The decision of the Court
In the end, the High Court reaffirmed that native title was not extinguished by the acquisition of sovereignty and that to be extinguished by legislation, would require clear and plain intention. The High Court also reaffirmed the operation of the Racial Discrimination Act, which protects the enjoyment of native title rights by providing immunity from arbitrary decisions that would deprive people of property. Holders of native title are entitled to the same protection or procedures as other titleholders. Any state Act that purports to do otherwise, it was confirmed, would be inconsistent and hence invalid by virtue of section 109 of the Commonwealth Constitution. The Western Australian legislation was therefore struck down in its entirety.
The Native Title Act was found to be within the government's Constitutional power, not by virtue of the external affairs power and Australia's international obligations, but the Act could also be justified under section 51(26) which allows the Commonwealth to make laws for the people of any race 'for whom it is deemed necessary to make special laws'. However, the Court noted that the 'races power' was not a general power. The words 'deemed necessary' and 'special' carried significance. The Court determined that protecting native title by removing its vulnerability at common law demonstrated a legitimate necessity on the part of Parliament.
The 'special' quality of a law passed under section 51(26) refers to its operation and not to the circumstances in which it was seen as necessary. That is, the law must confer a right or benefit or impose an obligation or disadvantage. Even where that benefit is available generally it may be of special significance to the people of a particular race, in which case it will still constitute a 'special' law within the meaning of section 51(26). The Native Title Act 1993 (Cth) was judged to fit these requirements.
The Native Title Act was found to be within the government's Constitutional power, not by virtue of the external affairs power and Australia's international obligations, but the Act could also be justified under section 51(26) which allows the Commonwealth to make laws for the people of any race 'for whom it is deemed necessary to make special laws'. However, the Court noted that the 'races power' was not a general power. The words 'deemed necessary' and 'special' carried significance. The Court determined that protecting native title by removing its vulnerability at common law demonstrated a legitimate necessity on the part of Parliament.
The 'special' quality of a law passed under section 51(26) refers to its operation and not to the circumstances in which it was seen as necessary. That is, the law must confer a right or benefit or impose an obligation or disadvantage. Even where that benefit is available generally it may be of special significance to the people of a particular race, in which case it will still constitute a 'special' law within the meaning of section 51(26). The Native Title Act 1993 (Cth) was judged to fit these requirements.
Keywords: Canberra, extinguishment, High Court of Australia, Native Title Act (1993), Racial Discrimination Act, sovereignty, WA v Commonwealth, Western Australia, 1995
Author: Strelein, Lisa