabo and implied rights, are in fact wrong.

First, the Mabo decision is simply a correct legal analysis of a seemingly intractable problem. Recognising native title rights may well have solved a difficult political problem, but this was incidental and not central to the legal question at hand. Explaining this point to non-lawyers is difficult. But in its simplest terms all land that is owned within the common law system is held by grant of the Crown. The Crown sits at the apex of our constitutional system and has the highest claim on the land. However, not all the land that is owned within Australia under a property-type of relationship owes its ownership to a grant from the Crown.

Whereas the Crown may have gained sovereignty over Australia at the time of settlement this did not mean that it disturbed or extinguished all the forms of property ownership within the land. There were some parts of the land to which the common law did not spread. To actually acquire ownership of all the land the Crown would have needed for Australia to be terra nullius.

While terra nullius may have gained a particular stigma within Australia it is actually a simple concept within international law. In this context terra nullius requires that there either be nobody on the land or that the people on the land not be asserting any sovereign or ownership rights over the land.

The previously held view of the Australian Government and courts that Australia was indeed terra nullius at the time of settlement was simply wrong. It is more than clear that the Indigenous peoples of the past, and some surviving groups in the present, had legal systems and asserted property rights over land.

Given all that we know now anybody who continues to assert that Australia was terra nullius at the time of settlement simply has no credibility.


It followed that the High Court needed to explain how surviving Indigenous property rights could co-exist with the Crown. The answer supplied by the High Court was that upon settlement the Crown gained radical sovereign title to Australia.

Where native title ceased to exist the land was held by grant of the Crown under the doctrine of tenure. Where native title continued to exist the title was independent of the doctrine of tenure but could be extinguished by a valid Crown grant. The limitation upon this last point is that where the Crown now extinguishes native title it may be required to pay compensation by virtue of the Racial Discrimination Act 1975 (Cth). Australia cannot derogate from the Racial Discrimination Act being there is a jus cogens norm against racial discrimination.

There is much more complexity now to native title, but in a nutshell that is the basic gist of the Mabo decision. It created a political stir at the time. Much of the controversy owed itself to the perfectly understandable fears of non-lawyers as well as the exaggerations of some politicians. But for all the rumblings our democracy survived. More importantly, the High Court corrected what had been a profound legal wrong on the basis of a sound and robust legal analysis.

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About the Author

Dilan Thampapillai is a lecturer with the College of Law at the Australian National University. These are his personal views.

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