...A real question of justice...
The High Court judgment was obviously a very significant document. The judges were interested in this issue and one gets the feeling that they dealt with it with some strong language, with some real eye to its impact on the nation and with a real determination to right an historical wrong. Justices Deane and Gaudron in particular reviewed the history of colonisation and its impact on Aboriginal people and spoke of a 'legacy of unutterable shame.' They were very strong words from the highest court in the land, and they were meant to be I think.
This court, you must realise, over the previous decade, had indicated an interest in this area of the law. In some of their judgments there were one or two lines of dicta, saying that this was an important issue which, when it properly comes before this court, has to be dealt with. Also this court, the Mason High Court, was an activist court, was closely in touch with the Canadian Supreme Court, was much more open to international precedents, such as the United States and New Zealand. And realise this court came to this issue 200 years after colonisation and decades and decades after other common law jurisdictions had dealt with the issue. The issue was dealt with by Chief Justice John Marshall in the U.S. in 1823 and 1831. It was dealt with in the New Zealand jurisdiction in 1845. It was dealt with in Canada in 1886 and again in the 1980s. The High Court was very aware of that and very aware that Australia was lagging behind the development of the law and the delivery of some justice.
And I think anyone looking at the issues would concede that there was a real question of justice underlying this great ten-year saga. And the High Court dealt with it at that level. And they spelt it out in no uncertain terms: that this law was unacceptable in a civilised, democratic society which reflected international standards, which had signed international treaties, which pretended to engage - to deal equally with all its citizens under the law. And so you had an amalgam of factors which coalesced in a judgment of particular power.
This court, you must realise, over the previous decade, had indicated an interest in this area of the law. In some of their judgments there were one or two lines of dicta, saying that this was an important issue which, when it properly comes before this court, has to be dealt with. Also this court, the Mason High Court, was an activist court, was closely in touch with the Canadian Supreme Court, was much more open to international precedents, such as the United States and New Zealand. And realise this court came to this issue 200 years after colonisation and decades and decades after other common law jurisdictions had dealt with the issue. The issue was dealt with by Chief Justice John Marshall in the U.S. in 1823 and 1831. It was dealt with in the New Zealand jurisdiction in 1845. It was dealt with in Canada in 1886 and again in the 1980s. The High Court was very aware of that and very aware that Australia was lagging behind the development of the law and the delivery of some justice.
And I think anyone looking at the issues would concede that there was a real question of justice underlying this great ten-year saga. And the High Court dealt with it at that level. And they spelt it out in no uncertain terms: that this law was unacceptable in a civilised, democratic society which reflected international standards, which had signed international treaties, which pretended to engage - to deal equally with all its citizens under the law. And so you had an amalgam of factors which coalesced in a judgment of particular power.
Keywords: Canada, Deane, Sir William, Gaudron, Justice Mary, High Court of Australia, justice, Keon-Cohen, Bryan, Mabo judgement, Marshall Cases, Marshall, Chief Justice, Mason, Chief Justice Anthony, New Zealand (Aotearoa), Supreme Court USA, United States of America, 1992
Interviewed by Trevor Graham, 1996.
Author: Kenna, Jonathan
© Film Australia
Source: Keon-Cohen, Bryan
Author: Kenna, Jonathan
© Film Australia
Source: Keon-Cohen, Bryan