Mabo v Queensland

[1988] HCA 69

High Court of Australia|1988-07-01|Before: Gaudron JJ, Wilson J

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Source facts

Court

High Court of Australia

Decision date

1988-07-01

Before

Gaudron JJ, Wilson J

Source

Original judgment source is linked above.

Judgment (222 paragraphs)

[1]

High Court of Australia Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Mabo v Queensland [1988] HCA 69

[2]

I have read the reasons for judgment prepared by Wilson J. I agree with what his Honour says on the various questions debated in the argument on the demurrer, except the so-called "inconsistency questions". In particular, like his Honour, I agree with the construction given by Brennan, Toohey and Gaudron JJ. to the Queensland Coast Islands Declaratory Act 1985 Q. ("the Queensland Act").

[3]

It then remains for me to consider whether s. 9 or s. 10(1) of the Racial Discrimination Act 1975 Cth ("the Commonwealth Act") affects the operation of the Queensland Act. The demurrer is an unsuitable vehicle for the determination of these questions. The plaintiffs' statement of claim asserts that since time immemorial the Murray Islanders (the plaintiffs being Murray Islanders) have maintained a system of laws, customs, traditions and practices of their own for determining questions concerning ownership of, and dealings with, land, seas, seabeds and reefs. The statement of claim alleges that, in accordance with these laws, customs, traditions and practices, the plaintiffs now own, or have proprietary interests in or usufructuary rights in relation to, the lands, seabeds, reefs and fishing waters of the Murray Islands. The statement of claim does not define or describe these rights and interests. The plaintiffs allege that the defendants threaten to infringe these rights and interests by establishing a council under the Land Act 1962 Q. and granting the lands of the Murray Islands to the council as trustee with power to lease and power to terminate traditional occupation. For the purposes of the demurrer now before the Court the State of Queensland's defence pleads that the Murray Islands are islands to which the Queensland Act applies (par. 4A) and is a substantive defence to the plaintiffs' claims: pars. 9A, 10A, 17A, 18A and 22A. The State of Queensland submits that the Queensland Act retrospectively abolished all such rights and interests as the Murray Islanders may have owned and enjoyed before its enactment. The plaintiffs' demurrer to the relevant paragraphs of the defence assumes the existence, immediately before the enactment of the Queensland Act, of the rights and interests asserted by the plaintiffs. The need to make this assumption, when it is unaccompanied by a precise definition or description of the rights and interests said to have been owned and enjoyed by the Murray Islanders presents a formidable obstacle to the resolution of the issues which have been debated. The suggested advantage of resolving these issues at this stage of the proceedings is that it avoids the necessity of determining the existence and nature of the traditional rights and interests claimed by the plaintiffs, the existence of which is denied by the State of Queensland. But, if the plaintiffs ultimately are to succeed in the action, at some stage they must establish the existence and nature of those rights and interests. So the suggested advantage of attempting to provide a dispositive decision on the issues of substance by way of resolving the demurrer is illusory. And, in any event, to do so would require the Court to make assumptions on matters of fact instead of allowing issues of fact to be determined in the ordinary way.

[38]

With respect to the questions of legislative power, five things may be said. First, the Murray Islands were effectively annexed to and became part of Queensland in 1879: cf. Wacando v. The Commonwealth [45] . They thereby became subject to the laws of Queensland. Secondly, for the reasons expressed by Dawson J., the Queensland legislature is not limited in its power to deal with the waste lands of the Crown. Thirdly, for present purposes it is enough to say that the power to legislate for the "peace welfare and good government" of Queensland is, subject to the Constitution of the Commonwealth, a plenary power, the exercise of which lies within the discretion of the legislature itself: see the recent discussion of the scope of the power in the judgment of the Court in Union Steamship Co. of Australia Pty. Ltd. v. King [1] . Fourthly, it is wrong to describe the Queensland Act as interfering with the judicial process. One example of that kind of statute was the subject of the decision of the Judicial Committee of the Privy Council in Liyanage v. The Queen [2] . The most that can be said of the Queensland Act is that it extinguishes the rights of persons who happen to be litigants seeking a vindication of those rights. It is not directed to the judicial process itself. If the Act is otherwise valid and effective, then the legal action will take its course in the context of the applicable law: see Australian Building Construction Employees' and Builders Labourers' Federation v. The Commonwealth [3] ; Builders Labourers' Federation v. Minister for Industrial Relations [4] . In any event, it may be doubted whether the doctrine of separation of powers, upon which the principle applied in Liyanage appears to depend, is entrenched in the constitutional framework of Queensland: cf. Builders Labourers' Federation v. Minister for Industrial Relations [5] . Finally, however much its exercise may be deprecated, it is not beyond the power of a State legislature to deprive a person of property without compensation, provided the deprivation is otherwise effected according to law.

[91]

The declarations set out in pars. (a), (b) and (c) of s. 3 are expressed to apply to the islands from the time when the islands became ("upon becoming") part of Queensland. The islands to which the 1985 Act applies are described in a schedule to The Queensland Coast Islands Act 1879 Q.. Those are islands situated off the coast of Queensland north of Sandy Cape and in the Torres Strait between Queensland and Papua New Guinea. They include the Murray Islands which were annexed to Queensland. (The manner and the date of annexation are immaterial for present purposes.) The correspondence between the words "upon the islands being annexed" etc. which introduce s. 3 and the words in par. 7 of the statement of claim shows that the 1985 Act applies to the legal consequences of the annexation of the Murray Islands. The Act declares what those consequences were so far as they relate to rights in and over the Murray Islands. The declarations of what the law was upon annexation may be historically false but that does not deny them legal effect. A declaratory Act may declare the law to be different from what, apart from the Act, the law is. Indeed, declaratory Acts are frequently passed in order to override a judicial decision as to what the law is: see Craies on Statute Law, 7th ed. (1971), pp. 58-59. The effect of such a statute is to change the law and the courts are thereafter bound to take the law as the statute declares it to be. If the statute declares what the law has been, the courts are commanded to decide future cases in conformity with the declaration though the circumstances to which the declaration applies occurred prior to the enactment of the statute: Attorney-General v. Marquis of Hertford [16] ; Attorney-General v. Theobald [17] . The statute does not, however, affect final judgments already given pursuant to the earlier law: Day v. Kelland [18] ; Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. [19] . The operation of a declaratory statute, like the operation of any other statute, depends upon the intention of Parliament ascertained by construction of its terms: see, e.g., Young v. Adams [20] .

[152]

As a matter of construction, there are two arguable views about the scope and operation of the provisions of s. 3. One is that s. 3 should be seen as operating independently, albeit by way of declaration, to extinguish any surviving traditional rights, interest and claims to the islands or any part of them regardless of whether such rights, interests or claims would, in any way, jeopardize or invalidate any past dealings with the land. The other is that, in the context of the Act as a whole, s. 3 is concerned only to lay a declaratory foundation for the validation (by s. 4) of past dealings under Crown lands legislation upon the basis of which interested parties would have acted and which might otherwise be placed in jeopardy or invalidated by any traditional proprietary rights, interests or claims which survived annexation. To construe s. 3 as having that more confined effect of providing a declaratory foundation for the operation of s. 4 would not be to deprive it of real content and operation. The pleadings indicate that there has been a number of past dealings with land on the islands pursuant to Crown lands legislation which could conceivably be jeopardized and invalidated by the survival of traditional rights, interests and claims. In particular, some two acres of land on Meer Island have been the subject of a series of grants of Crown lease, successively to the London Missionary Society and the Corporation of the Synod of the Diocese of Carpentaria, stretching back to 1882. There may well have been other dealings with parts of other islands. In addition, the pleadings indicate that there has been at least one "disposal" pursuant to "Crown lands legislation" (as defined) affecting the balance of the Murray Islands. By a proclamation made pursuant to The Land Act 1910 Q. in 1912 and continued under the Land Act 1962, the Governor in Council "permanently reserved and set apart" the Murray Islands, with the exception of the above-mentioned two acres, "for use by the Aboriginal Inhabitants of the State".

[157]

The effect of the plaintiffs' approach that, as a matter of construction, the Act did not extinguish any surviving traditional rights or interests at all was that there was no real examination in the course of argument of the effect, for the purposes of the present proceedings, of the provisions of s. 3 when they are given the construction which I have concluded is the correct one. Presumably, their effect, on that construction and if they be otherwise valid, is to provide an answer to the plaintiffs' claims only to the extent that those claims would, if otherwise well founded, be inconsistent with some specific past "disposal" of any part of the Murray Islands pursuant to Crown lands legislation. If that be so, the effect of the Act would be at least to invalidate the traditional proprietary rights or interests asserted by the plaintiffs to the extent that they would conflict with the dealings, under Crown lands legislation, with the two acres purportedly leased to the Diocese of Carpentaria. The pleadings do not suggest that there has been any "disposal" pursuant to Crown lands legislation of any other specific part of the Murray Islands. As has been said, the Governor in Council has purported permanently to reserve and set apart the balance (apart from those two acres) of the Murray Islands "for use by the Aboriginal Inhabitants of the State". It would, however, seem unlikely that the operation of the Act to the extent necessary to validate that proclamation would defeat specific traditional proprietary rights and interests. Indeed, such a proclamation might arguably be seen as providing a convenient general framework for the accommodation of such specific traditional rights and interests in a common law system by the recognition of a fiduciary relationship, analogous to a trust, under which the land is reserved or set apart for traditional owners according to their communal or individual entitlements under their traditional law and custom: cf., Guerin v. The Queen [33] . In that regard, the particulars included in the plaintiffs' amended statement of claim (see par. 15, particulars (a) and (c)) indicate that the plaintiffs themselves seek to preserve the reservation and setting apart of the Murray Islands and other Torres Strait Islands as a reserve under the Land Acts. It is, however, unnecessary to pursue these matters since I have come to the conclusion that, even if the provisions of s. 3 of the Act be given the more confined effect which I would give them as a matter of construction, they are inconsistent with the provisions of the Racial Discrimination Act ("the Commonwealth Act") to the extent that they would operate to extinguish surviving traditional proprietary rights and interests of the Murray Islanders to or in their ancestral homelands. I turn to explain the reasons which lead me to that conclusion. Again, it is necessary to assume, for the purposes of argument, that the hypothesis upon which the particular paragraphs of the statement of defence are pleaded is correct, namely, that traditional proprietary rights and interests of the Murray Islanders to the whole or particular parts of the Murray Islands otherwise survived annexation.

[167]

Three related points need to be made about s. 10 of the Commonwealth Act. The first is that, in the context of the specific statement in s. 10(2) that a reference in s. 10(1) "to a right includes a reference to a right of a kind referred to in Article 5" of the International Convention, it is clear that the "rights" to which s. 10(1) refers are not restricted to enforceable legal rights under local law. The word "right" is used in s. 10(1) in the same broad sense in which it is used in the International Convention, that is to say, as a moral entitlement to be treated in accordance with standards dictated by the fundamental notions of human dignity and essential equality which underlie the international recognition of human rights: cf., the preamble to the International Convention. In that sense, the moral entitlement to own property alone as well as in association with others and the moral entitlement to inherit which are referred to in Art. 5 of the International Convention are "rights" for the purpose of the guarantee against racial discrimination contained in s. 10 of the Commonwealth Act. Implicit in those moral entitlements is the "right" to enjoy immunity from being "arbitrarily dispossessed of [one's] property" which is expressly recognized by Art. 17(2) of the Universal Declaration of Human Rights 1948. The second point to be made about s. 10 is that the section is not to be given a legalistic or narrow interpretation. As its opening words ("If, by reason of ") make clear, it is concerned with the operation and effect of laws. In the context of the nature of the rights which it protects and of the provisions of the International Convention which it exists to implement, the section is to be construed as concerned not merely with matters of form but with matters of substance, that is to say, with the practical operation and effect of an impugned law. The third point is that the word "race" and the phrase "national or ethnic origin" are not to be given a pedantic or unduly narrow meaning. In particular, as s. 10(3) plainly enough indicates, the Torres Strait Islanders as a group constitute persons of a distinctive "national or ethnic origin" for the purposes of the Commonwealth Act. So also do the Miriam people as a sub-group.

[169]

The traditional rights and interests which the Act purports to extinguish are confined to rights and interests falling within the first category. They alone could comprise the " other rights, interests and claims" (emphasis added) from which s. 3 declares that the islands were " freed " "upon their being annexed to and becoming part of Queensland": the Act, s. 3. In other words, on the postulated assumption, the practical operation and effect of the Act would be to extinguish only traditional proprietary rights and interests whose ultimate source predated annexation while leaving intact rights and interests whose ultimate source lay in the European law which became applicable upon annexation and which included the common law rules and statutory provisions relating to waste lands of the Crown. In that sense, it is accurate to say that the purpose, operation and effect of the Act would, on the confined construction which I would give it, be to extinguish traditional proprietary rights and interests of the Torres Strait Islanders which survived annexation to the extent that their existence would invalidate or render ineffective subsequent dealings or acts "purporting to be in pursuance of Crown lands legislation": the Act, s. 4. On the broader construction which the State of Queensland would give s. 3 of the Act, the purpose, operation and effect of the Act would be to extinguish any such traditional proprietary rights and interests completely. And it would do that in a context where other proprietary rights and interests claimed under the European law, including Crown lands legislation, which became applicable to the islands upon annexation (and subsequently) would not be adversely affected but would be enhanced to the extent that their validity or efficacy would otherwise be impugned by surviving traditional proprietary rights and interests. On the assumption that traditional proprietary rights and interests survived annexation, the operation and effect of the Act is, on either construction, to distinguish between proprietary rights and interests to and in the islands according to whether they are ultimately founded in pre-annexation traditional law and custom or post-annexation European law. It discriminates against the former by singling them out for impairment or extinction while leaving the latter unaffected or enhanced.