Section 10 of the Racial Discrimination Act saves the plaintiffs - just!
The majority judgmnts.
The four judges who found in favour of the plaintiffs were Justices Brennan, Toohey, Gaudron and Deane.
The joint decision of Brennan, Toohey and Gaudron JJ was critical of the Queensland legislation, describing it as 'Draconian' (at 213) and an Act which, on the assumption that the plaintiffs native title rights did exist, 'destroys the traditional legal rights in and over the Murray Islands possessed by the Meriam people (and particularly by the plaintiffs) and, by an arbitrary deprivation of that property, limits their enjoyment of the human rights to own and inherit it.' (at 218).
The joint judgment held that the Queensland Act is inconsistent with s. 10(1) of the Racial Discrimination Act 1975 (Cth) because its effect is to discriminate against Murray Islanders who hold rights in the islands under native title. It extinguishes these rights whilst leaving unaffected those whose rights in the Murray Islands derive from other sources:
'By extinguishing the traditional legal rights characteristically vested in the Meriam people, the 1985 Act abrogated the immunity of the Meriam people from arbitrary deprivation of their legal rights in and over the Murray Islands. The Act thus impaired their human rights while leaving unimpaired the corresponding human rights of those whose rights in and over the Murray Islands did not take their origin from the laws and customs of the Meriam people ... the 1985 Act has the effect of precluding the Meriam people from enjoying some, if not all, of their legal rights in and over the Murray Islands while leaving all other persons unaffected in the enjoyment of their legal rights in and over the Murray Islands. Accordingly, the Meriam people enjoy their human right of the ownership and inheritance of property to a "more limited" extent than others who enjoy the same right.'
Deane J, at 231-233, reaches a similar conclusion:
'On the assumption that traditional proprietary rights and interests survived annexation, the operation and effect of the Act is, on either construction, to distinguish between proprietary rights and interests to and in the islands according to whether they are ultimately founded in pre-annexation traditional law or post-annexation European law. It discriminates against the former by singling them out for impairment or extinguishment while leaving the latter unaffected or enhanced ... Its effect is that the Torres Strait Islanders, including the Meriam people, are denied ("do not enjoy") "rights", including the entitlement to immunity from being arbitrarily dispossessed, which are enjoyed by those other persons ...the operative provisions of the Act are ... inconsistent with the provisions of s. 10 (1) of the Commonwealth Act and invalid by reason of s. 109 of the Constitution.'
The three judges who found for the defendant Queensland were Chief Justice Mason and Justices Dawson and Wilson.
Wilson J, at 204-206, focuses on formal 'equality before the law' and takes the view that because the effect of the Queensland Act is to put the Murray Islanders in the same position as others, it cannot be inconsistent with s. 10 of the Racial Discrimination Act 1975 (Cth) :
' ... the success of the submission depends upon the plaintiffs establishing the existence of other persons, being persons of another race to that of the plaintiffs, who enjoy the rights of which the latter have been deprived ... the immediate difficulty confronting the submission is that there is no suggestion in the statement of claim that there are any persons of another race who enjoy the same rights of which the plaintiffs have been deprived by the Queensland Act. In those circumstances there is nothing to attract the operation of s. 10 ...On the contrary, its effect is to remove a source of inequality formerly existing between the plaintiffs and persons of another race because, on the facts as disclosed in the statement of claim, the plaintiffs were alone in the enjoyment of their traditional rights. Henceforth, by virtue of the assumed operation of the Queensland Act, the plaintiffs will enjoy the same rights with respect to ownership of property and rights of inheritance as every other person in Queensland of whatever race. There will be equality before the law.'
Wilson J is clearly troubled at the conclusion which he feels compelled to make, acknowledging that whilst ' a deep sense of injustice may remain ... because formal equality before the law does not always achieve effective and genuine equality ... I conclude that I have no alternative but to overrule the demurrer.'
Mason CJ is not prepared to assume that the traditional rights and interests asserted by the plaintiffs constitute a right to own property or right to inherit within the meaning of Article 5 of the International Convention on the Elimination of all Forms of Racial Discrimination. Accordingly, he finds it '...impossible to reach a conclusion on that argument without findings about the precise nature and extent of the rights and interests asserted by the plaintiffs.' (at 198-199).
Dawson J also finds himself unable to rule on the validity of the Queensland Act without findings as to the existence and nature of the rights held under native title:
'The question which s. 10 (1) poses for the purposes of this case is whether persons of the race, colour, or national or ethnic origin of the plaintiffs are deprived by the Declaratory Act of rights that are enjoyed by persons of another race, colour or national or ethnic origin ... it cannot be assumed for the purposes of the demurrer that land rights of the kind alleged by the plaintiffs, if they exist at all, are exclusively possessed by persons of the same race, colour or national or ethnic origin as the plaintiffs ... More fundamentally, even if land rights of the kind alleged by the plaintiffs are enjoyed only by persons of the same race, colour, national or ethnic origin ... to deprive them of those rights would not necessarily be to deprive them of rights enjoyed by persons of another race ... it would be necessary to reach a conclusion upon evidence concerning the nature and extent of the rights alleged by the plaintiffs. Those rights have not been admitted and it would be incorrect to assume the truth of the allegations in a statement of claim in proceedings by way of demurrer to a defence.' (at 242-243).
Keywords: High Court of Australia, plaintiffs, Queensland Coast Islands Declaratory Act , 1985 , Racial Discrimination Act , 1975 , Wilson, Justice, 1988
Source: Mabo and others v State of Queensland and the Commonwealth (1988) 166 CLR 186.
Author: Kenna, Jonathan