Walker v Speechley

[1998] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S133 of 1997

B e t w e e n -

DENIS BRUCE WALKER

Applicant

and

IAN JOHN SPEECHLEY

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

Application for removal pursuant to section 40(1) of the Judiciary Act 1903

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 17 AUGUST 1998, AT 10.15 AM

Copyright in the High Court of Australia

MR D.B. WALKER:   I am Denis Bruce Walker, Bejam, Kunminarra, Jarlow, Nanaka Kabool, of Moongalba, via Goompie, Minjerribah, Quandamooka.  I am the son of Oodgeroo of the tribe Noonuccal, custodian of the land Minjerribah.  I appear on my own behalf.

MR L.S. KATZ, SC:   If your Honour pleases, I appear for the second respondent.  (instructed by the Crown Solicitor for New South Wales)

HER HONOUR:   Yes, Mr Walker.

MR WALKER:   Your Honour, I understand that a folder has been lodged with the High Court with the summary of argument.

HER HONOUR:   Yes, I have that.

MR WALKER:   And I have had a person go through that and make some points in regards to that summary of argument, by a Janine Purdie, that I reckon would help in your deliberations here.  If I could hand that up.

HER HONOUR:   Thank you.  Has the Solicitor been given a copy of that?

MR KATZ:   I have not seen it.

HER HONOUR:   Is there copy for the Solicitor?

MR WALKER:   Sorry, your Honour.

HER HONOUR:   Perhaps you can show that to the Solicitor while we are waiting.  There is a copy coming, is there?

MR WALKER:   Yes, your Honour.  What I have also done is prepared an overall statement on the actual total contents of the file and what I have done is go through that and make the points that I would like to refer to in my submissions to you in regards to the matter.  I have copies of that that I can hand up to your Honour.

HER HONOUR:   Thank you.

MR WALKER:   In referring to the file that has been lodged in the High Court, and I understand you have a copy of it also ‑ ‑ ‑

MR KATZ:   Yes, thank you.

MR WALKER:    ‑ ‑ ‑what I would first like to refer you to is my letter to the Grafton Magistrate.  Essentially that letter describes in a nutshell what my submissions are and the relief I seek in terms of ‑ ‑ ‑

HER HONOUR:   Do you say that what you put there raises a question under the Constitution?

MR WALKER:   Yes.  I am saying the very fact that legally this country was terra nullius for 210 years must have constitutional questions in terms of Cook’s instructions to get consent and he did not.

HER HONOUR: The Constitution that I have to find a question under is the federal Constitution. My power in this matter is strictly confined by section 40 of the Judiciary Act and I presume you are asking me to remove it because of a constitutional question.  Is that correct?

MR WALKER:   Yes.

HER HONOUR:   Now, what is that constitutional question in terms of the Australian Constitution which you say was raised by your submission to the Magistrate?

MR WALKER:   Here on the summary of argument, point No 2, under the ‑ ‑ ‑

HER HONOUR:   And that is the one from Janine Purdie?  No.

MR WALKER:   This is the actual summary of argument that was on the folder when it was all lodged in the High Court on 25 May 1998.

HER HONOUR:   Yes, I have that.  Can you tell me how that question arises?  As I understand it, that is not a question that arises.  I mean, I just do not see how it arises.  You will have to explain to me how you say it arises.

MR WALKER:   Your Honour, I have some friends of Court that have been assisting me in this matter since I have taken my initial actions and assisted me in getting it into the High Court and I am not exactly up on the whole Constitution thing. I do know the other four areas of law I am talking about and I ask if Gerry could speak ‑ ‑ ‑

HER HONOUR: Mr Walker, you have to persuade me that the matter comes within the terms of section 40 of the Judiciary Act.

MR WALKER:   Could I ask Mr Ygosse to speak?

HER HONOUR:   Who is that?

MR WALKER:   Mr Ygosse, Gerry Ygosse.

HER HONOUR:   Who is he?

MR WALKER:   He has been assisting me with this to put it together.

HER HONOUR:   You said you appeared for yourself, Mr Walker.

MR WALKER:   Yes.  I am asking if he could speak as a friend of Court on this matter.

HER HONOUR:   No, I do not think so.  We do not have any provision for friends of Court in this Court.  I will see if the Solicitor objects.  Do you object, Mr Solicitor?

MR KATZ:   No, I do not, your Honour.

HER HONOUR:   The Solicitor not having objected, I will allow him to speak briefly, but we do not have any provision for that in this Court, Mr Walker.  So could you be very brief.  Are you a lawyer?

MR G.L. YGOSSE:   No, your Honour.

HER HONOUR:   Can you tell me how you say this question - what this question is and how you say it arises.

MR YGOSSE:   I am a fourth year law student. I am doing a degree in Bachelor of Indigenous Studies, Bachelor of Laws, your Honour. We would put to the Court that section 118, giving full faith and credit to the laws of the Commonwealth ‑ ‑ ‑

HER HONOUR:   It does not say anything about giving full faith and credit to the laws of the Commonwealth.

MR YGOSSE: Section 118:

Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.

HER HONOUR:   Yes.  What is the question that arises?

MR YGOSSE:   What we would argue, your Honour, is that since Mabo’s recognition of Aboriginal law, that Aboriginal law need to be given full faith and credit ‑ ‑ ‑

HER HONOUR: You need a constitutional amendment for that because section 118 does not speak of Aboriginal laws; it speaks of the “public Acts”, that is the statute law, “and records, and the judicial proceedings of every State”.

MR YGOSSE:   The High Court, in Mabo, your Honour, determined that the common law recognised Aboriginal law.

HER HONOUR:   I am not too sure about that, but go on.  I think it said that it recognised native title.

MR YGOSSE:   Which is a product of Aboriginal law. 

HER HONOUR:   What is the question that arises in this case and how does it arise precisely?

MR YGOSSE:   We would argue, your Honour ‑ ‑ ‑

HER HONOUR:   Tell me what the question is and tell me how it arises, not what you would argue.

MR YGOSSE:   That the appellant in this case is subject to Aboriginal law and that the Magistrate in determining the appellant’s case has to take into effect Aboriginal law.

HER HONOUR: Tell me what is the question under the Constitution. You say that is the question that arises under the Constitution?

MR YGOSSE:   In effect, under the Constitution the question is, “Does the recognition of Aboriginal law by the common law place on the States, as throughout the Commonwealth, an obligation to give it full faith and credit?”

HER HONOUR:   You say that is the question that arises under section 118? I can tell you now that in my view there is no such question. Shall we conclude the proceedings? What do you say, Mr Walker? That is not a question that arises under the Constitution. The Constitution in section 118 refers to the “public Acts”, which is the statute law, “and records, and the judicial proceeding”. It does not refer to State common law, much less to Aboriginal law.

MR WALKER:   What I am arguing in this matter is that our law fits very precisely into the definition of common law, being the spoken and unwritten law of particular parts of ‑ ‑ ‑

HER HONOUR: It does not refer to the common law. The point I am trying to impress upon you is that section 118 simply makes no mention of the common law.

MR WALKER:   No.  But what I am submitting, in order to give full faith and credit, Aboriginal law needs to be recognised as part of the common law and, in doing so, fulfilling the law properly.  It is not being properly fulfilled at the moment.

HER HONOUR:   Do you adopt what has been said by your assistant?

MR WALKER:   Essentially, yes, that in order to give full faith and credit ‑ ‑ ‑

HER HONOUR: Then I will give you half an hour in which to elaborate it, but that is all. The Court is not here to hear what ought to be, it is here to determine whether there is a question under the Constitution and, if so, whether it ought to be removed into this Court. At the moment, nothing that has been said by your assistant has identified a question under the Constitution. I will, however, give you half an hour further.

MR WALKER:   Well, if you do not see any question under the Constitution, then I have submitted my documents up to you. If you throw it out, you throw it out.

HER HONOUR:   Thank you, Mr Walker.

MR WALKER:   Could I ask for my friend to try to explain how this constitutional ‑ ‑ ‑

HER HONOUR:   This is another friend, is it?

MR WALKER:   Yes.

HER HONOUR:   Do you have any objection, Mr Solicitor?

MR KATZ:   No, your Honour.

MR L. LINDON:   Your Honour, I am a barrister in Melbourne.  I work particularly on Aboriginal cases and Mr Walker has asked me ‑ ‑ ‑

HER HONOUR:   What is your name?

MR LINDON:   Lindon.  Mr Walker has asked me to come along this morning in case he got into trouble.  I hear what your Honour said.  There may be no way of phrasing the question but, as I understand it, it is this:  Queensland law recognises certain aspects of Aboriginal law, whether it is native title or however it is so described, following Mabo.  The full faith and credit that is to be given to Queensland law in New South Wales law ‑ ‑ ‑

HER HONOUR:   In respect of events that occurred in New South Wales?

MR LINDON:   Yes, right. That is a factual nexus. But if I just phrase the question for you. The legal question is this: is full faith and credit to be given to the laws of Queensland, including its recognition of Aboriginal common law and certain obligations imposed thereon, under section 118, in relation to a New South Wales Act?

HER HONOUR:   Which is the Queensland law?

MR LINDON:   The Queensland law is the common law, I suppose - that is the problem that you have identified - which recognises Aboriginal law. Your Honour has said section 118 does not address the question of common law, only public records, statute law and public Acts and records. But, you see, your Honour, it does saw “the laws”, it does not say the statute law. It says:

Full faith and credit shall be given.....to the laws.....of every State.

HER HONOUR:   Now, what is the Queensland law?

MR LINDON:   The law of Queensland, in this regard, is that Queensland law, certainly since Mabo and Wik and the Western Australian Case, recognises certain aspects of Aboriginal law.  Now, whether it is called native entitlement does not really matter.  That is identified.  That is clearly from the common law since ‑ ‑ ‑

HER HONOUR:   What does it recognise here that you want full faith and credit given to?

MR LINDON:   What it recognises here is that the Elders in Council of Nunukul, which is Stradbroke Island, have power to make legal determinations in relation to Mr Walker, as a Nunukul person.  Now so much of that is recognised by the common law and has been since 3 June 1992.

HER HONOUR:   Is there a statute?  Who says it is recognised?

MR LINDON:   The words of this Court in both the Mabo(No 2) (1992) 175 CLR 1 judgment, the judgment in Western Australiav Commonwealth (1995) 183 CLR 373 and the judgment in the Wik Case (1996) 187 CLR 1. I would put to your Honour that the real nub of the question before the Court today is the question of whether Chief Justice Mason’s comments in Walker v New South Wales (1994) 69 ALJR 111 - his dismissal of Walker in 1994, which is two years after Mabo, can lie with some of your Honour’s comments and other Judges in relation to the personal rights in both civil and criminal matters that Aborigines continue to have.

HER HONOUR:   All right.  Now, what is the law that you ask New South Wales to recognise, that Mr Walker is subject to the Nunukul law.  How does that impinge on anything?

MR LINDON:   It is set out in the documents quite clearly.

HER HONOUR: I want to understand it in terms of Australian laws and the Constitution.

MR LINDON:   I will explain it to you.  If your Honour is with me so far in accepting, theoretically, the Queensland law includes the recognition of certain aspects of Aboriginal laws, certainly in regards to the identification of native title and the extinguishment thereof, it recognises Aboriginal law continuing.  Now, the question that was raised by both your Honour and Justice Deane in Mabo was whether certain personal rights continued at both civil and criminal areas.  Now, Justice Mason said in Walker 1994 that the general criminal law has extinguished any Aboriginal criminal law.  In effect that is what he said.  Now, your Honour in the Western Australian decision, the joint decision which included yourself, Justice Deane and Chief Justice Mason, made certain other comments about the recognition of Aboriginal law and the fact that it had not been extinguished.  In that case it was the Western Australian legislation and the Court went through the whole history of Western Australia in relation to that.  And, finally, in the Wik case, once again this notion of coexistent jurisdiction came out. 

So that it is quite clear, in our submission, that there is some recognition of Aboriginal criminal law.  Now, the question, really, I think Mr Walker ‑ ‑ ‑

HER HONOUR:   What do you want us to do, punish Mr Walker under Nunukul law as well as under New South Wales law?

MR LINDON:   That is what is set out in the application document, your Honour.

HER HONOUR:   That is where your argument is going, is it?

MR LINDON:   That is right.  I will let Mr Walker speak now, having joined the ‑ ‑ ‑

MR WALKER:   If you look at my letter to the Magistrate on the second page, you will see the second point I have made there, point 2, at the top of the page. 

2.  You adjourn the matter so a joint sitting of both Your Worship and the Bundjalung Elders-in-Council can fulfil the law and have the matter settled.

That is essentially the argument, that in order for the courts to have proper legal jurisdiction ‑ ‑ ‑

HER HONOUR:   Now, how does that come into - I suspect you and your friends are trifling with me.  

MR WALKER:   No, your Honour, this is a very serious matters as far as ‑ ‑ ‑

HER HONOUR:   The Bundjalung Elders ‑ ‑ ‑

MR WALKER:   In Council, yes.

HER HONOUR:    ‑ ‑ ‑are New South Wales people?

MR WALKER:   Yes.

HER HONOUR:   What has that got to do with Queensland law and its recognition?

MR WALKER:   In terms of matters presenting there are resolutions both in terms of the Minjerribah Morgumpun Elders, which are my mob, the Nunukul mob, and the Bundjalung Elders, and those resolutions show very clearly that there are legal determinations that do go on in our communities by way of the Elders in Council and in terms of fulfilling the law in terms of common law, I am saying that those ‑ ‑ ‑

HER HONOUR:   Is your argument then that Queensland common law has subjected you to the Bundjalung Elders, subjected you to the law of the Bundjalung Elders?

MR WALKER:   No.  What I am saying is that I am, as an indigenous person, subject to these laws and in order for justice to be properly done, those elders need to be consulted in terms of any offences before the courts if we are to get a proper fulfilment of the common law definition of the spoken and unwritten laws and customs of particular parts of the kingdom.

HER HONOUR: I do not see how that raises any question under section 118 of the Constitution.

MR LINDON:   Your Honour, if I might just complete that question then.  We have gotten as far as accepting that the Queensland common law might include some recognition of Aboriginal law obligations et cetera in Queensland ‑ ‑ ‑

HER HONOUR:   You had.

MR LINDON:   Yes, just for the purpose of phrasing the question to your Honour, and the nub of the question is really whether it includes Aboriginal criminal law. If it does, then by giving full faith and credit to Queensland common laws recognition of, in this case, Nunukul law binding Mr Walker, gives full faith and credit to that in New South Wales by recognising that the Bundjalung people down here in New South Wales, for example, had as it were taken on board or been delegated by the Nunukul people to exercise authority over Mr Walker while he is on their territory as opposed to Nunukul territory, so that it is slightly labyrinthic, I agree, but just if you can clearly follow the logic of it, it starts with Aboriginal law in Nunukul Island, that is picked up by the Queensland law. Section 118 brings it over into New South Wales and gives full faith and credit to that in New South Wales at the very point where the Magistrate is deciding whether or not he has jurisdiction. And you will see in the summary that the Magistrate rejected Mr Walker’s submission, because he was bound by Walker v New South Wales in 1994.  So he then gave Mr Walker time to see if this question was of import or interest to this Court in resolving ‑ ‑ ‑

HER HONOUR:   So do you say the Magistrate has no jurisdiction to deal with this matter, as the court is presently constituted?

MR WALKER:   Yes,  your Honour.

HER HONOUR:   All right.  Then I am against you.  Now, you have what is left of your half hour, if you wish to take it.

MR WALKER:   No.  Thank you, your Honour.

HER HONOUR:   Mr Solicitor, I do not need to hear you on this matter.

MR KATZ:   If your Honour pleases.

HER HONOUR: In so far as it is said that Queensland common law recognises Nunukul law, which in turn has delegated its responsibility with respect to events involving Mr Walker on Bundjalung land to the Bundjalung Elders, and that deprives the Magistrates Court of jurisdiction to deal with Mr Walker for offences under the laws of the State of New South Wales, I am of the view that no question arises under section 118 of the Constitution. I am of that view because I do not see that anything in section 118 displaces the operation of State criminal law of general application within a State. There is, in my view, therefore no question which can be removed under section 40(1) of the Judiciary Act.  Accordingly, the application is refused.

Do you have any further application, Mr Solicitor?

MR KATZ:   No, your Honour.

HER HONOUR:   Very well.  The application is refused.  The Court will adjourn.

AT 10.41 AM THE MATTER WAS CONCLUDED