Mabo v Queensland [1988] HCA 69

High Court of Australia Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Mabo v Queensland [1988] HCA 69

ORDER Demurrer allowed.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 8 Mason C.J.

I have read the reasons for judgment prepared by Wilson J. I agree with what his Honour says on the various questions debated in the argument on the demurrer, except the so-called "inconsistency questions". In particular, like his Honour, I agree with the construction given by Brennan, Toohey and Gaudron JJ. to the Queensland Coast Islands Declaratory Act 1985 Q. ("the Queensland Act").

It then remains for me to consider whether s. 9 or s. 10(1) of the Racial Discrimination Act 1975 Cth ("the Commonwealth Act") affects the operation of the Queensland Act. The demurrer is an unsuitable vehicle for the determination of these questions. The plaintiffs' statement of claim asserts that since time immemorial the Murray Islanders (the plaintiffs being Murray Islanders) have maintained a system of laws, customs, traditions and practices of their own for determining questions concerning ownership of, and dealings with, land, seas, seabeds and reefs. The statement of claim alleges that, in accordance with these laws, customs, traditions and practices, the plaintiffs now own, or have proprietary interests in or usufructuary rights in relation to, the lands, seabeds, reefs and fishing waters of the Murray Islands. The statement of claim does not define or describe these rights and interests. The plaintiffs allege that the defendants threaten to infringe these rights and interests by establishing a council under the Land Act 1962 Q. and granting the lands of the Murray Islands to the council as trustee with power to lease and power to terminate traditional occupation. For the purposes of the demurrer now before the Court the State of Queensland's defence pleads that the Murray Islands are islands to which the Queensland Act applies (par. 4A) and is a substantive defence to the plaintiffs' claims: pars. 9A, 10A, 17A, 18A and 22A. The State of Queensland submits that the Queensland Act retrospectively abolished all such rights and interests as the Murray Islanders may have owned and enjoyed before its enactment. The plaintiffs' demurrer to the relevant paragraphs of the defence assumes the existence, immediately before the enactment of the Queensland Act, of the rights and interests asserted by the plaintiffs. The need to make this assumption, when it is unaccompanied by a precise definition or description of the rights and interests said to have been owned and enjoyed by the Murray Islanders presents a formidable obstacle to the resolution of the issues which have been debated. The suggested advantage of resolving these issues at this stage of the proceedings is that it avoids the necessity of determining the existence and nature of the traditional rights and interests claimed by the plaintiffs, the existence of which is denied by the State of Queensland. But, if the plaintiffs ultimately are to succeed in the action, at some stage they must establish the existence and nature of those rights and interests. So the suggested advantage of attempting to provide a dispositive decision on the issues of substance by way of resolving the demurrer is illusory. And, in any event, to do so would require the Court to make assumptions on matters of fact instead of allowing issues of fact to be determined in the ordinary way.