Details of legal opinion on Mabo decision

22/7/93

Premier Richard Court today said that a legal opinion provided to the State Government revealed that the Federal Government could not by itself validate land titles impacted by the Mabo High Court decision and the Kennett legislation is open to legal challenge.

The Premier said that the legal opinion has been provided by eminent constitutional lawyer, Dr Colin Howard.

"Dr Howard is a barrister at the Victorian Bar who for 26 years was Hearn Professor of Law at the University of Melbourne with a speciality in constitutional law. He is the author of the major standard text 'Australian Federal Constitutional Law'," Mr Court said.

He said Prime Minister Keating had failed to tell the public of Australia the truth about the major legal problems which the High Court decision on Mabo had created for land title administration.

"This is the legal dilemma that has been created:

1.    If the States attempt to validate titles they run into the problem that their legislation will be contrary to the Racial Discrimination Act of the Commonwealth and therefore invalid.

2.    If the Federal Government attempts to validate invalid State titles, it runs into at least two major problems.

"First, in 1984 the High Court itself held that the Commonwealth has no power to retrospectively validate State laws ('Metwally' case).

"Second, section 51 (26) of the Constitution, gives the Commonwealth power to make racially discriminatory laws and could be used to support a Commonwealth Validation Act.

"However, this would bring the Validation Act into direct conflict with the Racial Discrimination Act, which puts Australia in an untenable position.

"Its international obligation is to abolish all forms of racial discrimination but its Validation Act would be discriminatory - discrimination against Aborigines by extinguishing their native titles by validating non-native titles.

"There are three legal solutions to this matter:

1.     A case could be brought before the High Court and the High Court could limit the scope of the Mabo ruling and clear up the legal mess created by the Court.

2.     A Constitutional Referendum could be held to clarify the situation.

3.    The Federal Government could repeal or limit the Racial Discrimination Act to enable the States to exercise their constitutional powers in the handling of land titles and their administration.

"The State Government has maintained that the Mabo High Court ruling has made our land title system unworkable and the Prime Minister should be honest and publicly recognise this situation.

"The Victorian legislation announced today highlights this problem since it could well be invalid.

"Moreover, the Victorian legislation does not remove uncertainty because it does not address what will happen in the future.

"Prime Minister Keating should also recognise that this unworkable High Court decision works against the interests of all Australians.  This problem is particularly acute in Western Australia," Mr Court said.