Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47

High Court of Australia Mason CJ Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47

ORDER In P 4 of 1994, answer the questions reserved as follows:

Q.1(a) If any communal, group or individual rights or interests of the nature referred to in sub-s 223(1) of the Native Title Act 1993 Cth (the Act) existed in Western Australia at a time prior to European settlement in Western Australia, had such rights or interests come to an end by extinguishment or otherwise:

(i) by the establishment of Western Australia as a colony, or

(ii) by the time of the establishment of Western Australia as a selfgoverning colony, or

(iii) by the time of Federation, or

(iv) by the time the Racial Discrimination Act 1975 Cth came into force, or

(v) by 1 July 1993, or

(vi) by 2 December 1993, or

(vii) by 1 January 1994?

A.1(a) No.

Q.1(b) If yes to any part of 1(a), was the consequence that at the time the Act came into force, there was no part of Western Australia in which "native title" or "native title rights and interests" within the meaning of sub-s 223(1) of the Act were in being?

A.1(b) Unnecessary to answer.

Q.2 Is the Act, in so far as it operates in and in relation to Western Australia by reason of sub-s 223(3), beyond the legislative powers of the Commonwealth and invalid?

A.2 Unnecessary to answer.

Q.3 Are ss 11, 19 and 20 of the Act, or any of them, beyond the legislative powers of the Commonwealth and invalid?

A.3 No.

Q.4 Is s 22 of the Act, in so far as it applies to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?

A.4 No.

Q.5 Are the provisions of ss 23, 26 and 28 of the Act, in so far as they apply to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?