About the episode
For teachers
Short
Barrister Bryan Keon-Cohen QC talks about the stages of the Mabo case leading to the final Mabo decision at the High Court, which set a new precedent. Professor Larissa Behrendt compares this with international judgments that deal with Aboriginal peoples.
Detail
Lizzie O’Shea explains that Australia was considered by the first fleet to be terra nullius. Essentially, that means nobody had claimed ownership of the land. But of course people had been living in Australia for thousands of years. She introduces the Mabo case, and its key players.
Lizzie talks with Bryan Keon-Cohen QC, who worked on the Mabo case which progressed slowly through the courts for ten years. One of the many problems that the team had to overcome was that of hearsay evidence. Indigenous communities rarely used written documents, and so ownership of land is passed down by telling the person what they owned. In our courts, that becomes hearsay, and does not carry as much weight as a written document.
Professor Larissa Behrendt talks about finding out about Mabo as a law student. She compares it to what was happening in Canada around the same time.
Lizzie O’Shea wraps up by reminding us that courts are bound to follow precedent but can occasionally radically change how law is interpreted, as they did with Mabo.
Curriculum Areas
National
Years 9/10 civics and citizenship education curriculum in relation to the theme of Law and Citizens.
Years 11/12 Legal Studies
Victoria
Unit 4: The people and the law, Area of Study 1, The people and the Australian Constitution.
NSW
Preliminary course: Part I: The legal system, 5. Law reform in action.
HSC course: Part III: Options, Option 4 : Indigenous peoples.
SA
Stage 1 – Topic 1: Law and Society, What are the characteristics of Indigenous customary law? And Topic 3: Law-making, What causes laws to be made or changed?
Stage 2 – Topic 2: Constitutional Government, Rights of Indigenous Australians
Queensland
Elective area of study: Indigenous Australians and the law
ACT
Property Law
Useful links
Barabara Hocking is considered the architect of the Mabo case. Find out more about her here