Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45; (1994) 126 ALR 321; (1994) 69 ALJR 111 (16 December 1994)

HIGH COURT OF AUSTRALIA

WALKER v THE STATE OF NEW SOUTH WALES
S. 94/005
Number of pages - 3
[1994] HCA 64; (1994) 182 CLR 45
(1994) 126 ALR 321
(1994) 69 ALJR 111
Constitutional Law

Constitutional Law - Aboriginals - Criminal law - Whether Aboriginal customary law survived colonization - Application of State stat utes to Aboriginal people.

HEARING

1994, SYDNEY, August 16, December 16
16:12:1994

ORDER

Statemenmt of claim filed 6 April 1994 struck out.

Action dismissed.

DECISION

MASON CJ This is an application by summons taken out by the
defendant that the action be dismissed, or, alternatively, stayed
under O. 26 r. 18 of the High Court Rules. The defendant's case is
that the statement of claim does not plead a reasonable cause of
action. By that statement of claim, the plaintiff accepts that he has
been charged with an offence against the laws of New South Wales which
allegedly occurred at Nimbin, a place said to be within the area of
the Bandjalung "nation" of Aboriginal people. The plaintiff himself
is said to be a member of the Noonuccal "nation" of Aboriginal people.
The statement of claim alleges that the common law is only valid in
its application to Aboriginal people to the extent to which it has
been accepted by them. Concerning statute law, the statement of claim
then alleges:

"10. The Parliaments of the Commonwealth of Australia and of the
States lack the power to legislate in a manner affecting aboriginal
people without the request and consent of the aboriginal people.

11. Further and in the alternative, if the Parliament of the
Commonwealth or of a State legislates in a manner affecting aboriginal
people the law in so far as it relates to aboriginal people is of no
effect until it is adopted by the aboriginal people whom, or whose
land, it purports to effect (sic)."

2. Couched as they are in terms of the legislative incapacity of
the Commonwealth and State Parliaments, those pleadings are untenable.
The legislature of New South Wales has power to make laws for the
peace, welfare and good government of New South Wales in all cases
whatsoever (1 Constitution Act 1902 (N.S.W.)). The proposition that
those laws could not apply to particular inhabitants or particular
conduct occurring within the State must be rejected. As Gibbs J (with
whom Aickin J agreed) said in Coe v. The Commonwealth of Australia (2
[1978] HCA 41; (1979) 53 ALJR 403 at 408; [1978] HCA 41; 24 ALR 118 at 129):
"The aboriginal people are subject to the laws of the Commonwealth and
of the States or Territories in which they respectively reside."

In that case all the justices on appeal upheld the view which I had
taken at first instance (3 (1978) 52 ALJR 334; 18 ALR 592) rejecting
the plaintiff's claim that sovereignty resided in the Aboriginal
people. There is nothing in the recent decision in Mabo v. Queensland
(No.2) (4 [1992] HCA 23; (1992) 175 CLR 1) to support the notion that the Parliaments
of the Commonwealth and New South Wales lack legislative competence to
regulate or affect the rights of Aboriginal people, or the notion that
the application of Commonwealth or State laws to Aboriginal people is
in any way subject to their acceptance, adoption, request or consent.
Such notions amount to the contention that a new source of sovereignty
resides in the Aboriginal people. Indeed, Mabo (No.2) rejected that
suggestion. In Coe v. The Commonwealth, I said that (5 [1993] HCA 42; (1993) 68 ALJR
110 at 115; [1993] HCA 42; 118 ALR 193 at 200):
"Mabo (No.2) is entirely at odds with the notion that sovereignty
adverse to the Crown resides in the Aboriginal people of Australia.
The decision is equally at odds with the notion that there resides in
the Aboriginal people a limited kind of sovereignty embraced in the
notion that they are a 'domestic dependent nation' entitled to
self-government and full rights (save the right of alienation) or that
as a free and independent people they are entitled to any rights and
interests other than those created or recognised by the laws of the
Commonwealth, the State of New South Wales and the common law."

3. In so far as it is based on the proposition that the
legislatures lacked power to legislate over Aboriginal peoples, the
statement of claim discloses no reasonable cause of action.

4. However, counsel for the plaintiff in his oral submissions put
the matter somewhat differently. He submitted that the question which
arose was whether customary Aboriginal criminal law is something which
has been recognized by the common law and which continues to this day,
in the same way that Mabo (No.2) decided that the customary law of the
Meriam people relating to land tenure continues to exist. Counsel
relied on a passage in Blackstone's Commentaries on the introduction
of English law into a country that had been outside the King's
dominions (6 Commentaries, 5th ed. (1773) Bk I, ch.4 at 107):
"Such colonists carry with them only so much of the English law, as is
applicable to their own situation and the condition of an infant
colony".

That passage was approved by the Privy Council in Cooper v. Stuart (7
(1889) 14 App Cas 286) and cited by Brennan J in Mabo (No.2) (8 (1992) 175 CLR at 34). It
was submitted that statutes must be construed so as to accord with what
was said to be the common law principle set out by Blackstone, with the
consequence that the criminal statutes of New South Wales did not apply
to people of Aboriginal descent.

5. That proposition must be rejected. It is a basic principle that
all people should stand equal before the law. A construction which
results in different criminal sanctions applying to different persons
for the same conduct offends that basic principle (9 See Racial
Discrimination Act 1975 (Cth), s.10). The general rule is that an
enactment applies to all persons and matters within the territory to
which it extends, but not to any other persons and matters (10
Bennion, Statutory Interpretation, 2nd ed. (1992) at 255). The rule
extends not only to all persons ordinarily resident within the country,
but also to foreigners temporarily visiting (11 Re Sawers; ex parte
Blain (1879) 12 Ch D 522 at 526; Gold Star Publications Ltd. v.
Director of Public Prosecutions (1981) 1 WLR 732 at 734). And just as
all persons in the country enjoy the benefits of domestic laws from
which they are not expressly excluded, so also must they accept the
burdens those laws impose (12 Bennion, op. cit. at 260). The
presumption applies with added force in the case of the criminal law,
which is inherently universal in its operation, and whose aims would
otherwise be frustrated. So, in Quan Yick v. Hinds, Griffith CJ when
dealing with the more general question whether the entirety of Imperial
law was in force in Australia stated (13 [1905] HCA 10; (1905) 2 CLR 345 at 359):

"It has never been doubted that the general provisions of the criminal
law were introduced by the (Australian Courts Act 1828)" (14 9 Geo. IV c.83.)

6. Even if it be assumed that the customary criminal law of
Aboriginal people survived British settlement, it was extinguished by
the passage of criminal statutes of general application. In Mabo
(No.2), the Court held that there was no inconsistency between native
title being held by people of Aboriginal descent and the underlying
radical title being vested in the Crown. There is no analogy with the
criminal law. English criminal law did not, and Australian criminal
law does not, accommodate an alternative body of law operating
alongside it. There is nothing in Mabo (No.2) to provide any support
at all for the proposition that criminal laws of general application
do not apply to Aboriginal people.

7. The summons taken out by the defendant only seeks an order that
the action be dismissed or, alternatively, stayed. However, in
proceedings under O. 26 r. 18 , it is appropriate for a pleading that
does not disclose a reasonable cause of action to be struck out, and
counsel for the defendant accepted as much in argument.

8. Accordingly, the statement of claim must be struck out and the
action must be dismissed.