Mabo & Ors v The State of Queensland

[1988] HCATrans 40

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 COMl-'IONWEALTH OF AUSTRALIA

Second Defendant

Case stated pursuant to

section 18 Judiciary Act

Mabo(7)

MASON CJ

WILSON J
BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 MARCH 1988, AT 10.02 AM

(Continued from 16/3/88)

Copyright in the High Court of Australia

ClT 2/1/AC 175 17/3/88

MASON CJ:	Yes, Mr Davies.
MR DAVIES:	May it please the Court, before I continue could

I hand up to Your Honours an analysis which we have had prepared of the pleadings?

MASON c.r:-	We are drowning in a sea of material here.
MR DAVIES:	I do not want to take Your Honours to that document. However, it may be of assistance not only in
determining what is in issue in the action but also the lowest at which the statement of claim of the plaintiffs can be put.

Your Honours have also been given some maps.

We do have some maps in slightly greater detail

of the area and it may be of some assistance to

Your Honours if I hand those up. I think they are

self-explanatory.

Your Honours, could I say something else about

that first document which I handed up to Your Honours,

the composite pleadings, they do not include any

reference to the particulars, or so-called particulars,

handed up by our learned friends yesterday and

the only thing I really want to say about that

is that it is correct to say that they were furnished

pursuant to an order requiring particulars but

that, when one looks at them, they are not in

truth particulars, they are evidence most of which

is disputed and I will come back to that a little

later when speaking to the so-called reports of

the so-called court.

Your Honours, there is just one other matter

which, before proceeding with our submissions in

the order in which we were yesterday, I would like

to return to. It is proba·bly really a question

of construction but it arises from the way in which

we really placed our primary submissions where

we made an assumption and where we talk about the

rights, the plaintiffs' rights, of course, they

are the rights which the plaintiff claims and,

perhaps, we should have added, "or any of them",

and the rights claimed, as Your Honours will have

seen in the pleadings, are rights of ownership

by custom, traditional native title and usufructuary

rights, defined, in a fashion, in paragraph 12 in the statement of claim but by no means in a

way in which one could determine precisely what

those rights are.

In the end the point we are really making

is the question whether the 1985 Act extinguishes

all or any of those rights may depend upon their

ClT2/2/AC	176	17/3/88
Mabo(7)

precise content - the precise content of them

when evidence is given. And that really raises

a difficulty which we adverted to yesterday but

we really make in the light of what we have just

said; that it may, indeed, in the end be a

hypothetical question as to whether, in fact, some

-- of the rights as it appears they are pleaded and

as appears they may be proved are extinguished

by the 1985 Act or not.

Can I pass then to the point where I was about

to commence yesterday afternoon which is

paragraph 4(c) of our written outline with the

proposition that sections 30 and 40 of the

CONSTITUTION ACT of the colony of Queensland can

be repealed by any subsequent Act of parliament

without adhering to any manner or form.

(Continued on page 178)

ClTZ/3/AC	177	17/3/88
Mabo(7)

MR DAVIES (continuing):  We make the point that in fact this

was done in New South Wales with respect to the very

proviso with which our learned friends have concerned

themselves, and to which they have addressed their

argument, that is the proviso that nothing shall be

construed to affect any contracts or prevent the

- - fulfilment of any promise or engagement made on behalf

of Her Majesty with respect to any land and that was	done in New South Wales in the 1902 CONSTITUTION ACT
of New South Wales, notwithstanding the fact that the
earlier CONSTITUTION ACT of New South Wales derived its
force from the imperial Act of 1855. That is referred
to in the judgment of this Court in WILLIAMS V THE
ATTORNEY-GENERAL FOR NEW SOUTH WALES, which has already
been cited to Your Honours in another context,
at page 454 there is a reference cotmllencing at the 16 CLR 404. In the judgment of Mr Justice Isaacs
top of the page, the second line:

Imperial legislature, when transferring

all legislative power over the waste

lands of the Crown in New South Wales,

was careful to state expressly what

limitations it intended once and for

proviso in the words:- "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

all to place upon its grant of power.

Her Majesty with respect to any lands

situate in the said Colony, .... nor

to disturb or in any way interfere with which have accrued or belong to the or prejudice any vested or other rights

licensed occupants or lessees" under

the repealed Acts or any Orders in

Council - the latter referring to the

squatters.

(Continued on page 179)

ClT3/l/HS	178
Mabo(7)
MR DAVIES (continuing):	I would ask Your Honours then just to

cast your eyes over the next two paragraphs and then,

as Your Honours will see in the last paragraph on

that page His Honour said:

The only limiting provisions material to this

case are contained in the proviso to sec.58,
which are those in the proviso to sec.II of

the covering Act. Those limiting provisions

long ago became exhausted, and sec.8 of the

CONSTITUTION ACT 1902 significantly

contains no limitation whatever.

I do not think Your Honours have the 1902 Act. Could

I hand up to Your Honours some copies of it. It is

really only of relevance for that purpose, as showing

that it does, in truth, omit the proviso. The point

we make is that even if that had come into the Queensland

legislation initially from an imperial Act, its force

having been spent, it was capable of repeal by a

colonial or State Act. In any event it is not

necessary for Your Honours to even determine that

because the way in which that proviso came into

Queensland law is via an imperial Order in Council

which itself contained a provision enabling its

amendment or appeal by the colonial legislature.

Again, I do not think Your Honours have the full

text of that Order in Council, though the emasculated

form after part of it was repealed and put into the

CONSTITUTION ACT is contained in the book of

documents which our learned friends handed up to
Your Honours yesterday.

Can I hand up to Your Honours some copies of the full form of that imperial Order in Council.

(Continued on page 180)

ClT4/l/MB	179	17/3/88
Mabo( 7)

MR DAVIES (continuing): If Your Honours turn to the third

page of that document, which is page 9, apparently,

of the gazette in which it appears, Your Honours will

see in clause 17 the empowering provision with
respect to waste lands, with the proviso, and in
clause 22, a power conferred on the legislature of

the colony to alter or repeal the provision,

-subject to some exceptions, but they are not relevant.

I am reminded, Your Honours, that I should also have perhaps handed up to Your Honours - I do not know that Your Honours have it - section 43 of the

imperial act. That is the one which was considered

in WILLIAMS' case. Could I hand some copies of it?

That is the New South Wales CONSTITUTION ACT,

Your Honours, going back to that :imperial Order

in Council, in fact, what then happened, as

Your Honours will have seen from the emasculated form

of that Order in Council which appears in the first

book documents that my learned friends handed up

to Your Honours yesterday, that clause 17 was, in

fact, taken out of the Order in council and it was

re-enacted in the CONSTITUTION ACT--0f Queensland.

Your Honours will see that, if you look at the pages

34A~ which is the emasculated form of the Order in

Council, and pages 40 and 41, which is the

Queeneland.,_CONSTITUTION ACT - - -

(Continued on page 181)

ClTS/1/VH	180	17/3/88
Mabo(7)

BRENNAN J:	Do those powers have anything to say about the operation of section 3 framed as it is? Now,
section 3 of the QUEENSLAND COAST ISLANDS DECLATORY
ACT, that section purports on its face to declare
law retrospectively? Where is the grant of power
to the Parliament of Queensland to declare what
was the law consequent on the annexation of the

- -islands?

MR DAVIES:  Consequent, of course, means after; upon

annexation the law with respect to the State of colonial legislature or later on the State

legislature subject in both cases to repugnancy and

in the second case to inconsistency.

BRENNAN J:  I can see that the Parliament would at least

arguably have the power to provide for law the state of the law was upon annexation - - -
governing the land annexed once it became part of

MR DAVIES:	We would construe that - - -
BRENNAN J:	- - - irrespective of any subsequent exercise of

legislative power? Where does the power come

from if at the moment of annexation that subject

was beyond the p_ower of the Queensland Parliament?

MR DAVIES:  We would not accept that premise, Your Honour,

because we would submit that upon annexation must

necessarily mean after,even if it is a second

after,and upon annexation the power is then vested

in the Queensland Parliament.

BRENNAN J: It is a matter of construction, I suppose, but

one way in which section 3(a) could be read is that

without any exercise of legislative power by
the Queensland Parliament upon annexation at the

moment of annexation and in consequence of

annexation this was the law? Now if the Queensland

Parliament at the moment before annexation had

passed a law in these terms, I should have thought

it would have been beyond the power of the

Queensland Parliament ~t the time?	On that
construction is there power?

MR DAVIES:  We find it very difficult to make a submission

directed to something which is before annexation,
of course, but the section clearly enough does
not say that. It says upon, and we construe that

as we submit it should be construed, as after, even

though immediately after, and it does not matter

whether one construes this now as a declaratory

Act as at that point immediately after or whether

there was some other Act which said that immediately

after. In either case it is effective as a law

of the Queensland Parliament, in our respectful submission.

ClT6/l/SR	181	17/3/88
Mabo(7)

BRENNAN J: What you are saying is that a retrospective

declaratory law has the same effect as if a law

were enacted at the moment of annexation?

MR DAVIES:	We do not really need for the purposes of our submissions to take it that far,of course,because
we would submit with respect that at the very least

--what this declaratory law says is that so far as

rights which would otherwise be in existence today

they are deemed never to have been in existence

if they derived from that point of time?

DAWSON J:  Mr Davies, while you are interrupted, were you

going to say something about the submission that

the 1985 Act operates as at 1879 and that thereafter

the same rights can re-emerge,as it were?

(Continued on page 183)

ClT6/2/SR	182	17/3/88
Mabo(7)

MR DAVIES:·	We certainly will.
DAWSON J:	Do not let me interrupt you now.
MR DAVIES:	And our submission, in short, will simply be

that if, in fact, it does operate as at that -

__ we would say our submission is that, as I said before, that so far as rights are today they do

not exist if they derive from pre-1879. That is

a proper construction and on that construction

of the section there cannot be any question of
revival or reincarnation of rights because the

Act is declaring the law as at today that those

rights do not exist.

In any event, in our respectful submission,

if in fact those rights are clearly extinguished

in 1879 there would have to be a creation of those

rights, not a re-emergence of them - a creation

of those rights thereafter by statute. Your Honours,

can I then perhaps mention only briefly because
I mentioned it earlier the ACTS INTERPRETATION

ACT - and I do not know if Your Honours have copies of section 4 of that Act although Your Honour

Justice Brennan raised it during the course of

argument the day before yesterday.

Your Honours, we raise it specifically in

paragraph 4(e) with respect to the proviso and

say that, really, that if contrary to the submissions

we have made earlier the proviso cannot be removed

by the 1985 Act it should be construed subject

to that proviso but we should add, of course, that
section 4 may be relevant in other way in which

the section can be read down and we would rely upon it in any way in which the section can be

properly read down if a reading down be necessary.

(Continued on page 184)

C1T7/l/ND	183	17/3/88
Mabo(7)

MR DAVIES (continuing):  Your Honours, our learned friend's

alternative argument to the argument based upon the

incapacity of the Queensland Parliament to, in effect,
repeal that proviso is contained in subparagraphs
(vi) to (x) of paragraph A of his submissions under

"Inconsistency Issuesr1. It really is that there

-was no imperial grant of power in respect of waste

lands of the island in the Torres Strait and our
submission, which really is contained in paragraph (f)

on page 3 of our outline, is in short really this.

that the power to deal with the waste lands was

vested in the Queensland Parliament pursuant to the

Order in Council and subsequently pursuant to

sections 3Oand 40 of the CONSTITUTION ACT. The

islands then subsequently became part of Queensland

and subject to its laws, which included those
provisions.

Then we make the point in paragraph (g) that that right to make laws continued:- the power to make

laws, I should say, continued by section 107 after

Federation. Your Honours, we do not really want to

say anything more than we have said in paragraph (h)

about our learned friend's submission as to interfering

with judicial process but our learned friend's

submission stated as a proposition really seems to

be this; that if the legislation were Commonwealth

legislation it would not interfere with the judicial

process but because it is a State Act it does. In

our respectful submission it either interferes with the

judicial process or it does not and it cannot more

so interfere with the judicial process because it is

a State Act.

Can I then pass to the question of repugnancy

and the construction of the PACIFIC ISLANDERS PROTECTION

ACTS, sections 6 and 7, and submit that those

provisions, on their face, clearly do not confer

any sovereignty upon Her Majesty in respect of any islands in the Pacific Ocean. What it was

intended to do, as our learned friend pointed out

and as the original title to the Act~the KIDNAPPING ACT,

indicated, was to exercise some control over British

subjects who happened to be in the Pacific area,

not being as the Act put, within her dominions.or

within the jurisdiction of any civilized power.

It covered a great deal of Pacific Ocean, a great

deal no ·doubt unknown to the Crown, and clearly was

not intended to exercise sovereignty over any

specific part of it but merely to exercise power

over British subjects.

Now having seen that section 6 has that and no more than that effect, section 7 must be seen really

as a saving provision, really out of an abundance of

caution, making it perfectly clear what section 6

probably does anyway, that is, that it was not

ClT8/l/MB	184	17/3/88
Mabo ( 7)

intended to confer any sovereignty and it was not

intended to derogate from the rights of any persons

who happened to be in any of these areas if there

were any people in any of these areas. It cannot

possibly be construed as recognition of sovereignty

_of any particular group of people in any area.

(Continued on page 186)

ClT8/2/MB	185	17/3/88
Mabo(7)

MR DAVIES (continuing): The alternative argument which we make,

in any event, is that when one again looks at the

Act that it is intended to deal with those areas which are not within her dominions, that its

operation is spent once an area, once an island, or

a group of islands came within her dominions. So,

-- for both those reasons, in our respectful submission,

there is no repugnancy with the PACIFIC ISLANDERS

PROTECTION ACT, nor, in our respectful submission, can

there be any repugnancy with the COLONIAL BOUNDARIES

ACT. The COLONIAL BOUNDARIES ACT, at most, simply

validated, if it was necessary, an alteration of

boundaries of Queensland.

The extinguishment of the rights of the plaintiffs,

persons who immediately after the 1879 annexation

became subjects of the Queen,could not possibly, in our respectful submission, be inconsistent with that.

So, in our respectful submission, there cannot be any

repugnancy with the COLONIAL BOUNDARIES ACT. The only

inconsistency question which was raised in argument

before this Court, though others were mentioned in the

demurrer, was with the RACIAL DISCRIMINATION ACT and

that really in two respects: the first group really

is sections 9 and sections - perhaps before I go on to

that, I am reminded, Your Honours, that I should perhaps

have handed up, just for completeness - because	Your Honours will recall, if I can go back to the
COLONIAL BOUNDARIES ACT question, our learned friends
handed to Your Honours some opinions of the law
officers which supported the doubts which expressed
the view which Your Honour Justice Wilson expressed in
WACANDO, that there were law officers' opinions the
other way, as perhaps well known to Your Honours,
but could I just hand up to Your Honours copies of two law officers' opinions which were not in our learned
friend's list.

I am sorry, they were not handed up, but they were

contained in our learned friend's outline and these

were not. The ones contained in our learned friend's

outline supported him. The second of these which

disagrees with the first of them does not.

· ~9ur Honours will see it at page 275 under the heading

"Report", the second paragraph.

(Continued on page 187)

ClT9/l/HS	186
Mabo(7)
MR DAVIES·(continuing):	Can I then go back to the question

of inconsistency and submit that section 3 is not

inconsistent with sections 9, 10(1) or 10(2) of

the RACIAL DISCRIMINATION ACT for two reasons.

The first is the reason which Your Honour

__ Justice Dawson advanced, I think, yesterday, that

it does not purport to take away rights which others

do not have. And the other is that the discrimination,

if there is one, is based on rights or interests

claimed to exist in land prior to 1879 whatever

may be the race, colour or national or ethnic origin

of those making the claims. And Your Honours will

recall that in GERHARDY V BROWN the legislation

there was such that in order to be a traditional

owner you had to be an Aborigine.

In this case Polynesians or Europeans who

had settled on land in the islands prior to 1879 would be in exactly the same position, or may be

in exactly the same position, as people who happened

to be the Aboriginal inhabitants of the Torres

Strait Islands. Your Honours, our learned friend

also sought to make the point that a dealing with

the land, pursuant to section 3(c) of the 1985

Act, would be an act of discrimination but there

is an additional reason why that section could

not apply and that is, if there is an act of

discrimination it is the vesting of the land in

the Crown not the subsequent dealing with the land

after it has become Crown land because it is a

prerequisite to dealing, in our respectful submission,

that it becomes Crown land.

Your Honours will recall, and I do not think

I need take you to it, that section 10(3) of the

RACIAL DISCRIMINATION ACT dealt with management

of property of Aborigines and it assumes, for its

operation, property capable of management and we

submit that, in addition to our previous arguments,

an Act which extinguishes rights to property is

not inconsistent with that.

DEANE J:  Mr Davies, if one was simply concerned with, as

it were, lack of formal inconsistency, there is

obviously force in what you say; that you look

at these two Acts and they do not tell you much.

MR DAVIES:  Yes.

(Continued on page 188)

ClTl0/1/AC	187	17/3/88
Mabo(7)

DEANE J:	But one can conceive circumstances at the end of
the case where, if clear proprietary rights were
established and this Act simply took away the
property of all the Torres-Strait Islanders in
the context of 10(3) there would be quite an argument about the operation of the Act being
inconsistent with the Connnonwealth legislation.

-In one sense, it is not your problem, and in another

it is, though.	How do we approach that question on
a demurrer?

MR DAVIES:  Well, in our respectful submission, it cannot be

approached on any other basis than disallowing the

demurrer, because if, on any view, what we say can be right,

then, I mean, it would be wrong to allow the

demurrer, because it might be given under false

premise. It really indicates what we said earlier

and I do not want to keep saying it - the unsatisfactory

nature of a demurrer here being on some sort of assumed

basis that might never be the case, as opposed to,
perhaps, the basis upon which a demurrer is ordinarily

put, it really gets to a situation where, as I said

earlier, one could really have the demurrer allowed

against us on the earlier basis, and find that the

facts turn out to be quite different, and the claim

which is ultimately proved to be the case is something

less than that; that perhaps the demurrer ought to

have been refused overall.

But, in our respectful submission, to answer

Your Honour here, we submit, with respect, that one cannot really speculate as to the factual

situation. It may well be that there are, as we

indicated as a hypothetical case - there may,in fact,

be - and I do not want to go into the facts - but

there may_ ',i' in fact,be Polynesians who have been on

this island for centuries, or Europeans that have been

on there for a long while who have somehow been

accepted as entitled to whatever traditional title

means. So, in our respectful submission, although

that, as Your Honour quite rightly says - it may

emerge that it is a defence at the end of the case

to our plea.- it cannot be by way of demurrer.

BRENNAN J:  Mr Davies, I am not sure that I follow that. If

t~e demurrer is approached on the footing that the plea must be ineffective against any of the issues which are raised on the statement of claim before it

can be allowed, must ~ne not then look to see

whether, on tllie statement of claim, there are any
issues on which the Act might provide an effective

plea?

MR DAVIES:	Even if one approached the demurrer on the basis that Your Honour says then, in our respectful submission,
one really cannot get to a point of discrimination.
All one can say is that this Act discriminates, at its worst - I m::an, accepting that it discriminates, Your~' it discriminates

ClTll/1/VH 188 17/3/88

Mabo (7) (Continued on page 188A)

against all those who happen to have rights or claims with respect to property prior to 1879, or would have had rights prior to 1879, and

which would have survived 1879, as at now.

(Continued on page 189)

ClTll/2/VH	188A	17/3/88
Mabo(7)

MR DAVIES (continuing):  The statement of claim does not

say that the plaintiffs or indeed the native

inhabitants of the islands of the Torres Strait

are the only people who would have those rights.

BRENNAN J:	Does paragraph one not say that?
MR DAVIES:	No, Your Honour, it does not say that because

it may in fact affect the possessory title which

is the usufructuaryrights and it does not say,

of course, that they are the only people who had

traditional native rights, it says that they

are the people who:

have continuously inhabited -

they are not the only people who have inhabited - and exclusively possessed.

But it does not say that there are not people who

may have either acquired rights not in possession

or have somehow in some way acquired rights from
people who are in possession and ultimately

come into some sort of rights, it does not say that.

And unless it does, in our respectful submission,

there really could not be that. And in our

respectful submission, unless it were clearly the

case on the pleading, unless there could be no

other construction of the pleading than that

any sort of rights to traditional ownership, whether

by custom or whatever it might be, could be

acquired and held prior to 1879 only by those people,

then, in our respectful submission, the demurrer

could not be allowed on that question.

DEANE J: Of course ~ou have not pleaded the Act to

paragraph 1.

MR DAVIES:	No,we have not.
DEANE J: Which means unless one reads the statement of

claim as containing a concession that there is no

cause of action unless paragraph 1	is made out
in full, the contents of paragraph 1	are not
really in point to the demurrer?

MR DAVIES:  I take Your Honour's point, in fact we adopt

what Your Honour has said. Your Honours, that
really brings us to the question of coastal waters.
As we understand it -and this really arises from
something which our learned friend the
Solicitor-General for the CoIImJ.onwealth has raised
with us - there seems to be some general view that

subject to the views Your Honours have about the matter

that those questions with respect to the coastal

waters could be left on one side because, as we

understand it the plaintiffs in this action do not propose to
proceed in respect of the coastal waters if their dem.rrrers in

respect of the land, if I can put it that way, are overruled.

ClT12/l/SR	189	17/3/88
Mabo ( 7)

MR DAVIES (continuing):  We do not really mind either way.

We are quite content not to argue the questions

with respect to coastal waters, that is, the two

questions of construction and power, the second,

of course, involving the validity of the SEAS AND

--SUBMERGED LAND ACT. If that is so, we are content

to abide whatever view the Court might take of

that.

MR CASTAN:  Would Your Honours hear me. My learned friend,

perhaps, had misunderstood the position we take

in relation to coastal waters. The position that

we have taken is that we would press the first

point, being the point of construction. We

indicated yesterday we see it as appropriate to

defer the second point, the point of power. Perhaps

my learned friend had misunderstood our position

on the first issue.

MASON CJ: Mr Davies, I think we will proceed on the footing

that the question of construction is alive at this

stage and the Court will put the question of power

aside for the time being.

MR DAVIES:  Thank you, Your Honour. Your Honours, in our

submission, prior to 1900, a fringing reef attached

to or appurtenant to an island and dry at low water

was at common law and in international law part

of the island and consequently the waters between

the island and any such reef were internal waters.

Your Honours, there are a number of opinions of

law officers dealing with att~ched reefs which

appear in O'Connell and Riordan on Opinions on

the Imperial Constitution.

Your Honours, I am not really sure now that

they are on our list. I apologize for that. Can

I just give Your Honours the references to them

in that event.	They appear in O'Connell and Riordan's
Opinions on Imperial Constitutional Law.	The first

of them is at page 190 to 193 and that concerned

reefs at or near Bermuda and it was said:

we are still of opinion that the territorial

jurisdiction of Bermuda must be estimated at

the distance of a marine league from the

North Rock on the outer ledge of the coral

reef, or at all events from the rock, and

the outer ledge of that part of the coral

reef which is not covered by sea at low water .....

The "ledger flats" generally, though sometimes

covered at high water, are, in fact, as it were,

a natural ledge or girdle of defence to the

Bermudas, of which they are, as has been said,

a continuation.

C1Tl3/l/ND	190	17/3/88
Mabo(7)

And they go on to talk about natural appendages of the - they refer to a decision in THE "ANNA"

by Lord Stowell in which he refers to natural

appendages. There is another opinion, at page 193,

with respect to the Bahamas in which the view was

expressed:

that as a general rule British jurisdiction

would not extend beyond the distance of three marine miles from an inhabited island or cay. This general proposition, however, must be

subject to exceptions, for instance, any part

of the great banks which may be enclosed within

inhabited cays though beyond the distance

of three miles from each cay might be considered

• within British jurisdiction.

And finally, Your Honours, on pages 194 to 195

there is an opinion with respect to Queensland

which, in paragraph 5 on page 195 says·that:

Reefs attached to an island and dry at low

water are part of the island.

6. Reefs detached from any islands and dry

at low water only are not islands.

The reference to THE 11 ANNA 11 which is on our list	That deals with the question of attached reefs.
is 165 ER 809 and the relevant passages appear at page 815 in the judgment which was concerned
with little mud islands - as Your Honours will see from the top of page 815, a little further
down, His Lordship said:

(Continued on page 192)

ClT13/2/ND	191	17/3/88
Mabo(7)

MR DAVIES (continuing):

I think that the protection of territory is

to be reckoned from these islands; and that they

are the natural appendages of the coast on which

they border, and from which indeed they are

formed.

And down at the middle of the page:

Whether they are composed of of earth or solid

rock, will not vary the right of dominion,

for the right of dominion does not depend

upon the texture of the soil. I am of opinion

that the right of territory is to be reckoned

from those islands.

There is another case, Your Honours, which is not on our list which is called the TWEE GEBROEDERS,

165 ER 422. The same opinion is expressed as on the

prev~ous case in the middle of page 423. There are

two cases of the same name, both of which deal with

the question. The second of them is in the same volume,

165 ER 485, and the relevant passages there are on

page 487 about point 2 and the other on the same

page towards the bottom.

DEANE J:  Of course, even if you be right in all this there

remains concealed probably the most difficult problem

and that is what is a fringing reef and to what extent
can one say that waters are between a fringing reef
and the island to which it is attached?

MR. DAVIES: That is a factual question, of course. Yes, we

accept that. In the end, I think, we really say
that that factual question has to be determined

before one really gets to the question of power.

Again, it indicates the inappropriateness of

determining that question on demurrer.

DEANE J:  I mean if, for example, your fringing reef was

attached at both ends your case would be a very, very

strong one. If your fringing reef is attached to

one end and is going out at an angle of 45 degrees

you have come into the area where, as I understand it, you cannot really get much assistance from any

authority but you simply make a pragmatic decision

if your first point be correct?

MR DAVIES:  We accept that, Your Honour. We accept it really

depends upon the confirmation of the reef and its

location, vis-a-vis the land. The same difficulty

arises with the appurtenant . reefs, if our submissions

are correct, as to what is ~ppurtenant to an island,

how far out one goes and so on. Your Honours, our

of Mr Justice Jacobs at page 484, but we really

learned friend yesterday referred to the SEAS AND

ClT14/l/MB	192	17/3/88
Mabo(7)

make the point that the passage to which he referred

there was concerned with the question of the open

sea and he said that he did not think the words

"members and appurtenances are ,apt to include the

open sea" with which we would not really disagree.

So his remarks were really directed to what was

or was not the open sea and we accept whatever he

says there in that respect. We would submit he does

not say anything inconsistent with the views which

are expressed in the law officers' opinions to which

we have just referred.

Your Honours, as to what is an appurtenant

reef as opposed to merely a fringing reef attached,

we have given,Your Honours, I think, references to

O'Connell on International Law and O'Connell,

International Law of the Sea.

(Continued on page 194)

C1Tl4/2/MB	193	17/3/88
Mabo(7)

MR DAVIES (continuing):  I do not think I will take up

Your Honours' time by reading out those passages. The

leamed author in International Law of the Sea refers

to those two cases, the TWEE GEBROEDERS and
THE '~A', and comes to the conclusion as those

cases seem to, in our respectful submission, that if a reef is truly appurtenant to an island, then it is part of the island and consequently waters

which are between that reef and the island are

internal waters. In the end, of course, whether

they are or not, as we have said, is a question of

fact. Your Honours, that is, I think, all we really

want to say about that question of construction.

Can I pass then to what we have described as our secondary submissions, but which our learned friend

yesterday made some short oral submissions with

respect to and handed up a large sheaf of documents.

The two questions with which those documents and his

submissions relate are first the effect of

annexation and, secondly, assuming that either by

annexation or by the 1985 retrospective Act the rights

were extinguished thereafter, whether those rights

could have been and, in fact, were revived by
subsequent legislation or, as he would put it,

legislation and Acts which he said were pursuant

legislation.

Can I deal with the first of those questions,

that is the effect of annexation, first, because, in our respectful submission,it is relevant also, in a general way, to the question which perhaps

is relevant to the question of construction again

because when one sees what we submit is the effect

of annexation the 1985 Act if seen in its true light

is really a declaratory Act of declaring what really,

in fact, happened to have happened, or at the worst

remove any doubts about that because, in our

respectful submission, the effect of annexation of

the islands in the Torres Strait, as a matter of law,

was to extinguish any pre-existting native rights

if they existed prior to 1879. (Continued on page 195)

ClT15/l/HS	194
Mabo(7)
MR DAVIES (continuing):	Your Honours, in our respectful

submission, the law relating to this question

appears to have been settled,so Blackstone said,

by the time of his commentaries or at least, at

the latest, by the time CAMPBELL V HALL, a decision

--to which our learned friend yesterday, was decided,

and the settled principles did distinguish between

settled colonies on the one hand and ceded or

conquered colonies on the other.

The former, that is settled colonies, were

those which either were unoccupied at the time
of settlement or occupied by people who did not

have an organized society with·an established system

of law and so the term'~ettlemenf really grew to

become equivalent to peaceful annexation. It

included not only the case where En~lish settlers

went to somewhere which was uninhabited and set

up a settlement and brought the English law with

them in their suitcases but it included the case

where there was a peaceful annexation of people

who were, at the time, thought to be uncivilized

and who were thought not to have an organized society

with an established system of law. I say thought

then, because one of the points we are going to

make is that once that question has been determined

it is not to be re-examined by reassessing historical

facts in retrospect and arriving at a new conclusion

on that question, and there is authority to support

that proposition and, in our respectful submission,

good reason for it too.

For cession or conquest, of course, there

needed to be an organized opposition. For cession

there needed to be some person or body exercising

sovereign power and thus having the power to cede

territory as there was said to be in Canada and
in New Zealand and in Africa - East and West Africa.

The difference between two, that is settlement on the one hand and conquest or cession on the

other, lay, in our respectful submission, in the

assumption that in the case of conquest or cession

there was in that colony, in that country - the

country ceded or conquered - an organized society

with an established system of law. And that seems

to be the basis of the distinction between settlement

on the one hand and conquest or cession on the

other.

Now we say that because, although there is

a great deal of authority for that proposition
and I will come to it in a moment, the plaintiffs'

written submissions really seem to disagree with
that proposition although there is no authority

cited for the disagreement.

ClT16/1/AC	195	17/3/88
Mabo(7)

MR DAVIES (continuing): At page 3 of the first of the four

documents which were handed up together- they are

fairly separate documents and some of them have
separate page numbers- at page 3 of the first

of those documents they said:

The main distinction between peaceful

settlement and conquest was not based

so much on whether the territory was

inhabited or not. Rather, it concerned the question of the introduction of the

common law.

This is a bundle of four documents, I think which

was handed up as one document in fact yesterday.

V.LASON CJ: It is the one headed "additional submissions

to the plaintiffs' doctrine of continuity upon

change of sovereignty"?

MR DAVIES:  Yes, Your Honour, and it is the first of those

which I was directing Your Honours' attention to

on page 3 where they say:

The main distinction between peaceful

settlement and conquest was not based

so much on whether the territory was

inhabited or not. Rather, it concerned the question of the introduction of the

common law and the consequent restraints

on the exercise of the prerogative

legislative power.

Now in fact the position seems clearly to have

been that the difference between the two, the

distinction was made on the basis of the perception

of whether there was in the ceded conquered

or settled territory an organized society with an established system of law. That appears from the decision of the Privy Council in COOPER V STUART,

14 AC 286.

TOOHEY J: . Mr Davies, the difficulty with a case like

COOPER V STUART seems to me is that it is really

concerned with the situation between two persons

neither of whom is one of the indigenous people, it

is really a question of the applicability of the

common law, I think in that case, to a reservation

in the deed of grant? Does it really have anything

to say about the situation as between the

indigenous people and the occupying power?

MR DAVIES:  It says something as to the general law,

Your Honour, and it says something which appears

to be in accord with the other authorities to

which I will refer Your Honours on the general law of this proposition,

ClT17/l/SR	196	17/3/88
Mabo ( 7)

ehat is as to the essential difference between a

settled colony on the one hand and a ceded or conquered one on the other; but in the second

case that there was an organized society with
which one could either treat or have to conquer.

In the other it was perceived not to be the case

and one could simply go in there and bring one's

laws in there because there was not an organized

society with a system of law there. Well that

was the perception. And so in that respect the

Privy Council in that case was no more than really

stating, in our respectful submission, what was

said in other cases and I will refer you to at

least one other earlier case than that in which

that principle was stated. And of course it was

stated by Blackstone in that way.

So really the Privy Council in COOPER V STUART

in this case was really saying no more than those

cases said. The passage, Your Honours, is at

page 291, where in the first full paragraph on that

page, in the second sentence, it said:

There is a great difference between the

case of a Colony acquired by conquest or

cession, in which there is an established

system of law, and that of a Colony which

consisted of a tract of territory practically

unoccupied, without settled inhabitants

or settled law, at the time when it was

peacefully annexed to the British dominions.

And they go on to say:

The Colony of New South Wales belongs to

the latter class.

I am reminded also before I leave COOPER V STUART

that in the second of those four documents there

is a reference on the first page of it, the heading

"settled", subparagraph B(iii) COOPER V STUART,

and there is in brackets and inverted commas the
phrase, "with the consent of the natives".	I

mention that because that phrase does not appear

anywhere in COOPER V STUART. It is difficult to see where it came from but it does not come from

COOPER V STUART. Though reading it one might have

the impression that it that that phrase is to be

found somewhere in COOPER V STUART.

(Continued on page 198)

ClT17/2/SR	197	17/3/88
Mabo(7)

MR DAVIES (continuing):  Your Honours, the other case to which

I will take Your Honours briefly on that question is a case called FREEMAN V FAIRLIE, which is another

Privy Council case. It is reported in 1 Moore's

Indian Appeals 306. The English Report reference is

18 ER 117. In that case, at page 325, reading about

-just above the middle of the page, it says:

I apprehend the true distinction to be, in effect, between Countries in which there are

not, and Countries in which there are, at the

time of their acquisition, any existing civil institutions and laws, it being, in the first

of those cases,amatter of necessity that the

British settlers should use their native laws,

as having no others to resort to; whereas, in

the other case, there is an established

lex loci, which it might be highly inconvenient

all at once to abrogate; and, therefore, it

remains till changed by the deliberate wisdom

of the new legislative power.

That principle is stated in Halsbury and other

authorities are cited. It is in the fourth edition

of Halsbury. Could I hand up some copies of it to

Your Honours? It is the fourth edition,volume 6,

paragraph 1017. In the last part of that paragraph,

Your Honours will see the basis of the distinction

stated. It is also stated - and I will not take

Your Honours to that - it is also stated in and in the case to which our learned friends referred
1 Blacktone's Commentaries 107 in the decision of

yesterday, I think, of WEDGE, a decision of

Mr Justice Rath, which is in (1976) 1 NSWLR 581,

where it is referred to at page 584, letters D to E.

The principle which followed from that was that in the case of settlement, but not in the case of

conquest or cession, the law of England became

automatically the law of the colony and all the land is

immediately vested in the Crown and became waste lands

of the Crown. Now, in the present case, of course, these were the terms of the relevant letters patent in the 1879 Act. That they were the consequences

appears from that passage in Blackstone to which I have referred; the passage in MILIRRPUM to which I have referred, in COOPER V STUART, to which I have

referred.

TOOHEY J:  But what Blackstone says is really, in a sense,

self-evident; that if the country is uninhabited,

then there is no competing system of law.

MR DAVIES: 

Yes, but that seems to have been taken in other

cases, and perhaps, in the end, it depends very much
on, or to a large extent, on the intention of the

C1Tl8/l/VH	198	17/3/88
Mabo (7)

conquering sovereign. But that seems to have been

taken in the later cases to mean, not just uninhabited

but inhabited by people who were not perceived to

have an organized society with an established system

of law.

TOOHEY J,- But what Blackstone appears to be looking at is

the situation of how much of the English law will be

carried to the unsettled colonies.

MR DAVIES:	Well, so much as was appropriate to those colonies, but not to whether, in fact, the local customs
should be absorbed into the English law, in the case
of a settled colony.

(Continued on page 200)

C1Tl8/2/VH	199	17/3/88
Mabo(7)

TOOHEY J:	No, because, be definition, he is dealing with the country that was uninhabited.
MR DAVIES:	Yes, I accept that is so but in the later cases,

I mean FAIRLIE is an example and the other cases,

LYONS CORPORATION referred to by Halsbury, and

--so on, deny that,where that was not the case.

And, indeed, COOPER V STUART is another where it was really equated with, as I said, peaceful

annexation.

Your Honours, we are drawn into this discussion

as to what really takes place on annexation because

of our learned friend's written submissions.	We
should emphasize that we really do not see this

as having a great deal to do with the case except

in the end as, perhaps, having a better appreciation

as to what the 1985 Act intended to do but we do
not really submit, or even concede, that what the
consequence was of annexing the islands in the

Torres Strait really has much to do with this

demurrer. It has a lot to do in the end, perhaps,

with the action, with questions of fact that have

to be determined and the inferences of law which have to be drawn from those but not a great deal

to do with - not anything to do with - the demurrer.

Your Honours, it also appears reasonably clear

from a number of cases that - perhaps, before I go

to those I should make the point that the submissions

we have made seem to be inconsistent with a number

of contentions which are contained in that written

document and I should, perhaps, refer you to those.

Before I do, because of what Your Honour Justice Toohey

has just said, the general principle of treating

settled colonies as being those settled where there

were not only uninhabited people but people who
were thought not to have an organized system of

law seems to be supported by Sir Victor Windeyer in

the passage quoted at the bottom of page 1 of the

first document. But to point. Your Honours to the

contradictions of the propositions which we have

made so far - that last proposition in particular - can I take Your Honours to page 2 of that document,

in the middle of the page, it said:

First, in a peaceful settlement ..... there are definite constraints on the exercise of

the prerogative power ..... the limits lie in

the proposition that the pre-existing rights

of the natives can only be abrogated with

their consent.

Now, in our respectful submission, once one

has a settled colony they are abrogated immediately
upon settlement subject to anything that might

happen subsequently to create rights.

ClT19/l/AC	200	17/3/88
Mabo(7)

DEANE J:	What do you say to the general proposition on page 292 of COOPER V STUART, that is in a case
such as this:

as soon as colonial land became the subject
of settlement and commerce, all transactions

in relation to it were governed by English

law, in so far as that law could by justly

and conveniently applied to them.

MR DAVIES:	Sorry, Your Honour, can I have the passage -
DEANE J:	Page 292.

MR DAVIES: Sorry, whereabouts on that page?

DEANE J:  It is the paragraph commencing in the middle of

the paRe and I was drawing your attention to the

words in so far as that law could be justly and

conveniently applied".·

MR DAVIES:	It does seem to have been said in that, and in other cases as well, that, of course, there are
some laws which may not be appropriate to the new territory. It is not the same as saying, of
course, that some other laws are accepted as
applying. It may be that it is unfair that some
English laws should apply in the new colony, perhaps because of the character of the natives,
because they are uncivilized1 to have laws to make
them dress, for example, might be unjust or
inconvenient to apply a law of that kind. But, in our respectful submission, it does not really
bear on the question of whether, in fact, any of
their customs in a settled colony survive as a
matter of law.
DEANE J:	Yes.

It may well be though tha~ looking at things with a greater appreciation, the difference between

a colonial settler who pegs out his land immediately

after settlement and the original inhabitant who

was on the land immediately before settlement may

not be so different for the purposes of applying

that proposition.

(Continued on page 202)

C1Tl9/2/AC	201	17/3/88
Mabo(7)

MR DAVIES:	Your Honour is saying looking back on it now?
DEANE J:	Yes.

In other words looking back on it without notions of differences between human beings and the

like.

MR DAVIES:  Well, looking back on it now is a question of

philosophy. It may depend on one's philosophical
view of it. Our submission really is that once that

distinction has been made and the consequence of

that distinction have occurred it would be wrong

to alter it nowbecause it would alter generations of

rights. In ·our respectful submission that ought

not to be done and, again, there is authority for

that proposition, that once that distinction has

been made that it should not, later on, be altered

even though later historical anthropological research

might show that the situation was not as it was

perceived to be by the colonial settlers.

DEANE J:	I am not suggesting it would preclude the validity
of subsequent actions.  I was directing your attention
to the situation if there were no relevant subsequent
actions.

MR DAVIES:  Yes. It is perhaps not just a question of subsequent

actions but a question of acceptance of laws and,

I suppose, it is always difficult to say whether

in fact there are subsequent actions. If it is perceived

generally to have been the law it would be very

difficult to say whether in any particular case

rights have been assumed to have been acquired in

reliance upon the reception of English law.

DEANE J:	I do not want to delay you, Mr Davies, all I was
really trying to suggest to you was that it is a very large question that to my mind is not closed
by authority.
MR DAVIES:	Yes. Well, I would simply answer Your Honour

in the way I have answered before that if, in fact,

it is a large question that is not closed by authority

then it really requires great research into the

facts before one can really determine the question.

Your Honours, also in contradiction of the proposition

which we have just submitted is the passage at the

bottom of page 2 of that written outline where it

says under paragraph (3) that:

pre-existing rights of the natives under

their lex loci survive as a matter of law

although their presence -

and so on. It goes on to say:

Likewise, the sovereign does not enjoy the prerogative power to seize the lands from

under the natives' feet.

ClT20/l/MB	202	17/3/88
Mabo(7)

We say really they are already vested in the Crown

on settlement, there is not a question of seizing it,

because on settlement those rights are vested on

the principles which have so far been decided in

the cases to which we have referred. Also, whilst

-continuing on that page, on page 3 - I have read

the passage at the middle of page 3 but if Your Honours

look at the passage conmlencing on the bottom of page 3

and over to the following page, what really seems to

happen in that paragraph - and I just ask Your Honours

to glance at it - is that the author of this document

confuses ceded and conquered countries with settled
ones and uses the statements of principle which have

been made in respect of ceded or conquered countries

to support a proposition in respect of a settled

colony. For example, CAMPBELL V HALL concerned

a conquered country - these are the authorities

on page 4 - SYMONDS and TOMA.KI V BAKER, concern

ceded territory - that was New Zealand ceded by the

territory of Waitangi - arid the statement of

Mr Justice Menzies was in connection with ceded

territory because he said in the passage quoted

there in REG V PHILLIPS said - conquered and ceded:

Moreover laws in force in a territory -

I am reading from Justice Menzies at page 111

of REG V PHILLIPS -

Moreover laws in force in a territory which

has been conquered or ceded, remain in force

after conquest or cession, not by virtue of

inherent vitality, but by virtue of the will

of the new sovereign. This appears clearly

enough by the qualification adopted by

English law which limits the continued operation of earlier laws to laws of a

conquered or ceded country which are not

"contrary to our religion or enact anything

that is malum in se". (Continued on page 204)

ClT20/2/MB	203	17/3/88
Mabo)7)

MR DAVIES (continuing):  So, in our respectful submission,

none of those authorities are authorities for what

took place upon settlement. Your Honours, New

South Wales,and subsequently and consequently

Queensland, became British colonies by settlement.

COOPER V STUART says that. The decision of COE -

I should not say the decision of COE - the judgment

of the former Chief Justice with whom Justice Aickin

agreed in COE, which is referred to in that outline,

also says that and, indeed, the plaintiff in this

submission really concedes that there is a long line

of authority supporting that proposition. That appears,

I think, in the third of those documents at page 2,

the first of those subparagraphs numbered (2):

It is said it has been indicated on

numerous occasions that Australia

was settled and not conquered.

They refer to MILIRRPUM, COOPER V STUART, and COE,

and the decision of Justice Rath in WEDGE is another.

There are many of them, in our respectful submission,

which say that, and there are also many authorities

which say that once that classification has been made,

by practice or judicial decision, it will not be
disturbed by historical research, and one can see

the wisdom of not disturbing such a classification

what, as I said, I think in answer to Justice Deane

before, where it has been settled for generations

and possibly millions of rights have been affected

by it, the statement is made in Halsbury to that

effect, that is once it has been settled it will not

be disturbed and there are authorities for that
proposition and I will not take Your Honours to them.

In addition to Halsbury, there are authorities referred to in Kent's co!Illllentaries, that is the

American text, volume 3, page 381, and they are also

referred to in MILIRRPUM at page 202.

BRENNAN J:  Mr Davies, I do not know what the relevance of

this discussion is to the demurrer, as such, but

even if it be so in relation to mainland Australia,

is there anything to establish the form of settlement

on Murray Island.

MR DAVIES:  Well there are the facts, of course, in the end,

but what we say is that Murray Island became

a part of Queensland, upon annexations it became

part of Queensland. In one instrument, really, it

was annexed and became part of Queensland.

BRENNAN J:  I appreciate that, but I mean, does it follow that

if Queensland pre-1879 was a settled colony for the

purposes of your argument that that which is annexed

to it is a settled colony? Think for a moment of

the problems of the abortive attempt to annex

C1T21/l/HS 204 MR DAVIES, QC 17/3/88

Mabo (7)

Papua New Guinea. Would one have said that that would

have been a settled colony also if the annexations

had been ratified by the imperial Crown?

MR DAVIES:  Your Honour, I suppose in the end it depends a

great deal on facts, but there was a principle

__ already adopted in Africa where, in fact, smaller places were absorbed into larger and obviously one

could not have maintained separate characters in

respect of them if they became one country and the

general principle which seemed to have been adopted

in the cases was that where, upon sovereignty being

exercised,they were absorbed into another and
larger territory, they assumed the character of

the larger territory; so if the larger territory

had been a settled colony so that the laws applied,

then the smaller territory absorbed into it assumed

that character. That is perhaps just a good

practical rule, but that was one which seemed to have

been applied in the cases.

One of the cases is a case from West Africa

called REG V KOJO THOMPSON.	Could we hand up
to Your Honours a copy of that.

(Continued on page 206)

ClT21/2/HS	205
Mabo(7)

MR DAVIES (continuing): This concerned the Gold Coast and

it is perhaps convenient if I take it up at

page 207 where the Chief Justice says, at the top:

The distinction between "Settlements"

and possessions acquired by cession or

conquest is maintained and exemplified in

section 6 of the BRITISH SETTLEMENTS ACT,

We misled you.

MR CASTAN:  We have those available if it is of assistance.

Perhaps I will just make those available to the

Court since it explains the - we also have,

Your Honours, the 1979 amendments which we make

available. Now, we were asked by Your Honour

Mr Justice Deane to provide an indication of the

consequences of the result on the demurrer of various

arguments that were advanced and the extent to which,

if particular arguments were accepted, they would

have particular results affecting various paragraphs.

ClT54/l/VH	255/256 MR CASTAN, QC 17/3/88
Mabo(7)
MASON CJ:	It certainly seems to be a deterrent to judges

asking questions.

MR CASTAN:	We have enthusiastically sought to provide responses, Your Honour.
DEANE J:	Except has not that, to one extent, disappeared?

MR CASTAN:  It may well be that it has. We are not certain;

because we are uncertain of the final result of the
discussions that have ensued, it may well be that it

has, but even - - -

DEANE J:  If it helps you, I withdraw the request.

MR CASTAN: If Your Honour please.

DEANE J:	If you have prepared it;, Mr Castan - - -
MR CASTAN:	We have prepared it, Your Honour, and we are happy

to make it available. It may help, or if it is not

of assistance, then no doubt the Court has an

appropriate place to file those documents which are

of no assistance whatsoever.

TOOHEY J:  Mr Castan, can we take it that we are not being asked

now to go to any individual document, or indeed any of

the documents, in the three volumes that were handed up?

MR CASTAN:  Not quite, Your Honour, and I hesitate because one

of the arguments we put was an argument which reads

''Ihe 1985 statute"- there still remains the problem

of working out what the 1985 statute means and how it

works and on one view of it, as we have submitted, it

is necessary to treat it as being read back in to the

situation in 1879 and then look to the statutory

instruments thereunder. That in turn, in our

respectful submission, still raises the question, and

it was argued by my learned friend~~Mr Davies, of

those statutory instruments and the effect of them,

that is to say, looking at the most subsequent

statutory instruments to the 1879 Act as declared.

I am not concerned about statutory instruments, but those three volumes.

(Continued on page 258)

ClT55/l/HS	257	17/3/88
Mabo(7)
MR CASTAN:	Yes, Your Honour, I was coming to that.	Because

one is doing that one is left with the question

of the court, because those statutory instruments

refer to the island court and direct it to accord

with island custom and practices. My learned friend,

__ Mr Davies,has said that one should regard the court

as not having been in operation or not making

decisions having any effect under the relevant

statutes which set up a court. We would respectfully

submit that it is necessary to go to the court

decisions, the actual record, that that is as much

part of the instruments as anything else, that

there is this record of the actual decisions made in order not to determine what are the principles

or to make an analysis of the detailed body of
law there developed but to see that this is not

a case where one can neatly say, "Well, it did

not really take effect. The by-laws were not signed

by the governor or by the minister or whoever was

needed to sign the by-laws so they weren't really

by-laws, so there was never really a court, so

you just ignore all that."

Now, in our respectful submission, it is

necessary to turn to the court and council records

to see that it really did happen, there was a court

and council. We have so pleaded it but it is

necessary to see just what it amounts to. In our

submission, part of the analysis of whether or

not - and I was about to turn to a submission

which is to the effect that what is involved in
what my learned friend has said is that in effect

a form of island anarchy prevailed, as he would

have it. There was no law at all operating really

as he would have it because these by laws, as it

is said, were not signed, this was not the operation

of any system whatsoever, not to be given any

statutory force, not to be treated as the operations

of Queensland law.

In our respectful submission, that is not

the position and one needs to turn to the material
to see that it could not be the position. It might

be one thing to have legislation which talked about

setting up a court, nothing was done about it,

no court ever happened and so one can only say,

"Well, there is talk about it but no result."

As pleaded, and as one sees in the document, the

book, the record, there was a court, it did make

decisions. That is part of that sequence of events

that we say is the relevant history following on
the 1879 Act as declared and for the reasons we

explained leads to the ultimate inefficacy of the

legislation to achieve the result that is sought

and in respect of that it is relevant to look to

particular decisions. One can see that, although my learned friend say, "Well, it didn't have any real effect", when one looks to decisions in the court, on the face of them, they

are signed off, many of them, by the director of the department.

They are actually signed, they are appeals pursuant to the appeals provisions.

ClT56/l/ND 258 17/3/88

MR CASTAN (continuing):  This is not some hypothetical

situation and I could give Your Honour a short

half a dozen or so of the references that indicate	list of - read, perhaps, into the transcript just
the actual signatures of either appeal decisions by t:ne director of the department or confirmationsof decisions by the director. They are the pages of
volume 2: 212, 226, 239, 247, 283, 285, 296, 297,
there are many more. But the person having the
title of protector or chief protector of islanders
has actually signed particular decisions and confirmed
them or allowed or disallowed them on appeal pursuant to what appear to be appellant provisions in the
legislation to which we have referred. So to that
extent it is necessary to turn to the material, to give body to the argument, or to answer the argument
that said, "Well, this is nothing, this had no effect
whatsoever."

In so far as it is necessary to deal with the

argument that the by-laws never took real effect, they
are not to be regarded as statutory instruments at

all for the purpose of our submission as to consequent

statutory development in this area in relation to

Murray Island. We would refer to SIMPSON V

ATTORNEY-GENERAL FOR NEW ZEALAND, (1955) NZLR 271,

on the question of whether particular requirements
are to be treated as directory or mandatory and

whether non-compliance with a particular procedural

requirement leads to the inefficacy of a legal

requirement. That was an extreme case where the later than the due date prescribed. The election

had been held, Parliament had sat and passed laws

and, ultimately, it was held by the court that the
omission or the error or the defect in the issuing

of the warrant for the election was to be treated

merely as directory. The enormous public inconvenience

and massive dislocation of the whole legislative

structure of the country being a reason why it should

~ft~ regarded as directory only.

i' We would say, in so far as there be a situation

where de facto there have been by-laws, in fact there

has been a court, it has operated under the regime.

That is to be treated as the operation of a legal

system under a statutory scheme which provides for

exactly that,and that non-compliance with the signing

off, or the signing of the by-laws by the director

would not be regarded as reason to take away from
both the by-laws themselves and the decision-making

process and the structure of the court, pursuant to

them, to take away any legal efficacy.

ClT57/l/MB	259	17/3/88
Mabo(7)

MR CASTAN (continuing):  My learned friend,Mr Davies,

also suggested early in his submissions this

morning that one of the problems about dealing with

this case, as he put it, was that the rights were

not sufficiently defined in section 12 and as to

that, that has perhaps now been resolved but, of

course, we would refer to the substantial body of

material appearing in the paragraphs prior to

section 12 which does state the rights as they are

alleged at their highest by the plaintiffs in terms

which, we would respectfully submit, enable one very

clearly to see precisely what is alleged.	In
relation to the imperial legislation, it was

submitted by my learned friend that Queensland can

amend the provisions of sections 30 and 40 of the

CONSTITUTION ACT and that that is an answer to the

submission made, that there has been non-compliance

with the proviso, or an attempt to bypass the
proviso contained in imperial legislation.

That might be the position if there was an amendment, but, of course, this 1985 Act does not

seek in terms or at all to amend the CONSTITUTION

or to provide otherwise.	It seeks simply to bypass
the provisions of the imperial legislation.	My

learned friend, when responding to questions concerning

the meaning and effect of the 1985 Act, my learned

friend, Mr Davies, also sought to say that the words

"upon annexation" should in some way be read as

meaning something other than upon annexation.

He suggested after annexation	or at some later
stage.	He said "upon" should be read as "after!'

In our respectful submission, this is to contradict the whole point of the 1985 Act, which in its terms

clearly enough is designed, when looked at, to operate

as part of the process of annexation with the Act of

1879 and what my learned friend was seeking to do was,
we respectfully submit, place a strained interpretation

on words in a statute which seeks to effect rights,

effect vested rights and that, of course, is precisely the interpretation that the Court would not lean to to a statute of that kind.

normally when applying principles of interpretation

In relation to the RA~IAL DISCRIMINATION ACT,

we point out in response to that which was put by my

learned frien~ Mr Davies, that the Act does not only operate on discriminations founded on race. It also

refers to national or ethnic origin.

(Continued on page 261)

ClT58/l/HS	260	17/3/88
Mabo( 7)

MR CASTAN (continuing): In the present case, the geographic

delineation, if it be said that it is not sufficient

to give a racial characterization when looked at in

substance to these provisions, in any event, does
give a national or ethnic composition to those

provisions. It is not necessary to establish that

-~nly those of a particular race were in the islands

in 1879; on any view those there form part of,

we would respectfully submit, the national or ethnic

group.

So far as concerns the matters of the coastal

waters and the arguments put concerning reefs, we
point simply to the pleadings themselves, paragraphs
4 and 5. It is clear, of course, that the claim is

not confined to reefs which are above low-water

mark or to the waters inside those reefs; it extends

to waters beyond. There is just one other matter
that I omitted to put in argument in-chief, and it

arises by way of response to something that my

learned friend, Mr Davies, put. Our submission,

of course, in referring to the reserve in 1912 is,

of course, that the reserve and the setting aside of

the island as a reserve, we would respectfully submit

is reserve as it is said, for the benefit of the

relevant islanders and that that is put, of course,
in support of the claim, as we would put it, that

there has been a recognition of their specific

interest or right to occupy that particular island.

As we understood it, it was suggested that by

setting it aside as a reserve, that in some way

operates as some form of negativing of that interest.

We would rather put it that setting aside as a

reserve operates positively or an indication of a

positive beneficial intent. I am reminded that we

would seek to reserve our position on the power point

arising in relation to the coastal waters issue, it

being apparently agreed that it might be deferred,

but we do still reserve such arguments as may be

.required, depending on the way in which other issues

•·:are resolved.	There are no other matters we desire to put
·.•p:l· reply. If the Court pleases.
Thank you, Mr Castan.	The Court will consider its

decision in this matter and will adjourn until

10.15 am tomorrow in Melbourne.

AT 3.21 PM THE MATTER WAS ADJOURNED SINE DIE

ClT59/l/VH	261	17/3/88
Mabo(7)