Testing jurisdiction: Walker v NSW
In response to the recognition of Aboriginal law in Mabo's case, a case was brought before the High Court asserting the operation of Aboriginal law in relation to criminal jurisdiction. In Walker v NSW (1994) 126 ALR 321, it was argued that Aboriginal law survived the assertion of sovereignty by the British and continued until extinguished by clear and unambiguous legislation. It was claimed that general laws failed to extinguish Indigenous laws in that way. A single judge of the High Court, Chief Justice Mason, rejected the notion that a system of law could operate along side the Australian legal system.
Indigenous commentators have rejected this narrow view saying that it is absurd to recognise Indigenous law in operation with respect to land but to refuse to recognise the laws of the society which give meaning to those rights. It is likely that further test cases will be brought before the courts examining the legitimacy of Aboriginal law.
Indigenous commentators have rejected this narrow view saying that it is absurd to recognise Indigenous law in operation with respect to land but to refuse to recognise the laws of the society which give meaning to those rights. It is likely that further test cases will be brought before the courts examining the legitimacy of Aboriginal law.
Keywords: aboriginal law, coexistence, extinguishment, High Court of Australia, Mabo judgement, Mason, Chief Justice Anthony, New South Wales, recognition, Walker v NSW (1994), 1994
Author: Strelein, Lisa