by Rosemary Hunter
© all rights reserved
“Aboriginal history”, “Australian history” and Anglo-Australian law are three historical discourses with regimes of truth and histories of their own. Each has stories about law and the land, for different purposes and different audiences. In cases concerning land ownership and land rights, the discourses have intersected as Aboriginal people have demanded that the white law take notice of their stories. In turn, white law has demanded that those stories be told in a certain way: that they be refracted through the rules of evidence and through “Australian history”. From early land ownership cases such as Attorney-General v Brown and Cooper v Stuart, to the major common law land rights cases, the Gove case and the Mabo case, the status of Aboriginal claims has been determined by applications of evidential rules and interpretations of history. The earlier court decisions authorised (and were sustained by) a version of history which denied Aboriginal claims to the land. In the Gove case, for instance, the law told the Yolgnu plaintiffs that their history had no legal status.
The Murray Islands case, Mabo v Queensland, has authorised a new version of history, but at the same time the majority judgments have enlisted history to authorise law. The judges have suggested that the law’s old view of history lacked credibility, making it necessary to bring law into line with the now-acknowledged “facts” of history in order to restore the law’s legitimacy. This suggests the existence of a complex, interdependent relationship between Aboriginal histories, Australian histories and “the law”. In particular, law is not simply a form of power which confers validity on other stories; and as a discourse it is no more autonomous, self-sufficient or singular than any other
Before they reached the High Court in Mabo v Queensland No 2 the Meriam plaintiffs faced the usual translation problems: telling their history within the constraints of the rules of evidence, and presenting their claim in the form of a legal argument against the doctrine of terra nullius and previous legal authorities. The evidence problem led to protracted hearings in the Queensland Supreme Court, from which a small residue of established “facts” emerged to enable the case to proceed to the High Court for legal argument. The legal argument was again based on the assertion that the common law received in the Australian colonies included a doctrine of native title. This required the court to interpret previous legal authorities, and to interpret Australian history. But whereas Justice Blackburn in the Gove case constructed legal and historical inquiries as separate issues, in the judgments in the Murray Islands case they are interconnected.
Justice Dawson dissented in the Murray Islands case on the basis that he was constrained by the traditional historical view, previously espoused by Justice Blackburn in the Gove case, that the Australian colonies were settled without regard to Aboriginal interests in land. He concluded his account of the absence of any recognition of Aboriginal title in colonial laws and policies by asserting the law’s grounding within an immutable history.
Justice Dawson appears to use “history” as a means of consigning events firmly to the past, “to separate present, justiciable controversies from those injustices that are merely ‘history'”; 1 or in the former Liberal Party leader John Hewson’s phrase, to “draw a line in the sand” between the unremediable past and the present. 2 As shown in the discussion of the Gove case, however, Justice Dawson’s interpretation of history was not the only one available. Although he claimed that the policies of the past presented him with a fait accompli, his position did involve a choice among the possible meanings that may be ascribed to the “facts” of colonisation.
The debate between Justice Dawson and the majority reproduced the academic debate between the “old” and the “new” Australian histories. The majority bestowed legal force upon the “new” history, in some cases making direct reference to Reynolds’ work. This has drawn the criticism from the conservative historian Geoffrey Blainey, for example, that the majority’s view of Australian history was “unusual”, and based on “prejudice and misguided research”, or on the work of “propagandist historians.” 3
The majority judges firmly repudiated the lie of terra nullius, as being discriminatory, unjust and unconscionable. For example Justice Brennan: “Judged by any civilized standard such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned ” The majority judges asserted that the legal system must ultimately be based not on adherence to precedent but on justice.
The notion that the common law can be “updated” in this way is, however, problematic in traditional legal theory. That theory holds that judges do not “make” new law but rather “find” or “declare” the law that has existed all along. The theory is related both to the historical existence of the common law as the embodiment of ancient customs and practices, and the constitutional doctrine of the separation of powers, which requires that elected representatives make rules and unelected judges merely apply established rules to particular cases. Justice Brennan, a relatively conservative judge, confronted the problem of updating the common law by claiming that the court may only “adopt rules that accord with contemporary notions of justice and human rights” if their adoption would not “fracture the skeleton of principle which gives the body of our law its shape and internal consistency”. He was vague as to how skeletal principles might be identified, but in his view, the notion that the British Crown gained complete ownership of all land in the Australian colonies on its assumption of sovereignty was not such a principle. Yet justice was not the only basis for Justice Brennan’s decision. In declining to follow Cooper v Stuart, for example, he argued that “the facts as we know them today do not fit the “absence of law” or “barbarian” theory underpinning the colonial reception of the common law of England”. He suggests, therefore, that there was a need to bring the law into line with a widely acknowledged historical “reality”, that is, the law had become out of step with history and must now be changed accordingly.
The judgments of Justices Deane and Gaudron shared the aim of correcting the relationships between law and justice and law and history, but their method of accommodating the new Australian history into the law was quite different. Whereas Justice Brennan saw the need to update the common law as of 1992, they rewrote the law retrospectively, claiming that the common law always recognised native title. Thus, Deane and Gaudron claim that the law has been in step with history all along, and that this must now be recognised. 4There is more than an element of the absurd, however, in this historical fantasy. It seems to be just as counterfactual as the fiction of terra nullius, but perhaps it is not surprising that an attempt to work within the unconvincing theory that judges merely “find” or “declare” the law should yield such an unconvincing result.
Rosemary Hunter is a Senior Lecturer in Law at the University of Melbourne. This is an extract from her contribution to In the Age of Mabo. Reprinted with permission. Earlier versions of the chapter were presented at the Critical Legal Conference, Staffordshire University, 1992, and published as ‘Before Cook and After Cook: Land Rights and Legal Histories in Australia’, Social & Legal Studies vol. 2, no. 4, 1993. The chapter also draws on material from P. Mathew, R. Hunter, H. Charlesworth, ‘Law and History in Black and White’, in R. Hunter, R. Ingleby, R. Johnstone (eds), Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law, Allen & Unwin, 1995.
Notes and References
4 See also R. Bartlett, ‘Mabo: Another Triumph for the Common Law’, Sydney Law Review, vol.15, no.2, 1993, p.185. Bartlett argues that the High Court has not changed the law but merely offered the first explicit statement of native title.