: Mabo in the Courts: Islander Tradition to Native Title: A Memoir

Mabo in the Courts: Islander Tradition to Native Title: A Memoir

Robert Lehrer

Mabo in the Courts by Bryan Keon-CohenBryan Keon-Cohen; Australian Scholarly Press, 2011;
$59.95 (paperback)

The Order of the Court: ‘… that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer …’ (1992).

And so the case was won, 6-1 in the High Court. Perhaps an alternative title for this book may have been ‘Mabo: a plucky but lucky victory’ for it is almost certain that it was a most favorably constituted court that handed down the judgment, giving Justice Dawson (the sole dissenting judge) a thorough thrashing. But it is often said that we make our own luck and so it was with the Mabo case. The Mabo team went in as underdog; the case was run on a shoestring budget and skeleton staff, but fought with a vigor and resolve that perhaps took their more resourced opposition by surprise.

Keon-Cohen’s book takes us behind the scenes of what is probably the most famous of all Australian High Court cases, and it is no dull tax matter or heavily nuanced administrative law issue. It is a 10-year drama of personalities, difficulties and hurdles overcome. The backdrop is largely Queensland in the 1980s. The languid, narrow-minded, small town, sometimes seemingly racist place that it is often stereotyped as comes through as a reality in the book. The Queensland government seems to do its utmost to discredit Eddie Mabo and most of his allies. Of course, this is the nature of politics and litigation and Mabo was a very political matter, but in this case, it got personal!

For 10 years, Bryan Keon-Cohen was Junior Counsel in the Mabo case. Keon-Cohen was a dogged advocate, I witnessed this first hand. He had a relentless style, which is reflected in his writing; this book is certainly for those who enjoy knowing ‘the whole story’. The book scrutinises every significant moment of the case, from its humble beginnings with solicitor Greg McIntyre to the portentousness of the full bench of the High Court of Australia. Ron Castan QC was Senior Counsel and ‘leader’, as Keon-Cohen would call him, relentless in his own way but also respected and quietly feared by the opposition. Of course, the real hero of the book and the whole story is Eddie Koiki Mabo, the man who brought the case and persisted with an unswerving determination for over a decade, only for matters to take a dramatic turn just prior to his moment of victory.

The Mabo case established new legal doctrine in Australia and for many overturned 200 years of legal (and moral) falsehood. It enshrined Eddie Mabo as a national treasure and hero. Keon-Cohen’s book documents the events leading to this amazing transition and belongs on the shelves of all Australian libraries and in the homes of all who are interested in both the law and Australian history.

ROBERT LEHRER worked with the plaintiffs’ legal team 1988–1991.

(2011) 36(3) AltLJ 218
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