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Attorney-General discusses Hugh Morgan's recent criticism of the High Court's Mabo decision

ELLEN FANNING: Western Mining chief, Hugh Morgan, is stirring up the Mabo debate again. Mr Morgan has launched a vitriolic attack on the High Court and the six Justices who ruled that native land rights exist in Australia. In a speech to be delivered tonight at Bond University, Mr Morgan accuses the High Court of assuming an authority that should reside only in the hands of the Parliament. He warns the six Justices have lit a fuse which if not put out, will gravely damage their own institution and place them at the centre of a constitutional crisis. Well, his comments have prompted a swift response from the Federal Attorney-General.

Michael Lavarch says the attack is unwarranted and made worse by the fact that the High Court is unable to defend itself. The Attorney-General recorded this interview with Michael Brissenden earlier tonight.

MICHAEL LAVARCH: I feel that Mr Morgan knowing this, really should confine his comments to the merits or otherwise of the decision and leave the institution of the High Court alone.

MICHAEL BRISSENDEN: Well, he indeed accuses the High Court of acting beyond its role, saying that the judiciary has assumed an authority which should reside only in the hands of Parliaments. Has the High Court gone beyond its role, or the ramifications of its decision gone beyond what it should?

MICHAEL LAVARCH: No, again it is a misconception which Mr Morgan and others, including the Premier of Western Australia, has been trying to promote that the High Court has usurped or taken over the role of Parliament. I mean, the role of the High Court is to make judgments in terms of the meaning and modern application of the Constitution. It is of course, also the ultimate determiner of the common law and that is four squares the exact role of the High Court, and that is exactly what it was doing in the Mabo decision. To say that it has gone beyond its role or is trying to overtake the role of Parliament, I think fundamentally misunderstands the position of the Court in our constitutional system, he misunderstands the Mabo decision.

MICHAEL BRISSENDEN: Has it placed us in something of a constitutional dilemma though?

MICHAEL LAVARCH: I don't believe so. I mean, the Mabo decision has caused this government, indeed all State Governments, I think the broader community, to come to grips with some very challenging and difficult issues. I am not walking away from that, but they are issues which this country has to confront, and in doing that, the Court has simply played its proper function in determining a case on its facts, which were laid before us. It is now up to the institutions of Parliaments, various governments in this country to come to grips with that decision and make an appropriate response which provides fairness for Aboriginal and Islander people, and the necessary economic certainty for investment and other broader community interests. And that is the challenge which all governments are now faced with.

MICHAEL BRISSENDEN: Is it true that the Commonwealth could, in effect, pass an Act which would allow the States to extinguish native title and not suffer claims for compensation from claimants?

MICHAEL LAVARCH: Well, if it was of a mind to, the Commonwealth Government being the paramount .... or the Commonwealth Parliament being the paramount law-making authority in our system, could of course pass a law which effectively over-rides the High Court decision.

MICHAEL BRISSENDEN: So you could overturn the High Court if you wanted to.

MICHAEL LAVARCH: Of course you can. I mean, and court decisions are overturned very regularly by Parliaments. I mean, often new Acts of Parliament are in response to particular court decisions, so there is nothing unusual with that. I mean, the Commonwealth has to act within its constitutional power and the High Court is the determiner of those questions, but the Commonwealth has the power to overturn the Mabo decision if it was of a mind to. It certainly is not of a mind to. The question that we face is dealing with the fact of the matter that Australia was occupied prior to European settlement and that certain rights in terms of the land management system, exist within Aboriginal and Islander people. Now that is a fact of life and we are now dealing with it.

MICHAEL BRISSENDEN: Do you agree that it was a fairly revolutionary ruling?

MICHAEL LAVARCH: Well, it was a very significant ruling and in as much as it can get the tag 'revolutionary', I suppose it is because it came so late in Australia's development. I mean, similar decisions have been made by courts in other countries but generally, these issues have been grappled with much earlier after the European settlement of those countries. It has come to Australia late but that of itself doesn't make it revolutionary. It is, in fact, a judgment which I think anyone who looked at the facts of the case would generally agree with.

MICHAEL BRISSENDEN: Well, Mr Morgan says that it is so revolutionary that the High Court has in effect destroyed the doctrinal foundation of every law of title since the Imperial Australian Courts Act of 1828. Is that the way you see it?

MICHAEL LAVARCH: Well, I mean it is that sort of gross overstatement and sensational comment which doesn't help both the resolution of the issues raised by the Mabo decision, nor does it help the general public understanding of the appropriate role of the High Court. I mean, the Court has done nothing like that at all. It has made a decision which does indeed, pose challenges to be resolved, but to say that it has sort of essentially thrown out the whole basis of the Australian legal system or whole basis on which property management operates in this country, is absolute nonsense.

ELLEN FANNING: The Federal Attorney-General, Michael Lavarch.