Mabo & Ors v The State of Queensland

[1988] HCATrans 38

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl2 of 1982

B e t w e e n -

EDDIE MABO and JAMES RICE (who bring this action on

their own behalf and on

behalf of the members of

their respective family

groups)

Plaintiffs

and

THE STATE OF QUEENSLAND

First Defendant

and

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Mabo(7)

Case stated pursuant to

section. 18 Judiciary Act

MASON CJ

WILSON J

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 15 MARCH 1988, AT 10.19 AM

Copyright in the High Court of Australia

ClT 1/1/ND 1 15/3/88

MR A.R. CASTAN, QC: If the Court pleases, I appear with my

learned friends, MRS B. HOCKING and MR B.KEON-COHEN,

for the plaintiffs 1n that matter. (instructed

by McIntyre & Co)

MR G.L. DAVIES, QC:  May it please the Court, I appear with

my learned friend, MRS M. WHITE, for the first

defendant, the State of Queensland. (instructed

by the Crown Solicitor for Queensland)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned

friend, MR R.W. GOTTERSON, for the second defendant.

(instructed by the Australian Government Solicitor)

MR D.M.J. BENNETT, QC: If the Court pleases, I appear with

my learned friend, MR J.D. BARRETT, for the Attorney-

General of the Northern Territory of Australia

intervening pursuant to section 78A of the JUDICIARY

ACT. (instructed by the Crown Solicitor for the

Northern Territory)

MASON CJ:  Yes, is there any contest about Mr Bennett's

intervention under the JUDICIARY ACT? I gather

the Solicitor for the Commonwealth wishes to say

something, Mr Bennett.

MR GRIFFITH:  To the question Your Honour just formulated,

no, but, Your Honour, we see the constitutional

issue as being a matter particularly concerning

question 10 of the demurrer, a question which may

or may not be reached in the course of argument

for determination. We are not clear in our mind,

Your Honour, whether the intervention, having been

announced, it is intended to address other issues

external to the constitutional issue. Our basic

position would be, Your Honour, that the intervention

as of right should be limited more or less to the

issue of the constitutional issue.

MASON CJ:  Thank you, Mr Solicitor. Do other counsel wish

to make any submission on this question?

MR CASTAN;	No, Your.Honour.
MR DAVIES:	No, Your Honour.

(Continued on page 3)

ClTl/2/ND 2

Mabo(7)
M.ASON CJ : Mr Bennett, we have taken note of your intervention. I think

we shall reserve the question of the scope of

your intervention until such time as we have heard

Mr Castan's argument. We can then determine, if

need be, the extent to which your intervention

should be followed up by argument on any or all of

the questions that arise as a result of Mr Castan's

submissions.

:MR BENNETT: If Your Honour pleases. There are a number of

issues on which we wish to intervene, but I will

put that to Your Honour at that time.

MASON CJ:  They can be identified at some later stage?

:MR BENNETT: If Your Honour pleases.

BRENNAN J:  I have informed counsel appearing in this

case that my son Father Frank Brennan SJ is an

adviser to the Australian Catholic· bishops on matters relating to land rights and Aboriginal

and Island peoples and that he is actively engaged

in the ministry to these peoples. As this matter

raises for consideration the question whether

Islander people enjoy traditional rights with

respect to land, not being rights arising under a

statute. It is appropriate that the information

I have given counsel should appear on the public

record.

MASON CJ: Yes, Mr Castan?

:MR CASTAN:  If the Court please, I hand copies of the

summary of contentions to the Court. May I also

hand to Your Honours a copy of a map which

conveniently indicates the location of Murray Island.

Your Honours will see that Murray Island is

marked on the map at the 144th parallel of longitude.

Darnley Island is also shown on that map which

conveniently enables it to be seen. Can I also

hand to Your Honours an assembly of selected

statutes that has been compiled for purpose of ease

of reference in the course of argument.

MASON CJ: Thank you.

(Continued on page 4)

C1T2/l/SR	3	15/3/88
Nabo(7)

MR CASTAN:  Your Honours, the order in which it sought to put

the submissions on behalf of the plaintiffs to move

the demurrer varies somewhat from the order in which

the grounds are set out in the demurrer, simply

because in the course of development of argument

it was seen that there is a more convenient and

logical sequence of argument to follow than that

which was developed at the time when the demurrer

was itself filed. The position in relation to this

action, as Your Honours will perhaps be aware, is that

a statute was enacted in 1985, the QUEENSLAND COAST

ISLANDSDECLARATORY ACT 1985, No 27, of Queensland. That Act then formed the subject of a plea

incorporated in the amended defence of the defendant

Queensland in these proceedings pleaded in paragraphs

4A, 9A, l0A, 17A and 18A of the amended defence as

it would appear as a complete bar, so it is said,to

the plaintiffs' claims. The plaintiffs demur to
the effect, operation and validity of that Act,

saying that it does not operate, or cannot operate, as the complete bar to the plaintiffs' claims as so pleaded in the defence.

The first ground to which we would seek to take the Court is that which is set out as the first in

the summary of contentions, as item A in a series

of what we called compendiously, inconsistency issues

and the way in which the first argument emerges,

for the purposes of the first argument in relation to

the 1985 Act, it is necessary firstly to go to the

precise words of that Act, then to the 1879 Act

upon which it purports to operate, and the instruments

of annexation and to the Queensland CONSTITUTION

and empowering legislation.

(Continued on page 5)

ClT3/l/VH	4	15/3/88
Mabo(7)

MR CASTAN (continuing):  Your Honours will see from the

QUEENSLAND COAST ISLANDS DECLARATORY ACT 1985, that

the CONSTITUTION ACT is defined in section 2 to

mean:

the CONSTITUTION ACT of 1867 and ..... as amended

from time to time;

"Crown lands legislation" is defined, meaning:

legislation of Queensland relation to the

alienation, sale, letting, disposal and

occupation of lands.

"Disposal" is defined and "the islands" are defined

to mean:

the islands referred to in the schedule to

THE QUEENSLAND COAST ISLANDS ACT OF 1879.

The principal operative section of 1985 Act is

section 3 which provides:

For the purpose of removing any doubt that may

exist as to the application to the islands of

certain legislation upon their becoming part

of Queensland, it is hereby declared that

upon the islands being annexed to and becoming

part of Queensland and subject to the laws in

force in Queensland -

(a) the islands were vested in the Crown in

right of Queensland freed from all other rights,

interest and claims of any kind whatsoever and

became waste lands of the Crown in Queensland

for the purposes of sections 30 and 40 of

the CONSTITUTION ACT;

(b) the laws to which the islands became subject

included the Crown lands legislation then and from

time to time in force;

(c) the islands could thereafter be dealt

with as Crown lands for the purposes of Crown

lands legislation then and from time to time

in force in Queensland.

(Continued on page 6)

ClT4/l/MB	5	15/3/88
Mabo(7)

MR CASTON (continuing): Then it is provided in section 4:

Every disposal of the islands or part

thereof purporting to be in pursuance

of Crown lands legislation after the

islands were annexed to and became part

of Queensland shall be taken to have been

validly made and to have had effect in

law according to its tenor.

And section 5 provides:

No compensation was or is payable to

any person -

• (a)· by reason of the annexation of the

islands to Queensland;

(b)	in respect of any right, interest
or claim alleged to have existed prior to the annexation of the Islands to Queensland or in respect

of any right, interest or claim

alleged to derive from such a right,

interest or claim; or

(c) by reason of any provision of

this Act.

If I could then take Your Honours to the book of

selected statutes which we handed up, Your Honours

will see what are described as annexation

instruments commencine at page 12 - there is a

document at llA that I think does not bear on the

present argument. It may be necessary to refer to

that for the purpose of subsequent arguments - but

at page 12 there appears the letters patent of

10 October 1878 which were the first instrument for

the purpose of the annexation of the islands to

Queensland and the preamble recites that:

It is expedient that certain islands in

Torres Straits, and lying between

Australia and New Guinea, that is to say,

all Islands included within a line drawn
from Sandy Cape northward to the

south-eastern limit of Great Barrier Reefs,

thence following the line of the Great

Barrier Reefs to their north-eastern

extremity, near the latitude of nine and

and a-half degrees south, thence in a

north-westerly direction, embracing East,

Anchor, and Bramble Cays, thence from
Bramble Cays in a line west by south

(south seventy-nine degrees west) true;

embracing Warrier Reef, Saibai, and Tuan

Islands, thence diverging in a north-westerly

ClTS/1/HS	6
Mabo(7)

direction so as to embrace the group

known as the Talbot Islands; thence to

and embracing the Deliverance Islands,

and onwards in a west by south

direction (true) to the meridian of

one hundred and thirty-eight degrees of

east longitude, should be annexed to and

form part of Our Colony of Queensland.

(Continued on page 8)

ClTS/2/HS	7	MR CASTAN, QC 15/3/88
MR CASTAN (continuing):

Mabo (7)

Now We do -

and it recites the Great Seal -

authorize Our Governor for the time being

of Our said Colony of Queensland, by

Proclamation under his hand and the public

seal of the said Colony, to declare that,

from and after a day to be therein mentioned,

the said Islands shall be annexed to an form

part of Our said Colony. Provided always

that Our said Governor issues no such

Proclamation as aforesaid until the Legislature

of Our said Colony of Queensland shall have

passed a law providing that the said Islands

shall, on the day aforesaid, become part of

Our said Colony and subject to the laws

in force therein. Provided also that the

application of the said laws to the said Islands
may be modified either by such Proclamation,

as aforesaid, or by any law or laws to be

from time to time passed by the Legislature

of Our said Colony for the government of the

said Islands so annexed.

There is then a reservation to:

revoke, alter, or amend the present Letters-Patent

and a direction that they be published. There

then appears, at page 13, provisions of

THE QUEENSLAND COAST ISLANDS ACT of 1879, that

is the Act referred to in the 1985 Act, and that

recites:

Whereas by letters patent under the great

seal ..... Her Majesty Queen Victoria ..... did

authorize the Governor for the time being

of the Colony of Queensland by proclamation

..... to declare that from and after a day

to be therein mentioned certain islands which
are described in the schedule hereto should

be annexed to and form part of the said Colony.

And in the said letters patent it was

provided that the said Governor is not to

issue such proclamation as aforesaid until

the Legislature of the said Colony shall have

passed a law providing that the said islands

shall on the day aforesaid become part of

the said Colony and subject to the laws in

force therein.

ClT6/l/AC	8	15/3/88
Mabo(7)

And in the said letters patent it was

also provided that the application of the

said laws to the said islands might be modified

either by such proclamation as aforesaid or

by any law or laws to be from time to time

passed by the Legislature of this Colony for

the Government of the said islands so annexed.

And whereas it is desireable that the

said islands shall be annexed to and form

part of the Colony of Queensland

Now be it enacted by the Queen's Most

Excellent Majesty by and with the advice and consent .....

1 ..... From and after such day as His Excellency

the Governor of Queensland shall by such

proclamation ..... as is authorized by the said

letters patent mention and appoint for that

purpose the Islands described in the schedule

hereto shall be annexed to and become part

of the Colony of Queensland and shall be and

become subject to the laws in force therein.

(Continued on page 10)

ClT6/2/AC	9	15/3/88
Mabo(7)

MR CASTAN (continuing): And the schedule sets out the

description that a2peared in the letters patent

and Your Honours will see in the schedule the

reference to "Islands" in the first and second

line:

Certain Islands in Torres Straits and

lying between the Continent of Australia and

Island of New Guinea that is to say all Islands

included within a line -

and then the line is described. It is those islands

as so described in that schedule which are the

subject of the 1985 legislation.

WILSON J:  Mr Castan, Bramble Cays appears on the map you

have given us, what about East Anchor? Is that

further south than is shown on the map, is it,

towards the Great Barrier Reef?

MR CASTAN:	I must confess to not knowing the answer to that question, Your Honour, but we can easily -
WILSON J:	I just was curious, I was looking for East Anchor

and could not see it.

MR CASTAN: 

- - - find out. We can get hold of a map that

actually delineates the line which makes it a little
easier to see.

MASON CJ: 

And the other places mentioned later on in the

description are not shown on the map either.

MR CASTAN:  No, we will obtain a map that actually delineates

the line but, in any event, there is not any dispute

between the parties - - -

MASON CJ: Murray Island is within that description?

MR CASTAN:	The Murrary Islands and there are, in fact, three islands comprising what is called the Murray Island
Group referred to in the pleadings in the statement of claim but they are clearly within the area and
they are clearly subject to the same principles
of law and subject to the same result and questions that were raised in the case of WACANDO decided
in th i.s Court, that is WACANDO V THE COMMONWEALTH
& ANOR, (1981) 148 CLR 1.

(Continued on page 11)

ClT7/l/ND	10	15/3/88
Mabo(7)

MR CASTAN (continuing): It will be necessary in the course

of argument to look closely at WACANDO -it is not

suggested by us, at least, that WACANDO was in any way

wrongly decided, nor is it sought to reopen it in

any sense, but a number of the issues canvassed in

the WACANDO case, but left open,may need to be

addressed because the consequence of the mode by

which the acquisition or annexation was effected,

affects significantly, as we would submit, the

power of Queensland now to pass a law declaring what

the position was in 1879. For completeness can

I take Your Honours to page 15 of the book of

statutory materials where there appears the

proclamation following the enactment by the

Queensland legislature in 1879 of the statute and

I will not read the whole of the proclamation.

It recites the letters patent and the statute and

in the operative part, in the second column, it

reads:

Now, therefore, I, the Governor aforesaid,

in pursuance of the power so vested ..... by

and with the advice of the Executive

Council, do hereby notify and proclaim

that from and after the first day of

August, in the year of our Lord one thousand eight hundred and seventy-nine,

the Islands described in the schedule hereto shall be annexed to and become part of the Colony of Queensland, and

shall be and become subject to the laws

in force therein.

And it is necessary to take Your Honours then to

page 16 to see that there appears the Imperial Act
the COLONIAL BOUNDARIES ACT 1895 , enacted in that

year because, because as appears from the analysis

of all of Their Honours in WACANDO case, in order

to dispell doubts which had arisen as to the power

to annexe to Queensland a new colony by letters

patent combined with colonial statute and
proclanation,	there being the view held within

the colonial office that the boundaries of

Queensland had been fixed by Imperial statute and

they therefore could not be altered other than by

Imperial statute. That led in the 1890s to doubts

as to a number of colonies: New Zealand, South Africa,

and each· had islands annexed and the 1895 Act was

enacted by the Imperial Parliament to ensure that

those doubts were resolved and that the annexation

was given effect to by Imperial statute as well as

by letters patent and colonial legislation, combined

with a governor's proclarrnnation. And that simply

provided in 1895:

ClT8/l/SR	11	15/3/88
Mabo(7)

Where the boundaries of a colony have,

either before or after the passing of

this Act, been altered by Her Majesty

the Queen by Order in Council or letters

patent the boundaries as so altered

shall be, and be deemed to have been from the date of the alteration, the boundaries of the colony.

(2) Provided that the consent of a

self-governing colony shall be required
for the alteration of the boundaries

thereof.

And "self-governing colony" means any of the

colonies specified in the schedule and it there

appears in the schedule of Queensland as well as

Tasmania, Western Australia and others, about whom

these doubts had arisen. I will come back to those

provisions and to arguments arising from the

effect of the COLONIAL BOUNDARIES ACT as against

the operation and affect the_letters patenf,

combined with colonial legislation.

But for purposes of the present argument may I direct Your Honours' attention, again to the 1985

Act, having seen the terms of the 1879 Act which

it purports to deal with or refer to. The way in

which the operative section, section 3 operates

is to declare:

that upon the islands being annexed

to and becoming part of Queensland and

subject to the laws in force in Queensland -

(a) the islands were vested in the Crown

in right of Queensland freed from all other

rights, interests and claims of any kind

whatsoever and became waste lands of

the Crown in Queensland for the purposes of section 30 and 40 of the CONSTITUTION

ACT.

It is our respectful submission that that provision is too wide and cannot take effect because it fails

to take account of the qualification which was

built in. to the powers of the colonial legislatures

when self-government was granted in 1855 pursuant

to the Imperial legsilation which enacted the

NEW SOUTH WALES CONSTITUTION ACT of 1855 and the

repeal of the WASTE LANDS ACT of 1855.

ClT8/2/SR	12	15/3/88
Mabo(7)

MR CASTAN, QC (continuing): Before turning to the details of

the legislation, perhaps I should briefly recount in
general terms the pattern of colonial history that
is dealt with in some detail in a number of cases.

They are set out towards the foot of the first page

of our summary of contentions; some of the authorities

where judges of this Court have recounted the history

of the development of waste. lands legislation and the

vesting of power in the colonial legislature to

deal with waste lands. In broads terms, until 1855

the imperial Crown was at pains to retain the
disposition of waste lands in London. That is to say,
the limited forms of the power given to governors,

or the limited forms of legislative councils set up

pursuant to the early CONSTITUTION ACT, if they be

so-called, prior to 1855, did not confer upon the
colonial legislatures and the governor, on the advice

of his colonial ministers, the power to dispose of

waste lands; that was reserved to the imperial Crown

and the funds so earned were funds of the British

Crown, to be applied, so it was said, to assist in

funding colonization.

The history is recounted in those various

references:  WILLIAMS, RANDWICK CORPORATION, and

those judgments of His Honour Mr Justice Isaacs in

the GARDEN ISLAND case and the NEW SOUTH WALES

GOVERNMENT HOUSE case there referred to recount

that history in some detail. The significance for

present purposes, though, of that history, is that
when the grant was made in 1855, conferring upon the
colonial legislatures the power to dispose of waste
lands and correspondingly, the capacity to earn funds
to generate revenue from disposal of what were termed
waste lands, there was an express reservation included
in that imperial legislation. The power to dispose of

waste lands was not granted absolutely, and the

reservations, we will see when we turn to it shortly,

was in terms that protected interests already

contracted to be given.; protected leases and other interests held

of the Crown pursuant to the earlier waste lands

legislations which had regulated the way in which the

imperial Crown would dispose of waste lands in the

Australasian colonies.

That reservation finds its way into the express terms of sections 30 and 40 of the Queensland CONSTITUTION,

to which explicit reference is made in section 3(a) of

the 1985 Act.

(Continued on page 14)

ClT9/l/VH	13	15/3/88
Mabo(7)

MR CASTAN (continuing):  I would seek to take Your Honours

to page 40 of the book of statutory material which

sets out the Queensland CONSTITUTION, itself a

Queensland statute, of course, pursuant to the

authority granted initially by the 1855 imperial Act

which conferred self eovernment on New South Wales

and permitted separation of areas to constitute

separate colonies. Section 30, the section that

is expressly picked up by section 3(a) of the

1985 Act provides:

Sub_i ect to the provisions contained in the

and nineteenth years of Her

imperial Act of the eighteenth and nineteenth the eighteenth

Majesty entitled "An Act to Repeal the Acts

of Parliament now in force respecting the

Disposal of the Waste Lands of the Crown in

Her Majesty's Australian Colonies and to make

othe provision in lieu thereof" which concern

the maintenance of existing contracts it shall

be lawful for the legislature of this colony

to make laws for regulating the sale letting
disposal and occupation of the waste lands of

the Crown within the said colony.

Your Honours will see the express reservation upon

the power to make laws to deal with waste lands. And

at page 41 of the book there is extracted the page

which includes section 40. That provides:

The entire management and control of the waste

lands belonging to the Crown in the said Colony of Queensland and also the appropriation of the gross proceeds of the sales of such lands and of

all other proceeds and revenues of the same from

whatever source arising within the said colony

including all royalties mines and minerals shall be vested in the legislature of the said colony.

Provided that nothing herein contained shall affect or be construed to affect any contract	or to prevent the fulfilment of any promise or	engagement made by or on behalf of Her Majesty
with respect to any lands situate within the
said colony in cases where contracts promises or
engagements shall have been lawfully made
before the time at which this Act shall take effect within this colony nor to disturb nor in
any way interfere with or prejudice any vested or
other rights which have accrued or belong to the licensed occupants or lessees of any Crown lands within or without the settled districts under
and by virtue of the Act of the Imperial
Parliament passed in the nineth and tenth years of Her Majesty's reign chapter one
hundred and four or of any order or orders of
Her Majesty in Council issued in pursuance
thereof.

ClTl0/1/MB	14	15/3/88
Mabo(7)

MR CASTAN (continuing): If those qualifications and

reservations were merely to be found in the

Queensland CONSTITUTION, then there might be a

question about the proper interpretation of a

provision in the 1985 Queensland Act which does

not have any qualification upon the vesting in

the Crown freed from all other rights.

Notwithstanding that qualifying provision, it is

suggested there must always be the qualification

preserving any rights of the kind there referred

to. But, of course, that reservation is more than

just a reservation to be found in the colonial law

which enacted the Queensland CONSTITUTION and the

reactments thereafter, of course, since then, because
the same reservations that are there expressed

are, of course, expressed in the imperial legislation

which conferred the law-making power upon the colony

in the first place and so, they are not, we would

respectfully submit, capable of merely being the

matter of an interpretation of two Queensland statutes.

One must take into account the effect of the imperial

provisions and I would not seek to take Your Honours

to those.

Perhaps I could take Your Honours firstly to page 22 of the book where there appears the

1842 Act providing for a limited constitution in

New South Wales, 5 & 6 Vic c 76. The commencement

of the Act is found at page 20. It sets up the

Legislative Council of a limited jurisdiction and

self-government as at 1842. Section 29 of that

imperial Act provided:

And be it enacted that the Governor of the said colony of New South Wales with the advice and consent of the said Legislative

Council shall have authority to make laws

for the peace welfare and good government

of the said colony Provided always that

no such law shall be repugnant to the law

of England or interfere in any manner with

the sale or other appropriation of the lands

belonging to the Crown within the said colony
or with the revenue thence arising.

There there appears the express reservation. Equally

in 1842 there was passed the WASTE LANDS ACT,
5 & 6 Vic c 36, to be found at page 42 of the book

and that was the first Act regulating the sale

of waste lands and provides in section II in relation

to the Australian colonies:

That the Waste Lands of the Crown in the

Australian Colonies shall not, save as herein-

after is excepted, be conveyed or alienated

by Her Majesty, or by any Person or Persons

acting on the Behalf of under the Authority

of Her Majesty, either in Fee Simple or for

any less Estate or Interest, unless such

ClTll/1/ND	15	15/3/88
Mabo(7)

Conveyance or Alienation be made by way of

Sale, nor unless such Sales be conduted in

the Manner and according to the Regulations

herein-after prescribed.

And then it provides in section III for the exception of land required for public use and provides in

section V for the governor authorized:

to convey and alienate in Fee Simple ..... to

the Purchasers -

to be in appropriate forms.

(Continued on page 17)

ClTll/2/ND	16	15/3/88
Mabo(7)

MR CASTAN (continuing):  And over to page 44, I draw

Your Honours' attention to part of the mechanism

set up for the receipt of moneys that provides

that:

Whereas it may be convenient that Means

should be provided for the Payment within

the United Kingdom of the Purchase Money

of Waste Lands of the Crown within the

said Colonies: And whereas by a Warrant

..... Her Majesty was pleased to appoint

certain Persons therein named to be,

during Her Majesty's Pleasure, Corrnnissioners,
in the United Kingdom, for the Sale of the

Waste Lands of the Crown in Her Majesty's

Colonies, and for superintending the

Emigration of Her Majesty's Subjects to

such Colonies, be it therefore enacted,

That if any Person or Persons shall pay,

for the Purchase of Waste Lands of the Crown

in any of Her Majesty's Australian Colonies,

any Sum or Sums of Money to the Corrnnissioners

of Her Majesty's Treasury of the United

Kingdom of Great Britain and Ireland,

or to any Person or Persons to be appointed

by the said Corrnnissioners -

the corrnnissioners are authorized and required to

grant, and it goes to the foot of the page -

Certificates to any such Purchase of

Purchasers of the Amount of any such
Payments, which Certificates shall,

on production therof to the Governor

for the Time being of any such Colony,

be received by him as equivalent to the respectively be given, so far and only so

far as the same may be tendered to such

Governor in Payment for the Price of any

Waste Lands.

So the imperial Crown got the money, the governor

got to dispose of the lands pursuant to that

direction. There is then - for completeness I take

Your Honours to page 47 where there appears the relevant provisions of the 1846 WASTE LANDS ACT.

That corrnnences at page 46 of the book. It amended

the provisions in order to provide for demises,

for terms of years, licences and other interests.

That connnences at page 46, and having provided for

that, if I could take Your Honours at page 47 in the

second column, the words which appear eight lines

from the top of the page in the second column on

page 47:

C1Tl2/l/HS 17 MR CASTAN, QC 15/3/88

Mabo (7)

be it enacted, That it shall be lawful

for Her Majesty, by any Order or Orders	in Council, to make and establish all
such Rules and Regulations as to
Her Majesty shall seem meet for the
Purposes aforesaid, or for any of them
and any such Rules and Regulations -

and it goes on -

and all such Orders in Council shall have

Force and Effect of Law in the Colonies

aforesaid: Provided always, that nothing

herein contained shall be construed to

authorize the Sale of any Waste Lands in the

said Colonies otherwise than in conformity

with the Provisions of the said Act, except

to Persons who shall be in actual Occupation

thereof under such Demise or Licence as

aforesaid ..... and Provided also, that all

such Orders in Council shall be laid before

Parliament -

that, of course, being the imperial Parliament.

to at page 29 of the book, it commences

Can I then take Your Honours the 1855 New South appearing

at page 28. That imperial Act actually was an

assent Act which assented to a constitution drawn

up in New South Wales which became a schedule to

the imperial Act, but this is the Act which,

in 1855, handed over, among other things, of course,

handed over to the now newly responsible government

of the Colony of New South Wales which, of course,
at this time included Queensland, the power to deal

with lands.

(Continued on page 19)

ClT12/2/HS	18
Mabo(7)

MR CASTAN (continuing): Section 2, on page 29, provides:

From the day of proclamation of this

Act in the Colony of New South Wales (the

said reserved Bill as amended aforesaid having

been previously assented to by Her Majesty

in Council as aforesaid) so much and such

parts of the several Acts of Parliament

mentioned in schedule two of this Act as

severally relate to the Colony of New South Wales and are repugnant to the said reserve

Bill amended as aforesaid shall be repealed -

and then it goes on, and these are the critical

words -

and the entire management and control of the

waste lands belonging to the Crown in the
colony and also the appropriation of the gross
proceeds of the sale of any such lands and
of all other proceeds and revenues of the

same from whatever source arising within the

said colony including all royalties, mines

and mineral shall be vested in the legislature

of the said colony.

And if we can then take Your Honours to the top

of the next page there is a proviso, and it is

this proviso which finds its reflection in the

sections 30 and 40 of the Queensland CONSTITUTION ACT

to which I took Your Honours earlier:

provided that nothing herein contained shall

affect or be construed to affect any contrct

or to prevent the fulfilment of any promise

or engagement by or on behalf of Her Majesty

with respect to any land situate in the said

colony in cases where such contracts promises

or engagements shall have been lawfully made

before the time at which this Act shall take

effect within the said colony nor to disturb or in any way interfere with or prejudice	any vested or other rights which have accrued
or belong to the licensed occupants or lessees of any Crown lands within or without the settled districts under and by virtue of the provisions of any of the Acts of Parliament
so repealed as aforesaid or of any order or orders of Her Majesty in Council issued in
pursuance there.

Now, that is the section 2 that is explicitly referred

to in sections 30 and 40 of the CONSTITUTION ACT,

expressly reserving rights arising under contract,

interests arising under grants made of the Crown.

ClT13/l/AC	19	15/3/88
Mabo(7)

And, to complete the picture, there is then the

provisions of, also in 1855, the Australian

WASTE LANDS ACT which appears at page 49 of the book, that is the imperial Act 18 and 19, Victoria,

chapter 56. I earlier took Your Honours to the

two WASTE LANDS ACTs which provided for the mechanism

for the disposal by the imperial Crown of the

waste lands and this Act is the Act which repealed

those provisions and set up the mechanism in

relation to the handling of waste lands. The express

provision in relation to New South Wales is found

in the 1855 CONSTITUTION ACT which we just turned

to and this Act completes the picture in relation
to the repeal of the WASTE LANDS ACT and powers

in relation to other colonies.

Section I provides that:

The Act of the Sixth Year of Her Majesty,

Chapter Thirty-six, intituled An Act for

regulating the Sale of Waste Land ..... and

the Act of the Tenth Year of Her Majesty,

Chapter One hundred and four, intituled An

Act to amend an Act for regulating the Sale

of Waste Land belonging to the Crown in the

Australian Colonies, and to make further
Provision ..... are hereby repealed.

II.           The Repeal of the said Acts, and the

other Provisions of this Act,shall take effect

in the Colonies of New South Wales and Victoria

at the Date of the Proclamation in those Colonies

respectively of certain Acts passed in this

Session of Parliament, intituled An Act to

enable Her Majesty to assent to a Bill, as

amended, of the Legislature of New South Wales,

"to confer a Constitution ..... " -

and so on, and that is the one we just referred

to

and in Van Diemen's Land from the Date of

the Proclamation of this Act by the

Governor ..... and in South Australia -

and so it goes on.

(Continued on page 21)

ClT13/2/AC	20	15/3/88
Mabo(7)

MR CASTAN (continuing):  In section III it provides:

The Powers vested by the said Acts hereby

repealed in Her Majesty, the Commissioners

of Her Majesty's Treasury, and the Colonial

Land and Emigration Commissioners respectively,

shall continue so far as regards the Appropriation

and Application of Monies which may be received

from the said Colonies respectively under and

by virtue of the Provisions of the said Acts

or either of them.

It goes on to provide in section IV:

for the Legislature ..... to repeal, alter,

or amend any Order in Council made under

Authority of the said Act, and affecting such

Colony; but subject, nevertheless, so far

as respects the Colonies of New South Wales and

Victoria respectively, to the Provisions in the said Acts of this Session for the Preservation

and enabling the Fulfilment of Contracts,

Promises, and Engagements made by or on behalf

of Her Majesty with respect to Lands situate in

such respective Colonies, and, until so

repealed ..... every such Order in Council shall

have the same Force and Effect.

So, again, we have the express reservations of

contracts promises. And it goes on then to provide

for Van Diemen's Land and South Australia. The

same proviso protecting interests in relation to those
other colonies, that is to say, Van Diemen's Land

and South Australia, although not directly bearing

on the present problem but exactly the same form
is founded by way of a proviso in that section.

Towards the end of section Von page 50 there is

a proviso in similar terms applicable to other colonies.

That does not bear on the immediate problem.

The provisions of the 1855 CONSTITUTION ASSENT

ACT (IMP.) 18 and 19 c.54, which conferred the power

to deal with waste lands subject to the reservations,

as I have indicated to Your Honours, also contain

the power for the separation of a separate colony within certain boundaries by appropriate conduct.

That is to be found as section 7 of the New South
Wates CONSTITUTION ASSENT ACT (IMP.) at page 30A,

Your Honours, and section 7 is the section - I do

not think anything turns on it for present purposes
other than for Your Honours to know that the empowering

of the separation of Queensland into a separate colony

from New South Wales derives from that imperial

empowering Act and, of course, the qualification or

reservation that is found in sections 30 and 40 of

the Queensland CONSTITUTION through to the present day qualifying or preserving interests held of the

ClT14/l/MJ3	21	15/3/88
Mabo(7)

Crown derives ultimately by tracing back through section 7 to the 1855 grant of responsible government

together with power to deal with lands, qualified by the reservation in favour of contracts already

made and interests held of the Crown.

Now, what we put in the context of those provisions in relation to the 1985 Act for the

purpose of this argument is simple; the power to

deal with lands is not an absolute power, it is

qualified. Any enactment of Queensland which purports

to deal with interest, assuming it is otherwise for

all purposes valid, could not vest in the Crown

and right of Queensland, could not vest land freed

from all other rights and claims of any kind whatsoever. It

has to provide that it is vested as the CONSTITUTION

itself so provides when empowering the disposition

of lands -that it is vested subject to the interests

that are preserved by the original imperial empowering

legislation.

(Continued on page 23)

ClT14/2/MB	22	15/3/88
Mabo(7)

MR CASTAN (continuing):  Now, if it be said that that

relates to the colony in 1855 in grant of responsbile

government to New South Wales, as it was then, encompassing the whole of the area of what was

Queensland before the annexation of certain islands and before separation of Queensland, to put it more

accurately, we would respectfully submit that that

cannot assist. The grant of power itself is subject

to a reservation in favour of interest held of the

Crown. Whether or not there are any interests held

of the Crown in relation - arising from a situation

on Murray Island, we do not know and we do not seek to

contend that there are or there are not any. We

will be pointing out, in the course of other arguments,

that it was not a newly-discovered territory in 18 79	by
any means.	It had itself been the subject of other

imperial legislation, which I will come to - the

PACIFIC ISLANDERS PROTECTION ACT, in the 1870s.

It is land where there had been, on the pleadings as admitted in this case, admitted purchases of lands not any that are pleaded in the case by the Crown,

but purchases of lands by other parties such as

South Sea islanders, and such as the London Missionary

Society, prior to the extension of sovereignty in

1879.      So that there remains a question - and we say

we do not need to provide the answer - there remains a

question of whether there had been an acquisition of

land from natives by the British Crown at some time

prior to annexation; whether there had been a lease,

a licence, or some other interest then granted by the

British Crown as purchaser from those native owners prior

1;o annexation. And the fa.ct that, as is the agreed fact, there

were purchases from natives prior to the extension of

sovereignty in 1879, immediately raises the question

of at least the possibility that there were Crown

purchases and subsequent interests granted by the

Crown pursuant to those purchases, or consequent on

them.

(Continued on page 24)

ClT15/l/VH	23	15/3/88
Mabo(7)

:MR CASTAN (continuing): For the purpose of this argument we merely point to the empowering provisions and

we say, section 3 has failed to limit its

operation within the framework of the empowering
imperial legislation. It contradicts the provisions

of sections 30 and 40 themselves - it is in

conflict with those provisions and is ineffectual

for that reason alone.

BRENNAN J: Is there any reading-down provision in the

ACTS INTERPRETATION ACT that might affect

the problem?

:MR CASTAN:  I am unable to answer Your Honour's question,

I will have to direct ·attention to it. I have not

directed attention to that Act of Queensland -

it would in this case be the Queensland legislation

applicable and we will have it looked at, if

Your Honours please. May I then turn to the

next item which is put as an alternative argument

on,but still directed to the same provisions.

And the argument that we put is that having

seen briefly those provisions which contain, for

the purpose of conferring responsible government,

an express imperial grant of power to deal with

waste lands - that is to say the history of the

development of the Australian colonies was that

there was this reservation of the power to deal
with lands in the imperial Crown, and then eventually

the conferring of that power.

We respectfully submit that the position that

emerges from those provisions is that an express

imperial grant of power was required in order for the

colonial legislature to deal with lands. Now

there is no such express imperial grant of power

equivalent to the provisions in the 1855 legislation

that deals with the islands that were annexed

in 1879 or arguably 1895, if the 1879 annexation

by letters patent was insufficient.

(Continued on page 25)

ClT16/l/SR	24	15/3/88
Mabo(7)

MR CASTAN

(continuing): There is simply an absence of any
such provision and we say that general empowering

words which appear in the letters patent of 1879

are insufficient to confer power to dispose of

waste lands and we say the insufficiency is illustrated
by the very fact of the passage of this legislation
seeking to say, "Well, now we say that these lands
are to be lands which can be the subject of a

disposition in the same way as those provided for in sect ion 30 and 40 11 •

But we say that the grant of the power to

deal with waste lands conferred by the 1855 imperial
statutes to which we have referred was only a grant

in respect of the lands the subject of the colonies

as then constituted. The boundaries of them were

fixed, they were the subject of imperial statute,

the letters patent do not include any such grant

of power and an interesting contrast may be drawn

with the letters patent of 1872 which were enacted

in respect of certain other islands, islands within

60 miles of the Queensland coast which had been

separately annexed in 1872.

The documents relating to those appear - I had thought they were in the book but they are

not, Your Honours. I would hand copies of the

1872 letters patent to illustrate the contrast

with the 1878 letters patent. I should mention

in passing that there was a brief reference to
these letters patent in the case of CANTLEY V

QUEENSLAND, (1973) 1 ALR 329, but the case dealing

with an injunction application does not bear directly

on this point although there is some reference

to the letters patent of 1872.

(Continued on page 26)

C1Tl7/l/ND	25	15/3/88
Mabo(7)

MR CASTAN (continuing): But Your Honours will see that the

1872 letters patent provides - first of all recites

that in 1859 certain territories were erected:

Into a colony by the name of the Colony of Queensland -

then provides that -

It is expedient that all the Islands lying

and being within 60 miles of the coasts

of the said Colony should be annexed to,

and form part of, the said Colony, of Queensland,

if the Legislative Council and Assembly thereof

should desire annexation.

And whereas it is expedient that, until

annexation, the affairs of the said Islands

should be administered by a Governor.

Then it goes on:

Now know ye, that, in considerations of the premises, We, ..... have thought fit to

constitute and appoint ..... and do constitute

and appoint, the Governor and Commander-in-Chief

for the time being of Our said Colony of

Queensland, to be the Governor of the said

Islands, and We do hereby vest in him all

the powers and authorities which by these

presents are given and granted to the Governor

for the time being of the sail Islands.

It goes on to provide for temporary administration.

It provides:

We do hereby further authorise and empower

the said Governor of the Islands to make all

all such rules and regulations as may lawfully

be made by Our authority for the order, peace

and good government of the said Islands, subject

nevertheless to any instructions which may

from to time be hereafter given him.

It then goes on in specific terms, at the top of page 713 of the print to provide:

We do hereby further authorise and empower the

said Governor of the said Islands, so long as

he shall be governor thereof, by any instrument

..... to make leases and other dispositions for
a term or terms of years, of any of the said

Islands as aforesaid, or any part of parts

thereof, and to issue licenses authorising the

person or persons designated therein to take

minerals or guano, or other fertilising subjstances

or other produce ..... to insert in such leases

..... reservations by way of rent or royalty,

..... and with conditions, exceptions and stipulations

provided ..... he shall conform to such instructions.

ClT18/l/VH	26	15/3/88
Mabo(7)

There is a power to revoke:

We do hereby authorise and empower the

said Governor, as he may deem-expedient, ..... to confirm any grant, disposition,

lease, or license, which may have been

made or issued before the date of these

presents, to any person or persons in

respect of the said Islands, or any of

them, ..... by any Governor or Our Colony

New South Wales, or to accept a surrender of any such grant, disposition,-

And then goes on to provide for surrender to the

colony of Queensland, and then to proclaim and

•

thus enable the islands to become part of Queensland. limited powers in 1872 provided to deal with lands but dealt with in explicit terms in those letters patent with the 1878 letters patent authorizing the annexation to Queensland of the

islands beyond 60 miles, which encompasses the

Torres Strait Islands,with which we are presently

concerned, where there is no grant of power at all.

GAUDRON J:  Is there a grant of power in the 1862 letters

patent for the period after they are annexed to
the colony of Queensland, or is the power purely

interim during the vesting of the islands in the

governor as governor of the islands?

MR CASTAN:  It is not clear, Your Honour. Certainly there is

nothing explicit about what happens in the subsequent

period. There appears to be no explicit provision,
unless it mightbe deernedthat the power so granted
continues and subsequently vests in Queensland. It is

certainly not any express provision so made as far as we

can determine. We draw some support by way of analogy -

and it can be no more than that - but we draw

attention in support of this argument to the manner

in which the coastal waters settlement was effected

between the Commonwealth and the States in 1980.

Interestingly, the provisions of the COASTAL WATERS

ffiTATE TITLE)ACT and the COASTAL WATERS ~TATE POWERS)

ACTS, which were designed to and did vest the sea~ bed and waters forming what are called the coastal waters

in the States - this Court having held in the

SEAS, ANDSUBMERGED LAND ACT case that they were not part of the States - the settlement of 1980 provided

in both the COASTAL WATERS(STATE TITLE)ACT 1980 -

that is Act. No 77 of 1980, the Commonwealth Act -

and the STATE POWERS ACT, No 75 of 1980 - both not only

provided for the vesting of the coastal waters and

the sea bed and seas and so on in the States, but explicitJ~ granted power to deal with those areas.

ClT18/2/VH	27	15/3/88
Mabo(7)

MR CASTAN (continuing): It was seen as necessary to not

only transfer the interest of the Commonwealth
in the sea bed in the coastal waters to the States

but to explicitly provide in terms that the States

would then have the power to make laws in relation

to those provisions. Section 4(5) of the COASTAL

WATERS (STATE TITLE) ACT, expressly provides:

It is the intention of the Parliament

that, subject to sub-sections (2) and (3) - which dealt with other matters -

any right or title vested in a State by this

section may be disposed of or otherwise dealt

with in accordance with the laws of the State.

And, of course the (STATE POWERS) ACT was an Act

which was expressly enacted for the purpose of

providing and did provide in section 5 for:

The legislative powers exercisable from

time to time under the constitution of each
State extend to the making of -

(a) all such laws of the State as could be

made by virtue of those powers if the coastal

waters of the State ..... were within the limits

of the State -

Now, that is a modern example of a transfer of

interests in territory, in this case within the

Federation, within Australia, but nevertheless

it was deemed appropriate that there should be

explicit grant of power as well as the transfei

of the lands.

Your Honours, there appears to be no authority

which expressly bears on either of the two issues

which I have now canvassed but I would seek to

take Your Honours to the case of SPRIGG V SIGCAU,
(1897) AC 238.	We have copies but perhaps

Your Honours have the case. It is of interest

because it was an 1894 proclamation and its terms

were not all that far different from the terms

of the proclamation of the annexation of 1879 with

which we are here concerned. At page 242 - I

have copies available, I am not sure if all of

Your Honours have - - -

BRENNAN J: It would be helpful, Mr Castan.

MR CASTAN:  At page 242, Lord Watson delivered the judgment

of Their Lordships.

MASON CJ:  Have you got one more copy, Mr Castan.

C1Tl9/l/ND	28	15/3/88
Mabo(7)

MR CASTAN: Yes. It recites that:

The respondent Sigcau was at one time an

independent native chief, exercising paramount

authority within the district of country in

South Africa known as Pondoland. In the

beginning of the year 1894 he made a peaceful

cession of his territory to the British Crown,

and became one of Her Majesty's subjects.

Thereafter, Her Majesty's representative in

the Government of the Cape Colony appointed

officers for the administration of the ceded

territory and duly proclaimed certain laws

to be in force within it.

And it recites there was a complete criminal code.

And then, towards the foot of the page:

On August 14, 1894, an Act of the Cape

Legislature was assented to by.the Governor

of the Colony on behalf of the Crown, which
proceeds upon the preamble that it was the

intention of Her Majesty to issue Her Royal

Letters Patent to authorize the Governor,

by proclamation under his hand and the public

seal of the Colony, to declare that from and

after a day to be therein mentioned the country known as Pondoland, comprising the territories

of East and West Pondoland, should be annexed an Act providing that the said country should
to and form part of the Colony, in case the

become a part of the Colony.

Somewhat similar to the form of the letters patent

we have been looking at, Your Honours.

(Continued on page 30)

ClT19/2/ND	29	15/3/88
Mabo(7)

MR CASTAN (continuing):

Sect.I provides that from and after such day

as the Governor shall ..... declare by

proclamation, the country mentioned in the

preamble, and with the name of Pondoland,

shall be annexed to and form part of the

Cape Colony.

It then goes on - section 2 provides it:

shall become part of that portion of the

Colony known as Griqualand East -

and another part of the colony known as "Tembuland"

and it provides then - and the Act, that is to say,

the CAPE COLONY LEGISLATIVE ACT provides:

"and the said territories shall be subject

to such laws, statutes, and ordinances as have

already been proclaimed by the High Commissioner
and such as, after annexation· to the Colony,
the Governor shall from time to time by proclamation

declare to be in force in such territories.

It goes on that the:

Act shall be laid before both Houses of

Parliament.

Now, it then recites in:

1895, Sir Hercules Robinson ...... as Governor

and Commander-in-Chief ..... issued the proclamation -

and that proclamation recited:

that the respondent Sigcau, the chief of the

tribes had refused -

to do certain things, his "presence" was "dangerous

to public safety", it was "expedient to make provision

for his arrest" and then it is set out somewhat

fully at page 244 that he is simply to be - has

been "rendered liable to arrest." The chief magistrate
is commanded to arrest him and he is to be secured.

It goes on towards the foot of the page:the magistrate can detain him in such place as may be determined.

It goes on:he can be released if it is in "the

interests of public peace and order" to do so.

The matter then ultimately came before the

Privy Councii At page 246, the first full paragraph the judicial committee said as follows:

The proclamation in question is described in

the appellant's case as an act of State which

is beyond the cognizance of any judicial

ClT20/l/MB	30	15/3/88
Mabo ( 7)

tribunal. Whatever may have been meant by

that expression, the character of the document is,

on the face of it, abundantly clear. It is an

edict, dealing with matters administrative,

judicial, legislative and executive, in terms

which are beyond the competency of any authority
except an irresponsible sovereign, or a

supreme and unfettered legislature, or some

person or body to whom their functions have
been lawfully delegated. If the Governor and

High Conunissioner of the Cape Colony could be shown to have occupied one or other of these positions, a Court of law would be compelled,

however unwillingly, to respect his proclamation.

If he did not, then his dictatorial edict was

simply an invasion of the individual rights

and liberty of a British subject. It set

aside the established law of Pondoland with

respect to arrest, trial, conviction and

punishment; and condemned the respondent

untried and unheard, to imprisonment, the place

and duration of his captivity being left to the

mcontrolled will of the framer of the edict.

It was satisfactory to find that the

appellant's counsel did not, in the argument

before this Board, venture to trace the power of

• the Governor to enact such a proclamation to

any authority directly derived from Her Majesty;

because autocratic legislation of that kind

in a Colony having a settled system of criminal
law and criminal tribunals would be little

calculated to enhance the repute of British

justice. Various Acts of the .C~pe Parliament

annexing different tracts of country to the

Colony were referred to in the course of their

argument; but none of these had a direct bearing

..... save the PONDOLAND ANNEXATION ACT, which

is the only statute professing to confer

Excellency had, or had not, power to enact the

legislative power upon the Governor within the territory of Pondoland. Whether his

proclamation of June 11, 1895, is therefore a

question depending, in the first instances

upon the due construction of the provisions of

the Act.

The general scheme of all these Acts appears

to have been to delay the enactment of many

salutary laws elsewhere prevailing throughout

the Colony until the native inhabitants of the

newly annexed territories had so far advanced

in civilization and in social progress as to

make the gradual introduction of these laws

advisable. Thus the new laws which were in future to be made by the Governor under the provisions of the PONDOLAND ANNEXATION ACT

were to be "new laws applicable to the said

ClT20/2/MB 31 15/3/88

Mabo ( 7) (Continued on page 31A)

territories", an expression which obviously

refers to general laws applying to all inhabitants

of the territory, whether natives or not, and

does not seem to contemplate or include special

legislation directed against an individual

inhabitant, and that in derogation of the rights

conferred upon him by the general law

of the Colony.

(Continued on page 32)

ClT20/3/MB	31A	15/3/88
Mabo(7)

MR CASTAN (continuing):

The legislative authority delegated to the Governor by the PONDOLAND

ANNEXATION ACT is very cautiously

expressed, and is very limited in its
scope. There is not a word in the Act
to suggest that it was intended to

make the Governor a dictator, or even to

clothe him with the full legislative

powers of the Cape Parliament. His only

authority, after the date of the Act, is

to add to the laws, statutes and

ordinances which had already been proclaimed

and were in force at its date, such laws,

statutes and ordinances as he "shall from

time to time by proclamation declare to
be in force in such territories". In the

opinion of their Lordships, these words do not import any power in the Governor to make "new laws," in the widest sense

of that term; they do no more than

authorize him to transplant to the new

territories, and enact there, laws, statutes

and ordinances which already exist, and

are operative in other parts of the Colony.

It was argued for the appellant that the

expression "all such laws made", ..... indicates

(Continued on page 114)

ClT74/1/SDL	113	15/3/88
Mabo(7)

BRENNAN J:	But does not that really bring you to the point of saying that this Act, in its form, goes beyond
what is legislative power? Legislative power does
not extend to saying that black is white and it
certainly does not extend to saying it retrospectively.
But if the declaratory form is used by legislature
it can be used to declare what the law is or shall
be or, perhaps, what the law was, but that this
Act goes beyond saying what the law is or shall be or, perhaps, even what the law was and trespasses
upon facts of history. Is that your proposition?

MR CASTAN:  Yes, it is, Your Honour, on this proposition

relating to this consequential conduct or intervening

events. What we say is that when one looks to

see what has happened in the meantime, the passage

of a law declaring something to have occurred,

which in fact did not occur, where the conduct

has been such that events have taken place which

were not consistent with the position that is

proclaimed to have been the case, is an attempt

to do what no Parliament can do. Parliament can

declare laws but Parliament cannot change what

has occurred. And what has occurred here includes

legislative history.

The fact is that the various Act, the TORRES

STRAIT ISLANDERS ACT of 1939, the Act of 1965,

the ones recited in the pleadings, those Acts were

passed. The sections of those Acts which specifically

provide for the setting up of a court and the court

to deal with matters - and I will take Your Honours

to those in a moment - which provide that the court

is to determine matters in accordance with custom,

were enacted and decisions, over 400-odd decisions

and transactions, were implemented by that court

under that legislation. Now, that cannot go away.

No sweep of the legislative pen, we would respectfully

submit, by the passage of this kind of legislation can extinguish the fact of that prior legislation.
It can cause it to cease to operate but it cannot
cause it to vanish or to go off the statute books

and it cannot cause the fact of the purchasers

to go away.

(Continued on page 11~

ClT75/l/ND	11.4	15/3/88
Mabo(7)

MR CASTAN (continuing):  To illustrate the point: is the

position to be deemed to be as a result of the
passage of legislation of this kind, that the

person, Mr Mabo or whoever the person might have

been who was paid some money for land for a

kindergarten block or the person who received the
money referred to in schedule 1 for the government

block where they built the schoolhouse, is now to

be deemed to have received money on a consideration

that wholly fraili deemed to now be obliged to

repay moneys that were paid years ago? Are all the

disputes that have been resolved on boundaries,
according to customary interests by a court over

106 years simply to set at nil and treated as

though they did not exist at all. In our respectful

submission, that cannot be done by the legislature,

assuming - - -

WILSON J: Does it purport to do that? I mean,it does not

repeal those laws under which the courts were

established and administered customary law, does

it?

MR CASTAN:  No, but what you have,with respect, Your Honour,

is a declaration, a purported declaration,that

upon the islands being annexed, so that takes us

to 1879 assuming the deeming effect of the 1895 Act - upon the islands being. annexed in 18 79 the

islands are vested in the Crown of right of Queensland

freed from the rights. Now one is left with the

events.; What characterization is to be given to all

those events, the implementation under Queensland

laws of the decisions of the courts in the volume

that has been made available to Your Honours; the

development of the body of law under Queensland

enactments,, and we would say, this is, with respect,

an attempt· to sweep that away or pretend~ - -

MASON CJ: Have you moved on to point 4, that i&,interference

with the judicial process?

MR CAST.Alfi:. No, I have not come to that, Your Honour, I am

still dealing with the effect of the extinguishmentissue.

WILSON J~ Let me just make one further comment in the

context we were discussing, Mr Castan. For example,

the Crown lands legislation, obviously there is not

going to be any retrospective exercise of the

powers conferred by that legislation so as to
dislodge earlier decisions, is there? This Act applies
those ·1aws and sometime in the future, perhaps,

grants may be ma.de pursuant to them?

ClT76/1/SR	115	15/3/88
Mabo(7)

MR CASTAN:  Quite so, Your Honour, in relation to Crown lands

legislation it is said by section - - -

WILSON J:	Yes, I was thinking of that aspect of it in particular.
MR CASTAN:	Yes. Well, what is said here is that the lands could thereafter be dealt with as Crown lands for
the purpose of Crown lands legislation. Well, that
is neither here nor there in relation to the
proposition that I was putting.  I was putting that
there is other legislation - and I need to take Your Honours to the relevant Acts, briefly, to
illustrate the way it works.  But in summary there
were Acts which were passed which charged the counsel
and the Court with administration of the affairs of the island in accordance with islander custom
and practice. Under that these things went ahead and happened and now it is said, in effect, they did not happen or they happened in some manner
unlawfully or without the statutory authority.
So that it is not just a matter of declaration
about what might have been an unclear area of law
in the past where you have had the intervening
conduct. Those intervening events do not go away.

MASON CJ:  Yes. The Court will adjourn ru::1w until 2.00 o'clock

tOIIX>rrow aftemoon.

AT 4.16 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 16 MARCH 1988

ClT77/l/MB	116	15/3/88
Mabo(7)