State of Western Australia v Commonwealth of Australia; Biljabu & Ors v State of Western Australia; Wororra Peoples & Anor v State of Western Australia

[1994] HCATrans 268

..

.

.,.

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P4 of 1994

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Perth No P45 of 1993

B e t w e e n -

TEDDY BILJABU, BILLY GIBBS,

BOBBY ROBERTS, PATRICIA FRY,

NYERI MORGAN, BRIAN SAMSON,

DITCH WILLIAMS (who bring this

action on their own behalf and

on behalf of the Aboriginal

people known as Martu)

Biljabu 1 12/4/94

Plaintiffs

and

THE STATE OF WESTERN AUSTRALIA

Defendant

Office of the Registry

Melbourne No Ml47 of 1993

B e t w e e n -

THE WORORRA PEOPLES (who are

represented by DONNY

WOOLAGOODJAH and GRACE UMBAGAI

First-named Plaintiffs

THE YAWURU PEOPLES (who are

represented by FRANCIS

DJAIGWEEN and FRANK SEBASTIAN

Second-named Plaintiffs

and

THE STATE OF WESTERN AUSTRALIA

Defendant

Directions hearing

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 APRIL 1994, AT 9.19 AM

Copyright in the High Court of Australia

Biljabu 12/4/94

t Page

MR D. F. JACKSON, QC:  If Your Honour pleases, ... I .... appear ... w.ith ............. ,.....,

my learned friend, MR A. ROBERTSON, for the

plaintiff in the first matter called, and for the

defendant in the next two matters called.

(instructed by the Crown Solicitor for Western

Australia)

MR L.W. ROBERTS-SMITH, QC: If Your Honour please, with

MR P.W. JOHNSTON, I appear for the plaintiffs in

the matter of Biljabu. (instructed by the

Aboriginal Legal Service of Western Australia)

MR A.R. CASTAN, QC:  If Your Honour please, I appear with my

learned friends, MR B.A. KEON-COHEN, and, MR G.

McINTYRE, for the plaintiffs in the Worrora and

Yawuru action.	(instructed by Kimberley Land
Council)

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

If Your Honour please, I appear with my learned

friends, MR D.J. ROSE, QC, and MR C.R. STAKER, for

the Commonwealth in the first action, and

intervening on behalf of the Attorney-General in

the remaining two. (instructed by the Australian

Government Solicitor).

HIS HONOUR:  Yes. Mr Jackson.

MR JACKSON:  Your Honour, could I perhaps indicate the

course which, in our submission, would be the

appropriate course to be followed in relation to

these matters.

HIS HONOUR:  Is it a course that has the agreement that has

the agreement of the other parties or not?

MR JACKSON:  Your Honour, it has not been possible to

discuss the matter fully but, as I understand the

position, Your Honour has seen the pleading at

least in the State of Western Australia and the

Commonwealth matter, that is the statement of

claim.

HIS HONOUR:	Yes.
MR JACKSON:	And I also understand the position to be that

some days have tentatively been set aside in

September for the likely hearing of matters that

might arise from these cases. Your Honour, could I

say a couple of things in relation to it.

HIS HONOUR:	How many days? What is the estimated duration of the hearing?
MR JACKSON:	My estimate would be that our case, in relation

to the points raised in Western Australia, would

take three to four days. I say that on the

assumption that we would endeavour to put

Biljabu 3 12/4/94

significant parts of it in writing, of course, but

I really do not think it is possible to do the case

in a shorter time than that from our side.

The case for the other sides, no doubt, would

be a matter of estimation but I should expect it

would take the same time, one would think.

HIS HONOUR:  There is a good deal of common ground in the

three cases, is there not?

MR JACKSON:  Yes, and, Your Honour, the way in which the

defences that we have delivered in the other two

cases have been pleaded - - -

HIS HONOUR:	They look similar to your statement of claim.
MR JACKSON:	We endeavoured to keep the numbering the same

so they became intelligible.

Your Honour, the course that we would propose,

broadly speaking, is this; that there needs to be
another hearing in the relatively near future

before a Justice in order, one way or another, to

determine which issues would be dealt with by the

Court.

HIS HONOUR:	Yes.
MR JACKSON:	In relation to that, Your Honour, we think, in

addition, that at that hearing there should be a

determination, and I do not mean that in a

difficult sense, Your Honour. I will explain what

I mean. There should be a determination of what

material would be before the Court on the hearing

of those matters. In that regard we would probably

be the moving party, I should think, and we would

seek to have placed before the other parties,

before that hearing, and available to the Court, a

list of the material that we would seek to place

before the Court as material upon which the Court

might decide the issues.

Your Honour, the precise form of the

proceeding to go before the Full Court could be

decided on that occasion and one of the forms

contemplated by section 18 might well be

appropriate. Alternatively, it might be that the

Commonwealth might choose to demur or take a point

of pleading arising from our pleading or perhaps

the other parties might do the same.

As to a date for that hearing, I see in a

document that has been provided by one of the other

sides, that 13 May was mentioned. Your Honour, we

would not have a particular objection to that date.

I see it is a special leave day in Sydney, which

Biljabu 4 12/4/94

might cause inconvenience. But, Your Honour, it
might be better to have a date somewhat earlier

than that perhaps, and we would not have any great

objection to that. Your Honour, in that regard we

are really in the Court's hands to some degree.

HIS HONOUR:	Would an earlier date give the parties sufficient time to give consideration to
particularly their attitude on the materials.
MR JACKSON:	Your Honour, personally I have an element of

doubt about that, but I am really not wishing to

delay the matter at all.

HIS HONOUR:  You may be more familiar with the materials

than others.

MR JACKSON:  Yes. Your Honour, to my mind, broadly

speaking, a month would be about right. So far as

the particular date is concerned, we would leave

that to the Court. Your Honour, at such a hearing

it would then be possible for the Court to give

directions about the times for written submissions

and so on.

HIS HONOUR:	Yes.
MR JACKSON:	Your Honour, that is broadly the course that we

would submit is the appropriate course to take in

relation to the matters. Could I just say one

further thing, and that is in relation to the -

perhaps it is a little in advance of what might
ultimately happen. It relates to the structure of

a hearing in terms of the order of events and,

Your Honour, we would submit that broadly speaking

the Court should be looking to hearing the action
that we have against the Commonwealth; first, in

order of the hearing of the matters to the extent

to which there would be any separation because the

validity of the Commonwealth Native Title Act seems

to be the first issue logically. I do not mean to

convey by that that persons in the other actions,

who, of course, wanted to be heard on that question

would not be able to be heard then or shortly

afterwards.

HIS HONOUR:  No. I am not sure whether logically it is the

first case to be heard but I can see some

compelling practical arguments why it should be the

first case to be heard. Two questions I was going

to ask you: would you contemplate bringing in a

draft stated case, for example, or at least draft

questions, and serving them on your opponents

before the date fixed for the next hearing?

MR JACKSON:	Yes.
Biljabu	12/4/94

HIS HONOUR:  You would. Because it seems to me, unless

that is done there is a risk that we will not be

able to keep up with the time programme.

MR JACKSON:  No, Your Honour. I would hope on that occasion

that our version of the questions would have been

circulated and debated - rejected, probably - at

least before the others, and vice versa.

HIS HONOUR:  The other question, Mr Jackson, is this: I

have not put my mind to what issues of fact there

may be and whether the fact that there may be

outstanding issues of fact could conceivably be an

objection to a hearing on questions of law. I

imagine issues of fact could arise in various ways

and, perhaps, not least with respect to the matters

listed in your annexure although, perhaps, the next
hearing may clarify what the attitude of the

parties is to the list of events and documents in

your annexure.

MR JACKSON:	Is Your Honour speaking of the annexure dealing with, in effect, the history of -
HIS HONOUR:	Yes, that is right.

MR JACKSON: Well, Your Honour, that is possible. The

documents to which a reference is made there

consist of, of course, a combination of things:

statute and historical documents. Your Honour, it

would seem, in the end, relatively doubtful, I
would suspect, whether there would be any serious

contest about that; there may be others and we

certainly would - other people wanted to rely on

and, Your Honour, we would not suggest that parties

would not be able to put before the Court, subject

to relevance, documents they wished.

HIS HONOUR:  Yes.

MR JACKSON:	Your Honour, that was the purpose, in a sense, of my saying - - -
HIS HONOUR:	Yes, but your point is that the document could

be identified and known in advance and, in effect,

agreement reached or direction given by the Court as to the documents that should be put before the

Full Court and the manner in which they should be put.

MR JACKSON:  Yes, and Your Honour, in that regard we would

expect that the Court would, and I regret to say,

end up with a number of volumes of material to

which the Court would be referred.

HIS HONOUR:  Thank you, Mr Jackson. Mr Roberts-Smith.

Biljabu 6

MR ROBERTS-SMITH:  Thank you, Your Honour. We are in a

position at the moment to hand up a draft minute of
questions for the High Court in relation to our

matter and which has been circulated to the other

parties, and if I may do that together with a

minute of proposed orders for today, at least for

the purposes of discussion, Your Honour.

HIS HONOUR:	Yes.
MR ROBERTS-SMITH:	The proposed questions, I should say, do

derive essentially from the plaintiffs' statement of claim in the Biljabu matter. Your Honour will

have noted that in so far as the defence deals with

the statement of claim, it essentially does so in
two ways: the first is that it simply joins issue
on the matters raised in relation to the

Racial Discrimination Act and in relation to the

Native Title Act pleadings raises essentially the

same issues as is raised in the action between the

State and the Commonwealth.

The questions, therefore, the first and second

questions, relate to the Racial Discrimination Act

and the third question relates to the

Native Title Act. As Your Honour will see, they

are therefore essentially two quite separate limbs

of the Biljabu claim and both of them are

free-standing.	I will come back to that perhaps in
just a moment.

The minute of proposed orders, which we seek

again, have been circulated to the other parties
but as my learned friend, Mr Jackson, said, it has
not been possible yet to reach any agreement on

those matters, but I think essentially what is

proposed there, in broad scheme anyway, probably

accommodates at least some of the suggestions made

by Mr Jackson a moment ago.

HIS HONOUR:  Yes, I would not have thought there was any

significant inconsistency between what you are

proposing in the proposed orders and the programme

that Mr Jackson has outlined. At this stage, I
think I would be averse to making the orders but I

would be, subject to hearing what Mr Castan and

what the Solicitor have to say, be prepared to

indicate my willingness to proceed along the lines

indicated by Mr Jackson and in your proposed

orders.

MR ROBERTS-SMITH: Yes, if Your Honour pleases. There is,

of course, one significant difference there and

that has to do with the actual sequence of hearing

of the issues and I am referring in particular to

paragraph 3 on the minute of proposed orders.

Biljabu 7

The Racial Discrimination Act aspect of our claim is really, from our clients' point of view,

the principal part of our claim and always has been

and, of course, it would be our perception that if

we succeed on that issue, well then, the State

legislation would be ruled invalid in any event and

that would be the end of that matter and we would

have achieved what our clients of course are

seeking.

It does seem to be apparent from the pleadings

that the issues raised in relation to the

Native Title Act are going to be far more complex

and much wider and probably are likely to take

considerably more time than the issues in relation

to the Racial Discrimination Act. One of our

concerns therefore, is that unless the

Racial Discrimination Act arguments are recognized

to be a discrete part of the hearing and dealt

with, we would submit, first then there is a very

good chance that the native title issues are going

to become so complex and take so much time that the

Racial Discrimination Act issues may be squeezed to

the very end as it were, and not given the

consideration which we would submit they deserve,

at least in argument.

HIS HONOUR:  That is highly unlikely, Mr Roberts-Smith. can rest assured that that issue will receive all
the consideration that it deserves - - - You

MR ROBERTS-SMITH:  I meant in argument, if Your Honour

please.

HIS HONOUR:  in whatever order the issues are heard.

MR ROBERTS-SMITH: If Your Honour please. In that case the

only other point to make about that is that, as

Your Honour will see from paragraph 3, we do submit

may develop either before or during the course of	that if there is a difficulty with timing - which
argument - then, in relation to the Racial Discrimination Act issues at least, we would submit
that, given the fact that the High Court will be sitting in Perth in October, and as I understand it the October list is still not full, it may be
possible, and we would submit appropriate, given
first that this is the original jurisdiction of the
Court, of course, and because of the issues in
relation to our clients who, of course, are in
Western Australia, it would be appropriate that the
racial discrimination matter aspect of it be dealt
with at the hearings in Perth.

HIS HONOUR:  So far, you have not enjoyed the privilege of

sitting on the Bench of the Full Court in Perth,

Mr Roberts-Smith. Had you done so, I think you

Biljabu 8

would not have put that submission quite so

enthusiastically as you appear to be putting it.

MR ROBERTS-SMITH:  I am aware there is a new building,

Your Honour; I understood it was a lot more

comfortable than the previous arrangements.

HIS HONOUR: Well, of course, I must say we would be sitting

in the Federal Court, if we were to do it, but at

the moment I do not see any point in separating the

hearing. It seems to me that if we can, we should

proceed with a view to a hearing which will take up

all the issues in these three cases.

MR ROBERTS-SMITH:  We would agree with that, with respect,

Your Honour, yes. Those are the only aspects, I

think, which need elaboration in addition to the

points which we have made, thank you, Your Honour.

HIS HONOUR:	Mr Castan.
MR CASTAN:	If Your Honour please. We would support the

view that all issues should be dealt with in one

hearing. We are not averse to the suggestion of my

learned friend Mr Jackson that there be a date

fixed some three weeks or a month away, and that

some attempt be made to formulate questions and

perhaps isolate facts. I should make the point
that in the case in which I am retained, the proceedings were issued in 1993 prior to the passage of the Native Title Act. They were issued

and raised as Racial Discrimination Act issues.

The statement of claim has since been amended to

incorporate the Native Title Act issue, but we see

the scope of the issues, including a question

raised in relation to the Federal Coastal Waters

legislation as being quite confined and capable of

being dealt with in the absence of the challenge

that is raised by my learned friend Mr Jackson in,

perhaps, a two day hearing.

HIS HONOUR:  But you are not suggesting a separation of the

hearing?

MR CASTAN:  No, we are not, Your Honour. It seemed to us

that much as we would like to have got those issues

on and dealt with separately earlier, much earlier

than September, in practice we see that it is

probably preferable to bring them on together,

understanding of course, they would be all dealt

with.

HIS HONOUR:	Yes.
MR CASTAN:	So, we are not adverse to attempting to - I

should say in relation to facts, we would agree

that we have not yet really had an opportunity,

Biljabu	12/4/94 having only received the defence with its claims of
invalidity literally in the last few days, to
formulate our views on it, so I cannot really
comment. We imagine there may well be additional
facts on historical material we would want to put
forward to the court.
HIS HONOUR:	What about the suggested date, 13 May or thereabouts, is that a convenient time frame for
you?
MR CASTAN:	Yes, Your Honour.
HIS HONOUR:	Do you think that we would be in a position to

advance sufficiently - - -

MR CASTAN:  Yes, I would be concerned if it went any longer

than that, Your Honour. I was rather going to

suggest the possibility of shorter rather than

longer - - -

HIS HONOUR:  Shorter rather than longer? I did ask you that

question, Mr Roberts-Smith. Are you happy with a

date at or about that?

MR ROBERTS-SMITH:  Yes. As Your Honour will have seen from

paragraph 4, we were rather hopeful that the issues

could be agreed before then and filed at the

registry on that date. That was how the 13 May

came up. Yes, we would agree again that the sooner

the better, if Your Honour please.	I have no
further submission.

MR GRIFFITH:  Your Honour, it seems to us that there are

four groups of issues that arise on these actions

and pleadings to this point. The first is that

under part B of Western Australia's statement of

claim whereby it is claimed by reference to

successive and more recent dates that there is no

part of Western Australia where there is native

title and interest. That claim as against the

Commonwealth is not a claim that any part of the

Native Title Act is invalid. On its own there may

be some difficulties as against the Commonwealth in

seeking such a declaration because if that is the

Native Title Act
case, Your Honour, then the would pleaded by way of defence in the other two actions
not attach so that there is no issue between us.

there is sufficient adversaries to enable the Court

to grapple with that as an issue and it can be

expected that the Commonwealth would retain an

interest to make submissions on that issue.

On that issue, it seems to us that it is

insufficient at the moment merely to have the list

of documents referred to in annexure A of the

Biljabu 10 12/4/94

statement of claim as information which enables the

parties in the Court to say that they are seized

with the relevant facts.	We would expect to be
served with copies of those documents.	It would

obviously be very difficult for parties separately
to dig out themselves, Your Honour, but it does

seem to us that for us to even be in a position to know whether there are any other documents that we

would wish to supplement in reference to that part

of the claim, it is necessary to have the
assistance of at least a short summary from Western

Australia indicating the manner in which it relies

upon these documents to make out the allegation by

reference to successive and more recent dates that

native title has been, inasmuch as it might have

existed, determined or terminated.

So that without some elaboration, we will be

left in the position of being taken by surprise,

even if we have the documents delivered to us.

So we would suggest, Your Honour, that on that

issue it is appropriate that there be at least a
summary of how the plaintiff puts its case
delivered to the parties, possibly by the adjourned

date.

HIS HONOUR:	Is there any objection to that, Mr Jackson?
MR JACKSON:	No, Your Honour.
HIS HONOUR:	I can see that in a sense there may be an

objection stemming from reluctance. Apart from an

objection stemming from reluctance, have you got

any ground for objecting?

MR JACKSON:	Your Honour, we are prepared to do that.
HIS HONOUR:	What I suggest you do is you make copies of the

documents in annexure A available to the

parties - - -

MR JACKSON:	Yes, of course.
HIS HONOUR:	- - - along with a summary of the way in which you propose to rely on the documents and events.
Do you want a time fixed for that?
MR GRIFFITH:	Your Honour -
HIS HONOUR:	I think as long as it is generally understood

that Mr Jackson will endeavour to provide a list of

the summary within a reasonable time before the

adjourned date.

MR GRIFFITH:  Yes, Your Honour, and a copy of the documents

too, Your Honour.

Biljabu 11 12/4/94

HIS HONOUR:	Yes, well that is understood.
MR GRIFFITH:	Now, Your Honour, that deals with that issue.

Your Honour, the next group of issues are those

claiming that various parts of the Native Title Act

are invalid. We have just charted up for our

internal purposes a little chart as to how it is put. I do not have many copies, perhaps I could

hand it to Your Honour to just indicate our quick

analysis of issues, Your Honour. It seems to us

that most of them are intelligible. I am not

seeking to be condescending of my learned friend's

pleadings in saying that, but we think - - -

HIS HONOUR:	I regard it as a tribute, Mr Solicitor.
MR GRIFFITH:	We think we understand what they are about,

Your Honour but there are, with reference

particularly to impairment of state function
issues, quite a lot of allegations of fact in the
pleading, and also matters of fact and tables

annexed to the various annexures. In general it

can be taken, Your Honour, that we will not cause

any difficulty about that, although we have no

particular knowledge of some of the facts.

HIS HONOUR:  You mean allegations like there are 5500,

approximately, applications a year dealt with by

the Western Australian Government for mining

titles?

MR GRIFFITH: Precisely, Your Honour, yes. So in outline,

Your Honour, we feel fairly relaxed - we are in the hands of the Court of whether or not the matter can

be put before the Court on the basis of these

allegations, is the section invalid. But what we

hope, Your Honour, is that in the first period of

adjournment we could have some discussions with the

Western Australian representatives - - -

HIS HONOUR:  I think that is a sensible way in which to

proceed.

MR GRIFFITH:	- - - and identify how they establish various other facts and tables and, at the same time, we
will inquire as to whether or not it seems that
there is other supplementary cables that we might
want to put before the Court.  We might not have
that finalized by the adjourned date but we do not
see any real difficulty, and we would hope,
Your Honour, that if we were not sure how many
persons there were of Aboriginal descent as alleged
that the Court be prepared to have the matter heard
on the basis that is the allegation. We do not see those issues as particularly decisive.

Biljabu 12 12/4/93

HIS HONOUR:  I do not think there would be a difficulty

about that, Mr Solicitor, as long as the allegation

is one which appears to have some reality or

substance about it.

MR GRIFFITH:  Our assumption is they all do, Your Honour,

otherwise they would not be there.

HIS HONOUR:	Yes.
MR GRIFFITH:	We might wish to balance some of them,

Your Honour, and we will advise the parties in the

Court as to any material which we would put before

the Court in the usual way. We do not even see it,

getting to a contest that we would ask the Court to

resolve, even if there was not agreement on facts.

It would have to go before the Court, we would

hope, on the basis that this is the range of

disagreement and, of course, if it became crucial,

Your Honour, that could be determined. We cannot

imagine any one fact would be crucial in itself.

So that we think that progress can be made by

discussions and agreement and exchange of

information and documents. So that we then,

Your Honour, see no real difficulty in defining out

the questions on: are various parts of the Native

Titles Act invalid in the various ways alleged?	So
that is the second group of issues that we see.

The third group of issues we see as arising

from the two other actions where we intervene

concerning the operation of the Racial

Discrimination Act on the Western Australian

legislation - there, Your Honour, as interveners,

we feel we can respond to the issues as pleaded

between the parties and would expect to intervene

even though no question of validity of the

Commonwealth law arises, but would seek to

intervene in probably as of right, Your Honour, the

residual constitutional issue there so that there

we would be in the position of an intervener,

making submissions perhaps as we did in Gerhardy,

so that we - - -

HIS HONOUR:	Yes, it is difficult for me to speak for the Full Court and, of course, it may be subject to
some argument in any event, but subject to that argument I would not have thought there would be
any difficulty about that, Mr Solicitor.

MR GRIFFITH: Yes, we think not, Your Honour, but we expect

the question pleaded as against us, at least in the
Wororra matter - only in my learned friend, to be able to - the fourth issue, Your Honour, is the off-shore settlement.

Biljabu 13 12/4/94

HIS HONOUR:	Yes.
MR GRIFFITH:	Now, Your Honour, to us that is an entirely

discrete issue and one where interests of the parties are different because, on that issue,

Your Honour, we would expect the States to want to

join with the Commonwealth to intervene to defend

their settlement. Now, Your Honour, to us it seems

particularly inappropriate that the hearing of that

action should be joined with these other three

issues that we have identified and, indeed, we feel

that it would be unfortunate to have all the States

milling around defending that interest on one side
with the Commonwealth for the period that the

parties, in a sense, would be before the Court

defending particular interests where other States

may or may not wish to get involved on some parts

of it or at least in the issues concerning the

Racial Discrimination Act, that one cannot see for

the moment that any States would have a particular

interest, Your Honour, unless they were thinking of

doing the same thing - possibly they woul - but

then they could read the Court's judgment with

interest.

HIS HONOUR:  It is even possible that the resolution of that

issue might take more time than other issues in the

judgment.

MR GRIFFITH: Yes, Your Honour, I heard what my friend say

he thought he could deal with all his issues in two

days but I would have thought the off-shore

settlement would be good for a week for itself

and - - -

HIS HONOUR: That would be my fear.

MR GRIFFITH:  Yes. So that we submit that that should be

put on one side and, Your Honour, we do not mind

how long, other than perhaps through exhaustion,	but just on one side is enough; if it is next
after, well, we think, Your Honour, probably the
Court would have had enough after eight days on the
other issues and wish to take a break.

HIS HONOUR:	You think eight days for the other issues?
MR GRIFFITH:	Your Honour, if my learned friend, Mr Jackson, says three or four - - -
HIS HONOUR:	Four days for his case.
MR GRIFFITH:	- - - to be realistic, Your Honour, it might be that the Commonwealth can say everything it
wishes to say in a day, but then we are getting
fairly tight on an eight-day schedule.

Biljabu 14 12/4/94

Your Honour, our suggestion would be, although

it is perhaps premature to follow that through,

that the cases whilst being set down together

should be heard discretely - - -

HIS HONOUR: Successively.

MR GRIFFITH:  Yes, Your Honour. What we would contemplate

on the claim as against the Commonwealth, the order

should be the plaintiff, the Commonwealth and

interveners. Depending on whether there is an

intervener or not, of course, on behalf of Western
Australia, they would go before us; and in the

other actions, Your Honour, the orders there should

be the two plaintiffs, perhaps us next for

intervening in the interests of the Racial

Discrimination Act - I do not know what our

position is yet on that - and then the defendant on

that. Then we have the common issues which already

would have been sufficiently dealt with in the

primary hearing.

HIS HONOUR:  Yes, I would favour a hearing successively,

rather than a hearing together. That is the

practice that normally we would follow.	It gets
too complicated otherwise.

MR GRIFFITH:  I think it would be quicker, Your Honour, even

if there were some commonality. There is a short

problem out of the Parliamentary Privileges Act

applying to the extracts of Hansard that are relied

upon in the pleading. I mentioned that to my

learned friends and suggested to them that they

cannot do it under section 16(3) of the

Parliamentary Privileges Act, so that is something

that we will probably iron out as well,

Your Honour. It is just the case that you cannot

do it, so there is not much - - -

HIS HONOUR:	You have drawn their attention to it?
MR GRIFFITH:	I have drawn their attention to that so

that is - - -

HIS HONOUR:  It is a problem to others sitting at the bar

table.

MR GRIFFITH:  Yes. I say "something to be sorted out": we

would contemplate that this would be a matter, of

course, for Your Honour to order it, that there

would be orders for exchange of full written

submissions.

HIS HONOUR:	Yes.
MR GRIFFITH:	Your Honour already made a suggestion to get

us going on part B of the claim as against us and

Biljabu 15 12/4/94

that is satisfactory to us, but it does seem to us

that September is not very far away, and that it is

not quite enough to say, "Well, let's have two or

three or four weeks to see where we are on the

issues and the facts and then consider orders for

submissions." We would submit to Your Honour that

certainly so far as Western Australia is concerned

who has pleaded this matter, in effect, at its

leisure even after the issue of the writs, so we

received the statement of claim last Thursday, that

it should be appropriate for the plaintiff in that

matter, and also, we suggest, the plaintiffs in the other matters who pleaded the Racial Discrimination Act points to commence preparation of these written

submissions so that in effect, their time is

starting to run now. There is no reason why they

cannot be doing their argument if we are sorting

out these questions of form and fact.

What we would suggest, Your Honour, is that

they should be in the position to deliver, even if

it is not in complete form, an outline of full

submissions by, we would suggest, no later than

mid-June.

That would then give the responding parties a

similar period to have their full written

submissions. They, of course, can start work on

theirs as well and in that way we feel there should

be a timetable aiming for the full exchange of

written submissions at least a month before the

hearing. There are many issues in this case that,

looking at the list, Your Honour, they say there is

a rumour that one of your predecessors is still

receiving annuity as his fee for arguing just one

case, but in these matters there is more than just

one case, each one is a case on its own and we feel

it is appropriate for the - - -

HIS HONOUR:

You are offering that as the suggestion?

MR GRIFFITH: Yes, Your Honour, well of course for the

Solicitor-General I say he is not much good but he

is cheap because he does not get any fees, but it

is an idea.

We feel that because of the number of the issues and the fact that there is this factual information, particularly on the annexure A

material and in effect it, perhaps how one adds it

up, there is the equivalent of perhaps 10 ordinary

constitutional litigations here, that it is

appropriate for all parties, including the court,

to have all the papers for a month beforehand and

in that way, Your Honour, we would expect the

hearing to be the smoother, otherwise there may be

difficulties even about eight days.

Biljabu 16 12/4/94

HIS HONOUR:  I do not see any reason why the plaintiff

should not give consideration to beginning to

undertake the preparation of their written

submission with a view to my fixing, in the case of

the plaintiffs in the Western Australian case, a

date round about mid June as the date on which

their submissions should be filed and served, and

similarly with the other plaintiffs.

MR GRIFFITH:  Your Honour, but I think underneath that it is

clear that we can work in an amiable way to refine

these matters. Your Honour, I think our preference

is at the moment to have neither defence nor

demurrer because we feel that the pleadings have

been done with such thought to the moment that they

could be annexed to a question referred by Your

Honour in a way that would be the simplest form for the Court to have it, that we cannot see any

function in us seeking to plead when probably we

will be content, with perhaps some additions and

the odd deletion, to have the case go before the

Court as pleaded.

HIS HONOUR: That tends to suggest that I ought to reserve

questions or state questions for the considerations

of the Full Court rather that stating a case.

MR GRIFFITH: Well we feel, Your Honour, that probably what

will be done would be to annex documents; the

statement of claim and the other documents and what

Your Honour - - -

HIS HONOUR:  But I have an open mind about that at the

moment. It would be premature for me to express

preference for one method of doing it rather than

another at this stage.

MR GRIFFITH: Yes. Your Honours, it would be a bit unwieldy

perhaps to do it as case stated rather than just

picking up the documents - - -

HIS HONOUR:  I am not sure about that.

MR GRIFFITH: Well, Your Honour, perhaps we could take that

further.

HIS HONOUR:  Is that all you wish to say?

MR GRIFFITH: Yes, Your Honour.

HIS HONOUR:	Mr Castan I thought you manifested a desire to intervene at one stage while the Solicitor - - -
MR CASTAN:	Yes, I did want to mention a couple of matters.

Firstly on the point concerning the waters,

Your Honour. The point that is raised is not a

challenge to the entirety; it may have that result,

Biljabu 17 12/4/94

but it is a short point about the absence of any

provision for just terms in the legislation as

enacted by the Commonwealth in conferring power on,

in effect, delegates so to speak, without providing
for just terms to be imposed on those who would

exercise the power that otherwise was the

Commonwealth's power.

Having said that, one has virtually said what

the point is. It really is, as I say, Your Honour,

a very short point and does not involve any more

than that. It might involve some discussion of the

concept of just terms and how legislation is framed

but it is very much a matter that emerges from very

short legislation which simply does not impose that

requirement on those who are the beneficiaries of

the conferral of power.

It does not dispose of the matter, having said

that, but that is the issue and I say that is a

short issue and therefore, we do seek to have it

included in the issues.

The other matter I wanted to raise though,

Your Honour, was that it does occur to me that we

have not yet had the opportunity to really consider

this historical material that has been raised by

the State of Western Australia - - -

HIS HONOUR:  You mean the matter in annexure A to the

Western Australia statement of claim?

MR CASTAN:  Yes, and what emerges from that is this

possibility. I foreshadow this; it may not come to

anything, but I mention it now so that it is not

said that that was, so to speak, kept under wraps.

There is an argument, it was touched on in the

demurrer in Mabo (No 1), but not disposed of which	relates to the possible limitations of sovereignty	in a State arising from original imperial
instruments in relation to interference with what
were called reserved interests or protected
interests. Professor Henry Reynolds has developed
the argument that there is a limitation on sovereignty.

That, in turn, depends on historical

documents, very much, and instruments, around the

time of the early days of the colonies, including

Western Australia. Now, I simply mention that

there will have to be consideration given, on

behalf of the plaintiffs whom I represent, as to

whether or not - given that that issue is raised -

that what is being said is that Western Australia

has, so to speak, extinguished native title or it

just does not exist in Western Australia by reason

Biljabu 18 12/4/94

of actions taken in those original colonial - or

arising from colonial instruments or other

instruments - that one instant reposte to that is

to say, "Well, if you did that it was beyond the
power of a Governor in that capacity or at that

stage of colonial development."

I do not say we will be pleading that or seek

to raise that. We have not raised it as a positive

argument against the usage Act, but it lurks there,

and we will have to consider whether or not -

HIS HONOUR:  It is lurking in your mind at the moment, and

it is possible that it may fructify into a

conviction that will be reflected in some amendment

to a pleading.

MR CASTAN:  Yes, precisely, Your Honour. I simply mention

that because I do not want to be precluded from

raising it at some later time, and it be said,

"Well, you had your chance to mention those

issues", so it will go off.

HIS HONOUR:  Yes. Thank you, Mr Castan.

MR CASTAN: Perhaps the only other think I should say is

that the timetable of June seems sensible for an

issue.

HIS HONOUR:  Mr Jackson, do you want to say anything in

response to what has occurred since you first

addressed?

MR JACKSON:  No, Your Honour, except but for one thing, and

that is that mid-June was mentioned, Your Honour:

we do not have a great deal of difficulty with that

except, I suspect, it might be late-June rather

than mid-June.

HIS HONOUR:  No. I suppose it depends on what I think in

approximately mid-May.

MR JACKSON: Indeed, Your Honour. That is what I was going

to say, really, it is perhaps a little bit

premature, and - - -

HIS HONOUR: But, I think at this stage you should bend your

efforts towards the probability of mid-June.

MR JACKSON:	Yes, Your Honour, I accept that.
HIS HONOUR:	I think all that needs to be done now is for me

to stand the matters over to a date to be fixed,

and the Registry will keep in touch with counsel so

that, as far as possible, a suitable day is fixed

for all parties.

Biljabu 19 12/4/94

MR JACKSON:  Your Honour, I am reminded to ask Your Honour

to certify for counsel?

HIS HONOUR:  Is that not premature? The applications are

not disposed of, Mr Jackson.

MR JACKSON:	Your Honour, I am sure that is right.
HIS HONOUR:	The matter will stand adjourned to a date to be

fixed, and the Court will now adjourn.

AT 9.58 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Biljabu 20 12/4/94