New legal research reopens sovereignty debate in Australia

Fresh legal research has reignited one of the most fundamental unresolved questions in Australian public life: whether the High Court could, after all, hear a case on First Nations sovereignty.

The renewed debate follows new work by Melbourne Law School’s Associate Professor Olivia Barr, published this week, arguing that a long-accepted assumption about the court’s lack of jurisdiction rests on a mistake. The issue goes back to Coe v Commonwealth in the 1970s, a case widely treated as having closed the door on sovereignty claims. Barr argues that interpretation is wrong because the judges split evenly and no binding precedent was actually created.

In comments published by the University of Melbourne, Barr said: “For 50 years, the High Court has consistently said that all questions about First Nations sovereignty fall outside its jurisdiction; that is, that the court does not have the power to hear such cases.” She then set out her central argument: “Because it was a stalemate, or deadlock vote, and not a decision in which the court had a majority verdict one way or the other, the Coe case does not count as a precedent.”

Barr says an overlooked rule from Tasmania v Victoria means split decisions do not create binding precedent. As she put it: “This means it is as if the Coe case never happened, so it is open to the High Court to agree to hear any case on Aboriginal sovereignty that is put forward.”

National Indigenous Times reported the finding as opening an “open door” to fresh litigation, with potentially profound consequences. If tested, the court could still decline to intervene. But if it chose to hear such a case, it would confront a question Australia has long left politically unresolved even as other Commonwealth countries have treaties or recognised Indigenous self-government arrangements.

Barr has been careful to note that the next move would not be academic but political and strategic. Any new test case would need to be brought by Aboriginal and Torres Strait Islander peoples themselves, with all the risks that involves. She said an unsuccessful outcome could be devastating for Indigenous people, while recognition of sovereignty would be “hugely significant, like another Mabo”, potentially opening legal avenues to more treaties, self-determination and reparations.

The timing matters. Australia remains the only Commonwealth country without a national treaty with its Indigenous peoples, and the failed Voice referendum has sharpened debate about what reform paths remain open. This research does not settle sovereignty. But it has reopened the legal debate in a way that many had assumed was impossible.