...Judgment of Wilson J...
The judgement of Wilson J provides a useful summary of the plaintiffs' arguments:
'Counsel for the plaintiffs advanced a number of arguments in support of the proposition that the Queensland Act is invalid or otherwise ineffective to impair traditional rights possessed by the plaintiffs. The arguments may be summarised broadly as follows:
1. As a matter of construction, the Act lacks the specificity required to extinguish the traditional rights of the plaintiffs;
2. As a matter of power:
(a) the Act is not a law for the "peace, welfare and good government" of Queensland (s. 2 Constitution Act 1867 (Q.);
(b) there are limits on the power of the Queensland legislature to deal with the waste lands of the Crown;
(c) the Queensland legislature lacks power to interfere with the judicial process;
(d) the Queensland legislature is without power to deprive a person of property rights without compensation.
3. As a matter of inconsistency:
(a) the Act is inconsistent with s. 9 of the Racial Discrimination Act 1975 (Cth) (the Commonwealth Act) in so far as the Act authorises the grant of interests in land in the Murray Islands in accordance with the Land Act 1962 (Q);
(b) section 10(1) of the Commonwealth Act has the effect of enabling the plaintiffs to continue to enjoy their traditional rights notwithstanding the provisions of the Queensland Act.'
'Counsel for the plaintiffs advanced a number of arguments in support of the proposition that the Queensland Act is invalid or otherwise ineffective to impair traditional rights possessed by the plaintiffs. The arguments may be summarised broadly as follows:
1. As a matter of construction, the Act lacks the specificity required to extinguish the traditional rights of the plaintiffs;
2. As a matter of power:
(a) the Act is not a law for the "peace, welfare and good government" of Queensland (s. 2 Constitution Act 1867 (Q.);
(b) there are limits on the power of the Queensland legislature to deal with the waste lands of the Crown;
(c) the Queensland legislature lacks power to interfere with the judicial process;
(d) the Queensland legislature is without power to deprive a person of property rights without compensation.
3. As a matter of inconsistency:
(a) the Act is inconsistent with s. 9 of the Racial Discrimination Act 1975 (Cth) (the Commonwealth Act) in so far as the Act authorises the grant of interests in land in the Murray Islands in accordance with the Land Act 1962 (Q);
(b) section 10(1) of the Commonwealth Act has the effect of enabling the plaintiffs to continue to enjoy their traditional rights notwithstanding the provisions of the Queensland Act.'
Keywords: Mabo v Queensland No.1, native title, plaintiffs, Queensland, Queensland Coast Islands Declaratory Act , 1985 , Racial Discrimination Act, 1988
Mabo and Another v State of Queensland and Another, (1988) 166 CLR 186 at 201.
Author: Kenna, Jonathan
Source: Wilson, Justice
Author: Kenna, Jonathan
Source: Wilson, Justice