Western Australia v Commonwealth

[1995] HCA 47

High Court of Australia|1993-07-01|Before: Mason CJ, McHugh JJ, In P

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Court

High Court of Australia

Decision date

1993-07-01

Before

Mason CJ, McHugh JJ, In P

Source

Original judgment source is linked above.

Judgment (360 paragraphs)

[1]

Introduction 417 Part 1 The establishment of Western Australia: was native title extinguished? 421 Part 2 The WA Act and its operation: consistency with the Racial Discrimination Act 434 (i) Liability to extinguishment and impairment of s 7 rights 438 The Land Act 1933 441 The Mining Act 1978 442 The Petroleum Act 1967 446 (ii) The compulsory taking of land subject to s 7 rights 447 (iii) Compensation for the taking of land 449 The validity of s 5 of the WA Act 451 Part 3 The Native Title Act: its constitutional character 452 The recognition and protection of native title 453 Part 4 Validity of impugned key provisions of the Native Title Act 464 (i) Control of the legislative powers of the State 464 (ii) Impermissible discrimination against Western Australia and impermissible impairment of the ability of Western Australia to function as a State 476 Part 5 Submission of invalidity based on Constitution, s 53 482 Part 6 The operation of s 7 of the Native Title Act 483 Part 7 The validity of s 12 of the Native Title Act 484 Part 8 Answers to questions 488

[2]

The principles stated by this Court in its judgments have effect upon the operation throughout the Commonwealth of the whole complex of Australian laws. Consequently, when this Court was called upon in Mabo v Queensland [No 2] [1] (hereafter Mabo [No 2]) to consider whether native title survived the annexation of the Murray Islands into the Colony of Queensland on 1 August 1879 and whether the Meriam people were entitled to their enjoyment of native title to or in respect of unalienated Crown land in the Murray Islands, the general question of the recognition by the common law of the native title of Aboriginal peoples to or in respect of traditional lands in other parts of the Commonwealth arose for consideration and was answered. As all parties and interveners have accepted in argument, the present case falls to be determined in the context of the answer which the majority of the Court gave.

[41]

The preamble to the Act referred to a Settlement "upon certain wild and unoccupied Lands on the Western Coast of New Holland". If this preamble can be construed by reference to contemporary usage, the description "wild" bears the meaning of the same term in the regulations of 13 January 1829 which referred to land that had not "been brought into Cultivation, or otherwise improved or reclaimed from its wild state" [38] . The term "wild" probably meant land in its natural state. The term "unoccupied" is of greater legal significance. It could not have meant unoccupied by Aborigines for it was known at all material times that the land on the west coast of New Holland was occupied by Aborigines. Stirling had so reported in 1827 [39] and the instructions first given by the Lords Commissioners of the Admiralty to the officer commanding the naval forces at the Cape of Good Hope to despatch a ship to take possession of the western coast of New Holland directed the observance of "great caution against any surprize of the natives, and especially to be very guarded with respect to their women" [40] . That direction was conveyed by formal instruction to Captain Fremantle [41] . In 1829, shortly after Stirling had arrived, a Major Lockyer wrote an article for the information of intending settlers which noted that the settlers would have to watch their cattle and sheep "from the Natives, who are very numerous and fierce" and he anticipated that "force will have to be used to drive them away and quit that part of the Coast" [42] . By the end of 1830, the land on both sides of the Swan and Canning Rivers almost to their source had been allocated [43] . A record was kept of the "Natives, original Owners of Land on the Right & Left Banks of the Swan, from Fremantle to the Head of River" [44] . In the light of the knowledge of actual occupation of the Swan River area by Aborigines, "unoccupied" in the preamble to the Swan River Act must have meant "unoccupied by settlers". That accords with the practice noted by the House of Commons Select Committee on Aborigines (British Settlements) in 1837 [45] . The Committee observed that -

[203]

Its terms are wide enough to enable the Parliament (a) to regulate and control the people of any race in the event that they constitute a threat or problem to the general community, and (b) to protect the people of a race in the event that there is a need to protect them. Indeed, it is not denied that the power extends to a law protecting them, eg, a law protecting the people of that race from racial discrimination. Brennan J said [206] : A law which, on its face, does not discriminate in favour of the people of a race, may nevertheless be valid if it discriminates in favour of those people by its operation upon the subject matter to which it relates. That involves no departure from the ordinary processes of constitutional interpretation. The characterisation of a law requires that the operation of the law be ascertained by reference to its terms and their application to the circumstances in which the law operates. And Deane J held that the races power is "a general power to pass laws discriminating against or benefiting the people of any race" [207] . His Honour said of the words "people of any race" [208] : Plainly, the words have a wide and non-technical meaning The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of par (xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. Applying these observations, the Native Title Act is "special" in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the "people of any race") a benefit protective of their native title. Perhaps the Act confers a benefit on all the people of those races. The special quality of the law thus appears. Whether it was "necessary" to enact that law was a matter for the Parliament to decide and, in the light of Mabo [No 2], there are no grounds on which this Court could review the Parliament's decision, assuming it had power to do so. 1. Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 186, 245, 261. 2. It was on this point, not on the point of differential operation on people of a particular race, that the minority in the Tasmanian Dam Case denied the support of s 51(xxvi): see the Tasmanian Dam Case (1983) 158 CLR 1 at 110-111, per Gibbs CJ; at 202-203, per Wilson J; and at 319-320, per Dawson J. 3. Tasmanian Dam Case (1983) 158 CLR 1 at 158; and see at 180, per Murphy J. 4. Tasmanian Dam Case (1983) 158 CLR 1 at 244-245. 5. Tasmanian Dam Case (1983) 158 CLR 1 at 273. 6. Tasmanian Dam Case (1983) 158 CLR 1 at 273-274; see also at 180, per Murphy J.

[270]

This review of the authorities shows that the principle consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities; and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments The second element of the prohibition is necessarily less precise than the first; it protects the States against laws which, complying with the first element because they have a general application, may nevertheless produce the effect which it is the object of the principle to prevent. His Honour went on to comment [237] : First, [d]iscrimination against a particular State, at least so long as it involves the imposition of a special burden or disability on that State, by isolating it from the general law applicable to others, including other States, falls squarely within the principle. Secondly, notwithstanding its basis in a constitutional conception of a relationship between a central government and separate State governments and the emphasis given to its application to the exercise of executive power by the States, the principle protects legislatures as well as executive governments. Thirdly, it does not follow that every law which deprives a State of a right, privilege or benefit which it enjoys will amount to discrimination in the sense already discussed. A law which deprives a State of a right, privilege or benefit not enjoyed by others, so as to place the State on an equal footing with others, is not a law which isolates the State from the general law. [238] Counsel for Western Australia submit that the two elements of the principle to which Mason J referred may not comprehend the principle in its full width. A passage from the judgment of Dawson J in Queensland Electricity Commission v The Commonwealth was cited to suggest a principle conferring on State functions a wider immunity from interference by Commonwealth power. Dawson J expressed the implication in terms of the Commonwealth Parliament's inability to "impair the capacity of the States to exercise for themselves their constitutional functions: that is to say, their capacity to function effectually as independent units" [239] . 1. (1947) 74 CLR 31. 2. (1985) 159 CLR 192. 3. Queensland Electricity Commission (1985) 159 CLR 192 at 217. 4. Queensland Electricity Commission (1985) 159 CLR 192 at 217. 5. See also Queensland Electricity Commission (1985) 159 CLR 192 at 205-206, 221-222, 231, 244-247, 258-260; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 134, 163, 210, 241-244. 6. Queensland Electricity Commission (1985) 159 CLR 192 at 260.

[274]

If the Constitution contemplates that the States will be subject to control or regulation by the Commonwealth or its agencies in particular respects, their subjection to that control or regulation cannot amount to a relevant impairment or inhibition of their capacity to govern. On the view which we are presently inclined to take of the implied limitations, they do not protect the States from the consequences of the exercise by the Commonwealth of the powers granted to it by the Constitution which contemplate their application to the States. Nor do they protect the States from an erosion in their status occasioned by the increasing regulation of community affairs by the Commonwealth in accordance with its powers. Once the doctrine of reserve powers was exploded by the Engineers' Case [242] , the Constitution could not be read as preserving to the States an immunity from the operation of a non-discriminatory Commonwealth law provided the power supporting the law contemplates its application to the States and its application does not deprive the States of "their capacity to function as governments". For reasons earlier stated, s 51(xxvi) of the Constitution supports a law which protects native title from extinguishment or impairment. To exercise that power it is necessary to control the exercise by other repositories of the power to extinguish or impair native title. As extinguishment or impairment can be effected at common law only by or pursuant to a law enacted by a competent legislature, the power conferred by s 51(xxvi) must extend to the support of a law which excludes, wholly or in part, State or Territory law from operating to affect native title. The power cannot be limited by an implication which exempts the States from the application of such a law without denying what is at the heart of s 51(xxvi) so far as it may be exercised for the benefit of the people of the indigenous races of Australia. The Native Title Act, being supported by that provision, cannot be held to discriminate impermissibly in its application to the State of Western Australia or in its application to the States and Territories as a whole. 1. (1986) 160 CLR 430 at 453. 2. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

[297]

Western Australia sought to use s 7(1) as the vehicle for destruction of the substantive provisions of the Native Title Act relating to future acts. The Native Title Act was said to discriminate in favour of Aborigines and Torres Strait Islanders and thus to offend the Racial Discrimination Act. As s 7(1) preserved the operation of the Racial Discrimination Act, so the argument ran, the offending provisions of the Native Title Act "must be regarded as inoperative". The argument encounters considerable obstacles. In the first place, it is not easy to detect any inconsistency between the Native Title Act and the Racial Discrimination Act. The Native Title Act provides the mechanism for regulating the competing rights and obligations of those who are concerned to exercise, resist, extinguish or impair the rights and interests of the holders of native title. In regulating those competing rights and obligations, the Native Title Act adopts the legal rights and interests of persons holding other forms of title as the benchmarks for the treatment of the holders of native title [251] . But if there were any discrepancy in the operation of the two Acts, the Native Title Act can be regarded either as a special measure under s 8 of the Racial Discrimination Act [252] or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Convention on the Elimination of All Forms of Discrimination [253] . And further, even if the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both Acts emanate from the same legislature and must be construed so as to avoid absurdity and to give to each of the provisions a scope for operation. The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. But it is only to that extent that, having regard to s 7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act.

[301]

Subject to this Act, the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth. Section 12 does not in terms make a law in the sense of creating rights or imposing obligations. It takes the common law as an entirety and purports to invest it with the force of a law of the Commonwealth. If s 12 be construed as an attempt to make the common law a law of the Commonwealth, the attempt encounters some constitutional obstacles. There can be no objection to the Commonwealth making a law by adopting as a law of the Commonwealth a text which emanates from a source other than the Parliament [254] . In such a case the text becomes, by adoption, a law of the Commonwealth and operates as such. But the common law is not found in a text; its content is evidenced by judicial reasons for decision. Isaacs J explained in Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia [255] that it is the declaratory nature of a judgment [256] that allows for the evolution of the common law: A prior decision does not constitute the law, but is only a judicial declaration as to what the law is. The declaration, unless that of a superior tribunal, may be wrong, in the opinion of those whose present function is to interpret and enforce the law. In Giannarelli v Wraith , Brennan J said [257] : In the view of a court sitting at the present time, earlier decisions which are not binding upon it do not necessarily represent the common law of the earlier time, though they record the perception of the common law which was then current. His Honour went on to say that if a court, because it perceives the common law to be different from what it was earlier perceived to be, so declares it, then effect will be given to that declaration as truly representing the common law. 1. Hooper v Hooper (1955) 91 CLR 529 at 536-537. The law of the States that was picked up as a law of the Commonwealth in that case was statute law, not common law. Where a State statute is thus picked up and enacted as a law of the Commonwealth, the common law which has affected the construction of the text or has attached doctrines to its operation continues to have the same effect on the law of the Commonwealth as it has or had on the law of the State subject to contrary provision. 2. (1913) 17 CLR 261 at 275-276. 3. See also Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463; R v Kirby; Ex parte Boilermakers' Society of AustraliaBoilermakers' Case (the) (1956) 94 CLR 254 at 281. 4. Giannarelli (1988) 165 CLR 543 at 584.