Impact of the Judiciary Flashcards
The Racial Discrimination Act 1975
The Commonwealth Parliament passed this Act in 1975 pursuant to Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. Its major objectives are to make discrimination against people unlawful on the basis of their race, colour or national or ethnic origin. The Act is designed to promote social equality as well as fundamental equality before the law, an essential element of Australia’s adherence to the rule of law.
Koowarta v Bjelke- Petersen 1982 HCA
“A Wik man John Koowarta and a number of other stockmen wanted to buy the Archer River cattle station which was on their traditional lands using funds provided through the Aboriginal Land Funds Commission. Remington Rand agreed to sell but the Queensland government blocked the sale, saying Aboriginal people already had enough land ‘for their use and benefit’.
Mr Koowarta said this was racially discriminatory. In reply, Queensland said the Racial Discrimination Act wasn’t a valid use of the constitutional powers of the Commonwealth.”
The High Court found it was within the Commonwealth’s external affairs power to sign the UN’s Convention on the Elimination of all Forms of Racial Discrimination and, as a result, the Racial Discrimination Act was intra vires. As Queensland’s blocking of the sale was found to be inconsistent with the Racial Discrimination Act, it was ruled invalid due to the inconsistency rule (section 109) Australian Constitution.
Mabo v QLD (No 1) 1988 HCA
In May 1982, Eddie Mabo and four other members of the Meriam community commenced a legal action claiming native title to the Murray Islands—a group of three islands off the northeast tip of Cape York in Torres Strait. In 1985, the Queensland Government attempted to pre-empt the case by having the State Parliament pass the Queensland Coast Islands Declaratory Act 1985. The Act declared that, upon the islands being annexed, they were ‘vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever’. This Act, until removed, barred Eddie Mabo from pursuing his land claim in the High Court. In May 1985, Eddie Mabo instigated proceedings in the original jurisdiction of the High Court to have the Queensland Act declared invalid because it was in conflict with the Commonwealth’s Racial Discrimination Act 1975. The High Court held that the Queensland Act and the Federal Act were both valid exercises of their respective Parliaments’ powers. However, the two Acts were inconsistent with each other and according to the inconsistency rule in section 109 of the Constitution, the Queensland Act was declared invalid. This decision enabled Mabo to continue to pursue his land claim in the High Court.
Mabo v QLD (No 2) 1992 HCA
On 3 June 1992, a majority decision of the Full Bench of the High Court, 6–1, held that the Meriam people were entitled as against the whole world to the possession, occupation, use and enjoyment of the Murray Islands. In making this decision the High Court overruled the legal doctrine of terra nullius and replaced it with a new form of common law land title, called ‘native title’.The High Court held that native title is defined according to the traditional laws and customs of people having a relationship with the land. Native title may be held by an individual, group or community. It is akin to a property right; it can be defended in courts but it is inalienable, meaning it cannot be transferred, other than to the Crown or according to traditional law.The High Court held where native title was not extinguished explicitly by British, colonial, State or Commonwealth statute or common law, the remaining Indigenous Peoples still retained a right to claim native title. The High Court outlined ways that native title could be extinguished, including:* valid exercise of a sovereign power, such as the legal recognition of freehold title, appropriation of land for the Crown, for example, roads, railways, and other permanent public purposes* voluntary surrender of native title to the Crown* the relevant clan or group ceasing to acknowledge laws and customs, losing its connections with the land, or on the death of the last member of the clan.
The Native Title Act
On 23 December 1993, the Commonwealth Parliament passed the Native Title Act. The Act established a National Native Title Tribunal (NNTT) and prescribed the criteria that must be used to approve applications for native title over traditional lands by Aboriginal and Torres Strait Islander Peoples. The Tribunal would register native title claims and mediate any disputes involved in their resolution. The Federal Court would give legal effect to any native title agreement reached between the interested parties.
The Wik Case 1996
On 30 June 1993, before the Native Title Act became law in December 1993, the Wik people made a claim for native title in the Federal Court of Australia to land on Cape York Peninsula in Queensland. The Thayorre People joined the action, claiming native title rights to an area partly overlapping the Wik people’s claim. The land claimed by the Wik people and Thayorre people included land where two pastoral leases had been granted by the Queensland Government. The Wik/Thayorre peoples argued that native title could co-exist with pastoral leases. On 29 January 1996, Justice Drummond in the Federal Court made a decision that the claim of the Wik and Thayorre Peoples could not succeed over the areas as they were subject to pastoral leases. The judge’s reason was that he considered that the grant of pastoral leases under Queensland law extinguished any native title rights.The Wik people ultimately appealed the decision in the Full Bench of the High Court. In a 4–3 majority decision, the High Court held native title could co-exist with pastoral leases.The decision did not grant the Wik people native title. They still had to prove their case for native title through the NNTT and the Federal Court. The High Court clarified a legal issue by creating a general rule that native title and pastoral leases could co-exist, but where native title is inconsistent with a pastoral lease (that is, where there was a conflict), the pastoral lease would prevail.
