ABSTRACT
The decision of the High Court of Australia in Mabo v Queensland (No 2)1 has attracted enormous public and academic comment. The decision relates to probably the most sensitive social issue of Australian society – the relationship between Aboriginal and non-Aboriginal persons. The decision also involves a dramatic overturn of doctrines considered to be long-established and fundamental to the structure of legal principles applied by Australian courts. Whilst the decision is about the entitlement of the plaintiff and those represented by the plaintiff to an interest in land, the decision has potential ramifications for almost every area of law. The judgments of the members of the court have a highly political nature. This characterisation is not to attack the judgments but to highlight the essence of the court’s consideration. As the final arbiter of common law doctrine in Australia, the High Court must be concerned with the moral coherence of the basic principles enunciated by the court as much as it must be concerned with their logical coherence. For a court of final review the concern for coherence must override the conclusions of errant precedents or accidents of history. In essence Mabo is a statement that the principles of the Australian legal system cannot withstand the immorality of the proposition that Australia is a settled territory because there was no legal system in force prior to the claim of sovereignty by the British Crown.
