This article examines historical aspects of the convention that Australian judges are precluded from engaging in political activities. That convention is an element of the strict separation of judicial functions and the independence of the judiciary. Apart from the deliberative component which may be carried out in private and the very limited role for closed hearings, the judicial process is essentially acted out in public. However, upon appointment to the bench, a judge is expected to limit involvement in other forms of public life and to conduct his or her private life so as to avoid, as far as is reasonably practicable, involvement in activities which might (or might be seen to) compromise the judge's or a court's independent status or the impartial disposition of specific cases or issues. The less involved a judge is in non-judicial activities the less likely it is that the judge will be confronted with determination of a case or an issue in which he or she has some interest.

Constitutional jurisprudence in the United States and Australia is said to be separated by two factors: an entrenched Bill of Rights and the doctrine of parliamentary supremacy. Views of this distinction have been expressed by a succession of High Court Chief Justices.

Section 90 of the Commonwealth Constitution provides, inter alia, that:

on the imposition of Wlifonn duties of customs the power of the Parliament to impose duties of customs and of excise and to grant bounties on the production or export of goods shall become exclusive.

With the possible exception of s 92, no constitutional provision has created as much division in the High Court as has s 90. The difficulty surrounding the interpretation of s 92 was alleviated by the unanimous decision in Cole v Whitfield, from which emerged a clear principle to assist the Court in future decisions. The problems besetting the Court in the interpretation of s 90 have yet to be resolved.

Following the High Court's decision in the Election Advertising case, Toohey J's extra-eurial speech at a 1992 conference on constitutional law has inspired speculation as to the existence of an implied “Bill of Rights” in the Constitution. As reported in the Australian Financial Review, Toohey J's thesis avoided any direct challenge to the doctrine of Parliamentary supremacy by, “resorting to the Constitution — albeit implications arising from the Constitution as opposed to the written text — to legitimise judicial scrutiny of legislation”.

Mabo v Queensland [No 2] is a landmark decision. The High Court held, by a six to one majority, that the common law of Australia recognises a form of native land title which survived the Crown's acquisition of sovereignty over Australia. The effect of the Crown's acquisition of sovereignty, according to the High Court, was simply to expose common law native title to the possibility of extinguishment by a valid exercise of inconsistent sovereign power.

The judgments in Mabo [No 2] range widely across issues of constitutional law and the law of real property. These issues are explored below in a description and analysis of the case. In addition, mention is made of the techniques of legal reasoning adopted by the majority judges.

The constitutional validity of Federal legislation such as the Trade Practices Act 1974 (Cth) depends upon the legislation falling within the ambit of the law-making powers of the Commonwealth enumerated in the Constitution. Those law-making powers are contained primarily within s 51, supplemented by additional heads such as s 122 and others. The Trade Practices Act 1974 (Cth) (the “Act”), drafted after successful constitutional challenges to earlier trade practices legislation, relies for its constitutional validity primarily on the corporations power (s 51(20)), bolstered by the trade and commerce power (s 51(1)), postal services (s 51(5)), banking (s 51(13)), insurance (s 51(14)), external affairs (s 51(29)), dealings with the Commonwealth (s 52) and the territories power (s 122). The constitutional foundations of the Act are expressly referred to in s 6 of the Act. That section provides something of a checklist of heads of power upon which the Act is based and is designed to enumerate, when necessary, the extension of the Act to constitutional heads of power other than the corporations power.

The right of petitioning Parliament is a fimdamental right of the citizen, allowing any individual or body of individuals to take grievances directly before Parliament. It is one of the most direct means of communication between the people and the Parliament. It is by this means that people can voice their concerns to the House on matters ofpublic interest.