Federal and State Constitution law

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Federal and State Constitution law
Mabo v Queensland (No 2) (Mabo's Case) (1992) 175 CLR 1 AND Kartinyeri v
Commonwealth (Hindmarsh Island Bridge Act Case) (1998) 195 CLR 337.
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1.1 Proposals to constitutionally recognize the Aboriginal and Torres Strait Islander
peoples together with their culture are usually implemented through symbolic actions
such as amendment of the preambles or the establishment of standalone provisions.
These measures tend to recognise the indigenous identity with reference to
substantive constitutional regulations on racial segregation.1 However, in the past few
decades, such moves have fallen out of support at the national level. That being said,
there is no good reasons for the government to adopt a more symbolic form of
constitutional recognition. It is important to compare a number of case laws in order
to understand the drastic reforms that have been made and what need to be improved
in the future. The very application of broader concepts to changing legal landscape
demands new measures of accommodation. In addition, some new and unprecedented
matters might arise, which when tested through the constitutional texts, are viewed to
fall within a certain unspecified frameworks .Each age group reads the constitution in
an effort to accumulate experience based on whatever they are facing 2. Every person
gains small ideas and the applications that previous generations could not have
understood purely due to their situations, experience and their understanding which
didn’t require the provisions. The realm of race power as determined in the cases of
Kartinyeri v Commonwealth is and in the case of Mabo v Queensland are very diverse
and seem to have a number of effective limitations, to the extent that it cannot really
be said to block the plenary authority of the Commonwealth parliament to establish
new laws with respect to the persona of a certain race, regardless of whether they are
for their benefits or not.3
Mabo v Queensland (No 2) (Mabo's Case) (1992) 175 CLR 1
1 Greta Bird, and Kelly, Loretta, ‘Women Speak Out: Critical Perspectives on the
Preamble to the Constitution’ (2000) 6(1) Australian Journal of Human Rights 265.
2 Gussen, Benjamen, ‘A Comparative Analysis of Constituttional Recognition of
Aboriginal Peoples’ (2017) 40(3) Melbourne University Law Review 867.
3 Queensland Coast Islands Declaratory Act in 1985 (Cth)

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2.1 On May 20th, 1982, a case was opened by Eddie Koiki Mabo, Sam Passi, David
Passi, Celuia Mapo Salee, and James Rice in an effort to make a legal entitlement for
the proprietorship of their lands located in the Island of Mer between Papua New
Guinea and Australia. It was required for the Queensland Supreme Court to decide the
particulars in which the issue was grounded.4 Nevertheless, whereas the case was
being handled by the Supreme Court, the Australian national assembly approved the
Torres Strait Islands Coastal Islands Act which indicated that any land rights held by
the Aboriginal people after the 1879 entitlement to sovereignty are thereby eliminated
without reparation. 5Court cases were opened challenging this provision and the
decision in the case of (Mabo No 1), determined that the Act was not in accordance
with the racial segregation rules and was therefore invalidated. It is in June 1992 that
the Mabo No 2 was determined. 6A decade since the opening of the case, both Eddie
Mabo and Celuia Mapo Salee had already passed on. Six of the judge bench
established that Meriam community were the traditional owner of the land, with just a
single judge dissenting from the judgement of the majority.7 The court determined
that the possession of the land by the British had not abolished their title and the
Meriam community had the right to own, occupy and utilise the land for their own
enjoyment.
Legal issues
3.1 The original question of the cases determined whether the Meriam people had
traditional rights of the Land and if so, whether the Australian law could safeguard
4 Mabo v Queensland (No 2) (Mabo's Case) (1992) 175 CLR 1
5 Davis, Megan and Lemezina, Zrinka, ‘Indigenous Australians and the Preamble: Towards
a More Inclusive Constitution or Entrenching Marginalisation?’ (2010) 33 University of
New South Wales Law Journal 239.
6 Torres Strait Islands Coastal Islands Act 1976 (Cth)
7 Lisbeth Campbell, ‘Lionel Murphy and the Jurisprudence of the High Court Ten Years
On’ (1996) 15(1) University of Tasmania Law Review 22.

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those rights. If the aboriginal title is identified as authentic, does the native people
have the right to reparation if their land is dispossessed?
The legal principles enunciated in the case
4.1 The evidence in the Mabo case indicated that: The Murray Islands which is located in
the Torres Strait was rightfully owned by the Meriam people. They were in
occupation of the land prior to the settlement of the European who still continued to
occupy those island. However, the outsiders, were relatively in small population
mostly missionaries, government officials, fishermen among other small factions.
Therefore, Murray Island had never had a permanent immigrant
population .Anthropological evidence used in the case exhibited that the current
occupants of the land were descendants of the Meriam people. These people usually
lived in small villages stretched along the shores of the island and strand behind the
beach. They still live in such settlements, even though there has been a drastic
reduction of the settlements and structures are now predominantly permanent houses.
The part of the land used for cultivating is still located in the higher central area on
the Island. Nevertheless, it recently appeared that there is a new trend in cultivation
where most of the residents of the Island are preferring cultivation in closer vicinity
with the residence. The set of villages were arranges in named villages. Garden area is
identified by reference to the name villages based on the name of the pertinent
persons if further distinction is needed.
5.1 The importance of the RDA is that it emphasizes fair and just compensation for the
loss of native titles. If the government fails to compensate the natives, it would be
considered as racial discrimination because other landowners have the right to
compensation.8 After the commencement of the hearing, the Queensland
8 Australian Institute of Aboriginal and Torres Strait Islander Studies, Celebrating the