Mabo is in law a judicial decision but in substance it is more akin to an Act of Parliament. Therefore I refer to it as the Mabo edict.
The principles stated in the two judicial decisions (Brown and Milirrpum) referred to above and other decisions would have been accepted as a statement of law prior to the Mabo Edict by lawyers and legal academics — though some would have argued that the law was unjust and should be reformed.
Professor Brian Galligan (Galligan:1993:20) says
"the High Court is indeed making law, but that has always been the case."
This statement by a supporter of Mabo conceded that Mabo involves judicial law making. The second part of the sentence is controversial. It is argued below that in no other case in Australia has a court "legislated" in such a far reaching way.
W.R.D. Hassell (Hassell:1993:3) a student of the Hon Mr. Justice Toohey when he was a law teacher at the University of Western Australia in the early 1960's states that he was taught the law of real property by the then Mr John Toohey. He says
"I was taught nothing about native title — because there was nothing to teach".
There seems little doubt that the Mabo Edict involved a fundamental departure from the pre-existing law. This is accepted even by the supporters of the decision. Hence another reason to support the reference to the Mabo Edict (a law made by a legislator) rather than to the Mabo judicial decision.
The law making function of the Court is defended by those who enthusiastically identify with the Edict — especially by academics whose writings provided the foundations for the Edict.