Walker v South Australia (No 2)

Case [2013] FCA 700

FEDERAL COURT OF AUSTRALIA

Walker v State of South Australia (No 2) [2013] FCA 700

Citation: Walker v State of South Australia (No 2) [2013] FCA 700
Parties: LANCELOT GILBERT WALKER v STATE OF SOUTH AUSTRALIA & ORS
File number: SAD 162 of 2010
Judge: MANSFIELD J
Date of judgment: 19 July 2013
Catchwords:

CONSTITUTIONAL LAW – whether the Commonwealth of Australia’s assertion of sovereignty over the asserted traditional lands of the applicant’s native title claim group is valid and effective – whether the proviso concerning Aboriginal people in the Letters Patent establishing the Province of South Australia limits the effect of the Commonwealth’s assertion of sovereignty

CONSTITUTIONAL LAW – State of South Australia – foundation and status

JURISDICTION – jurisdiction of Federal Court under Native Title Act 1993 (Cth) extends to all land within Commonwealth

Legislation:

Native Title Act 1993 (Cth) s 61
Judiciary Act 1903 (Cth) s 78B
Federal Court of Australia Act 1976 (Cth)
Pacific Islanders Protection Act 1875 (Imp) 38 & 39 Vict, c 51, ss 6, 7
Commonwealth Constitution ss 106, 107, 127
An Act to enable His Majesty to establish a Court of Criminal Indicature on the Eastern Coast of New South Wales, and Parts adjacent (Imp) 27 Geo III, c 2
South Australia Act 1834 (Imp) 4 & 5 Wm IV, c 95, ss 1, 6
An Act to amend an act of the Fourth and Fifth Years of His late Majesty, empowering His Majesty to erect South Australia into a British Province or Provinces (Imp) 1 & 2 Vict, c 60, s 1
South Australia Act 1842 (Imp) 5 & 6 Vict, c 61, ss 1, 5
Australian Constitutions Act 1850 (Imp) 13 & 14 Vict, c 59, s 7
South Australian Constitution Act 1855-6 (Imp) s 1
Colonial Laws Validity Act 1865 (Imp) (28 & 29 Vict, c 63, s 7
Australian Constitutions Act 1862 (Imp) 25 & 26 Vict, c 11
Colonial Acts Confirmation Act 1863 (Imp) 26 & 27 Vict, c 84
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12
Australia Act 1986 (UK) s 2
Treaty of Waitangi Act 1975 (NZ) sch 1
Pacific Islanders Protection Act 1872 (Imp) 35 & 36 Vict, c 19, s 3
Cases cited:

Mabo v Queensland (No 2) (1992) 175 CLR 1 applied
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 applied
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 cited
R v Burah (1878) 3 App Cas 889 at 904 cited
Hodge v The Queen (1883) 9 App Cas 117 cited
Powell v Apollo Candle Company (1885) 10 App Cas 282 cited
Coe v Commonwealth (1979) 53 ALJR 403 applied
Coe v Commonwealth (1993) 68 ALJR 110 applied
Walker v New South Wales (1994) 182 CLR 45 cited
McDonald v Director of Public Prosecutions (2010) 26 VR 242 cited
Jones v Public Trustee (Qld) (2004) 209 ALR 106 cited
R v Buzzacott (2004) 154 ACTR 37 cited
Williams v Attorney-General…

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AGLC
Walker v South Australia (No 2) [2013] FCA 700
Case
[2013] FCA 700
Decision Date

CaseChat Overview and Summary

In Walker v South Australia (No 2), the plaintiff, Mr Walker, challenged the jurisdiction of the court to hear an interlocutory application from the State of South Australia, claiming that the court was biased against him and lacked the authority to do so. The court was required to determine whether there was any actual or perceived bias and whether it had the jurisdiction to hear the application. The court concluded that there was no basis for the plaintiff's claims of bias and rejected the assertion that the Crown had not acquired sovereignty over the Aboriginal people resident in South Australia or their country. The court found that the South Australia Act 1834 established the Province of South Australia as a separate province, and the laws made in New South Wales no longer applied there.

The court examined the history of the establishment of the colony of South Australia and the legal principles underlying the Crown's acquisition of sovereignty over the land and its inhabitants. The court found that the Crown's claim to sovereignty over South Australia was valid and that the South Australia Act 1834 did not deprive the Crown of its sovereignty over the Aboriginal people or their country. The court concluded that the plaintiff's challenge to the jurisdiction of the court failed and that the court would proceed to hear the interlocutory application of the State. The court accepted the detailed written submissions of the Solicitor-General for South Australia, which provided the basis for its reasoning.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, there is no foundation for actual or perceived bias on the part of this Court in the way it proposes to deal with the application, either in procedural steps or in the application of the relevant law to the order or orders which may ultimately be made.CONCLUSION For those reasons, the challenge to the jurisdiction of the Court fails. The Court will proceed to hear the interlocutory application of the State.

Ratio Decidendi

Legal Principle Established

I record that the detailed written submissions of the Solicitor-General for South Australia, which I accept, provided the bases for the following reasons.CONSIDERATIONThe establishment of the colony of South Australia Prior to 1834, the land that subsequently became South Australia had been claimed in right of the Crown of the United Kingdom as part of the colony of New South Wales. In 1770, all eastern Australia comprising what is now New South Wales, Tasmania, Victoria, Queensland, South Australia and the Northern Territory (to longitude 135 degrees East) was claimed for the Crown by Lt James Cook RN, who named the territory New South Wales: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 77-78 per Deane and Gaudron JJ (Mabo (No 2)). In 1788, New South Wales was established as a penal colony: An Act to enable his Majesty to establish a Court of Criminal Indicature on the Eastern Coast of New South Wales, and Parts adjacent (Imp) 27 Geo III, c 2. On 26 January 1788, Governor Phillip founded the colony of New South Wales, which was later extended to the 129th meridian, which now forms the border of South Australia and the Northern Territory with Western Australia. The High Court recognised in Mabo (No 2) that “the whole of the territory designated in Phillip’s Commissions was, by 7 February 1788, validly established as a ‘settled British Colony’”: at 78-79 per Deane and Gaudron JJ, and that upon the establishment of the Colony, sovereignty and the radical title to all the land vested in the Crown: Mabo at 53 per Brennan J, with whom Mason CJ and McHugh J agreed, and 81 per Deane and Gaudron JJ. Consequently, I must reject Mr Walker’s contention that the Crown as at 1834 did not acquire sovereignty over the Aboriginal people resident in South Australia or their country. The Province of South Australia was established pursuant to the South Australia Act 1834 (Imp) 4 & 5 Wm IV, c 95 (1834 SA Act). Section 1 empowered the King to establish a separate province or provinces within the geographical area of what is now South Australia. That section relevantly provided:… it shall and may be lawful for his Majesty … with the advice of His Privy Council, to establish one or more provinces and to fix the respective boundaries of such provinces; and that all and every person who shall at any time hereafter inhabit or reside within His Majesty’s said province or provinces shall be free, and shall not be subject to or bound by any laws, orders, Statutes, or Constitutions which have been heretofore made, or which hereafter shall be made, ordered, or enacted by, for, or as the laws, orders, Statutes, or Constitutions of any other part of Australia, but shall be subject to and bound to obey such laws, orders, Statutes, and Constitutions as shall from time to time, in the manner hereinafter directed, be made, ordered, and enacted for the Government of His Majesty’s province or provinces of South Australia. Part of the effect of s 1 was to excise South Australia as an entirely separate Province, terminating the operation of laws made in New South Wales.