Walker v State of New South Wales

[1994] HCATrans 437

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IN THE HIGH COURT OF AUSTRALIA

Registry No CB of 1994

B e t w e e n -

DENIS WALKER

Respondent/Plaintiff

and

STATE OF NEW SOUTH WALES

Applicant/Defendant

Application for proceeding to

be dismissed or stayed

MASON CJ

(In Chambers)

Walker 1 16/8/94

TRANSCRIPT OR PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 AUGUST 1994, AT 10.19 AM

Copyright in the High Court of Australia

MR L.S. KATZ: If Your Honour pleases, I appear for the

State of New South Wales, which is the applicant on the motion. (instructed by the Crown Solicitor for

New South Wales)

MR G.C. CORR:  If it please the Court I appear for

Mr Walker, who is the respondent. (instructed by

Brock Partners)

HIS HONOUR:	Mr Katz.
MR KATZ:	If Your Honour pleases, this is an application for

summary dismissal of proceedings under Order 26

rule 18. I think Your Honour will have in the file

an affidavit sworn by John McDonnell on 28 July

1994 showing compliance with section 78B of the

Judiciary Act.

HIS HONOUR:  First of all, you have a summons which is dated

17 June.

MR KATZ:	Yes, that is so, Your Honour.
HIS HONOUR:	Then you have an affidavit by John McDonnell of the same date.
MR KATZ:	Yes, Your Honour.
HIS HONOUR:	What is that affidavit designed to achieve?
MR KATZ:	To persuade the Registry to receive the summons,

Your Honour, on the basis that the summons is

supposed to be supported by affidavit, I

understand.

HIS HONOUR: This affidavit does not support the summons at

all.

MR KATZ:  No, it does not but it permits the Registry to

receive the summons, Your Honour.

HIS HONOUR:	The whole point of an affidavit in support of a summons is to establish the grounds on which the
relief sought in the summons is to be obtained.
MR KATZ:	Yes, Your Honour.

HIS HONOUR:  The grounds can be stated in two ways: they

can be stated, if one wants to do it, in the

summons, although that is an inconvenient way to do

it - but all this affidavit says is that:

The grounds -

not specified at all -

Walker 2 16/8/94

do not require any factual material - - -

MR KATZ:	Yes, Your Honour.
HIS HONOUR:	I cannot conceive of an affidavit that is more

useless. It fails to bring to the attention of the

plaintiff what are the grounds relied upon.

MR KATZ:  Your Honour, in that respect I have prepared a

written outline of submissions which my learned

friend has.

HIS HONOUR:  Yes. No doubt that overcomes the difficulty

but let us hope for the future there is not a

repetition of this failure to comply with basic

procedures.

MR KATZ: If Your Honour pleases.

HIS HONOUR:  Now, what jurisdiction are you invoking in

support of this application?

MR KATZ: Order 26 rule 18, Your Honour.

HIS HONOUR:	And what part of Order 26 rule 18?
MR KATZ:	Your Honour, subrule (1) permits:

a pleading to be struck out on the ground that
it does not disclose a reasonable cause of

action -

And subrule (2) provides:

In that case •••.. the Court or a Justice may order the action to be stayed or

dismissed - - -

HIS HONOUR:  Now, what relief are you asking for?

MR KATZ: That the action be dismissed.

HIS HONOUR: That the action be dismissed?
MR KATZ:	Yes, Your Honour.
HIS HONOUR:	If you were to succeed, I suppose the

appropriate order would be to strike out the

statement of claim, and unless it was a case in

which there was some conceivable alternative basis

for relief, in which event, of course, leave to

replead would be granted, it would then be

appropriate to dismiss the action.

MR KATZ: Yes, Your Honour.

Walker	16/8/94
HIS HONOUR:	That is at least in the case where the pleading

does not disclose a reasonable cause of action.

Yes?

MR KATZ:  Your Honour, I was mentioning the affidavit of

Mr McDonnell, the further affidavit of Mr McDonnell

of 28 July.

HIS HONOUR:  What is that, a 78B notice.

MR KATZ:  Yes, it is, Your Honour. May I take Your Honour

to the statement of claim?

HIS HONOUR:  Yes. I have read the statement of claim.

MR KATZ:  May I draw particular attention first,

Your Honour, to paragraph 3 of the statement of

claim which refers to the fact that:

The plaintiff has been charged with an offence under the laws of New South Wales -

That allegation is true as far as it goes but it

does not go as far as it ought. I have my learned

friend's concurrence to tell Your Honour that the

plaintiff has, in fact, been charged with six

offences, all under the Crimes Act of New South

Wales, and that it is the present intention of the

Director of Public Prosecutions that he should be

tried with respect to two of those offences under the Crimes Act, one under section 33A. If I may,

Your Honour, quickly read to Your Honour, 33A:

Any person who maliciously discharges, or in

any manner attempts to discharge, any kind of

loaded arms with intent to do grievous bodily

harm to any person, or with intent to resist,

or prevent, the lawful apprehension or

detention either of himself or any other

person, shall be liable to penal servitude for

And another offence under section 58 of the Crimes fourteen years.

Act, and that provides:

Whosoever:

assaults any person with intent to commit

felony, or

assaults, resists, or wilfully obstructs any

officer while in the execution of his duty,

such officer being a Justice, constable, or

other peace officer, custom-house officer,

prison officer, sheriff's officer, or bailiff,

or any person acting in aid of such officer,

or assaults any person, with intent to resist

Walker 4 16/8/94

or prevent the lawful apprehension or detainer

of any person for any offence,

shall be liable to imprisonment for 5 years.

May I then draw attention to paragraphs 9, 10 and 11, in particular to the fact that the

allegations contained in those paragraphs are ones

relating to a lack of legislative power.

Paragraph 9 referring to "laws of the British Crown

and its successors" being "only valid to the

degree that". Paragraph 10 referring to:

The Parliaments of the Commonwealth of

Australia and of the States lack the power to

legislate in a -

particular manner, and paragraph 11 providing, in

part, that:

if the Parliament of the Commonwealth or of a

State legislates in a -

particular manner -

the law ..... is of no effect until -

so there is no question arises here of the

construction of the relevant provisions of the

Crimes Act but rather as to the power of the New

South Wales Parliament to enact such provisions.

Your Honour, I have prepared a written outline in which I have sought to refer in chronological

order to all decisions either of this Court or of

appellate courts either in colonial times or since

Federation which have made statements relevant to the question of the power of parliaments to enact criminal laws affecting Aboriginals. In the first

paragraph I refer to a number of 19th century

decisions; three in particular.	I think
Your Honour has the written outline.

HIS HONOUR:	Yes.
MR KATZ:	I should simply, as a matter of housekeeping, draw

Your Honour's attention to the typewritten extracts which are the last three pages and to say to

Your Honour that I have procured from the State

Library of Victoria photocopies of the relevant

pages in the Melbourne Argus in the 1860s and I

have had them retyped for ease of reading.	I
personally proof read them and I can assure
Your Honour that they are accurate, but if hand up the - - -

Walker	16/8/94
HIS HONOUR:	I will accept your assurance, Mr Katz.

MR KATZ:  Thank you, Your Honour. Your Honour, although I

mention these cases for the sake of completeness,

in my submission, they have little ultimate moment
for the purposes of the present matter for the
reason that there was not any consideration in
those cases of any question of legislative power to

enact criminal laws binding Aboriginals. The cases

were rather concerned in each instance with

questions of reception of the common law and the
extent of such reception into the respective
colonies and for that reason it is not necessary

for me to take Your Honour in detail to those

reports.

May I go then to Coe's case referred to in

paragraph 2 of my written outline? Your Honour

will recall having dealt with that matter at first

instance in the case which is reported in

52 ALJR 334. Your Honour there held untenable,

among other claims, a claim that there existed an

Aboriginal nation which had sovereignty over the

whole of Australia.

Your Honour's decision was the subject of

appeal to a Full Court, and that is reported in

53 ALJR 403. Your Honour's decision was upheld and

in the course of the reasons for judgment of

His Honour Justice Gibbs, with whom Justice Aickin

concurred, His Honour made reference to the

subjection of Aboriginal people:

to the laws of the Commonwealth and of the

States or Territories in which they respectively reside.

I have set out the quotation, in fact, in

paragraph 2 of my outline.

In paragraph 3 I refer to a decision of the coincidence, the present plaintiff. That is

Queensland Court of Criminal Appeal involving, by

reported in (1989) 2 Qd R 79. In that case,

Mr Walker raised an issue as to the legislative

power of the Queensland Parliament to enact
criminal laws having force on Stradbroke Island.

It is not clear to me whether the argument was

restricted to the inapplicability of such laws on

Stradbroke Island to Aboriginals or, indeed, to any

person on Stradbroke Island. The argument appears

to have been that Stradbroke Island was not within

the dominion of the Commonwealth of Australia or of the State of Queensland and for that reason no laws of either of those jurisdictions could apply there.

Whatever be the correct analysis, Mr Walker's

argument was rejected by the Queensland Court of

walker 6 16/8/94

Criminal Appeal and he applied for special leave to

appeal to this Court. The decision on the special

is in of paragraph 3.

leave application reported only the Legal

Your Honour presided on the hearing of the

special leave application and delivered short

reasons on behalf of the Court for refusing special

leave. It would appear from what Your Honour said

that on the hearing of the application for special
leave an attempt was made to argue matters which

had not been raised in the Court of Criminal

Appeal, and Your Honour said:

It would be inappropriate for this Court to

proceed to a determination of these questions

without the benefit of a comprehensive

examination of them by an intermediate Court

of Appeal and without agreement or findings on

facts material to the determination of those

questions.

Your Honour did, however, say that:

On the narrow issue decided by the Court

of Criminal Appeal, namely, whether Lieutenant not persuaded that the decision of the Court of Criminal Appeal was attended by sufficient

doubt to justify the grant of special leave to

appeal.

In paragraph 4 of my outline I refer to the

most recent of the Coe cases which Your Honour

heard - - -

HIS HONOUR:  Just before we leave that case of Walker in the

Queensland Court of Criminal Appeal, I do not have

a very clear recollection of the special leave

application and I take it you have not looked at

the transcript of the special leave application.

MR KATZ:	No, I have not, Your Honour.
HIS HONOUR:	But my recollection is that Mr Castan appeared

for the applicant in that case and that the Court disposed of the matter, as you have suggested and

as the report confirms, on the footing that it was

not a suitable vehicle for the major questions

which the applicant sought to have determined. I

am myself not sure of the precise ground on which

the Court of Criminal Appeal in Queensland disposed

of the matter.

MR KATZ:  Your Honour, it certainly did so on the basis that

there was no lack of legislative authority in the

Walker	16/8/94 Queensland Parliament to enact criminal laws having
effect in Stradbroke Island but I must say that
there is no reference, for instance, to
Your Honour's earlier decision in Coe v The Commonwealth - - -
HIS HONOUR:	No, none at all.
MR KATZ:	- - - and the appeal to the Full Court from that

decision, which one would have expected to have

found in a discussion of the matter. So, I

readily - - -

HIS HONOUR:  I am inclined to put that case to one side. I

am not sure that it really assists us in any

significant respect.

MR KATZ:  Yes, Your Honour. As I say, I was simply trying

to extract in these submissions every case of an

appellate court which seemed to have some bearing

on the matter.

Then in paragraph 4, Your Honour, I refer to

Your Honour's more recent ruling in the second Coe

case; that case heard by Your Honour a year ago

tomorrow. Your Honour will recall that one of the

aspects of the statement of claim in that case was

a claim to sovereignty of a kind somewhat different

than that put in the first Coe case and it would

appear that in the first Coe case the claim was

made on behalf of "The Aboriginal nation" whereas,

in this case, one was concerned with a particular

group of Aboriginal persons called the Wiradjuri

tribe and it would appear also that in the first

Coe case the claim was one to - - -

HIS HONOUR:  I think it was variously described in the

I do think at one stage it was pleaded as "the

statement of claim as "the Wiradjuri people", "the but

Wiradjuri nation".

MR KATZ:  Your Honour, it may well be that further

examination of the report - I am sorry, it does in

fact confirm that. If Your Honour has the report

in front of Your Honour, 68 ALJR 110, at page 111

in the first column, between letters Band C,

Your Honour referred to the plea as to standing

which was that:

The plaintiff claims to sue on behalf of the Wiradjuri tribe -

and then in the course of the paragraph in the

statement of claim which referred to "The lands

which are the subject of the action~, Your Honour

set out paragraph 3 - this is between letters F and

Walker 16/8/94

Gin the first column - and there there was a

reference to the "Wiradjuri nation" but,

Your Honour, be it "a tribe" or "a nation" or

"a people", it would appear that it was a more

closely defined group of persons than the group of

persons on whose behalf the claim was made in the

first Coe case.

HIS HONOUR:	Yes.
MR KATZ:	Further, the claim was made in respect of certain

defined lands, not in respect of the entirety of

Australia. But leaving aside those differences,

Your Honour did reject as untenable the sovereignty

claim, and that appears in Your Honour's reasons

set out at pages 114 and 115 in which Your Honour

dealt with the question of what it was the first
appellate Coe decision stood for. In the course of
dealing with that aspect of the matter, Your Honour
did quote with approval the statement by
Justice Gibbs in the first of the Coe cases, that:

The Aboriginal people are subject to the laws of the Commonwealth and of the states or

Territories in which they respectively reside.

That appears at page llSC, first column.

Your Honour, dealing also with the effect of

the Mabo [No 2] decision said, in the second column

on page 115B:

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.

There was a further aspect to the statement of

claim in the second of the Coe cases at page 112D,

second column. Your Honour set out paragraph 12 of

the statement of claim which pleaded as follows:

"George III, George IV, William IV and

Victoria Regina had the sole power as

International Sovereign to impair the

personal, proprietary and usufructuary rights

of the Plaintiff."

Walker 16/8/94

And Your Honour commented about that paragraph,
that it was an element in the sovereignty claim and

made:

the further assertion that the defendants lack

rights.	legislative competence to impair Wiradjuri
On page 116B, in the second column, under the

heading, "The claim that defendants lack

legislative competence", Your Honour said:

This paragraph is only pressed against the second defendant.

That was the State of New South Wales.

It is an element in the sovereignty claim and

on that score cannot be maintained. It also

constitutes an allegation that the second

defendant lacked legislative competence to

impair the rights of the plaintiff presumably

meaning thereby the rights of the members of

the Wiradjuri nation. That allegation is

plainly untenable.

Your Honour, in paragraph 5 I make brief additional reference to the decision in Mabo {No 2]

and simply submit that the decision of the Court in

that case provides no justification whatever for a

claim that the New South Wales Parliament lacks

legislative competence to enact statutes which

create crimes for the State of New South Wales

which statutes bind Aboriginals as well as

non-Aboriginals. There was in Mabo {No 2] itself

no claim by the plaintiffs of a lack of legislative
competence in the Queensland Parliament, nor did

the reasons for judgment disclose any view that

there was such lack of legislative competence in

the Queensland Parliament. The issue there was

competence to legislate so as to extinguish a

pre-existing common law right without concerning

oneself with whether or not there is any equivalent

common law right in the present case to that which

was the subject of Mabo {No 2]. If there were,

then there would be full legislative competence to

extinguish such right as was held to be the case in

Mabo {No 2].

So, Your Honour, for those reasons and in reliance on those authorities, the submission is

that there is no reasonable cause of action shown

in terms of paragraphs 9, 10 and 11 of the

statement of claim, all of which are directed to a lack of legislative competence in, relevantly, the

New South Wales Parliament to enact the provisions

Walker 10 16/8/94

of the Crimes Act applicable to Aboriginals as well

as non-Aboriginals. If Your Honour pleases.

HIS HONOUR:	Yes, Mr Katz. Mr Corr.
MR CORR:	Yes, if it please the Court. Firstly,

Your Honour, I would like to inquire as to whether
Your Honour is aware of the change of solicitor in

this case? I believe it has been filed with the

Court. I just wanted to make certain that this

had, in fact, been done.

HIS HONOUR:  No, we are not aware of any change of

solicitor, Mr Corr.

MR CORR:  It was filed in the Sydney Registry on the 15th

which I believe was yesterday. I will file these

in Court if it is appropriate, Your Honour.

HIS HONOUR:  Well, yes, hand up the documents. Mr Katz,

have you been served with this?

MR KATZ:	Yes, we have, Your Honour.
HIS HONOUR:	I will receive that on the footing that it is

filed in Court, Mr Corr. It may be that Mr Katz

has received notice of what has occurred a day too

early but we will put that to one side.

MR CORR:  Yes, indeed, Your Honour.

To begin with, Your Honour, this is not'in any way a sovereignty claim or a question in the"

sovereignty that has been decided by this Court in

a number of cases including the first Coe case.

What it is questioning: what law is in fact

applicable to a person who, in this case, has
purported to have been charged with various

offences under the Crimes Act of New South Wales.

In the Mabo [No 2] case, 175 CLR 1, the

various decisions there made some statements about

the law which was, in fact, applicable in the

colony of New South Wales and His Honour

Justice Brennan in his decision at page 32, about ten lines down in the second paragraph, said:

Accordingly, the municipal courts must

determine the body of law which is in force in

the new territory.

And that is what is, in fact, in question in this

Court.

Mr Katz referred to a number of decisions

which had been made by various courts in relation

to the law which is applicable. However, I would

Walker 11 16/8/94

submit, Your Honour, that those particular

decisions, the early ones at least, were made under

the assumption that the doctrine of terra nullius
applied and that there was no Aboriginal law which

existed or that the Aboriginal people did not have

a body of law which was applicable.

Mr Katz also referred to the second Coe case -

the copy of which I have is in 118 ALR - and his

comment about Your Honour's statement there that:

Mabo [No 2] is entirely at odds with the notion that sovereignty adverse to the Crown

resides in the Aboriginal people of Australia.

Your Honour said later on in that particular

passage that:

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.

The question which arises is whether customary

Aboriginal criminal law is, in fact, something

which has been recognized by the common law and
which continues to this day, in the same way that

was decided in Mabo {No 2], that laws relating to

land tenure continued to exist in some form. I

would submit, Your Honour, it is then that these
laws do in fact apply, that there are laws of the

Bandjalung people and of the Nunukel people and

because of the particular circumstances of this

case, there are also laws relating to conflict of

laws since Mr Walker is a Nunukel person and the

alleged offences occurred in the country of the

Bandjalung and that the laws which are applicable

apply from those two particular groups of

Aboriginal people.

Although there have been some decisions which have been made, notably that which my friend,

Mr Katz, referred to of the Queensland Court of

Appeal, this Court has not made any final

determination as to whether or not Aboriginal

customary criminal law is still applicable. I

would submit that there is a case to be argued and

that my friend, Mr Katz, has not demonstrated in

the terms of Order 26 rule 18 that there is not

disclosure of a reasonable cause of action, that

Walker 12 16/8/94

there is, in fact, a reasonable cause of action,

namely, for this Court to determine whether

Aboriginal customary criminal law still applies as

a matter of law. Whether it applies as a matter of

fact is, of course, a different matter and one that

would have to be determined once the question of law is determined. I would submit that if it is

determined by this Court that Aboriginal customary

criminal law does apply as a matter of law, it may

be appropriate for the matter to be remitted to

some other court to determine whether it does apply

as a matter of fact in this particular case.

HIS HONOUR:  Do you have any support anywhere for the

proposition that a criminal law, which is expressed

in such a way as to have general application, does

not apply to Aboriginal people?

MR CORR:  Yes, Your Honour, in Mabo {No 2) at page 34,

His Honour Justice Brennan cited at length from

Blackstone's Commentary and about half-way down

there before the three dots, it says:

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 -

Now, that would be it has been brought into the colony of New South Wales the English criminal law

as it affects the particular colonists. Now, the

question which would arise is when the criminal law

is later modified, is it only modified to affect

those particular colonists and the people who have

been brought in there or is it further affecting

the Aboriginal people as well?

If that particular reference from Blackstone

is correct, they have only imported law which

affects the English colonists in the colony, I

would submit that any amendment to those laws must

also only be applicable to the colonists, not to

the colonized.

HIS HONOUR:  Have you any support for that proposition at

all?

MR CORR:  Other than from an exegesis of that particular

passage, no, Your Honour.

HIS HONOUR:  I can understand your point in relation to the

common law because Blackstone is talking about the

common law.

MR CORR:  Indeed.

Walker 13 16/8/94

HIS HONOUR:  He is concerned with a reception of the common

law in a country which has been colonized. But it

is another question altogether when one is

confronted with the operation of laws made pursuant

to legislative authority.

MR CORR:  Indeed, Your Honour, but a question arises that if

those laws are in fact intended to override

Aboriginal law which, if we make an assumption that
Aboriginal criminal law did survive at 1788 and

later times then, surely, there would need to be

some specific statement to the effect that it was

intended to override that Aboriginal law, whereas,

there is no such -

HIS HONOUR: This is almost reinventing history, is it not?

MR CORR: Well, there have been some suggestions that that

is what Mabo {No 2] did in relation to land tenure.

I would suggest that - - -

HIS HONOUR:  It is not a suggestion that I accede to,

Mr Corr.

MR CORR:  No, I do not either, but I would submit that for

consistency it should be applicable to the criminal

law as well as to the law relating to land tenure.

HIS HONOUR:  Yes. Anyhow, I understand the proposition.

The proposition is that you have got this support,

you say, for importation of the common law and,

therefore, any exercise of legislative power, there

being no challenge to the power, must result in an

approach to construction which accords with what

you say is the common law principle.

MR CORR:  Yes, Your Honour. Therefore, I would say since -

there is that which has to be proved, there is in

fact a cause of action which has been shown; that

my friend has not shown that there is not a cause

of action. Whether in fact it is ultimately

successful or not is a different matter but he has

not shown sufficient to have the cause struck out

at this stage. Those are my submissions,

Your Honour.

HIS HONOUR:	Yes, thank you, Mr Corr. Yes, Mr Katz.
MR KATZ:	Your Honour, I remind Your Honour again that the

allegations in the statement of claim are all

directed to an absence of legislative power on the

part of the relevant - - -

HIS HONOUR:  Yes, but Mr Corr seeks to meet that by saying

that one argues from the principle as expounded by

Blackstone in its application to the reception of

the criminal law as it stood at common law.

Walker 14 16/8/94

MR KATZ:  Yes. Your Honour, that, with respect, does not

meet the point though. If the case pleaded is a

case which alleges an absence of legislative power,
the fact that a different case might have been
pleaded does not really assist. A fresh case may,
of course, be begun in those terms but the present

case is not of that sort.

HIS HONOUR: Yes, but it is a little unsatisfactory, is it

not, if you win simply because the pleader has not

sufficiently identified the basis on which this has

been put? What has happened, of course, is that

Mr Corr, presumably, has come into the case at a

later stage and has been able to put a more
arguable gloss on the nature of the case that is
pleaded, because the case that is pleaded,

unquestionably, is a case in which it is asserted

in some way or other that the efficacy of the

exercise of legislative power depends upon either

adoption, acceptance, request and approval. Now,

Mr Corr does not seek to support that and

therefore, as pleaded, the statement of claim may

have to fail.	But we are still left with the point
that he now seeks to make.	Now, what is your
response to that?

MR KATZ:  My first response

HIS HONOUR: Because, you see, it would affect the relief

granted. Clearly enough, if I strike out this

statement of claim on that ground, the narrow

ground, he is going to say, "Well, I want leave to

replead."

MR KATZ:  Yes. My first answer is that really the

discussion by His Honour Justice Brennan, with

which Your Honour and Justice McHugh agreed, does

not support the approach which he takes. In fact,

the relevant passage in the reasons begins at

page 34 and continues to page 38. Without reading

all of it, could I direct Your Honour's attention

first to the first complete paragraph on page 36.

We are now in a context in which we are referring to what His Honour describes as "the enlarged notion of terra nullius". His Honour says:

When British colonists went out to other

inhabited parts of the world, including New

South Wales, and settled there under the

protection of the forces of the Crown, so that

the Crown acquired sovereignty recognized by
the European family of nations under the
enlarged notion of terra nullius, it was
necessary for the common law to prescribe a

doctrine relating to the law to be applied in

such colonies, for sovereignty imports supreme

internal legal authority. The view was taken

Walker 15 16/8/94

that, when sovereignty of a territory could be

acquired under the enlarged notion of terra
nullius, for the purposes of the municipal law

that territory (though inhabited) could be treated as a "desert uninhabited" country.

The hypothesis being that there was no local

law already in existence in the territory, the

law of England became the law of the territory

(and not merely the personal law of the

colonists).

And then at the bottom of page 37, about five or

six lines up, just after footnote (91), His Honour

says:

In a settled colony in inhabited territory,
the law of England was not merely the personal

law of the English colonists; it became the

law of the land, protecting and binding

colonists and indigenous inhabitants alike and

equally. Thus the theory which underpins the

application of English law to the Colony of

New South Wales is that English settlers

brought with them the law of England and that, as the indigenous inhabitants were regarded as barbarous or unsettled and without a settled

law, the law of England including the common

law became the law of the Colony (so far as it

was locally applicable) as though New South

Wales were "an uninhabited country •..

discovered and planted by English subjects".

The common law thus became the common law of

all subjects within the Colony who were

equally entitled to the law's protection as

subjects of the Crown.

And then could I ask Your Honour to drop down to

footnote (93) which says, in substance:

As the subjects of a conquered territory and

of a ceded territory became British subjects a

fortiori the subjects of a settled territory

must have acquired that status. And see Reg v
Wedge.

The Queen v Wedge was a decision of His Honour

Justice Rath in the New South Wales Supreme Court

which held that from 1788 Aboriginals became

British subjects.

His Honour then continues:

Its -

that is to say the common law's -

Walker 16 16/8/94

introduction to New South Wales was confirmed

bys 24 of the Australian Courts Act 1828. As the laws of New South Wales became the laws of

Queensland on separation of the two Colonies
in 1859 and, by the terms of the Queensland

Coast Islands Act 1879 and the Governor's

Proclamation, the Murray Islands on annexation

became subject to the laws in force in

Queensland, the common law became the basic

law of the Murray Islands. Thus the Meriam

people in 1879, like Australian Aborigines in

earlier times -

and may I interpolate there, Your Honour: that is

clearly a reference to Australian Aborigines in

1788 in what was then New South Wales -

became British subjects owing allegiance to

the Imperial Sovereign entitled to such rights

and privileges and subject to such liabilities

as the common law and applicable statutes

provided.

Now, that is the view expressed by His Honour

together with Your Honour and Justice McHugh's

concurrence. In my submission, that view in itself

provides no support for any suggestion that the

common law imported any Aboriginal customary

criminal law.

Now, I should say to Your Honour that the view

which I have just been reciting may be thought to
differ from that expressed by Justices Deane and

Gaudron, and could I take Your Honour to page 79.

HIS HONOUR: Yes, certainly.

MR KATZ:  At pages 79 and 80 Their Honours dealt with the

question of the introduction of a common law and I
think it is appropriate really to begin reading

about eight or nine lines up from the bottom of

page 79: 

The common law so introduced was adjusted in

accordance with the principle that, in settled

colonies, only so much of it was introduced as
was "reasonably applicable to the

circumstances of the Colony". This left room

for the continued operation of some local laws

or customs among the native people and even

the incorporation of some of those laws and

customs as part of the common law.

And then Their Honours say:

The adjusted common law was binding as the

domestic law of the new Colony and, except to

Walker 17 16/8/94

the extent authorized by statute, was not
susceptible of being overridden or negatived
by the Crown by the subsequent exercise of

prerogative powers.

And then Their Honours' conclusion is that:

once the establishment of the Colony was complete on 7 February 1788, the English common law, adapted to meet the circumstances

of the new Colony, automatically applied
throughout the whole of the Colony as the
domestic law except to the extent (if at all)

that the act of State establishing the Colony

overrode it. Thereafter, within the Colony,

were bound by that common law.	both the Crown and its subjects, old and new,
Your Honour, that approach which, in my

submission, does differ from that in the plurality

opinion might provide scope for argument that there

were some laws or customs among the native people

which were incorporated as part of the common law.

I emphasize again, Your Honour, it provides no

support whatever for any suggestion of an absence

of legislative power to override that. There is

also, in my submission, no basis for inferring that

any part of any Aboriginal custom or law, assuming

there to be such as to matters of personal violence

with which we are here concerned, was incorporated

into the common law.

Your Honour, the 19th century cases to which I

have referred in paragraph 1 of my outline were, of

course, concerned with that sort of issue. They

were concerned with the common law and its

extension to Aboriginal persons. I suppose it may

be a reflection of bolder advocacy but certainly in

those cases there was no suggestion whatever that
the English common law as transplanted to the

appropriate colonies did not bind Aboriginals in so

far as the victims of any acts of theirs were

non-Aboriginals. The only submission was, in those

cases, that the incorporation of some Aboriginal

law or a custom into the English common law meant a

different regime applied as to crimes between or

among Aboriginals. Even that was rejected. I may

say, if it matters here, Your Honour, that there is

no allegation that any of the victims of the

alleged crimes here are Aboriginal persons and my

instructions are that none of them are.

Your Honour, that is what I have to say about

the case which might hereafter be pleaded.

HIS HONOUR:  Yes, thank you. Now, Mr Corr, let us assume

for the moment that I am against you on the case as

Walker 18 16/8/94

pleaded because the argument you have presented

diverges from the case as pleaded.

MR CORR:	Yes.
HIS HONOUR:	If I were to strike out the statement of claim

because the case, as pleaded, discloses no

reasonable cause of action, what would you ask me to

do then?

MR CORR:  I would make an application to amend the statement

of claim in line with what I have argued.

HIS HONOUR:  I see, yes, so that you could give effect to

the argument you have presented.

MR CORR: Indeed.

HIS HONOUR:  So, in a sense, the issue that has developed

between you and Mr Katz in relation to the argument

that you have presented would arise in relation to

whether or not I grant leave to replead?

MR CORR:  Yes, that would appear to be the case.

HIS HONOUR:  Yes. You do not want to add anything to what

has been said otherwise?

MR CORR:  No, Your Honour.

HIS HONOUR:  Very well. I will consider my decision in this

case.

MR CORR: If Your Honour pleases.

AT 11.11 AM THE MATTER WAS ADJOURNED SINE DIE

Walker 19 16/8/94