R v Walker [1994] HCA 64

High Court of Australia Mason C.J. R v Walker [1994] HCA 64

ORDER Statement of claim filed 6 April 1994 struck out. Action dismissed.

Cur. adv vult.

CJ Mason delivered the following written judgment:—

Dec. 16 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 1952 (Cth). 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:

1. 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.

2. 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].

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] . 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 [2] : "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] 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] 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 [5] , I said that: