The High Court 's Decision May Command Moral Respect Essay

834 Words Jun 8th, 2015 4 Pages
While the High Court’s decision may command moral respect, it incorporates a revisionist view of the application of common law and constitutes an example of political, as opposed to judicial, policy making (Moens 1993, 48). Common law typically consists of constantly evolving precedents, which are moulded by the values, aspirations, and expectations and collective interests of the community (Moens 1993, 52). Through fashioning a radical alteration of the common law, the majority of the High Court disregarded the traditional non-political role of the court. Where reversing long-standing precedents, the Court retrospectively altered legal relations established by those precedents, thus potentially defeating legitimate expectations from the community of Australia founded on them (Moens 1993, 50). When dissenting his opinion, Dawson J. insists that the issues raised in Mabo require a genuine political solution rather than a political solution cloaked in legal analysis (Moens 1993, 53). Moens expresses unease at the High Court 's 'preference for a philosophy of judicial activism ', and suggests that issues of indigenous land rights should first be addressed by the legislature, not the judiciary, as any major policy change is a matter for political processes (Moens 1993, 53). The High Court overstepped the limits of judicial function when declaring the common law of Mabo, failing to translate these changed values into the rule of law.

Although the Mabo decision recognized…

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