Lost Rule Unlocks Path to Australian Indigenous Sovereignty and Rights Reform

A long-forgotten legal rule from 1935 has reopened the possibility for Australia’s High Court to hear cases on Indigenous sovereignty, challenging decades of legal precedent that held such matters were beyond the court’s jurisdiction.

The discovery stems from research by Olivia Barr of Melbourne Law School, who identified a ruling in the case Tasmania v Victoria (1935) that established split-court decisions do not create binding legal precedent. This finding undermines the lasting impact of the 1970s case Coe v Commonwealth, in which four High Court judges deadlocked two-two on whether to allow a trial concerning Aboriginal sovereignty.

Because the Coe case ended in a stalemate and was never decided on its merits, it was long assumed to have set a precedent that the High Court lacked authority over sovereignty questions. However, Barr’s research shows that because the decision was not a majority ruling, it does not count as precedent under common law principles.

“This means We see as if the Coe case never happened,” Barr said, “so it is open to the High Court to agree to hear any case on Aboriginal sovereignty that is put forward.”

Australia remains the only major Commonwealth nation without a national treaty recognizing Indigenous sovereignty. Countries such as Canada, New Zealand, and the United States have numerous treaties with Indigenous peoples, while others like Norway and Finland recognize Indigenous rights through constitutional mechanisms or representative bodies such as the Sámi Parliament.

The Mabo decision of 1992 acknowledged Native Title rights to land but deliberately left the broader question of sovereignty unresolved. Barr suggests that the newly clarified legal pathway could allow for a case of comparable significance, potentially transforming the legal recognition of Indigenous rights in Australia.

Despite the opportunity, Barr cautioned that pursuing such a case carries significant risk. “It could lead to massive legal change, it could lead to massive legal regression, or it could lead to the status quo,” she said, noting that the outcome would depend on how the Court interprets the law and the strength of any case brought forward.

The next step, according to Barr, would involve Indigenous communities and leaders determining whether to pursue a test case and weighing the potential consequences. No formal proceedings have been initiated as of the date of the research’s publication.

The findings were published in the University of New South Wales Law Journal and have been reported by multiple Australian news outlets, including 1News, AAP, and The Conversation, all confirming the core details of the rediscovered legal principle and its potential implications.