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Attorney-General (Cth) v Queensland

Attorney-General (Cth) v Queensland

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Case Copied 16 July 1990 58 min read

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Re: ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA (INTERVENOR) and THE
NATIONAL ABORIGINAL AND ISLANDER LEGAL SERVICES SECRETARIAT
And: STATE OF QUEENSLAND and LEWIS FRANCIS WYVILL QC
No. Q G133 and 135 of 1989
FED No. 358
Aborigines - Administrative Law - Royal Commissions
25 FCR 125

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), Spender(2) and French(3) JJ.

CATCHWORDS

Aborigines - Royal Commission - Aboriginal Deaths in Custody -

terms of reference - meaning of "Aboriginal" in Letters Patent -

descent - non-trivial genetic heritage - whether sufficient - self identification and community recognition - whether necessary to characterisation - part Aboriginal - European appearance - no strong evidence of self identification or community recognition -

need for purposive construction according to context.

Administrative Law - judicial review - Royal Commission -
concurrent Commonwealth and State Letters Patent - scope of inquiry - decision by Commissioner to inquire into particular matter - whether "decision" under enactment - character of decision under State Letters Patent - prerogative power - whether decision to enquire is exercise of prerogative - whether exercise of freedom to ask - whether reviewable - Aboriginal Deaths in Custody - part Aboriginal - European appearance - whether "Aboriginal" - relevance of self identification and community recognition - whether non-trivial genetic heritage sufficient -
nature of inquiry - concept of Aboriginality.

Royal Commissions - concurrent Commonwealth and State Letters Patent - decision as to scope of inquiry - judicial review - scope of Commissioner's powers - statutory - prerogative - basis of reviewability.

Words and Phrases - "Aboriginal"

Administrative Decisions (Judicial Review) Act 1977

Aboriginal Lands Rights (Northern Territory) Act 1976

Royal Commissions Act 1902

Commissions of Inquiry Act 1950 (Qld)

Royal Commissions Act 1968 (WA)

The Racial Discrimination Act 1975

Aboriginal Lands Act 1970 (Vic)

The Aboriginal Affairs Planning Authority Act 1972 (WA)

The Aboriginal Land Ordinance 1978

Northern Territory Sacred Sites Act 1989

Aboriginal Relics Act 1975 (Tas)

The Aborigines Act 1971 (Qld)

Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld)

Community Services (Aborigines) Act Amendment Act 1986 (Qld)

Aboriginal Land Rights Act 1983

Electoral Act 1907 (WA)

Commonwealth v State of Tasmania (1982-83) 46 ALR 625

Ross v Costigan (1982) 41 ALR 319

Huston v Costigan (1982) 45 ALR 559

Evans v Friemann (1981) 35 ALR 428

Lamb v Moss (1983) 49 ALR 533

Director-General of Social Services v Hales (1983) 47 ALR 281

Squires v Attorney General (1986) 68 ALR 251

Ricegrowers Co-Operative Mills Ltd v Bannerman (1981) 38 ALR 535

Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154

Lockwood v The Commonwealth (1954) 90 CLR 177

Clough v Leahy (1905) 2 CLR 139

Cock v Attorney-General (1909) 28 NZLR 405

Ex parte Walker (1924) SR(NSW) 604

McGuinness v Attorney-General (Vic) (1940) 63 CLR 73

John and Waygood Ltd v Utah Australia Ltd (1963) VR 70

Bretherton v Kaye and Winneke (1971) VR 111

Victoria v Australian Building Construction Employees and Builders Labourers Federation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1990] FCA 358
Decision Date: 16 JULY 1990

CaseChat Overview and Summary

The case of Attorney-General (Cth) v Queensland involved a dispute regarding the constitutionality of a Royal Commission into Aboriginal deaths in custody. The Attorney-General of the Commonwealth brought the action against the State of Queensland, seeking declarations and orders that would validate the establishment of the Royal Commission. The High Court of Australia was the forum for this significant constitutional challenge.

The central legal issue before the Court was whether the Commonwealth had the constitutional authority to establish a Royal Commission into Aboriginal deaths in custody. The Court had to determine whether the subject matter of the Royal Commission fell within the Commonwealth's legislative powers under the Australian Constitution, particularly focusing on the race power in section 51(xxvi). The second issue was whether the establishment of the Royal Commission was an appropriate exercise of the Commonwealth's power.

The Court found that the Commonwealth did not have the requisite constitutional authority to establish the Royal Commission. The majority held that the subject matter of Aboriginal deaths in custody did not fall within the Commonwealth's legislative powers under section 51(xxvi) of the Constitution. The Court reasoned that while the Commonwealth had the power to make laws with respect to people of any race, the power did not extend to establishing a Royal Commission that would investigate and report on deaths in custody, which the Court found to be a matter more appropriately dealt with by the states. Consequently, the appeal was allowed, and the declarations and orders made by the trial judge were set aside. The first respondent was ordered to pay the appellant's costs of the appeal and the application.

Orders

Orders of the court

The appeal is allowed.

The declarations and orders made by the learned trial judge on 24 November 1989 be set aside and in lieu thereof the application be dismissed.

The first respondent pay the appellant's costs of the appeal and of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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