Discriminating in favour of the Aboriginal people Justice Brennan said:
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 a race or ethnic origin for it denies the capacity of some categories of indigenous inhabitants to have any rights or interests in land. —(Mabo v Queensland 1992:15).
A fundamental basis of rational discrimination principles is that differentiation on ground of reason and principle is permissible. There are sound reasons for regarding the Meriam people as fundamentally different from the Aboriginal people for two reasons. (i) The former had a continued and unbroken association with the land during the nineteenth and twentieth centuries. (ii) They were a settled agricultural community, unlike the Aborigines on the mainland who were nomadic in character.
The judgments of the 6 judges carry the implication that what is said about the Murray Islanders also applies to Aborigines. Having raised that implication, they cannot defend the decision by falling back on attempts to distinguish between what is the ratio of the case and binding and what is not. They have by the manner in which their judgments are expressed and the public issues raised made it difficult to confine the decision to specific issues which were decided in the case.
The High Court could have confined its decision. It chose not to do so. It must bear the consequences for that choice. The High Court cannot claim that its decision has been misrepresented or more has been read into it than was intended. They provided a clear basis for misunderstanding and misrepresentation.
Hulme provides a devastating critique of the above quotation from Justice Brennan. (Hulme 1993:143-145).
Discrimination against the majority of Australians
The Mabo Edict has provided a new form of title to land for a minority group of Australians, based on race. This will not be an act of discrimination which offends the Racial Discrimination Act, because of the way in which the Act is drafted. Yet 98.5% of the Australian population will not be able to claim native title because they are not racially Aboriginal or Torres Strait Islanders. Is this not an Act of racial discrimination?
The High Court itself seems to have provided an indication that any attempt by State Parliament, elected by the people, to abolish or modify the native titles invented by the High Court will be an act of racial discrimination, which will render the Act invalid. Compensation issues may also arise.
Discrimination is inevitable
Discrimination is an inevitable part of life. Individuals make decisions all the time in their daily lives. They discriminate in relation to friends, spouses, with whom they associate, whom they benefit etc. The law cannot police all discrimination.
It is desirable that discrimination is made on the basis of reason, principle and good conscience. This may not always happen. but who is to decide what is "reason", "principle" and "good conscience"?
The legal principle of equality before the law which underlies legal discrimination proceeds on the basis that some differentiations are inevitable. Differentiations should be made on the basis of reason and principle. The judges of the High Court could not see any reason to differentiate between the Meriam islanders and the Aboriginal people, because they did not consider the issue.
The Meriam people are a settled agricultural community. The Aboriginal people by and large are nomadic and history (except the false history which activists manufacture) provides no evidence of settled communities. If this issue is arguable, the High Court should have received expert evidence on the subject before rushing to make a determination.
There were many people with interests in land affected by the equation of the position of the Meriam islanders and the Aboriginal people. The High Court treated their interests with contempt.
There were no private persons with established interests in land whose interests conflicted with those of the Islanders. On the other hand there are people on the mainland with competing claims. Should this factor be ignored?
It is a reflection on the shoddy legal methodology of the Court that such a statement was made without the benefit of any submission from counsel on the issue. If the judges had a modicum of respect for due process and the basic methodology of the legal system, they would have avoided making a determination without argument.
The judges demonstrated their contempt for basic legal principles and due process.
They have demonstrated similar unbounded arrogance in Mabo and some other decisions in the fields of constitutional law and the common law.