Western Australia v The Commonwealth

[1995] HCA 47

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

THE STATE OF WESTERN AUSTRALIA v. THE COMMONWEALTH, Matter No. P4 of 1994

(1995) 183 CLR 373

16 March 1995

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 the majority in relation to the construction of s 10(1) of the Racial Discrimination Act 1975 (Cth).


In re Southern Rhodesia (1919) AC 211 at 233, considered.


Section 7 of the Land (Titles and Traditional Usage) Act 1993 (WA) (the State Act) provided: "(1) On the commencement of, and by operation of, this section - (a) any native title to land that existed immediately before that commencement is extinguished; and (b) the members of an Aboriginal group who held native title to land immediately before that commencement became entitled to exercise rights of traditional usage in relation to that land under and subject to this Act. (2) Rights of traditional usage created by subsection (1)(b) in relation to land replace the rights and entitlements that were incidents of the native title to that land extinguished by subsection (1)(a) and, unless this Act provides otherwise, are equivalent in extent to the rights and entitlements that they replace." "Native title" was defined as "one or more rights or entitlements of a kind recognised by the common law, being fights or entitlements - (a) to the occupation or use of land; or (b) otherwise relating to land, exercisable by Aboriginal persons in accordance with Aboriginal tradition". "Title" was defined to include ownership of and an interest in land whether proprietary or otherwise, but excluding native title. Section 17(2) provided: "Unless another written law expressly states otherwise, the existence, or possible existence, of rights of traditional usage in relation to land does not affect the application of general laws to land that is, or may be, the subject of rights of traditional usage or to Aboriginal groups whose members are, or may be, entitled to exercise such rights." The "general laws" included the Land Act 1933 (WA), the Mining Act 1978 (WA), the Petroleum Act 1967 (WA) and the Public Works Act 1902 (WA). Under those Acts the security of possession and enjoyment of rights under s 7(2) (s 7 rights) was less than that of holders of title. Section 23 provided that s 7 rights were extinguished by, inter alia, "(a) any legislative or executive action which is clearly and plainly - (i) intended to extinguish the rights; or (ii) inconsistent with the continued exercise of the rights; (b) the grant of freehold title or leasehold title (including pastoral leases) in relation to the land under any written law relating to land grants, land administration or land titles, except to the extent that the grant expressly reserves an right of traditional usage; (c) the grant of a lease in relation to the land under any law relating to mining, except to the extent that the grant expressly reserves any right of traditional usage; (d) the dedication, reservation or use of the land for public or other works or purposes to the extent that the dedication, reservation or use is inconsistent with the continued existence of the rights."


Section 10(1) of the Racial Discrimination Act 1975 (Cth) (the Commonwealth Act) provided: "If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin." The "rights" referred to included the fight to own property, the right to inherit, and the right to equal treatment before tribunals administering justice.


Held, that the holders of s 7 rights did not enjoy the same security of enjoyment of those fights as did the holders of "title". Hence the State Act was inconsistent with s 10(1) of the Commonwealth Act and was invalid to the extent of the inconsistency because of s 109 of the Constitution.


Gerhardy v Brown (1985) 159 CLR 70, applied.


Section 11 (1) of the Native Title Act 1993 (Cth) provided that native title was not able to be extinguished contrary to that Act. Section 12 provided: "Subject to this Act the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth." Section 7(1) provided that nothing in the Act affected the operation of the Racial Discrimination Act 1975. Sub-section (2) provided that sub-s (1) did not affect the validation of past acts by or in accordance with the Native Title Act. A "past act" was an act (including the making of legislation) done before a specified date which was invalid to some extent on account of the existence of native title. There were several categories of past acts. Category A included the grant of a freehold estate and the granting of a commercial, agricultural, pastoral or residential lease. Category B included the grant of other types of lease other than a mining lease. Category C consisted of mining leases. Category D covered all other past acts. A past act attributable to the Commonwealth was declared to be valid and to have always been valid: s 14(1). The effect of validation of past acts attributable to the Commonwealth was that category A acts extinguished native title, category B acts extinguished it to the extent of the inconsistency with the past acts, and category C and D acts preserved native title but suspended its operation so far and for so long as was necessary to allow the mining lease or other act to operate and have effect: s 15. Compensation for past acts was payable by the Commonwealth to the native title holders whose title was affected: s 17. Section 19(1) provided that if a State or Territory law contained provisions to the same effect as those in s 15, that law could provide that past acts attributable to the State or Territory were valid and were to be taken always to have been valid. Section 20(1) provided that if State or Territory law validated a past act attributable to the State or Territory in accordance with s 19, the native title holders were entitled to compensation if they would have been entitled to compensation under s 17 had that section applied to acts attributable to the State or Territory. A future act was an act done after the specified date, and was either "permissible" or "impermissible". A permissible future act was one that treated native title holders in the same way as they would be treated if they held a fee simple in the land. Renewals, re-grants and extensions of commercial, agricultural, pastoral and residential leases which did not enhance the nature of the tenure of the lessee and did not diminish any reservation or condition for the benefit of Aborigines were permissible future acts. All future acts that were not permissible were impermissible and invalid to the extent that they affected native title. As a general rule, a permissible future act was valid. If a Commonwealth, State or Territory law provided for the compulsory acquisition of native title and other interests in relation to land or waters and for compensation, acquisition under the law was valid and an act done in giving effect to the purpose of the acquisition could extinguish native title: s 23(3). Otherwise the acquisition of native title or the doing of any other permissible future act merely suspended native title rights and interests so far and for so long as was necessary to allow the permissible future act to operate and have effect. Compensation on just terms was payable for the acquisition.


Held, (1) that the Native Title Act was a valid law of the Commonwealth under s 51(xxvi) of the Constitution.


Per curiam. (a) The Native Title Act was "special" within the meaning of par (xxvi) in that it conferred uniquely on Aboriginal holders of native title a benefit protective of their native title.


Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 186, 245, 261, and The Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 158, 244-245, applied.


(b) Whether it was "necessary" in terms of par (xxvi) to enact the Native Title Act was a matter for Parliament to decide and, in the light of Mabo (No 2) (1992) 175 CLR 1, there were no grounds on which the Court could review Parliament's decision, assuming it had power to do so.


(2) That the Native Title Act did not purport to control the exercise by Western Australia of its legislative power or purport directly to render its laws invalid.


Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 108-109, 120; Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46 at 56-57; R v Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia (1977) 137 CLR 545 at 563; and Gerhardy v Brown (1985) 159 CLR 70 at 121, considered.


Per curiam. Where it is within the legislative competence of the Commonwealth Parliament to prescribe an exclusive statutory regime, a Commonwealth law which merely expresses an exclusion of the operation of a State law is not construed as an attempt to invalidate the State law directly. It is construed as an expression of intention that the Commonwealth law should have exclusive operation. So construed the Commonwealth law is within power. Unless a Commonwealth law is expressed in terms which preclude that construction, the form of expression does not take the law outside Commonwealth power.


Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 548-549, and Metal Trades Industry Association of Australia v Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR 632 at 641-643, 648-649, applied.


(3) That the Native Title Act did not impermissibly discriminate against Western Australia or impermissibly impair the State's ability to function as a State.


Per curiam. (a) To exercise the power conferred by s51(xxvi) to protect native title from extinguishment or impairment, it is necessary to control the exercise by other repositories of the power to extinguish or impair native title. As extinguishment or impairment can be effected at common law only by or pursuant to a law enacted by a competent legislature, the power conferred by s 51(xxvi) must extend to the support of a law which excludes, wholly or in part, State or Territory law from operating to affect native title. The power cannot be limited by an implication which exempts the States from the application of such a law without denying what is at the heart of s 51(xxvi) so far as it may be exercised for the benefit of the people of the indigenous races of Australia.


Re Lee; Ex parte Harper (1986) 160 CLR 430 at 453, applied.


(b) The requirement that the State pay compensation if it exercises a power of compulsory acquisition imposed a burden on the exercise of an essential State power, but did so as an incident of the protection of native title. Section 51(xxvi) is not impliedly limited to preclude the Commonwealth from protecting the holders of native title in that way.


(4) That s 12 of the Native Title Act was invalid.


Per curiam. Section 12 simply attempts to engage s 109 of the Constitution in order to make the common law immune from a valid State law. But it is of the nature of the common law and of legislative power that the common law is subject to alteration by the exercise of legislative power. If s 109 could be engaged by s 12 to preclude the alteration of the common law by a State law, it would have destroyed some of the legislative powers of the States confirmed by s 107. When s 109 is engaged, it does not diminish the legislative power of the State which has enacted the inconsistent law, but operates only upon State laws that have been made in exercise of the legislative powers of the States conferred by s 107. If s 12 were to result in the withdrawal from State Parliaments of an effective legislative power to override the common law, it would have diminished the legislative power confirmed by s 107.

Hearing

CANBERRA, 1994, 6-9, 12-15 September, 1995, March 16
#DATE 16:3:1995



CASES STATED.

The State of Western Australia sued the Commonwealth of Australia in the High Court for the following relief: "A.1. (a) A declaration that there is no part of Western Australia in which, or in relation to which, at the time when the Native Title Act (1993 (Cth)) came into force, there were 'native title' or 'native title rights and interests' within the meaning of s 223(1) of the Act; (b) that the Act, in so far as it has application in respect of such 'native title' and native title rights and interests', has no operation in or in relation to Western Australia. Alternatively to A.1, a declaration that the Native Title Act, in so far as it operates in and in relation to Western Australia by reason of s 223(3), is outside the legislative powers of the Commonwealth, and invalid. A declaration that the Native Title Act has not been passed in accordance with the Constitution, and is invalid. A declaration that the Native Title Act is outside the legislative powers of the Commonwealth, and invalid. Alternatively to B.2, declarations that ss 11, 12, 19, 20, 22, 23, 26, 28, 43, 44 and 211(2) of the Act are outside the legislative powers of the Commonwealth, and invalid. A declaration that the following provisions of the Native Title Act, namely s 11 (2)(a), Div 3 of Pt 2, s 47, Div 5 of Pt 2, Pts 3, 4, 6, 7, 8, 10, 11, ss 211(2), 212(3) and 218, have no lawful operation. A declaration that the Native Title Act as a whole or, alternatively, ss 12, 26 to 42, 45, 50, 51, 56(5), 201, 203, 211 and 240 have no lawful operation."


The Wororra Peoples (represented by Donny Woolagoodjah and Grace Umbagai) and the Yawuru Peoples (represented by Francis Djaigween and Frank Sebastian) sued the State of Western Australia in the High Court for the following relief: "A. Declarations that the provisions of the Land (Titles and Traditional Usage) Act 1993 (the 1993 WA Act) and/or the Land (Titles and Traditional Usage) Regulations 1993 (the WA Regulations) are - (i) inoperative by reason of the operation of s 10 of the Racial Discrimination Act 1975 (Cth); (ii) inconsistent with ss 9 and/or 10 of the Racial Discrimi-nation Act 1975 and, by virtue of s 109 of the Constitution, inoperative and invalid. B. A declaration that to the extent that the provisions of the 1993 WA Act or WA Regulations, or acts authorised by them, concerning the claimed areas, would operate to extinguish the native title and/or possessory title of the plaintiffs, they remain entitled to claim such native title and/or possessory title notwithstanding the said provisions by reason of the provisions of s 10 of the Racial Discrimination Act 1975. C. (i) A declaration that the Coastal Waters (State Title) Act 1980 (Cth) and the Coastal Waters (State Powers) Act 1980 (Cth) is in each case a law which provides for the acquisition of property from a person otherwise than on just terms and is therefore beyond the powers of the Commonwealth Parliament by reason of the provisions of s5l(xxxi) of the Constitution. (ii) A declaration that each of the 1993 WA Act and the WA Regulations, in so far as it purports to apply to the claimed seas, is invalid in its application to the claimed seas by reason that it relies upon the authority of Commonwealth legislation, which authority cannot extend to the making of a law which effects or enables the acquisition of property from any person otherwise than on just terms. D. A declaration that the provisions of the 1993 WA Act and/or the WA Regulations are inconsistent with the provisions of the Native Title Act 1993, the National Native Title Tribunal Regulations, and/or the Native Title (Notices) Determination No 1 made pursuant to the Native Title Act (Determination No 1) all of the Commonwealth, and are invalid to the extent of the inconsistency."


Teddy Biljabu, Billy Gibbs, Bobby Roberts, Patricia Fry, Nyeri Morgan, Bryan Samson and Ditch Williams sued the State of Western Australia in the High Court on behalf of the Martu Peoples claiming a declaration of invalidity of the whole of the Land (Titles and Traditional Usage) Act 1993 (WA), or, alternatively, ss 5 and 7 thereof.


On 13 May 1994 Mason CJ made orders in each case reserving for the consideration of the Full Court the following questions: "1.(a) If any communal, group or individual rights or interests of the nature referred to in sub-s 223(1) of the Native Title Act 1993 (Cth) (the Act) existed in Western Australia at a time prior to European settlement in Western Australia, had such rights or interests come to an end by extinguishment or otherwise: (i) by the establishment of Western Australia as a colony, or (ii) by the time of the establishment of Western Australia as a self-governing colony, or (iii) by the time of Federation, or (iv) by the time the Racial Discrimination Act 1975 (Cth) came into force, or (v) by 1 July 1993, or (vi) by 2 December 1993, or (vii) by 1 January 1994? 1.b) If yes to any part of 1(a), was the consequence that at the time the Act came into force, there was no part of Western Australia in which 'native title' or 'native title rights and interest' within the meaning of sub-s 223(1) of the Act were in being? 2. Is the Act, in so far as it operates in and in relation to Western Australia by reason of sub-s 223(3), beyond the legislative powers of the Commonwealth and invalid? 3. Are ss 11, 19 and 20 of the Act, or any of them, beyond the legislative powers of the Commonwealth and invalid? 4. Is s 22 of the Act, in so far as it applies to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid? 5. Are the provisions of ss 23, 26 and 28 of the Act, in so far as they apply to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid? 6. Are the provisions of s 43 of the Act, read with ss 23, 26 and 28, in so far as they apply to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid? 7. Are the provisions of sub-s 211(2) of the Act beyond the legislative powers of the Commonwealth and invalid? 8. Is s 12 of the Act beyond the legislative powers of the Commonwealth and invalid? 9. Does the Act, in its application to Western Australia, impose a special burden or disability on and discriminate against Western Australia and/or is it inconsistent with the continuance of Western Australia as an independent polity within the contemplation of the Constitution and/or with its capacity to function as such and is the Act therefore beyond the legislative powers of the Commonwealth and invalid? 10.(a) Are the provisions of ss 10, 11, 12, 19, 20-45, 47-54, 56(5), 57-60, 61-79, 80-94, 107-183, 184-191, 192-199, 201, 202-203, 211, 212(3), 218 and 240 of the Act, or any of them, laws with respect to the people of any race for whom it is deemed necessary to make special laws, within the meaning of s 51(xxvi) of the Constitution? 10.(b) Are the provisions of ss 10, 11, 12, 19, 20-45, 47-54, 56(5), 57-60, 61-79, 80-94, 107-183, 184-191, 192-199, 201, 202-203, 211, 212(3), 218 and 240 of the Act, or any of them, laws with respect to external affairs within the meaning of s 51(xxix) of the Constitution by virtue of: (a) the International Convention on the Elimination of all Forms of Racial Discrimination; or (b) the International Covenant on Civil and Political Rights? 10.(c) If no to 10(a) and 10(b) in respect of any provision is that provision invalid? 11. Do ss 10, 11, 12, 21-45, 47-54, 56(5), 57-60, 61-79, 80-94, 107-183, 184-191, 192-199, 201, 202-203, 211, 212(3), 218 and 240 of the Act, or any of them, have no lawful operation by reason of s 7 of the Act and the operation of the Racial Discrimination Act 1975 (Cth)? 12. Are the provisions of Subdiv B of Div 3 of Pt 2, when read in the manner required by s 44 of the Act, laws with respect to the corporations referred to in s 51(xx) of the Constitution? 13.(a) Was the Act passed in accordance with s 53 of the Constitution? 13.(b) If no to 13(a), is the Act invalid? 14. If any provision or provisions of the Act is or are invalid, is it or are they severable and, if so, to what extent?" In the Wororra case and the Martu case the following additional questions were reserved: "15. Are the provisions of the Land (Titles and Traditional Usage) Act 1993 (WA) (the 1993 WA Act) or any of them inconsistent with the provisions of s9 of the Racial Discrimination Act 1975 (Cth) and therefore invalid by reason of s 109 of the Constitution? 16. Are the provisions of the 1993 WA Act or any of them limited in effect or inoperative by reason of s 10 of the Racial Discrimination Act? 17. Are the provisions of the 1993 WA Act or any of them inconsistent with the provisions of s 10 of the Racial Discrimination Act and therefore invalid by reason of s 109 of the Constitution? 18. Is the whole or any part of the 1993 WA Act and Regulations inconsistent with the Native Title Act 1993 (Cth), the Regulations and Determi-nation No 1 thereunder, and invalid by reason of s 109 of the Constitution?"

The cases were heard together.


K H Parker QC, Solicitor-General for the State of Western Australia, and D F Jackson QC (with them A Robertson, C A Wheeler and K M Pettit), for the State of Western Australia in each case.


D F Jackson QC. Sections 11, 19-23, 26, 28, 43 and 211(2)of the Native Title Act 1993 (Cth) (the Act), if otherwise within power, are invalid because they legislate about the validity and efficacy of exercises of State legislative and executive powers. They seek to perform the function which s 109 of the Constitution is itself intended to perform. The Commonwealth cannot make a law which is merely designed to prevent the States legislating upon a particular topic (1) West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 701-702; Victoria v The Commonwealth (1937) 58 CLR 618 at 639; Gerhardy v Brown (1985) 159 CLR 70 at 81, 121; Mabo v Queensland (No 1) (Mabo (No 1)) (1988) 166 CLR 186 at 197, 203, 243; R v Phillips (1970) 125 CLR 93 at 116.). The Commonwealth may legislate in such a way that a valid Commonwealth law and a State law will bedirectly or indirectly inconsistent within the meaning of s 109. The"invalidity" contem-plated by s 109 is not voidness either ab initio or from the commencement of the inconsistency. The Statelaw is not ultra vires. Rather, the inconsistency renders the law of the State inoperative during the existence of the inconsistency (2) Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 573, 574-575; Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 274, 278, 282-283, 286; University of Wollongong v Metwally (1984) 154 CLR 447 at 456, 461-463, 473-474, 477, 484-485). A State law which was in force prior to the inconsistency will again become operative when the Commonwealth law ceases to operate. The existence of inconsistency in terms of s 109 does not remove from a State its legislative power. Instead s 109 deals with the effects of exercise of that power during the period of inconsistency (3) Gerhardy v Brown (1985) 159 CLR 70 at 121). The "invalidity" effected by s 109 is brought about by s 109 and not directly by the relevant law of the Commonwealth (4) Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 120; R v Members of Railways Appeals Board and Commissioner for Railways (NSW); Ex parte Davis (1957) 96 CLR 429 at 439; R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563; University of Wollongong v Metwally (1984) 154 CLR 447 at 455, 460, 469, 473-474, 476, 478-479.). While a law of the Commonwealth may by its terms seek to indicate the extent to which the law is intended to occupy the relevant field to the exclusion of State law, the Commonwealth cannot legislate to displace or expand the operation of s 109, to prevent or control State legislative action, or with respect to State powers (5) Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 120; Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 548-549; R v Railways Appeals Board; Ex parte Davis (1957) 96 CLR 429 at 439; R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563; Palmdale-AGCI Ltd v Workers' Compensation Commission (NSW) (1977) 140 CLR 236 at 243; Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 464-465.). It is not the role of the Commonwealth Parliament to attempt to define the area of operation of State laws. Thus, the Parliament cannot validly deem a direct inconsistency which exists between a Commonwealth and a State law not to exist (6) R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563; University of Wollongong v Metwally (1984) 154 CLR 447 at 455, 460, 469, 474-475, 478-479, 483.). Similarly a law of the Commonwealth which is designed merely to exclude the operation of State laws and not to enact substantive law on a subject matter will not be justified as merely evincing an intention to cover the field (7) Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 120; Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 464-465). The Commonwealth Parliament may not prescribe the conditions upon which a State law will or will not be valid. That is the role of s 109. A Commonwealth law which in form purports to prescribe such conditions will be invalid. The Act goes beyond marking out the extent to which it is to operate to the exclusion of State law. Section 11(2) purports to control the legislative powers of the States by prescribing conditions upon which State laws will be valid. Section 19(1) and (2) are directed to no more than determining in the circumstances and terms in and upon which State legislative powers may be exercised. Sections 11 and 19 together single out and operate only upon exercises by polities of their legislative powers. They do not regulate acts which may impact upon the enjoyment of native title rights and interests generally, regardless of who is responsible for those acts. Sections 11 and 19 impose a control or burden upon the exercise of States' functions in that, contrary to ss 107 and 109 of the Constitution, they have the effect of diminishing the power of the States to legislate on a topic within their power. The Commonwealth might enact extensive legislation with the intention of covering the field of native title, thereby bringing s 109 into operation. But this is different from a bare attempt to exclude State concurrent power from a subject the federal legislature has not effectively dealt with by regulation, control or otherwise (8) Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 120.). The Commonwealth has not effectively dealt with the subject of extinguishment of native title by the validation of past acts attributable to the State. Indeed it expressly leaves the matter of validation of such acts to the States themselves. It has purported simply to impose conditions on the States' exercise of their legislative powers. Provisions of a law of the Commonwealth which purport to deny operational validity to a law of the State cannot of their own force achieve that object (9) R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563.). It is not to the point that a law, if enacted by the State Parliament, will be invalid by reason of its inconsistency with a Commonwealth law. For the same reasons that the Commonwealth cannot prohibit the exercise of State legislative powers absolutely, it may not do so conditionally, as ss 11 and 19 purport to do. The effect of s 22, when read together with ss 235 and 236, is to impose a condition upon the exercise of the States' legislative powers, by requiring that any legislation dealing with or affecting native title provide for the equal treatment of native title and other forms of title, notwithstanding possible, and indeed likely, differences in the content of such title. The Commonwealth cannot simply declare that a State Act is invalid. It can only legislate in a way which causes s 109 to bring about that result. The legislative and judicial functions of the States are such that no attempt by the Commonwealth Parliament to prescribe their scope, rather than to legislate on a particular subject matter itself, will be valid (10) West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 701; Victoria v The Commonwealth (1937) 58 CLR 618; Re Tracey; Ex parte Ryan (1988) 166 CLR 518 at 547, 574-575; Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 120; University of Wollongong v Metwally (1984) 154 CLR 447 at 455.). The Act purports of its own force to deny validity to a State law. Sections 23, 26 and 28 have the effect that before exercising their legislative or executive powers in the manner to which s 26(2) refers, a State is obliged to comply with the procedural requirements established by the Commonwealth and may, in the result, be prohibited from exercising those powers as it sees fit. If the State does not comply with the Commonwealth's procedural requirements, any exercise of its legislative or executive powers in the manner described in s 26(2) is deemed to be invalid and ineffectual. Upon a State's exercising its legislative or executive powers, and having complied with any procedural requirements established by the Commonwealth, it may become liable to pay compensation to native title holders. And notwithstanding anything which the State provides to the contrary, the non-extinguishment principle applies. Sections 26 and 28 impose a control or burden upon the exercise of State legislative functions. The control or burden lies in the State's being required to comply with the procedural requirements imposed by the Commonwealth in order to exercise its legislative powers validly. In particular, the Act envisages that the National Native Title Tribunal, an arm of the Commonwealth executive, may deny a State its ability to exercise its legislative powers. Further, s23(3), (4) and (5) impose a discriminatory fiscal burden on the exercise by a State of its legislative functions. Those sub-sections do not impose a liability to pay compensation on any and all persons whose conduct may extinguish, impair or infringe native title. Rather, they take the exercise of legislative power by a State as the occasion for the imposition of liability to pay. Those provisions are also invalid because they purport to alter the Constitutions of the States, eg where a State intends by statute to create, vary or extend a right to mine, s 23(2) makes Subdiv B apply. Subdivision B provides that there be a right to negotiate with the government party. As part of the right to negotiate, the government party must give all native title parties an opportunity to make submissions and to negotiate with a view to obtaining the agreement of those parties. Further, an arbitral body (either the Tribunal or a State body) must mediate to assist the parties to reach agreement: s 31. Section 42 also confers on the Commonwealth Minister the power to overrule a determination made by the Tribunal. As such, s 23, read with the provisions in Subdiv B, purports to have the effect that where a State wishes, by legislation, to create, vary or extend a right to mine, the legislation will not be valid unless the right to negotiate has been complied with. The Constitution Act 1889 (WA), s 2(2) provides: "The Parliament of Western Australia consists of the Queen and the Legislative Council and the Legislative Assembly." The constitution of the Western Australian Parliament is preserved by s 106 of the Constitution and cannot be altered otherwise than in accordance with the Constitution of Western Australia (11) Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 242). In particular circumstances Subdiv B purports to incorporate both the Tribunal and the Commonwealth Minister as necessary elements of the State's legislature. No matter how widely the legislative powers in s 51 are construed, they do not permit the Commonwealth to require the consent of another body before a State law can be made. (He referred to The Commonwealth v Queensland (12) (1920) 29 CLR 1.); Victoria v The Commonwealth (13) (1957) 99 CLR5 75); and Australian Coastal Shipping Commission v O'Reilly, (14) (1962) 107 CLR 46).) To the extent that s 43 purports to validate or invalidate State laws, it is invalid. A Commonwealth law which purports to deny validity to State law cannot of its own force achieve that object. Section 109 is not a grant of power to the Commonwealth to declare an exercise of State legislative power invalid. Similarly, a Commonwealth law cannot empower its executive to make a determination whether State laws are valid or invalid. Section 43 offends this principle because it purports to give to the relevant Commonwealth Minister the power to validate certain State laws by making a determination under s 43(1) or to invalidate them by refraining from making such a declaration. Section 43 is distinguishable from provisions which make Commonwealth laws inapplicable in circumstances where there is an alternative State regime or an agreement between the State and the Commonwealth (15) Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340.). In such cases the ambit of the Commonwealth law is diminished when the arrangement is in place, thus removing the conditions upon which s 109 would otherwise operate to render the State law invalid. In this way, the role of s 109 is not usurped. Section 43 does not simply make certain provisions of the Act inapplicable, so removing the condition for the operation of s 109. It purports to leave the Commonwealth law in place and to circumvent the operation of s 109 by empowering the Commonwealth Minister to determine from time to time, as a matter of executive power, the intention of the Commonwealth Parliament as to the field occupied by the provisions of Subdiv B. To the extent that s 211(2) would have the effect of declaring or altering the effect of State laws, it is invalid. It purports to limit or deny the validity of a State law. Section 109 does not support such a law. If the approach taken by the Commonwealth is open, it is able unilaterally to convert its concurrent legislative powers into exclusive powers. The legislative forms used in the Act permit the Commonwealth to legislate directly in relation to legislative powers of the States. That has the effect that s 109 ceases to be the constitutional mechanism for resolving conflicts between the exercise of legislative powers and becomes the source of Commonwealth power. Section 12 is invalid for three reasons: it purports to control the legislative powers of the State; it does not enact substantive law; and it offends the separation of legislative and judicial powers provided for by the Constitution. It adds no new content to the common law relating to native title. Its intention is that the common law, which is subject to inconsistent enactments of State legislatures, will prevail over State statutes inconsistent with it. Commonwealth legislative powers do not extend to a "law" which is merely designed to prevent States legislating upon a particular topic (16) Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 120; R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 562-563; Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 465.). Section 12 is a device to attract the operation of s 109. It is identical to a Commonwealth law which provides that "No State shall legislate inconsistently with the common law with respect to native title", or "Any State law inconsistent with the common law of native title is invalid". If s 12 is valid, the Commonwealth could enact legislation which selects all or part of a subject matter referred in a paragraph of s 51 of the Constitution, provide that the common law in relation to that topic has the effect of a law of the Commonwealth and prohibit the making of State laws about that subject matter. That s 12 is a device to attract s 109 is evident from its being expressed to operate retrospectively. It thus seeks to render inoperative State laws passed before its commence-ment. In its retrospective operation s 12 seeks not only to invalidate State laws and control State legislative powers but also to alter the operation of s 109 by creating an inconsistency which previously did not exist (17) University of Wollongong v Metwally (1984) 154 CLR 447 at 457, 475, 478-479.). Section 12 is not a "law" as contemplated by s 51 and s 109 because it enacts no substantive provisions. It has no certainty of operation such as to make it "with respect to" a particular head of Commonwealth legislative power. For a State law to be invalid under s 109 there must be an inconsistent Commonwealth law which has some substantive operation. Section 109 is intended to resolve actual conflicts between inconsistent laws. It does not confer a general supremacy on the Commonwealth (18) West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 699.). Section 12 confers no right or privilege and imposes no duty or obligation. Nor is it an adjectival or procedural law. It only attempts to confer the Commonwealth's perceived supremacy on a pre-existing body of law. The evolutionary nature of the common law creates inherent difficulties in describing it as a "law of the Commonwealth". A prior decision of a court does not constitute the law; it is one judicial declaration of the law (19) Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia (1913) 17 CLR 261 at 275.). Section 12 is intended to enable the continued development and evolution of the common law in respect of native title while at the same time giving the common law legislative force. It therefore enables the judiciary to determine the content of the common law and thus alter the effect of the Act itself and so confers a legislative function on the judiciary. The Constitution incorporates the fundamental principle of the separation of powers. It does not allow any function to be reposed in a court established by or under Ch III which is not part of the judicial power and not auxiliary or incidental thereto (20) Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 98; R v Kirby; Ex parte Boilerrnakers' Society of Australia (1956) 94 CLR 254 at 271-272.). Parliament cannot vest in Ch III courts or delegate to them the ability to amend the statutory law of the Commonwealth. To do so would be to confer legislative power. A Commonwealth law is not invalid on every occasion where it makes reference to the common law. There are instances where a Commonwealth law which incorporates common law principles will be valid. A law which seeks to apply laws, including the common law, to a particular Commonwealth territory will be valid, particularly given the wide powers in s 122 of the Constitution. In these cases the Commonwealth law is clearly "with respect to" territories or places, and puts in place a system of law which hitherto did not exist. Similarly, a law which provides that a court established by the Commonwealth Parliament must apply the common law and statute law of a State is valid. The law is within power because it is limited to the courts' constitutionally confined jurisdiction. It preserves the common law, as it is altered from time to time, and the ability of all legislatures to alter that law. It does not alter the constitutional balance between the judiciary and the legislature. A law on a particular subject matter which merely evinces an intention not to displace the common law to the extent that it is not inconsistent with the Commonwealth law is valid. It operates in the same way as a law which seeks to so preserve State laws. In the same way a Commonwealth law which seeks to exclude the operation of the common law may effectively do so. A Commonwealth law which is within power under s 51 may validly be given substantive content by reference to the common law or State law or both. In those cases the Commonwealth does not merely purport to give the force of a law of the Commonwealth to the common law. A new substantive right or obligation is created by the Commonwealth law which is given some of its content by reference to the common law. Such a law is not open to objection since the new substantive right or obligation is clearly within power, and the law, by creating new fights, is not a bare attempt to exclude State legislative power. The Act is invalid on another ground. The Commonwealth cannot discriminate against the States by placing on them special burdens or disabilities. Nor will a law of general application be valid if it operates to destroy or curtail the continued existence of the States or their capacity to function as governments (21) Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 217; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 134, 163, 210, 241.). It is inconsistent with the federal system for the Commonwealth to enact legislation directly compelling States to take or refrain from taking action in a manner prescribed by the Commonwealth or penalising them for failing to act in a manner so prescribed(22) Victoria v The Commonwealth (1942) 66 CLR 488 at 515; South Australia v The Commonwealth (1942) 65 CLR 373 at 442, 468-469.). The Commonwealth may not commandeer State legislative or executive structures (23) Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 81-82; Gerhardy v Brown (1985) 159 CLR 70 at 81, 120-121; Mabo (No 1) (1988) 166 CLR 186 at 197, 203, 242-244; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 547, 574-575, 592, 599.). The Constitution requires the States to be able to exercise their constitutional functions for themselves when those functions are otherwise available to them (24) Leeth v The Commonwealth (1992) 174 CLR 455 at 467). A similar principle applies in relation to the Commonwealth commandeering of legislative and judicial powers of the States. Despite its apparently general application, the Act treats Western Australia unequally. The operation of s 223, and the retrospective element of the operation of s 12, are aimed at Western Australia and at the Land (Titles and Traditional Usage) Act 1993 (the State Act). The ability to take and to regulate the use of land is a function which underpins the State's capacity to function in a constitutional sense. Control on the way in which a State deals with its territory attracts the fetter on Commonwealth power because of the importance of territory to government. The disposition and regulation of territory is an important function with which the Constitution deals. Sections 51(xxxi), 111, 123 and 124 show a concern to preclude the Commonwealth from legislating, without the consent of the State, in a manner that would deprive the State of its legislative or executive authority with respect to its territory. Section 51(xxxi) allows the Commonwealth to acquire property from the States, but only on just terms, and the concept of acquisition is to be broadly understood, so that a State cannot be deprived other than by legislation under s5l(xxxi) of the incidents and benefits of ownership. Sections 111, 123 and 124 are concerned to ensure that the Commonwealth is not able to take over, in a governmental sense, the territory of the State or to deprive the State of governmental authority with respect to any part of its territory, without consent of the State. The effect of the Act is to impair the State's ability to make decisions in either its legislative or its executive capacity relating to the disposition of its own territory; to deprive the State in effect of its radical title with respect to its territory. A law having that effect infringes the constitutional prohibition. The intrusion of the Act into every aspect of State decision-making with respect to land, and the Commonwealth ministerial veto under the "right to negotiate" procedure, deprives the State of any ability to plan how its land will be used or what activity it will authorise on its land. No matter how important the proposed use (either on its own, or as a small part of a major project such as a gas pipeline), or how carefully planned the State project, there would be no certainty of result. Effectively, the State is deprived of its capacity to plan for and to manage, as a whole, the territory of the State. The Act interposes an additional level of decision-making in respect of every legislative and executive decision of importance in relation to land which may be the subject of a claim for native title. Additionally, in its operation in relation to Western Australia, the Act subjects the State to direct control when making decisions in relation to all areas of unalienated Crown land, and potentially of some areas of other land such as pastoral leases. The purpose and effect of the Act is to regulate State functions. Some governmental decisions cannot be carried into effect at all, as "impermissible future acts". Others may be given effect only subject to onerous conditions which do more than protect native title. Eg, no governmental function may be performed in relation to land the subject of native title unless it can also be performed in relation to freehold fee simple land: ss 235, 253, 23(b), although the native title rights may not be equivalent to freehold, and compensation must be paid even if the State determines that it is not appropriate to provide compensation to the holders of any other interest: s 23. Many other functions are subject to the veto of a Commonwealth authority and a Commonwealth Minister: Pt 2, Div 3(B). The proportion of the territory of the State controlled is extraordinary, as are the range and functions controlled or prohibited. These circumstances create the "exceptional situation" adverted to in the Tasmanian Dam Case (25) (1983) 159 CLR 1 at 141) and Richardson v Forestry Commission (26) (1988) 164 CLR 261 at 305). The constitutional prohibition is attracted by the size of the area and range of governmental functioning which is effectively subject to a Commonwealth veto. The effect of s 7 is that in the case of inconsistency between it and the Racial Discrimination Act 1975 (Cth) (the 1975 Act), the 1975 Act prevails. By reason of s 7, if provisions of the 1975 Act require or permit the doing of an act involving a distinction, exclusion, restriction or preference based upon race, colour, descent or national or ethnic origin, and have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life, then, in order that the operation of s 9(1) of the 1975 Act not be affected, the offending provisions must be regarded as inoperative (27) Gerhardy v Brown (1985) 159 CLR 70 at 131). If by reason of the 1975 Act persons of a particular race, colour, descent or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy that right to a more limited extent than such persons, then, in order that the operation of s 10(1) of the 1975 Act not be affected, the offending provisions must be regarded as inoperative to the extent necessary to restore equality before the law (28) Gerhardy v Brown (1985) 159 CLR 70 at 232). By reason of s 223 of the Act, there is both a "racial" and a "proprietary" test of native title. However. it cannot be said that the Act has a proprietary rather than racial basis. Under the common law, only people of the Aboriginal race are capable of possessing native title. Thus, the proprietary requirement in s 223(3) is merely an additional characteristic which persons other than Aboriginals would be unable to satisfy. A definition of the benefited class under legislation by reference to an attribute specific to a particular race identifies the members of that race as members of the class as surely as if membership of the particular race was expressed in the definition (29) Gerhardy v Brown (1985) 159 CLR 70 at 85, 118). To the extent that the Act permits or requires the doing of acts which involve a distinction in the treatment of native title holders and other persons, or confers rights, benefits or protections on native title holders, it is racially discriminatory in that it permits or requires the doing of acts which are based upon a distinction between people of the Aboriginal race and people of other races; or it confers benefits on people of the Aboriginal race to the exclusion of all other races. The Act generally, and ss 22, 23, 24(2), 25(2), 29-43, Pts 3, 4, 6-8, 10, 11 and ss 211(2) and 218 in particular, permit or require the doing of acts involving a distinction or preference based upon race. Each of the acts required or permitted by the Act which involves a distinction between people of the Aboriginal race and other people has the effect that people who are not of the Aboriginal race do not enjoy the human right of equality before the law, or enjoy that right to a lesser extent than people of the Aboriginal race (30) Gerhardy v Brown (1985) 159 CLR 70 at 128). Further, s 218 has the effect that people who are not of the Aboriginal race do not enjoy the human right to equal participation in public affairs and to equal access to public service, or enjoy that right to a lesser extent than people of the Aboriginal race (31) International Convention on the Elimination of All Forms of Racial Discrimination, Art 5(c).). If, as s 7 requires, the Act is not to affect the 1975 Act, then each of the acts required or permitted by the Act which involves a distinction between people of the Aboriginal race and other people, and which has the effect that people who are not of the Aboriginal race do not enjoy the human right of equality before the law, or enjoy that right to a lesser extent than people of the Aboriginal race, will be contrary to s 9(1) of the 1975 Act. Accordingly, each section mentioned has no lawful operation. The Act confers upon people of the Aboriginal race legal rights, benefits or protections which are not or may not be enjoyed by persons of other races, in particular the rights to which ss 17, 20, 23(4), 51, 56(5), 201(2), 203, 211(2) and Pt 2, Div 3, Subdiv B refer. By reason of the additional rights, benefits or protections granted by the Act to people of the Aboriginal race which are not or may not be enjoyed by people of other races, the latter do not enjoy certain human rights and fundamental freedoms, or enjoy them to a lesser extent than people of the Aboriginal race, viz the rights in Art 5(a), (d), (i), (v), (vi), and (f) of the Convention. Section 10 of the 1975 Act prima facie requires the operation of the Act to be modified to the extent necessary to provide for equality in the enjoyment of human rights and fundamental freedoms by people of the Aboriginal race and other people. However, this cannot be done without the Court providing a notional regulation of the subject of native title. In the circumstances, the only way that the purpose of s 10 of the 1975 Act can be given effect is by overriding those provisions of the Act which confer discriminatory benefits on persons of the

Aboriginal race. Therefore, ss 12, 26-42, 45, 50, 51, 56(5), 201, 203, 211 and 240 have no lawful operation. The Act is racially discriminatory and does not give effect to the Convention unless as a special measure. The Act is discriminatory generally. It operates upon rights at law of occupancy and use of land, elevates those rights to Commonwealth statutory rights, and then seeks to protect holders of the rights from the normal incursions of State law for the purposes of conservation, development, roads, mining etc. The rights at law cannot be held by any person other than an Aboriginal. No comparable rights of the general population, such as prior possession or adverse possession, are similarly elevated or insulated. No rights of the general population in relation to land are similarly elevated or insulated. The following particular provisions are discriminatory or operate in a discriminatory manner: ss 51(1), 51(3), 240, 26-42, 50, 56(5), 201, 203, 211 . The Act is not a special measure within the Convention. Hence it does not give effect to the Convention. Its purpose and effect is to maintain and entrench permanently the concept of separate rights which may be held only by the members of one racial group. Such a permanent entrenchment cannot be a "special measure". Views in Gerhardy v Brown to the contrary should be reconsidered. The underlying notion of the Convention is of equality without distinction by reason of race. The provisions of the Act that permit or require the doing of acts which involve a distinction in the treatment of native title holders and other persons, or confer rights, benefits or protections on native title holders, are not special measures within Art 1(4). They do not have as their sole purpose the securing of the adequate advancement of people of the Aboriginal race, but have a number of other purposes, such as the rectification of past injustices and the provision of certainty and enforceability in relation to acts potentially made invalid by reason of native title. They cannot reasonably be regarded as appropriate and adapted to the sole purpose of securing the adequate advancement of people of the Aboriginal race, in light of the political, social, cultural and other circumstances appertaining to those people (32) Gerhardy v Brown (1985) 159 CLR 70 at 137, 149, 153). There are no human rights or fundamental freedoms which the Act assists people of the Aboriginal race to enjoy or exercise. They will lead to the maintenance of separate rights for different races. There is no indication that they will not be continued after the objectives for which they were introduced have been achieved. Although what is "necessary" for the purposes of s51(xxvi) is a matter for the Parliament, the questions whether the law is "special" and whether it is with respect to the people of any race are matters for the courts (33) Koowarta v Bjelke-Petersen (1982) 153 CLR 168 the Tasmanian Dam Case (1983) 158 CLR 1.). It must be possible to characterise the law as a law with respect to the people of the race, and also to conclude that it is a special law and is capable of being deemed "necessary" by the Parliament. Mabo (No 1) (34) (1988) 166 CLR 186,) and Mabo (No 2) (35) (1992) 175 CLR 1) show that native title is recognised by the common law and can be protected by remedies presently appropriate under the law. In so far as there might otherwise have been any racially discriminatory aspects of any law affecting native title, ss 9 and 10 of the 1975 Act would operate to put that title on an equal footing with other titles. In Western Australia, in particular, if it is assumed for present purposes that native title survived to the present, such defects in native title as may have been inherent in it at common law were remedied by the State Act. In the circumstances it cannot be concluded that the Act is a special law, particularly when its effect is to grant rights to those who, ex hypothesi, were not dispossessed. Nor could it be concluded that such a law, at least in its application to Western Australia, could be regarded as "necessary". For the reasons already advanced, the Act is in substance a law with respect to governments and governmental activity, including the validity of that activity, and not a law with respect to the people of any race. The essence of Div 3 is that a State may not affect native title rights by legislation or executive acts without the agreement of the holders or the consent of the Commonwealth. That is legislation about State powers. Although s 223(3) is expressed in general terms to apply to any compulsory conversion of native title into statutory rights and interests, in substance and effect it could apply only to the conversion of native title rights and interests into statutory rights and interests effected by s 7 of the State Act. At that time no other Parliament had enacted a similar law and s 223(3) would have no real operation in relation to a future Act because such an Act would necessarily need to be a permissible future Act and so would fall outside s 223(3). Because at the time of the enactment of s 223(3) if no application other than in relation to the State Act, it admits of no other reasonable explanation than that it was passed with the intention of singling out the exercise of Western Australia's legislative powers and rendering their exercise inefficacious. It is aimed specifically at the restriction or control of the exercise of Western Australia's legislative functions. In these circumstances, in its application to Western Australia by reason of s 223(3), the Act is outside the legislative powers of the Commonwealth. Further, s 223(3) takes one of a number of circumstances by which native title rights may have been extinguished or affected before the operation of the Act and singles out that circumstance for special treatment. Section 223(3) does not, for example, seek to draw into its purview grants of freehold or Aboriginal reserves which have extinguished or replaced native title. It is framed so that it will leave unaffected all previous extinguishment or affectation of native title interests except those brought about by the State Act. As a result, the way in which Western Australia has previously affected native title is singled out compared with the way in which other States have affected it. Section 223(3) also isolates and alters the effect of a particular statute of a State. The State Act creates certain rights and limits their scope by reference to their incidents and liability to be extinguished. These aspects are integral to the nature of the rights created and cannot logically be separated from them. But that is what the Act seeks to do. It seeks to take a State statutory right and transform it into something else for the purposes of a Commonwealth Act. The selection of that fight for this treatment manifests an intention to discriminate against Western Australia in the exercise of its legislative powers. Rather than legislating in such a way that the Western Australian right is by s 109 extinguished and replaced by a Commonwealth right, s 223(3) seeks to pick up the Western Australian right while selectively choosing which of its incidents it will retain. In doing so the Commonwealth seeks impermissibly to alter the effect of the Western Australian enactment. (He referred to Pareroultja v Tickner (36) (1993) 42 FCR 32).) The Native Title Bill 1993, being a "proposed law" within s 53 of the Constitution, was amended by the Senate so as to increase a proposed charge or burden on the people within the meaning of the third paragraph of that section. The amendments inserted ss 56(5) and (6), 200 and 204-207. A breach of the third paragraph of s 53 results in the invalidity of the subsequent Act. The Court should not decline to review the validity of the law on the basis that s 53 deals with "proposed laws" or "any proposed law", and that all that is at issue is the conduct by the Houses of Parliament of their internal affairs. Those words are apt to describe the stage then reached by the legislation, and are used to identify the measure rather than provide a foundation for a conclusion that there can be no judicial review. Whilst two justices in Osborne v The Commonwealth (37) (1911) 12 CLR 321 at 336, 355) took the view that the Court would not interfere, that case in fact concerned s 55. Some matters which are conducted within the Houses of Parliament are merely internal affairs and therefore are not subject to review by a court. Other matters however go to the conditions of law-making imposed by the Constitution and therefore should be considered when the validity of an enactment is challenged on this ground (38) Clayton v Heffron (1960) 105 CLR 214 at 234-235; Bribery Commissioner v Ranasinghe (1965) AC 172; Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) (1970) AC 1136; Cormack v Cope (1974) 131 CLR 432 at 454; Victoria v The Commonwealth and Connor (1975) 134 CLR 81 at 118, 162, 177-180.). Section 53 is not concerned with intra-mural matters as between the Houses or with breaches of the Constitution which it is open to the House of Representatives to waive. So to construe it would be to equate its significance to that of the Standing Orders. Section 53 should be seen as imposing limitations on the Senate's powers in respect of certain types of legislation, The States have an interest in those powers. A proposed law which has been amended in breach of s 53 should be held invalid. One cannot speculate whether the Senate would have rejected the whole of the Act but for the breach. The third paragraph of s 53 is not limited to the imposition of taxation or the appropriation of revenue. The proper test for whether a proposed law increases any proposed charge or burden on the people is the likely practical effect of the amendment. Each of the three amendments would necessarily increase the charge or burden on the people otherwise involved in the proposed law.


K H Parker QC. Any interests in land held by the Aboriginal inhabitants of Western Australia ended upon the establishment of the colony. The instruments establishing the colony, considered in the context of the surrounding circumstances, should be examined to determine whether there has been an extinguishment (39) Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 530). The purpose of the inquiry is to discern the intention of the Crown (40) Adeyinka 0yekan v Musendiku Adele (1957) 1 WLR 876 at 880; (1957) 2 ALL ER 785 at 788.). There is a presumption that the rights of the aboriginal inhabitants are to be fully respected (41) Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399 at 407; In re Southern Rhodesia (1919) AC 211 at 233.). The relevant presumption concerns the intention of the Crown. It is not a conclusion about the legal effect of settlement on aboriginal interests. It is not a legal fiction as to the Crown's intention. The presumption is a means to an end (ie the Crown's intention) and not an end in itself. The correct approach is to take into account all factors making up the context of the settlement in discerning the Crown's true intention. Those factors will include whether there is any affirmative policy of recognition of aboriginal interests in land (42) Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399 at 404; Administration of Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 380-381.). The Crown may acquire only a radical title. Whether it acquires that or complete title depends on its intention at settlement. Prima facie, it acquires only radical title (43) Amodu Tijani v Secretary, Southern Nigeria). Extinguishment cases in the United States, New Zealand and Canada are to be treated with caution because of the different circumstances of settlement, cession or conquest in those countries. (He referred to Johnson v McIntosh (44) (1823) 8 Wheat 543); Nireaha Tamaki v Baker (45) (1901) NZPCC 371); and Calder v Attorney-General (British Columbia) (46) (1973) SCR 313; (1973) 34 DLR (3d) 145).) The circumstances of the establishment of Western Australia disclose an intention on the part of the Crown to acquire full beneficial ownership of the whole of the colony. That intention rebuts the presumption. (In support of this submission he referred to the following historical material (47) Swan River Papers (SRP), vol 3, pp 26. 27; Historical Records of Australia (HRA), Series 3, vol 6, pp 596, 598, 603, 606, 609-610; Swan River Act 1829 (imp); SRP, vol 4, p 18; vol 11, p 51: and Russell, A History of the Law of Western Australia and its Development from 1829 to 1979 (1980), pp 336-350.).) (DEANE J. Is this material directed towards establishing that the Crown assumed that there were no relevant rights and did things on that assumption or to establishing that it intended to extinguish any rights that did exist?) It was a necessary consequence of the Crown's intention to acquire absolute ownership that any competing interest would not survive. The Crown intended to acquire absolute ownership whether or not it addressed the question whether aboriginal claims existed to particular land. (MCHUGH J. Does the common law impute an intention to the Crown that must be displaced by positive evidence or does it look to an actual intention?) There is no imputation but rather a presumption that native title continues unless the contrary is established by the context or circumstances (48) Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399 at 410). (McHUGH J. It is not only an evidentiary presumption?) Yes. We do not rely on events after the establishment of the colony as extinguishing title. Rather we rely on those events as confirmatory of the fact that title did not survive establishment.


J J Doyle QC, Solicitor-General for the State of South Australia, (with him N A Marietta and G L Ebbeck), for the Attorney-General for that State, intervening in the first case. Sections 11, 19, 22, 23 and 28 of the Act are laws about the "validity" of State law in the true sense of the word and not in the s 109 sense. With the exception of s 11, all use the words "valid" or "invalid". In ss 14, 22 and 23 the context shows that the strict sense is employed. In a group of closely related sections one would expect the draftsman to use "invalid" with a consistent meaning. If that is the correct reading of the sections, it appears to be common ground that they are beyond power. If on the other hand the sections are a redundant declaration of the effect of s 109, they are invalid because redundant. They cannot be read as indicating the extent to which State laws are to be excluded from any operation upon the subject of native title on which the Commonwealth is legislating. The Commonwealth can state whether its law is or is not intended to make exhaustive or exclusive provision. That is a statement about its own legislative regime. But it does not have power simply to declare when State laws may or may not operate. If in 1956 the Commonwealth had declared that as from a certain date State laws relating to marriage and divorce did not operate, or operated only if they contained specific provisions, the law would be bad as an attempt to declare whether State laws may or may not operate on a Commonwealth head of power. But if the Commonwealth enacts some substantive laws about marriage and divorce, it can indicate, as an aid to the courts, to what extent those enactments are or are not to be exclusive of State laws. Section 11(1) does no more than tell the reader to read on. Then s 19 contains a bare statement about State power in relation to the extinguishment of native title. There is nothing substantive to which it is in aid. Metal Trades Industry Association of Australia v Amalgamated Metal Workers' and Shipwrights' Union (49) (1983) 152 CLR 632) is distinguishable because there was a clear substantive provision for the making of awards in settlement of an industrial dispute. In Botany Municipal Council v Federal Airports Corporation (50) (1992) 175 CLR 453), there was provision for the carrying out of Commonwealth works by a licensed person and the statement about the non-applicability of State law was an aid to the understanding of that regime. In Australian Coastal Shipping Commission v O'Reilly (51) (1962) 107 CLR 46), Commonwealth power supported the establishment of the Commission, and the statement of freedom from State taxes was simply an aid to the understanding of the terms on which it could enter the relevant field. The line between the two situations is not a mere matter of form. Section 109 requires the Court to identify inconsistency. If the Commonwealth can enact that laws with a specified content may apply or may not apply, the Court's role is supplanted. If the line is not drawn, the distinction between concurrent and exclusive powers begins to disappear, and the Commonwealth rather than the Court is allowed to determine the limits of State power. Section 20(2) imposes a liability on a State because its Parliament has enacted a law which has affected native title and is in some respect invalid or because someone not necessarily an officer of the State has affected a native title interest in apparent reliance on State legislation which did not support the thing done. The Commonwealth lacks power to make a State liable for compensation in those circumstances. A right to compensation may be given in respect of something done under an invalid law. But the imposition of a liability on a State when it has not been the beneficiary of the thing done, and has not caused the loss, has the potential to enable the Commonwealth to impair the ability of a State to function. Alternatively, it amounts to an acquisition of property from the State on other than just terms. Section 12 is invalid. The body of principles selected is not confined to those with a sufficient connection with a head of power. It is bad for uncertainty. It is either not a "law" of the Commonwealth in the sense of that word in s 109, so that s 109 would not apply to it, or it is an attempt to give the force of Commonwealth law to what is already law, and that is not to make a law with respect to a topic in a head of power. The only effect of s 12 is to limit State legislative power and it is invalid for that reason. No Australian Parliament can alter the content of the common law. Parliament can displace it, but not change it as common law. The common law is part of the States' constitutions. What the Commonwealth is trying to do is to say that a State cannot alter the common law and if it attempts to do so the State statute is invalid. That is an attempt to alter the States' constitutions. Section 51 is subject to the general implication that it will not authorise legislation which will inhibit or impair the continued existence of the States or their capacity to function as governments (52) Tasmanian Dam Case (1983) 158 CLR 1 at 139, 169, 212-216, 281; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 205-207, 217-220, 231, 246-248, 260; Re Lee, Ex parte Harper (1986) 160 CLR 430 at 442-444, 451-453, 465-467, 472-473.). The Act infringes the prohibition. It purports to declare validity or invalidity of State laws and executive acts rather than to deal in terms with native title and the extent to which acts may affect it: ss 11, 19, 22, 23(2), 28. Even if not to be read as determining validity and invalidity of State laws, it purports to control in terms the content of State laws rather than enact a regime of laws to which a State Parliament can adjust its laws, subject to s 109: ss 19(1), 22, 23. It does not enact laws and declare that certain State laws are or are not intended to be excluded. It simply declares that State legislation having a specified content may or may not operate. It purports to give the force of Commonwealth law to the common law in respect of native title. It denies to a State the ability, if it sees fit in the public interest, to acquire land compulsorily for public purposes, without compensation on just terms. It subjects the validity of legislation by the Parliament and the validity of executive acts of the government of a State to the decision of an arbitral body and ultimately of a Commonwealth Minister in relation to a category of legislative and executive acts: s 26(3)(a) to (c), and in relation to a decision to acquire land compulsorily for the purpose of conferring rights or interests: s 26(2)(d). The ability to make such decision is a central aspect of government. These aspects of the Act are inconsistent with the continued existence of the States as independent entities. It is fundamental that the Commonwealth Parliament has power to make laws on the subject matter of specified heads of power. Those laws are assured of supremacy by s 109. An attempt by the Parliament to specify when the laws or executive acts of a State will be valid, or to control directly the contents of a valid law or the terms on which an executive act will be valid, is to exercise a control over the functions of a State inconsistent with its independent existence.

G Griffith QC, Solicitor-General for the Commonwealth, and DJ Rose QC (with them H C Burmester and S J Gageler), for the defendant in the first case, and (with him R G Orr), for the Attorney-General for the Commonwealth, intervening in the other cases.


G Griffith QC. The acquisition of sovereignty by the Crown exposed native title to extinguishment by valid exercise of legislative or executive power inconsistent with the continued right to enjoy native title. However, any exercise of power to extinguish native title must reveal a clear and plain intention to do so (53) Mabo (No 2) (1992) 175 CLR 1 at 15, 64-65, 69-70, 82-83, 182-184, 195-196.). The common law presumption against governmental interference with property rights should be applied with as much vigour to aboriginal title as it is to traditional property rights (54) Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 520-525.). The general conclusion that native title survived the acquisition of sovereignty in Australia reflects a similar common law presumption that the Crown intended the property rights of indigenous inhabitants to be fully respected. No express recognition, preservation or acceptance of those rights by the Crown was therefore required (55) Mabo (No 2) (1992) 175 CLR 1 at 82-83, 182-194; In re Southern Rhodesia (1919) AC 211 at 233; Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399 at 407, 410 Adeyinka Oyekan v Musendiku Adele (1957) 1 WLR 876 at 880; (1957) 2 All ER 785 at 788.). Any assumption by Imperial, Colonial or State officials that there were no indigenous inhabitants or that indigenous inhabitants had no native title rights is irrelevant, as is the purpose for which the colony was established. In any event, the historical material on which Western Australia relies shows that the Crown did recognise the rights of the Aboriginal peoples in the course of settlement. The fact that the Parliament of Western Australia in making legislation may have assumed that there was no native title (an assumption now both incorrect and irrelevant) does not extinguish native title. The fact that the legislature may have regulated the enjoyment of native title or created a regime of control does not reveal a clear and plain intention to extinguish native title rights (56) Mabo (No 2) (1992) 175 CLR 1 at 64-65; R v Sparrow (1990) 1 SCR 1075 at 1111; (1990) 70 DLR (4th) 385 at 400; United States v Santa Fe Pacific Railroad Co (1941) 314 US 339 at 353, 354.). The Commonwealth Act is supported by s 51(xxvi). It is sufficient for a law to be a "special law" for "the people of any race" within the meaning of s 51(xxvi) that in its terms or its operation it confers a benefit or imposes an obligation on the people of a race which benefit is not conferred or obligation is not imposed on other people or confers a benefit or imposes an obligation on other people in their dealings with people of a race which benefit is not conferred or which obligation is not imposed in their dealings with people of other races (57) Tasmanian Dam Case (1983) 158 CLR 1 at 111, 245,). While the question whether a law is "special" is for Parliament, the Court must say whether the law Parliament has called "special" is capable of being so described. A "special" law is one with a differential operation. The determination of the "necessity" for the law is a matter for the Parliament (58) Tasmanian Dam Case (1983) 158 CLR 1 at 319). Section 51(xxvi) leaves no scope for judicial inquiry into the necessity for a law enacted in reliance upon it nor into the proportionality of the law's response to the circumstances perceived by the Parliament as requiring its enactment. The Act and each of its challenged provisions operates to confer a benefit on Aboriginal peoples. In relation to some provisions, the Act also operates to impose an obligation on persons dealing with native title. Apart from s 201, the challenged provisions benefit native title holders and therefore benefit Aboriginal peoples. The Land Fund established by s 201 is for the sole purpose of assisting Aboriginal peoples to acquire land and to manage the acquired land in a way that provides benefits to them. The Act is also supported by s 51(xxix) which empowers Parliament to make such laws as may reasonably be regarded as appropriate and adapted to the implementation of Australia's international obligations (59) Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 228-234, 240-242, 255-260; the Tasmanian Dam Case (1983) 158 CLR 1 at 130-131, 172, 232, 259; Richardson v Forestry Commission (1988) 164 CLR 261 at 289, 298-299, 308-312, 322, 332, 341-342.). The Act and each of the challenged provisions is appropriate and adapted to the implementation of Australia's obligations under each of Arts 2.2 and 5 of the Racial Discrimination Convention and Arts 2 and 27 of the International Covenant on Civil and Political Rights. A law is not normally regarded as discriminatory where it does no more than to adopt a distinction relevant to a permissible object to be attained and to assign differential treatment which is appropriate and adapted to the difference or differences which support that distinction (60) Street v Queensland Bar Association (1989) 168 CLR 461 at 569-574; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478; Waters v Public Transport Corporation (1991) 173 CLR 349 at 364; Leeth v The Commonwealth (1992) 174 CLR 455 at 488-489, 502.). (He referred to McKean, Equality and Discrimination in International and Municipal (Law (61) (1983), pp 136-152); Morton v Mancas (62) (1974) 417 US 535); R v Sparrow (63) (1990) 1 SCR 1075; (1990) 70 DLR (4th) 385); the Belgian Linguistics Case (64) (1968) 1 ECHR 252).) To the extent that Gerhardy v Brown proceeded on the basis that, unless justified as a "special measure", s 19 of the State Act was racially discriminatory in limiting the circumstances under which a non-Pitjantjatjara person might enter Pitjantjatjara land, the better explanation is that the limitations imposed by the section were not proportionate to the legitimate object sought to be achieved by the Parliament, and in particular were not the mere result of some general provision of the civil law defining the attributes or consequences of prior ownership of land. Alternatively, that aspect of the decision may need to be reconsidered (65) Sadurski, "Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case that Wasn't", Sydney Law Review, Vol 11(1986) 5; Brownlie, "The Rights of Peoples in Modern International Law", Crawford (ed), The Rights of Peoples (1988), pp 1-11.). The Commonwealth Act effects racial classifications, but neither as a whole nor in any of its challenged provisions does it have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights or fundamental freedoms. It operates to ensure that native title holders are able to enjoy the fundamental human rights to own property and inherit equally with other groups within the community. Such adjustments as it effects to municipal law are appropriate and adapted to that end. They do not have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms of non-native title holders. They therefore involve no racial discrimination within the meaning of the Convention, and it is thus unnecessary to resort to "special measures" to secure their justification. (He referred to Horta v The Commonwealth (66) (1994) 181 CLR 183); Re Yates; Ex parte Walsh and Johnson (67) (1925) 37 CLR 36 at 126-127); Johns v Australian Securities Commission (68) (1993) 178 CLR 408); Bowtell v Goldsborough Mort and Co Ltd (69) (1905) 3 CLR 44); and Wacando v The Commonwealth (70) (1981) 148 CLR 1 at 15-16).) Alternatively, the Act is a " special measure". To be so characterised it need only be reasonably capable of being seen to be for the purpose of securing the adequate advancement or protection of Aboriginal peoples in circumstances where that advancement or protection is necessary to ensure to them the full and equal enjoyment of human rights and fundamental freedoms (71) Gerhardy v Brown (1985) 159 CLR 70 at 133-139, 148-149). The proviso that a special and concrete measure must not be continued and must not entail the maintenance of separate rights after its objectives have been achieved does not require that a law implementing the measure should itself provide for its own termination. It is sufficient, as here, that it be capable of being revised by the legislature as circumstances may change (72) Gerhardy v Brown (1985) 159 CLR 70 at 105-106, 113, 139-141, 153-154). The Act does not purport to control State legislative powers. Sections stating that State laws will be "invalid" or "valid" employ an elliptical drafting form. The word "valid" is defined in s 253 to include "having full force and effect", words which state the negative of the operation of s 109 of the Constitution on inconsistent State laws. Section 11(1) and the related provisions accord with the established principle that Commonwealth legislation can exclude State laws from an area within any subject matter of Commonwealth legislative power (73) Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453 at 465; Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46 at 56-57; West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 670-671; Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 108-110, 119-120; Gerhardy v Brown (1985) 159 CLR 70 at 120-121.). In providing that native title "is not able to be extinguished contrary to this Act", s 11(1) should not be treated as if, in relation to State legislation, it read "A State Parliament has no power to enact legislation extinguishing native title if it is contrary to this Act". Neither s 11(1) nor any of the related provisions purports to limit State legislative power or legislative action. They are concerned only with the effect of a State Act while it is in force. If the overriding Commonwealth provisions were repealed, the State laws would operate. The provisions indicate the kinds of State laws that will be "contrary to the Act" within s 11(1) and therefore are intended to be excluded from any application to native title and so to be invalid by reason of s 109. The use of the words "valid" and "invalid" does not "usurp" the function of s 109. Those provisions do two things. First, they indicate the extent to which State laws are to be excluded from any operation upon the subject of native title on which the Commonwealth is legislating under the relevant heads of power. Secondly, they declare the effect of s 109 on those laws. That second operation is redundant but it does not affect the validity of the first operation (74) Federated Saw Mill, Timber Yard, and General Woodworkers Employes' Association of Australasia v James Moore and Sons Pty Ltd (1909) 8 CLR 465 at 538; Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 548-549; Metal Trades Industry Association v Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR 632 at 641-643, 648-649). The Act does not single out States. Western Australia's submissions fail to observe the difference between extinguishment or other legal impairment of rights and conduct that infringes continuing rights. The Act is concerned only with the second. Its provisions do not discriminate against States since States are the only bodies that can extinguish or legally impair the legal rights of native title holders or authorise others to do so. A law which deprives the States of a right, privilege or benefit not enjoyed by others is not a law which singles out the States in any impermissible way (75) Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 217-218; Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (In liq) (1940) 63 CLR 278 at 313-314, 322-323.). Section 223(3) is valid. Neither in form nor in substance does it single out Western Australia for the imposition of a special burden or disability. In form, it applies equally throughout Australia. It does no more than ensure that like things are treated in a like manner. It ensures that the Act applies equally to native title rights and interests throughout Australia whether they exist at common law or by force of legislation. The peculiar nature of native title at common law means that it exists only in relation to Crown land; and it may be legally extinguished only by or under authority of legislative or executive act. In these circumstances a law which prevents the extinction or impairment of native title does not single out the States in any impermissible way. Alternatively, where the relevant legislative power authorises the singling out of a particular identified object, activity or situation for special legislative treatment, and a State or State agency is affected by reason of its relationship with that object or involvement in that activity or situation, the singling out is permissible (76) Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 251.). The Act is an example of that exceptional case of permissible singling out. It does not depend on or require implementation by State legislation or executive action. It has effect as a law of the Commonwealth. In enacting legislation States must do so consistently with the Act, but this is due to the operation of s 109. Whilst it is true that the Commonwealth cannot enact legislation directly compelling the States to take or refrain from taking action in a manner prescribed by the Commonwealth, that is not what the Act purports to do. A State is free to choose not to pass further legislation, in which event the regime set out in the Act will apply and will prevail by force of s 109 to the extent to which it is inconsistent with existing State legislation. The States have an incentive to enact legislation which is consistent with the Act. But such practical inducement is not to be equated with legal compulsion (77) South Australia v The Commonwealth (1942) 65 CLR 373 at 416-426.). (He referred to Hodel v Virginia Surface Mining and Reclamation Association Inc (78) (1981) 452 US 264) and Federal Energy Regulatory Commission v Mississippi (79) (1982) 456 US 742).) In so far as Western Australia argues that the Act interferes with the State's capacity to perform its governmental functions, the argument is inconsistent with the reasoning of the majority in the Tasmanian Dam Case (80) (1983) 158 CLR 1 at 214-215). The size of Western Australia and the range of State decision-making actually or potentially affected by the Act is simply a function of the legislative powers which are being exercised and of the subject matter to which the Act relates. Arguments that Commonwealth legislation has the effect of impairing or inhibiting the capacity of a State to govern, like arguments based on singling out or discriminating against a State, must be considered in relation to the true nature and scope of the legislative power or powers (81) Richardson v Forestry Commission (1988) 164 CLR 261 at 294, 305, 337; Re Lee; Ex parte Harper (1986) 160 CLR 430 at 453; Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 271-272, 274-275.). If the race power enables the Commonwealth Parliament to legislate to protect native title at all, it must extend to the protection of native title from State legislative or executive action which would otherwise lead to its extinguishment or impairment. Likewise the external affairs power must enable the Commonwealth Parliament to legislate against such State legislation or executive action as would place Australia in breach of its international obligations. Failure to comply with ss 53 or 54 of the Constitution is not justiciable and does not give rise to invalidity of the resulting Act when it has been passed by the two Houses and received the royal assent (82) Northern Suburbs General Cemetery Reserve Trust v The Commonwealth (1993) 176 CLR 555 at 578; Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 468, 471.). The Convention Debates confirm that the language of ss 53 and 54 was deliberately chosen in contrast to that of s 55 to ensure that the matters of procedure with which the former deals were to be settled between the two Houses of the Parliament themselves and were not to come before the courts (83) Official Report of the National Australasian Convention Debates, Adelaide, pp 472-473; Quick and Garran, Annotated Constitution of the Commonwealth of Australia (1901), pp 664-665.). Cormack v Cope (84) (1974) 131 CLR 432) and Victoria v The Commonwealth and Connor (85) (1975) 134 CLR 81) deal with s 57 of the Constitution and have no bearing on the construction of s 53. In any event, none of the challenged provisions was the result of a Senate amendment increasing any proposed charge or burden on the people. The Act does not conflict with the 1975 Act. Section 7 does not have any greater status than other provisions in the 1975 Act. In particular, it does not have the effect that the provisions of the 1975 Act can be rendered inoperative or be otherwise affected by provisions of the Act. Section 7(1) does no more than preserve the operation of the 1975 Act in relation to any acts affecting native title under State and Territory laws or under Commonwealth laws other than the Act. Section 7(2) creates an exception in relation to the "past acts" regime because the clear object of that regime is for the provisions of the Act to override any invalidating effect of the 1975 Act. Section 7(1) means not that the 1975 Act otherwise overrides the effect of the Act, but that the two Acts have effect within their separate and concurrent fields. The Act does not have as its purpose or effect the nullification or impairment of the recognition, enjoyment or exercise on an equal footing of any human rights and fundamental freedoms. The section is therefore inapplicable in accordance with its terms. As to s 10, the "right" to which the section applies is a "right" in the same broad sense as is used in the Convention and is not to be equated with enforceable legal rights under municipal law (86) Mabo (No 1) (1988) 166 CLR 186 at 216, 229). Section 10 does not apply to the municipal statutory rights created by the Act. As to the additional questions relating to the State Act, if the central provisions of the Act are valid, the provisions of the State Act which permit extinguishment otherwise than in accordance with the Act are inconsistent with the Act. The State Act is an "impermissible future act" within the meaning of s 22 of the Act and is inconsistent with s 11 of the Act. It is then unnecessary to answer the other questions. In any event, by reason of s 7 of the State Act native title holders suffer in comparison with other persons an impairment in the enjoyment of the human right to own and inherit property and the right to the protection of their cultural and spiritual heritage. The impairment cannot be justified as appropriate and adapted to the pursuit of some legitimate aim, The State Act extinguishes all native title in Western Australia. No other title is similarly affected. The replacement of native title with "rights of traditional usage" which have the same content as native title rights but which are to be treated as statutory grants, impairs the equal enjoyment of the human rights or fundamental freedoms of native title holders precisely because it treats unlike things in a like manner. The rights of traditional usage conferred by Pt3 of the State Act are conferred "subject to this Act": s 7(1)(b). The methods of extinguishment of rights of traditional usage permitted by s 23(a)-(d) and the right of public access created by s 21 allow for the impairment of the enjoyment of the rights formerly conferred by native title by means inapplicable to other forms of title under the general laws of the State. The rights which were formerly the incidents of native title are therefore subordinated to every other interest that can be granted over land. It is no answer to say that the methods of extinguishment of rights of traditional usage permitted by s 23 are no different from the methods of extinguishment of native title permitted by the common law. Since 1975 those methods of extinguishment of native title permitted by the common law have themselves been subject to the paramount operation of the 1975 Act (87) Mabo (No 2) (1992) 175 CLR 1 at 15, 74, 215-216). Nor does the existence of a right to claim compensation for the extinguishment, suspension or impairment of rights of traditional usage serve to negative the relative impairment of human rights or fundamental freedoms suffered by native title holders. Even if the method of determining compensation provided for by Pt 4 of the State Act were a reasonable method of compensating for the loss suffered, its vice is that it is entirely after the event. Native title holders are given no power to prevent the extinguishment, suspension or impairment, Part 2 of the State Act, to the extent that it purports to validate what is invalid by force of s 109 of the Constitution as a result of inconsistency with the 1975 Act, is invalid. It cannot validate retrospectively what the Constitution has declared to be invalid.

145. Section 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s.7(1) cannot be construed as intending to nullify those provisions. It may be that s.7(2) is otiose but that provision is properly to be seen as inserted out of an abundance of caution. It follows that the inconsistency between the W.A. Act and the Racial Discrimination Act either survived the enactment of the Native Title Act or, if the Native Title Act affected the relevant provisions of the Racial Discrimination Act, from the time when that occurred, an inconsistency arose between the W.A. Act and s.11 of the Native Title Act.


7. The validity of s.12 of the Native Title Act
146. Section 12 of the Native Title Act reads as follows:

" Subject to this Act, the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth."

Section 12 does not in terms make a law in the sense of creating rights or imposing obligations. It takes the common law as an entirety and purports to invest it with the force of a law of the Commonwealth. If s.12 be construed as an attempt to make the common law a law of the Commonwealth, the attempt encounters some constitutional obstacles. There can be no objection to the Commonwealth making a law by adopting as a law of the Commonwealth a text which emanates from a source other than the Parliament (330 Hooper v. Hooper (1955) 91 CLR 529 at 536-537. The law of the States that was picked up as a law of the Commonwealth in that case was statute law, not common law. Where a State statute is thus picked up and enacted as a law of the Commonwealth, the common law which has affected the construction of the text or has attached doctrines to its operation continues to have the same effect on the law of the Commonwealth as it has or had on the law of the State subject to contrary provision.). In such a case the text becomes, by adoption, a law of the Commonwealth and operates as such. But the common law is not found in a text; its content is evidenced by judicial reasons for decision. Isaacs J explained in Australian Agricultural Co. v. Federated Engine-Drivers and Firemen's Association of Australasia(331 (1913) 17 CLR 261 at 275-276.)that it is the declaratory nature of a judgment (332 See also Waterside Workers' Federation of Australia v. JW. Alexander Ltd. (1918) 25 CLR 434 at 463; Reg. v. Kirby; Ex parte Boilermakers' Society of Australia ("the Boilermakers' Case") (1956) 94 CLR 254 at 281) that allows for the evolution of the common law:

"A prior decision does not constitute the law, but is only a judicial declaration as to what the law is. The declaration, unless that of a superior tribunal, may be wrong, in the opinion of those whose present function is to interpret and enforce the law".

In Giannarelli v. Wraith, Brennan J said (333 (1988) 165 CLR 543 at 584.):

" In the view of a court sitting at the present time, earlier decisions which are not binding upon it do not necessarily represent the common law of the earlier time, though they record the perception of the common law which was then current."

His Honour went on to say that if a court, because it perceives the common law to be different from what it was earlier perceived to be, so declares it, then effect will be given to that declaration as truly representing the common law.


147. In construing s.12, the "common law" must be understood either as a body of law created and defined by the courts or as a body of law which, having been declared by the courts at a particular time, may in truth be - and be subsequently declared to be - different. Whether the common law be understood by reference to its source in judicial reasons for decision or by reference to its content as developing from time to time, there are objections to its being treated as a law of the Commonwealth.


148. If the "common law" in s.12 is understood to be the body of law which the courts create and define, s.12 attempts to confer legislative power upon the judicial branch of government. That attempt must fail either because the Parliament cannot exercise the powers of the Courts or because the Courts cannot exercise the powers of the Parliament. As Dixon CJ, McTiernan, Fullagar and Kitto JJ said in The Boilermakers' Case (334 (1956) 94 CLR 254 at 296; see also 271-272, 289, 292.):

"it has been found impossible to escape the conviction that Chap.III does not allow the exercise of a jurisdiction which of its very nature belongs to the judicial power of the Commonwealth by a body established for purposes foreign to the judicial power ... and that Chap.III does not allow a combination with judicial power of functions which are not ancillary or incidental to its exercise but are foreign to it."
Under the Constitution, the Parliament cannot delegate to the Courts the power to make law involving, as that power does, a discretion or, at least, a choice as to what that law should be (335.Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73 at 93; The Commonwealth v. Grunseit (1943) 67 CLR 58 at 66, 82-83.)


149. If one construes s.12 as importing the common law as an organic, developing but unwritten body of law, a further objection to validity arises. The Commonwealth relies on s.51(xxvi) and (xxix) to support s.12. It is common ground that s.51(xxvi) can support a law only if that law is one which the Parliament has deemed necessary for the people of a race. The content of any such law is one which the Parliament must itself consider although a delegation to the Executive Government to make a law of a regulatory kind to implement an Act of the Parliament can find support in that paragraph. The common law relating to native title is not regulatory; it is substantive law the content of which is declared from time to time by the courts. Mabo (No.2) is a dramatic example of how the declaration of the common law relating to native title can change when a new judicial examination is made of the basic legal principles which underlie a proposition earlier accepted. Ex hypothesi, when a court declares a change in the common law, the Parliament has not considered whether it is necessary to make that change as a special law for the people of a race. The content of the common law will, in the ordinary course of events, change from time to time according to the changing perceptions of the courts. And the changes occur without reference to the Parliament in which is reposed the power to make special laws for the people of a race as the Parliament deems necessary.


150. If s.51(xxix) is relied on no different conclusion is reached. The municipal law relating to native title has no external element which might attract the support of the external affairs power. The common law may, it is true, find in international law concepts or values which may advantageously be used in the development of the common law, but the common law of native title is not developed in order to satisfy the obligations of a treaty and its operation is necessarily confined within Australia's boundaries.


151. If s.12 be construed as an attempt to make the common law a law of the Commonwealth, it is invalid either because it purports to confer legislative power on the courts or because the enactment of the common law relating to native title finds no constitutional support in s.51(xxvi) or (xxiv). A "law of the Commonwealth", as that term is used in the Constitution, cannot be the unwritten law. It is necessarily statute law, for the only power to make Commonwealth law is vested in the Parliament (336 Constitution s.1; see also Covering Clause 5 and ss.51 and 52.). But the laws of the Commonwealth operate in the milieu of the common law. As Sir Owen Dixon observed (337 "The Common Law as an Ultimate Constitutional Foundation", in Jesting Pilate, (1965) at 205.):

"We act every day on the unexpressed assumption that the one common law surrounds us and applies where it has not been superseded by statute".

A law of the Commonwealth may exclude, wholly or partially, the operation of the common law on a subject within its legislative power (338 For example, s.6 of the Diplomatic Privileges and Immunities Act 1967 (Cth).) or it may confirm the operation of the common law on such a subject (339 For example, s.5 of the Insurance (Agents and Brokers) Act 1984 (Cth).)or it may simply assume that the common law applies to the subject (340 For example, s.5 of the Bills of Exchange Act 1909 (Cth); see Stock Motor Ploughs Ltd. v. Forsyth (1932) 48 CLR 128 at 137-139.), as in truth it does unless excluded. But the common law is not itself a law of the Commonwealth. Section 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth) is an apparent but not real exception to this proposition. That sub-section reads:

" The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time."

Under s.4(1), the provisions of the laws of a State at a particular time are made laws of the Commonwealth for Commonwealth places at that time. The Commonwealth refers to those provisions, whether statutory or not, as a dictionary for reference in ascertaining the rights and duties under Commonwealth law within Commonwealth places at the particular time. Section 4(1) does not enact either the State statute law or the common law as a law of the Commonwealth.


152. Section 12 of the Native Title Act does not in terms enact the common law as a law of the Commonwealth. It purports to give the common law "the force of a law of the Commonwealth". Section 12 simply attempts to engage s.109 of the Constitution in order to make the common law immune from affection by a valid State law. But it is of the nature of common law and of legislative power that the common law is subject to affection by exercise of legislative power. If s.109 could be engaged by s.12 to preclude the affection of the common law by a State law, it would have destroyed some of the legislative power of the State confirmed by s.107 of the Constitution. That is not the purpose of s.109. When s.109 is engaged, it does not diminish the legislative power of the State which has enacted the inconsistent law. Rather, s.109 operates only upon State laws that have been made in exercise of the legislative powers of the States confirmed by s.107. If s.12 of the Native Title Act were to result in the withdrawal from Parliaments of the States of an effective legislative power to override the common law, it would have diminished the legislative power confirmed by s.107 of the Constitution. And that it cannot do.


153. In argument, it was said that s.12 was the necessary foundation for the investing of federal jurisdiction to hear and determine claims with respect to native title. As native title is a concept of the common law, a claim in respect of native title might be thought not to arise under a law of the Commonwealth. But an application in respect of native title under the Act (341 See ss.61, 74, 81.) is a claim in respect of the rights and interests defined as native title by s.223 and protected by s.11(1) subject to the provisions imported by s.11(2). Recognition of those rights and interests by the common law is an element of the statutory definition (342 s.223(1)(c).) of native title but the need to establish that element does not deny to an application the character of a claim made under a law of the Commonwealth.


154. Section 12 is invalid but its invalidity does not affect the validity of any other provision of the Native Title Act.


8. Answers to questions
155. In the light of this review of the relevant laws of the State and the Commonwealth it is possible to answer the questions which were agreed by the parties as appropriate to be answered by this Court in the combined proceedings. The answer to question 18 is agreed once the other questions are answered in the manner stated. The questions and answers are as follows:

Q.1(a) If any communal, group or individual rights or interests of the nature referred to in sub-s.223(1) of the Native Title Act 1993 (Cth) ("the Act") existed in Western Australia at a time prior to European settlement in Western Australia, had such rights or interests come to an end by extinguishment or otherwise:

(i) by the establishment of Western Australia as a colony, or

(ii) by the time of the establishment of Western Australia as a self-governing colony, or

(iii) by the time of Federation, or

(iv) by the time the Racial Discrimination Act 1975 (Cth) came into force, or

(v) by 1 July 1993, or

(vi) by 2 December 1993, or

(vii) by 1 January 1994?

A.1(a) No.

Q.1(b) If yes to any part of 1(a), was the consequence that at the time the Act came into force, there was no part of Western Australia in which "native title" or "native title rights and interests" within the meaning of sub-s.223(1) of the Act were in being?

A.1(b) Unnecessary to answer.

Q.2 Is the Act, in so far as it operates in and in relation to Western Australia by reason of sub-s.223(3), beyond the legislative powers of the Commonwealth and invalid?

A.2 Unnecessary to answer.

Q.3 Are ss.11, 19 and 20 of the Act, or any of them, beyond the legislative powers of the Commonwealth and invalid?

A.3 No.

Q.4 Is s.22 of the Act, in so far as it applies to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?

A.4 No.

Q.5 Are the provisions of ss.23, 26 and 28 of the Act, in so far as they apply to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?

A.5 No.

Q.6 Are the provisions of s.43 of the Act, read with ss.23, 26 and 28, in so far as they apply to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?

A.6 No.

Q.7 Are the provisions of sub-s.211(2) of the Act beyond the legislative powers of the Commonwealth and invalid?
A.7 No.
A.8 Yes.

Q.9 Does the Act, in its application to Western Australia, impose a special burden or disability on and discriminate against Western Australia and/or is it inconsistent with the continuance of Western Australia as an independent polity within the contemplation of the Constitution and/or with its capacity to function as such and is the Act therefore beyond the legislative powers of the Commonwealth and invalid?

A.9 No.

Q.10(a) Are the provisions of ss.10, 11, 12, 19, 20-45, 47-54, 56(5), 57-60, 61-79, 80-94, 107-183, 184-191, 192-199, 201, 202-203, 211, 212(3), 218 and 240 of the Act, or any of them, laws with respect to the people of any race for whom it is deemed necessary to make special laws, within the meaning of section 51(xxvi) of the Constitution?

A.10(a) Yes - all of them except s.12.

Q.10(b) Are the provisions of ss.10, 11, 12, 19, 20-45, 47-54, 56(5), 57-60, 61-79, 80-94, 107-183, 184-191, 192-199, 201, 202-203, 211, 212(3), 218 and 240 of the Act, or any of them, laws with respect to external affairs within the meaning of section 51(xxix) of the Constitution by virtue of:

(a) the International Convention on the Elimination of all Forms of Racial Discrimination; or

(b) the International Covenant on Civil and Political Rights?

A.10(b) Section 12 is not a law with respect to external affairs within the meaning of s.51(xxix). It is unnecessary otherwise to answer this question.

Q.10(c) If no to 10(a) and 10(b) in respect of any provision is that provision invalid?

A.10(c) Yes: s.12 is invalid.

Q.11 Do ss.10, 11, 12, 21-45, 47-54, 56(5), 57-60, 61-79, 80-94, 107-183, 184-191, 192-199, 201, 202-203, 211, 212(3), 218 and 240 of the Act, or any of them, have no lawful operation by reason of section 7 of the Act and the operation of the Racial Discrimination Act 1975 (Cth)?

A.11 No.

Q.12 Are the provisions of Subdivision B of Div.3 of Pt 2, when read in the manner required by s.44 of the Act, laws with respect to the corporations referred to in s.51(xx) of the Constitution?

A.12 It was agreed that it is unnecessary to answer this question.

Q.13(a) Was the Act passed in accordance with s.53 of the Constitution?

A.13(a) No answer.

Q.13(b) If no to 13(a), is the Act invalid?

A.13(b) The Act is not invalid by reason of s.53 of the Constitution.

Q.14 If any provision or provisions of the Act is or are invalid, is it or are they severable and, if so, to what extent?
A.14 Yes: s.12 is wholly severable.

Q.15 Are the provisions of the Land (Titles and Traditional Usage) Act 1993 (W.A.) ("the 1993 W.A. Act") or any of them inconsistent with the provisions of s.9 of the Racial Discrimination Act 1975 (Cth) and therefore invalid by reason of s.109 of the Constitution?

A.15 Unnecessary to answer.

Q.16 Are the provisions of the 1993 W.A. Act or any of them limited in effect or inoperative by reason of s.10 of the Racial Discrimination Act?

A.16 The whole of the 1993 W.A. Act is inoperative either by reason of inconsistency with the provisions of s.10 of the Racial Discrimination Act and the operation of s.109 of the Constitution or, in the case of s.5 of the 1993 W.A. Act, because it had no legal effect on the title to any parcel of land.

Q.17 Are the provisions of the 1993 W.A. Act or any of them inconsistent with the provisions of s.10 of the Racial Discrimination Act and therefore invalid by reason of s.109 of the Constitution?

Q.18 Is the whole or any part of the 1993 W.A. Act and Regulations inconsistent with the Native Title Act 1993 (Cth), the Regulations and Determination No.1 thereunder and invalid by reason of s.109 of the Constitution?

A.17 and 18 The whole of the 1993 W.A. Act (unless, in the case of s.5 of that Act, it had no legal effect on the title to any parcel of land) is inconsistent with the provisions of s.10 of the Racial Discrimination Act and therefore invalid by reason of s.109 of the Constitution. The whole of the 1993 W.A. Act (unless, in the case of s.5 of that Act, it had no legal effect on the title to any parcel of land) is inconsistent with the Native Title Act 1993 (Cth) and is invalid by reason of s.109 of the Constitution. Otherwise it is unnecessary to answer whether the present invalidity of the provisions of the 1993 W.A. Act results solely from their inconsistency with the Native Title Act or also from their inconsistency with the provisions of s.10 of the Racial Discrimination Act.

A further matter should be mentioned. An Aboriginal group, the Kamali Land Council, sought leave to intervene in order to submit that the Wororra people, the plaintiffs in one of the proceedings before the Court, do not represent the Kamali Land Council. As the constitution of those proceedings was not before the Court, the application was not then granted. Leave to intervene should now be formally refused.

DAWSON J In Mabo v. Queensland (No.2) (343 (1992) 175 CLR 1.) it was common ground that, upon settlement of the Colony of New South Wales, the common law applied within the colony with the result that the radical title to all land vested in the Crown. I was of the view that, assuming native title to exist in some recognizable form at the time of settlement, it could only have survived settlement if, apart from legislation, it was recognized by the Crown, either expressly or by acquiescence. I could find no evidence of recognition at the time of settlement or subsequently and, accordingly, I concluded that native title, if it existed, had ceased to exist. The consequence was, in my view, that not only lands which had been alienated by the Crown, but all Crown lands, were free from any claim to native title.

2. The other members of the Court in Mabo (No.2) took a different view and reached a different conclusion. Whilst more than one course was pursued in the majority judgments, the reasons for judgment of Brennan J, with whom Mason CJ and McHugh J agreed, departed least from what I regarded as established law and, for my present purposes, may be accepted as containing the basic principles for which Mabo (No.2) now stands as authority. Not that those principles do not depart in important respects from what I regarded as established law; indeed, I do not read the judgment as intending anything else.


3. The conclusion reached by Brennan J was that, because the settlement of the colony proceeded upon the erroneous view that it was not already settled by the native inhabitants and that their laws did not constitute settled laws, the common law ought not now to be expounded so as to perpetuate the error. It followed, in his view, that the radical title of the Crown should no longer be regarded as affording absolute beneficial ownership but should be regarded as subject to native title. That derogation from the radical title of the Crown was not, as I understand the judgment, dependent upon any recognition of native title by the Crown. Nor did it matter that native title was inconsistent with the principles of the common law relating to the ownership of land, since its incidents were delineated by native law and custom rather than the common law. The only means by which native title to land might be extinguished apart from legislation was, the judgment concluded, by the alienation of the land by the Crown or by the appropriation of the land by the Crown to itself in a manner inconsistent with the continuation of native title.


4. In an earlier decision, Mabo v. Queensland (No.1) (344 (1988) 166 CLR 186.), a majority of the Court decided that s.3 of the Queensland Coast Islands Declaratory Act 1985 (Q.) was inconsistent with s.10 of the Racial Discrimination Act 1975 (Cth) and, for that reason, was inoperative under s.109 of the Constitution. Section 3 of the Queensland Act retrospectively declared that, upon annexation to Queensland, the Murray Islands vested in the Crown free from all other rights.


5. Section 10(1) of the Racial Discrimination Act provides:

"If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin."

The rights comprehended by s.10(1) include the right to own and to inherit property (345 See s.10(2); Art.5, par.(d)(v) and (vi) International Convention on the Elimination of all Forms of Racial Discrimination.).


6. The majority in Mabo (No.1) took the view that native title gave rise to a right to own property. They did not regard it as significant that the property comprising native title could, ex hypothesi, only be enjoyed by persons of a particular race or ethnic origin and concluded that to extinguish native title was to deprive those who held native title of the right to own property to the same extent as others of another race or ethnic origin.


7. Wilson J, on the other hand, in a minority judgment pointed out that the right to own property at common law was a right enjoyed equally by all, including those who claimed native title, whereas native title was confined to those of a particular race or ethnic origin. He concluded that to extinguish native title would not result in those who claimed it enjoying the right to own property to a lesser extent than those of another race or ethnic origin. On the contrary, he reasoned, the right to own property would thenceforth be upon the same basis for all.


8. The question in Mabo (No.1) arose upon the plaintiffs' demurrer to a defence raised by the State of Queensland in reliance upon s.3 of the Queensland Coast Islands Declaratory Act. Mason CJ and I, who were the other members of the minority, were of the view that it was not appropriate upon a demurrer to a defence to assume the truth of relevant matters pleaded in the statement of claim but denied in the defence and accordingly we would have overruled the demurrer upon that basis. However, in the light of Mabo (No.2), which clearly bases native title upon native law and customs and therefore confines any property rights arising therefrom to persons of a particular race or ethnic origin, I would, if I were called upon to choose between the view expressed by the majority in Mabo (No.1) and that expressed by Wilson J, prefer the view of Wilson J.


9. However, notwithstanding my own views, from which I do not resile, I think that I ought now to follow the decisions of the majority in Mabo (No.1) and Mabo (No.2). The issues which were determined by those cases are of fundamental importance and deal with questions of title to land. It is desirable that the law now follow a consistent course in order to achieve maximum certainty with the least possible disruption. No good purpose is to be achieved by my continuing to follow a line of reasoning which has been rejected. In my view, the doctrine of precedent, notwithstanding that it is not rigidly applied in this Court, requires me to adopt the course which I propose to take. No interpretation of the Constitution requiring fidelity to the text rather than to judicial decision is involved and the words of Gibbs J in Queensland v. The Commonwealth (346 (1977) 139 CLR 585 at 599.) have even greater force here than in that case:

"No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court."

The legislation which the Court has been required to consider in the present cases arose out of the decisions in Mabo (No.1) and Mabo (No.2) and even though its implementation is not yet far advanced, it would, I think, be wrong to approach the construction of that legislation upon any other basis than that those two cases were correctly decided.


10. Upon that basis, I agree with the conclusion reached by the majority in the present cases that in point of law no distinction can be drawn between the settlement of New South Wales and the settlement of Western Australia. The exertion of sovereignty over Western Australia - the act of state which established the colony - resulted in the application of the common law. Following Mabo (No.2), the radical title to the land, which vested in the Crown under the common law, was burdened by existing native title at the time of vesting. That was so as a matter of law, as I understand Mabo (No.2), whether or not the Crown chose to recognize native title. In those circumstances I am unable to see any need for a presumption that the Crown, in exerting sovereignty, did not intend to extinguish native title. Indeed, in so far as the cases before Mabo (No.2) speak in terms of a presumption (347 See, e.g, Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 AC 399 at 407.), they speak of a presumption that the proprietary rights of native inhabitants are recognized notwithstanding the exertion of sovereignty. Consequent upon Mabo (No.2), recognition is not required for the preservation of those proprietary rights: the exertion of sovereignty which brings with it the common law is incapable of extinguishing them whether or not they are recognized.


11. Thus I find no occasion to resort to any presumption in order to reach the conclusion that the intention of those who settled Western Australia that Crown lands should be generally available for sale without regard to native title did not have the consequence that native title was extinguished. For that to happen, it was necessary for the Crown to exercise its right, which Mabo (No.2) held to arise from its radical title, to alienate the land or to appropriate it to itself in a manner inconsistent with native title.


12. If these comments amount to a qualification of the views expressed by the majority in these cases in relation to the establishment of Western Australia, then it is with that qualification that I express my agreement with those views.


13. I am also in agreement with the majority upon the basis of Mabo (No.1) and Mabo (No.2), that the Land (Titles and Traditional Usage) Act 1993 (W.A.) is inconsistent with s.10 of the Racial Discrimination Act 1975 (Cth). Further, for the reasons given by the majority, I agree that the Native Title Act 1993 (Cth) (save for s.12) can be supported by the power to make laws for the people of any race for whom it is deemed necessary to make special laws (348 Constitution, s.51(xxvi).) and that the Act does not in any unconstitutional manner discriminate against Western Australia or impair the legislative or executive functions of that State. I agree with the answers proposed by the majority to the questions asked.