‘Lost’ rule opens door to Australian Indigenous sovereignty

The ‘Lost’ Legal Rule Opening the Door to Indigenous Sovereignty

A significant shift in the Australian legal landscape may be on the horizon. Recent research from Melbourne Law School has uncovered a long-forgotten legal principle that could fundamentally change how the High Court of Australia handles questions of Indigenous sovereignty.

For decades, it was widely accepted that the High Court lacked the jurisdiction to rule on the sovereignty of First Nations people. However, Associate Professor Olivia Barr has identified a 1935 legal rule that suggests this “closed door” may actually be open.

Breaking the Precedent: From Coe to Tasmania v Victoria

To understand the impact of this discovery, one must seem back at the 1970s case Coe v Commonwealth. In this instance, four High Court judges were split two-two on whether the court should allow a trial regarding sovereignty.

Because the vote resulted in a stalemate, the case never went to trial. This outcome led to a long-standing assumption across the legal community that the High Court simply did not have the power to create a decision on such matters.

The 1935 Discovery

The game-changer is a rule found in Tasmania v Victoria (1935). Associate Professor Barr’s research, published in the University of New South Wales Law Journal, reveals that split-court decisions do not create a legal precedent.

Essentially, this means the stalemate in the Coe case does not bind future courts. In the eyes of the law, it is as if the Coe case never happened, leaving the High Court open to hearing new cases on Aboriginal sovereignty.

Australia in a Global Context: The Treaty Gap

The concept of sovereignty refers to the authority and power of original inhabitants to make decisions about how to govern aspects of their own lives. While Australia has lagged behind, other nations have established formal frameworks for this recognition:

• Canada: Has signed more than 70 treaties with its Indigenous peoples.
• United States: Maintains more than 300 treaties.
• New Zealand: Operates under the Treaty of Waitangi.
• Norway, Finland, and Ecuador: Use constitutional recognition or bodies like the Sámi Parliament to recognize Indigenous sovereignty.

Bringing Australia into alignment with these contemporary societies could lead to wider treaty-making and a formal acknowledgment of inherent rights to govern internal affairs.

The Risks and Rewards of a Legal Test Case

While the “open door” exists, the path forward is not without peril. Indigenous communities and leaders now face a critical decision: whether to launch a test case to seek a definitive ruling from the High Court.

Associate Professor Barr describes this move as “high risk.” The potential outcomes fall into three categories:

1. Massive Legal Change: A ruling in favor of sovereignty could transform Indigenous rights in Australia.
2. Legal Regression: A negative ruling could potentially set a new, more restrictive precedent.
3. The Status Quo: The court could simply maintain the current state of affairs.

Revisiting History: Moving Beyond the Mabo Decision

University of Melbourne deputy vice-chancellor (Indigenous) Barry Judd suggests that this research should be viewed as a continuation of the journey started by the 1992 Mabo decision. While Mabo successfully debunked the myth of terra nullius and recognized land rights, the deeper question of sovereignty was left unanswered.

Professor Judd argues that this is an opportunity for the Australian legal system to revisit historical “untruths” lived by the nation since 1788. He asserts that the recognition of sovereignty would not cause the “sky to fall in,” but would instead bring Australia in line with other former British Empire nations.

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