Legal Assingment

Indigenous Australians are the original inhabitants of the Australian continent. They make up about 2.6% of Australia’s population currently. There was widespread acknowledgment that the experiences of Aboriginal and Torres Strait Islander peoples are ‘generally less favourable’ than those of other Australians.  There was less agreement, however, about the types of strategies that are needed to respond to disadvantage and whether the situation justifies the invoking of specific ‘Indigenous-only’ rights. The main concerns include greater emphasis on protecting Indigenous rights in Australia. The protection of indigenous rights a need for greater representation of Indigenous peoples in legislative and judicial institutions.

Therefore, the protection of indigenous rights in Australia requires the judiciary to create new case law. New case law created through judicial pronouncement binds the lower courts. The lower court must follow the case made by the High Court in accordance to doctrine of precedent. This is demonstrated in Mabo v Queensland (No 2)1992, HCA (Bailey, G. 2005). This case law protects indigenous people’s land’s rights. As the case law is made by the High Court which bind the lower court. Developments have been made in court proceedings to address the unique problems faced by indigenous people, In the Native Title Act Case,(1) the High Court unanimously held that the original Native Title Act was valid as a law dealing specially with the rights and interests of ‘people of the Aboriginal race’(2). It adopted the test of ‘manifest abuse’ of power to determine whether it can strike down, as part of its ‘supervisory jurisdiction’, a law supported by the race power. The Government is also committed to pursuing recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution. In December 2010 it established an expert panel to consult with Australians; the panel is due to report back to the Government by the end of 2011, with options for proceeding with this matter (Dixon 2013).

Besides this, the protection of Indigenous rights in Australia requires the Legislation through Parliamentary sovereignty as it is the supreme lawmaker. Therefore, laws made by Parliament could override a bad case-law. A bad case law was override in Trigwell’s case 1979 (HCA), (Bailey, G. 2005).However, in the justices obiter dictum they called for parliamentary intervention to abrogate the precedent as they believed it was wrong and that it was not the job of them to do so. Parliament abrogated the Courts decision and amended the Wrongs Act Amendment Act (WAAA) (1983) (SA), which correlates to Mabo Case (No.1) (1988) (Bailey, G. 2005).This remedial legislation protects indigenous rights, as the law made by the parliament prevails over regulation whenever there is a conflict. The Government is also committed to holding a national referendum on the matter during its current term or at the next federal election the ‘expert panel’ to make recommendations in regards to amending the Constitution. The panel’s proposal to remove the race power (section 51) is redundant as they simply replace it in a new section (51a) to protect the indigenous rights in Australia through legislative (Dixon 2013).This new section will preserve the parliament’s ability to pass laws “for the benefit” of Aboriginal and Torres Strait Islander peoples.

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