Federal Court and the Tribunal
Question 1.
- (a) State an example of a court and a non-judicial tribunal from the same jurisdiction.
- (b) Explain how, if at all, the two bodies you have selected are linked through rights to appeal or the use of precedent.
- (c) Discuss both the differences and similarities between the court and the non-judicial tribunal you have chosen. For example, your answer may refer to alternative dispute resolution and the role of the legal profession as well as other relevant factors.
Question 2
In Queensland v Commonwealth (1977) 139 CLR 585 Gibbs J observed: [10]. It would be futile to attempt to state any succinct general principle by which the Court should be guided in deciding whether to overrule an earlier decision of its own.
- How does the High Court decision in Mabo v Queensland (No 2) (1992) 175 CLR617 develop an understanding of when the High Court may overrule earlier decisions?
- Why, according to the doctrine of precedent is the High Court able to overrule earlier decisions?
- Why is an understanding of English legal history important to an understanding of the decision in Mabo?
Solution.
Question 1
- The Federal Court of Australia and the National Native Title Tribunal share the same jurisdiction on matters to do with native titles in terms of determination of their existence and the various forms in which such titles exist. The tribunal cooperates with the people in establishing a clear understanding of all the issues that surround native title in view and acknowledgement of the interests and rights of all the people in waters and land, facilitating achievement of enduring outcomes (Weir, 2012). The Tribunal’s approach is fair and impartial, considering the concerns and views of all the parties that are engaged in a native title dispute, hence involving them in the establishment of an amicable solution based on facts. Nevertheless, members of the public may choose to directly file their cases to the federal Court of Australia for hearing, in which case the court uses legal principles to determine the existence of a native title, and the form in which such a title exists.
- Parties may choose to appeal the determination of the National Native Title Tribunal to the Federal Court as provided for under the Native Title Act of 1993 and the Federal Court Rules of 2011 (Miller, 2010). Any application made to the Federal Court is still referred to the Registrar of the National Native Title Tribunal for administrative processing as required by the Native Title Act 1993. The application is taken through a ‘registration test’ after which it is registered as a claim that can hence proceed towards legal determination in Court. This process provides the applicant with various procedural rights. The relationship between the Federal Court and the Tribunal is also observed in view of the use of precedent, whereby the Tribunal uses precedent Court determinations to make decisions on some of the issues that are presented to them, which share similarities (Weir, 2012).
- One of the major similarities between the Federal Court and the National Native Title Tribunal is that they both apply mediation as an alternative dispute resolution mechanism (Miller, 2010). In this case both the Federal Court and the National Native Title Tribunal either fully or partially mediate applications between claimants and non-claimants. The Tribunal is expected to forward the mediation reports to the federal court (Weir, 2012). On the other hand, the legal professions share the role of protecting the interests of their clients in both the Federal Court and the Tribunal. However, the major difference between the Court and the Tribunal is that, while the Court has the jurisdiction to offer judicial determination of the cases, the Tribunal cannot give judicial determinations or solutions.
Question 2
- In Mabo v Queensland, two major reasons as to why previous court decisions could be overruled were brought up. To start with, it was unidentified that legal system alterations could lead to the nullification of the rationale behind certain decisions and hence the inapplicability of such decisions. Change is consistent in the judicial environment, in response to change in its surroundings. As such, a common law principle that was initially used to make a certain judicial decision may become ill adopted to the contemporary circumstances, an aspect that makes it inapplicable in modern decisions (Zetler & Bonello, 2012). In addition, the rationale behind a given course of action undertaken by a court may have been based on a procedural fiction. As the old action forms face demise, such rationale becomes obsolete and cannot be supported anymore. On the other hand, another area of importance involves whether any interests pressing for acknowledgement are effectively covered by precepts that currently exist. According to the High Court, the ethical and social ideas concerning the proper accommodation of such interests have undergone tremendous change since the formulation of these precepts. Case in point, in Mabo v Queensland, the Court’s majority established that the land’s indigenous title survived the Crown’s colonization of Australia back in 1788 (Zetler & Bonello, 2012). As such, the court held that the process of extinguishing the indigenous interests and rights relating to land ownership, as dictated by the philosophy of terra nullius, only remained justifiable under a policy that can no longer be deemed viable in the contemporary law of Australia.
- There are no actual rules that have been established by the High Court of Australia to set the circumstances under which a judge can overrule a decision previously held. As such, it is frequently argued that no judge has the sufficient authority to disagree with a principle that he or she personally expressed in a decision made earlier (Dosen, et al., 2013). Nevertheless, Justices of the High Court have the ability to overrule previous decisions if they deem them fundamentally wrong, manifestly wrong, or plainly erroneous, which explain how exceptional the action taken is. Given this, high Court Justices have the power to overrule previous decisions if they consider the circumstances under which the decisions were made to be exceptional (Dosen, et al., 2013). On the other hand, according to a general rule, the High Court has the power to overrule the decision made by a lower court in the courts hierarchy.
- According to the English law, the Crown had the ‘absolute beneficial ownership’ of the land as it had the authority over all the land. This law applied in the Australian context when Australia fell under the dominion of Britain as a colony (Zetler & Bonello, 2012). Since the islands referred to by the plaintiffs in Mabo had no other proprietor, a philosophy referred to as terra nullius, then the English law provide that the Crown takes the absolute ownership of the land. As part of the English law, the feudal doctrine of tenure was also applied by the British colonists. Considering the fact that all the land in a colony was considered to be ‘patrimony of the nation’ (Dosen, et al., 2013). The Crown’s colonization of Australia allowed them to acquire the patrimony’s ownership on behalf in the place of the nation, leaving no individual thereafter in possession of any interest or right in all the land. According to the judgement made in Mabo, the indigenous people had a native title over the land as they could establish a connection with the land. Nevertheless, in as much as a radicle title was acquired by the Crown upon their colonization of Australia, the country was not terra nullius as it was inhabited, making it impossible for the Crown acquire the absolute beneficial title (Zetler & Bonello, 2012). Instead, the radicle title acquired by the crown only bestowed sovereignty, which did not eliminate the native title.
References
Dosen, A., Ballantyne, T., Brumpton, M., Gibson, K., Harris, L., & Lippingwell, S. (2013). Investigating Legal Studies for Queensland. Melbourne: Cambridge University Press.
Miller, R. J. (2010). Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies. New York: Oxford University Press.
Weir, J. K. (Ed.). (2012). Country, Native Title and Ecology. Canberra: ANU E Press.
Zetler, J., & Bonello, R. (2012). Essentials of Law, Ethics, and Professional Issues in CAM. New South Wales: Elsevier.
