The arguments in the case

In the Native Title Act case (Western Australia v The Commonwealth; Teddy Biljabu and Ors v Western Australia (1995) 183 CLR 373), the Western Australian Government argued concurrently that the Native Title Act was invalid and that native title did not exist in Western Australia. They argued that native title was extinguished prior to the enactment of the Native Title Act, if not by the act of acquiring sovereignty, then by the operation of legislation since then, or finally by the passing of the Land (Titles and Traditional Usages) Act in December. Also, they argued that the Native Title Act discriminates against Western Australia in its effect, that the Act operates to limit state powers and that it places a special burden on Western Australia. They also argued that the law was not a 'special measure', to alleviate discrimination, under the Convention on the Elimination of all forms of Racial Discrimination and was therefore outside the power of the Commonwealth Parliament under section 51(29) of the Constitution.

The Commonwealth, as respondent to the Western Australian challenge, and the applicants in the Biljabu and Wororra peoples actions challenged the state legislation, and argued that the Land (Titles and Traditional Usages) Act was invalid because it was contrary to the principles of native title established in Mabo v Queensland [No.2]. Moreover, they argued that the provisions of the State Act were contrary to the Racial Discrimination Act, in the same way as the Queensland Coastal Islands Declaratory Act had been in Mabo v Queensland [No.1].

Keywords: Australian Court Case, Canberra, International Convention, Mabo v Queensland No.1, Mabo v Queensland No.2, Native Title Act (1993), Racial Discrimination Act , 1975 , Teddy Biljabu and Ors v Western Australia (1995), The Land Titles and Traditional Usages Act, WA v Commonwealth, Western Australia, 1995

Author: Strelein, Lisa