Thorpe v Cwealth of Aus

The case of *Thorpe v Commonwealth of Australia* concerned a challenge brought by Mr. Thorpe against the validity of the *Native Title Act 1993* (Cth) (the Act). Mr. Thorpe, a member of the Gunggari people, contended that the Act, by providing for the extinguishment of native title in certain circumstances, was inconsistent with the *Racial Discrimination Act 1975* (Cth) and therefore invalid to the extent of that inconsistency, pursuant to s 109 of the *Constitution*. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the provisions of the *Native Title Act 1993* (Cth) that permitted the extinguishment of native title rights and interests were inconsistent with the prohibition against racial discrimination contained in the *Racial Discrimination Act 1975* (Cth). Specifically, the Court had to determine if the differential treatment of native title holders compared to other landowners, by allowing for the extinguishment of their title, constituted unlawful racial discrimination under the *Racial Discrimination Act*.

Kirby J, in his reasons, considered the nature of native title and its recognition under Australian law. His Honour analysed the operation of s 109 of the *Constitution*, which mandates that Commonwealth laws are invalid to the extent of any inconsistency with valid State or Territory laws, and by extension, Commonwealth laws are invalid to the extent of any inconsistency with other Commonwealth laws. Kirby J concluded that the *Native Title Act* did not, in its operation, discriminate on the grounds of race in a manner prohibited by the *Racial Discrimination Act*. His Honour found that the extinguishment provisions were a legislative response to the complex legal and practical issues arising from the Mabo decision and were not enacted with a racially discriminatory purpose or effect. The Court ultimately found no inconsistency between the two Commonwealth Acts.