State of Western Australia v Commonwealth of Australia P4/1994 [1994] HCATrans 16 (13 September 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P4 of 1994

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Melbourne No M147 of 1993

B e t w e e n -

THE WORORRA PEOPLES (who are represented by DONNY WOOLAGOODJAH and GRACE UMBAGAI

First-named Plaintiffs

THE YAWURU PEOPLES (who are represented by FRANCIS DJAIGWEEN and FRANK SEBASTIAN

Second-named Plaintiffs

and

THE STATE OF WESTERN AUSTRALIA

Defendant

Office of the Registry

Perth No P45 of 1993

B e t w e e n -

TEDDY BILJABU, BILLLY GIBBS, BOBBY ROBERTS, PATRICIA FRY, NYERI MORGAN, BRIAN SAMSON, DITCH WILLIAMS (who bring this action on their own behalf and on behalf of the Aboriginal people known as Martu)

Plaintiffs

and

THE STATE OF WESTERN AUSTRALIA

Defendant

MASON CJ

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 SEPTEMBER 1994, AT 9.47 AM

(Continued from 12/9/94)

Copyright in the High Court of Australia

_____________MASON CJ: Mr Solicitor for the Commonwealth.

MR GRIFFITH: Your Honour, perhaps we can make faster progress with the smaller audience this morning.

We were asked yesterday whether or not there would be particular work for Article 1.4 special measures adopting the approach and construing Article 1.1 and Article 5 of the Racial Discrimination Convention. If we may, after reflection, make a few suggestions by way of example in what we would say. A law giving preference to Aborigines in entrance to university, public employment or public housing would, we suggest, constitute racial discrimination within the meaning of Article 1.1 because it would have the effect of impairing the enjoyment on an equal footing of the human rights of other persons, and we refer to particular rights by reference to Article 5(d) paragraph (e)(v), education; (e)(i), work; (e)(iii), housing, by way of example, because in each case there had been allocation of scarce resources according to racial classification and if an Aboriginal derived a benefit, a non-Aboriginal person would miss out on the same finite resource.

Possibly, also, an example would be the law in Gerhardy itself where the limitation on access to land comprising perhaps 10 per cent of the State might be regarded as placing a disproportionate burden on the freedom of movement of others. We would suggest that Article 1.4 covers affirmative activist measures designed to secure the advancement of a certain group, rather than restorative-type measures such as the Native Title Act 1975 , which is designed, we submit, to restore and protect ownership of land for a particular group.

The example by way of quota for admission to an educational institution is a matter we refer to in our international law materials volume, page 71, at about point 2 of the page. Another example of such a law might be a provision that in between choosing two people for a position, preference was to be given to those of a certain race. Such positive affirmative measures can be contrasted with measures which seek to ensure the equality of a certain group in the enjoyment of rights by their recognition in the legal system, which would give to them attributes similar to the rights enjoyed by other groups.

We would refer the Court to page 77 of our materials, of the Sadurski article which does refer to the relationships between Article 1.1 and Article 1.4, and also to page 71 of our materials, the extract from the Law Reform Commission Report.

If I could go to that latter reference now. At the end of argument yesterday I was referring the Court to the part of the discussion by Professor Crawford, appearing on pages 67 to 71 of our extract of volume of international law materials discussing the position of international law. I referred the Court to the extract from the Belgian Linguistics case on page 68 of our materials, where it is asserted:

that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification.

Then follows an extract from McKean, which is otherwise in our materials. Further down the page under the heading "International Law Definition Applied to Recognition of Minority Practices and Laws" in the last four lines of paragraph 148, appearing on page 68, the sentence ends:

they will not be discriminatory if they are a reasonable response to the special circumstances of the minority, are generally accepted by it, and do not deprive individual members of the minority group of basic rights.

Then, if I could take the Court over to page 70, there is a discussion of Articles 1, 2 and 5 of the Racial Discrimination Convention and at Article 150 the author draws his views together saying:

Discrimination and Special Measures: Two Views of the Convention. The qualifying phrase `when the circumstances so warrant' in Art 2(2) significantly reduces its impact as a matter of obligation. Nonetheless, Art 2(2) acknowledges not merely that certain `special measures' are justified, but that they may be essential to ensure the protection of certain groups or individuals. If the definition of `discrimination' in Art 1(1) is read as incorporating the general international law test based on `reasonable classifications', then the scope of Art 2(2) would not be limited to `special measures' under Art 1(4), but would include measures which are not discriminatory, in the Art 1(1) sense, at all. Given the drafting history of the Convention, the pre-existing and widely accepted meaning of discrimination in international law, and the apparent consensus of writers, this may be the better interpretation.

Then the author refers to the fact that:

But Art 1(1) does not in terms specify a criterion based on reasonable classifications. An alternative view would be that the Convention achieves the same result as the general international law test though the combination of a strict guarantee of formal equality (that is, the absence of any distinction involving any element of race, no matter how `reasonable' or legitimate) with a broad exception for `special measures' under Art 1(4) and 2(2) to accommodate the range of special needs. This alternative interpretation does however require that Art 1(4) not be limited to the temporary measures of affirmative action in the strong sense (such as racial quotas in employment or education) with which it is usually associated. A problem with this interpretation is that Art 1(4) seems to envisage measures aimed at achieving a specified `result' or objective within some more or less definite time. But some at least of the special measures' which are to be taken under Art 2(2) do not have what could be described as an end result in view, and could properly be maintained indefinitely.

And the example is given with respect to bilingual education.

For these reasons the better view seems to be that Art 1(1) of the Convention does incorporate the general test for discrimination based on the reasonableness as opposed to the arbitrariness of particular classifications or distinctions. But, assuming that Art 1(4) is capable of encompassing the different kinds of special measure, there may be little or no practical difference between the two views of the Convention.

Then the author in the next part, under the heading "The Position in Australia", after discussing Koowarta, goes on in paragraph 153 and following at the foot of page 72, to discuss Gerhardy v Brown and, for example, running on to page 156 refers to the issue of duration of special measures. At Article 157 on page 75, the present Australian law, the author says:

It follows from Gerhardy v Brown that laws, especially those enacted with the consent of the Aboriginal people affected, which are intended to `respect the culture and identity of [an Aboriginal group] and to accord dignity to the members of that group', and which do not deny members of the protected group basic rights, will be held to be `special measures' in this extended sense and therefore not discriminatory under the Racial Discrimination Act or the Convention.

And then the following extract under the heading "The Commission's Approach", on that basis the Commission makes its recommendations.

Could I take the Court to the writings of an offshore writer, and that is Professor Brownlie. The extract from Brownlie appears in The Rights of Peoples edited by James Crawford, the frontispiece on page 36 of our materials. In the extract Professor Brownlie firstly discusses Article 27 of the ICCPR on page 38 and Article 26 also. He refers at the top of page 39 to the fact that:

classical formulations do not cope with claims to positive action to maintain the cultural and linguistic identity of communities -

He refers to Article 27 in the Belgian Linguistics case in the context of a discussion of positive action. On page 40 he refers to what he calls:

The second type of claim involving group rights is the claim to have adequate protection of land rights in traditional territories.

That appears in the middle paragraph on page 40. Then at page 42 he discusses the application of the ICCPR principles, particularly Articles 26 and 27, and takes the view on page 43 that:

The practical difficulties involved may be illustrated by two recent episodes, the first from Canada, the second from Australia.

He refers to the Canadian position at the foot of page 43 over to the middle of page 44. Then the second episode which he refers to is Gerhardy v Brown. The discussion there - and I would take the Court to all the discussion on Gerhardy v Brown which runs to the top of page 47 - firstly summarises the facts of the case in the judgments, and then in the middle of page 45 he refers to the fact that:

The issues raised by Gerhardy v Brown are familiar to the international lawyer and the international law materials have a particular value. No doubt the problems are to be examined very much in terms of their own time and social setting. However, the international experience indicates certain points of general technique. The experience of international tribunals and other national jurisdictions justifies the following as points of general approach or technique.

The most important point is this. The fact that a primary criterion involves a reference to race does not make the rule discriminatory in law, provided the reference to race has an objective basis and a reasonable cause. It is only when the reference to race lacks a reasonable cause and is arbitrary that the rule concerned becomes discriminatory in the legal sense.

The author gives examples. Then on the next page in the first paragraph, half-way through, he says:

The fact that traditional ownership is peculiar to Aborigines does not make recognition of such land rights discriminatory in law. The legal recognition has an objective basis; it is not arbitrary and is discriminatory only in the sense that a reasonable and legitimate policy coincides with racial origin, in the same way as pregnancy coincides with womanhood.

Thus the first principle to apply is to ask whether the differentiation in the legal sense has a reasonable cause and relates to a legally relevant basis for different treatment.

The second principle is that the modalities of the different treatment must not be disproportionate in effect or involve unfairness to other racial groups. What is `disproportionate' is very much a matter of assessment in relation to the particular facts, and there may be some delicate nuances as to what is in local terms reasonable. In the case of the recognition of land rights, the restriction on freedom of movement, linked with such recognition, raises the issue of proportionality. In other words, even when the different treatment is not discriminatory in a legal sense, the modalities, the method of implementation may be unreasonable and hence discriminatory at the second level.

As we have indicated in our submissions to the Court, we say that is a mechanism to explain the result in Gerhardy consistently with the adoption of the construction which we have indicated is supported by the text of the Convention itself. The author goes on:

It is in the context of the principle of proportionality the concept of affirmative action or reverse discrimination is to be seen. When a law prescribes for affirmative action, in effect the principle of proportionality is being explicitly set aside: normally this will only be done on carefully defined terms, one of which will be a time-limit or other condition subsequently placed on the measures concerned. Art 1 para 4 of the Convention on Racial Discrimination provides a justification for `special measures' and stipulates that such measures `shall not be continued after the objectives for which they are taken have been achieved'.

It was this clause in the Convention, as reflected in the Act of 1975, which was the basis of the reasoning of the High Court in Gerhardy v Brown. The difficulty is that the High Court appeared to treat the `special measures' clause as legitimating what would otherwise be discriminatory in law, since they viewed the legislation without that clause as being discriminatory. This approach is a further development of the original faulty premiss, which is the assumption by the High Court that the protection of traditional land rights is discriminatory in the first place.

The final paragraph on this point:

There are many reasons, both legal and non-legal, for not conducting the inquiry in terms of the category of discrimination but rather in terms of the reasonableness of the objectives, the proportionality of the means employed, and the question whether a special measure involves unfairness as between one group and another. The term `discrimination' should only be applicable when the measure either favours or discriminates against a racial group without reasonable cause.

BRENNAN J: If one adopts that approach, is the question of whether a particular legal measure is in contravention of the Racial Discrimination Act 1993 a question that is susceptible of judicial determination?

MR GRIFFITH: Well, Your Honour, it certainly is a matter where the Court is involved, Your Honour, because of the issues of value judgment which are stated to be an essential part of the categorisation and characterisation of discrimination. But, Your Honour, we would submit the inquiry is not so much for the Court to do that on a blank sheet, as it were, but to use a test which we have already postulated, whether or not this can be admitted to be in the range of view which reasonably could be regarded by the legislating body and if it satisfied that, Your Honour, we submit then it can be accepted by the Court as falling within the definition of Article 1.1, and not being discriminatory.

BRENNAN J: I can understand how international courts may address the question of proportionality in international law. How does this Court address the problem of proportionality in international law - I speak not of domestic law - when the question is whether or not these are measures which are justified by reference to the peculiar conditions of a race?

MR GRIFFITH: Your Honour, we submit, doing the best you can by reference to principles of the sort adumbrated in this short discussion by Professor Brownlie, it is a question to see whether or not the differentiation has a reasonable cause and relates to a legally relevant basis for different treatment, and when one looks at the Belgian Linguistics case, the other international law practice - and I will take the Court briefly to the views of the committee on this, Your Honour - one sees a consistency of expression of the question of inquiry but, of necessity, Your Honour, there must be an openness as to its application in particular circumstances. But, again, we would submit, the principal determinant of the application should be, in the case of legislation, the Parliament which enacts the provision and, in our submission, the matter of inquiry for the Court should be that which, on this point, one could say was engaged in by the Court in Gerhardy, whether or not one can say that the method of implementation, to use the words of Professor Brownlie on page 46, Your Honour, was unreasonable.

BRENNAN J: Perhaps you could identify for me some authoritative statement in international law as to the meaning of proportionality as used in that paragraph.

MR GRIFFITH: Your Honour, it might be a somewhat circular inquiry. But could I take Your Honour through the other material which we intend to refer to, particularly extracts from the committee, Your Honour, and say within there is, we submit, the question of inquiry and, we would admit that the inquiry which the Court engaged in in Gerhardy to consider or not whether there was this proportionality, is one which is consistent with the principles of international law, Your Honour, consistent with a reading of the Convention.

The point we are suggesting, that there should be a looking again at the chain of argument, Your Honour, leading to that point of inquiry, is whether, in respect of this sort of measure, it was necessary of Your Honours to consider it was a special measure at all, because we say that the issue of whether it is discriminatory was the anterior inquiry and not to be answered merely by the fact that it treated things racially differently.

BRENNAN J: I understand that, it is just that if the problem is to be addressed by this Court in the future, in terms of that paragraph, for my part I should like to know the difference between the approach this Court should take and the asking of the question, "Is this politically desirable?"

MR GRIFFITH: Your Honour, we do not say politically desirable. Your Honour, could I take the Court to the South West Africa judgment of Judge Tanaka. I refer to the reference to that that Justice Gaudron made in her judgment in Street, and it is also referred to in Your Honour's judgment in Gerhardy at page 129, and I think Your Honour is familiar with that statement. We would say, consistently with this, Your Honour, what Judge Tanaka in fact postulates is this sort of inquiry and to the extent it is necessary in considering the issue of justification by reference to the enactment of the Racial Discrimination Act provisions, Your Honour, or consistency with the Racial Discrimination Act provisions, we say that is a direction from an international authority.

Your Honour, of course international law is derived from the writing of juris, it is a particular and creative source. It is our submission, Your Honour, that the particular two juris that we extracted in these extracts - the Sadurski article is really for a different purpose, Your Honour, as to indicate the sort of discussions which may be made about Gerhardy. It may be said that the author there sinks the slipper a bit too hard, ....one describes it, Your Honour, but he does expose some of the issues. We do refer to Professor Brownlie, Your Honour and to - - -

McHUGH J: Not only sinks the slipper, to use your expression, but he ignores the text. This is one of the problems. The professors are up there, they are dealing with these concepts up in the air, they will not look at what Parliament has enacted.

MR GRIFFITH: Your Honour, at least it is useful that at least the professors are looking at an issue. Usually the complaint is that they do not contribute at all.

McHUGH J: I mean you have these general principles in terms of equality, racial discrimination. Parliament will not trust the Courts with a general expression like racial discrimination. They want to define what it means and, then when they are stuck with the words -not when Parliament is stuck with the words, when litigants are stuck with the words, such as yourself -come along and say, "Well, ignore the words. Let's just take some general concept and interpret the words in accordance with that" - - -

MR GRIFFITH: Your Honour, I wish to make it clear we do not seek to ignore the words. We wish to rely precisely on the words used in Article 1.1, and our reference to these learned writers.....within the meaning of the statute at international court of justice, Your Honour, is to confirm, we say, what is the plain meaning on analysis of the words used particularly in Article 1.1 and Article 5. That is our primary source of meaning, Your Honour, the words themselves.

We wish to make it clear we are not referring to this discussion as a gloss. We are referring to this discussion, Your Honour, as confirming what is the plain meaning of the words themselves. That is our submission, Your Honour, and we say - - -

McHUGH J: I do not think there is anybody that you got off the street and asked that person whether they understood the words in the sense that you are arguing for, Mr Solicitor.

MR GRIFFITH: I do not want to walk about from this debate, Your Honour, but there is a definition of racial discrimination in the Convention Article 1.1. Now, the person in the street, we submit, would have to read that definition to get involved with the issues of special measure under the treaty and, Your Honour, the definition has two arms to it. In our submission, the words say:

shall mean any distinction.....based on race -

that is obvious enough, the person in the street can understand that, but then has an added requirement:

which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

Now, Your Honour, perhaps taking the average educated person off the street who can read English and understand its meaning, it must be that that accepts, in our view, that there is an extra element. That is, it must not only make a distinction based on race but must be one which nullifies or impairs rather than enhances these matters, and our submission is, Your Honour, the first inquiry must be as to whether or not the particular discrimination, in this case a discrimination made on race in the Native Title Act, is something which has the purpose of "nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights" et cetera, or whether or not it has the opposite effect of enhancing it, and we say that is a matter of inquiry, and our reference to these materials, Your Honour, is to confirm that both from the origins of this expression as it appeared in the Racial Discrimination Act, from the similarities in spirit and inheritance from the provisions of Article 26 and 27 in ICCPR, from the legal writings, from international law decisions, we submit, Your Honour, that this meaning is a plain one on the text and one which is accepted - - -

McHUGH J: I just do not follow how you can say that. I mean, you say tgat the words enhancing plainly follows from the text, notwithstanding it talks about nullifying and impairing.

MR GRIFFITH: Your Honour, the opposite to nullifying or impairing, we submit, is enhancing.

McHUGH J: Well, it may be, but that is irrelevant.

MR GRIFFITH: Well, Your Honour, it cannot be irrelevant if the inquiry is, "Does this nullify or impair?" We say, Your Honour, the answer to that is, "Yes," or "No". If the answer is it does not nullify or impair - leave out enhancing, put the negative - in our submission, it is not racial discrimination within the definition in the Convention, therefore it is not something to which the Convention attaches consequences, therefore a measure which is based on a racial distinction is not something which can only be justified as a special measure. It is something which is justified in itself, Your Honour, as being a matter of avoiding discrimination which the Convention is directed to avoid. The Convention, in effect, in our submission, directs that there be laws passed in appropriate cases which are racially discriminatory to the extent that there is a distinction based on race in the cases where, in compliance with the obligation of Article 5, it is necessary to obtain the necessary rights or equality.

McHUGH J: Mr Solicitor, discrimination is the result of applying the definition. You keep bringing in the word discrimination in your attempt to use the definition, and that is the problem. Racial discrimination is a conclusion to be drawn from a definition.

MR GRIFFITH: The definition of Article 1.1, Your Honour?

McHUGH J: Yes, but you keep injecting the word discrimination as part of the description of the definition.

MR GRIFFITH: Your Honour, I hope, if nothing else, we have made it plain what our submission is and the basis on which it is made, and we do support it, Your Honour, by reference to these international decisions and international legal experts in their writings on it. This is a point made plainly in our written submissions and, in effect, Your Honour, that is our submissions on this particular point. But we would, as well as referring to these international authorities, also refer to what Your Honour Justice Brennan in Gerhardy v Brown at page 126 said in reference to the critical distinction which we say made between human rights and fundamental freedoms referred to in the Convention and specific rights and immunities which may be conferred under municipal law. Human rights and fundamental freedoms are concerned with values common in all societies and Your Honour said at page 126 in Gerhardy that:

complex of rights and freedoms the enjoyment of which permits each member of a society equally with all other members of that society to live in full dignity, to engage freely in any public activity and to enjoy the public benefits of that society.

We refer also to what Your Honour Justice Mason said at page 101 and 102 to similar effect and also what Your Honours Justice Brennan, Justice Toohey and Justice Gaudron said in Mabo [No 1] 166 CLR 216 to 217 and Justice Deane at page 229.

We say these rights are not limited to the rights enumerated in Article 5 of the Convention, but include the human right to own and inherit property including a human right to be immune from arbitrary or unjust deprivation to property. That is stated in Mabo [No 1] by three of Your Honours, Justices Brennan, Toohey and Gaudron at page 216 to 217, by Your Honour Justice Deane at page 231 and 232. That is also provided, in effect, by Article 17 of the Universal Declaration of Human Rights. Another right, we say, are the rights of members of a racial or ethnic group to a quality of treatment in common with other persons and to the protection and the preservation of their cultural and spiritual heritage. This was stated in Gerhardy v Brown by Your Honour the Chief Justice at pages 101 and 102, and also is reflected in Articles 26 and 27 of the ICCPR which we extract in paragraph 4.35.

DEANE J: Mr Solicitor, did any of these Articles which are critical of Gerhardy deal with the fact that the judgments of the Court placed reliance on the restriction on the freedom of travel of others including other Aboriginals in respect of 10 per cent of South Australia?

Your Honour, I think it is accepted by Crawford, and also, in essence, by Brownlie, that there is disproportionality there; it is not reasonable restriction.

DEANE J: Has anybody, in criticising Gerhardy said that, for example, the exclusion of other Aboriginals from 10 per cent of the State of South Australia was not racial discrimination as defined?

MR GRIFFITH: Your Honour, we took before the Court discussions which deal with the whole issue but my submissions on Gerhardy have always been on the basis - - -

DEANE J: I appreciate you have not criticised the decision in Gerhardy but in view of the emphasis that was put on that in at least some judgments, one would think that it would be something that would have been adverted to in all the criticism.

MR GRIFFITH: Your Honour, Sadurski, we think, does - he seems to criticise everything, Your Honour, and I could give Your Honour the page references in due course but I think Your Honour will find criticism there. But, to some extent, I suppose Gerhardy is a sleeper of a case. It has been picked up, as we refer to, by these international commentators but it is 10 years old. It is not as if it is talked about all the time. It was the first case and, as we indicated in our argument yesterday, it is one where, now 10 years further down the track, there is somewhat more appreciation of the international law context than there was at the time in respect of that case. But the point Your Honour makes is a point of explanation of Gerhardy which we have indicated that we accept in this particular circumstances.

It was a difficult and strong provision but the comment which has been made in these materials is really to the effect possibly even such a strong provision as that should have been tested by reference to the definition of Article 1.1 embracing these questions of whether or not there is an objective basis for the difference before proceeding to say merely because there is a racial discrimination, that it is something which could only be justified as a special measure.

Your Honour, in essence, of course, it is not necessary to pursue these rabbits of Gerhardy down the ultimate burrow because it really is a question of appropriate approach, we submit, to the issue of whether or not it is necessary for the Court, in considering the external affairs power, we say particularly the section 7 argument, that this is to be justified consistently with the Convention, only if it is a special measure. That is the point that, at some length, we are addressing the Court.

The submissions of Western Australia, particularly paragraphs J25 to J27, we submit, do not take the considerations, which I just referred to, into account in asserting that the Native Title Act is racially discriminatory. Of course, the Act does affect racial classifications, but neither the Act as a whole nor any of its challenged provisions, we submit, has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights or fundamental freedoms. Indeed, we say it has the opposite effect, although perhaps it is a bit dangerous, having regard to my exchange with Your Honour Justice McHugh a minute ago to seek to put the opposite in a positive form.

Our submission is that the Act is appropriate and adapted to ensuring that native title holders have equality in the enjoyment of the rights to own property and to inherit. The provisions do not have the effect, we submit, of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights and fundamental freedoms of non-native title holders, and our submission then, obviously enough, is then that there is no racial discrimination within the meaning of the Convention.

Now, if I could confirm now the support which we get from that submission by reference to the provisions of the ICCPR. Relevant provisions are extracted in paragraph 4.35. But if I could take the Court to paragraph 4.37 of our submissions where we there say something in support of the authority of the Human Rights Committee because in the following paragraphs we extract from comments of the Human Rights Committee, statements which, we say, go to support the basis of approach which we have derived from the terms of the Racial Discrimination Convention and the legal writings and international practice.

We refer to the status of the committee under Article 40(4) of the Convention. What the committee does, since 1981, is to issue general comments which have served to clarify its interpretation of substantive obligations of the covenant.

In the materials we extract from three sources indicating the development and authority of this practice. If I could take the Court firstly to page 108 of the materials. That is the extract from McGoldrick, a publication of Human Rights Committee. The frontispiece appears at page 101, a 1991 publication. Indeed, this entire extract explains the committee's jurisdiction and the manner of its exercise.

At the foot of page 106 it notes some "nineteen general comments" that have been adopted. Higher in the page, about point 2, it says:

the purpose of those general comments was to make the Committee's cumulative experience `available for the benefit of all States in order to promote their further implementation of the Covenant; to draw their attention to insufficiencies -

et cetera. And at page 108, paragraph 3.38:

The general comments serve rapidly to develop the jurisprudence of the HRC under the Covenant. They are potentially very important as an expression of the accumulated and unparalleled experience of an independent expert human rights body of a universal character in its consideration of the implementation of the ICCPR.

I take the Court then to page 99 of the materials. This is an extract from Professor Alston's edition.

On page 96 there is also a description of the activities of the committee and running over to page 99 it is said:

It is true that the general comments are neither scholarly studies nor secondary legislative acts. And since they are couched in general terms their interpretation may easily create problems of application to specific cases, while their possible implications may indeed be insufficiently considered. But they carry some practical authority because they represent an important body of experience in considering matters from the angle of the Covenant.

BRENNAN J: And what is the relevance of that paragraph?

MR GRIFFITH: Your Honour, because we next take the Court to comments made by the committee which, we say, go to confirm that legislation of this sort dealing with land rights should not be regarded as discriminatory. We refer to this, Your Honour, to establish that the Human Rights Committee's comments do carry some authority as expositions of what is the position of obligation arising from, in this particular case, Articles 26 and 27. We have extracted in paragraphs 4.37 and 4.38 extracts from two committee reports, the first is a recent one, 6 April this year, which appears in our materials volume on pages 90 to 94. So, for example, the Article 6.1 is found by the Court on page 92 of the extract of materials.

But, dealing with Article 27, Your Honour, what the comment says is:

Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a "right" and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.

Paragraph 6.2 refers to:

positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group.

And, in that connection, it says:

In this connection, it has to be observed that such positive measures must respect the provisions of articles 2(1) and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria.

And, we submit, Your Honour, this is the same element of inquiry. It is open-textured but the matter which is referred to as the matter determining whether or not matters which are discriminatory on their face are regarded as supportive or consistently with the obligation with respect to the right established under Article 27. In the next paragraph on page 93 he goes on:

With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of indigenous peoples.....The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.

What we say as to that in paragraph 4.38 of our submissions is that, in effect, what this means is Article 27 itself imposes an obligation on each State party to take positive measures to protect the right of an ethnic minority to enjoy its own culture.

In the case of indigenous people, we submit, this can take the form of positive legal measures associated with the use of land and, so as not to conflict with Article 26, these must be based on reasonable and objective criteria. Paragraph 4.39,we extract from the general comments adopted in 1989, which appear in our materials at pages85 to 89. futher discussion as to these issues, in particular the reference in paragraph 7, it says:

While these conventions deal only with cases of discrimination on specific grounds, the Committee believes that the term "discrimination" as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons on an equal footing, of all rights and freedoms.

So there is an additional factor for discrimination within this meaning, beyond the mere fact of difference of treatment. And then, paragraph 8 makes this clear:

The enjoyment of rights and freedoms on an equal footing, however, does not mean identical treatment in every instance.

Over on paragraph 10 on page 89 it is stated:

The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights -

we include land rights in this -

the State should take specific action to correct those conditions.....However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.

And in paragraph 13:

Finally, the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

And it is our submission that the Native Title Act is aimed at the protection of the culture of Aboriginal peoples and Torres Strait Islanders and, we submit, for the reasons that we have, and shall refer to, is a reasonable and proportionate means of carrying out Australia's obligation.

May I also give the Court a reference to McKean, which I have already referred to, in particular to page 11 of the materials, where the author discusses Article 27, and he says:

If Article 27 does not require positive measures it is not easy to see how it adds anything to the general equality and non-discrimination provision of Article 2(1). Article 27 must be interpreted as an additional provision to ensure for members of minorities, independently of the other rights set out in the Covenant, the right to special assistance to practise their own culture, language, and religion. This is a natural corollary of the clear principle which has emerged in United Nations practice that a general prohibition of discrimination does not constitute an obstacle to differential treatment for minorities in order to ensure them real equality of status with the rest of the population.

And certainly, Your Honour, we refer to paragraph 7 of the comments of the committee as indicating that includes matters pertaining to land rights.

So, for the combination of operation of the two Conventions, in many ways one supports the other, but each independently, in our submission, supports the view that in considering whether or not these provisions may be supported under the external affairs power, it is the proper analysis of the provisions by reference to the matters we have referred to, to regard the provisions of the Racial Discrimination Act as not being discriminatory in an impermissible sense to the sense that they may only be justified under the exception of special measures.

If we may turn now to the issue of special measures, our written submissions deal with that in paragraphs 4.28 to 4.33. Of course, it is common ground that the preamble does make reference to special measures, and that was the matter emphasised in the last paragraph of the preamble on page 3 by my learned friend, Mr Jackson. To be characterised as a special measure or a special and concrete measure, in our submission, the Act need only be reasonably capable of being seen to be for the purposes of securing the adequate advancement or protection of the peoples in circumstances where the advancement or protection is necessary and warranted by the circumstances to ensure the full and equal treatment of human rights and fundamental freedoms.

In paragraph 4.30 I have already referred to the two expressions between Article 2.2 and 1.4. In paragraph 4.31 we deal with the issue of sole purpose, and I merely adopt what is stated there. In paragraph 4.32 we summarise what we say is the disadvantage which Aboriginal peoples and Torres Strait Islanders suffer generally in comparison with other native Australians. In support of this summary, may I take the Court to our defence to Part G of the statement of claim which appears in the case stated book which, in paragraph 13 of the defence, after paragraphs 11 and 12 alleging the original connection with the land and the dispossession, says on page 92:

Aboriginal peoples and Torres Strait Islanders as a group were on 1 January 1994 and still are economically and socially disadvantaged in Australian society to the extent that they are and were incapable of enjoying or exercising on an equal footing with other Australians the human rights and fundamental freedoms of all Australians. Particulars of economic and social disadvantage are set out in the Schedule hereto.

If I could take Your Honours to the schedule merely in outline, there is a discussion of statistical material dealing with firstly under Part 1 of that the age profile showing higher birth rates and lower life expectancy; two pages further on the position as to employment, higher rates of unemployment, low rate of labour force participation. The following page shows substantially lower levels of average income; the following, education, shows less formal education; housing, Part 5, a similar result; health, really the statistics there are appalling. It shows death rates of two and a half times those of the total Australian population and 3.2 times that of the Australian female population. On the next page, figures for infant mortality are as bad.

At paragraph 7 dealing with law and justice, a similar disadvantage position over the next two pages. The last page of this document is relevant statistical and authoritative sources for this summary. Those facts are obviously ones which the Court could take judicial notice of in any event, but we have drawn them together as a summary of what we say is the present situation of economic disadvantage.

If I could then adopt what is said in the remaining part of the pleading without reading it to the Court. In paragraph 4.33, we say, then the link between the present disadvantage of Aboriginal peoples and the historical dispossession of their lands is given prominence in the preamble to the Native Title Act and we refer also to the explanatory memorandum and, as I indicated to the Court when I opened my submissions, there are reference in the explanatory memorandum to authoritative government reports showing the socio-economic and physical problems experienced since colonisation, including the Royal Commission into Aboriginal Deaths in Custody, the Seaman Aboriginal Land Inquiry and the Woodward Aboriginal Land Rights Commission. That is the volume entitled Selected Extracts from Reports Referred To in Materials in Support of Paragraph 4.33, et cetera, which, as might be expected, makes very powerful points as to the connection between historical dispossession from lands and the present disadvantage as Aboriginal people. I would let that material speak for itself.

We would refer, also, to additional material which is of the same effect. That appears in our volume of Additional Material Referred to Written Submissions; the general volume of additional material. The particular citations appear in paragraph 4.33 of our submissions and if I could give the Court page references: the 1974 House of Representatives Standing Committee on Aboriginal Affairs is pages 91 to 94; the Ranger Uranium Environmental Inquiry, Second Report, 1977, is 95 to 99; the House of Representatives Standing Committee on Aboriginal and Torres Strait Island Affairs is pages 100 to 105, as there referred to. Again, I will not take the Court through those materials. They can speak for themselves and expose circumstances which we would suppose the Court is well aware of, in any event.

So our submission is that even if the native title would otherwise constitute racial discrimination, which we have made clear we deny, it must constitute a special measure to ensure the adequate development and protection of the Aboriginal peoples and Torres Strait Islanders for the purpose of guaranteeing them the full equality, enjoyment of human rights and fundamental freedoms.

If I make take the Court to our paragraph 4.34 of our submissions, we submit that the argument of Western Australian in paragraph J33, asserting that the Act fails to secure the adequate advancement of Aboriginal peoples and Torres Strait Islanders because:

the Aboriginal people primarily benefited by native title are only those who have never suffered the injustice of dispossession of land.

It misses the point. The central purpose of the Act is to prevent continued dispossession. Of course, it also ignores the fact that dispossession is a question of degree and human rights and fundamental freedoms of those who are native title holders were limited before the introduction of the Act in the way that we have set out in paragraphs 4.20 and 4.21, whatever the extent of their continued physical connection with their land.

But drawing this rather long submission together, we would submit that perhaps in the end result here, it does not make all that much difference. If it is not discrimination it is not necessary to consider whether it is a special measure; if it is discrimination then we say, most obviously, it is a special measure. One obtains the same result.

I referred the Court, on page 71 of our International Law Materials where Professor Crawford seems to make much the same point after reviewing the materials and, indeed, much the same point is perhaps made by McKean in the materials at page 25 of our materials. But, in our submission, it is of importance to act consistently with what we submit we have demonstrated is the true meaning of the Convention. I will not seek to excite another debate with Justice McHugh and say merely because of the plain meaning of the Article 1.1, in itself, but also by reference to the domestic and also the international authority which we have referred to.

None the less, our submission is that in respect of question 10B, for the reasons that me say the provisions are wholly supported by the races power, it is unnecessary for the Court to answer this question.

Your Honours, my learned friend, the Solicitor-General for South Australia, made submissions as to various selected parts of the questions but he did make, in pages 60 to 61, a short submission jointly on questions 10 and 11, and this may be a convenient time, if I could hand to the Court, short written submissions we have prepared in answer to the written submissions of South Australia. The Court will remember that the interveners were not bound by directions made by Your Honour the Chief Justice for filing of submissions and we received the South Australian submissions on the Friday before the hearing. Not a matter of complaint but by explanation our written submissions now forthcoming in answer. Your Honours will see in paragraph 6 of this our reply, we make a short answer to the short point made by my learned friend, Mr Doyle, in complaint about the matters to be taken into account by the arbitral body and perhaps it is sufficient to let our points made in paragraph 6.1 to 6.3 to -

If I may turn now to question 11, the question of construction of section 7 of the Act, I said a couple of days ago that after hearing Justice Scalia I have somewhat lost my enthusiasm for reference to parliamentary debates, but if we may just briefly mention that the extract of Hansard page 5061, 5062 referred to by my learned friend, Mr Jackson - of course if one goes to the bottom of page 5060, one sees that the reference is to Senator Chamarette in the Senate. That is all very interesting, but I mean, even then Senator Chamarette says on the bottom of page 5061:

While it is the parliament's intention that the bill should be a special measure within the meaning of section 8 of the RDA, if the bill is held not to be a special measure there is a risk that provisions of the bill may be construed as overriding the Racial Discrimination Act. Proposed clause 6A ensures that the bill, like all other laws, will be interpreted as not affecting the operation of the RDA and will thereby implement parliament's intention. Subclause (2) ensures that the validation of past acts by or in accordance with this act are not affected.

Then Senator Evans, on page 5062 indicates the reluctance of the government to accept a provision of this sort. At the top of the right-hand column he says:

There has never been any doubt about our good faith in wanting the RDA to apply. We have just been concerned about possible unforeseen technical consequences flowing from its application.

He says he thinks these concerns are met by this Act which he refers to in the middle of the column on the left-hand side:

The concern was that if we overemphasised the specific need for continued consistency with the RDA, perhaps that might somehow be put at risk, or other unforeseen consequences may arise.

Our submission is that these extracts really get you nowhere on construing the words, but we have already referred sufficiently to the preamble indicating a clear statement of parliamentary intention: that the Act is to take effect, according to its terms. We say the question for the Court is to do its best in the terms of section 7 as just another section in a Native Title Act, in our submission, not a section intended to, in effect, explode and destroy the Native Title Act. Perhaps I have said sufficient on that sort of intention in my early submissions dealing with the terms of the preamble.

Our first submission is that the Western Australian submissions proceed on a misconstruction of section 7, and we make this submission, which is a succinct one, but we say sufficient in itself to destroy this argument in paragraph 12.5 of our submissions. We say all that subsection (1) does is preserve the operation of the Racial Discrimination Act in relation to any Acts affecting native title under State or Territory laws, or under Commonwealth laws other than the Native Title Act. So that it cannot be thought that the effect of the Native Title Act is to repeal the operation of the Racial Discrimination Act in respect of any laws other than the Native Title Act which may otherwise be affected by it.

So, in our submission, the obvious purpose is to confirm that the Act continues in force in relation to Acts affecting native title, other than the Native Title Act, under Commonwealth, State and Territory laws. When one looks at section 7(2), which creates the exception in relation to the past acts regime, we submit that this has a clear object to ensure that the past acts regime is carried into effect. I will say something about that when I am referring to the provisions, particularly of section 19. But we say that when one looks at section 7 as a whole it means simply that the two Acts have their effect within their separate and concurrent fields of operation in the context.

Our submission is that Parliament intends that the Native Title Act is to apply according to its terms. We say that that is a clear intention whether or not the High Court agrees that this Act is a special measure. And we say it is clear, whether or not section 7 is to be regarded as having a peculiar and more substantive effect than meaning just being a confirmation that the relevant principles of the prohibition of racial discrimination are to continue with respect to native title, after the passing of the Native Title Act.

Our alternative submission is - and this we really just embrace by reference to what we have already said - is that if there is obviously no convention of the Racial Discrimination Act, then there is no operation of section 7 which, on any view, could cut down the operation of the Native Title Act. Of course, the expression in Article 8.1 is to exclude from sections 9 and 10 special measures within Article 1.4. We have made our combined submission on whether or not something is a special measure, and I will not repeat that. But we say in the context of that operation of the Act, it must follow that unless it can be affirmatively held both that the Act is impermissibly racially discriminatory within Article 1.1, in the sense that we have suggested to the Court, and secondly, it cannot be regarded as a special measure within Article 1.4, it cannot be that there could be any work to be given to section 7(1).

We say, for the reasons we have stated, it is quite clear that, if nothing else, the Act must be regarded as a special measure and therefore there would be no effective subsection (1) to confine the operation of the Act. Then we make a further submission in paragraph 12.8 of our submissions in respect of section 9, that it, in conformity with the definition of "racial discrimination", prohibits only racial classifications which have as their purpose or effect the nullification or impairment of the recognition, enjoyment or exercise on an equal footing of human rights and fundamental freedoms. We have sufficiently addressed the Court as to why we say that is not the case here. So we say section 9 could not be regarded as relevant according to its terms and we say, further, in the paragraph 12.10 that section 9 has no application to legislation. This, indeed, was a submission which the Commonwealth did put in Gerhardy in its short argument to the Court in Adelaide in 1984.

Turning to section 10 of the Racial Discrimination Act, we deal with that in part E of this submission. We say, firstly, in answer to a matter which was raised earlier, in our submission, section 10 does apply to other than written laws, because section 10 implements an obligation contained in Article 5 of the Racial Discrimination Convention, to afford substantive equality of enjoyment of fundamental human rights and freedoms, and an interpretation of section 10 which restricted it to applying to legislation would, we submit, diminish the intended protection to be provided by this section. So that we say law should be interpreted in a common and broad meaning and, if rights arise under the common law, it seems necessary that they equally be given the protection provided for by section 10, if equality before the law is to be afforded.

In our submission, when one looks at section 10, the right to which the section applies means a right of a kind referred to in Article 5 of the Convention. So, it is a right in a broad sense as referred to by Your Honours in the citations we give to Mabo [No 1] in paragraph 12.13. We refer to the circulatory argument in 12.14, and we say that, in essence, section 10 of the Native Title Act are implementations of the same obligation of Article 5 to afford substantive equality of enjoyment of fundamental human rights and freedoms.

Your Honour Justice Deane raised an interesting issue yesterday with respect to the issue of alienability, consistently with section 10. That is a difficult issue in itself because the issue of inalienability is something which arises from the Court's judgment in Mabo [No 2], expressing the inalienability of the native title there recognised by the Court as part of the common law of Australia, and it is difficult in that context, we submit, to suggest that Article 10 would have relevant work to do to effect an elimination of that right of alienability.

I suppose on one view, if the native title was regarded to be equated to non-native title in this aspect, then it could well be the John Batman successors living in Tasmania would have a right to say that they owned Victoria after all because they bought it at a treaty with those whom the law now recognises had a capacity, certainly a native title, to their land. Up to Mabo [No 2] it might have been thought that Batman had no title by the treaty because there was no capacity in the natives under the common law as was regarded to have any native title which they would deal with.

Now, these are interesting issues, but we would submit they are for another day. We would not like to suggest that Article 10 now provides an answer. The real answer might be that the definition of native title as it has been expounded by the Court in Mabo [No 2] accepts that it does have differences from non-native title, and one of its essential differences of definition is this issue of inalienability, so that the recognition of this inalienability is to provide the appropriate level of equality by treating different things differently, and in that way, to suggest that Article 10 should by a sidewind establish inalienability of that which the Court has said in its decision is inalienable, would go to destroy the creation of a situation of equality of recognition of things that are different. But, Your Honour, it is thought-provoking.

But we submit that this is not an issue which arises here because, we say section 10, when applied to the Native Title Act , either would not confer a right or benefit, as with, say, something like section 210 of the Act, or does not result in unequal enjoyment of human rights of freedoms that are fundamental, so that there is no relevant work to do. So, for that reason, we submit that there is no difficulty in the operation of the Act arising from section 7.

If we could turn then to our answers which we make compendiously to Questions 3 to 7, those which were put as matters of construction rather than power. My learned friend, Mr Jackson, in opening Western Australia's objection to these various provisions of the Act dealt with in Questions 3 to 7, said that it might be described as one of form but he said it was in truth one of substance going to the relationship between the constituent elements of the federal polity. But we submit that as an argument entirely on a question of construction and not of power, the admissibility argument must depend entirely on what is a proper construction of the Act in the context of what it does in respect of the subject-matter where it operates.

Of course, it is the case, as my learned friend pointed out at length by reference to authority of the Court, that the Commonwealth Parliament may not say that a State law has any different effect to that which a valid State law may have under its Constitution. The propositions and authorities made by Mr Jackson are undoubted and are accepted. The Commonwealth admits it is bound by section 109 and cannot legislate inconsistently with its terms. The Commonwealth law which operates to make a State law invalid in the strict sense that Mr Jackson referred to can have no effect; it is section 109 that does the work. It is also the case, as my learned friend points out, a State law inoperative during the inconsistency will come into operation if and when the Commonwealth law ceases to operate.

The relevant contemporary principle in its operation, we submit, is expressed by the judgment of two of the Judges of this Court in Botany Municipal Council, 175 CLR 465, picking up the well-known statement of Chief Justice Dixon in Australian Coastal Shipping v O'Reilly. This of course was a very recent reminder of the expression, we say, of obvious principle. It was in the same terms as a statement made by Your Honour the Chief Justice in Mabo [No 1], I think at page 197. There can be no doubt about the statement. But the entire Court at page 464 - I am sorry, it was not two of Your Honours, I am reminded; it is the entire Court - in Botany pointed out the difference between the permissible and the impermissible, because at page 464 you said:

This is not a case in which the Commonwealth law is aimed at preventing or controlling State legislative action rather than dealing with a subject matter assigned to the Commonwealth parliament. Nor is it a case in which the Commonwealth law invalidly seeks to displace or expand the operation of s 109.

It is our submission that because this statement of principle put by Mr Jackson is so plain and accepted and recently stated so clearly by the Court as admitted principle, we suggest that it would be perverse for the Court to construe the provisions of the Native Title Act as referred to as providing what is not permitted as being the intended result on the matter of proper construction of the provisions.

In our submission, the principle is so clear, such a construction could only be made if there was no other reasonable construction which the Court could place on the provision. At the start of my submissions, I reminded the Court of the reference of Your Honours the Chief Justice and Justice Brennan in Richardson v Forestry Commission, 164 CLR 293, to the statement of Chief Justice Dixon in Attorney-General of Victoria v The Commonwealth, the Pharmaceutical Benefits Case. I will not read it all, but saying:

"In discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour.....We should interpret the enactment, so far as its language permits, so as to bring it within the application of those powers and we should not, unless the intention is clear, read it as exceeding them."

That is, in our submission, the only issue here. But what my learned friend invites the Court to do is to turn it on its head and to strive assiduously to say that a parliamentary council, so recently reminded by this Court of relevant principle, intended to do something which, if it was the intention of council, could only be described as stupid.

Now, in our submission, it is not even the case here it is possible to find an expression of intention to do what so admittedly is impermissible. We say that the provisions here to the contrary plainly are concerned only with the effect of State laws while the provisions of the Native Title Act are in force. Of course if the Native Title Act were repealed any other State law such as the Western Australian Act of 1993 would operate in a field unaffected then by the operation of the Commonwealth law after it is repealed.

Native title, of course, is something which, by its nature, is liable to be legally affected and the Native Title Act, we submit, deals with matters of legal affectation rather than matters of trespass or improper interference with respect to that which is legally recognised. The Act is directed to the issue of ensuring legal recognition of native title, and that is something which can only be affected by Commonwealth, State or Territory laws and executive action taken under them. It cannot be affected by the actions of others, it may be affected in fact as a matter of trespass but not, we submit, as a matter of law.

Clearly, in this context, it is necessary that a Commonwealth law which, for the purpose of this argument must be regarded as otherwise within power in dealing with native title, must express in plain terms the extent of its operation and what is done here, we submit, is no more than what the Chief Justice Dixon said in O'Reilly, than a:

direct enactment of a statutory scheme which excludes the possibility of scope for the operation of a State law in respect of a Commonwealth law enacted within power.

It must be a strong case to think that the Parliamentary Council must have had these two pages of botany in front of him or her rather than having ignored this relevant principle because Chief Justice Dixon's statement in O'Reilly, recited by the Court after indicating what is impermissible, in our submission applies precisely to this sort of situation here.

The State laws have no operation and effect because they are made inconsistent by the Commonwealth law and they have no force and effect by operation of section 109. Of course, there is no objection to the definition of invalid and its application to paragraphs (b) to (f) of the definition of "Act" in subsection 226(2) on page 105 of the print of the Act. Similarly, we say, there should be no objection to the use of the word "valid" in section 19. Now, this fact that the, by its nature, native title as sought to be protected by the Act can only be effected by laws and executive action taken under them means, we submit, that necessarily protection of native title must include protection from State laws which are inconsistent with relevant terms stipulated by a valid Commonwealth law in the exercise of the power to provide for the protection of native title.

So, we would say that it must be the case that if otherwise empowered, if the Commonwealth is empowered to legislate in respect of terms so as to protect native title so, for example, to provide a mechanism for negotiation as in subdivision (b) which is attacked by Western Australia with particularity, it must be as part of this power the Commonwealth is entitled to exclude the operation of State laws entirely, in this regard, or the operation of State laws which do not comply with particular requirements specified by the Commonwealth law, and in this sort of matter dealing with issues where the subject-matter is the protection of legal recognition of native title being matters which can only be affected by laws of other, or the Commonwealth, and also other bodies politic, the State and the Territories, in our submission, the only way in which one can obtain the appropriate result is to make clear in the Commonwealth law the limits which can be accorded to a valid State law which the Commonwealth law is directing its object to.

I mean, shorn of its reference to an authority, in essence, we submit, the submissions of Western Australia turn entirely on what they say is the proper construction and meaning of the word "valid" or "invalid" as used in the Act.

We have referred and have been referred to the compendious description of "relevant acts" within the definition of "impermissible future acts" in section 236 by reference to "permissible future acts", section 235. Section 226 embraces paragraph (a) of the definition of "act". Now, if one is considering the application of the description, "valid" or "invalid" to, for example, impermissible future acts, one is applying a definition of "act" which arises from the various subparagraphs to section 226(2) on page 105 and 106 of the Act. It is, of course, open to use the description, "invalid" by reference in its strict sense, as put by my learned friend, Mr Jackson, to acts of the sort described under paragraphs (b) to (f). But his submission is that there is the same strict meaning to be given to the term, "invalid" when attached to acts of the sort described under paragraph (a).

What is defined in paragraph (a) is not something which in any way is a prohibition on the making, amendment or repeal of any legislation. What it is, it is merely a definition of the subject-matter of "act" which is to be included in the definition of "permissible act" or "impermissible future act", to which then the terms of the Act expressed in the terms of validity or invalidity applies. Section 227, of course, has a defined meaning of when:

An act "affects" native title, if it extinguishes the native title rights and interests of it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

I should point out, so the Court may disregard it, that there was originally a subsection (4) to section 226 but it was omitted from the Act as part of the parliamentary processes but by an oversight the reference in the first phrase of subsections (2) and subsection (3) were not omitted at the time of the Senate amendment, so Your Honours can notionally strike that reference out as having no relevant meaning.

We submit that it is an obvious meaning, having regard to the subject-matter, direct as it must be, to the issue of State legislative action that invalidity, by reference to such action, must be intended to mean of no force and effect. That may be a matter of necessary inference but here, our submission is, the draftsman obviously has adverted to this difference and made specific provision for it. My learned friend, Mr Jackson, made passing reference to the definition of, "valid" on page 126. I do not think he read it. It did not seem to excite Mr Doyle, either, but the definition of, "valid" is a definition of extended meaning. Valid is defined, on page 126 as including, "having full force and effect".

In our submissions, this is the very meaning which Western Australia submits valid or invalid cannot have in its context by reference to State legislation were used in section 19 or 22 or the other sections of the Act. We say, not only would this be a plain and obvious meaning of construction without the extended definition, it looks here as if the Parliamentary Council have turned their minds to it and have said in the particular case, when one is dealing with the consequences of the operations of provisions of this Act with reference to State laws which otherwise are valid, that is, full force and effect, how is this provision to operate and what is, we submit, done, is by the extended definition of this sort, an expression of obvious parliamentary intention that those State laws are not made invalid in the strict sense referred to of ceasing to be State laws, but stated to have no full force and effect.

So, Parliamentary Council have adverted to the particular issue and added an appropriate definition which could only have work to do in this very situation which my learned friend says is not covered and is, in fact, destroyed by the use of "valid", because he says in other parts obviously "valid" is used in its strict sense and it should have a continuity of meaning.

We have made the point that this would be extraordinary, given the clear recognition of the relevant constitutional principle. We submit it is an argument without a future. We were somewhat surprised it was Western Australia's first and principal argument put to the Court. It was put at length. But in essence, we submit, it is no stronger by support from authority or repetition. It comes down to the question, "What is the meaning of `valid'?" and the answer is that is determined by the definition on page 126, and would also be confirmed by reference to the other matters which I have gone to and by the proper approach, which we refer to as "principle".

Now, I referred the Court to what Your Honour the Chief Justice said in Mabo [No 1] at 197, but in a slightly different context, Your Honour said:

It would take a bold leap in statutory interpretation to conclude that the Commonwealth Parliament was addressing itself to the State legislatures. And, in any event, the Parliament of the Commonwealth does not possess legislative power to prohibit the Parliament of Queensland from enacting a law on a topic falling within a head of concurrent Commonwealth legislative power.

Now, one thing that was well thumbed, leading to the passing of the Native Title Act, were the judgments of this Court in Mabo [No 1] and Mabo [No 2]. It must be that no approach was intended. It would be a bold leap in statutory interpretation to suggest that that was the case, and we submit that it is a view not open to the Court as a matter of construction. The Commonwealth law does not invalidly seek to displace or expand the operation of section 109. All it does is to make clear in respect of a particular subject-matter within power, dealing with the matter which, if it is to be affected at all, as we have said will be mainly the effect of operation of State laws and executive action done under them.

Now, a supporting matter of course is the fact that section 109 uses the same term itself, "invalid", and we would submit that if it is sufficient for the purposes of expressing the meaning of the constitutional provision itself it must be that the same word used in the context of the Native Title Act fairly may be given the same meaning consistently with the operation of section 109. Of course it has been pointed out whatever might have been the case in 1948 in Wenn's case, such meaning is sufficient for the purposes of the Court in expressing the form of its orders made in a case where it is found that there is operating inconsistency.

The form of the order, this is of the court, by reference to validity, expressed in the terms of section 109 also express a meaning, we submit, of no force and effect during the pendency of operation of the Commonwealth law. That is what it means. If it is sufficient to express that meaning for the purposes of vindicating constitutional operation in orders of the Court, in our submission it is sufficient to vindicate the meaning by reference to the manner in which this provision is used in the Act.

May I then take the Court briefly to our submissions in paragraph 6.7 which we adopt, and 6.8. At 6.9, we describe what we say is the relevant operation of these provisions and referring to the group of authorities dealing with Industrial Relations

Act provisions, may I merely refer the Court to the joint judgment of Your Honour the Chief Justice and Justices Brennan and Deane in Metal Trades Industry Association v Amalgamated Metal Workers and Shipwrights Union, 152 CLR, at pages 648 to 649. At page 649, Your Honours say, at the top of the page:

unfortunately s 65, like s 109, is couched in terms which purport to invalidate an inconsistent State law, rather than in terms of a declaration that the award is to have an exclusive operation.....s 65 is to be regarded as evincing a statutory intention that an award made pursuant to the Act is to operate to the exclusion of any State law. So much is made evident by the inclusion of s 65 of the words not found in s 109 which relate to the operation of a State law which "deals with a matter dealt with in" an award.

So, in our submission, Your Honour, there is a consistency of approach from these authorities but it is one which plainly must be right as a matter of construction for the reasons that we have stated.

In paragraph 6.10, we make the point that there is no singling out by the Native Title Act of the acts of State because it is of the essence of what is protected that it exercise a power to control legislative action which may be effective in respect to the legal recognition of native title sought comprehensively to be controlled by the Act and the context of the scheme of the Act admits concurrent operation of State laws which fulfil certain requirements which are stated in the Commonwealth Act.

In our submission, Your Honour, the point made by Western Australian in paragraph F31 of its submissions is confusing the distinction between the subject-matter of extinguishment or other legal impairments of rights and conduct which infringed those rights and the Native Title Act is only concerned with the question of legal impairment which is a topic which, as we have said, can only be exercised in relation to legislative powers of the Commonwealth, the States and the territories. So that there is no singling out; it is just directing itself to the only relevant situation.

This was a matter referred to by members of the Court. If I could refer to Your Honours what Your Honour the Chief Justice said in Queensland Electricity Commission v The Commonwealth, 159 CLR, in particular at page 217. Your Honour said, at the bottom of the page:

Thirdly, it does not follow that every law which deprives a State of a right, privilege or benefit which it enjoys will amount to discrimination in the sense already discussed. A law which deprives a State of a right, privilege or benefit not enjoyed by others, so as to place the State on an equal footing with others, is not a law which isolates the State from the general Law.

On the next page:

And this leads to the more general proposition that the Commonwealth Parliament may by an exercise of its legislative powers abrogate a prerogative of the States without necessarily offending the prohibition against discrimination.

We otherwise adopt our written submissions to the Court, and may I then take the Court briefly to our supplementary submissions in reply to South Australia, which I handed to the Court a few moments ago, and in particular our submissions made, commencing from paragraph 1, to submissions dealing with question 6 on page 5, because these submissions are directed to questions 3 to 7, which we are now referring to.

But, we do make the point, and it is an important conceptual one, and if I could take the Court briefly through this, that we say that the Native Title Act itself creates no obstacle to validation of past acts, and we refer to the second reading speech, which is attached after the Act in this volume, where it is stated by the Prime Minister that:

This bill sets out a regime for the states to validate grants with certainty. It does not prevent states and territories from attempting to validate on their own terms. But they would do so at their own legal risk.

So, where section 11.1 provides that:

Native title is not able to be extinguished contrary to this Act -

it is not the case that there is a prohibition in the Act of extinguishment of native title by validation of past acts and extinguishment. So that that is not contrary to the Act. The States may provide by their own provisions without acting in compliance with what the Native Title Act would admit is operative in its effect.

Indeed, subsection 11(2)(b)makes it clear that State legislation validating past acts, which extinguishes native title, is not contrary to the Native Title Act, and the Court will remember that section 233(2) excludes such legislation from the definition of future acts. So, the provisions of the Act are not limited to State legislation validating past acts in accordance with the Native Title Act. They exclude all State legislation validating past acts from the invalidating effect of the Native Title Act.

So, section 19 particularly provides that State legislation is valid if it contains provisions in the same effect as sections 15 and 16. In that case, as we say in our submissions, that means it is not to be regarded as affected by the Commonwealth law. But there is no compulsion. It is a mere enabling provision. The States may validate - we use "validate" in its strict sense - they can make of legal effect - notwithstanding the Racial Discrimination Act. The States may adopt this course if they wish. Northern Territory, Queensland and New South Wales have passed laws in conformity with the scheme of the Act, of passing laws containing provisions to the same effect as sections 15 and 16. Tasmania, South Australia and the Australian Capital Territory have, I am instructed, introduced legislation in this form. It is entirely up to the State as to what to provide in their laws.

However, the validity or invalidity will turn entirely on its consistency or inconsistency with the Racial Discrimination Act in that case. If the Racial Discrimination Act were repealed, the State Parliament could validate a past act without restriction. So we submit that section 19 effects an implied amendment to the Racial Discrimination Act. That is, of course, authorised by section 7(2). It is up to the States as to whether or not they desire to use that provision.

In that way, we submit, as we do in paragraph 1.6 of our answer to South Australia, in answer to its contentions, that in section 19(1) there is an implied amendment to the Racial Discrimination Act and we suggest in paragraph 1.7 what is the substance of this amendment, that, in effect, the effect of the Native Title Act on the Racial Discrimination Act is exactly the same as if Part 2 of the Racial Discrimination Act, which contains sections 9 and 10, had been amended to provide, "This Part does not apply to or in relation to the application of a law of a State which contains provisions to the same effect as sections 15 and 16 of the Native Title Act". We say that is the essence of what is permitted under the scheme of the Act, in particular Subdivision B, section 19, and particularly section 20 is part of the subdivision. We say there can be no objection to the validity of section 19, that it does refer to the validity of State laws.

Of course, there is an expression in section 19(1) the suffix is:

attributable to the State or Territory are valid, and are taken always to have been valid.

It was submitted, as we understood it, that this takes the Act to an impermissible Metwally situation, if I may refer to it. Metwally, of course, established that a Commonwealth law could not validly retrospectively remove an inconsistency which was an inconsistency in fact during that time so as to, by its own operation, revive retrospectively the operation of a State law which was for that period invalid by operation of section 109. That is all that Metwally determined.

What was necessary in Metwally is, as well as the retrospective vacating of the field by the Commonwealth, there then be a subsequent State law retrospectively to fill the gap and that retrospective State law would be valid because the State has power to make retrospective laws and would not, by force of section 109, be regarded as inconsistent and invalid of no force and effect because, looking at it in the future there would then be no operating inconsistent Commonwealth law during that period because retrospectively it had been removed.

In the case of Metwally, the defect was that there had not been subsequent validating retrospective State law. All that section 19 does is to say that a State may pass a law which has retrospective effect. That is natural enough that that should be something which is permitted because it is dealing with this issue of validation of past acts. In our submission, doing that is acting purely consistently with what is the situation as determined by the Court in Metwally. All that section 19 does is to enable in certain terms a State law to operate according to its terms on the basis that it makes plain that in respect of these matters, even where there is to be retrospective effect, the Racial Discrimination Act is not now to be taken to make a future State law invalid because there is, to this extent, an amendment of the Racial Discrimination Act which otherwise would operate, as we know, by reason of Mabo[No 1] decision, by the permissive effect of section 19.

Section 19(1) effects an amendment to the Racial Discrimination Act and, in this context, we submit, a retrospective amendment. The retrospective amendment itself does not validate what would be held invalid. What is required is a new State law to do that and that is what section 19(1) permits.

DEANE J: Mr Solicitor, can I just take you back a little bit?

MR GRIFFITH: Yes, Your Honour.

DEANE J: What if, contrary to your submission, one were of the view that, read on their own, section 11 and section 19 would impliedly exclude validation by State laws otherwise than in the manner prescribed by this Act? Is there any other provision in the Act which would, as it were, override that prima facie impression?

MR GRIFFITH: Your Honour, if that was the construction made, Your Honour, that would be the result.

DEANE J: The answer is there is no other specific provision that would override that prima facie impression, if that was the impression one derived.

MR GRIFFITH: Your Honour, we would not like to concede it is a prima facie impression, because we say the plain meaning is the opposite.

DEANE J: So far as I am concerned you should not assume that it is not a prima facie impression.

MR GRIFFITH: Your Honour, could I destroy it by subsection 7(2)?

DEANE J: It seems to me that subsection 7(2) tends to confirm the prima facie impression.

MR GRIFFITH: Your Honour, I submit to Your Honours that this is the intended scheme of the Act effectuated by the terms used in the Act and, Your Honour, the fact that the State of Western Australia has passed a provision can be used as a reference point to test this argument, that what we say is, and we will get with that when we deal with the additional questions 1 to 3, Your Honour, that one can still test the Western Australia Act by reference - it would be valid, we submit, Your Honour, if it is consistent with the Racial Discrimination Act in respect of past validation.

DEANE J: That raises a different question, does it not? That raises a question of the retrospective operation, but what I was simply putting to you is what if one read, now you have given it to me, section 7(2), section 11 and section 19(1), as conveying a clear legislative intent that native title could not be, as it were, eliminated by subsequent State or Territory legislation which did not comply with this Act.

MR GRIFFITH: We have difficulty with the premise. In effect, Your Honour is giving section 11(1) pre-emptive work.

DEANE J: I am really giving section 19(1) the work in the operation in the context of 7 to 11 and the Act as a whole.

MR GRIFFITH: If that is the construction Your Honour makes, our submission is that the act none the less would be valid. There would not be any question of want of power to do that, it would provide an exclusive method. But, of course, we would say the word "valid" here used in section 19(1) is not exposed at all to the construction point because it is dealing with the issue of this question of - - -

DEANE J: In other words, what I am putting to you is that section 19(1) covers the field that in terms of the extinction of native title by subsequent State or Territory legislation.

MR GRIFFITH: If it a case of the majority of the Court determines that is its proper meaning, it will be the meaning of the Act none the less within power, in our submission. It is not what we submit is the meaning.

DEANE J: I follow you say that, but your argument seemed to be premised on the contention that section 19(1) did not have that effect.

MR GRIFFITH: Because I was dealing with the contrary argument made by my learned friend, Mr Doyle. It was one made by him rather than my learned friend, Mr Jackson, and his argument made we did not agree with, so we say that is not the proper construction. In our submission, it is not one that goes to power. We made several points in this argument and one is we say that there is definitely here an implied retrospective amendment to the Racial Discrimination Act, and that is a case on Your Honours' view as much as it would be on our view.

If one takes the extra step and says this is the only way in which it can be done, we say that would be of the essence of matters which would be within Commonwealth power. But our submission is that is not the way it is done. It is still open season for States who wish to run the gauntlet of the Racial Discrimination Act, without the benefit of the retrospective amendment which will only apply if there is consistency with the requirements of section 15 and 16 as is required. Perhaps it is a simpler situation then because one has a plain exercise of power, in our submission, that validation of past acts is to be done in this form and no other form.

We say it is more if you want to be sure you have done it effectively, you can do it this way. If you want to take pot luck, as you could before the passing of the Act, by reference to all relevant principles of law, including the Racial Discrimination Act, not amended in this respect in that case, then you may. There is no difference in resultant power, but it would be, we would submit, not the intended operation which we submit is one which lets the State have a choice. It might be a bit of a Hobson's choice.

At paragraphs 1.10 and 1.11 of our written reply to South Australia - - -

DEANE J: Mr Solicitor, could I just take you back to something Justice Brennan said to me. I am just wondering whether my question has any content, because - - -

MR GRIFFITH: It would be nice if it did not, Your Honour.

DEANE J: - - - if section 12 is valid, will not the only times when past State acts would not have extinguished native title be when they are inconsistent with the Racial Discrimination Act and, if they are invalidated by that Act, then there is nothing in this Act that will validate them if they are not caught up by section 19(1).

MR GRIFFITH: Your Honour, the answer to that will involve a question of what in fact is the proper operation of section 12. We were intending to deal with that separately, so perhaps can we pick up the point there. But if we can destroy the question we would wish to on this point.

DEANE J: It will make things easier for everyone then.

MR GRIFFITH: Yes. We hope, Your Honour, we have destroyed the power issue by saying it does not matter either way for section 19. It is just that our submission is that it operates this way. But if it is comprehensive, that equally must be within power, in our submission. If we could sit on that answer for the moment, Your Honour, and then attach our submissions on section 12 to that.

In paragraphs 1.10 and 1.11, we refer to the argument made by my learned friend, Mr Doyle, with respect to subsection (2). It is perhaps sufficient for us to stand on what we there say. But perhaps if I could just remind the Court that at the end of the day no invalidity could arise from this because section 53 of the Act is a general provision which imposes an obligation on the Commonwealth to pay just terms if they are otherwise required. So that, even if it were put that section 20(2) is an acquisition, the just terms are there, so that it does not lead to invalidity. We say here that there is not an obligation of just terms for the reason we state in paragraph 1.10 and also 1.11.

But just as a last point, we say there is no invalidity anyway. It is not a case that there could on any view be an acquisition without just terms because, if the Court held that it would otherwise, the just terms are provided. That is perhaps a quick way of doing it, but we do rely upon the submissions before made there for validity.

Dealing with my learned friend's submissions on questions 4 and 5, there we make submissions in paragraphs 2 to 2.9 of our written response. I think it is perhaps sufficient for us to refer to those. We make the point in paragraph 2.7 that for a future act to be valid, it must be consistent with both the Native Title Act and the Racial Discrimination Act, but of course it is likely that a future act which meets requirements of the Native Title Act will be so consistent.

We make a reference in paragraph 2.8 to our answer to paragraphs 3.7 to 3.25 of South Australia's submissions. Where we say by paragraph 6 of our written submissions, we mean Part 6 of our written submissions in their entirety with the various paragraphs of Part 6. On Question 6, we make submissions on page 5 of this document. This deals with the question of where section 43 is, and we say that it would fall with the whole part, Subdivision 3B, but it does not have a problem of independent invalidity. Those are the submissions we desire to make on this point which, as I have indicated, we say are matters of construction.

Could we turn now to question 2, and that is the operation of section 223(3) of the Act, which appears on page 104 of the print. This is a section which perhaps appears to do more than it does. It is submitted that it is aimed solely at an exercise of Western Australian legislative power, namely the 1993 Western Australian Act and the future exercise of executive power in Western Australia under that Act.

Our primary submission is that the Western Australian Act is inconsistent with sections 11 and 22 of the Native Title Act as well as the Racial Discrimination Act and that it has no valid operation by reason of section 109 in any event. We deal with that in Part 13 of our submissions. We say that the Act is an impermissible future Act. Now, if we are right about this then, in fact, this subsection has no work to do.

If that is not correct, we say that none the less, as a working section, it is not objectionable in form, having regard to the particular subject-matter of native title and measures required to ensure the protection of legal recognition of native title.

BRENNAN J: I am not quite sure that I follow that first step in that argument. You say that the Western Australian Act is inconsistent with sections 11 and 22, is that right?

MR GRIFFITH: Yes, Your Honour, as an impermissible future act.

BRENNAN J: Now, those sections relate to native title as defined.

MR GRIFFITH: Yes, Your Honour.

BRENNAN J: If the Western Australian Act were consistent with the Racial Discrimination Act, then leaving aside 223(3), would there be any native title in Western Australia?

MR GRIFFITH: Your Honour, "impermissible act" has an amatory definition which includes the period since 1 July, Your Honour, so it has a passed operation in respect of this Act, although it is expressed "impermissible future Act" it has a general retrospective operation.

BRENNAN J: So what is there for it to act upon?

MR GRIFFITH: Your Honour, it would affect any State law passed during that period which is within the definition of "impermissible future act", including this one. But the operation is by reason of the definition of "impermissible future act" through section 22, not through the operation of the definition in section 223(3). That is the point we seek to make. The complaint is that it is this subsection directed at the State.

BRENNAN J: Yes.

MR GRIFFITH: We say, if, apart from this subsection, the State Act, in its operation, is destroyed by the retrospective operation affected by the definition of "impermissible future act". It is a bit unfortunate to call it past act and impermissible future act, but that is the effect of the definition It picks up a legislative act from 1 July 1993 - - -

BRENNAN J: Let it be assumed that the Western Australia Act were valid. Let it then be assumed that the Commonwealth Act subsequently introduced was retrospective in its operation, so that it would be, on its face, inconsistent with the Western Australian Act. What would be the effect of the Commonwealth Act on property rights first affected by the Western Australian Act?

MR GRIFFITH: Your Honour, the effect is that the Western Australian Act would cease to have any effect, so those property rights would cease to exist.

BRENNAN J: And what would be the provisions for compensation in respect of those property rights?

MR GRIFFITH: Section 53 would do it if it had to, Your Honour. It would not be such a problem here because the essence of the West Australia Act as put in the Court is that it recognises and makes statutory, in form, with the same content, the rights that existed so that - - -

BRENNAN J: Yes, I understand it. I just wanted to see the framework in which it operates.

MR GRIFFITH: It is covered, Your Honour, we would say, with a nil payment.

BRENNAN J: That perhaps depends on the effect of the Western Australian Act and its consistency with the Racial Discrimination Act.

MR GRIFFITH: Yes, Your Honour. It is a question of how one answers these questions and the order of them, and validity, Your Honour, but on this point we are just addressing the argument directed to section 223(3).

BRENNAN J: That is the very order that I am concerned about, because the order must be this, must it not, that in point of time the first into the field is the Western Australian Act?

MR GRIFFITH: That is so, Your Honour.

BRENNAN J: It has an effect, according to its terms, subject to the Racial Discrimination Act.

MR GRIFFITH: Yes, Your Honour.

BRENNAN J: It may or may not affect property rights. If it does affect property rights validly, those property rights are vested from that point onwards.

MR GRIFFITH: Yes, Your Honour.

BRENNAN J: Along comes the Commonwealth Act which purports to operate retrospectively. If that Act then divests the property rights that have been vested, there is an appropriation of property and just terms must be provided. So, one looks first at the Western Australian Act, its consistency with the Racial Discrimination Act, its valid operation and the effect of the Commonwealth Act upon property rights thus affected. Is that not the order that one must approach it on?

MR GRIFFITH: Your Honour, that might advance if one adopts it that way the consideration of additional Questions 1 to 3.

BRENNAN J: It does not seem to me that any formulation of questions can affect the legal effect of those events.

MR GRIFFITH: No. Yes. Your Honour, we emphasis that this is a submission made as an alternative in answer to the submission made with respect to section 223. This is one answer we provide and then we go on to provide another to say that in any event by equating all native title to the same standard of reference. We say that it makes no difference that, as Western Australia says, it is the fact that this provision operates with peculiar effect within the State, and that is the argument I was about to get to, Your Honour. So that it is an alternative argument dealing with how we say that there is no objection to this section, but we do say the chain that Your Honour refers to is covered by the terms of the Act and it is perhaps not a matter for the Court today to be concerned as to whether or not there would be particular content in the just terms. One can see a reason why there might not be much or anything, but the provision is there, Your Honour, to catch that sort of circle rather than to expose any risk of what is expressed to be retrospective effect failing in the event it was regarded as an imposition, and we are here today dealing with power, Your Honour, not the question of particular rights to compensation.

If one likes, after the short answer which we have given, the longer answer is to say that neither in form nor substance does this section single out Western Australia impose any special burden. As a matter of form, of course, the section applies equally throughout Australia but, we say the substance of the provision is merely to ensure that like that things are treated in a like manner. It ensures that the Native Title Act applies equally to native title and rights and interests throughout Australia whether those rights and interests exist at common law or by force of legislation. So, it is a case of providing for uniformity throughout Australia rather than as is suggested providing for a particular discrimination against Australia.

So, in paragraph 8.6 we make the point that there is no objection to the validity in its application to Western Australia, that the Act applies substantive provisions of the Act to that State alone, when the substantive provisions are applied equally to the other States by section 223(1). In effect one has, in the combined operation on this basis, the uniform of application throughout Australia of the native title provisions, otherwise there would be a discriminatory one. So the Act, by this subsection, has the effect of applying the universal provisions of the Act to this State as it applies to other States. So, as a matter of substance, that ensures the uniformity of application of the Act throughout Australia.

Now, we say, that the Western Australian submission here is going to confuse the object or purposes of this section with what might have provided motivation for its enactment. Whatever one might say was relevant motivation within Parliament, by its terms, what is enacted is a provision which in subsection (3) operates throughout Australia and, we say, the section as a whole ensures operation uniformly throughout Australia covering the admitted difference in circumstance at the time the Act was passed between the position in Western Australia and the position in the other States.

DEANE J: Would not 223(3) only have a prospective operation if the Commonwealth had to rely on it? Let me put that to you a little less obscurely. The Melbourne Corporation case argument is on one view at its strongest in relation to 11(2)(a) if the Western Australian Act survived the Racial Discrimination Act. If there be no problem about 11(2)(a), as I follow it we do not have to worry about 223(3) in terms of retrospective operation because there will be no statutory rights of the kind it refers to.

MR GRIFFITH: Yes, that would be so, Your Honour.

DEANE J: So 223(3) comes in if 11(1)(a) is ineffective in relation to the West Australian legislation and operates prospectively.

MR GRIFFITH: We would agree with that, Your Honour. Annexure B of the statement of claim refers to parliamentary statements with respect to, it is alleged, the motive of Parliament in respect of this provision being directed particularly at Western Australia. My learned friend did not take the Court to these statements but they remain part of the statement of claim before the Court. Our submission in paragraph 8.9 is that even if otherwise admissible, they would be wholly irrelevant. In fact, when one looks at them, they do not say anything more remarkable than ascribing objective fact of the Western Australian Act. But our submission must be - and this is what we make in paragraph 8.10 - that this Court is prohibited from looking at them. As my learned friend did not take the Court to them, that I will not invite the Court to start looking at them now.

The argument of Western Australian in its written materials does attack what we say is accepted principle and even validity of the Parliamentary Privileges Act. We do not know the extent to which that is an objection continued before the Court. But may I hand to the Court a set of written submissions where we deal with this issue as an excursus. So, having said that it is irrelevant, having said that there is nothing much there anyway, we say as our primary submission that the Court cannot look at it even if we wanted the Court to look at it. We do not want the Court to waste its time by looking at it, so I will not take the Court through this.

But, referring to page 3, there is a very recent decision of the Privy Council in Prebble v Television New Zealand Ltd which is referred to in paragraph 7 on page 3 of this summary where it is interesting in its advice Their Lordships thought whatever the correctness of the decision of Justice Hunt within Australia, they did not regard it as correct so far as the rest of the Commonwealth is concerned. Perhaps only Justice Hunt is interested in that, but there we are. I will not take the Court to that judgment or to the recent Pickin case, the 1984 House of Lords decision that we refer to. But those are our submissions to say do not look at it, and we also say you are wasting your time.

Now, Your Honours, could we move now to question 9, impairment of State functions. We have already referred in passing to these issues but in part 9 of our submissions we address this question particularly, and it is argued that the Native Title Act singles out or discriminates against the States in the exercise of their legislative or executive powers. We have made the point that we mention in 9.2 that the particular nature of native title means that it only exists in relation to Crown land and may only be legally extinguished by legislative act or executive act pursuant to proper authority.

Your Honour Justice Deane, in the Queensland Electricity case, at page 251 - we extract the quotation in paragraph 9.3 - made the point that there is an exception to the Melbourne Corporation doctrine:

where the relevant legislative power authorizes the singling out of a particular identified object, activity or situation for special legislative treatment and a State or State agency is affected by reason of its relationship with that object or involvement in that activity or situation.

Of course, as I have taken the Court, the definition of "act" in section 226 is not confined to legislative or executive acts and so, if it is possible for acts of a person other than the Crown legally to affect native title those acts also would be covered; I refer the Court to subsection (3).

The argument here of Western Australian seems to adopt, we submit, the similar sort of approach of indicating that the Commonwealth should be precluded from directly commanding a State legislature to legislate or not to legislate in a particular way by a law directed to the State. This is the submission made in paragraph H14 of the submissions.

We say, in paragraph 9.5, an answer to this is that the Native Title Act does not depend or require implementation by State legislation or executive action. It does have effect as a law of the Commonwealth and States may enact legislation consistently with its terms and the operation of such State law is effective because of the operation of section 109.

If the Commonwealth law otherwise is valid, it must be that in the exercise of State executive powers State officials will be bound by it. We submit that it is not the case, as is suggested, that the Commonwealth is, by its legislation, directly compelling the States to take or not to take certain action, including legislative action. We have emphasised that a State is free, whether or not to pass further legislation and, if it does, the Act will operate according to its terms and section 109 will determine the continuing force of such laws.

The States have, of course, an incentive to act in a way consistently with the Native Title Act and we refer to what Chief Justice Latham said in South Australia v The Commonwealth, 65 CLR 416 to 426, in particular at 417, where he said:

The States may or may not yield to this inducement, but there is no legal compulsion to yield.

That must be the case here; there is no legal compulsion for the States to do anything.

Western Australia relied upon New York v United States, in paragraph H15 of its submissions - the citation is in paragraph 9.8 - and we make the point that this is entirely a different situation where the congressional Act directly imposed liabilities on States if they failed to take specified action before a specified date.

We would prefer to refer to other United States authority, particularly the case of FERC v Mississippi, [1982] USSC 180; 456 US 742, and in particular at page 771 where it is said, in the opinion of the court:

If Congress can require a state administrative body to consider proposed regulations as a condition to its continued involvement in a pre-emptible field - and we hold today that it can - there is nothing unconstitutional about Congress' requiring certain procedural minima as that body goes about undertaking its tasks. The procedural requirements obviously do not compel the exercise of the State's sovereign powers, and do not purport to set standards to be followed in all areas of the state commission's endeavours.

This approach was one followed by the Supreme Court in the Hodel case, Acting Secretary Hodel v Virginia Surface Mining and Reclamation Association, [1981] USSC 138; 452 US 264.

That case involved a federal Act dealing with the reclamation of strip mining lands which provided a regulatory program which could be adopted for each State, either by approval of a State's proposed permanent program that meets federal minimum standards or by adoption of a federal program for any State that chose not to submit a program. Depending on what procedure was adopted, the enforcement of the program was either by the participating State or imposed by the secretary as a non-participating State. But pages 289 to page 291, in the opinion of the Court, the Court referred to the imposition of these minimum mandatory standards as a price for adopting a State regulatory system in the middle of page 289 said:

In essence, appellees urge us to join the District Court in looking beyond the activities actually regulated by the Act to its conceivable effects on the States' freedom to make decisions in areas of "integral governmental functions".

Having described the operation of the Act on page 290, about point 4, it says:

it is clear that the Commerce Clause empowers Congress to prohibit all - and not just inconsistent - state regulation of such activities.....Although such congressional enactments obviously curtail or prohibit the States' prerogatives to make legislative choices respecting subjects the States may consider important, the Supremacy Clause permits no other result.

At the bottom of the page:

We fail to see why the Surface Mining Act should become constitutionally suspect simply because Congress chose to allow the States a regulatory role.

Then it goes on to say in the middle of page 291:

This conclusion applies regardless of whether the federal legislation displaces laws enacted under States' "police powers". The Court long ago rejected the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States' exercise of their police powers.

In paragraph 9.9 we refer back to the argument we have already made on the singling out or discrimination issue. Then, in paragraph 9.10 we deal with the long argument made in paragraphs H20 to H38 that the Native Title Act interferes with the capacity of Western Australia in the performance of government functions. We refer to Your Honour Justice Brennan's statement in the Tasmanian Dam case which we there extract on page 214 to page 215 of the Commonwealth Law Reports dealing with the question of wastelands and refer also to the judgments of Your Honour the Chief Justice and Justice Murphy at page 169 and Justice Deane at 221.

In paragraph 9.11 we have, in essence, our answer to the large amount of factual information which Western Australia has put before the Court in its pleading, and, also, by presenting it for the Court to merely look at it, that we say the size and range of the manner of functions is just merely a function of the particular legislative powers being exercised and the subject-matter to which the Act relates. Indeed, the operation of this Act is no greater than what we submit the operation of the Racial Discrimination Act now has after Mabo [No 2] upon the recognition of native title.

If there is no native title, then any State activity in respect of these large areas of lands is unaffected. If there is no native title then that is something which Mabo [No 2] dictates should be recognised. The common law recognises it and the Native Title Act provides a legislative framework for that legal recognition. All the Native Title Act does is to provide a mechanism pursuant to a statute for the identification of this title which, quite separately from the Native Title Act, exists and continues to exist. So that it is not a case of prohibition of activity over a large part of the State.

All that this Act does, it submits, is to equate native title in respect of the legal protection to which it is entitled to that, speaking loosely, of freehold title. Just as much as State activity, even in a large State in geographical area such as Western Australia, would be affected in as much as it impinged on existing freehold title, it would be necessary for there to be appropriate mechanisms for compulsory acquisition or otherwise in respect of legal impairment of such title, we submit it is not objectionable for the Native Title Act to provide a structure of appropriate recognition to native title which, quite independently of the Act, already exists.

Now, in paragraph 9.13, we drew together what we say is the operation of the Native Title Act in this way, and I will not take the Court in detail through that because that is a section which has already been exposed in argument before the Court and, we submit, one which remains unscathed in its summary of the relevant operation, we say, of the Act. In that operation, our submission is, there is no trespass into the peculiar and extraordinary circumstances which would be necessary to obtain before it could be said that the objection made by Western Australia is made out.

At the end of the day, as we say in paragraph 9.14, the Native Title Act imposes no greater restriction on the exercise of governmental power in relation to native title than those which have traditionally been observed in respect of freehold land. Inasmuch as there is argument made that there is too extensive an impairment, or inhibiting of the capacity of Western Australia to govern, we say that this is a matter to be considered in relation to the true nature and scope of the legislative powers. We refer, in paragraph 9.15 to a particular reference of the Court dealing with that issue and, if we may take the Court quickly to Re State Public Services Federation; Ex Parte Attorney-General, 178 CLR at page 271, there Your Honour the Chief Justice and Justices Deane and Gaudron said, towards the foot of the page, where you said:

In this respect, we should point out that the statement made in Re Lee; Ex parte Harper, that the implied limitations must be read subject to the express provisions of the Constitution, should not be understood as excluding consideration of implications derived from the Constitution until the scope of s 51(xxxv) is ascertained by reference to its terms alone.

And when one goes to Re Lee, 160 CLR at page 453, there Your Honours Justice Mason, Justice Brennan and Justice Deane said:

Where a head of Commonwealth power, on its true construction, authorizes legislation the effect of which is to interfere with the exercise by the States of their powers to regulate a particular subject-matter, there can be no room for the application of the implied limitations.

The point we make in paragraph 9.15: if the races power and necessarily external affairs power enables the Commonwealth Parliament to protect native title, it must necessarily extend to the protection of native title from State legislative or executive action which otherwise might lead to its extinguishment or impairment. If that is the case, there can be no constitutional objection that the States are impermissibly affected in their function because of that.

In Part 5 of our written submissions answering South Australia's written submission, we deal with question 9, paragraphs 5.1 to 5.7. The Court will remember that my learned friend listed, in paragraph 7.19 of the South Australian submissions, six aspects of challenge, in his submission, by reference to the Melbourne Corporation principle. We deal with those paragraphs, firstly paragraph 5.2(i), (ii), paragraph 5.3 to 5.5, 5.6(iii) and the remaining three paragraphs, 5.7, and I think it is sufficient if I adopt those submissions as our submissions in answer.

We turn then to question 13, section 53 of the Constitution. Your Honour, I was going to say that I have nothing to say.

MASON CJ: You were going to say?

MR GRIFFITH: I had nothing to say. Your Honour, we will hand the Court an amended suggested answers but rather than "unnecessary to answer", we submit the answer to this one is "no answer", because our primary submission is the Court cannot decide this and if it could, there is no difficulty. But, Your Honours, really it is not necessary for the Court even to decide that it cannot decide it. It is not a winner. Perhaps my learned friend will take a hint and abandon it. I do not know, but we stand on our submissions. Our submission will be not "unnecessary to answer" but do not answer because we say still the Court cannot, but we have got nothing - - -

MASON CJ: Even if he cannot take a hint, we may be able to.

MR GRIFFITH: If Your Honour pleases. Your Honour, just because it comes up next in order, severability is included in paragraph 11 of our submissions on question 14, but we do not desire to make any submissions on severability other than to say that if any particular issue of severability should arise, we would suggest that the Court give the parties an opportunity to make submissions. We cannot see any function here in anticipating what the circumstances may be. We are content to leave it to the Court to indicate whether it regards there being such an occasion for submissions.

DEANE J: You would put a reading down argument on "valid" though, would you not? That if one construed "valid" as meaning what is put against you, one reads it down to the negative of a definition - - -

MR GRIFFITH: Of course, you take out paragraph (a) on the acts, of course, Your Honour, that is so obvious. And we have got an additional reading down clause here, section 208, although one finds whatever additions one make they do not alter much from what would happen anyway. Really the permutations - for example, Your Honour, I indicated in my opening remarks that, on section 12, it stood alone. Now, that might be thought to mean that there was no problem of severance. There might not be a problem of severance about section 12 but, as we will indicate in our argument, the loss of section 12 would have consequences that would have to be addressed, but that might be separate from a pure reading down issue.

One never likes reading down arguments because they are on the basis if one is unsuccessful, and we made so many submissions as to why, when in the alternative, we find it difficult to go down the bottom of the ladder as to what happened if you lose on this point.

BRENNAN J: I confess you have whetted my appetite by saying that about section 12.

MR GRIFFITH: That is good, Your Honour, because we intend to address it in detail. Section 12 is an interesting section, Your Honour. It is not just the bell and whistle added to the Act. It does have some effective work to do basically about jurisdiction and we intend, even with a further hand-up submission of a couple of pages, to persuade the Court as to its validity. It is not offered as a notional sacrifice to get through the door of validity, Your Honour. It is a serious question serving a purpose. So I am glad Your Honour is interested, and we will sustain that interest then to the end of our submissions, as we are going to deal with that last.

Your Honours, may we then refer briefly to the additional questions. Now, there we have written submissions on page 65, and problem following, of our submissions. Our basic position is that as my learned friend, Mr Jackson, we understand, agreed with the Court that if the Native Title Act is valid, well then additional question 4 has to be answered that the State Act is invalid.

Actually, we do not entirely agree with that because in our reading of the Act - and this depends upon the construction with which - particularly with Justice Deane - we engage in debate. We say with the exception of Part 2, the Western Australian Act as a whole is an impermissible future Act and therefore inconsistent with sections 11 and 22 of the Native Title Act. Now, Part 2 of the Western Australia Act which appears on page 8 of the print, and only on page 8, it is only one section, Confirmation of Titles, we say is taken out of the reach of the Native Title Act by sections 11(2)(b) and 233(2).

Now, if the Western Australia Act is otherwise invalid, it may be that this part is severable. If this part is severable, an issue we say would arise as to whether it is consistent with the Racial Discrimination Act. We say that it is inconsistent with section 10 of the Racial Discrimination Act because it purports to validate past invalid titles, in effect, by granting new titles, without giving native title holders any of the procedural rights applicable in relation to the grant of similar titles affecting other interests in land. We have already made in our written submissions, to which I have not taken the Court on additional questions 1 to 3, short submissions on these issues.

Inasmuch as Part 2 purports to apply retrospectively, we say, that it would be contrary to section 109. You cannot validate retrospectively what the Constitution by 109 has declared invalid by reason of inconsistency with the Racial Discrimination Act. But that means that however in considering the answers to the questions, question 4, we would say, the answer should be the whole, save for Part 2, is inconsistent with the Native Title Act.

It might help at this stage if I handed to the Court our answers to the questions. This was originally included on page 69 of our submissions, but we have now refined our answers and substitute this page for that page.

Looking at Additional Questions, what we have now done, on reflection, is to say, "Well, really we don't regard Part 2 as being destroyed by the Native Title Act being held valid by operation of question 4," but we say it would be destroyed by the answer to question 3. Otherwise, we say, that it is unnecessary to answer the balance of questions 1 to 2 and question 3.

In our written submissions we make what we say are sufficient submissions by reference to the Racial Discrimination Act to lead to that answer and, of course, the additional questions are those formulated in the two ancillary actions where the attorney appears as an intervener and, as we understand, there is at least counsel for two anxious plaintiffs who desire to embrace the Court's attention for two days or so on these questions. We feel in going first it is sufficient for us to adopt prospectively the submissions which we have made in our written submissions by reference to which we propose the answers that we do.

Could I refer briefly to the remaining proposed answers in the amended form. Your Honours will see that we propose question 1(a) should be answered no, but that includes the various Roman paragraphs all the way down to the present and not stopping on the date of proclamation in 1829. Questions 2 to 9 are all answered the same: we say no. Question 10A, that is the races power, yes; 10B, the Court will remember our preferred position to say the Court does not have to answer on external affairs, having answered 10A on races power, but say yes if you want to. Question 11 is the outstanding question to consider. Question 12 is our agreed position that the corporations power issue may be regarded as irrelevant and no party desires the Court to decide that. We have made written submissions on it.

Question 13, we have made the point. We say do not answer it rather than saying it is unnecessary to answer, because our residual argument we do not ask the Court to decide is that the Court cannot answer it. We make our point about severance. With respect to section 12, a matter where we have the interests of at least one of Your Honours, Mr Rose will make the submissions for the Commonwealth on that issue.

MASON CJ: Yes, Mr Rose.

MR ROSE: If the Court pleases. My submissions will be directed primarily at the oral submissions made by my learned friends, Mr Jackson and Mr Doyle. In one of their main arguments, Mr Jackson submitted that the only purpose of section 12 is to create a Commonwealth law that would prevail under section 109 over inconsistent State laws. Mr Doyle is somewhat more cautious in saying that he could see no other purpose for section 12. They both argued that the Commonwealth has no power to bring about that result under section 109. In my respectful submission, that argument collapses if section 12's main purpose is something else. In our submission, it is.

We stated in paragraph 7.2 of our main submissions in the last sentence that the primary significance of section 12 is that it confirms the separate and concurrent jurisdiction of the national Native Title Tribunal and the Federal Court to determine native title claims. My friend, Mr Jackson, denied this in what may, with respect, be seen to be a courageous denial and my friend, Mr Doyle, as I have said, said that could not see that that was so.

My friend, Mr Jackson, if we can refer Your Honours to the transcript of last Wednesday, at pages 94 to 95 - that is, Wednesday, 7 September - and if Your Honours will look at the bottom of page 94, Your Honours will see there that my friend, Mr Jackson, referred to that sentence from our paragraph 7.2 and said that what he would simply say in relation to that is that the functions of the Native Title Tribunal "are provided for by section 108", and:

the jurisdiction of the Federal Court is conferred by a number of specific provisions which are sections 81, 145(3), 169(5) and 213(2).

Now, the main one of those is section 81, if I can take Your Honours to that section, on page 47 of this print, which says that:

The Federal Court has jurisdiction to hear and determine applications lodged with it under section 74 and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

I will come back to section 81 in a moment. I just mention that of the other sections that Mr Jackson mentioned section 145(3) provides for references of questions of law by the tribunal to the Federal Court. Section 169(5) provides for appeals to the Federal Court on questions of law from the tribunal. Section 213(2) is a general one which gives the Federal Court:

jurisdiction in relation to matters arising under this Act.

For my purposes, it is sufficient to deal with section 81 which is, really, the basic provision. What it says and what my friend, Mr Jackson, said, confers jurisdiction on the Federal Court, is in the terms that I read. It:

has jurisdiction to hear and determine applications lodged with it under section 74.

Now, if one turns back to section 74, two pages before, that provides that:

If an application is accepted under section 63 and the Tribunal does not make a determination under section 70, 71 or 73, the Registrar must lodge the application to the Federal Court for decision.

If I can then take Your Honours back to section 63. That provides that the registrar must accept applications for determinations of native title if, in effect, they are not "frivolous or vexation", or:

that prima facie, the claim cannot be made out.

The other sections referred to in section 74, namely sections 70, 71 and 73, deal with cases of unopposed applications in the case of section 70, and cases where the parties have reached agreement either before or after mediation conferences.

If we go back from section 63, it is the next section to which I direct Your Honours' attention to section 61, which has a table setting out applications that may be made under the division to the native title registrar but, of course, the primary class of such applications is applications for the determination of native title.

If section 12 were not there, if there were no Commonwealth statutory rights, all that would be determined in those proceedings would be claims at common law and, in my submission, those would not give rise to matters arising under a law made by the Parliament. There would be very few cases, of course, in which the Commonwealth is a party, and so the only really relevant paragraph of section 75 and 76 of the Constitution for the purpose of conferring jurisdiction on the Federal Court is section 76(ii) - matters "Arising under any laws made by the Parliament". In my submission, it is established that - - -

DAWSON J: Why, if jurisdiction is conferred to hear common law claims, is not that a matter arising under a law made by the Commonwealth?

MR ROSE: I was going to refer Your Honour to the cases which have decided that in order for a matter to be one "arising under a law made by the Parliament", there must be a Commonwealth statute which is the source of the right or duty that is an issue in the proceedings or, a Commonwealth statute must be raised by way of defence to a common law claim. But a bare claim for the determination of common law rights could not, with respect, be a matter arising under a law made by the Parliament.

DAWSON J: Not unless there is a statute conferring jurisdiction, but if there is, it arises under that statute.

MR ROSE: With respect, Your Honour, there has to be a right created by a statute before the jurisdiction to determine issues concerning the existence or non-existence of that right - - -

DAWSON J: It does, it confers a right to make a claim.

What Your Honour says reminds me of the situation in cases such as Hooper which was referred to by my learned friend where you can get elliptical or can get rights elliptically conferred by provisions in the form that people may make application to a court. If one looks at Hooper v Hopper, 91 CLR and other cases, Vitzdamm-Jones, for example, 148 CLR, they are cases where people may make application to a court for things to be done by the court by way, for example, of approving trade union rules or granting a divorce, et cetera.

If the Commonwealth law simply said people may make application to a court for the determination of whether a common law right exists in relation to trading corporations or whatever, my submission is that that would not be a matter - jurisdiction with respect to matters arising under a law made by the Parliament, ex hypothosi the rights in issue are under the common law not created by a Commonwealth Act, and although in some cases, particularly in this initial period of the Native Title Act, it could be expected that Commonwealth legislation would be raised by way of defence. That will certainly not be so with the bulk of claims once the system becomes an ongoing one. The bulk of the claims would be simply claims between private parties, not involving the Commonwealth, claims between private parties as to the existence or otherwise of common law rights and that, in my submission, is the primary purpose of section 12.

I have been giving Your Honours references to some of those cases, for example Hooper and Vitzdamm-Jones and others, the case which establishes that matters can arise under a Commonwealth law, if the law is raised by way of defence to a common law claim, as Felton v Mulligan, but to save the Court's time I have incorporated these is some notes which will make it unnecessary to refer to all the volumes and page numbers.

Of course, with respect, if, without section 12, it were said that there was an elliptical federal right created by the Commonwealth Act, it would be an elliptical right in exactly the terms that have been made express by section 12. Creating statutory rights parallel to common law rights is, therefore, the means by which the Commonwealth has been able to give the jurisdiction to the Federal Court. An aspect of the scheme is that as a consequence determination of the parallel rights under the common law as such would come within the accrued jurisdiction of the Federal Court.

So, in my submission, section 12 does provide a basis for conferring the federal jurisdiction and, therefore, does serve and, in our respectful submission, primarily serves a purpose quite unconnected with section 109 of the Constitution.

Related to that fundamental issue is the aspect of the continuation of the parallel common law rights. My friend, Mr Jackson, on Wednesday, again at pages 94 to 95, dismissed that suggestion which occurs in the middle of our paragraph 7.2. He said at page 94 that he would pass very quickly over it, that one would have to apply a creative construction to get out of it what we submitted was in the sections we referred to. Of course, we think we are creative, though perhaps not quite in the sense that Mr Jackson may have intended to convey. He said that all they say is what they said but, in my submission, it is what they point to that is important. The explanatory memorandum made the proposition which we reflected in our paragraph 7.2 and the preamble to the statute itself spoke of the rights under the common law needing to be supplemented.

The clues that we gave in our paragraph 7.2 as to the continuation of the common law rights were the sections referring to State or Territory recognised bodies, in particular the references to the State recognised bodies, because, as will be seen from the sections that we had referred to, they may be courts or they may be tribunals that are not courts. If those bodies are determining native title rights, it must only be the common law rights that they are determining, not the Commonwealth statutory rights, because that would be a matter within federal jurisdiction. That, of course, cannot be exercise by a body that is not a court.

If one asks why the common law rights are preserved in parallel with the statutory rights that were created, the answer is, in my respectful submission, that the rights that Aboriginals and Torres Strait Islanders enjoyed initially and which are now recognised by the common law were seen as precious rights as common law rights and not to be transmuted by the Commonwealth into statutory rights, even if parallel statutory rights did need to be created in order to give jurisdiction to federal courts.

GAUDRON J: Mr Rose, could I interrupt you there? You say this is necessary to confer jurisdiction on State tribunals, do you?

MR ROSE: No, if it please Your Honour, it is necessary to confer federal jurisdiction on the Federal Court and so far as State - - -

GAUDRON J: On your submission, if section 12 is invalid, there is no jurisdiction?

MR ROSE: There would be no basis for conferring the federal jurisdiction on the Federal Court without section 12, or without an interpretation of the statute as doing elliptically what section 12 does expressly. The statute does recognise that State bodies other than courts can have a function in determining native rights, and my proposition is that they cannot be the Commonwealth statutory rights because that would be federal jurisdiction, that non-courts cannot decide. Therefore, the statute plainly envisages the parallel continuation of common law rights alongside the statutory ones. The basic policy reason, of course, is that the common law rights as such were considered as - - -

DAWSON J: Surely the statute must displace the common law then?

MR ROSE: In our submission, with respect, Your Honour, the scheme is, as the preamble to the Act indicates, that there is a parallel regime of common law statutory - - -

DAWSON J: How can you have that? I mean, if you have a statute covering the whole of an area of common law then the law is statute law, is it not, and no longer common law?

MR ROSE: With respect, Your Honour, there is an analogy, perhaps, with the concurrent existence of Commonwealth and State statutory rights. It is perhaps not frequent but by no means unknown for, example, in the trade practices area, for there to be parallel Commonwealth and State legislative provisions. That can happen if the Commonwealth law indicates a sufficient intention that the two are to operate concurrently and that the Commonwealth statute is not to displace the State law. In our respectful submission, that is the same analysis in relation to the creation of a Commonwealth statutory right and common law rights. Both can continue concurrently as long as the Commonwealth statute has a sufficient indication that that is to be so and the provisions on State recognised bodies, as I will endeavour to explain, provides precisely that indication.

If I can go now to the argument by my learned friends that section 109 is a problem for section 12, because even if there is some effect that section 12 has by way of creating inconsistency, their argument is that since section 12 merely duplicates the common law, it is not a law of the Commonwealth within the meaning of section 109 and that the Commonwealth has no power to enact such a merely duplicating provision for section 109 purposes. My friend, Mr Jackson, on Wednesday at page 93 dismissed our statement that section 12 enacts a statutory right, the content of which is identical to the common law right as it may be validly modified from time to time. He asked how can it be that a State law could change the common law of native title that has the force of Commonwealth law. Our answer is that it cannot except so far as it is permitted by the Native Title Act. Section 12 is, after all, expressed to be subject to the Act.

We never said, though, that State law could be enacted inconsistently with section 12. What we said was not that the common law of native title can be changed subject to the Act, but that native title rights could be modified by legislation. There is an important difference, as I will endeavour to explain.

My friend, Mr Jackson, correctly said last Tuesday, in answer to Your Honour Justice Toohey - this is at pages 39 to 40 of Tuesday's transcript - that the common law of Australia in respect of native title within the meaning of section 12 is the set of principles that one finds in the judgment of Your Honour Justice Brennan in Mabo [No 2] at pages 69 to 70. Mr Jackson correctly, in our respectful submission, stated that that common law in respect of native title includes the proposition that native title can be extinguished by valid legislation.

At page 69 of 175 CLR, Your Honour Justice Brennan referred in the set of rules of the common law to the proposition that native title rights at common law could be extinguished by a valid exercise of sovereign power which includes, of course, the valid exercise by States of their sovereign power - so-called sovereign, but we have already had some discussion of that. But in relation to the States, the meaning is clear.

Logically, that proposition that common law native title rights can be extinguished by valid legislation, that is picked up by section 12. It cannot be a source of inconsistency. A State law purporting to extinguish native title could not be inconsistent with that proposition. If the State law is valid, then native title is abolished in accordance with the common law rule. If the State law is invalid for inconsistency with other provisions of the Native Title Act or inconsistency with the Racial Discrimination Act the matter stops there.

So section 12 cannot provide a basis for inconsistency under section 109, in the case of State laws extinguishing in whole or part any of the common law native title rights.

DAWSON J: What if the Racial Discrimination Act were repealed?

MR ROSE: That would leave the basis for invalidity of State laws entirely in provisions of the Native Title Act other than section 12. Section 12 cannot logically create an inconsistency because section 12 picks up the common law rules that themselves allow for extinguishment by valid legislation. It does not provide any criteria of invalidity. They must be got either from the Racial Discrimination Act, so long as it is there - - -

DAWSON J: And, of course, it presupposes that the common law continues happily along coexisting with section 12.

MR ROSE: Yes, indeed.

DAWSON J: That is a very metaphysical notion.

MR ROSE: With respect, Your Honour, it is there in the scheme of the legislation, and in terms of the - - -

DAWSON J: I do not think you would interpret the way you suggest we do.

MR ROSE: They are our submissions as to the correct interpretation of the provisions which are there in explicit terms, if it please Your Honour.

It is not surprising that section 12 does not perform a function as regards inconsistency because the other provisions of the Native Title Act, and the Racial Discrimination Act are perfectly adequate for that purpose.

My friends also submitted that section 12 picks up not only what I think Mr Jackson called the core principles which we find in Mabo [No 2], but also general provisions of the common law, such as the common law on trespass in so far as those common law rules apply to native title.

In our respectful submission, section 12 cannot bear that construction or it would be a very bizarre and eccentric construction to give it. Why should it be thought that the Commonwealth Parliament intended to pick up just the general common law on trespass and not, in addition, State statutory accretions or modifications to the general law of trespass over the years. It would be quite a bizarre thing for the Commonwealth Parliament to do and indeed, there would be no point in doing so because, if State legislation on trespass had been overridden in its application to native title the States would not be precluded by section 12 or anything else from bringing their laws on trespass against native title into line with their general laws on trespass.

In our submission the correct interpretation of section 12 is that it applies only to the special common laws rules on native title, those listed by Your Honour Justice Brennan in Mabo[No 2]. It has nothing to do with picking up general common law rules such as those on trespass. Those general common laws rules cannot be characterised in this context as laws in respect of native title, that expression is only limited to the special rules.

It might be suggested that the back-dating of section 12 to 30 June 1993 shows an intention that part of the work of section 12 should be to override State legislation such as the Western Australian Act but, in our submission, that is not so; all the work for inconsistency purposes is done by the other provisions. There would have been considerable confusion if the common law had been picked up only from 1 January because common law native title rights before that date would not have had statutory force, and the discernible intention of the legislation is that the Federal Court would have jurisdiction to determine all questions as regard the existence of native title at any particular time including times between 30 June 1993 and 1 January 1994. In any case, the argument against us based on section 109 really collapses because whatever might be the purported effect of section 12 as regards section 109 it also serves the jurisdictional purpose.

My friends also submitted that their objections to picking up the common law and giving it the force of a Commonwealth statute, in particular that there may be objections under Chapter III based on the separation of powers, I think we have answered those in our written submissions. The common law rules are given statutory force only by an Act of the Parliament and, so long as Parliament retains the provision giving them force, there is no delegation to the courts of legislative power.

I might refer Your Honours to the passage in Hooper v Hooper which has appeared several times in these proceedings, I think, often for different purposes, but if I can refer Your Honours to 91 CLR 156.

Your Honours will see half-way down page 536 a reference to the section of the Commonwealth legislation there in point, which applied the law of the State of domicile of the person in question. The Court held that a law of the Commonwealth was thus enacted:

What the Act does is to give the force of federal law to the State law -

which, of course, included common law and could well have consisted only of common law -

The relevant law is administered in a suit instituted under the Act not because it has the authority of a State, but because it has the authority of the Commonwealth. For the purposes of the suit it is part of the law of the Commonwealth. The Act might, in s 11 have defined the rights to which effect was to be given in "matrimonial causes" by enacting a system of its own. Or it might have defined those rights by reference to the law of England or the law of New Zealand or the law of one particular Australian State. The fact that it chose to adopt the law of the State of the domicil in each particular case cannot affect the substance of the matter.

They go on to say that that picking up of the whole law of a State does not involve any startling consequence. In my submission, the fact that there is a large component of common law in what is picked up is no objection on grounds of separation of powers or of any other principle.

There may be good reason in many contexts for picking up the common law and giving it the force of statute in the federal sphere. There may be a desire to have the matters determined by specialists federal courts, as has been done with the native title claims. It may be that State law enforcement is thought to be inadequate and that federal authorities should have policing powers in the area, and that could be relevant, in a theoretical sense, to a law picking up, say, the entire common law of fraud in relation to frauds perpetrated upon trading or financial corporations.

In our submission, the ambulatory nature of section 12, there is also no objection. That feature is found in all the other Commonwealth Acts that pick up common law provisions. My friend, Mr Doyle, put an argument that was not, at least, central in the arguments of my learned friend, Mr Jackson. It is the argument that section 12 is uncertain and may be so wide that it travels beyond the limits of laws with respect to races or external affairs. It may be uncertain. I put the submission that it is limited to the special common law rules that one finds that out in Mabo [No 2] and does not pick up general common law rules, for example, on trespass.

But even if there were some vague areas to which section 12 travels, it is a matter of interpretation of it and then, if it is found to go too far, in our submission, reading down is available under section 15A of the Acts Interpretation Act or the provisions in section 208 of the Native Title Act.

In other respects, South Australia's objection is based on uncertainty and, in my respectful submission, is misconceived. To take the admittedly unrealistic example of a decision overruling Mabo [No 2], or one changing the common law of native title in less radical respects, all that would result would be almost certainly a need for complex legislation; for example, to protect Aborigines from actions for trespass for doing things that they had previously believed to be within their native title rights. That is not an objection to the validity of section 12.

My friend Mr Jackson submitted that section 12 is not a law within the meaning of the Constitution, section 51. In my submission that is adequately answered in our written submissions, paragraph 7.11. He took issue with our use of Hooper v Hooper yet again, which we cited in our paragraph 7.11. But we cited it on the uncertainty point, which I have already dealt with. We did not present it as a case in which the Commonwealth law duplicated common law rights. In short, Mr Jackson has no authority for the proposition that a Commonwealth Act, in so far as it picks up the common law, duplicating it, does not create a new and separate right. The passage from Hooper v Hooper, I think, indicated that it did.

The position, as I have already said, is no different in principle from the concurrent operation of a Commonwealth and State Acts, where the Commonwealth Act evinces an intention that they are to exist concurrently. I think, so far as my friend's oral submissions touched on other points, they are adequately covered in our written submissions, the main submissions, and the further submissions which the Solicitor-General handed to the Court this morning in response to the submissions by South Australia. If the Court pleases.

MASON CJ: Thank you, Mr Rose. We will adjourn now and resume at 2.15 pm.

AT 12.58 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Castan.

MR CASTAN: If the Court pleases, may I hand to the members of the Court a bundle of documents which are in fact nothing more than lists or indexes to existing documents which we hope will make access to the papers easier rather than more complex. They simply consist of firstly a list of the materials filed; secondly, a cross-indexing document which gives references for certain of the paragraphs of the reply submissions which I will be taking the Court to, so that one can pick up some of the original historical documents that are referred to in the reply submissions and one can pick up the original text. I will be taking Your Honours to our books also briefly so that we can make sense of those.

The third document I will not be taking the Court to, but it is supplied to the Court hopefully as some helpful assistance. It is called a Table of Definitions Under the Native Title Act and it is a document that is set out across the page in this style. It does not purport to be exhaustive but it is an attempt to bring together some of the definitions and the operative provisions into a single document so that one is not constantly swinging from section 11 to the definition section and back, and hopefully that may prove to be of some assistance to Your Honours in dealing with the Act.

I would seek to just briefly identify for the members of the Court the volumes, or books, which are the material that have been filed by the Wororra and Yawuru plaintiffs. The first of them, which is identified as book 1, is simply the case stated book; the second of them identified as book 2 is the original plaintiffs' written submissions. It comprises four chapters, one which summarises the Native Title Act in explanatory form or narrative form; one which does the same for the Western Australian Usage Act, the third chapter which contains the principal submissions in relation to the Western Australian Usage Act and, as we would contend, the ways in which it breaches the provisions, or is in conflict or inconsistent with the provisions of the Racial Discrimination Act, and that is identified as Chapter III, pages 76 to 114. And the fourth part, which deals with the conflict between the Western Australian Usage Act and the Native Title Act.

The third book is simply a list of some of the supporting documents that have been identified in the summary of the Native Title Act, and it is not thought that - I do not think I will be taking Your Honours to any of those documents, but it links up to some of the references in our principal submissions in book 2.

Book 4, as identified, is our reply submissions and contains the substance of the submissions on questions 1 to 14, and I will be spending some time taking Your Honours to some of the matters in book 4. Though I should say, in relation to that, that broadly the position of the Wororra and Yawuru is that we, in substance, adopt what has been submitted by the Commonwealth. Where there are differences, we intend to draw the Court's attention briefly to those differences, but we certainly do not intend to be repeating or canvassing again ground which has been amply covered by the learned Solicitor-General for the Commonwealth and by Mr Rose.

The fifth book is identified as a rather heavy book, which is marked Supporting Documents Part 2(D): Matters Evidencing Continuity of Native Title in WA 1829-1994, and consists of a large number of extracts of various historical works and original journals, and they support the contentions which are contained in our reply submissions on question 1.

The sixth book is, again, another set of historical works, extracts from historical works, also supporting the continuity of native title from 1829 to 1994. Again, that relates to question 1. The seventh book, again, relates to question 1. We rather think, in view of the alteration in the position of Western Australia, that this perspective on history - which was submitted by way of rebuttal of the historical analysis concerning Western Australia and its relationship to Aboriginal people, that was originally submitted by Western Australia - we rather think that now that has become largely irrelevant in view of the indication that it is not now contended that there was any extinguishment, other than an extinguishment at first settlement. So that it is unlikely now that it will be necessary for the Court to canvass that substantial historical material.

The eighth book is simply two unreported decisions that are referred to in the course of our material, and I will not be taking the Court, I think, to those in any detail but they can be referred to as necessary.

So that comprises the totality of the material, as Your Honours will have observed. Quite a substantial part of it, at least in terms of the physical bulk, we think is not now of relevance in view of the change that has occurred on the part of Western Australia. I should also indicate to Your Honours that, again, to explain our position in relation to agreed facts and contested facts, as with the Commonwealth, we would put it that the Court has before it a very large amount of material from Western Australia concerning what we might call the current state of government and administration in Western Australia as to that, and matters affecting other States also, indication of the proportion of Aboriginal land to other land in those graphs to which the Court has been taken.

We are prepared, for present purposes, for the Court to assume the correctness of those facts, notwithstanding some matters that we see immediately are not correct but are immaterial, and other matters we simply are not certain of, but we think that will not affect the way in which the Court can deal with the matter, so we are content for the Court to assume it.

If I can just indicate an immaterial fact but one manifestly erroneous, that indicates our reason for that qualification. It is that the various graphs indicate that in Victoria there is no Aboriginal land as defined in those various definitions for the purpose of graphing out the areas of States and Territories. And of course, there is Aboriginal land within that definition under both Commonwealth and State legislation, vesting land in various forms of Aboriginal corporations. So with that caveat, we are content for the Court to accept the material.

So far as historical documents are concerned they are, as I just said, of course, now of much less significance in view of the changed position of Western Australia, but as to the early historical material which is still of relevance they are matters as to which there is, we think - it may be ultimately as to matters of fact there is no real contest, but certainly as to matters of interpretation of the effect of various steps that were taken there is contest, and there may also be some factual disputes, but as to those there is no agreement concerning the precise sequence of events and Your Honours have a large amount of material there, we will take Your Honours to some of.

It is our respectful submission though, if I can then immediately turn to Question 1, that in substance it is all irrelevant, and we say it is all irrelevant because, in our respectful submission, the Western Australian position as it is now posited concerning Question 1, that there was an extinguishment on first settlement in the case of Western Australia because, as it is said, the intention there was specific or the intention there was a clear intention and therefore extinguishment did take place on first settlement, and that is somehow different from other colonies including other Australia colonies.

Now, in our respectful submission, that entire argument is untenable and it is untenable because what it carries with it, implicit in it, is, as we would submit, an attempted revival of the notion of terra nullius without saying so. It is our respectful submission that notwithstanding that our learned friends have said they accept the decision in Mabo [No 2], they say they are not here to challenge it or to contest its findings, but they then go on and say, "But, nevertheless, in the case of Western Australia, the facts are that there was an intention to extinguish native title."

In our respectful submission, that reflects an attempt to, so to speak, by the back door - so to speak, in a different way, reinstate or reinstitute the notion of terra nullius, the notion that there was an extinguishment and that the land was, albeit that there were Aboriginal people physically there, nevertheless unoccupied for the purpose of settlement and for the purpose of all legal purposes.

It has been dressed up in this case in order to avoid confronting the decision in Mabo [No 2] and the effects of what has been held by this Court. It is dressed up as expressions of intent. In our respectful submission, that is precisely what this Court dealt with in Mabo [No 2]. The very notion of terra nullius was itself - or as it is called in the judgment of Justice Brennan in Mabo [No 2], the enlarged notion of terra nullius. That very concept, now rejected by this Court, assumes that there was the intent on the part of the Crown to extinguish or, as it is put in the more traditional way, ignore, to treat as non-existent, to override those interests of Aboriginal peoples. The matter may be best illustrated by taking the extract from the judgment in In Re Southern Rhodesia that appears in the judgment of Your Honour Justice Brennan at page 42 of Mabo [No 2].

The judgment for the 10 pages prior to page 42 analyses the development of the doctrine of the enlarged notion of terra nullius. "In large notion", of course, Your Honours, meaning treating land in which there were in fact people who in fact occupied land and who in fact had interests in the land according to their own concepts and rules and laws, treating them as though they did not, as though the land was unoccupied and free and available for settlement. That is dealt with over the 10 pages and I will not read all of that. But if one goes to the top of 42, Your Honour Justice Brennan says:

The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country. The policy appears explicitly in the judgment of the Privy Council in In re Southern Rhodesia in rejecting an argument that the native people "were the owners of the unalienated lands long before either the Company or the Crown became concerned with them and from time immemorial ... and that the unalienated lands belonged to them still". Their Lordships replied:

"the maintenance of their rights was fatally inconsistent with white settlement of the country, and yet white settlement was the object of the whole forward movement, pioneered by the Company and controlled by the Crown, and that object was successfully accomplished, with the result that the aboriginal system gave place to another prescribed by the Order in Council."

Your Honours, it is our respectful submission that what has been put by Western Australia here, despite their disavowal of In re Southern Rhodesia, is in substance the argument that was upheld - the argument in In re Southern Rhodesia, the very doctrine that is there illustrated and is then there rejected by this Court as a doctrine that "can no longer be accepted", as it is put four lines down further on. That doctrine in In re Southern Rhodesia has been rejected. It is in its operational sense, notwithstanding that our friends would say, "No, we accept the judgment", exactly what they are saying here, as we would submit.

If one goes to In re Southern Rhodesia, (1919) AC 211, at page 232 one can see this spelt out in terms. It is put at about point 3 by Their Lordships:

By the disinterested liberality of persons in this country their Lordships had the advantage of hearing the case for the natives who were themselves incapable of urging, and perhaps unconscious of possessing, any case at all. Undoubtedly this inquiry has thereby been rendered more complete. Although negative in form, since their case in answer to the questions mentioned in the order of reference was primarily that the unalienated lands were the property neither of the Crown nor of the Company, in substance their case was that they were the owners of the unalienated lands long before either the Company or the Crown became concerned with them and from time immemorial, that their title could not be divested without legislation, which had never been passed, or their own consent, which had never been given, and that the unalienated lands belonged to them still. Hence, if the Company had any title at all, which was denied, it was only the title of a trustee, the beneficial interest remaining in the natives and the legal title and right to possession reverting to them whenever the Company cases to govern the country.

And then Their Lordships go on to deal with some of the evidence. At about point 7 on page 233, perhaps point 6, the sentence commences:

It seems to be common ground that the ownership of the lands was "tribal" or "communal", but what precisely that means remains to be ascertained. In any case it was necessary that the argument should go the length of showing that the rights, whatever they exactly were, belonged to the category of rights of private property, such that upon a conquest it is to be presumed, in the absence of express confiscation or of subsequent expropriatory legislation, that the conqueror has respected them and forborne to diminish or modify them.

And then there follows the passage, the famous passage or, as some would say, the infamous passage about the rights of various peoples:

The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. In the present case it would make each and every person by a fictional inheritance a landed proprietor "richer than all his tribe." On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law. Between the two there is a wide tract of much ethnological interest, but the position of the natives of Southern Rhodesia within it is very uncertain; clearly they approximate rather to the lower than to the higher limit. Lobengula's duties, if describable as those of a trustee, were duties of imperfect obligation. Except by fear or force he could not be made amenable. He was the father of his people, but his people may have had no more definite rights than if they had been the natural offspring of their chieftain. According to the argument the natives before 1893 were owners of the whole of these vast regions in such a sense that, without their permission or that of their King and trustee, no traveller, still less a settler, could so much as enter without committing a trespass. If so, the maintenance of their rights was fatally inconsistent with white settlement of the country, and yet white settlement was the object of the whole forward movement, pioneered by the Company and controlled by the Crown, and that object was successfully accomplished, with the result that the aboriginal system gave place to another prescribed by the Order in Council.

This fact makes further inquiry into the nature of the native rights unnecessary. If they were not in the nature of private rights, they were at the disposal of the Crown when Lobengula fled and his dominions were conquered; if they were, any actual disposition of them by the Crown upon a conquest, whether immediately in 1894 or four years later, would suffice to extinguish them as manifesting an intention expressly to exercise the right to do so.

Then it goes on to talk about reserves, the Order in Council:

and the Southern Rhodesia Order in Council of 1898 provided for native reserves, within which the tribal life of the natives might be continued under protection and control, and to the rest of the country the Company's officers and white men were admitted independently of any consent of the natives. The Company's alienations by grant are unquestionably valid, yet the natives have no share in them. The ownership of the reserves was, at least administratively, vested in the Company under the Southern Rhodesian Native Regulations promulgated by the High Commissioner in 1898, and with the consent of the Crown other dispositions of those reserves can be made by the Company from time to time.

And then a critical passage that bears directly on the argument that has been put by Western Australia:

By the will of the Crown and in exercise of its rights the old state of things, whatever its exact nature, as it was before 1893, has passed away and another and, as their Lordships do not doubt, a better has been established in lieu of it. Whoever now owns the unalienated lands, the natives do not.

Now that, were it not for the decision in Mabo [No 2], would no doubt be precisely the way in which Western Australia is putting its case and, in our respectful submission, that remains, notwithstanding the decision in Mabo [No 2], precisely how they are putting their case. But, as a matter of principle, as embodied in Mabo [No 2], and as a matter of authority, as embodied in the decision, in our respectful submission, such submissions can no longer stand, founded as they are in the doctrines that are reflected in Re Southern Rhodesia, and I will not take Your Honours to the whole of the analysis, but the details of the development of the doctrine that led to that decision and the references to Cooper v Stuart in 1889 also, in which a similar doctrine was expressed and the rejection of that doctrine all is contained in considerable detail and developed in the judgment of Your Honour Justice Brennan from pages 32 through to the passages that I took Your Honours to at page 42 in the judgment in Mabo [No 2].

So that, we would respectfully submit that, coming now to this Court and raising in respect of the State of Western Australia an argument which attempts to, so to speak, read its way around the decision in Mabo [No 2] by speaking only of intention, but nevertheless dealing with an historical situation that is identical, that is exactly the kind of historical situation as we would submit as in New South Wales, a situation in which it was acknowledged, as our learned friends have agreed and conceded and, in fact, relied on, acknowledged that there were Aboriginal people there; acknowledge that there was land that they physically occupied, but in which it is said the fact of the settlement plans; the fact of the way in which Governor Stirling was commissioned; the fact of the provision for dividing the colony up into counties and hundreds and so on, that all of this reflects the intention that native title would be extinguished.

Now that can only be so, in our respectful submission, if one reverts back to the doctrines of Re Southern Rhodesia, whether or not one calls it the doctrine of terra nullius, or whatever one calls it, one is in substance saying, merely by the fact of having, as it was put in South Rhodesia, the object of the forward movement, the will of the Crown, as it was put in Southern Rhodesia, was to do this, therefore these rights simply vanished off the face of the earth.

Now, in our respectful submission, one cannot now come back at terra nullius. One cannot now, so to speak - its ghost cannot be permitted to re-enter this Court in the guise of expressing there was the intent of the Crown as manifested by a settlement movement, because that is the basis on which the whole doctrine itself was founded in the first place; the fact of the intent of the Crown to undertake a settlement movement, but to rank the rights as not those in respect of which it was necessary to pass a law expropriating, or otherwise, dealing with the rights as though they were property rights of the requisite kind, as we have just seen.

Now, for those reasons, it is respectfully submitted that the historical analysis does not assist. We do, nevertheless, by way of alternative, rely on the various submissions that have been made by the Commonwealth and our own written submissions go into considerable detail about what those historical documents contain and they demonstrate, as we would respectfully submit, that there was, as one would expect, a clear existence of or knowledge of the fact of Aboriginal existence and of Aboriginal interests in land and, as we would submit, given that and given the decision in Mabo [No 2] the matter cannot be concluded by reference to the kind of intent that has been contended for.

Looking at the matter in broad principle - and this next set of propositions may assist perhaps in answering some of the questions that Your Honour Justice McHugh put to counsel who have been addressing this issue in the course of last week and perhaps more recently. One can, as a matter of principle and, we would respectfully submit, one must as a matter of principle conceptualise the point in the process of colonial settlement at which extinguishment either does or can occur, extinguishment of native title interests. One can proceed on the basis, we would respectfully submit, as was the presumption in cases such as Re Southern Rhodesia that extinguishment occurs on first settlement, globally, as it is put on the acquisition of sovereignty. That was contended for by Queensland in Mabo [No 2] and rejected by the Court.

One can then proceed to the next stage, and assuming that extinguishment does not take place, globally, merely by virtue of the forward movement of settlement, as it was put, one then goes to the next stage where one says, "Well, does the whole range, the setting up of a legislative framework of land administration, the whole land administration network, does the setting up of such a framework itself amount to extinguishment of native title in respect of the lands?" And, that is a view that was accepted as amounting to extinguishment by His Honour Justice McEachern in the Delgamuukw case at first instance, that is in (1991) 79 DLR (4th) 185, I do not need to go to that. That view was rejected in the British Columbia Court of Appeal, but that is the next, so to speak, level of generality or specificity perhaps starting with the most general.

Then one can conceptualise that, no, the extinguishment of native title only occurs when particular areas of land are, in fact, alienated from the Crown, when Crown grants are made which are inconsistent with native title. That, of course, is the view that has been expressed as the principles for Australia in the Mabo decision.

Of course, there is then the next stage which may still need to be explored, at least in respect of some kinds of interests in Australia, although, as we now understand it, not in this case, and that is the notion that it is not until the actual exercise of rights in respect of particular areas of land that have been the subject of grants from the Crown that the native title rights which otherwise coexist with unexercised rights will cease to exist, will be extinguished.

That is the view that seems to have been accepted by the Court of Appeal in the Delgamuukw case and I will give Your Honours the reference because it does perhaps assist as showing the other end of the range of the process of extinguishment; it is (1993) 104 DLR (4th) 470. The specific passages - I do not need to take Your Honours to it for the present purposes but I will give Your Honours the reference - in which Their Honours go so far in that case as even to raise the possibility of native title rights continuing to be exercisable on the fee simple areas, if those fee simple lands have not been physically occupied by the fee simple owner. The passages there are at pages 532, 535, 539 in the judgment of Justice Macfarlane with whom Justice Taggart concurred; at 595, Justice Wallace concurring on those matters; at page 670 and 680, the judgment of Justice Lambert; and the question of coexisting native title rights, even on a fee simple was left as an open matter by Justice Hutcheon, at pages 753 to 754.

I mention those matters and I include the references to what I will call the fourth level at which extinguishment might take place; that is to say, only when an actual inconsistency on the ground occurs, rather than when grants are made to a particular individual because the question may still fall to be considered in relation to some interests in this country and, in particular, the question may be relevant to the way in which this Court ultimately deals with leases generally or pastoral leases with reservations or other kinds of leases, interests which are called leases but which are short of exclusive possession.

There is a wide range of other interests in respect of which questions still remain to be considered. Obviously, in considering them, in due course, the Court will have to approach it from some questions of fundamental principle, such as those I have been briefly canvassing.

I should say, also, that it is clear now - although it was not entirely clear before this case commenced - that that question of pastoral leases is not to be decided by this Court in the course of this case and given that, as we understand it, it is certainly not, if it were of our submissions, the one would be of substantial length on the question, given that, as we understand it, it is not, we have a concern that this case not become the case in which, so to speak, by any side wind, on any result of any other submissions, relating to extinguishment generally, any of those questions are pre-empted.

If I can take Your Honours now briefly to book 4 of our submissions, which is our written submissions in reply. It suffices for present purposes, having given that broad general introduction and having put our submission in relation to the complete unacceptability of the arguments that have been put by our learned friends, to draw Your Honours' attention to those matters which appears from pages 8 to 21. I will not go through all of those, but from pages 8 to 21 we have enunciated the legal principles. In relation to the factual issues, the historical experience, as it was put, the parts which are now relevant, as we understand the limited basis on which it is now put, are pages 22 to 37 which cover the period.

In those pages, and I will not take Your Honours to them - as I said initially, we would say that that kind of detailed examination is irrelevant in view of the general submission which we would put but, if it be necessary to go to it, there are specific rebuttals of the argument that has been put and the various historical events that are relied on. Your Honours will see that even - perhaps I should just take Your Honours to indicate that even such basic things as the question of convicts, which was, as we understand it, relied on by Western Australia, is not an entirely accurate depiction. There is dispute as to this. There is no question but that convicts were present in Albany from December 1826. That appears at page 23 of our submissions at about point 8 on the page:

Convicts were present in Western Australia at King George Sound settlement from December 1826 until March 1831.

So that even the foundation point, or one of the key foundation points, for our learned friend's argument that Western Australia was not a convict settlement does not stand up on close examination.

Perhaps I should just mention at the top of page 25 that there are at least significant questions raised in paragraph 2C.5 on page 25 concerning Stirling and the reliability of his reports. So we have dealt with those in detail and, in so far as it is necessary or if it be necessary for the Court to deal with the actual historical analysis presented by Western Australia in relation to first settlement, we would respectfully submit that it is rebutted.

We would seek to, in the context of the general proposition as we have put it in opening and also in support of those specific rebuttals of those historical matters, take Your Honours to hopefully a short group of actual historical references. The first of them appear in the document which is the Western Australian document, Annexure A to the statement of claim, volume 1. I wanted to take Your Honours to some of those merely to draw attention to some of the elements that go to make up the argument that I have put in general form.

That is a book which has documents in numbered sequence, though not, I think, paginated, and the second of them might have been referred to. The second of them is from the Admiralty to Commander Schomberg at Cape of Good Hope. It has got at the top "(Admiralty Sec: - Out Letters) No.1589". I think it is the second document in the volume and its date is 7 November 1828. I am not sure if Your Honours have that. It starts off:

(Admiralty Sec: - Out Letters) No.1589, 7 November 1828.

And it is an instruction to the Commander Schomberg at the Cape of Good Hope, as appears at the end. But on the first page, after referring to the Captain of the Tweed who was:

to remain with her in Cockburn Sound, or some other safe anchorage in that neighbourhood, until further orders.....direct him to employ the party, which he may keep on shore in constructing huts or other dwellings for the troops which will speedily follow; and to endeavour to find springs of fresh water as near to the River as may be, observing great caution against any surprise of the natives, and especially to be very guarded with respect to their women.

So the acknowledgment of the existence of native peoples was present from very early, from the very first instruction of the ship's captain at the Cape of Good Hope.

The next document I would take Your Honours to is the sixth document, which is dated 30 December 1828, Downing Street, to Captain Stirling. The one I have has in typewriting 44 at the top, and then:

(Col. Office - Western Aus. Entry Books Vol. 1)

and then -

Downing street, 30th December 1828.

I think it is document No 6 in the series, at about - I am not sure how many pages further on. It is addressed to Captain Stirling, R.N., and Captain Stirling is informed that:

His Majesty has been pleased to approve the selection of yourself to have the Command of the Expedition -

and he is given various instructions. I only seek to draw Your Honours' attention to the fact that on the third page there appears the paragraph:

You will cause it to be understood that His Majesty has granted to you the power of making all necessary locations of land. For your guidance in this respect, ample instructions will at a future period, be prepared. In the mean time I enclose a Copy of the Instructions of the Governor of New South Wales on this subject, to which you will adhere as closely as circumstances will admit.

So the very first instruction to Stirling in relation to land gave him a copy of the instructions to the Governor of New South Wales. The attempt to found a distinction, we would respectfully submit, cannot be made out.

We go to the next document in the same volume - I am sorry, no, if I can go to the second document after that one, which is from Historical Records of Australia marked HRH Series III Volume 6 and at the top of the page in the marginal note there, it is marked "General remarks by E. Lockyer on Swan River" and the passage commences:

Whether the present Establishment will ultimately succeed is extremely doubtful. The North American Colonies for years advanced but slowly from their commencement until forced labour was introduced. At Swan River, the Settlers will be left entirely on their own resources; they will find little time or opportunity at first for cultivation; the few Cattle and Sheep that will be introduced there will employ the settlers to watch them from the Natives who are very numerous and fierce; no reliance can be placed on them and force will have to be used to drive them away and quit that part of the Coast.

Now, in our respectful submission, that passage, "force will have to be used to drive them away and quit that part of the Coast" reflects exactly the same views that were embodied in the passages I took Your Honours to in Re Southern Rhodesia. They reflect a complete determination to treat those who are already there as having no interests and to not be entitled to any protection. It is a classic, we would respectfully submit, embodiment in this instance of the terra nullis doctrine. An awareness of the existence of people and a determination simply to push them off without regard to any interests whatsoever.

The next document is one that, I think, has been referred to. It is the text of the Swan River Act, which appears extracted as Chapter XXII, towards the foot of the page, and attention, I think, has already been drawn to the fact that on 14 May 1829, just towards the foot of the page, one sees the text of the preamble to the Swan River Act and it commences:

WHEREAS divers of His Majesty's Subjects have, by the Licence and Consent of His Majesty, effected a Settlement upon certain wild and unoccupied Lands on the Western Coast of New Holland.

The reference to "unoccupied" exemplifies exactly the doctrine of terra nullius. Clearly there was awareness of the fact that the people were there. The land is treated as unoccupied notwithstanding their presence. So their presence does not, in the view of the time, treat the land as anything other than unoccupied, and that is the very notion that has been rejected by this Court.

The next document is typed pages which are headed 110 and 111. If we can pass over those to the one following, we come to the proclamation by Governor Stirling. The date is 18 June 1829. Some of these matters have been referred to. But on the third page - it is typewritten 15 at the top - at about point 3 on the page it reads:

And Whereas the safety of the Territory from invasion and from the attacks of hostile native tribes may require the Establishment of a Militia force which on emergency may be depended on to assist His Majesty's regular Troops in the defence of the lives and property of the Inhabitants of the Territory -

and so on. He talks about setting up a militia. Towards the foot of the same page there is a passage, the second-last line which reads:

And Whereas His Majesty having been graciously pleased to confide to me the power to make all necessary locations, and to grant unoccupied lands within the aforesaid Territory under such restrictions as are or may be contained in the several Instructions issued or to be issued to me by Authority -

The reference to "unoccupied lands" is a reference which reflects, we would respectfully submit, exactly the same perspective, not an intent to extinguish in the sense that our learned friends would have it, but the application of a doctrine that says that there are people there, that notwithstanding their presence, they are to be treated as the hostile tribes; we will set up a militia to drive them away and the lands are unoccupied lands. It is, as we would respectfully submit, classically the application of the principles of terra nullius. Those are the passages which it is desired to make explicit reference to in that volume, Your Honours.

Can I take Your Honours then to book 5 of the Wororra and Yawuru documents, which is the Wororra/Yawuru Supporting Documents, Part 2(D), Matters Evidencing Continuity, and bring to Your Honours' attention a limited number of specific references, firstly to page 22 of the volume. This is an extract from a book called Commandant of Solitude, the Journals of Captain Collet Barker, 1828 to 1831, by Mulvaney and Green, Melbourne University Press 1992. It is the edited journals of the commander of the convict settlement at King George Sound. Page 244 of the work which is at page 22 is in substance the editors' comments. I am reading from about point 8 on the page. There has been reference to Mokare, a younger man in his late twenties. The authors go on:

The key to Mokare's self-confidence and ease when in the settlement lay in the fact that his family owned the land on which the British chose to settle. His sister, Mullet, actually lived adjacent to the farm. As Ferguson acutely observed, `His position as landlord gave him status with the Aborigines and his affable nature and quick mind made him a favourite with the Europeans.' That he was both intelligent and adaptable was testified by many witnesses other than Barker. Collet Barker's journal also shows his awareness that the land belonged to the Aborigines.

For a man of his intentions, Barker was fortunate that his command was a limpet-like garrison of soldiers of the king and crown prisoners, with no presence of free settlers intending to occupy the territory. The total white population at the end of 1829 was fifty-nine persons. It had increased to seventy-one people by September 1830 -

So there is reference there to the fact of convicts in Western Australia in 1829 and 1830 at Albany and to acknowledgments of the existence of Aboriginal people.

We go to the next sheet - it is not the next page of that work - it is page 295 of that work, and

again at about point 7 of that page - this is an extract from Captain Collet Barker's journal, and I am reading from the - it is actually the fourth-last line in the second-last paragraph on the page. It was just the sentence:

As the head of the family, however, whose ground we occupy, one must be indulgent to him. I desired Mokare, however, to explain to him & others that we could not be always giving biscuit & that they must only expect it now & then.

And then one goes on to the reference the 15th May. So that the Commander of the settlement at Albany was well aware of whose ground he was on.

I then go to page 34. This is a letter to - the description of a document is at page 30, a letter from:

Robert Lyon to Governor Sir James Stirling 1st January 1833, Swan River Papers, Vol 11 Pp 107 - 115 -

that is the description at page 30. There is only one passage which we could not resist drawing to Your Honours' attention, on page 34, at point 5 of the page, and it reads:

These lands have descended to them from their forefathers from time immemorial. And their title deeds require not the wrangling of lawyers to prove them to be correct. They bear the seal of Heaven - the sanction of Him who "divided to the nations their inheritance." They are indisputable. Reflect. You have seized upon a land that is not yours. Beware, & do not, as a people, add to this the guilt of dipping your hands in the blood of those whom you have spoiled of their country!

Mr Lyon had strong views about these matters. It is not clear from historical research who Robert Lyon was. He is thought not to have been any official. This is thought not to have been an official communication in the sense of a view of the Crown, but the significance of it, of course, is that it came to Stirling and thus it was within Stirling's knowledge.

We then go to page 51. This is an extract, the description of which appears at page 47. It is described as:

George Grey Journals of two expeditions of discovery in north-west and Western Australia during the years 1938, 38 and 39 -

At page 51, in a chapter which commences at page 48, headed the "Laws of relationship, marriage and inheritance", there is a couple of pages describing marriage customs and the like, and then there appears, on the left-hand side of what was page 232 of the work, a heading:

Traditional Laws relative to Landed Property. Landed property does not belong to a tribe, or to several families, but to a single male; and the limits of his property are so accurately defined that every native knows those of his own land, and can point out the various objects which mark his boundary. I cannot establish the fact and the universality of this institution better than by the following letter addressed by Dr Lang, the Principal of Sydney College, New South Wales, to Dr Hodgkin, the zealous advocate of the Aboriginal Races.

And there then follows over the next three pages, a letter from John Dunmore Lang, which concludes at page 53.

I will not read the whole of that. I commend it to Your Honours. It contains John Dunmore Lang's description of his view of the interests of Aboriginal people in land and the journal of George Grey concerning Western Australia has picked up the John Dunmore Lang description of the New South Wales position as apt to describe the Western Australian position.

Then over at page 66 there commences a document which is described as "Names and Census of Natives: Original Owners of Land on the Right and Left Banks of the Swan, from Fremantle to the Head of the River', Charles Symmons 31st December 1840 Colonial Secretary's records vol 89/128 Battye Library. This is in handwriting and not easy to discern but the point of the document is that one sees as pages 68 and 69 through to 70, as it is headed on page 68, "Names and Census of Natives, original Owners of Land on the Right & Left Banks of the Swan, from Fremantle to the Head of the River". Then it starts in the left-hand side, there is a description of an area.

From opposite Fremantle (Wal-yal-lu) up Butler's Bay (Bi-ri-gap) to Mount Eliza (Gar-na-lala) is the Land of Yal-gong-ga, -

and so on. And it names people. Then one has males and females on the right-hand side. Then below that:

From Mount Elide, past the Flats.....the peninsula.....to above the Farm of L. Brown Esq -

and so on. Then the next one:

From Bassindene past the Guildford Ferry to the head of the Swan is the land of Ngu-ngy -

and so on. So the author has actually identified in terms of people present on the Swan River as at 1840 particular people and has said, as they are described in his words at the top of page 68, the original owners of the land.

The other references to which we would desire to take Your Honours are some extracts from historical documents which are in the 1840s and up to 1850. This is put specifically in the context of the argument that was put by our learned friends for Western Australia that the existence of the reservation on the pastoral lease was not intended to reflect any preservation of native title. In looking at that reservation it is necessary, as we would respectfully submit, to examine its origins. Our learned friends seek to draw some comfort or perhaps rebut the obvious inference that the right of entry into pastoral leases appears on its face to be saying that there is a right for Aboriginal people; it was preserved in relation to pastoral leases, and they seek to rebut that by saying, no, all the native title rights had been extinguished. One cannot rely on that as evidencing any right.

We would refer Your Honours to our submissions in Book 4. It is the green faced book of our submissions, at pages 45 to 55. What we have set out here by way of rebuttal of what was put by our learned friends from Western Australia is a summary or a somewhat abbreviated version of an article by Professor Henry Reynolds which has examined this very question. It is referred to at the foot of page 45. It appears in [1993] UNSWLawJl 3; (1993) 16 UNSW LJ 27 to 44, and as we put it in our last sentence:

The following analysis draws on the material referred to in that article.

In examining the position in Western Australia, what Professor Reynolds does in the article and what we have tried to summarise here, is to look at the way in which the equivalent reservations in pastoral leases had been developed in New South Wales, and he then comes towards the end of his analysis, and we have included the reference to the history of the Western Australian reservation. He goes back to an earlier point at which to start, and at page 46 he draws on, and we have extracted the David Collins notes:

"Strange as it may appear.....they also have their real estates. While they entertained the idea about having dispossessed them of their residences they must always consider us as enemies; and upon this principal (sic) they made a point of attacking the white people whenever opportunity and safety concurred."

Then there is a Governor King confidential memo to Bligh:

"...ever considered them [the Aborigines] the real proprietors of the soil".

We come to 1834, the motion of Mr Buxton in the House of Commons:

urging the:

"duty of acting upon the principles of justice and humanity in the intercourse and relations of this country with the native inhabitants of its colonial settlements, of affording them protection in the enjoyment of their civil rights"

Paragraph 2C.51:

The 1837 House of Commons Select Committee - - -

I think my learned friend, the Solicitor-General for the Commonwealth adverted to this:

reported that it should be obvious:

"...that the native inhabitants of any land have an incontrovertible right to their own soil; a plain and sacred right, however, which seems not to have been understood."

Then we have a reference to the opinions in relation to the Port Phillip company and the treaty:

That opinion by Burge Pemberton and Follet, argued that the title gained by Colonial powers was:

"That of ultimate dominion in and sovereignty over the soil, even whilst it continued in the possession of the Aborigines"

which was:

"reconciled with humanity and justice towards the Aborigines" because the dominion was qualified by allowing them to retain "not only the rights of occupancy, but also a restricted power of alienating those parts of the territory which they occupied".

The reference has been omitted. It is from the Reynold's article, page 30. We then point out that the crisis point appears to have been reached in the 1820s with the endeavour to concentrate settlement within a limited area of the major towns, and expectation of farming in the English manner. Then there is Governor Bourke in New South Wales to Governor Arthur in Van Diemen's Land:

"the management of those people [the Aborigines] has I fear become a matter of great difficulty and is likely to increase as more of the land is granted to settlers from foreign parts, unless some regular allotments can be made to the tribes with which they would be satisfied."

and:

By the end of the 1830s it was apparent that Australia was to be "not an agricultural but a pastoral country" and that dispersed settlement was "essential to its prosperity". (See Gibbs to Russell,, 19 December 1840 Historical Records of Australia -

There was a description by Secretary of State, James Stephen, describing the squatting rush. He described it as:

"...a problem admitting of none but a very imperfect solution and which at no remote period will set all legislation at defiance. The problem is how to provide for the Government of persons hanging on the frontiers of a vast pastoral country to which there is no known or assignable limits. The backwoods men of the United States have a great nation in their vicinity and from the nature of their agricultural pursuit are to some extent stationary in their habits. The shepherds and herdsmen of New South Wales must bear a greater resemblance to the nomadic tribes of Russia and Tartary, and must I apprehend ultimately become almost as lawless and migratory a race. To coerce them by statute of any kind would I should conceive prove in the result a vain undertaking."

That is James Stevens, should be the reference. There is a misspelling there, Your Honour.

As it is summarised at 2C.57, it was thus decided to regulate by the granting of so-called grazing licences, trying to regulate the surge of settlement. The principle motive was to:

"Preserve the rights of the Crown for Lands" against any proscriptive title of them "being obtained against the Crown by virtue of the occupation of them under licence", or even by squatting on the land far beyond the limits of settlement.

At 2C.59, Reynolds points out that the hand of the Crown was strengthened by the rejection of the John Batman treaty, involving the concept of the right of pre-emption and the acceptance of native title. On this basis the vast lands of Australia were not empty territory in danger of prescriptive claim by squatters. They remained in the possession by the Aborigines by right of prior occupation up until the time that the Crown chose to exercise its exclusive right to extinguish the native title.

Then we refer to the Chief Protector Robinson's report which has been relied on by our learned friends. We point out at 2C.61 the extract they have relied on is incomplete. He says:

"The claim of Aborigines to a reasonable share in the soil of their fatherland has not, I regret to say, been recognised, in any of the discussions which for so great a length of time, have agitated the public mind on the question of rights of the squatters, to the occupancy of the lands of the Crown ... the duty devolves on me to bring this claim under the notice of Her Majesty's Government for a reasonable share in the soil of their fatherland".

The Reynolds' article reference there is page 34, Your Honours. Reynolds points out that a Colonial Office official who read the report stressed the importance of the subject-matter, underlining in pencil and placing asterisks in the margin beside the twice repeated phrase about Aboriginal claims to a "reasonable share in the soil of their fatherland".

I should say the document I first handed to Your Honours included a cross-referencing chart that will enable Your Honours to pick up from our book 5 some of the original references, including the handwriting that is referred to there and the asterisk. It is reproduced. It may be desirable just to go to that particular one. At book 5, pages 80 to 81 - can I leave that, Your Honours. Obviously the cross-referencing system is not working. I will have it checked and I will ensure it is found. The underlining and the asterisk is visible; I have seen it in the volume but we will leave it for the moment and I will come back to it.

We go on to paragraph 63, in an intra-office memo in the Colonial Office, Herman Merivale noted that Governor Fitzroy's attention "must be drawn" to the question.

"It would be of course be most unjust that the natives should be excluded in the manner described ... from the soil of which until recently, they were the sole occupants".

Then we come to Secretary of State Earl Grey in paragraph 64 who commented that the Governor:

"Must be instructed to take care that they are not driven off all the country which is divided into grazing [stations] and let under the recent regulations".

This paragraph is of some interest. Reynolds' analysis is set out. Grey considered the matter one of the greatest importance. In a brief memo - this appears in the Reynolds' article at page 34 - he explained that Aboriginal rights must be affirmed because it was a matter of life and death. Action must be taken "with a view to their preservation from being exterminated" It was this which led to the suggestion by Earl Grey of an entry clause in pastoral leases. This, we respectfully submit is the source of the matter that has been canvassed. Initially a dispatch was sent to Sydney in February 1848 in which Grey referred to the suggested creation of large reserves by way of compensation for the impairment of native title. He argued that such a scheme was appropriate elsewhere but the nature of Australian geography and settlement patterns demanded a different answer. He says:

"... the very difficulty of thus locating the Aboriginal tribes absolutely apart from the settlers renders it more incumbent on Government to prevent them from being all together excluded from the land under pastoral occupation. I think it essential that it should be generally understood that leases granted for this purpose give the grantees only an exclusive right of pasturage for their cattle, and of cultivating such land as they may require within the large limits thus assigned to them; but that leases are not intended to deprive the natives of their former right to hunt over these districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed, from the spontaneous produce of the soil."

Over the page Reynolds points out the Colonial Office considered whether pastoral occupation was:

"Wholly or partially inconsistent with a continuing right to enjoy native title" -

I should say those words at the top of page 52 are Reynolds' words, picking up an extract from the judgment in Mabo [No 2]. But the reference to the words at the end of that paragraph, the last sentence is:

They were "mutual rights".

The previous sentence:

The pastoralists' exclusive right of pasturage coexisted with the Aboriginal right of use and occupancy. They were "mutual rights".

And, I will try again at Book 5 page 101. Can I take Your Honours to Book 5 page 101 and to the last paragraph on the page where:

GREY TO FITZ ROY

is the heading of the communication:

This is a subject on which I wish you to turn your attention. The evil of occasional depredations or acts of violence between Settlers and natives in these outlying districts is one which it is vain to expect can be wholly prevented. But a distinct understanding of the extent of their "mutual rights" is one step at least towards the maintenance of order and mutual forbearance between the parties. If, therefore, the limitation, which I have mentioned above on the right of exclusive occupation granted by Crown Leases, is not in your opinion fully recognized in the Colony, I think it is advisable that you should enforce it by some public declaration, or, if necessary, by passing a declaratory Enactment.

And, perhaps now I can take Your Honours back to page 80.

BRENNAN J: Page 82 it might be that you are looking for.

MR CASTAN: Yes, I think page 82 is in fact the one which has got the side underlining and the asterisk in the original document that was referred to by Professor Reynolds and we have adverted to that at paragraph 2C.62 in the second line of the handwriting are the words:

for a reasonable share, in the soil of their father land -

and a reference to:

the Lands.....about to be alienated and leased to European Settlers for a term of years.

and those are the parts that are contained in the sideline.

Coming to page 52 paragraph 67 there is another intra-office memo written in March 1849 that should read, rather than 1949, in which Earl Grey noted that it had to be assumed that the Imperial Government:

"Did not intend...to exclude the natives."

from land held under lease, and that communication referred to the continuation of their rights. The cross-reference to that is in page 110 of Volume 5, I will not go to it. And then finally we get to the Order in Council for New South Wales, which is the form that was adopted there, which referred to:

clauses of forfeiture, exceptions and reservations, as may be necessary for securing the peaceable and effectual occupation of the land comprised in such leases, and for preventing the abuses and inconveniences incident thereto.

And there is comment about the fact that that did not refer specifically to Aboriginal rights, notwithstanding its origins, and at paragraph 70 there is a Minute to Earl Grey on the draft Order in Council from the Colonial Office's Australian specialist, Gordon Gairdner who wrote:

"The entire extent of the access of the natives must surely be defined".

That appears in our book 5 at pages 147 and 148, and Grey replied that the Order would be sufficient as long as it was accompanied by an explanatory dispatch.

Subsequently, Grey re-emphasised the substance and said

there could be:

"little doubt that the intention of the Government was...to give only the exclusive right of pasturage in runs, not the exclusive occupation of the land, as against the natives using it for ordinary purposes."

And at paragraph 72 there is a reference to instruction to the Governor to use discretionary powers to force squatters who had received leases prior to the publication of the Order in Council to accept the new conditions if they were:

"Disposed to insist on an unreasonable construction of their right of occupation".

And then we come to Western Australia, which followed in 1850. At paragraph 73 the Colonial Office policy and intentions were expressed much more clearly in correspondence with the West Australian Government in 1850. Three detailed alternative schemes for regulating the occupation of waste land were forwarded in May 1850 in dispatches from the Colony. None of the schemes mentioned the Aborigines. Earl Grey minuted:

"One point I think has been overlooked...

If I am not mistaken a question arose in New South Wales as to the right of leaseholders to exclude the natives from their runs and it was found necessary to give some additional instructions upon that point. It is material that this will be attended to in the present case" -

and we give the references there, and our Volume 5 page is 192 and 193. And then an extra sentence was added to the draft dispatch which was returned for approval. The sentence read, and it appears in the handwritten material at page 192 of Volume 5:

"With regard to the interests conveyed by these leases, you will observe that it is expressly provided by the ... Order in Council ... that no pastoral lease shall preclude natives from seeking their subsistence over the run in their accustomed manner ..."

And then you get the Order in Council that has been referred to in all the material, and finds its way, in effect, into the current statutory material:

"Nothing contained in any pastoral lease shall prevent Aboriginal natives -

et cetera.

Reynolds points out it was made quite clear to Governor Fitzgerald that he was to enforce the regulations, Grey noting that other clauses in the Order giving him:

full power to insert in all leases such conditions and clauses of forfeiture as may be necessary for the protection of the public interests -

In our respectful submission, we conclude at paragraph 77, and as Reynolds has pointed out, the reaction of Earl Grey to the Western Australian plans for pastoral occupation following on what had occurred in New South Wales the following year, had it occurred in 1848 and 1849 in New South Wales, in 1850 we see this reaction which provides a clear picture of imperial policy at the highest level and the totality reveals the evolution of the policy from a inisterial minute scribbled on a dispatch in May, the gazettal of the regulations in Perth at the end of the year.

It would be our submission, in so far as it is relevant to consider this matter at all given our primary submission, but if it be relevant, we say that there is an express acknowledgment of native title in Western Australia by reason of these past leases, given this clear history. One reference has been omitted from this series, and it appears at page 228, volume 5. It is in handwriting. Your Honours will see that the first full paragraph on page 228, point 13:

I would also point out that the practice of driving the natives from the cattle runs is illegal and that they have every right to the protection of the law from such aggressions.

This document commences at page 216. Yes, it is a dispatch, typed passages from it are extracted at page 216. It is dispatch number 26 from Grey to Fitzroy on 10 February 1850. I think that that particular passage that I took Your Honours to at 228 has been typed up, it is in about point 3 of the page. It refers in the typing, "paragraph 13 of the letter it reads:". So it is at 216 and 228 - 216 in typescript and 228 in the original handwriting in a photocopy.

I should just say in passing, having taken Your Honours to that material in the context of the historical arguments that are put by Western Australia, that there is, in the Commonwealth's submissions at paragraph 2.13 in dealing with historical material, a sentence which appears to suggest that it is the view of the Commonwealth that the grant of a lease with a reservation would never the less extinguish native title.

We think it unnecessary for this Court in this matter to be disposing of that issue. I simply record that while we have adopted the Commonwealth's submissions generally, we do not adopt what appears at paragraph 2.13 either for the purposes of this matter or for the purposes of any other matter that may ultimately be dealt with in the future.

The only other matters that we would seek to briefly draw Your Honours' attention to in relation to Question 1, are the brief rebuttals that appear from pages 39 to 45. I will not take Your Honours through the detail of it, but our learned friends also relied on some aspects of the creation of reserves as somehow supporting their argument, and there is there set out an answer to that, and a number of passages from various views of contemporary writers, suggesting that the inference that our learned friends seek to draw from the creation of reserves is not open, and that the reserves also are consistent with continuity of native title, if it be necessary to analyse the matter in that way, but I will not take Your Honours to the detail of that.

That, Your Honours, completes all we seek to say in relation to Question 1. We make it clear that our primary submission is as I opened the matter. That is to say, the whole of the issue is not open, and it should be rejected because it amounts to an attempt, in effect, to reintroduce a doctrine that has been explicitly rejected by this Court and if it were necessary to consider the matter again, as a matter of fundamental principle, then all of those arguments that were analysed in Mabo [No 2] in the judgments and all the reasons given for the rejection of such a doctrine are, in our respectful submission, applicable to Western Australia. We put as the alternative the rebuttal of the specific historical matters, some of which I have taken Your Honours to.

Can I then take Your Honours to page 64 of Book 4 of the Wororra and Yawuru submissions. Your Honours, our submissions in relation to all of the, what I will call, broadly constitutional issues, Questions 2 to 14, are, in substance, again with a small number of exceptions to which I will draw Your Honours' attention, to adopt the submissions of the Commonwealth, with some minor passing comments. In relation to Question 10A and reliance upon section 51(xxvi), we do generally adopt those submissions. We say that - and this is put on page 64, in paragraph 3.3 that, at least since 1967, and at least in relation to indigenous peoples of Australia, the races power is confined to making laws for the people. Such races are not against them. We doubt that that issue really arises here, but we do not think there is anything that turns on it. We do not think that any of the sections of the Act are such that the Commonwealth could not otherwise rely on the races power, but we consider it appropriate to ensure that that matter is drawn to Court's attention given that the Court is dealing with the race power in the context of this case. We have given in paragraph 3.4 some of the references in which this matter has been adverted to, in passing, so to speak, by members of this Court, without the matter having, of course been decided in a determinative way.

We do not necessarily seek that it be decided determinatively here in this case, and it seems unnecessary to do so, but if it were necessary that would be our position.

So far as the external affairs power is concerned, we would adopt all that was said by the learned Solicitor-General and subject to any questions or issues which are sought to be addressed by the Court, we do not seek to add anything, and our position is the same in relation to the corporations power.

The heading on page 67 dealing with the arguments that have been put by Western Australia and also by the learned Solicitor-General for South Australia, particularly, on the control of State legislative power, as it is said, reads question 3. That should read question 3 to 7. The argument has been, we think, fully canvassed concerning the meaning of the word, "valid" and the meaning of the word, "invalid" in the Act. We simply point out what has now emerged in the course of argument, that there is the definition of "valid" and it is not necessary to canvass that further. It has been explored. W

We do draw attention, specifically, and it seems to have not been much examined, to section 8 of the Native Title Act. It is our respectful submission that support is gained for the view that was put by the Commonwealth, or additional support, by reference to section 8, a combination - section 8 clearly demonstrates that the draftsman was concerned with the operational effect of the Act on State laws and said so, explicitly used language, the capability of State law operating concurrently with the Act, so that the operational invalidity concept was very much to the forefront of the mind of the draftsman, as we would submit, and that reinforces the view that was put to that effect this morning in view of the insertion of the definition of "valid" in section 253 of the Act on page 126 of the print.

The rest of the submissions that appear in writing on pages 68 to 72 are, in substance, the submissions of the Commonwealth on this same topic. There is nothing additional there and we do not seek to say anything further, and we would also adopt the answers that have been given by our learned friend, the Solicitor-General for the Commonwealth to the submissions of South Australia on this issue.

If we can go to page 73 now, Your Honours, in relation to the common law. The submissions of the Commonwealth concerning question 8 were adopted, being the written submissions. We have now heard the oral submissions including those matters which were put this morning by my learned friend, Mr Rose, concerning Federal Court jurisdiction and we do not adopt that position of the Commonwealth, though we otherwise adopt the views that were put concerning the operation of section 12 and we would respectfully submit that, of course, the picking up of the common law in section 12 does not amount to any breach of section 109; does not amount to any control of legislative powers of the States. It leaves the States to pass statutes and to effect the common law by statute in so far as those statutes are operative, and in so far as they are affected by section 109 they remain inoperative while the Commonwealth law is in effect.

That, we would respectfully submit, is part of the ordinary operation of section 109, and we would respectfully submit that the argument for uncertainty has no foundation. It is clearly within the field of operation of the race power to deal with the topic of native title, and it is clearly within that field of operation to enable the courts to develop a common law doctrine and develop the relevant details of the common law doctrine and for the Commonwealth to pass a law under the race power that picks up the totality of that doctrine.

BRENNAN J: How does it pick it up, by reference to the performance or the exercise of judicial power or by reference to some text?

MR CASTAN: The exercise of judicial power so as to decide cases which come before the courts, and which have the result that there is a common law of native title that develops, exists and continues. A statute that picks up and says, on a topic clearly within the field of Commonwealth power under the Constitution, that body of case law is the law to apply in this area, is, we would respectfully submit, within power and constitutes no interference with judicial power nor interference with legislative power. It is the ordinary process of judicial power being exercise in relation to litigation inter partes.

Arising from that there are legal principles. It is within the scope of Commonwealth legislation to say there is a body of legal principles which are adopted, so long as the matter, of course, is within a head of power.

BRENNAN J: Let us take it down to practical terms. Let us assume that one might at present form the view - and I do not say this is the view but let us assume that the present view of the common law is that the grant of a lease extinguishes any native title; let us assume that in the next case that comes along it is held that at least in Western Australia a grant of a lease does not extinguish native title; what is the operation of section 12?

MR CASTAN: Section 12 will simply mean that the Commonwealth law embodies the current state of development of the common law.

BRENNAN J: As it is from time to time?

MR CASTAN: As it is from time to time.

BRENNAN J: And as declared by exercise of judicial power, from time to time?

MR CASTAN: If the Parliament has chosen to say, "In this particular field, we'll pick up the common law", it is no different than those other fields that have been referred to in argument where a particular set of doctrines is incorporated into a statute and is left to be developed by the courts. In our respectful submission, there is no element - perhaps what Your Honour is getting at is the question of whether there is, in effect, a form of either interference with judicial power or the adoption of the judicial arm of government as an instrument of the legislature, so to speak.

BRENNAN J: Whether it is open to the legislature to pick up the exercise of judicial power and convert it by its declaration to a law of the Commonwealth.

MR CASTAN: We would respectfully submit that there is no constitutional difficulty inherent in the Commonwealth within a field manifestly - manifestly that within constitutional power so enacting and saying, "The common law will become the law that will apply in this area". In a sense, this Act already does that without saying so. In a sense, by the definition in section 223 there is a definition that says, "That which is native title is that which this Act operates on", and then says, "Native title is defined to be the native title recognised by the common law". That, we would respectfully submit, must be beyond question, beyond any constitutional difficulty. It is simply saying, "Here's a body of rights", and this happens all the time in the law.

BRENNAN J: Does section 12 add anything to the definition of "native title"?

MR CASTAN: Probably not. It is probably the other way. The definition of "native title" is the common law plus in section 223. It may well be that section 12 is in effect redundant, given the definition in section 223 but, if it has a deficiency, it is only that, we would submit, rather than any other dramatic deficiency of constitutional magnitude that has been suggested. We would say it is no different really - having it there in constitutional terms has no greater deficiency and suffers from no greater defect or constitutional problem than the use of the similar sorts of words in 223 saying, "Native title for the purpose of this Act is whatever rights people have".

It is like saying in an Act dealing with landlord and tenant, people who have leases and then, in order to work out what the leases are, they might have to go to the common law. There might be a definition that says, "People having leases will be whatever they are under the common law concept of leases". In our respectful submission, it does not suffer from the dramatic deficiencies that have been suggested by our learned friends from Western Australia and South Australia.

Can I move on to page 74 and our brief comments on section 223(3) and Question 2. This is the question as to whether 223(3) is deficient because it is in effect targeted at Western Australia. We point out that the assumption that it is so targeted is perhaps one that might loom large in the minds of those in Western Australia, but the reality is that at the time of the negotiation, drafting and passage of the Native Title Act, there existed statutory land rights regimes in the Northern Territory, Queensland, New South Wales, the Jervis Bay Territory, Victoria and South Australia, and in Victoria at least two sets of regimes, some federal and some State.

Each of these is framed in different statutory forms. In Pareroultja there has been some consideration of the interplay of statutory regimes and native title rights. It is unclear whether that is the final and definitive exposition of all that can be said about that. Certainly in relation to the other States and certainly in relation to, say, the somewhat diverse Victorian legislation, whether or not the effect of these various regimes - it is not necessary to go to it - we simply raise the point that it may well be that some or other of these regimes has had the effect of compulsorily converting or replacing native title with statutory rights; obviously not done by saying "They are now converted into statutory rights", but nevertheless that they have had that effect. That has at least been argued in Pareroultja, though not successfully.

So all we point out here is that this section 223(3) is not only of general application, but it is simply not the case that as at December last year its only possible application was to the Western Australian case. The Western Australian case of course was the case where there had been words which in terms extinguished and compulsorily converted, but there are other States where that may well have been the position, so that it is not possible to say - no matter what the arguments were in the Senate and no matter what various politicians said about these things, the reality is that there are other Acts which potentially fall within the scope of 223(3). Whether or not they do, it is not necessary to decide. It is simply not aimed solely at and does not operate solely upon Western Australia.

In a similar vein, I turn to page 76 and our brief comments on question 9, and the impairment of State functions. In relation to this matter, one of those matters relied on by our learned friends, as we understand it, has been that the operation of parts of the Act from 1 July 1993, and other parts from 1 January 1994 is said somehow to demonstrate that this legislation was targeted at, or discriminated against, Western Australia. That view of the intent of the legislature and the purpose of the adoption of that date is, in our respectful submission, ill-founded. For that purpose, may I hand to Your Honours a copy of the discussion paper of June 1993 on Mabo from the Department of Prime Minister and Cabinet, and the outline of proposed legislation from September 1993.

BRENNAN J: What for, Mr Castan?

MR CASTAN: They simply illustrate that part of the process of formation of this legislation included a stage at which 1 July 1993 was to be the operative date for the whole. It has been suggested, as we understand it, by Western Australia, that the fact that legislation is affected from 1 July 1993, and other Acts only from 1 January 1994, demonstrates that this was focused on Western Australia, or discriminated against Western Australia, in effect, that the legislation was targeted against Western Australia.

The reality of the larger process by which this legislation came into - if the process is to be examined at all, and if any inference can be drawn from that, we would suggest no inference can be drawn from that, the fact of those dates. None whatsoever. But if it is going to be said that this was targeted specifically at Western Australia, then we wish to draw attention to the fact that the early drafts of the way in which the legislation was going to work took 1 July 1993 as the operative date for the whole of the Act.

BRENNAN J: Whose intention are we looking at?

MR CASTAN: Ultimately we are looking at the intention of the Parliament, but we - - -

BRENNAN J: Do you want to give us departmental working papers?

MR CASTAN: They are the early drafts, or the preparatory material which goes to show that Parliament had the intention of targeting Western Australia when it adopted that date is rebutted when one sees that the process by which Parliament came to adopt that date was a process of moving away from the adoption of the first - perhaps I should turn it around the other way.

It has been suggested, here is legislation in December that was made retrospective back to July, and I would respectfully submit, that it is equally open to inference that here was legislation which in its original preparation was intended to operate in July and then part of it was extended out to December.

MASON CJ: But, we have never looked at executive instructions to the grants or proposals formulated by the executive, in terms of throwing light on parliamentary intention.

MR CASTAN: Well, I will not press the material, Your Honours. I simply press the submission and the submission is that no inference can be drawn as to parliamentary intention concerning any intended discrimination, as it is put, or any intended targeting of this legislation Western Australia by reason of there being some parts of the Act operating from 1 July and other parts operating from 1 January 1994. It is equally open to the inference that Parliament's intention was to seek to meet a commitment of some other kind or to compromise a set of commitments in which a large number of issues were at play including the interests and concerns of Western Australia, but also concerns of many others in the political process. The inference that is sought to be drawn that the Court is asked to draw, that the intention reflects a particular targeting of Western Australia is, in our respectful submission, to engage in speculation as to the processes that led to that date being undertaken. We would submit no such inference can be drawn, and other inferences are equally open. It is sufficient for me to put the matter that way.

In relation generally to the way in which the Western Australian submissions have been put concerning Question 9 and the, as it said, impairment of State functions, we draw Your Honours' attention to our brief submissions on pages 76 and 77. It is our respectful submission that, as we put in paragraph 9.2, it is in the very nature of powers conferred by section 51 that there will be some powers which are relatively little invoked, perhaps over many years, and then as we put it in the second line of 9.2 as the Commonwealth Parliament progressively chooses to exercises a concurrent power to greater or lesser extent so the functioning of the State wanes and waxes accordingly, and we give the example, the obvious one, the defence power in a time of war may significantly diminish the functioning of State offices and bureaucracies as the Commonwealth occupies the field to greater or lesser extent.

We submit there is no inherent level of performance of governmental functions somehow guaranteed to a State, and the fact that section 51(xxvi) or any other head has not been much used and no doubt it would be said, "Well, there has not been much done under 51(xxvi) since 1967," and all of a sudden, no doubt it is a shock to those who thought it would not continued to be used to find it is extensively used, but that does not mean that the decisions by Parliament to exercise it is restricted by the fact that States have previously functioned in a manner virtually free of the exercise of that head of power.

What the material demonstrates, a very large bulk of this agreed for the purposes of the proceedings material, is that Western Australia governs the State, that it is a large State and there are many matters involved in its administration, and we would say that is self-evident. But, it is also, as we would respectfully submit, and as Western Australia, as we understand it, concedes that that this State is not now, and never has been, free of native title. I am now at paragraph 9.5, Your Honours.

We would respectfully submit, the colony of Western Australia, was not empty when it was first settled. Every inch of it was owned, and Western Australia is now contending that because it has so far governed the State, virtually, though not totally, without regard to the rights of the indigenous land owners, the requirement by a valid law of the Commonwealth, that it cease to operate in that way, that that amounts to an interference with the performance of its governmental functions.

Now, it does amount to an interference with a particular method of functioning, one that pays relatively little regard to the interests of Aboriginal people in land, and they will now have to operate in a way that pays a very large regard to that, and that is a change. In our respectful submission, that method of functioning, that is to say, functioning with little regard to Aboriginal interests in land, is not an inherent function of statehood, and interfering with that is not interfering with any of the fundamental functions. It happens to run across a wide range of activities, but that is because the native title, if it be so, if it exists in Western Australia, operates across, perhaps, a wide area of the State.

We would respectfully submit, at 9.6, the proper functioning of statehood entails an acknowledgment of original land ownership and preservation of all such interests in land wherever they do remain in existence. If the areas where they continue are large, the State will continue to function, having due regard to the reality of those interests and their extent. Our learned friend, the Solicitor-General for the Commonwealth has pointed out that more than half of Victoria is owned in freehold, that does not prevent Victoria from functioning. It functions having regard to the rights and interests of freeholders.

A law which otherwise was in a head of Commonwealth power and which results in changes to State practice, which previously has relatively ignored Aboriginal interests in land, so as now to require the State to deal with such interests in a particular way, does not interfere, we would submit, in State functions in any manner inconsistent with the Constitution.

We pass over, on pages 79 and 80, concerning section 53 and severability and we have nothing further to add on that. In relation to the interpretation of section 7 of the Native Title Act and the invoking of the operation of the Racial Discrimination Act, we do differ on the initial point, at least in a technical sense, from the Commonwealth, in the sense that it is our submission that section 7(1) does operate and is intended to operate so as to enable the Racial Discrimination Act not to otherwise be diminished in its operation and effect other than to the extent provided by subsection (2) which ensures that subsection (2) can enable validation even if there is an operation, so to speak, inconsistently with the Racial Discrimination Act.

But having said that, we would take issue, as the Commonwealth has, with the conclusion that is sought to be drawn from it by Western Australia that somehow then, in effect, the whole of the Act then is inoperative. That is, in substance, what has been put, that having applied section 7(1), that the intention of the Parliament was then to render the whole of the Act inoperative as in breach of the Racial Discrimination Act.

We would respectfully submit that it is clear that either, as was submitted at length by my learned friend, Dr Griffith, this morning, the Act is not discriminatory at all as against non-Aboriginal people, for the reasons he expounded in relation to international law doctrines and a discussion of Gerhardy v Brown - and we would respectfully adopt that without troubling Your Honours to canvass it again - but, if that is not the case, then in any event it is a special measure. The whole of the Act is a special measure and in so far as the matters otherwise governed by the Racial Discrimination Act, section 8 would operate. So we say the matter is covered in that way.

I am passing on now to additional questions 1 to 4, and it will be necessary to turn to Book 2 of our material. In Book 2, Your Honours, we have included a lengthy narrative concerning the Native Title Act and concerning the Western Australia Usage Act, and the third section of the book, which commences at page 76, contains our submissions in relation to the reasons why it is submitted that the Land (Titles and Traditional Usage) Act is inconsistent with the provisions of the Racial Discrimination Act. At page 76 there is a summary of the contents of the way in which the matter is put, but it is sufficient to take Your Honours to page 93 to commence the submissions, and it will be necessary, because it is at that point that the actual submissions start having summarised the effect of the Act.

Your Honours will recollect, if I could just take Your Honours briefly to some of the provisions of the Act, that section 5 of the Western Australia Usage Act provides for confirmation of titles - that is Part 2, and that says:

The grant of a title during the prescribed period has effect, and it to be regarded as having always had effect, according to its tenor.

A title, Your Honours, is defined at page 6 of the print, to include:

(a) ownership of the land: and

(b) an interest in or in respect of the land, whether proprietary or otherwise,

but does not include native title or rights of traditional usage.

"Interest" in land, the word that is used in title, is defined on page 5, to include:

(a) a legal or equitable estate or interest in the land; and

(b) a right to occupy, use or traverse the land or any other right over or in connection with the land; and

(c) an easement, charge, power, licence or permit over or in connection with the land.

And if we go to page 7 of the print, section 3(2), at the top of page 7, provides that:

In paragraph (b) of the definition of "interest" in subsection (1), "use" includes use for, or for a purpose associated with or incidental to, mining operations, operations for the recovery of petroleum, prospecting or exploration.

So a title to land, by virtue of the extended definition of "interest", which is part of "title", includes any right of any person, a non-Aboriginal right, if I can express it colloquially, of a person to:

occupy, use or traverse the land.....

(c) an easement, charge, power, licence or permit -

including all mining rights or interests. Now, going back to page 8, the validation provision provides:

(1) The grant of a title during the prescribed period has effect, and is to be regarded as having always had effect, according to its tenor.

(2) A title to land granted during the prescribed period, or any act, matter or thing done in reliance on or by reference to such a title, is not, and is not to be regarded as having ever been -

(a) invalid or subject to any defect because of the existence when the title was granted of any native title to the land, or any part of it; or

(b) affected by or subject to the existence when the title was granted of any native title to the land, or any part of it.

(3) If the effect of this section is to extinguish or impair native title -

(a) section 7(1) does not apply in relation to that native title; and

(b) a claim for compensation may be made under section 28 in relation to the extinguishment or impairment.

So the way in which Part 2 of the Western Australian Act operates is to confirm all titles, to validate all titles and to do so regardless of whether the title is invalid or not. The validating provisions are not dependent upon there being any invalidity. They are not subject to them being determined to be invalid, or otherwise invalid. The form of section 5(1) is to give a blanket expression of the giving of effect to all titles "according to their tenor", whether or not they have in fact been invalidated or are subject to any invalidity by reason of native title or otherwise.

Then section 6 provides:

If native title has been extinguished or impaired by any event or action that took place before the commencement of this section, nothing in this Act revives that native title -

Section 7 provides:

On the commencement of, and by operation of, this section -

(a) any native title to land that existed immediately before that commencement is extinguished; and

(b) the members of an Aboriginal group who held native title to land immediately before that commencement become entitled to exercise rights of traditional usage in relation to that land under and subject to this Act.

(2) Rights of traditional usage created by subsection (1)(b) in relation to land replace the rights and entitlements that were incidents of the native title to that land extinguished by subsection (1)(a) and, unless this Act provides otherwise, are equivalent in extent to the rights and entitlements that they replace.

Those words in the third last line on page 9 are of critical significance, as you will see, Your Honours, when I take Your Honours through the submission - "unless this Act provides otherwise". This Act does provide otherwise, as we shall see and in ways which significantly diminish native title rights.

If I go to paragraph 24 on page 93 of our submissions in book 2, Your Honours will see that what we then posit - pose are what we say are the relevant questions that arise. We say that if the combined effect of section 7 and 5 of the Western Australian Act is valid, being to extinguish native title at common law, the key questions are the following: does the provision for a claim of compensation under section 28, which we will come to, save the operation of section 5 from otherwise being in breach of the Racial Discrimination Act.

That is the provision for which 5(3)(b) makes provision. 24.2: do the rights of traditional usage created by section 7 comprise a sufficiently equivalent substitute for native title extinguished so as not to constitute a breach of the Racial Discrimination Act, or in so far as rights to traditional usage comprise an equivalent or substitute for native title, are they limited in their exercise to an extent or in a manner not applicable by the property rights. Those, we would submit are the relevant questions.

We then deal with what we call "arbitrariness". If the Western Australian Act is valid, then it is clear that Aboriginal people of Western Australia do not enjoy the right to inherit and own property comprising native title, and do not enjoy immunity from arbitrary deprivation of property which is enjoyed by persons of other races. That is clear. The only question then is: what effect does the compensation provisions have?

We then point out that any interest in respect of land other than native title granted from 31 October 1975 to 2 December 1993 is declared to retrospectively have priority. That is in 5(2).

In 25.2 we say the Western Australian Usage Act treats the native title of Aboriginal persons in a way that no other person or group is treated. No other title in Western Australia relating to any other person or group is extinguished by legislation carte blanche. We say that the Western Australian Act therefore is analogous in its operation to the Coast Islands Declaratory Act, 1985, and the text of that is set out; I will not read it. It provided for extinguishment of the rights if they existed, but no compensation, and as Justices Brennan, Toohey and Gaudron said in Mabo [No 1]:

The effect of the 1985 Act for which the State of Queensland contends was stated concisely by its Counsel in these words:

"It has the effect that those rights which might otherwise have survived annexation in 1879 are deemed not to have survived and, for the purpose of 1985, never to have survived."

We say in an analogous way the essential operation of the Western Australian Usage Act is to extinguish native title as provided in section 7(1)(a).

TOOHEY J: Mr Castan, do you propose to come back to paragraph 25 on page 94, or have you left it?

MR CASTAN: We draw a conclusion from that over the page at page 96, Your Honour.

TOOHEY J: Perhaps I will wait until you - - -

MR CASTAN: I think the answer to Your Honour's question, if I have anticipated it, is about to come.

MASON CJ: Perhaps it might come tomorrow morning, Mr Castan. We will spare ourselves in the meantime. We will adjourn until 10 am tomorrow

AT 4.38 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 14 SEPTEMBER 1994