Walker v New South Wales

[1994] HCA 64

HIGH COURT OF AUSTRALIA

WALKER v THE STATE OF NEW SOUTH WALES

(1994) 182 CLR 45

16 December 1994

(1994) 76 A Crim R 173 Constitutional Law—Aboriginals—Criminal law—Whether Aboriginal customary law survived colonization—Application of State stat utes to Aboriginal people.

Headnote

(1) The Parliament of New South Wales has legislative competence to regulate or affect the rights of Aboriginal people.


(2) The application of laws made by that Parliament to Aboriginal people is not subject to their acceptance, adoption, request or co nsent.


(3) Customary Aboriginal criminal law is not recognized by the common law in New South Wales, and there is no rule of construction that precludes the application of criminal statutes to people of Aboriginal descent.


(4) Even if customary criminal law of the Aboriginal people survived British settlement of New South Wales, it was extinguished by the passing of criminal statutes of general application.


So held.
Coe v. The Commonwealth (1979), 53 ALJR 403; 24 ALR 118, and Coe v. The Commonwealth (No. 2) (1993), 68 ALJR 110; 118 ALR 193, applied.

Hearing

1994, SYDNEY, August 16, December 16
#DATE 16:12:1994


SUMMONS

The State of New South Wales, as defendant to an action brought in the original jurisdiction of the High Court by Denis Walker, applied by summons under O.26, r.18 of the High Court Rules 1952 (Cth) for an order that the action be dismissed. The summons was heard by Mason CJ in chambers. The relevant parts of the statement of claim and the grounds of the summons are summarized in the judgment of Mason CJ


L. S. Katz, for the applicant (defendant). (MASON CJ If this application were to succeed, would not the appropriate order be that the statement of claim be struck out and, unless there was some conceivable alternative basis for relief, in which case leave to rep lead would be granted, then to dismiss the action?) Yes. The plaintiff has been charged with six offences under the Crimes Act 1900 (N.S.W.). It is intended that he be tried upon charges under s.33A (malicious discharge of loaded arms with intent to do grievous bo dily harm or to resist arrest) and s.58 (assault with intent to commit a felony; assault etc. an officer in the execution of his dut y). The statement of claim concerns only the power of the Parliament of New South Wales to enact those provisions. The broad claims about absence of legislative competence were rejected in the two Coe cases (1). There was no claim in Mabo v. Queensland (No. 2) (2) about the legislative competence of the Queensland Parliament. The judgment that there was legislative competence to extinguish common law rights was inconsistent with the present claims. (He also referred to R. v. Murrell (3); Reg. v. Peter (4); Reg. v. Walker (5))


G.C. Corr, for the respondent (plaintiff). This is not a claim of sovereignty. The only question concerns the law that applies to a person who is purported to be charged with offences against the Crimes Act (N.S.W.). In Mabo v. Queensland (No. 2) (6), Brennan J. said that municipal courts must determine the body of law that is in force in a new territory annexed by exercise of the prerogative. The early cases cited by the defendant were decided on the assumption that terra nullius applied and that no Aboriginal law existed or that there was no body of law applicable to the Aboriginal people. The question that arises is whether Aboriginal criminal law is recognized by the common law and continues in the way that Aboriginal land tenure laws were held to continue in Mabo v. Queensland (No. 2). There is also a conflict of laws question because the plaintiff is a Nunukel person and the alleged offences occurred in the country of the Bandjalung. This Court has never determined finally whether Aboriginal criminal law is still applicable. If it is determined that it is applicable as a matter of law, it may be appropriate to remit the case for another court to determine whether it applies in this case as a matter of fact. The criminal law that was imported to New South Wales on colonization was only the law that affected the colonists

(1) Coe v. The Commonwealth (1978), 52 ALJR 334; 18 ALR 592; (1979) 53 ALJR 403, esp. at p. 408; 24 ALR 118, at p. 129 ; Coe v. The Commonwealth (No. 2) (1993), 68 ALJR 110, esp. at p. 115; 118 ALR 193, at p. 200.

(2) (1992) 175 CLR 1.

(3) (1836) Legge 72.

(4) The Argus, 29 June 1860.

(5) (1989) 2 Qd R 79; SLR (1989) 7 Leg Rep C.1.

(6) (1992) 175 CLR, at p. 32.


Any amendment to that law must only be applicable to those colonists. (MASON CJ Blackstone was concerned with the reception of laws in a colonized country not with the operation of laws made with legislative authority.) It should be presumed that legislation is not intended to override Aboriginal laws unless it is specifically stated to do so.


L. S. Katz, in reply. The pleaded case denies the existence of legislative power, not the application of laws. In Mabo v. Queensland (No. 2) (8), Brennan J. accepted the application of the common law to the Aboriginal natives of New South Wales. They became Britis h subjects entitled to the rights and privileges and subject to the liabilities that the common law and applicable statutes provided (9). There is no basis for inferring that any part of any Aboriginal custom or law relating to acts of personal violence was incorp orated into the common law. The nineteenth century cases rejected a submission that a separate regime applied to acts between or amo ngst Aboriginals. The alleged victims in the present case were not Aboriginals.

(MASON CJ Mr. Corr, the argument you have presented diverges from the case pleaded. If the statement of claim were to be struck ou t, would you wish to replead to give effect to the argument presented?)


G.C. Corr. Yes.

(MASON CJ If so, the issue that has been developed in argument would arise in relation to the question of whether leave should be granted to replead.)


Yes.

(7) Blackstone's Commentaries, 5th ed. (1773), Bk I, ch 4, p. 107.

(8) (1992) 175 CLR, at p. 37 and fn.93.

(9) cf. ibid., at pp. 79-80, per Deane and Gaudron JJ.
Cur. adv. vult.

Counsel for the Plaintiff/Respondent: G.C. Corr

Solicitors for the Plaintiff/Respondent: Brock Partners

Counsel for the Defendant/Applicant: L.S. Katz

Solicitors for the Defendant/Applicant: I.V. Knight, Crown
Solicitor for New South Wales

Orders

Statemenmt of claim filed 6 April 1994 struck out.

Action dismissed.

Decision

MASON CJ This is an application by summons taken out by the
defendant that the action be dismissed, or, alternatively, stayed
under O. 26 r. 18 of the High Court Rules. The defendant's case is
that the statement of claim does not plead a reasonable cause of
action. By that statement of claim, the plaintiff accepts that he has
been charged with an offence against the laws of New South Wales which
allegedly occurred at Nimbin, a place said to be within the area of
the Bandjalung "nation" of Aboriginal people. The plaintiff himself
is said to be a member of the Noonuccal "nation" of Aboriginal people.
The statement of claim alleges that the common law is only valid in
its application to Aboriginal people to the extent to which it has
been accepted by them. Concerning statute law, the statement of claim
then alleges:

"10. The Parliaments of the Commonwealth of Australia and of the
States lack the power to legislate in a manner affecting aboriginal
people without the request and consent of the aboriginal people.

11. Further and in the alternative, if the Parliament of the
Commonwealth or of a State legislates in a manner affecting aboriginal
people the law in so far as it relates to aboriginal people is of no
effect until it is adopted by the aboriginal people whom, or whose
land, it purports to effect (sic)."



2. Couched as they are in terms of the legislative incapacity of
the Commonwealth and State Parliaments, those pleadings are untenable.
The legislature of New South Wales has power to make laws for the
peace, welfare and good government of New South Wales in all cases
whatsoever (1 Constitution Act 1902 (N.S.W.)). The proposition that
those laws could not apply to particular inhabitants or particular
conduct occurring within the State must be rejected. As Gibbs J (with
whom Aickin J agreed) said in Coe v. The Commonwealth of Australia (2
(1979) 53 ALJR 403 at 408; 24 ALR 118 at 129):
"The aboriginal people are subject to the laws of the Commonwealth and
of the States or Territories in which they respectively reside."

In that case all the justices on appeal upheld the view which I had
taken at first instance (3 (1978) 52 ALJR 334; 18 ALR 592) rejecting
the plaintiff's claim that sovereignty resided in the Aboriginal
people. There is nothing in the recent decision in Mabo v. Queensland
(No.2) (4 (1992) 175 CLR 1) to support the notion that the Parliaments
of the Commonwealth and New South Wales lack legislative competence to
regulate or affect the rights of Aboriginal people, or the notion that
the application of Commonwealth or State laws to Aboriginal people is
in any way subject to their acceptance, adoption, request or consent.
Such notions amount to the contention that a new source of sovereignty
resides in the Aboriginal people. Indeed, Mabo (No.2) rejected that
suggestion. In Coe v. The Commonwealth, I said that (5 (1993) 68 ALJR
110 at 115; 118 ALR 193 at 200):
"Mabo (No.2) is entirely at odds with the notion that sovereignty
adverse to the Crown resides in the Aboriginal people of Australia.
The decision is equally at odds with the notion that there resides in
the Aboriginal people a limited kind of sovereignty embraced in the
notion that they are a 'domestic dependent nation' entitled to
self-government and full rights (save the right of alienation) or that
as a free and independent people they are entitled to any rights and
interests other than those created or recognised by the laws of the
Commonwealth, the State of New South Wales and the common law."



3. In so far as it is based on the proposition that the
legislatures lacked power to legislate over Aboriginal peoples, the
statement of claim discloses no reasonable cause of action.



4. However, counsel for the plaintiff in his oral submissions put
the matter somewhat differently. He submitted that the question which
arose was whether customary Aboriginal criminal law is something which
has been recognized by the common law and which continues to this day,
in the same way that Mabo (No.2) decided that the customary law of the
Meriam people relating to land tenure continues to exist. Counsel
relied on a passage in Blackstone's Commentaries on the introduction
of English law into a country that had been outside the King's
dominions (6 Commentaries, 5th ed. (1773) Bk I, ch.4 at 107):
"Such colonists carry with them only so much of the English law, as is
applicable to their own situation and the condition of an infant
colony".

That passage was approved by the Privy Council in Cooper v. Stuart (7
(1889) 14 App Cas 286) and cited by Brennan J in Mabo (No.2) (8 (1992) 175 CLR at 34). It
was submitted that statutes must be construed so as to accord with what
was said to be the common law principle set out by Blackstone, with the
consequence that the criminal statutes of New South Wales did not apply
to people of Aboriginal descent.



5. That proposition must be rejected. It is a basic principle that
all people should stand equal before the law. A construction which
results in different criminal sanctions applying to different persons
for the same conduct offends that basic principle (9 See Racial
Discrimination Act 1975 (Cth), s.10). The general rule is that an
enactment applies to all persons and matters within the territory to
which it extends, but not to any other persons and matters (10
Bennion, Statutory Interpretation, 2nd ed. (1992) at 255). The rule
extends not only to all persons ordinarily resident within the country,
but also to foreigners temporarily visiting (11 Re Sawers; ex parte
Blain (1879) 12 Ch D 522 at 526; Gold Star Publications Ltd. v.
Director of Public Prosecutions (1981) 1 WLR 732 at 734). And just as
all persons in the country enjoy the benefits of domestic laws from
which they are not expressly excluded, so also must they accept the
burdens those laws impose (12 Bennion, op. cit. at 260). The
presumption applies with added force in the case of the criminal law,
which is inherently universal in its operation, and whose aims would
otherwise be frustrated. So, in Quan Yick v. Hinds, Griffith CJ when
dealing with the more general question whether the entirety of Imperial
law was in force in Australia stated (13 (1905) 2 CLR 345 at 359):

"It has never been doubted that the general provisions of the criminal
law were introduced by the (Australian Courts Act 1828)" (14 9 Geo. IV c.83.)




6. Even if it be assumed that the customary criminal law of
Aboriginal people survived British settlement, it was extinguished by
the passage of criminal statutes of general application. In Mabo
(No.2), the Court held that there was no inconsistency between native
title being held by people of Aboriginal descent and the underlying
radical title being vested in the Crown. There is no analogy with the
criminal law. English criminal law did not, and Australian criminal
law does not, accommodate an alternative body of law operating
alongside it. There is nothing in Mabo (No.2) to provide any support
at all for the proposition that criminal laws of general application
do not apply to Aboriginal people.



7. The summons taken out by the defendant only seeks an order that
the action be dismissed or, alternatively, stayed. However, in
proceedings under O. 26 r. 18 , it is appropriate for a pleading that
does not disclose a reasonable cause of action to be struck out, and
counsel for the defendant accepted as much in argument.



8. Accordingly, the statement of claim must be struck out and the
action must be dismissed.