Editors --- "Walker v. State Of New South Wales - Case Summary" [1996] AUIndigLawRpr 37; (1996) 1(1) Australian Indigenous Law Reporter 31

Walker v State of NSW

High Court of Australia (Mason CJ)

16 August, 16 December 1994, Sydney

Aborigines and Torres Strait Islanders -- Customary law -- Crimes -- Applicability of criminal law of New South Wales to Aborigines -- Whether customary criminal law can co-exist with State criminal law.

The plaintiff, an Aboriginal person, was charged with an offence against the laws of New South Wales. He lodged a statement of claim alleging that the State Parliament lacked the power to legislate in a manner affecting Aboriginal people. Alternatively, it was argued that if a State legislates in a manner affecting Aboriginal people, the law has no effect until it is adopted by them.

Counsel also argued in oral submissions that the effect of the decision in Mabo v. Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1; 107 ALR 1 (Mabo) was that Aboriginal customary criminal law survived British settlement, in the same way that the customary law relating to land tenure of the Meriam people continued to exist. Criminal statutes thus do not apply to people of Aboriginal descent.

The defendant, the State of New South Wales, sought to strike out the proceedings.

Held, striking out the statement of claim and dismissing the proceedings:

(1) 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. There is nothing in Mabo to suggest that the parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal persons or that these laws are subject to their acceptance, adoption, request or consent.

Coe v. Commonwealth [1993] HCA 42; (1993) 118 ALR 193: 68 ALJR 110, applied.

(2) The proposition that criminal statutes do not apply to Aboriginal people must be rejected. If accepted, it would offend the basic principle that all people should stand equal before the law. There is no analogy in the criminal law of the finding in Mabo that native title could be held notwithstanding radical title being vested in the Crown. English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it.

The decision is reported in [1994] HCA 64; (1994) 126 ALR 321; 69 ALJR 111.