...Only one of the plaintiffs' arguments succeeded...
A more detailed look at the seven arguments put by the plaintiffs' exposes the narrowness of their victory. Six of the seven arguments were rejected and the seventh only succeeded by a majority of 4:3.
The plaintiffs argued:
1. That the Act was not expressed with sufficient precision to extinguish the traditional rights of the plaintiffs.
This argument failed.
Despite the fact that the Act did not specify the interests which it purported
0to extinguish, the intention of the Queensland legislature to extinguish these rights was unmistakable (Brennan, Toohey and Gaudron JJ at 213-14). Wilson J, at 201, concurs and adds: '...the legislature has made its intentions transparently clear. As to the wisdom or justice of that intention, the responsibility must rest squarely with the legislature.' Mason CJ (at 195) and Dawson J (at 241) both agree with Wilson J.
2. Queensland does not have power to pass the law because it constitutes an interference in the judicial process (being the already commenced proceedings instituted by Eddie Mabo and the other plaintiffs.)
This argument also failed.
It was rejected Wilson J at 202 on the grounds that the Queensland Act was not directed to the judicial process itself: 'The most that can be said of the Queensland Act is that it extinguishes the rights of persons who happen to be litigants seeking a vindication of those rights. It is not directed to the judicial process itself. If the Act is otherwise valid and effective, then the legal action will take its course in the context of the applicable law.' Mason CJ (at 195) and Dawson J (at 241) both agree with Wilson J. The other judges did not decide this point.
3. Queensland does not have power to pass the law because, in confiscating the Murray Islanders' interests in land without compensation, it is not a law for 'peace, order and good government'.
This argument also failed.
It is rejected by Wilson J at 201, on the ground that this phrase confers a 'plenary power' which legislature has discretion to exercise and the passing of the Queensland Act does not exceed the scope of this power. Mason CJ (at 195) and Dawson J (at 241) both agree with Wilson J. The other judges did not decide this point.
4. Queensland does not have power to pass the law because it cannot deprive a person of property rights without compensation.
This argument also failed.
At 202, Wilson J held that 'however much its exercise may be deprecated, it is not beyond the power of a State legislature to deprive a person of property without compensation, provided the deprivation is otherwise effected according to law.' Mason CJ (at 195) and Dawson J (at 241) both agree with Wilson J. The other judges did not decide this point.
5. Queensland does not have power to pass the law because Queensland's power to deal with Crown lands is subject to the limitations imposed on that power when it was first bestowed on the legislature of NSW by the Imperial Crown.
This argument also failed.
Dawson held that this limitation did not apply to the Murray Islands because, following the enactment of the NSW Constitution Act and The Australian Waste Lands Act in 1855, the limitation only continued in respect of land subject at that date to existing Crown contracts. No such contracts applied to the Murray Islands, which were not annexed until 1879. At 239, Dawson J added that '[i]n any event, any contracts ...referred to in the proviso of s. 2 of The New South Wales Constitution Act have long since ceased to exist and are not, nor were they in 1985, the source of any limitation upon the power of the Queensland Parliament to deal with waste lands.' Both Wilson J (at 201) and Mason CJ (at 195) agree with this finding. The other judges did not decide this point.
6. The Queensland Act authorises conduct which would dispose of land without regard to the Murray Islanders' interests in the land or their right to inherit land. It is thus inconsistent with section 9 of the Racial Discrimination Act 1975 (Cth) which, inter alia, prevents the doing of any act which involves distinctions based on race which impair the enjoyment on an equal footing of any human right.
This argument also failed.
At 204, Wilson J rejects this argument in the following terms: 'The short answer to the submission is that such a result cannot be predicated in advance. Whether or not a grant or a refusal to grant [interests in land] is rendered unlawful by s 9(1) will depend on whether the power is exercised in a discriminatory way within the meaning of the section.'
Dawson J concurred with Wilson J and, at 242, adds another ground for rejecting the plaintiffs' submission. Dawson J finds that s 9(1) Racial Discrimination Act 1975 (Cth) 'prohibits persons from doing acts of the kind which it describes ...[but] does not extend to the steps taken to pass a Bill into law.' Mason CJ agrees with Dawson J and, at 197, also rejects the submission on the ground that the operative section of the Queensland Act is merely declaratory of the law and does not authorise the doing of an act inconsistent with the Racial Discrimination Act 1975 (Cth).
The other judges did not decide the point.
7. The Queensland Act has the effect of depriving the Murray Islanders of the human right to own and inherit land whilst leaving the rights of persons of other races unaffected. It is thus inconsistent with s 10 Racial Discrimination Act 1975 (Cth). By virtue of section 109 of the Constitution, the Queensland Act is thus invalid to the extent of its inconsistency with the Racial Discrimination Act 1975 (Cth).
This argument succeeded by 4:3 majority.
For the purposes of coming to a decision on this submission, some but not all of the judges were prepared to assume the existence of the plaintiffs' traditional native title rights in the Murray Islands. The majority judgment of Brennan, Toohey and Gaudron JJ proceeds on this assumption (at 218) as does the other majority judgment of Deane J (at 223). Wilson J (at 206), whilst in the minority, is also prepared to make this assumption. Dawson J is equivocal, but ultimately appears to be unprepared to do so (see 243), and Mason CJ does not do so.
The plaintiffs argued:
1. That the Act was not expressed with sufficient precision to extinguish the traditional rights of the plaintiffs.
This argument failed.
Despite the fact that the Act did not specify the interests which it purported
0to extinguish, the intention of the Queensland legislature to extinguish these rights was unmistakable (Brennan, Toohey and Gaudron JJ at 213-14). Wilson J, at 201, concurs and adds: '...the legislature has made its intentions transparently clear. As to the wisdom or justice of that intention, the responsibility must rest squarely with the legislature.' Mason CJ (at 195) and Dawson J (at 241) both agree with Wilson J.
2. Queensland does not have power to pass the law because it constitutes an interference in the judicial process (being the already commenced proceedings instituted by Eddie Mabo and the other plaintiffs.)
This argument also failed.
It was rejected Wilson J at 202 on the grounds that the Queensland Act was not directed to the judicial process itself: 'The most that can be said of the Queensland Act is that it extinguishes the rights of persons who happen to be litigants seeking a vindication of those rights. It is not directed to the judicial process itself. If the Act is otherwise valid and effective, then the legal action will take its course in the context of the applicable law.' Mason CJ (at 195) and Dawson J (at 241) both agree with Wilson J. The other judges did not decide this point.
3. Queensland does not have power to pass the law because, in confiscating the Murray Islanders' interests in land without compensation, it is not a law for 'peace, order and good government'.
This argument also failed.
It is rejected by Wilson J at 201, on the ground that this phrase confers a 'plenary power' which legislature has discretion to exercise and the passing of the Queensland Act does not exceed the scope of this power. Mason CJ (at 195) and Dawson J (at 241) both agree with Wilson J. The other judges did not decide this point.
4. Queensland does not have power to pass the law because it cannot deprive a person of property rights without compensation.
This argument also failed.
At 202, Wilson J held that 'however much its exercise may be deprecated, it is not beyond the power of a State legislature to deprive a person of property without compensation, provided the deprivation is otherwise effected according to law.' Mason CJ (at 195) and Dawson J (at 241) both agree with Wilson J. The other judges did not decide this point.
5. Queensland does not have power to pass the law because Queensland's power to deal with Crown lands is subject to the limitations imposed on that power when it was first bestowed on the legislature of NSW by the Imperial Crown.
This argument also failed.
Dawson held that this limitation did not apply to the Murray Islands because, following the enactment of the NSW Constitution Act and The Australian Waste Lands Act in 1855, the limitation only continued in respect of land subject at that date to existing Crown contracts. No such contracts applied to the Murray Islands, which were not annexed until 1879. At 239, Dawson J added that '[i]n any event, any contracts ...referred to in the proviso of s. 2 of The New South Wales Constitution Act have long since ceased to exist and are not, nor were they in 1985, the source of any limitation upon the power of the Queensland Parliament to deal with waste lands.' Both Wilson J (at 201) and Mason CJ (at 195) agree with this finding. The other judges did not decide this point.
6. The Queensland Act authorises conduct which would dispose of land without regard to the Murray Islanders' interests in the land or their right to inherit land. It is thus inconsistent with section 9 of the Racial Discrimination Act 1975 (Cth) which, inter alia, prevents the doing of any act which involves distinctions based on race which impair the enjoyment on an equal footing of any human right.
This argument also failed.
At 204, Wilson J rejects this argument in the following terms: 'The short answer to the submission is that such a result cannot be predicated in advance. Whether or not a grant or a refusal to grant [interests in land] is rendered unlawful by s 9(1) will depend on whether the power is exercised in a discriminatory way within the meaning of the section.'
Dawson J concurred with Wilson J and, at 242, adds another ground for rejecting the plaintiffs' submission. Dawson J finds that s 9(1) Racial Discrimination Act 1975 (Cth) 'prohibits persons from doing acts of the kind which it describes ...[but] does not extend to the steps taken to pass a Bill into law.' Mason CJ agrees with Dawson J and, at 197, also rejects the submission on the ground that the operative section of the Queensland Act is merely declaratory of the law and does not authorise the doing of an act inconsistent with the Racial Discrimination Act 1975 (Cth).
The other judges did not decide the point.
7. The Queensland Act has the effect of depriving the Murray Islanders of the human right to own and inherit land whilst leaving the rights of persons of other races unaffected. It is thus inconsistent with s 10 Racial Discrimination Act 1975 (Cth). By virtue of section 109 of the Constitution, the Queensland Act is thus invalid to the extent of its inconsistency with the Racial Discrimination Act 1975 (Cth).
This argument succeeded by 4:3 majority.
For the purposes of coming to a decision on this submission, some but not all of the judges were prepared to assume the existence of the plaintiffs' traditional native title rights in the Murray Islands. The majority judgment of Brennan, Toohey and Gaudron JJ proceeds on this assumption (at 218) as does the other majority judgment of Deane J (at 223). Wilson J (at 206), whilst in the minority, is also prepared to make this assumption. Dawson J is equivocal, but ultimately appears to be unprepared to do so (see 243), and Mason CJ does not do so.
Keywords: extinguishment, High Court of Australia, Queensland Coast Islands Declaratory Act , 1985 , Racial Discrimination Act, Wilson, Justice, 1988
Author: Kenna, Jonathan