The Racial Discrimination Act
The prohibition of racial discrimination is the central concern of the International Convention on the Elimination of All Forms of Racial Discrimination.
Australia has ratified that Convention. This means that it has agreed, with other states that have accepted it, to abide by its terms. And in 1975 the Commonwealth Parliament enacted the Racial Discrimination Act to give the terms of the Convention force in Australian law.
The Racial Discrimination Act, 1975 (sometimes known for short as the RDA) was critical in the first Mabo decision in 1988. In 1985 the Queensland Parliament had passed an Act to block Eddie Mabo's court case. In 1988 the High Court of Australia held that the Queensland Act was invalid because it was inconsistent with the RDA: it took away the property rights of people whose title derived from Meriam law, while leaving intact the property rights of people whose title derived from Queensland law.
Without that decision, without the RDA, the Mabo case would not have reached the High Court for its 1992 decision.
What the High Court had to decide in its 1992 Mabo decision was: 'What happened to the pre-existing land rights of the Murray Islanders when the islands were taken over in 1879 by Queensland?'
In reaching the conclusion that native title survived, the High Court placed considerable reliance on the prohibition of discrimination on the grounds of race under international law.
But they also needed to reconsider the international law doctrine of terra nullius and how that principle related to Australian Law.
Australia has ratified that Convention. This means that it has agreed, with other states that have accepted it, to abide by its terms. And in 1975 the Commonwealth Parliament enacted the Racial Discrimination Act to give the terms of the Convention force in Australian law.
The Racial Discrimination Act, 1975 (sometimes known for short as the RDA) was critical in the first Mabo decision in 1988. In 1985 the Queensland Parliament had passed an Act to block Eddie Mabo's court case. In 1988 the High Court of Australia held that the Queensland Act was invalid because it was inconsistent with the RDA: it took away the property rights of people whose title derived from Meriam law, while leaving intact the property rights of people whose title derived from Queensland law.
Without that decision, without the RDA, the Mabo case would not have reached the High Court for its 1992 decision.
What the High Court had to decide in its 1992 Mabo decision was: 'What happened to the pre-existing land rights of the Murray Islanders when the islands were taken over in 1879 by Queensland?'
In reaching the conclusion that native title survived, the High Court placed considerable reliance on the prohibition of discrimination on the grounds of race under international law.
But they also needed to reconsider the international law doctrine of terra nullius and how that principle related to Australian Law.
Keywords: High Court Decision, 03/06/1992, human rights, International Convention, Mabo Case, native title, Racial Discrimination Act , 1975 , United Nations, 1975
Author: Nettheim, Garth