R v Walker

1. The Parliaments of the Commonwealth of Australia and of the States lack the power to legislate in a manner affecting aboriginal people without the request and consent of the aboriginal people.

2. Further and in the alternative, if the Parliament of the Commonwealth or of a State legislates in a manner affecting aboriginal people the law in so far as it relates to aboriginal people is of no effect until it is adopted by the aboriginal people whom, or whose land, it purports to effect [sic].

Couched as they are in terms of the legislative incapacity of the Commonwealth and State Parliaments, those pleadings are untenable. The legislature of New South Wales has power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever [1] . The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected. As Gibbs J. (with whom Aickin J. agreed) said in Coe v The Commonwealth [2] : "The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside." In that case all the justices on appeal upheld the view which I had taken at first instance [3] rejecting the plaintiff's claim that sovereignty resided in the Aboriginal people. There is nothing in the recent decision in Mabo v Queensland [No. 2] [4] to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people. Indeed, Mabo [No. 2] rejected that suggestion. In Coe v The Commonwealth [5] , I said that:

Mabo [No. 2] is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are a "domestic dependent nation" entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognized by the laws of the Commonwealth, the State of New South Wales and the common law. 1. Constitution Act 1902 NSW. 2. (1979) 53 A.L.J.R. 403, at p. 408; 24 A.L.R. 118, at p. 129. 3. (1978) 52 A.L.J.R. 334; 18 A.L.R. 592. 4. (1992) 175 C.L.R. 1. 5. (1993) 68 A.L.J.R. 110, at p. 115; 118 A.L.R. 193, at p. 200.

In so far as it is based on the proposition that the legislatures lacked power to legislate over Aboriginal peoples, the statement of claim discloses no reasonable cause of action.

However, counsel for the plaintiff in his oral submissions put the matter somewhat differently. He submitted that the question which arose was whether customary Aboriginal criminal law is something which has been recognized by the common law and which continues to this day, in the same way that Mabo [No. 2] decided that the customary law of the Meriam people relating to land tenure continues to exist. Counsel relied on a passage in Blackstone's Commentaries on the introduction of English law into a country that had been outside the King's dominions [6] :

Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony. That passage was approved by the Privy Council in Cooper v Stuart [7] and cited by Brennan J. in Mabo [No. 2] [8] . It was submitted that statutes must be construed so as to accord with what was said to be the common law principle set out by Blackstone, with the consequence that the criminal statutes of New South Wales did not apply to people of Aboriginal descent. 1. Commentaries, 5th ed. (1773), Bk I, ch. 4, p. 107. 2. (1889) 14 App. Cas. 286. 3. (1992) 175 C.L.R., at p. 34.

That proposition must be rejected. It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle [9] . The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters [10] . The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting [11] . And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose [12] . The presumption applies with added force in the case of the criminal law, which is inherently universal in its operation, and whose aims would otherwise be frustrated. So, in Quan Yick v Hinds , Griffith C.J. when dealing with the more general question whether the entirety of Imperial law was in force in Australia stated [13] :

It has never been doubted that the general provisions of the criminal law were introduced by the [Australian Courts Act 1828 Cth]. [14] 1. See Racial Discrimination Act 1975 Cth, s. 10. 2. Bennion, Statutory Interpretation, 2nd ed. (1992), p. 255. 3. Ex parte Blain; Re Sawers (1879), 12 Ch. D. 522, at p. 526; Gold Star Publications Ltd. v Director of Public Prosecutions , [1981] 1 W.L.R. 732, at p. 734; [1981] 2 All E.R. 257, at pp. 258-259. 4. Bennion, op. cit., at p. 260. 5. (1905) 2 C.L.R. 345, at p. 359. 6. 9 Geo. IV c. 83.

Even if it be assumed that the customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application. In Mabo [No. 2], the Court held that there was no inconsistency between native title being held by people of Aboriginal descent and the underlying radical title being vested in the Crown. There is no analogy with the criminal law. English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it. There is nothing in Mabo [No. 2] to provide any support at all for the proposition that criminal laws of general application do not apply to Aboriginal people.

The summons taken out by the defendant only seeks an order that the action be dismissed or, alternatively, stayed. However, in proceedings under O. 26, r. 18, it is appropriate for a pleading that does not disclose a reasonable cause of action to be struck out, and counsel for the defendant accepted as much in argument.

Accordingly, the statement of claim must be struck out and the action must be dismissed.