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"
Aboriginal Lands Rights (Northern Territory) Act 1976
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)
Electoral Act 1907 (WA)
Commonwealth v State of Tasmania (1982-83) 46 ALR 625
Huston v Costigan (1982) 45 ALR 559
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
Ex parte Walker (1924) SR(NSW) 604
McGuinness v Attorney-General (Vic) (1940) 63 CLR 73
Victoria v Australian Building Construction Employees and Builders Labourers Federation…
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- Case
- [1990] FCA 358
- Decision Date
CaseChat Overview and Summary
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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