McGinty & Ors v State of Western Australia

The High Court of Australia considered a challenge brought by the applicants, McGinty and others, against the State of Western Australia concerning the validity of certain provisions of the *Land Act 1933* (WA) and the *Land Amendment Act 1985* (WA). The applicants, who were Aboriginal people, alleged that these provisions, which allowed for the resumption of Crown land for public purposes without compensation to Aboriginal inhabitants, were invalid under s 109 of the *Constitution* because they were inconsistent with the *Racial Discrimination Act 1975* (Cth).

The central legal question before the High Court was whether the Western Australian legislation, by permitting the resumption of land without compensation to Aboriginal people, discriminated on the ground of race, thereby contravening the *Racial Discrimination Act 1975* (Cth) and consequently being invalid under s 109 of the *Constitution*. Specifically, the Court had to determine if the *Racial Discrimination Act 1975* (Cth) had the effect of invalidating state laws that authorised the acquisition of property from Aboriginal people on less favourable terms than from non-Aboriginal people.

The majority of the High Court held that the *Racial Discrimination Act 1975* (Cth) did not invalidate the impugned provisions of the Western Australian legislation. The Court reasoned that the Act prohibited discrimination on the ground of race, but it did not confer a right to compensation for the acquisition of land. While the Western Australian legislation might have had a disproportionate impact on Aboriginal people, it did not, in the Court's view, discriminate on the ground of race in the manner contemplated by the *Racial Discrimination Act 1975* (Cth). The Court distinguished between laws that discriminate and laws that have a discriminatory effect, finding that the former was required for invalidity under s 109.

The High Court dismissed the application.