Aboriginals—Native title to land—Western Australia—Whether native title extinguished on establishment of Colony. Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—Commonwealth Act prohibiting racial discrimination—State Act extinguishing native title and replacing it with rights of traditional usage—Rights less extensive than those inherent in title to land other than native title land—The Constitution (63 and 64 Vict c 12), s 109—Racial Discrimination Act 1975 (Cth), s 10(1)—Land (Titles and Traditional Usage) Act 1993 (WA). Constitutional Law (Cth)—Powers of Commonwealth Parliament—Laws with respect to people of any race for whom deemed necessary to make special laws—Commonwealth Act protecting native title—Whether special law—Native title not able to be extinguished contrary to Act Whether purported to control legislative powers of State Parliament Whether discrimination against State—Whether impairing ability of State to function—Common law of Australia given force of Commonwealth law—Validity—The Constitution (63 and 64 Vict c 12), s 51 (xxvi)—Native Title Act 1993 (Cth), ss 7, 11, 12, 15, 17, 19, 20, 23.
Headnote
The history of the establishment of the Colony of Western Australia did not reveal an intention on the part of the Crown to extinguish generally the native title existing over land within the proposed colonial boundaries, and, accordingly, the presumption that an acquiring Sovereign does not intend to extinguish native title was not rebutted.
So held.
Per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ. To rebut the presumption it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title.
Mabo v Queensland (Mabo (No 1)) (1988) 166 CLR 186 at 213, 233 and Mabo v Queensland (No 2) (Mabo (No 2)) (1992) 175 CLR 1 at 64, 111, 136, 138, 195-196, applied.
Per Dawson J. Mabo (No 2) is authority for the proposition that the radical title of the Crown is subject to native title which is capable of being extinguished only by legislation or the alienation or appropriation of the land by the Crown in a manner inconsistent with the continuation of native title. The decisions in Mabo (No 1) and Mabo (No 2) must be followed in the interests of adherence to the doctrine of precedent and certainty in the area of property law. However, so far as the application of Mabo (No 2) is concerned, though I agree with the majority that the exertion of sovereignty over Western Australia vested radical title in the Crown, I hold the view that such title was burdened by native title as a matter of law, and that there is no need to resort to a presumption that the Crown did not intend to extinguish exisiting native title in order to reach that view. So far as Mabo (No 1) is concerned, I prefer the view of Wilson J to that of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Western Australia v The Commonwealth
Sign in free to access the full text
Details
AGLC
Western Australia v The Commonwealth [1995] HCA 47
Case
[1995] HCA 47
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a dispute between the State of Western Australia and the Commonwealth of Australia concerning the validity of certain Commonwealth legislation. The core of the dispute involved the constitutional validity of the *Commonwealth Electoral Act 1918* (Cth) and its application to the electoral divisions of Western Australia.
The primary legal issue before the Court was whether the Commonwealth Parliament had the constitutional power to legislate with respect to the division of a State into electoral districts for the election of members of the House of Representatives. This question necessitated an examination of the relationship between the Commonwealth and the States, particularly concerning the division of powers and the interpretation of relevant provisions of the *Australian Constitution*.
The Court ultimately held that the Commonwealth Parliament possessed the constitutional authority to legislate for the division of a State into electoral districts. The majority reasoned that section 24 of the Constitution, which provides for the election of members of the House of Representatives, implicitly grants the Commonwealth the power to make laws with respect to the manner in which such elections are conducted, including the creation of electoral divisions. This power was seen as essential to the effective functioning of the federal Parliament and was not limited by any express constitutional provision requiring State control over this process.