Friday 29 June 2012

Gillard outscources the Aslyum impasse

Politicians of all sides must be left room to move, to save face, to eat humble pie. For the life of me I still fail to understand how a supposed 'libertarian' Government can look its fellow politicians and supporters in the eye and say lets send them to Malaysia, a country with a questionable human rights record, as a deterrent. I find this action as symptomatic of the reasons why the Gillard Government is so lost in the eyes of the electorate.

Why is there a need to process them off score...why can't they be processed on shore? Fraser and Hawke had no problem with accommodating the Vietnamese and Chinese respectively. Why does Gillard have such a problem to do like wise, especially with asylum seeker that stem from the ravages of wars, wars that have been supported and fought by the Gillard Government.

Gillard is desperately trying to bridge the political and humanitarian impasse. I believe Gillard has set up the latest Refuge Panel with the hope that it will recommend that Gillard abandons the Malaysian solution, thereby building a pontoon for Gillard to escape from her embarrassing non tenable position.

As far as Gillard is concerned she is in a no win situation, a situation that is of her making. If Gillard somehow manages to tag along the coat tails of the anticipated recommendations of the Panel, that is to abandon Malaysia as a asylum solution, Gillard will be then be seen by the electorate as lacking political judgement in the first place. Bottom line Abbott wins again. Some say to smart for Gillard.
Ross Parisi.

Wednesday 20 June 2012

EARTHQUAKE: 5.3-magnitude tremor rocks Victoria for at least 20 seconds

5.3-magnitude quake struck 10km southwest of Moe
  • Seismologist recorded the massive murmur at 10km deep
  • Residents report the shaking lasted up to 40 seconds
quake damage melbourne 
Bottles fly off shelves at a supermarket in Victoria.

Picture: Nathan Dent / THE biggest earthquake for more than a century has hit Victoria tonight with millions feeling it when it struck just before 9pm (AEST) for around 30 to 40 seconds.
Reports started coming in from residents in suburban Melbourne, and then spread to the northeast and southeast of the state.

Windows were rattled, floors rocked and roofs shaken as the quake struck around 8.55pm. The Geoscience Australia website was in meltdown as people flocked online to find out what occurred and Twitter went wild and when Geoscience was able to restore its site it had the news that the quake that rocked Victoria was the biggest in the state for 109 years.

The US geological survey reported the earthquake was almost 10km deep with an epicentre between Trafalgar and Moe in the southeast. The SES says it's had more than 30 calls for help. The USGS reported the earthquake hit 120km out of Melbourne, some 10km southwest of Moe. The USGS registered it as a 5.2-magnitude quake, but Geoscience Australia clocked it at 5.3, revising it down from an initial 5.5 reading. Readers have swamped the Herald Sun with calls reporting significant tremors from everyone from the suburbs all the way across the state to country Victoria.

The tremor, which lasted about 20 seconds, has been felt from Kilmore, Gippsland, Drouin, Rowville and inner-Melbourne. Reports are coming in from all over the city - from the Dandenongs in the east, Bentleigh in the southeast, Pascoe Vale in the west and through the inner citSeismologist recorded the massive murmur – almost 10km deep - at 8.53pm.

The mammoth quake spread itself statewide, reaching as far as 10km across southwest of Moe in the state's south-southeast, 18km west of Morwell, 30km off Traralgon and 78km southwest of Sale. It is not yet known if the tremor has caused any damage Darren Gay said he felt tremors in Chirnside Park. “The whole house shook for ages,” he said.

Sunbury’s Tori Sims said the event was “very frightening”. “Sitting on the couch with my little boy the whole couch shook and then it sounded like a massive gust of wind and it rocked the house!” she said.
“Would hate to be caught in a major one!” Lauren Gardiner in rural Victoria said it was also felt in north-east Victoria at Tallangatta and Bullioh, east of Wodonga.

The Geoscience Australia website crashed as people flocked online to find out what occurred.
A spokeswoman for Geoscience Australia said its recordings showed it was a magnitude 5.3 earthquake, which was more accurate than international seismologist estimates.

The epicentre has been identified 16km south-west of Moe, at the Latrobe Valley in Victoria’s east.
“Our preliminary information is that it’s a 5.3,” she said. “We haven’t had any reports of local damage yet.”
People who have experienced damage from the quake are urged to contact the SES.

The Bureau of Meteorology said the quake was felt further afield than Melbourne, with reports coming in from Bright and Myrtleford in the northeast and Wonthaggi in the southeast of Victoria.
Ron Smith from Kew said his whole house shook.

"We heard a roar and thought it was the wind," he told AAP."The floor and the walls shook, the whole house shook. Jan Turnbull of East Bentleigh was in bed when the room started moving. My lamps were shaking and the windows were rattling, it was quite strong," she said.

Near the epicentre of the quake, Moe police constable Chris Hand was enjoying a cup of coffee when it hit.
"I had the cup sitting on the table and it spilled over," Const Hand told AAP "We've had a lot of calls but no one is reporting any damage or injuries at this stage. "It was a decent-size rumble, the biggest I've ever felt.
"The ground moved for 15 to 20 seconds."

Anthony Atkin, the duty manager of the Criterion Hotel at Trafalgar, just west of Moe, said he feared for his life when the quake hit. "I thought the roof was going to fall down," Mr Atkin said. "Everyone in the hotel ran outside, it was like a train was coming through the hotel. "I've been here for 44 years and never felt anything like it."
He said the quake lasted for around 20 to 30 seconds "but it felt like a lifetime."
In the state's northeast Bright resident Mandy Ditcham said she felt her house shake just before 9pm and initially thought it was high winds.
"I was sitting by the computer and I felt the ground shaking," Ms Ditcham told AAP. "I thought it must have been really windy outside. It was making the house shake... it lasted for about 10 seconds." She said the tremor was felt all over the alpine area from Wangaratta to Harrietville. Victorian MP Bruce Billson says members of his community are shaken and puzzled.

"There are plenty of people with shaken nerves, wondering what was going on," Mr Billson told the chamber. Mr Billson said the thoughts of MPs were with the citizens in Victoria affected by the earthquake.
"To our community, our thoughts are with all those responding to anxious calls and hope there is no injuries or substantial damage," he said. Mr Billson has been a Liberal MP for the Melbourne outer southeast/Frankston seat of Dunkley since 1996.

- with AAP
* please note the size of the earthquake has fluctuated from initial reports due to more accurate readings becoming available.

                                         ______________   |  ___________

Wednesday 6 June 2012

Venus transit 2012

Venus's 2012 transit across the sun will let researchers test methods for observing Earth-like planets light years away. It's an opportunity that won't be available again until December 2117.

Frequency of Transits
The orbit of Venus is inclined 3.4° with respect to Earth's orbit. It intersects the ecliptic at two points or nodes that cross the Sun each year during early June and December. If Venus happens to pass through inferior conjunction at that time, a transit will occur. Although Venus's orbital period is only 224.7 days, its synodic period (conjunction to conjunction) is 583.9 days. Due to its inclination, most inferior conjunctions of Venus do not result in a transit because the planet passes too far above or below the ecliptic and does not cross the face of the Sun. Venus transits currently recur at intervals of 8, 105.5, 8 and 121.5 years. Since the invention of the telescope (1610), there have only been seven transits as listed below.

                            Transits of Venus:  1601-2200 

                           Date       Universal    Separation     

                        1631 Dec 07     05:19         939 "     
                        1639 Dec 04     18:26         524 "     
                        1761 Jun 06     05:19         570 "     
                        1769 Jun 03     22:25         609 "     
                        1874 Dec 09     04:07         830 "     
                        1882 Dec 06     17:06         637 "     
                        2004 Jun 08     08:20         627 "     
                        2012 Jun 06     01:28         553 "     
                        2117 Dec 11     02:48         724 "     
                        2125 Dec 08     16:01         733 " 
The 2004 and 2012 transits form a contemporary pair separated by 8 years. More than a century will elapse before the next pair of transits in 2117 and 2125. During the 6,000-year period from 2000 BC to AD 4000, a total of 81 transits of Venus occur.

                                   ________________  |  _______________

Tuesday 5 June 2012

UNESCO | The Great Barrier Reef

The Great Barrier Reef is a site of remarkable variety and beauty on the north-east coast of Australia. It contains the world’s largest collection of coral reefs, with 400 types of coral, 1,500 species of fish and 4,000 types of mollusc. It also holds great scientific interest as the habitat of species such as the dugong (‘sea cow’) and the large green turtle, which are threatened with extinction.

© Evergreen More pictures ...

The Great Barrier Reef is a site of remarkable variety and beauty on the north-east coast of Australia. It the world's most extensive stretch of coral reef and is probably the richest area in terms of faunal diversity in the world. Its great diversity reflects the maturity of an ecosystem which has evolved over millions of years on the north-east continental shelf of Australia. The site contains a huge diversity of species including over 1,500 species of fish, about 360 species of hard coral, 5,000 species of mollusc, and more than 175 species of bird, plus a great diversity of sponges, anemones, marine worms and crustaceans, among others.

The reef system, extending to Papua New Guinea, the reef comprises some 2900 individual reefs of all sizes and shapes covering more than 20,000 km2, including 760 fringing reefs, which range in size from under 1ha to over 10,000 ha and vary in shape to provide the most spectacular marine scenery on Earth. There are approximately 600 continental islands including many with towering forests and freshwater streams, and some 300 coral cays and unvegetated sand cays. A rich variety of landscapes and seascapes, including rugged mountains with dense and diverse vegetation and adjacent fringing reefs, provide spectacular scenery.

The form and structure of the individual reefs show great variety. Two main classes may be defined: platform or patch reefs, resulting from radial growth; and wall reefs, resulting from elongated growth, often in areas of strong water currents. There are also many fringing reefs where the reef growth is established on subtidal rock of the mainland coast or continental islands.

The site includes major feeding grounds for the endangered dugong and nesting grounds of world significance for two endangered species of marine turtle, the green and the loggerhead, as well as habitat for four other species of marine turtle; given the severe pressures being placed on these species elsewhere, the Great Barrier Reef may be their last secure stronghold. It is also an important breeding area for humpback and other whale species.

A wide range of fleshy algae occurs, many of which are small and inconspicuous but which are highly productive and are heavily grazed by turtles, fish, molluscs and sea urchins. In addition, algae are an important component of reef building processes. 15 species of seagrass grow throughout the reef area forming over 3,000 km2 of seagrass meadows and providing an important food source for grazing animals, such as dugongs.

The Great Barrier Reef, and in particular the northern sector, is important in the historic and contemporary culture of the Aboriginal and Torres Strait Islander groups of the coastal areas of north-east Australia. This contemporary use of and association with the Marine Park plays an important role in the maintenance of their cultures and there is a strong spiritual connection with the ocean and its inhabitants.

                                           ___________________  |  __________________

Monday 4 June 2012

Pre Mabo | Milirrpum v Nabalco Pty Ltd

Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 (the "Gove land rights case"), was the first litigation on native title in Australia. The decision of Justice Richard Blackburn ruled against the claimants on a number of issues of law and fact, rejecting the doctrine of aboriginal title in favor of terra nullius.

Although Milirrpum was not appealed beyond the Supreme Court of the Northern Territory, it was overruled by the High Court of Australia two decades later in Mabo v Queensland (No 2) (1992).

Blackburn, in a confidential memorandum to the government and opposition, opined that a system of Aboriginal land rights was "morally right and socially expedient".[1] The judgement concludes: "I cannot help being specially conscious that for the plaintiffs it is a matter in which their personal feelings are involved."[2]


In December 1968, the Yolngu people living in Yirrkala, who were the traditional owners of the Gove Peninsula in Arnhem Land, obtained writs in the Supreme Court of the Northern Territory against the Nabalco Corporation, which had secured a twelve-year bauxite mining lease from the Federal Government. Their goal was to establish in law their rightful claim to their homelands.

The Yolngu people claimed they enjoyed legal and sovereign rights over their land and sought declarations to occupy the land free from interference pursuant to their native title rights.

The Yolngu people had petitioned the Australian House of Representatives in August 1963 with a bark petition after the government sold part of the Arnhem Land reserve on 13 March of that year to a bauxite mining company. The government had not consulted the traditional owners at the time.

Yolngu applicants asserted before the Court that since time immemorial, they held a “communal native title” that had not been validly extinguished, or acquired under the Lands Acquisition Act 1955 (Cwth), and should be recognized as an enforceable proprietary right. The lengthy legal battle culminated in 1971.[3]


Justice Blackburn found that the Yolngu people could not prevent mining on their lands. He categorically held that native title was not part of the law of Australia and went on to add that even had it existed, any native title rights were extinguished.
Blackburn rejected the claim on the bases that:
  • A doctrine of common law native title had no place in a settled colony except under express statutory provisions (i.e. the recognition doctrine).
  • Under the recognition doctrine, pre-existing interests were not recognised unless they were rights of private property and, while the community possessed a legal system, it was not proved that under that legal system, the claimant clans possessed such rights.
  • The clan’s relationship to land was therefore not a “right … in connection with the land” under the Lands Acquisition Act.
  • On the balance of probabilities, the applicants had not shown that their ancestors, in 1788 had the same links to the same areas of land that they were now claiming.
Blackburn examined comparative Commonwealth, Canadian, New Zealand and US jurisprudence. He accepted that the applicants had established that under traditional law any given part of the land could be “attributed” to a particular clan, but held that this did not amount to a proprietary interest. 

He also found that the evidence did not establish the landholding model asserted. Blackburn acknowledged for the first time in an Australian higher court the existence of a system of Aboriginal law. He also recognised the validity of the use of oral evidence to establish property rights, normally inadmissible, but a vital precondition for a successful land rights case, and he also acknowledged the claimants' ritual and economic use of the land.


Milirrpum led to the establishment of the Woodward Royal Commission and the eventual recognition of Aboriginal Land rights in the Northern Territory. In 1975, shortly before he was dismissed, Prime Minister Gough Whitlam drew up the Aboriginal Land Rights Act 1976 which was later passed (in a slightly diluted form) by the conservative Fraser Government on 9 December 1976.

The court interpreter for the case was Galarrwuy Yunupingu, the son of a Gumatj clan leader, Munggurrawuy, who was one of the Yirrkala plaintiffs. Galarrwuy had earlier helped his father draft the Yirrkala bark petitions. He later became chairman of the Northern Land Council and in 1978 became Australian of the Year for his work on indigenous rights.


1.      ^ National Archives of Australia, confidential memorandum provided to government and opposition by Justice Blackburn urging the establishment of a statutory system of land rights, 1972, released 31 Dec 2001
2.      ^ (1971) 71 FLR 141 at 293.
3.      ^ Foley, Gary 'Teaching the whites a lesson' in Staining the wattle (ed) Very Burgmann and Jenny Lee Ringwood; Penguin, 1988 p203
__________   |   __________

Mabo | case overview

Case Name & Citation: Mabo and Others v. Queensland (No. 2) (1992) 175 CLR 1
Court : High Court of Australia
Sitting Judges: Mason C.J; Brennan; Deane, Dawson, Toohey, Gaudron and McHugh JJ
Name of Parties: Mabo and Others as the Plaintiffs and The State of Queensland as the
Date of Judgement: 3rd June 1992

Case Overview:

Mabo and Others and The State of Queensland was a High Court native title, constitutional and real property law case involving a series of claims by the Meriam peoples for native title of the Murray Islands – a series of Islands Annexed to the Colony of Queensland. The High Court upheld these claims and also commented that comparable principles should be applied to circumstances regarding the Aboriginal people on mainland Australia. The High Court’s decision fundamentally changed the manner in which land law was interrupted in Australia, predominately due to the fact that it reversed the historical doctrine of ‘terra nullis’ on which the basis of all previous British possession of land claims in Australia were based. The decision formally recognised the original and traditional customs and rights that the Meriam people had established in relation to Murray Islands.

Through this action, the High Court added the legal doctrine of native title into Australian Law and confirmed that native title did pre-exist in Australia before it was colonised by the British in 1788. In recognising this prior land right, the High Court additionally held that Indigenous Australians continue to own any fraction of land in Australia which has not had its native title legally removed. Immediately preceding the decision, the Federal Government of Australia introduced the Native Title Act 1993 which attempted to clarify the High Court’s judgment, and provide a clear and definitive legislative interpretation that Indigenous Australians could use in order to could acquire recognition for land which within their native title rights.

Procedural History:

On 20th May 1982 Eddie Mabo, David Passi, James Rice and others brought an action against the State of Queensland and the Commonwealth of Australia in the High Court for the purposes of claiming land rights to the Murray Islands based upon their local custom and traditional native title. The initial claim was extensive, including declarations that the plaintiffs were the full and rightful owners of the Murray Islands land, and that the rights placed upon the people of these lands were unlawful in the ‘absence of law of Queensland which expressly provides for such impairment without the payment of compensation’. The
successive defence filing from the State was swift and vigorously denied the existence of any land rights claimed by the plaintiffs.

In the period from 1982 through the 1985 numerous arguments were heard by both the plaintiffs and the defendants in a number of Queensland court appearances involving submissions and interpretation of evidence. It wasn’t until the 26 February 1986 that Queensland Government filed their official defence which was subsequently followed by the Commonwealth defence filing on the 5th March 1985. In addition, on the 9th April 1985 the Queensland Coast Islands Declaratory Act 1985 (Qld) was debated and passed in the Queensland Parliament which declared that the Islands ‘annexed to Queensland were vested in the Crown in right Queensland freed from all other rights, interests and claims of any kind whatsoever and became waste lands of the Crown in Queensland.’ The state filed an amended defence on the 24th May 1985 which included specific references to the newly enacted legislation. Consequently, the plaintiffs raised serious objections over the newly amended State defence involving references to the Act, and on 27th February 1986 Gibbs C.J. remitted ‘all issues of fact raised by the pleadings, the particulars and further particulars to Supreme Court of Queensland for hearing and determination.’ The hearing commenced on 13th October 1986 before it was adjourned by Moynihan J. on the 17th November 1986 in order for the High Court to hear the relevant objections.

On December 8th 1988, the High Court allowed the demurrer of the plaintiffs and held that ‘on the assumption that the plaintiffs could establish the land rights claimed, the State Act was inconsistent with the Racial Discrimination Act 1975 (Cth)’. The hearing of the remitter
continued on the 2nd May 1989 and it wasn’t until the 5th June 1989 that Moynihan J. dismissed the Commonwealth from any subsequent liability. On the 24th July 1989 the Queensland Government closed its evidential briefing and the hearing adjourned for preparation of written submissions by each party. The hearing of the remitter concluded on the 6th September 1989, and on the 16th November 1990 Moynihan J delivered his determination of facts pursuant to the remitter. It is not until the 20th March 1991 that Mason CJ ordered several questions to be reserved for the Full Court of the High Court as per the Judiciary Act 1903 (Cth) s18.

On the 28th May 1991 the Full Court of the High Court sits to begin hearing the relevant considerations. On 12 June 1991 The Torres Strait Island Land Act 1991 (Qld)is enacted and the Queensland Coast Island Declaratory Act 1985 (Qld) is repealed. On January 21st 1992 Eddie Mabo dies in Hospital. The High Court’s Judgement was delivered on the 3rd June 1992 with six judges confirming their belief that the Meriam people did have traditional and native tenure over their land – Justice Dawson dissenting. The decision confirmed that the British acquisition of land did not eliminate their title, and that the ‘Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland’. Following the High Court Decision in Mabo No.2, the Commonwealth Parliament passed the Native Title Act 1993 (Cth) which become operative on the 1st Jan 1994.

Core Legal Outcomes:

The legal arguments presented in the Mabo case were extensive. The fundamental problem that the High Court was being asked to resolve was whether the Meriam people actually had native rights in the Murray Islands, and if they did have these rights – whether Australian law should protect these rights and interests and provide the Meriam people with legal recognition. The majority of the High Court concluded that common law in Australia did actually recognise a derivative of native title through a prior interest in the land which survived the original colonisation of Australia by the British.

Additionally, it was concluded that when indigenous Australians have established a clear and definitive connection to a section of land, and this connection has not been removed by any action, decision or legislative reform of the Government which would have interfered with the pre-existing connection - then the common law will recognise the land as native title. Rejection of Terra Nullius The defendants argued that the 1879 annexation of the Murray Islands to Queensland obscured the Meriam people’s pre-existing rights in the land, and therefore common law could in no way establish a plausible connection of ownership with the land.

This was rejected by the majority of the High Court as there was nothing to suggest there had been clear extinguishment of the land, and there was ample evidence in support of a causal connection between the Meriam peoples and the Murray Islands. This decision effectively rejected the concept of terra nullius and supported the plaintiff’s claims, inter alia, that it did have a pre-existing system of law in place when Australia was colonised which should continue to remain in effect today. Rejection of universal and absolute ownership The majority of the High Court rejected the defendant’s submission that the Crown had ‘absolute ownership of, legal possession of and exclusive power to confer title to, all land in the Murray Islands.’ The majority also rejected the defendant’s arguments that the doctrine of tenure was universal such that every fraction of land which was acquired by England was held ‘mediately or immediately of the King who is the Lord Paramount’. Brennan J. commented that ‘the doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant’.Thus, it was accepted by the majority that the Crown acquired a radical title - as opposed to an absolute title - upon the acquisition of any land, and that this radical title would be subject to native title rights in the instance that the relevant native title rights had not been justifiably or previously extinguished.


The ratio decidendi of the Mabo case was definitively narrow when the bulk of obiter is
removed. The majority of High Court fundamentally concluded that:

i.  the Meriam People were directly descended from those described in the evidence from
early European records.

ii.  The acquisition of sovereignty by the British Crown purports to a radical title as oppose
to a absolute title in the instance that native title is not extinguished, and the rights and
interests of the Indigenous people still exist.

iii.  Native Title in respect to a particular fraction of land - regardless of its classification by
common law – is preserved in accordance with the traditional rights and customs of the
aboriginal people who have a clearly defined causal connection with the land.

iv.  Native title could be extinguished by Governmental power if there was a clear and
transparent intention to do.

Thus, the clear outcome from the decision was that the Court limited native title to circumstances where no extinguishment of native title had occurred, and there was an evidentiary association between the indigenous people which was distinctly defined by a causal connection with the land. Furthermore, it was the opinion of the Court that the British Crowns acquisition of sovereignty over Australian land did not immediately remove native title from the indigenous population. Instead, the Crowns sovereignty extended to a beneficial ownership and was restricted to areas where no native title had previously existed. Consequently, the Court ruled that the Crowns radical title authorized the Crown to acquire land or delegate it to others, but where native interests still existed under native law or custom then native title still exists in the land.

Interestingly, the majority of the High Court also expressed the observation that the same
principles should apply to mainland aborigines in respect of native title. This was a eccentric
finding due to the fact that no such argument had been presented to the court during the case and nor did the defendants seek clarification on this issue. In addition, it was emphatically clear that Meriam people were not a nomadic people such as the majority of mainland indigenous people, and it was this lack of nomadic movement which clarified their connection with the land.

Consequently, this moot point forced the Federal Government - along with all the States - to
clarify the position on native title, and as a direct result the Native Title Act 1993 was enacted on the 1st January 1994.

An Comparison of Deane and Dawson JJ

I.                    Introduction

On 3rd June 1992 the High Court of Australia released its Mabo and Others v. the State of
Queensland (No. 2) decision. Deane JJ, in agreement with majority of the Court established
that the Meriam people were the traditional owners of the Murray Islands, and that ‘the common law of this country recognizes a form of native which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that the entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title’. The fundamental difference between Justice Deane JJ and Justice Dawson’s decisions was the elucidation of whether common law should ‘be interpreted as developing in a normatively evolutionary fashion’.

Deane JJ was willing to support the fact that it was in Australia’s preeminent interest to
recognise the traditional native title rights and customs of the Meriam people, and he upheld the notion that they had maintained their pre-existing legal rights and connection to the Murray Islands even after Britain’s annexation of their territories. In dissent, Dawson J refused to accept that contemporary Australia should have to be held accountable for any historical or political wrongdoings, and while he was remorseful for the actions undertaken by the Colonial authorities of the past – he was of the opinion that ‘the responsibility, both legal and moral, lies with the legislature and not with the courts’.

Thus, this paper seeks to analyse the decisions of Justice Deane JJ in agreeing with the majority of the High Court, and the rationale behind Justice Dawson’s dissent. It will examine the logical reasoning behind the respective Justices decisions, and provide a contrasting analysis of the manner in which both judgements are seemingly focused on the contemporary outlook for the Australian political landscape as opposed to narrowly focusing on the provision of justice for the Indigenous people. Additionally, an examination of the apparent struggle that both the Justices had in determining whether the land rights of the Meriam people were extinguished after Britain’s annexation of the Murray Islands during the acquisition of title in Australia will be undertaken, and an analysis of their concluding remarks of both Justices will also be explored.

II.                  A Comparison of Judgements

The nature of common law and its overall construction were fundamental to both Justice Deane JJ and Dawson J’s respective conclusions in Mabo. It is apparent from the conclusions reached by Deane JJ and Dawson J that their respective interpretations of common law and their understanding of the previous judgements set out by their predecessors in Imperial law native title cases are, predominately different.

Deane JJ

Deane JJ was of the opinion that upon the establishment of the ‘new British Colony by settlement, they brought the common law with them.’ Deane JJ’s interpretation of the law suggested that common law native title existed across all respective lands which were acquired under British sovereignty from first moment the British settled in Australia in 1788. Deane JJ formulated the opinion that common law native title was ‘merely a personal right unsupported by any prior or presumed Crown grant of any estate or interest in the land’, which consequently implied that native title was able to be extinguished by a Crown grant in circumstances which were contradictory with native title. While this was his ultimate position, he struggled with earlier precedents set down in English law which suggested that ‘common law native title recognised by the law of a British Colony was no more than a permissive occupancy which the Crown was lawfully entitled to revoke or terminate at any time regardless of the wishes of those living on the land or using it for traditional purposes.’ Deane JJ dismissed the judgement of the Privy Council in Attorney General (Quebec) v Attorney-General (Canada) as ‘inconsistent with the notion that the common law native title was no more than a shadowy entitlement to occupy or use the relevant land until the Crown saw fit to terminate it’. His Honour referred to the supporting arguments of the Privy Council in Nireaha Tamaki v. Baker and the comment by Chapman J. in Reg v. Symonds which suggested that native title must be “respected, (and) cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers’.

Dawson J

In stark contrast, Dawson J’s interpretation of the law differed immensely from the arguments presented by Deane JJ with the majority of his conclusions upholding the precedents set in previous imperial cases and Privy Council decisions. In fact, the majority of Dawson J’s judgement refers to the historical formation of sovereignty in Australia, and it’s consistency in providing no recognition of native title over land. His honour was clear in his opinion that ‘the plaintiffs failed to establish any custom by which they could be said to have inherited rights over the land which they claim’.

Although Dawson J, in dissent, did not reject the notion that Britain’s annexation could still derive native title rights, he suggested that ‘whether, in any particular case, a change of sovereignty is accompanied by recognition or acceptance by the new sovereign of pre-existing rights is a matter of fact.’ His honour was definitive in his opinion that ‘the Crown in right of the Colony of Queensland, on their annexation, exerted to the full its rights in the land inconsistently with and to the exclusion of any native or aboriginal rights.’ For Dawson, it was the sovereign’s willingness to originally recognize native title rights which accounted for the continuation of these rights throughout history. Dawson concluded that indigenous people could not derive a pre-existing native title right merely from a connection to a section of land, and he was definitive in stating that this right could only be conferred upon them through the recognition of a governing sovereign. 

His honour also looked for support in the decision of Lord Denning of the Privy Council in Adeyinka Oyekan v. Musendiku Adele, who stated that ‘in order to ascertain what rights pass to the Crown or are retained by the inhabitants, the courts of law look, not to the treaty, but to the conduct of the British Crown.’ While he did accept that there were previous examples throughout history which suggested that native title should be recognised, he was definitive in his stance that the clear and transparent precedent was such that ‘the Crown considered itself to be the owner of the land, unencumbered by any form of native Title.’

III.                A Contemporary Outcome

There is a clear and evident difference between the decisions reached by Deane J and Dawson J in Mabo – a difference which is characterized by the majority ruling of the High Court. It is apparent that the manner in which Deane JJ reached his conclusion - in complete contrast toDawson J’s analysis - stems from the contemporary approach his Honour took in setting aside decisions which were formed during an overly conservative period of British imperialism. Justice Deane’s analysis of the historical precedent in the case, inferred that while he was willing to accept the rulings of his predecessors, he did not agree with the treatment of native title ‘as no more than a permissive occupancy which the Crown was lawfully entitled to revoke or terminate at any time regardless of the wishes of those living on the land or using it for traditional purposes.’

His Honour agreed with the decision of Chapman J in Ref. v Symonds, and approved the decision of the Privy Council in Amodu Tijani which held that native title was not ‘merely a permissive occupancy which the Crown could terminate at any time without breach of its legal obligations to the traditional occupants’. Deane also made special note of the communications between Captain Cook and Captain Phillip, the first governor of New South Wales, which specifically stated that ‘the native inhabitants of the Colony would be protected and not subjected to “any unnecessary interruption in the exercise of their several occupations”, which lead his Honour to the conclusion that the concept of native title had been eroded throughout time. Deane sought to rectify what he called ‘past injustices’ through the whole nations ‘acknowledgement of, and retreat from, those past injustices’. His Honour believed that without respite by a qualification of native title through common law in Australia, the social gap between indigenous and non-indigenous people could never be closed.

In dissenting, Dawson J presented an entirely different view to that of Deane JJ which sought to preserve the precedents set throughout the colonial period of Australian history. His Honour presented an entirely idealistic account of the relationship between Australian colonial history and British imperialism, and he was of the unequivocal opinion that that the High Court could not rule in the favour of the plaintiffs despite the regrettable past injustices that occurred against indigenous people.

This was affirmed in his concluding remarks which suggested that ‘if traditional land rights (or at least rights akin to them) are to be afforded to the inhabitants of the Murray Islands, the responsibility, both legal and moral, lie with the legislature and not with the courts.’ Evidently, it was clear that Dawson refused to allow contemporary Australia to accept the past wrongdoings of its Colonial predecessors, and His Honour reinforced this conclusion by drawing upon century old Colonial case law which supported his decision. Dawson J interpreted the inferences established by Captain Cook, Captain Phillip and the Imperial Government differently to Deane JJ and the majority of the Court by stating that ‘the policy of the Imperial Government during this period is clear: whilst the aboriginal inhabitants were not to be ill treated, settlement was not to be impeded by any claim which those inhabitants might seek to exert over the land’.

Dawson J was definitive in his belief that:

‘The policy which lay behind the legal regime was determined politically and, however
insensitive the politics may now seem to have been, a change in view does not of itself mean a change in the law. It requires the implementation of a new policy to do that, and that is a matter for government rather than the courts.’ It was this unambiguous and transparent belief which led Dawson J’s decision to become one of the criticised of the Courts, since he focused too much on the historical formation of Australia, as opposed to attempting to achieve a formative resolution of policy to bridge the widening disparity between indigenous and non-indigenous people. Deane JJ and the majority of the High Court accepted that while the historical precedents set by their predecessors were valid rulings during a period of strong British Imperialism, they were not confirmative of how the common law should interpret native title today.

IV.               Conclusion

It is clear from the comparative analysis of both Deane JJ and Dawson J’s decisions, that the
conclusion the majority of the High Court reached was the right one. The common law of
Australia draws its foundations from the British sovereignty, and it was this sovereignty which sought to control the right to extinguish native title at its own discretion without regard to, or consideration of, the indigenous people. While Deane JJ struggled with the idealistic concepts set out in almost two centuries of imperial case law, he also recognized the inequality that was enforced upon the indigenous people. Deane JJ was of the profound belief that the judicial system must rectify the ‘past injustices’ of its actions through the whole nations ‘acknowledgement of, and retreat from, those past injustices’. Deane JJ’s contemporary acceptance of how common law native title should be paved for future generations was consistent with the remaining majority of the High Court, and it is obvious throughout Deane JJ’s decision that it was the right one.

Dawson J, in dissent, was wholeheartedly opposed to any construction of common law native title which provided indigenous people with separate rights to the Crown. Dawson J was consistent in his belief that the Crown was the sole sovereign of all land rights in Australia and his decision was littered with historical references to Imperial precedent. Justice Dawson focused his decision on a selective minority of historical judgements which he used to form his ultimate conclusion for dissenting. While it is accepted that in some sense, all history is a selective interpretation of fact, Dawson J failed to recognise the need for contemporary Australia to move forward in its recognition of native title rights to close the widening disparity between indigenous and non-indigenous Australia.

Thus, it is clear that Deane JJ’s conclusion – in agreement with the majority of the High Court - was inconsistent with the ultimate notion presented by Dawson J that native title should remain an Imperial conservative construction. By Deane JJ’s acknowledgement of the past injustices which were committed against the indigenous peoples, and by providing legal acknowledgement of native title in common law to the Meriam people - he was able to achieve a positive verdict from his original opinion that ‘the acts and events by which the dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation.’

It was through this conclusion that Deane JJ and the majority of the High Court hoped for a
closer assimilation between indigenous and non-indigenous Australia

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Saturday 2 June 2012

Australian Labor Party the king of taxes?

The ALP do a better job in introducing new redistribution taxes. The GST was a tax based across the consumer spectrum. Keating ( my favourite Prime Minister ) wanted to do it but Hawke rolled him on that.

Rudd wanted to introduce a carbon trading scheme, ( merchant bankers like Turnbull loved it because his mates would reap the whirlwind by handing most of the proceeds and paperwork ) but didn' t have the 'guts' to do it.

Meanwhile 'read my lips' Gilliard trumped them all with a Labor 'its in our DNA' redistribution nothing to do with global warming Tax'. Will 'working families ' get a handout next budget' So the tax will remain for evermore but not the handout.

Interesting that in In Thailand the Prime Minister handed out a mobile phone to each elector to get re elected. Gillard handed out dollars. Not quite the same as Thailand Prime Minister's mobile manufacturing entity, handed out the mobile phones, whereas in Australia Treasury authorised by Government legislation, therefore all legit, handed out dollars.

A new Tax is introduced every 10 years or so, this year we had two. I do not think the ALP will have the courage to introduce another tax between now and its fatal election.

I wonder what the next tax will be called when the ALP rises again? Then again it might have to be the Coalition as it tries to pay back the 'Labor's $100 billion debt.'

Perhaps I should launch a competition on its 

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