State of Western Australia v Commonwealth of Australia P4/1994 [1994] HCATrans 9 (9 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 FRIDAY, 9 SEPTEMBER 1994, AT 10.18 AM

(Continued from 8/9/94)

Copyright in the High Court of Australia

_____________

MASON CJ: Mr Solicitor for Western Australia.

MR PARKER: If it please the Court, may I spend just a few moments addressing some further submissions to the question put to me yesterday by Justice McHugh, whether there was an imputation of an intention rather than a prima facie rule or presumption. The case that we mentioned and referred to Your Honours yesterday and which was relied on in Mabo [No 2] - that is the case of Amodu Tijani v Secretary, Southern Nigeria, (1921) 2 AC 399 - had at page 410 point 3 the passage:

The original native right was a communal right, and it must be presumed to have continued to exist unless the contrary is established by the context or circumstances. There is, in their Lordships' opinion, no evidence which points to its having been at any time seriously.....questioned.

In our respectful submission, those words indicate most specifically that we are looking not at an imputation of law in the context. We would also point out that in each of the cases to which reference has been made in our submission, not only are the words apt to describe a prima facie rule or presumption which is rebuttable, but that in each of those cases there has been in fact an examination of the circumstances.

McHUGH J: I understand that, but the problem I was asking you about was this: do you start with a presumption which prevails unless there is evidence which negates it, or is the presumption merely a factual matter which you take into account and which will ordinarily prevail in the absence of other evidence but, depending upon all the circumstances, it may have little or no weight?

Could I just explain to you one of the problems I see. It seems to me that in 1788, as the Court held in Mabo, that the Crown did intend to protect the rights of the original inhabitants, but 40 years later they had been dispossessed lot by lot, as Justice Brennan said in Mabo, and a stage may have been reached by 1828 when those who are responsible or are identified with the Crown were bent upon dispossessing those who were on the lands in Western Australia.

If that is the case, then it seems to me that it is arguable that it is inconsistent with the notion of native title because I find it a little difficult to think that there is no intention to dispossess at the moment of the settlement of Western Australia but there is an intention piece by piece each time 640 acres is given to some person. So at the moment from my point of view, the problem is quite acute as to whether or not one starts with a common law rule which prevails unless negated by evidence or one looks at the overall situation.

MR PARKER: We would respectfully submit that it is important to focus on the fact that we are looking, as a foundation to the question of whether there were legal rights that were to be displaced or which were to be protected and supported under the new establishment, for its foundation at an act of State in which the Crown is at liberty in its political sense to decide whether to or not to accord future protection to rights that existed before it assumed sovereignty. The merit, the right or wrong in the sense of our values of the decision that the Crown takes, is not one that can be reviewed. What is critical is what was it that the Crown intended? If that is the inquiry, it is the Crown's intention that is the source then of the legal position that follows, and if that be right, we would respectfully submit that it is properly the position that one may start with a prima facie rule or presumption that provides a ready solution in the case of doubt and, of course, such a presumption in favour of preservation of the pre-existing rights has much to commend it in terms of a justifiable and desirable outcome.

McHUGH J: If I could just interrupt you. As I understand it, we are not dealing with the same problem as when a statute takes away rights; we are seeking to identify a state of mind in somebody or other and, as I understand your argument, the presumption is in fact no more than an evidentiary presumption, is it?

MR PARKER: Yes. And we would submit that is the proper position because the fact of the intention is the matter which determines what are the rights in the newly established order and it would be, in our respectful submission, denial of the truth and the rights intended by the Crown if there were to be put in place a rule which could have the effect of producing a legal result contrary from that which was in fact intended.

McHUGH J: That would mean your argument could lead to very unsatisfactory results in the sense that native title could exist in eastern Australia but not in Western Australia.

MR PARKER: Nobody, if it please the Court, could be more conscious than I of the difficulty of that but, with respect, we are not in a position of being able to rewrite history. If that is in fact in the Court's conclusion what was the intention of the Crown at the time, that would be the result.

McHUGH J: It would also have the result that this Court's judgment in Mabo may have led to expectations which would now be defeated by reason of the evidentiary material that you rely on.

MR PARKER: Your Honours can well appreciate that I am not in a position to be able to offer any solution to those real difficulties. The matter is, in our submission, to be determined according to the law and the facts. If that is the result that does emerge those possibilities will have to be faced. In our respectful submission, in the process of determining what in truth is the position, that it would be to create a legal fiction to be imputing or applying as a rule, by way of legal presumption, an intention that was quite wrong.

McHUGH J: Yes, I must admit the thought occurred to me yesterday during your argument that maybe to say that the Crown had such an intention was as baseless a fiction as the doctrine of terra nullius itself.

MR PARKER: If it please Your Honours, in paragraphs E38 to E42 of our submissions we seek to contrast the position with respect to the establishment of Western Australia as a colony from that of New South Wales. May we just add a comment to the points that are made in those paragraphs.

Contrary to submissions to be advanced against us, there is, we would think, no relevance for present purposes of comparisons of the position as it had developed in New South Wales by 1829 with the position in WA at its establishment. It is the circumstances at the establishment of New South Wales and their stark contrast with the position so much later when WA was established which informs the present inquiry.

Then at paragraphs E44 to E47 we drew attention to the significant differences attending the establishment of South Australia as a colony some five or six years after Western Australia. In the manner outlined in those paragraphs, and perhaps with a change from the initial undertaking, there came to be an express preservation of the interests then enjoyed of Aboriginal peoples in any lands of the colony, and that happened in the 1836 letters patent which constituted the office of Governor of South Australia, whereas the statute a year or two before had no such provision. But the statute was amended then by the South Australian Constitution Amendment Act, 1838 to make reference to the preservation of rights that had been effected in the letters patent.

Despite those attempts, or those events, nothing was done to apply those principles to Western Australia. I would just add that when New Zealand came to be established by charter just a few years later again in 1840, the practice followed in South Australia was applied to New Zealand, hence the decisions dealing with the decision in New Zealand proceed from a fundamentally different foundation.

BRENNAN J: Mr Solicitor, I may have missed something on the way through, but by what instrument was the border between South Australia and Western Australia established?

MR PARKER: I would think, Your Honour, is the letters patent establishing the office of Governor which contains the full metes and bounds of the State, it is a picture frame, including the boundary with South Australia.

BRENNAN J: Including the boundary?

MR PARKER: Yes.

McHUGH J: Did Western Australia in those days take in what is now South Australia and the Northern Territory?

MR PARKER: No, it never did, if it please Your Honour. There was always the line as far as New South Wales had ever reached, and then Western Australia when established came up to that line. The two never overlapped. South Australia, I think, was carved out of the former New South Wales.

McHUGH J: Yes.

MR PARKER: I would just add in reference to those remarks, it is perhaps not surprising that different policies might have been followed for different colonies in Australia. The English colonial administration did not, in the 1830s, see an Australian colony but quite distinct colonies as in Africa, each with its own purpose, state of development problems and relevance to the United Kingdom. A question that obviously - - -

McHUGH J: I am sorry to keep on about this, but whose state of mind do we look at? Is it the Earl of Bathurst? Is it Sir George Murray? Is it Stirling's?

MR PARKER: It is the intention of the Crown, if it please Your Honour, that is of necessity an intention corporately held evidenced by a variety of possible pieces of evidence from formal documents to statements of policy from formal dispatches or instructions.

McHUGH J: That tends to indicate you are looking not at a real intention or an actual intention but some sort of intention imputed to the hypothetical legal construct for the Crown.

MR PARKER: If it please the Court, one is looking, I would think, to find the intention of the policy being followed by the Crown with respect to the political venture that it is undertaking, and therefore one, if it came across documents expressing a personal opinion, might disregard those but, if one looks at official statements of the Crown or official records of the Crown at the time, one can find in those evidence. If there was inconsistency between them, of course all the room in the world is there for the prima facie rule or presumption to apply. But if all the evidence shows of a consistent mind or policy, in our respectful submission, it is safe to conclude what it was that the Crown intended with respect to its events.

McHUGH J: Do you agree that the documents in, I think it is appendix 1 to the Commonwealth's submission, indicate that the policy of the Crown, certainly in the early part of the 19th century, was to protect the rights of the native inhabitants, not only in Australia but in the United States and in other places?

MR PARKER: The documents there have generally an application I think to New South Wales in recollection, and a number of them are expressions of individuals rather than official indications. As we would understand it - - -

McHUGH J: In so far as America is concerned the monarch's view - it is George III's views -

MR PARKER: Yes. The policy, it is clear, has been different from place to place and from time to time. I do not think one can see a consistent policy throughout, and it is perhaps also true to observe that the policy may vary according to appreciations of the nature of the peoples and their society which are under consideration. We, I believe, must come to look at Western Australia in the light of its particular history and the attention that the United Kingdom authorities had in respect of it, and that it would be of limited value to form a view that there was a different policy in respect of another colony or another country, but it may have some assistance.

DAWSON J: Surely, Mr Solicitor, what you are looking at is an exertion of sovereignty.

MR PARKER: If it please, Your Honour, yes.

DAWSON J: The question is simply whether the sovereignty is exerted to the exclusion of native title, and really it is not so much a question of intent as to what was done.

MR PARKER: Yes, we would agree with that, if it please Your Honour, and we would also make the observation that the action of not protecting the rights pre-existing, if the Crown even appreciated that they were there, is not inconsistent with the view that they might have intended protection and care for the Aboriginal peoples themselves.

McHUGH J: But, is it necessary for you to extinguish the rights or is it sufficient for you that the Crown intended to do things that were inconsistent with the facts which would represent or evidence native title?

MR PARKER: In our submission, it is the latter, if it please Your Honour. It is a question of what it is that the Crown does, what its policies and purposes are in respect of the act of State of assuming sovereignty and if it, in the course of that, does acts which have the consequence that pre-existing rights will no longer have effect, it is not a relevant or necessary question whether the Crown specifically said or set out as a matter of policy, "We intend to terminate those rights or not to recognise them".

TOOHEY J: But that seems to be running two propositions together. One is the notion of intent and where that is to be found and acts by the sovereign which are inconsistent with the continuance of the interests of indigenous people. Do they relate in your submission one to the other or do they stand as independent approaches, or how are we to view them?

MR PARKER: We would approach the matter this way, Your Honour. The policy or intention of the Crown in this case established, in our submission, that it sought to have and to exercise in the new territory absolute title to the lands of the territory. That being its policy, purpose or intention, it is self-evident from that that it would not thereafter accord recognition to or continue to respect pre-existing rights that diminished that which it sought to achieve in its act of State. The two are not compatible. We do not say that the Crown said, "We will extinguish native title", or that it set that up as a distinct issue of policy. What we say, with respect, is that it did as a matter of determined policy decide that it should have to itself the absolute title to the lands of the colony.

It is likely that in the course of that it may have taken the view that the Aboriginals known to be present had not rights which would deny or by interfered with by its decision to exercise absolute sovereignty and to acquire absolute title, so that it may by the positive decision and policy that it formed have unconsciously had the effect that title of the Aborigines was denied and extinguished, but the very policy which we submit it did form was one which by its nature denied the continuance after the establishment of sovereignty of any competing interests in the lands of the colony, whether they be Aboriginal title, as is the focus of this case, or perhaps claims that somebody else unknown might have had, if history had been a little different.

TOOHEY J: Well it is implicit in that, I take it, that the argument founded on intent, you would say, is made good whether or not there had been any disposition of land in the colony.

MR PARKER: I think that is right, yes.

McHUGH J: Indeed, you have got to say that, have you not, because your case stands or falls on being the state of mind or on the act of sovereignty, or whatever you like, at the very moment that they took possession, because if the presumption operates against you, even for a moment of time, then native title in Western Australia can only mean lot by lot.

MR PARKER: That may be the position, Your Honour. We would though point out that, in the nature of acts of State and the acquisition of sovereignty, it puts perhaps too fine a legal afterthought on to the reality of the act of State. A conqueror whose armies have just won the last battle and has thereby succeeded to the sovereignty of the new dominion has not at that moment, in all reality, a list or charter of the sovereigns intentions with respect of pre-existing rights. Hence it is that the cases say, as Justice Dawson indicated a moment ago, that one looks at the acts of the Crown, because that policy may be given expression as it is formulated. As long as what is being done is part of the act of State of the Crown determining its intention with respect to this new acquisition, in our respectful submission, there is scope for attention to be paid for it.

TOOHEY J: There are some problems, though, Mr Solicitor, are there not? It depends upon, you would say, ascertaining the intention of the Crown as at the time of settlement and that intention is to be ascertained apparently even where the existence of native title was not addressed by the Crown, and presumably not addressed because it was not thought to exist. Why then is not the establishment of the colony and these other matters to which you have taken us simply the exercise of sovereignty rather than the extinguishment of any indigenous title that there might have been?

MR PARKER: Because if the Crown's policy and intention was that in settling this new lands, as it saw them, that it should thereby acquire the absolute title to the lands. It is not to the point, for our purposes, to be saying later, "But you did not know or you did not think about these things. Had you done that you would not have formed that policy, you would have formed a different policy perhaps, one that might have accorded recognition." If the Crown had that intention or purpose or policy, the legal consequence follows and it is then a matter for the working out of the government of the new territory to then determine how to make good or respect or to give a place to those who have lost their entitlement by this action.

BRENNAN J: What steps then, at the moment of acquisition of sovereignty or shortly thereafter, did the Crown make for the treatment and disposition of those who had just become trespassers.

MR PARKER: If it please Your Honour, the indications we have is that there was no thought that they had become trespassers, though the people - one must start with the thought that is likely to be in the minds of the Crown, that they were people who were simply in the habit of moving about the country. So they are not thinking, "We have dispossessed you of rights, what do we in substitution?" Their thoughts would be that, "We should effect as minimum a disturbance to their ways as the circumstances will allow", so that there would continue to be freedom, in our legal terms, by way of an implied permission for Aborigines to move about unallotted territories, unallotted lands in the new territory, where that was the position.

That, of course, would lead to a gradual displacement of their freedom to move about on Crown lands, but as much as one can discern from the circumstances of the time it would be seen that that process of gradual displacement would hope to proceed in hand with a process of gradual assimilation into the society which seemed to be the attitude for the very many initial years of the settlement of Western Australia. So we have a picture of freedom to move on any unallocated lands, and to move once they became established on pastoral leasehold lands, but when allocation occurred, that freedom being further restricted, all of that being equally possible whether there was a preservation or not a preservation of pre-existing title. We would think that something of that nature is likely to have been seen to be the policy and intention toward the indigenous peoples;

certainly not a case that they should simply be forced into the sea or put on boats and sent away as trespassers. The very statements of policy for their protection clearly indicate that they were to continue to have a place in the society, and that the understanding is that by the processes of exposure to the society of the settlers and Christianity they would become assimilated into that society.

Your Honours, that would bring us to the circumstances following the establishment of the colony. Paragraphs E49 to E108 deal with those events to the present time, and in so doing they have two relevances. The first is whether subsequent events, legislative and executive, are confirmatory of the proposition that native title rights did not survive the establishment of the colony or contradict it, or are neutral. The second is whether there has been an extinguishment of all native title rights subsequent to the establishment of the colony.

Having regard to the relevant principles as to post-establishment extinguishment, and in particular to the reasoning in Mabo [No 2], the reality is, from the point of view of the position of the State, that the more compelling the position is for the first of those purposes, the less the second is likely to be demonstrated. For that reason, on our further reflection, we do not propose to persist with the submission that events after the establishment of the colony have effected an extinguishment of all native title rights, and E48 of our written submissions should be deleted.

We do, however, rely on events subsequent to the establishment of the colony as confirmatory of our primary submission that no native title rights survived the establishment of the colony. In that respect, could we make perhaps the obvious comment, that the Land (Titles and Traditional Usage) Act, the State legislation specifically under consideration in this case, itself is manifestly enacted in direct response to the decision in Mabo [No 2]. It was enacted out of caution; its enactment may not properly be taken as an acknowledgement that native title rights continued after establishment of the colony.

MASON CJ: Mr Solicitor, can I ask you where we can find in the documents the letter or memorandum that is referred to in paragraph E60 on page 50 of your submissions?

MR PARKER: I will have that turned up, if it please, Your Honour. While that is happening may I move on, Your Honour?

MASON CJ: Yes.

MR PARKER: In very general terms, the review of post-establishment events reveals, firstly, that ambitions for expansion of the settlement by virtue of the availability of land were realised, and E50 to 57 outline those circumstances briefly. Secondly, what is revealed, as Your Honours might expect, are these things: a great deal, particularly legislation, premised on a complete absence of Aboriginal title and land; much legislation which, on an ordinary reading, might deny the existence of native title but which per force is to be read differently, as Mabo [No 2] demonstrates.

Nothing legislative or executive which, in our submission, constitutes an acknowledgement of the continued existence of native title after establishment, and legislation which has, as a necessary consequence of its terms, actually worked an extinguishment of what might constitute aspects of native title, the relevance being that the terms and objects of the legislation being such that there is no recognition afforded by the existence of those legislative provisions and a continuing existence of native title rights.

Examples are the rights in minerals, which are dealt with at E97 to 108, and rights in petroleum, E100 to 101, all of which seem, in our submission, to have been brought exclusively within the entitlement and right of the Crown, but the statutory provisions which have done that, affording no evidence that there were to that time existing native title rights in those minerals.

As we apprehend the submissions to be advanced against us, there are two matters variously relied on as constituting a recognition of native title rights post establishment. They are entry rights on pastoral leases, and Aboriginal reserves, and may we deal briefly with each of those.

Entry rights on pastoral leases: these first arose by an Order in Council of 22 March 1850 and E82 of the written submissions deals with those. May I read to Your Honours the original provision. I am reading from volume 2 of Annexure A. Your Honours perhaps do not need to turn to it, I can just read it into the record. It is regulation VII:

Nothing contained in any pastoral lease shall prevent the Aboriginal natives of this colony from entering upon the lands comprised therein, and seeking their subsistence there from in their accustomed manner, or shall prevent any inhabitants of the colony from passing over the said lands, or from examining the said minerals and other capabilities of the same, or from doing all things necessary for the purposes of such examination -

et cetera. It is in a regulation detailing limits to be imposed upon leases from that point on.

Now, E84 to E85 sets out the subsequent history of the entry clause and the various forms that it took are dealt with in those provisions. Since 1934 the right to enter on pastoral leaseholds only extends to unenclosed and unimproved parts of the pastoral leasehold. That is the current form and except for a short period from 1932 to 1934, since 1850, there has been a form of reservation of entry of that type.

Paragraph 2.13 of the Commonwealth's written submissions assert that these reservations in pastoral leases:

constituted an acknowledgment that prior to the grant of such a lease and in areas not subject to such a lease, Aboriginal peoples continued to occupy lands and were entitled to do so independently of any rights granted to them by the Crown.

BRENNAN J: What was the source - I am taking the words from E84 - of the right of the Aboriginal natives of the colony to enter upon, et cetera?

MR PARKER: The licence which by implication the Crown had: there was never in Western Australia to that time, or for some time later, any legislation that would have precluded entry.

BRENNAN J: But this is speaking of a "right".

MR PARKER: Yes, a right arising by permission - - -

BRENNAN J: Who gave that right to the Aboriginal natives and by what instrument?

MR PARKER: It is a right arising by implication from the circumstances, the Crown allowing or permitting entry and continued movement across the lands of the Crown that had not been allotted or allocated.

BRENNAN J: By implication of a grant from the Crown to a lessee, the Aborigines acquired a right?

MR PARKER: No, Your Honour. By an implied permission to all Aborigines and to all other citizens. There was no restriction, certainly for over 50 years, on the right of persons to pass and move on lands of the Crown that were not allocated and in occupation. There was a statute in 1844 that limited clearing and occupation and the like.

BRENNAN J: Do you mean any more than that there was no statute which prevented people from moving across unallotted Crown land?

MR PARKER: In terms of legal instruments, that is right, Your Honour.

BRENNAN J: Do you mean any more than that?

MR PARKER: We mean that there was an implied intention that that should be the case.

BRENNAN J: From what was that intention to be implied?

MR PARKER: From the circumstances of the administration of Aborigines, the circumstances of the administration of Crown lands, the vast area of Crown lands that existed in the colony, the freedom to everybody to move, to explore, to survey, to identify, to move as they would.

BRENNAN J: Does that mean that in respect of unallotted Crown lands at the commencement of the settlement, whatever rights there were of movement, et cetera, were unimpaired?

MR PARKER: They had changed in their legal form. Instead of being, as we now appreciate, a right growing from an interest of the Aborigines in particular lands of the colony, they now became, in our submission, in legal form part of a general right of all peoples to pass on the lands of the Crown in the colony that were not allocated.

BRENNAN J: I appreciate that is the way in which you now put it. I have not seen any instrument which indicates that that is the way in which it should be put. Is there any?

MR PARKER: There is not that I am aware of, Your Honour, except what perhaps might be drawn from the fact that in 1844 in the statute there was precluded the right to citizens to do certain things on wastelands of the Crown, that being to clear or to occupy and the like, an indication that lesser uses of Crown lands were not being prevented and in that respect providing some confirmation of the position.

DEANE J: Did non-Aboriginals have the right to enter pastoral leases?

MR PARKER: Yes.

DEANE J: And take their subsistence from them?

MR PARKER: No, it was the subsistence that distinguished Aborigines - - -

DEANE J: So that was a right that was recognised as being exclusive to Aboriginals?

MR PARKER: That was a right, if it please Your Honour, or a licence which recognised the different use that Aboriginal peoples would make of the vacant lands or pastoral leases.

DEANE J: Well, I suppose it is a matter of what end you look at it from.

MR PARKER: Yes, but Aboriginal peoples had a clearly known pattern of foraging et cetera, and this made clear that that could continue whereas ordinary citizens were allowed to pass and repass and search for minerals. In the case of Aborigines it was treated in that distinctive way.

DEANE J: Mr Solicitor, can I divert you right away from this. In the West Australian Act it refers to "no right to take forest produce". Is forest produce timber? It is defined under the Forest Produce Act which I do not think we have been shown.

MR PARKER: I believe that it includes timber, yes Your Honour.

DEANE J: Thank you, Mr Solicitor, that answers my query.

MR PARKER: Thank you. If I can return to the question of the right of entry and its effect. The form of entry that is recognised, in our submission, does not support in any way what the submissions against us seek to draw from it. In fact they would tend to lead to the opposite conclusion. The noteworthy features, we would think, are these: in the first place, the entry permitted has only been for limited purposes, namely, to seek subsistence therefrom in their accustomed manner. It has not been to reside their or to conduct ceremonies of spiritual significance or anything of that kind.

Secondly, and contrary to the Commonwealth submission 2.13, the form in which the various reservations are expressed should not be read so that the words "in their accustomed manner" qualifies enter, but seeking their subsistence and nor, in our submission, does a right of entry provide evidence of a prior right of occupancy, as is contended; thirdly, these provisions, of course, reflectn as I have indicatedn the recognition that the Aboriginal people in the State may have sought sustenance from the produce of the land, the subject of pastoral leases, but it does not follow from that that to permit for the future Aboriginals to continue to do so is to recognise that prior to the grant of the lease or that in areas not subject to the lease those persons were entitled, as against the Crown, to occupy the lands.

Fourthly, an intention to protect a traditional right is hardly demonstrated by a right of access which is terminable without legislation or executive action by virtue of the pastoralist enclosing or improving the land. Fifthly, granting the right of access to all Aborigines. In doing that, there is necessarily included Aborigines with no native title rights or no native title rights in Western Australia. Sixthly, the territory's specific nature of native title rights, under Aboriginal culture is irrelevant to the right of access because it is granted over all pastoral leasehold. And, seventhly, the access right is but one of a number provided for in pastoral leases, including right to the general public to pass and prospectors to search.

For those reasons briefly stated, in our submission, the right of entry that commenced in 1815 and continues to this day, cannot itself be a native title right or a recognition of a pre-existing native title right of any or all Aborigines, nor can it be evidence of a general intention of the Crown at the establishment of the colony that native title rights should continue in Western Australia.

May I, before moving to Aboriginal reserves, give Your Honours the reference to the document mentioned in E60. It is to be found in volume 3 of the historical source documents. That is a volume that would be numbered 14 in the sets that Your Honours have and I am afraid those documents are not numbered chronologically. It is, if I hold the book open at the page and show Your Honours, about that far into the document. I could arrange to have the page marked at the luncheon break if that will assist Your Honours in finding it and dealing with it.

DEANE J: What is at the top of the page, Mr Solicitor? Is it a vertical or a horizontal page?

MR PARKER: "Aborigines" - it is taken from a book. It is two pages of the book, heading "Western Australia: Aborigines Australian Colonies" There are several pages following it, printed in that style, all part of the dispatch, and the passage is at the very bottom of the page, the last two lines and over on to the top of the next page. Would Your Honours like to find that now or would it be more helpful if I had a marker put in it?

MASON CJ: I think it would be more helpful if you identified it later, Mr Solicitor.

MR PARKER: If it please, Your Honour. Moving now, if it please Your Honours, to Aboriginal reserves. These are dealt with in E58 to E76 of our submissions. E66 identifies the Order in Council, which enabled firstly:

grants or sales of any lands comprised in such lease for public purposes -

They were not in the language of reservation in the original -

for the use or benefit of the Aboriginal inhabitants of the country -

The first recorded exercise of power was made, as noted in E68, in 1874. That was on the establishment of a religious mission at New Norcia.

There was a suggestion that there might have been a reservation of some type established in the 1840s, but no documentary or other record of that having actually happened or where it was, can be found. The first authority for some form of formal setting aside of lands for the purposes of Aborigines is the Order in Council to which I have referred in E66, and the first action under it that is recorded is in 1874 as noted in E68.

Reserves then followed in the 1880s and following, and the history of them is set out in the pages that follow.

The early reserves seem to have been largely associated with missionary endeavour or partly, simply protection, E69 makes a reference to that, but could I also give to Your Honours a reference in the source documents and I might have two references that I am to give Your Honours now, marked the same time as the one we have just spoken about so that Your Honours can turn to them if you need. The first reference I would give is to a work by Hasluck, "Black Australians" at pages 115 to 116 and it is in volume 3 of the source documents, and I will have that marked in due course. If they happened to be associated with traditional lands on occasion there is nothing to reveal that that occurred other than by chance or convenience.

Examples of the arbitrary location of reserves to meet perceived needs of the white community are to be found in the reports of the Aborigines Department 1901 and 1908 and again, I will give Your Honours a reference that I will arrange to have marked in your volumes. It is in volume 1 of the source historical documents.

Many reserves were difficult to administer because the Aboriginal people for whom they were created did not wish to live on them because of where they were located. They were not on lands with which the Aborigines had any traditional connection. An example is the pastoral station Moola Bulla and there is reference to that in an extract from Biskup's work, "Not Slaves, Not Citizens" which again is in volume 1 of the source material and I will have that marked.

TOOHEY J: I am not clear as to the status of these reserves. For instance, E68 speaks of a grant of land for the Benedictine community for an aboriginal reserve. Was it a grant by way of licence or a grant of freehold or what form did it take?

MR PARKER: I am not able to answer Your Honour directly on that. If I can get some information on that I will assist Your Honour later. I believe the notion was that there would be grants for public purposes. They were not grants to private individuals, but there was a notion of granting for public purposes, and just the precise form of that I cannot - - -

TOOHEY J: I am just wondering what you would see if you went to the titles office. Would the Crown still appear as the registered proprietor?

MR PARKER: Yes, but I think what you would see is that it was now allocated land instead of unallocated land, it having been granted for the purposes of the Aboriginal people. But I am afraid I do not have at my fingertips the precise form of the grant, and I will see if I can get something to assist Your Honour.

TOOHEY J: Thank you.

MR PARKER: So that the distinction is clear, we would point to the contrast to be made between a reserve for Aboriginal purposes of the type permitted under those regulations, and the later land administration legislation in Western Australia, the contrast to be made between a reserve or reservation of that kind from a reservation of the type typically found in the United States and Canada. They are quite fundamentally different in the reason for their existence and the circumstances in which they came into being.

In the United States and Canada they were often the product of a treaty with the particular tribe or group under which tribal lands were ceded from the tribes from which ceded lands a part of them were reserved for the continued use of the tribe; or by which some other lands were provided in substitution for the ceded lands. In that context, the reservation of lands can be seen to have a direct and a close connection with the notion of traditional lands of the tribe and, of course, the very business of obtaining a cession of the lands indicates an acknowledgement that there was a right existing in those lands of the tribe. No such circumstances occurred in WA in respect of any reserve.

The general picture, as we would apprehend it from the materials, is that protection of the Aborigines, education, religious conversion, feeding or caring points, restriction of movement, are among the predominant factors which guided the location and administration of reserves. In our respectful submission, those factors and the circumstances preclude reserves providing evidence against our submissions as to the non-existence of native title in the colony after the establishment of it, or from affording evidence that native title rights were recognised or protected.

I begin, in answer to Your Honour Justice Toohey, the first lease to the Benedictine community in 1874 was in fact a lease, and this provision was found in the part of that lease. If it please Your Honours, E109 really summarises the conclusion to be drawn, in our submission, from the extensive review of factual and legal history that has been undertaken in the written submissions and in the supporting documents, and I would not want to advance that further.

BRENNAN J: I understand that that material is referred to in order to demonstrate, as against the Commonwealth, that the provisions of the Commonwealth Act have no application in Western Australia. Is the same material referred to in order to determine any issue as between Western Australia and the plaintiffs in the other actions?

MR PARKER: As I would understand it the same issue, yes. That is, in our submission, that there is no Aboriginal operation of the Commonwealth Act in Western Australia.

BRENNAN J: That at no material time, that is material to any litigation before the Court, was there any native title recognised by the common law in existence in Western Australia.

MR PARKER: Yes, if it please Your Honour.

BRENNAN J: Yes, thank you.

DEANE J: That would mean that West Australia's submission is that its own Act has no operation.

MR PARKER: Indeed, Your Honour, and I specifically made that point, briefly, earlier in the submission. It was enacted out of caution on its face as a direct response to the decision in Mabo and should not be seen to be an acknowledgement that there were those rights.

If it please Your Honours, yesterday my learned friend, Mr Jackson, undertook to make available to Your Honours a list of statutes affected by section 211 of the Native Title Act. May I pass up that list for Your Honours, and that would conclude our submissions, if it please the Court.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for South Australia.

MR DOYLE: If the Court pleases, questions 3 to 7, which are the first questions which we address, raise a number of common issues. So what I propose to do is to put submissions initially which relate to those questions as a group. I will follow that with some fairly brief submissions going to those particular questions, so first of all I will be dealing with questions 3 to 7 and then I propose to deal with questions 8, 9, 10 and 11 together and 12. Could I just indicate that when we prepared that submission we were working off a document which numbered some of the questions slightly differently. So in our index, item 9, that is actually submissions on question 12 rather than question 14.

DEANE J: I was looking forward to question 13(a), Mr Solicitor.

MR DOYLE: I cannot even remember what question 13(a) is, Your Honour.

DEANE J: Section 53 of the Constitution.

MR DOYLE: Your Honours, could I start then with the general submissions on questions 3 to 7. Our first submission is that the following sections of the Native Title Act, that is 11, 19, 22, 23 and 28, are as a matter of construction laws about the validity of State law in the true sense of the term "validity"; in other words, meaning null and void and not merely inoperative in the section 109 sense.

Because it seems to be common ground that the Commonwealth has no power to enact such laws, I approach this as simply an issue of construction, namely: should those sections be so construed? The first submission is that they should. The bases for that first submission are these. First of all, in all but I think section 11, the use of the words "valid" or "invalid", although it is acknowledged that is somewhat equivocal standing alone because of course one of them is the very word used in section 109.

The second thing we rely upon in support of that submission is that in section 14 where the word "valid" is used twice, it would appear, in our respectful submission, that it does have the sense there of operative and otherwise null and void. In other words, that in section 14 "valid" seems to be used not in what I will loosely call the section 109 sense but in what I will likewise loosely call the strict sense. So there is the argument that the draftsman would not have intended to use "valid" in different senses so close together.

The third basis is related to that and relates to sections 22 and 23. As to them, the submission is that in their application to the Commonwealth, again, there the words "invalid" and "valid" would appear to be used in the strict sense. So the Commonwealth's submission would have us conclude that it would seem that they are used in the section 109 sense in relation to the States, and in the strict sense in relation to the Commonwealth, which again suggests a degree of subtlety on the part of the draftsman which one would not lightly conclude. Or, as the Commonwealth would have it, a degree of ellipsis on the part of the draftsman which, we respectfully submit, the draftsman would not deliberately have adopted.

However, I acknowledge that as to the Commonwealth, sections 22 and 23 are somewhat obscure but it would seem that "valid" is used there in relation to Commonwealth in the strict sense.

The fourth basis for this submission is, admittedly, to some extent, a matter of impression but when you look at Divisions 1, 2 and 3 of Part 2, the overall impression is of a tightly controlled scheme for the extinguishment of native title; in a sense, "Here is how you do it". In our respectful submission, in that context, again, one would fairly readily read those words "valid" and "invalid" in the strict sense and not as a reference to the operative effect of laws coming from another source.

The next basis for this submission is that in relation to - and this is a point made by Mr Jackson, and so I really just adopt his submission, that we have to bear in mind that a past act may be an act which is invalid for reasons unrelated to any inconsistency with the common law. In relation to such past acts, it seems that the effect of the act is to, as it were, now make them valid in the fully operative sense. So in relation to such past acts it appears, once again, that the act is using "valid" in the strict sense of the term.

So for those reasons, our first submission is that in the sections I identified, the words "valid" and "invalid" are used in the strict sense and I included section 11 in that group simply because it is a kind of introduction to that group of sections in that it really says, "This Act tells you how native title can be extinguished. Now read on.". That is why I put it with that group.

BRENNAN J: Do you need to refer to the definition of "valid"?

MR DOYLE: Well, not specifically, Your Honour; it does not, in our submission, really take one any further. It is an inclusive definition but I must say, for better or worse, I cannot really make anything much out of it to support my submission and hopefully I can see nothing in it that damages by submission, so I do not place any particular reliance on it.

GAUDRON J: Does it not involve a reading down definition though?

MR DOYLE: You mean, of "valid"?

GAUDRON J: Yes. So that if you were right as to one aspect you would none the less read it down with invalidity in accordance with what is specified as included in the definition.

MR DOYLE: Yes. Your Honour, that I will come to. In other words, my first submission is this is what the draftsman intended, that is beyond power, and then of course the next submission is, well can it be read in some more limited sense. So I accept I have to cover that as well.

So, if that submission is rejected then the Commonwealth argues, in paragraph 6.9, that these provisions are a redundant declaration of the effect of section 109 and, clearly, if they are so read, then they are redundant and, as we would submit, are invalid. But that poses the question which is really the second point in our submissions: can these sections be read - and we would put it this way - as indicating:

the extent to which State laws are to be excluded from any operation upon the subject of native title on which the Commonwealth is legislating -

Now, that is how the Commonwealth puts it in paragraph 6.9 of their submissions and, put like that, it does not sound too difficult. We submit that there is a bit more to it than that.

It is clear, of course, that the Commonwealth can state whether its law is or is not intended to make exhaustive or exclusive provision, and I do not need to cite cases in support of that proposition. But our respectful submission - and I will have to, in part, develop this a bit later - is that the power of the Commonwealth is to state its intention about its own legislative regime. In other words, it is a power to indicate an intention about some substantive laws on a matter. The Commonwealth does not have power simply to declare when State laws may or may not operate and, in our respectful submission, it is important to bear that steadily in mind. At times the line may get quite elusive but, in our respectful submission, as a matter of principle, it is a critical line and the Commonwealth cannot simply state State laws may or may not operate on a topic; what the Commonwealth can do is, as an aid to the Court as it were, indicate its intention whether or not its laws on a topic are intended to be exclusive regulation of the topic.

DAWSON J: Why can it not mark out the boundary by saying what the State laws may not do?

MR DOYLE: Well, of course sometimes it can, Your Honour, and this is why I acknowledge the line is elusive and one might say, in a way, that O'Reilly v Australian Coastal Shipping Commission is an example of that, but there, of course, what I call the substantive law was the enactment of provisions, establishing a commission to do certain things and as part of that it naturally fell within the power to say whether it should or should not be subject to State taxation and therefore to say, it shall not.

Now, I would submit, there we have a regime of laws and, the Commonwealth indicates, that its regime, as to the Commission, is exclusive of State laws on the topic. But the distinction which I seek to draw is, on the other hand, where there is, what I will call, a bare declaration. It is not easy to give good examples but in the written submissions we give an example, and from time to time we use the marriage power just for convenience: if in 1956 the Commonwealth had simply said, rather than enacting a Matrimonial Causes Act, and putting in it provisions - I do not know whether they are there or not - about its exhaustive effect. If the Commonwealth had simply said, as from a certain date, State laws relating to marriage and divorce may not operate or may operate if they have the following provisions in them, we would submit that, prima facie, that is beyond power, because that is a simple attempt to declare whether State laws may or may not operate on a Commonwealth head of power, and the existence of the head of power does not bring with it, of itself, the ability to declare whether or not State laws operate. But obviously, if the Commonwealth enacts some laws relevant to marriage and divorce, as part of that it can indicate, as an aid to the Court, to what extent those enactments on marriage and divorce are or are not to be exclusive of State laws, and that is the distinction which we draw.

Again, we acknowledge that sometimes - and this is again why the line can be elusive - it would be reasonable to read the statement of exclusion as itself, in a sense, an affirmative proposition, and one could again perhaps rationalise O'Reilly that way, in a way that the statement of exclusion of State laws was an affirmative proposition about the tax status, if you like, of the Commission.

What we submit is that the line is there to be drawn and that was probably, in part, what Justice Dixon was referring to in Wenn's case when he said there is that grey area where, in the end, you may conclude that the Commonwealth law is nothing more than an attempt to exclude State laws or to affect State legislative power. We submit that is the distinction which one has to observe. Is there a regime here in relation to which the Commonwealth has made a statement, which I will just loosely call it exclusivity or non-exclusivity, or has the Commonwealth simply attempted to declare whether or not State laws may operate.

BRENNAN J: That must depend, to some extent, on the subject-matter, must it not?

MR DOYLE: It must, Your Honour, because as O'Reilly demonstrates, with a thing like liability to tax, it is really hard to think how else you would express it and that is why I acknowledge that sometimes, having regard to subject-matter, the way it was put in O'Reilly the commission is not subject to State taxes to which the Commonwealth is not subject. It seems, when you think about it reasonably, the only way of saying it.

BRENNAN J: Yes. I mean it is conceivable that the Commonwealth may determine that a particular head of power should be dealt with by providing a tabula rasa.

MR DOYLE: That is so, Your Honour, and I have tried to think of examples along those lines. One can think for instance, and this may be in our written submissions, of a law which says, "A person in the course of interstate trade and commerce may make such contract for the sale of goods as he or she sees fit, notwithstanding any State law to the contrary". That is clearly substantive law and in the statement. However, if the law was just a person engaged in interstate - State laws relating to sale of goods do not apply to a person engaged in interstate trade and commerce, possibly one can read that as some sort of affirmative proposition. But it starts to get a bit difficult because although then if it says "State laws relating to sale of goods", it is not too difficult to in effect say, "What they really must mean is that you're able to make whatever contract about the sale of goods you like".

If the reference to State laws became more general, in my respectful submission, in the end one would say, "Well, we can't really construe any affirmative regime out of this. This is just a statement about whether State laws can or can't apply, and therefore goes beyond power".

BRENNAN J: That was the difficulty, it seemed to me, in relation to this subject-matter. If the subject-matter is the protection of native title in accordance with section 10 and the only thing in a sense which is liable to affect native title are State laws, why is it that the Commonwealth power, assuming that the protection of native title is within power, cannot say State laws are not to touch it?

MR DOYLE: Well, I suppose, Your Honour, if that is what it said, in other words, State laws may not extinguish native title, so be it. I suppose our answer would be in two parts that first of all there is nothing to stop the Commonwealth simply legislating in terms about the extinguishment of native title. Native title may be extinguished if notice is given to the owner, compensation is paid. If native title is extinguished by a grant of freehold, it is extinguished. If it is extinguished by something else the non-extinguishment principle applies. So, for a start, there was no difficulty actually in just legislating in terms for the extinguishment of native title and State laws would then, of course, have to adjust to that.

Now, in my submission, that is significant that there was an easy option that could have been pursued and the Commonwealth has not, and then our second point is that when you look at the provisions of the Native Title Act, and it may be convenient just to look at section 11, starting at section 10, what we really find is just, in section 10 it just says:

Native title is recognised.....in accordance with this Act.

Which just tells us really this Act is going to deal with native title. Then we find section 11(1):

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

Which, again, just says this Act tells you how it can be extinguished. Then 11(2)(b) says one way of extinguishing it is validation of past acts.

Now, there is actually nothing of substance there, and then you come straight to 19 which just says if a State law provides in these terms it can extinguish by validating a past act and we submit that there is in fact no substantive provision there about the extinguishment of native title by State laws. There is just some, and I do not mean to be disrespectful, there are some initial like read on statements and find out what this Act does and then you come to 19 which says a State law may do it if it has this or that in it, and we submit that that is in fact just a bare statement about State power in relation to the topic or the ability of State laws to apply to the topic and their is nothing substantive to which it is in aid because if one says, "Well, reading it as the Commonwealth would have us read it, which provision does that relate to?", one cannot find anything.

BRENNAN J: Why not 11(1)?

MR DOYLE: Well, we submit that 11(1) is just is, I do not know if circular is the right word, but 11(1) just says native title can be extinguished under this Act and cannot be extinguished otherwise. It is, we would submit, a read on type provision. It is certainly not saying it cannot be extinguished, all it is saying is that it can be and you will find out under this Act, and then comes the simple, we wouild submit, bare declaration. There is nothing operative there about how native title may be extinguished or extinguished by State law. Simply a statement about what State laws can do, and we accept the distinction is - as I said at the outset - at times an elusive one but, we submit, that in the end when you look at this Act it is fairly clear in the end that it falls on the wrong side of the line, and that 11(1) is not a substantive provision. It is simply saying, "You will find out later how a native title may be extinguished," and when you read on then you just find the statement about what a State law may do.

Were there no other way of doing it I would acknowledge to Your Honour Justice Brennan that the point you made, I think it was back on Monday, would have much more force, but we submit that there was such an obvious way of doing it in terms that while that does not mean, of course, the draftsman's choices are then limited, whatever choices he has they remain to him, but we submit that it leads one more readily to the conclusion that in this Act there is in fact nothing substantive, merely a statement about State powers.

So we submit that is an aspect of what Justice Dixon was dealing with in Wenn and that this law falls on the wrong side of the line. But let us take the Commonwealth proposition a little further. In our respectful submission, what the Commonwealth appear to say is that these provisions should be read the following way - and this is perhaps a bit of a mouthful, but along these lines. It is/is not intended that the Native Title Act and/or the Racial Discrimination Act operate to the exclusion of State laws which extinguish native title or under which it may be extinguished, provided, when the State law is being allowed to operate, that those laws contain certain provisions or meet certain criteria and provided further in certain other cases that the right to negotiate procedure is followed. That seems to be what the Commonwealth want the section to mean because, if it is to be a statement about concurrent operation or non-concurrent operation, those sections have to be read along those lines.

So our next submission is that when you think about it, you just cannot read the sections that way. That is why I said at the outset that when you read the Commonwealth's submission, it is easy to say, "Well, they're just an elliptical form of drafting". But our submission is that when you spell out what is involved or what is missing in the ellipsis, the difficulties emerge. We make that submission for these reasons. First, that is a very different exercise - that is reading the section that way - from the sort of exercise considered in cases like the Metal Trades case. There the law itself, the section of the Industrial Relations Act identified the two rival bodies of law. It referred to the award, it referred to the body of State law, and spoke of one prevailing over the other.

In our respectful submission, in that situation it is relatively easy, coming back to Your Honour Justice Gaudron's point, to read it down. But in our respectful submission, reading these sections in this form in that way is a much more difficult exercise than presented itself in the Metal Trades case. So that is the first point; again, not an insuperable obstacle but, we submit, a much more difficult exercise.

Another significant difficulty is that if you look at sections 22 and 23, if they are to be read that way, then they are to have that sort of meaning in relation to the States, but again a quite different meaning in relation to the Commonwealth. So we have to read sections 22 and 23 as more or less meaning what they say in relation to the Commonwealth but then as meaning something quite different in relation to States, because there is no occasion for that reading down exercise in the application of those two sections to the Commonwealth. So we submit for those reasons that these sections should not be read down that way as a matter of construction, that that is going beyond the normal reading down and is really into a process, we would submit, of reconstruction of the sections rather than the traditional reading down.

However, our next submission is: assume that submission is rejected and the sections can be read that way, we submit some further difficulties arise. The first one is - and Your Honours will recall that the way I expressed them roughly was it is not intended that the Native Title Act and/or the Racial Discrimination Act operate to the exclusion of, et cetera. In relation to the native title aspect, then we come back to the point which I dealt with a moment ago. If there is no substantive provision in relation to extinguishment of native title by State law, then reading them that way does not help because they are not, in fact, an aid to the interpretation of some substantive provision by the Commonwealth; they are simply bald statements about the non-operation of State law.

So if Your Honours accept my premise that that is a line to be drawn, and my conclusion that in this particular case there is no substantive law on extinguishment of native title by validation of past acts by the States, then, in any event, if the sections can be read in the manner suggested they fail, in effect, because there is no substantive law to which they are an aid.

We give an example in paragraph 2.29 in our written submissions - in fact, that is the example I referred to earlier of drawing on the marriage law. Another example, Your Honours, of the sort of point we seek to make is to envisage the Commonwealth, for instance, enacting some laws regulating the activities of trading corporations, and then providing that State laws on the same topic might, or might conditionally apply, to financial corporations. Again, we respectfully submit, you cannot say that that bare statement is an aid to the understanding of some operative Commonwealth law on the topic, because once again while we have some Commonwealth law on the subject of behaviour by trading corporations, we have nothing about behaviour by financial corporations other than a bare statement that State law may not apply, or may apply if it has the following things in it.

So in relation to the Native Title Act, we submit that even if you get past the construction problems, the difficulty is that there is no substantive provision. It might be convenient again if I just indicate here how we would distinguish what seem to be the three most relevant cases. The Metal Trades case - we submit there, there was clear substantive provision; there was the provision for the making of awards in settlement of industrial disputes. In the Botany case there was provision for the carrying out of Commonwealth works by a licensed person, and again the statement about the non-applicability of State law was an aid to the understanding of that regime, and as I have already mentioned in relation to O'Reilly, we submit clearly again, the Commonwealth power supported creating the corporation to enter the relevant field. Part of that power was to set the terms on which it did so, and the statement of freedom from State taxes was simply an aid to the understanding of that. So we submit that those cases are distinguishable.

We also submit that that line is an important line and not a mere matter of form, and could I just touch on the reasons for that submission, that is, why the line has to be drawn and why it is important.

First of all, in our respectful submission, section 109 preserves, or requires, the Court to perform a certain function, that is, to identify inconsistency. And if the Commonwealth can enact that laws with a specified content may apply or may not apply, then the role of the Court is supplanted. We would submit that even in cases like Botany the Court would have to decide that the relevant State law did interfere with the freedom, and in a case like O'Reilly whether the State law constituted a tax. But the Commonwealth's submissions would lead to the position that the Commonwealth could, in effect, simply specify what laws would operate with what content and that would be that.

BRENNAN J: What would you say about a federal law that said no payroll tax shall be imposed on a financial corporation?

MR DOYLE: It would depend a bit on the context, but it sounds like the sort of law which can be construed as an affirmative regime because I can see particularly with taxes it is not easy to see how else one does it. So I accept that would probably be valid. So subject-matter is relevant, as I think Your Honour said to me at the outset.

DAWSON J: But you can rephrase that by saying financial corporations shall be free of taxation - - -

MR DOYLE: Yes, you can.

DAWSON J: Whereas a prohibition, a bare prohibition, prevents inconsistency arising, because it operates - - -

MR DOYLE: That is right, and it comes in ahead and in effect says to the Court, "Do not worry about inconsistency. Match the State law up against what we say should be in it, and unless there is a match it is out, as it were". And, again, it will always depend on the context but that certainly raises the potential for excluding the Court from its constitutional role of identifying inconsistency and substitutes, if I could put it this way, a parliamentary decision for a Curial conclusion about inconsistency.

BRENNAN J: Why is it not inconsistency with the parliamentary intention of exclusivity?

MR DOYLE: Because, in our submission, there cannot be an intention of exclusivity other than in relation to some law on a topic. In other words - - -

BRENNAN J: That takes us back to our previous - - -

MR DOYLE: Yes, there could be some arguments circular. In my submission that whole notion of exclusivity or of inconsistency - could I put it this way: inconsistency is not between a declaration of inconsistency in a State law, it is inconsistency between a regime of Commonwealth law read in the light of a declaration and a State law. So it is a kind of triangular thing: you have got the declaration, you have got the Commonwealth law and then over here the State law. If you allow, as it were, the bare declaration to control it then you go straight from the declaration to the State law, which - - -

BRENNAN J: It depends which way around the triangle you move.

MR DOYLE: No doubt Dr Griffith will say it is all a circle anyway. But that is how we would put it.

BRENNAN J: That is the problem.

MR DOYLE: Yes. I was making the point why this line is important, because it could be said, "This is ridiculous, that is just a bare argument of form". But we submit there are these important principles underlying it. First of all, as I just put, the role of the Court, and we submit that when you look at Botany, O'Reilly and Metal Trades, there is still a role for the Court.

Secondly, one has to bear carefully in mind the sort of supremacy which section 109 gives, that is, supremacy for substantive regulation. Thirdly, there is the point we make in paragraph 2.26, that if the line is not drawn, the distinction between concurrent and exclusive powers begins to disappear. Because if the Commonwealth can say, in effect, when a State can legislate on a topic, it becomes difficult to see what is the distinction, because with an exclusive power the distinction is usually said to be that you ask: is the State law on the topic? And if it is then it cannot operate.

If the Commonwealth can set the terms, in our respectful submission, it seems difficult to see how one then preserves the distinction because by setting detailed terms, or by simply excluding the State law, the Commonwealth can bring about the same result as one would have with an exclusive power, except that, of course, with an exclusive power the Commonwealth does not have the ability to let the State in.

So, that distinction gets severely eroded and then the other way of putting it, and it is probably just another way, is in paragraphs 2.22 and 2.23 where we submit that, again, unless the line is drawn you are allowing the Commonwealth to determine for itself the limits of State power, rather than the court by operation of inconsistency determine the limits of the operation of State laws.

We submit that because there is the lack of substantive provision as to extinction of native title by validation of past acts by the States, that it cannot be read in aid of a substantive regime and the same applies to future acts.

Then I come on to the next proposition, bearing in mind it is a statement about the permitted operation in relation to the Racial Discrimination Act, in other words, just to remind Your Honours again as I put it, it is not intended that the Native Title Act and/or the Racial Discrimination Act operate to the exclusion of. Now, as to the Racial Discrimination Act, if it is a statement that State laws can validate something which is inconsistent with the Racial Discrimination Act, in our respectful submission, we run into the problem on which there was common ground in Metwally, that where there is directly contradictory legislation of the State and the Commonwealth, it is beyond the power of the Commonwealth to allow the State law to operate in the face of that direct contradiction. While it is difficult in this early stage of things to envisage all the past acts that may be involved, in our submission, it is clear that some of them must be things that would be directly contradictory in the relevant sense of the Racial Discrimination Act, and so, how can a covering-the-field type statement help achieve its end, because it is an attempt to say a State law may validate something which is inconsistent in the contradictory sense with the Racial Discrimination Act. So, in our submission, there is a separate problem that you run into, and as we submit, it was common ground in Metwally that that is something that cannot be done.

Therefore, in our respectful submission, you have to go yet another step, and you really have to say that these provisions are to be read in relation to the Racial Discrimination Act, not as a covering-the-field statement, but as really saying that sections 9 and 10 of the Racial Discrimination Act are amended and do not apply to invalidate, first of all, a State law validating a past act under section 19 of the Native Title Act, and secondly, a State law or something done under such a law, which is a permissible future act complying with Division 3 of the Native Title Act. To get around that problem you actually have to go beyond covering-the-field statements and treat these provisions as by declaration or by operation, but it would seem by declaration, amending the Racial Discrimination Act. Otherwise you have got that problem of authorising something that is directly inconsistent.

Now, to come back for a moment to the issue of construction, we submit this shows really how far you have to go down the route the Commonwealth would have the Court go, and that you are going way beyond the usual process of reading down. In fact you are reading it now as a, what I will loosely call, a covering-the-field type statement in relation to the Native Title Act, an amendment type statement in relation to the Racial Discrimination Act, and then in relation to Commonwealth measures, where they are relevant to the section, just as the words read, valid, invalid. In our submission that is an extraordinary exercise to undertake.

I acknowledge, of course, that section 7(2) would make it somewhat easier if there were no other obstacles to read the Native Title Act as in fact amending the Racial Discrimination Act in relation to past acts. But even so you run into the problem then that section 7(1) makes it all the more difficult to read these sections as amending the Racial Discrimination Act in relation to State future acts because whatever may be the precise meaning of that section, if it draws that distinction that, in effect, it contemplates the Racial Discrimination Act may be amended, it is clearly only in relation to past acts, not in relation to future acts.

So although I would still maintain our submission that you just cannot read the relevant sections in the manner suggested, we would submit that if section 7(2) creates a problem for that submission in relation to past acts, section 7(1) just reinforces the problem in relation to future acts. Again, with this problem of, as it were, reading the sections as an amendment pro tanto of the Racial Discrimination Act, there is once again the problem that they clearly do not seem to mean that in relation to the Commonwealth.

GAUDRON J: Can I take you back a sentence or so, Mr Solicitor? Would not giving full effect to section 7(1), on the argument you have just advanced, mean that the States could not validly extinguish native title by a future act? Would that not just simply be the consequence, nothing more?

MR DOYLE: Unless the Racial Discrimination Act is amended, yes, that may well the position.

GAUDRON J: Yes. It does not go to the invalidity of the whole provision by any means.

MR DOYLE: Well, the way we put it is that it makes the exercise, which the Commonwealth would have the Court embark upon, impossible, and so in the end one comes to the conclusion that the only way to read sections that I referred to: 11, 19, 22, 23, 26, and 28, I think it was but, in the end, you are driven back to the conclusion they cannot be reconstructed in the suggestion manner, therefore they appear to be either inoperative, that is, ineffective statements in section 109 terms or, as we would contend, they are simply invalid because they are an attempt to declare the validity of State laws.

So, the difficulties which we identify lead one to the conclusion that you cannot reconstruct the sections as the Commonwealth would have you do and, as I understand Your Honour, what Your Honour is pointing out, well that may mean that there are problems about future acts and, we submit - - -

GAUDRON J: It may only mean that.

MR DOYLE: Well, of course, it could but then that means that Your Honour is prepared - I cannot deny that is not a possible way out of the problem but, my submission is, in the end when you look at it that is not the appropriate way out, as a matter of construction. But, I would like to just think about that a bit further. My submission is that still the exercise the Commonwealth has would have you embark upon for all those reasons cannot be embarked upon.

They are our collective submissions about Question 3 to 7, and we acknowledge that the problem may seem to be one informed but, as we have submitted, underlying it are important issues of substance, and we just put the same argument in two slightly different ways. In paragraph 2.35 the way we put it is - and, we submit, it is important to think about it the other way because in the end, because there is an element of impression in this, one may approach it differently, but in 2.35 to 2.38 we really argue the point that in the end when you look at these provisions they are really laws with respect to powers of the State to legislation for extinguishment of native title but that, in the end, is the character which they seem to bear and so then they would simply fall outside Commonwealth power. Could I also, in due course, just invite Your Honours' attention to paragraph 2.17 where in the subparagraphs we just pose in the form of issues the problems which, we say, run through and through the application of this group of sections and the way in which the Commonwealth would have the Court read them.

Then I go, Your Honours, specifically to Question 3 which relates to sections 11, 19 and 20. I do not think I need to go any further, but just to make it clear when one looks at the Native Title Act, my submission is - just again revisiting those early sections - that section 10 says nothing more than this Act deals with native title or recognises it. Then 11(1) just says this Act will tell you how it can be extinguished and how only; 11(2) just tells you what you will find is one way you can do it; then in 19 you simply come to a declaration about what the State can do; and, that section 12 relevantly adds nothing because it is subject to this Act, and there are other reasons why, we would submit, section 12 is invalid and inoperative, so I simply rely upon the general submissions in relation to Question 3.

But I do want to make a separate submission about section 20(2) which is in this section, and could Your Honours turn to paragraph 2.73 of our written submissions which I just want to develop shortly. In our respectful submission, section 20(2) when you think about it is a very curious provision. Your Honours will see that is the provision that gives an entitlement to compensation for unvalidated past acts.

The point we make in paragraph 2.74 is that it follows that compensation becomes payable by the State for something done by any person under its law, because if Your Honours bear in mind it is a past act attributable to a State or territory, and if we go to section 239 we find that an act is attributable, in particular subsection (c) if done by:

any person under a law of the Commonwealth, the State or the Territory.

So it does not appear to be restricted, one would think, to State officials. It is just any person acting under a State law.

GAUDRON J: "Under" may well be different from "pursuant to" in that context.

MR DOYLE: In our respectful submission, probably not, Your Honour, and when one thinks about it, looking at the Act as a whole, it would seem the intent is that the affected title holder will get his compensation regardless of who did the thing as long as it was done under a State law. That would make sense if that was the meaning of it in the overall context of the Act, in our submission.

So we have the position that compensation is payable because you have a past act. In other words, because a law is invalid because native title existed, although granted the quantum of compensation, of course, must relate to the effect on the native title interest.

We try to spell that out then in paragraph 2.75, and reflecting on it, I would just like to amend that to express it a bit more precisely. In the first line it would be clearer if instead of the word "it", one put in "Parliament"; and in the second line after the word "invalid", you add the words "and affected native title"; then if you change the "and" to an "or"; and at the very end - and I am sorry to add all these things - after "legislation" added the words "which did not support the thing done"; and by that what I mean is it will not support the thing done because either the Racial Discrimination Act or the Native Title Act requires the State legislation to be read down so it no longer supports the thing done and now it is invalid.

So when you look at it that way, in our submission, it amounts to imposing liability on a State, first of all because Parliament has enacted a law which in some respect is invalid and affects native title - that is one basis - or because someone, not necessarily an officer of the State, has effected a native title interest in apparent reliance on State legislation which did not support the thing the person did. In our respectful submission, that is a very curious position because it is making the State liable on one view because the Parliament has enacted an invalid law, and then in the other situation because someone has done something under a law which is either invalid or read down and so does not support the act.

As we go on to say, there is no point denying the power of the Commonwealth to create rights of action and there is no point suggesting that it can only replicate the common law but, as we argue in paragraph 2.79, the unprecedented nature of the right created here is surely significant because in the end the State becomes liable because the Parliament has enacted an invalid law which had an effect on native title. In our respectful submission - and it is convenient to deal with it here but it really relates to our Melbourne Corporation argument - surely this must be something to do with Melbourne Corporation if the State is going to be made liable for the consequences of an invalid piece of legislation enacted by the Parliament.

No doubt the draftsman hesitated about imposing the liability on the Parliament and thought: the State is the thing to go for. But, in our submission - and there is an element of assertion in this - the Commonwealth cannot make the State liable in damages or compensation for the enactment of an invalid law by the Parliament of the State. That, in our respectful submission, if in principle that can be done, that is surely, we would argue, inconsistent with the independent existence of the State because the principle must be available in other situations if good here.

I am not overlooking the fact that there will be no compensation unless the invalid law has had an effect on native title, so it could be said, "Well, the real cause of action is, as it were, the effect", but, in our submission, you cannot get away from the problem just by looking to that. This amounts to imposing liability on the State for the enactment of an invalid law. Once again, it is difficult to see why - I suppose the answer to my question, "Why need there be an effect?", I suppose if there was not, then no one would be interested in claiming damages.

But of course, the damages need not be related, as it were, to the effect. What if in this situation the damages were punitive; a punishment for the enactment of the invalid law that affected native title? Our submission is there is a real problem in this subsection. We would make the same point, although in a slightly less aggrieved tone, I suppose, about the imposition of liability on the State for something that any person does acting under one of its laws. We submit again, if the Commonwealth can do that, once again, what limits are there to their ability to fix a liability on a State?

So, we make that separate submission as to section 20(2) that for those reasons it is invalid and we would submit that at bottom this is really an application of the Melbourne Corporation principle.

Next I move to questions 4 and 5, Your Honours - - -

GAUDRON J: Can I take you back again. I mean, an invalid law of itself could not affect things, could it? I am just coming back to your reformulation of the paragraph 2.75.

MR DOYLE: Well, it would seem not, Your Honour, except in a sense if the invalid - well no, probably not; an invalid law of itself could not, no, I suppose, because if you postulate it is invalid, then it has not done anything, but, in our submission, as I said, although there has to be - or was Your Honour really suggesting perhaps the section in that respect is just inoperative?

GAUDRON J: Yes. So one would really have to come to something done under a law.

MR DOYLE: Well, with respect, I am not sure, Your Honour, because, I am just trying to think through, if you now find out that a law which appeared to extinguish native title was invalid, well I suppose, yes you would really have to look to what people have done since then, because if no one has done anything and the land is still there and you can walk back tomorrow and say, "It is mine", so be it.

GAUDRON J: Yes.

MR DOYLE: Although, even then - perhaps this is just another example of things done - you might have walked off the land and said, "Well it is no longer mine" and you have gone and rented a house somewhere. Now presumably part of your compensation would be the rent you have paid meantime, because you thought you were not entitled to remain on your land. So, perhaps in the end you do have to come back to things done, but in our respectful submission, the underlying principle still is, because the invalidity of the law is an essential element of the cause of action, and it does not seem to be like the situations which, I suppose James case or other cases throughout, where someone has done something tortious because it lacked support. Anyhow, that is our submission, Your Honour.

GAUDRON J: Yes.

MR DOYLE: Questions 4 and 5, which starts at page 27, deal with sections 22, 23, 26 and 28, and I just rely on the general submissions about the general problems of reading those sections as the Commonwealth would have us read them, but I want to put some particular submissions in relation to sections 26 and 28.

First of all, in answer to the point made by Justice Toohey the other day, "Do these sections apply in any event to legislation?", we adopt the submissions of Mr Jackson on that, which were primarily based on the fact that a permissible future act includes legislation. Just two or three things we would emphasise: first of all that section 26(1) does say, "any permissible future act", and so there is an element of emphasis there, and it would have been so easy to say, other than legislation.

Secondly, and it is a very similar point, when you look at section 42(2)(b) the reference is to "an act attributable to a State or Territory", and likewise in 43(1)(a), the reference is to acts that are, "attributable to the State or Territory" and as the definition in section 239 makes clear, that also includes legislative acts. So, on two occasions the draftsman has not done the obvious thing, said "acts other than" as he could so easily have indicated.

TOOHEY J: At the same time what she has done is speak of "any permissible future act" covered by subsection(2)

MR DOYLE: Yes.

TOOHEY J: Then when you go to subsection (2) - I appreciate the breadth of the definition of "acts" but just on a first reading of subsection (2), the particular acts identified do not seem to be acts of a legislative nature.

MR DOYLE: Your Honour, particularly in relation to rights to mine, it is not uncommon in Australia for there to be legislative schemes which directly create those rights of that sort - in South Australia, Roxby Downs - so, in our respectful submission, it is not at all difficult in this area. While Your Honour is quite right, with respect, that the normal sort of thing here would not be - perhaps not normal - the usual, most common thing would not be legislation, in our submission, legislation is not uncommon in the area of mining and one would wonder whether the draftsman envisaged such a gap that by the direct creation by legislation of the relevant rights, that this important machinery could be bypassed. That is all I can add to the submissions made by Mr Jackson on the pure question of construction.

Going back to the general submissions about these questions: when one looks again and asks where the word "valid" and "invalid" are used, are they really statements about operative effect? Our submission is that in this particular subdivision, the whole scheme of it is strongly suggestive of the use of validity in the strict sense, because this is, in particular, I suppose, of all parts of it, a really tightly controlled regime for doing something. In our submission, to read it in the end as a statement about when State laws can operate in that context is really straining things, because the effect of this is that - what it appears to say is you can only do such an act, "if", and then it sets out the procedure, and unless there is no claimant or unless the expedited procedure applies, or unless you get an agreement, it goes on to say, although with no sanction, the act may not be done. That would be the result of the adverse determination. In our submission, it is particularly difficult, in that context, to read those provisions in the way the Commonwealth would have us read them.

When you think about the Commonwealth approach, it would seem what they would say is that - for instance, section 28 they would probably focus on and say, "Well, what that really means is this act is not intended to exclude the operation of a law of a State relating to a permissible future act under section 26 if the permissible future act is done after following the procedure under this division." That seems to be the sort of statement the Commonwealth envisage. Again, and I do not want to repeat the submissions that, in our submission, really is quite a valiant sort of reading down of it and, in our submission, gets back to what we would call reconstruction. The thing about it is even when you read it that way it still has so clearly the air of controlling what you may or may not do, and that is why we submit it is so difficult to undertake that task.

There is a separate point here, Your Honours, which we make in paragraph 3.28 and perhaps I can express it this way: if we assume a permissible future act which falls within section 26(2), and assume it is State legislation which authorises the grant of a mining tenement, now, on the Commonwealth approach that State legislation now is to be read down as not authorising that grant unless the right to negotiate procedure is followed. That seems to be the way the Commonwealth would have us treat the Act as operating. So it is a statement of intent and then it has that consequence on the State Act.

Now, it is one thing to read a State law down under section 109, pro tanto, to the extent of inconsistency but, in our submission, this really appears to be changing the State law, because what it says is first of all the State Act is to be read down, it is not authorising the grant unless the procedure is followed, and then, as it seems, as giving validity to an act which is done after following that procedure. In our submission, although this is somewhat elusive, that seems to really involve the Commonwealth reconstructing the operation of the State legislation. So we would submit, for that separate reason, that cannot be achieved.

Then I go, Your Honours, to Question 6 at page 36 and content to rely upon the written submissions as to the approach to those words "have effect", and as to Question 7 we adopt the Western Australian submissions. So I then come to our submissions on section 12.

I just wanted to develop the submission briefly, Your Honours, and there are four bases which I will indicate on which we would argue that section 12 is invalid. So I will indicate them briefly and then develop them. The first is that section 12 goes beyond power because the body of principles selected are not themselves confined to principles with a sufficient connection to a head of power, that it really invites the Court from time to time to select rules or from case to case, and that is the point we make in paragraph 6.3.

The second way we put it is that section 12 is bad for uncertainty, even though I am not aware of any case that says that is an independent test of validity. This is the point we make at the beginning of paragraph 6.6. Under that heading we rely in part on the point I have just made and secondly on the capacity for the common law to change.

The third way we put the submission is that section 12 is either not a law of the Commonwealth in the sense of those words in section 109 or, as we would submit perhaps more relevantly, because that would simply mean section 109 did not apply to it, that section 12 is not in the end a law for the peace, order and good government of the Commonwealth with respect to the head of power. It is simply an attempt to give the force of Commonwealth law to what is already law and, for reasons I will develop in a moment, we would argue that is not to make a law with respect to a head of power.

The fourth basis for this submission is that we are again back into the area identified by Justice Dixon in Wenn's case at page 120 that the only effect of this provision is to limit State legislative power and that it is invalid for that reason, and perhaps one could also say a Melbourne Corporation type reason.

DEANE J: If there is a problem about section 12, does it not lie more in terms of the doctrine of the separation of powers?

MR DOYLE: That I was going to put, Your Honour, as an aspect of one of those points. It is one of those things, in our submission, where in a sense, we would argue, almost intuitively you think: there is something odd about this. You can describe the problem in various ways, but we certainly agree that is an aspect of it. So coming back to the first of those, Your Honours, that is the one in paragraph 6.3, that it goes beyond power because of the range of things embraced by the common law of native title, our submission really is quite bluntly that you just do not know where the common law of native title begins and ends. If that is the body of principles described, there is no way of saying in advance that they are principles with a sufficient relationship to power.

We give an example in paragraph 6.5 of the sort of thing we have in mind, because this is an area that the Court has dealt with and had problems with in terms of limits on power. If the Commonwealth had simply enacted that the common law of Australia in respect of marriage has the force of the law of the Commonwealth, the same sort of problem would present itself. You just do not know where that ends. I have given some of the obvious instances about the problems you have knowing just where it reached. One could add perhaps: what effect would it have on State laws as to testators' family maintenance?

In our submission, in fact the nature of the common law is such that there is just no way of conveniently limiting a reference when it is by subject-matter like that. Of course, as a matter of analysis we know certain subdivisions, but in truth they are very loose. You can pick up a book on contract or a book on tort, but in truth the limits are very uncertain.

There is another example, Your Honours, of just the sort problems this could lead to in paragraph 6.16 where, we are coming at a slightly different issue or at a slightly different angle, but if the State law did limit damages for trespass to land to a maximum of $1000 you would say, "Well now, has that altered the common law of native title because a native title holder now can't get more than $1000 damages." It is just another illustration of the sort of problem which arises. Again, one could say, going back to the original example, is the contractual capacity of a married woman part of contract or part of marriage? Is the form of legal proceedings when married women had to sue in a particular way a part of the law of marriage or part of the law of procedure.

Could I just refer to one case, Your Honours, that I do not want to read from but just the discussion there,s it happens, conveniently illustrates the difficulty, as it were, of pinning the common law down. I will just give you the case in reference, it is Stock Motor Ploughs v Forsyth, [1932] HCA 40; (1932) 48 CLR 128, at 137 to 139, and there Justice Dixon - I make the point that he was in dissent, and I just refer to this because of the problem he illustrates - he was dealing there with the Commonwealth Bills of Exchange Act and the issue of whether State moratorium legislation applied to someone who was suing on a bill of exchange, and he was addressing the problem of the extent to which the Bills of Exchange Act was intended to be exclusive of State laws, and the point he was making was that when you fit the Bills of Exchange Act into the common law, it all gets a bit puzzling because, as he said with various illustrations, the common law intersects in all sorts of ways with this legislation and has all sorts of potential impacts on what you can or cannot do in relation to a bill of exchange, which led him to conclude in dissent. I think he said there was an inconsistency, but it is a very convenient illustration of the impossibility, as it were, of pinning the common law down by topic, and as he showed all sorts of other aspects of the common law that you would not for a moment call the common law of bills of exchange nevertheless intersected in all sorts of ways with this legislation.

So, our submission is that in the end this section 12 can only mean, really, that the Court has to decide instance by instance whether a particular rule, first of all is part of the common law of native title, and sometimes it would be hard to answer that question, and then secondly, whether it has a sufficient connection with the power and our submission is that that is not a way of legislating; that is not enacting laws - that is inviting the Court to choose from time to time, and, we submit, it cannot be intelligibly read down as meaning such rules as the Court later determines have a sufficient connection to power.

BRENNAN J: Mr Solicitor, the section does not say that the common law is to be a law of the Commonwealth, of course.

MR DOYLE: No.

BRENNAN J: It says merely it is to have the force of a law of the Commonwealth.

MR DOYLE: But we would submit that - - -

BRENNAN J: You would say there is no power to say so.

MR DOYLE: No, you just cannot do it - - -

BRENNAN J: That is the end of it.

MR DOYLE: - - - but you can make laws, and again, it is too sweeping to say you can never say what will be a law of the Commonwealth, because in a sense you could say the Commonwealth Places Act achieves that by applying, by force of Commonwealth law, a body of State law took place, but, in our submission, to be more specific, you cannot say what is said there; that is not making a law.

BRENNAN J: Yes.

MR DOYLE: Uncertainty argument is really, first of all, what we have already put, and then secondly, the problems from the ambulatory nature of the reference of section 12, and that is perhaps hopefully adequately developed in paragraphs 6.7 and 6.8. I acknowledge this is one of these sort of things one could say, "Where does this lead", but particularly if you look at 6.8, which is the more realistic example, a change in the common law could completely transform the operation of this Act. It could mean that things that were not past acts are now past acts and the other way around. And, in our submission, sort of throwing ourselves on the mercy of the Court here, we submit that when you think about those things, it tells you that for one reason or another, you cannot legislate that way, and that, in particular, is where we would rely upon what Your Honour Justice Deane mentioned to me, that this surely comes down to the Parliament, in a sense, bestowing legislative powers on the Court, and so it offends the separation of powers.

DEANE J: Where would invalidity of section 12, if it was the only invalid section, lead in this case? It would lead to an answer to a question - - -

MR DOYLE: A triumph by the States saying "We told you so". But probably, with respect, not much more than that, although the Commonwealth, in their submissions, seems to see section 12 as critical in some way to jurisdiction. I have to confess we do not suggest it is. So I do not want to spend too much time on it, but we do not suggest that invalidity leads anywhere in particular.

Our third point is, really, coming back to Justice Brennan's point, that this is not making law because the common law of native title, whatever it is, it is law and it is applicable in Australia. To simply say it now has the force of law of the Commonwealth is not to make law, it is an attempt to change its status but, in our submission, it is not to make law.

Our fourth ground for the invalidity, which I put briefly, is the only effect was to limit State legislative power is that in that context when you think about it, that is in the end the only effect of section 12: to limit State legislative power. The Commonwealth Places Act, for instance, is quite different in a number of respects. Because, first of all, the head of power there means that any uncertainty or the width of the law embraced simply does not matter because the Commonwealth can apply whatever law it likes to a Commonwealth place or to a Commonwealth territory. So that problem does not arise.

Secondly, there is a significant but subtle difference between the Commonwealth Places Act and section 12. That applies a composite body of law - common law and statute. It applies it by force of Commonwealth law, but it does not actually alter the status of the common law because at any moment what it will apply is the common law as it has been altered up to that time by the Parliament of the relevant State. It does not attempt in any way to insulate the common law from alteration by the State Parliament. If you want to think of it diagrammatically, it almost applies the common law in slices to things as they arise, whereas section 12 attempts from a given moment and thereafter to fix the common law as something belonging to the Commonwealth.

So we submit the Commonwealth Places Act is quite different in its operation. It applies the common law and statute law as altered from time to time by State statutes, although, as I acknowledge, its application is by force of the law of the Commonwealth.

With the Commonwealth Places Act the problems due to change in the common law do not arise, and so again it is different in that respect.

We make the further submission, which I will make relatively briefly, although it is a very fundamental one, and that is that no Parliament in this country has the power to alter the status of the common law. In our respectful submission, our legal system is underpinned by the common law and States and the Commonwealth can enact laws. We talk of those laws as altering the common law. They do not actually alter the common law. The common law is there; the statute, it is perhaps more accurate to say, displaces some part of the common law because it takes priority.

In our respectful submission, the common law is beyond alteration in the sense that no one, neither State nor Commonwealth, can change the common law from being common law to something that is not common law. That is simply an impossible exercise. The common law is the common law, and to attempt to change it is to do something that is beyond the power, as I have submitted, of either State or Parliament. It would be a pointless exercise for the State to say, "The common law is given the force of a law of the State." Not a pointless exercise from the Commonwealth because of 109 but, in our submission, you just cannot do it. If you can, then presumably it would follow that the Commonwealth could enact that, "The common law of" - and each of the placita of section 51 is given the force of the law of the Commonwealth and, again, that would be an extremely odd result. But our basic submission is that the common law in our constitutional system cannot be altered, and in fact the common law is part of the Constitution of a State that by section 106 cannot be altered.

That does not mean, of course, the Commonwealth Parliament cannot pass statutes which displace it, but in our submission, the common law is a part of the State Constitution, and an aspect of the State Constitution is that the State may alter the common law. What the Commonwealth is trying to do is turn that exactly on its head so that a State, in fact, cannot alter the common law, and if it attempts to the State statute is invalid. In our submission, when you think about the consequences of that it really is an alteration to the Constitution of the State because it means that whereas State statutes previously had the capacity to displace the common law, now the common law is given the capacity to displace State statutes. We submit that is a more fundamental reason why section 12 must fail; and again, and I do not want to labour it unduly, if it can be done here it can be done in other areas with the same effects.

Could I then come to our submissions on question 9. Our submission as to the principles which are relevant is set out at page 46 and following, and just to put our submission here in context, could I invite the Court's attention to paragraph 7.15 and 7.16 where we make the point, not intending a great degree of precision, that Western Australia's submission was in large part directed to what I have called "the quantitative aspect", namely, look at how significant an impact it is in our State bearing in mind the sort of land holdings we have and the sort of things we do.

Our submission is directed to what I have called, for better or worse, "the qualitative aspect", namely, that there are certain things about this Act which, whatever the land holding in the relevant State and that sort of thing, whatever the State may be as to them, nevertheless, this Act does things which offend the Melbourne Corporation principle.

Now, in our respectful submission, there are two basic points which have to be borne in mind when considering the application of what I will call the Melbourne Corporation principle. The first is that it is a principle which relates, we would argue, to a result or situation, that is, something which is inconsistent with the constitutional premise of the continued existence of the States. So, it is a principle which relates to, as it were, an outcome and, in our respectful submission, the various formulations in the cases are only descriptions or instances of when that occurs, they are not the principle itself. The principle is paragraph 7.3 and cases such as Queensland Electricity Commission are expressions of its application.

The second point we would want to emphasis is that the principle must be such that it strikes, as it were, before the continued existence is in fact imperilled, and so it must be legitimate to point to things and say, "Well, if that were to occur the existence of the State may be imperilled," because, unless you take that approach, of course, one has to wait until the damage is done. The other basic points we would make are simply that there is the obvious tension between the impact of Commonwealth legislation on the exercise of State powers and the principle itself, which we acknowledge, and the point we make in paragraph 7.12 that the principle can be called into play by a whole range of situations.

With that very brief discussion of the principles, could I then turn to the submissions as to the reasons why we argue that the Native Title Act offends against the principle?

First of all, as we have put in paragraph 7.19(i), the point which is to repeat submissions I advanced earlier and is just calling them in aid to this part of the argument. That is really paragraphs (i) and (ii) on pages 51 and 52. Secondly, we again call in aid here the submissions we advanced in relation to section 12 and its effect upon the lawmaking powers of the State. That is elaborated a little further in paragraph 7.31, and I will not elaborate it now.

The fourth point looks at the impact of the application of the right to negotiate regime to State legislative and executive acts and the impact of that upon the autonomy of the State. We submit as a starting point that the Commonwealth cannot directly impose a duty on a State official in that capacity by which we mean that the Commonwealth could not enact, for instance, the State minister for so and so before exercising his power to grant a mining lease, shall do this, this and this. We submit it is clear that the Commonwealth, in terms, cannot do that, although it may indirectly bring about the same result by the enactment of laws with which the State must comply.

We submit that in the end, when properly understood, the effect of the right to negotiate procedure is to say to the relevant State official - bearing in mind that he may be under a duty under State law to perform a certain act - "If you propose to do the relevant act, you must give notice, you must either establish that no native title party exists, or get agreement, or get a favourable determination, and you must not otherwise do the act".

When you bear in mind that that is law directed to a government party which purports in terms to alter the functions which he performs under State law, while it is not a positive duty, it does not say you must, because obviously he could just do nothing, our respectful submission is that this does appear to be an instance of the Commonwealth law, as it were, taking control of the performance of functions under State law. I acknowledge that that is relatively imprecise and, again, there is an element of impression in it.

But, in our respectful submission, it must be highly unusual, perhaps unprecedented, for the Commonwealth to go to that degree. Again, while acknowledging it does not say that you must do these things, because it could do nothing, it is, in effect, saying that you may not validly perform your duty under State law unless you go through these procedures established by Commonwealth law.

BRENNAN J: But is that what it says? I mean, there is only one sanction, is there not, and that is that it has no effect on native title? So he is not saying "to validly perform your duty under State law". Does this not come back to your first argument again? Namely, is the Commonwealth endeavouring to tell the States, (a) what they can legislate on; and (b) what they can do executively? Given that proposition, all else follows. The alternative proposition which will be put against you seems to me to have the same cogency in relation to executive acts as it might have in relation to legislative acts.

MR DOYLE: Yes, with respect, Your Honour, that is probably right, that in the end it is perhaps a restatement under another head of what I put before; I accept that.

DEANE J: But is not the argument against you really that it says nothing to executive acts, that what it says is, "If under the State law this is the procedure", then the procedure can effectively affect native title, or the procedure escapes the prohibition which the Act as a whole otherwise imposes?

MR DOYLE: I am not sure if it is put that way, Your Honour. In our submission, the Native Title Act does appear to speak both in terms of State laws and to the performance of acts under them.

DEANE J: That is a matter of whether you construe it as doing what you say it does and saying to a State official, "Regardless of your power under the State Act, you can act this way", or whether what it is really saying to the official is, "If acting in accordance with State legislation involves you acting this way, your act will be valid".

MR DOYLE: I accept, Your Honour, that there is a preliminary issue of construction clearly.

DEANE J: I mean the Act seems to me to be inviting complementary State legislation rather than to be saying to people, "Even though the State Act says you won't do it this way, you can do it this way and if you act in disregard of your own Act, it will be valid."

MR DOYLE: But is that so, Your Honour, in relation to the right to negotiate procedure? In what sense does that invite complementary State legislation? Granted under section 43, I think it is, the State can create an alternative regime - I take Your Honour's point, but in our submission it is hard to read - I suppose I am really repeating my earlier submission, it is difficult to read section 28 in context, as Your Honour puts it, as really a statement to the effect that if there is certain State legislation in certain terms then it is intended that it can operate concurrently with this Act. We have put our arguments as to, first of all, the construction problems; secondly, the problems of validity, even if you so construe it. But I have to acknowledge if it is read that way then this particular problem goes away. But we submit it cannot be - and perhaps I should have acknowledged more clearly, that this submission does depend upon a certain reading of the Act but if it is, then it does amount to, as I think Western Australia's submissions put it, a commandeering of State functions.

DEANE J: I was not suggesting to you that the other construction was the correct one.

MR DOYLE: No, I know, Your Honour. They are alternatives, yes.

DEANE J: I was simply suggesting that as I thought the argument against you would be put, it would be somewhat different to the argument that you were dealing with.

MR DOYLE: Yes, if the contrary construction argument succeeds, then it gets more difficult for me to put the argument that this is, in effect, an intrusion into the performance by State officials of their State duties and that it is a direction to them to do certain things at the behest of the Commonwealth as a condition of validity. But as Your Honour says, it merely then invites complementary State legislation.

The other point, Your Honours, we make is (vi) at the top of page 53 which is a somewhat similar point, and again I emphasise that with the Melbourne Corporation principle, in our submission, you do have to look at this as a whole and ask yourself what is the impact of this on the functioning of the State as an independent entity. Here we have, we would submit when you look at it in context, the procedure under which executive acts - if I could just come back to Your Honour Justice Deane's point, it would seem clear that the Commonwealth at least does envisage that State officials may carry out the various steps specified here and, of course, not rely upon complementary State legislation.

So, in our respectful submission - and much will turn, I suppose, on whether one says there is the option of complementary State legislation or whether one says, "Subject to section 43 this is the regime" - if one reads it the way we would contend, then there is again the direct subjection of a wide range, we would submit, of legislative and executive acts to Commonwealth approval. The complaint we would advance in particular is not discrimination but, again, the intrusion of Commonwealth entities and Commonwealth criteria into State processes, and the requirement that they comply with them if they are to be valid.

We submit that when one looks at the impact of that on the application of State laws that that is qualitatively, we would argue, the sort of thing which is simply inconsistent with the autonomy of a State as an entity in the federal system. The Commonwealth can lay down its laws and the State must then adjust to that but, in our respectful submission, to impose these criteria directly as conditions of validity is to offend the principle.

We would submit that there is potential for great impact here for these reasons. First of all, one simply does not know how much native title land there will be in a State. The Commonwealth could say, "Well, you prove there's a lot there". Our argument would be that the Melbourne Corporation principle is in that preventive sense and that it is sufficient to say that the impact of this is uncertain and could be very significant, that that is a relevant point to make. Then further, we would point to section 26(2)(e) and in that context just emphasise the fact that other acts can be brought under this regime. Then we would point to the width of the criteria which the Commonwealth imposes in section 39, and refer in particular to subsection (1)(vi), reference to "natural environment", and to subsection (1)(f):

any other matter that the arbitral body considers relevant.

So it is not just the control; it is the sweeping nature of the control that is imposed.

MASON CJ: Mr Solicitor, we will adjourn now but, before we do so, I wanted to ascertain how long the argument might take over the course of the next few days. For personal reasons I will be unable to sit on Monday morning, and therefore I have it in mind that we will adjourn at the end of the day to 2.15 on Monday. But I take it you have almost finished your argument?

MR DOYLE: Yes, I think I am within 10 minutes of finishing, Your Honour.

MASON CJ: Could I ask the Solicitor-General for the Commonwealth how long he estimates his argument will take?

MR GRIFFITH: Your Honour, perhaps rather than saying how long I will take, on reviewing the Commonwealth's position and also discussing the matter with the other parties yet to address the Court, I feel confident we will finish before the end of the day on Thursday, perhaps with half a day or a day to spare.

MASON CJ: Yes.

MR GRIFFITH: If we do not sit on Monday morning, Your Honour, I am still confident that we will finish on Thursday.

MASON CJ: Do you speak really on behalf of all those on that side when you say that?

MR GRIFFITH: Yes, I think so, Your Honour, yes.

MASON CJ: That includes Mr Castan and Mr Robertson?

MR GRIFFITH: Unless they make a loud noise now, yes, Your Honour.

MASON CJ: Yes, very well. We will adjourn now until 2.00 o'clock.

AT 12.58 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

MASON CJ: Mr Solicitor for South Australia.

MR DOYLE: Just coming back to two short points, the point Your Honour Justice Gaudron put to me in relation to section 20(2) is, with respect, right. There must be something done by someone, but the point perhaps I did not make clearly enough was, assume the person is not a State official, and if one asked, "How and why is the State liable?", well, of course, you can say, "Well, someone did something", but from the point of view of the State, the only thing that has been done is the enactment of an invalid law. So, even where it is done by something, even where the basis of the claim is something done by someone, unless that someone is a State official, then you are really saying the State has enacted an invalid law, someone did something under that law, so the Parliament has enacted an invalid law, someone did something under it, the State is liable. We submit that in relation to the State, that is tantamount to imposing a liability for an invalid law.

Your Honours, just very briefly on section 12: I sort of skipped through the submissions on that because, particularly apropos of what Your Honour Justice Deane said, I sense, perhaps, the fate of section 12 may not be critical, but I do just want to emphasise that when I was submitting that the common law and its status as common law is part of the Constitution of the State, I was calling in aid really section 106 there and I just want to emphasise that although the occasion may be a slightly trivial one, that is section 12, we submit that it does actually raise a very fundamental point about the position of the common law in the Constitution of the States.

Finally then, Your Honours, coming back to the Melbourne Corporation submission: as I was saying at the adjournment, we rely in the end, when you apply the principle to the range of acts caught by the Commonwealth legislation, the nature of the control exerted and the degree of intrusion into the exercise of State functions and the one point of detail I omitted to mention before lunch and want to just draw to Your Honours' attention is in apropos of that in section 42(2)(b). Just to make the point again that here we have, where it is an act attributable to the State, the Commonwealth Minister who decides whether it is in the interests of the State that the Act be overruled and, we submit, again when one is looking at this cumulatively, that really seems as an extraordinary provision that the Commonwealth Minister will decide what is in the interests of the State in relation to the act attributable to the State.

We then say, when one comes back to the Melbourne Corporation principles, that when one looks at the impact then of these provisions on the State, however much really, or however little native title land there may happen to be in the State, that this is truly, when it is assessed overall, an extraordinary intrusion on the functioning of the State - not looking at the quantitative outcome, but the sort of control which it imposes.

Your Honour Justice Deane said, does this not really contemplate a permissive regime being enacted by a State and so, as it were, I think Your Honour was implying, go ahead and do it, and what is the problem? Our submission is that it is really, in any event, an exclusion of States from this area with then a conditional, a heavily conditioned permission to come back into it, and so while, of course, if the sections are read the way Your Honour suggests they might be, the State can enact legislation and nevertheless the net result is, it is still, to put it colloquially, being backed into the very same corner, because its legislation is, in effect, equally tightly controlled and so, whether it does it under the Commonwealth legislation or whether it does it under its own regime, perhaps the only difference in the end is that now it can produce the situation in which, if it uses section 43, its minister will decide, presumably, whether a thing should be overruled on the grounds of State or territory interest. That would be under 43(2)(i). But, in the end, it finishes up having the same regime imposed upon it, and all it can say is, well, we are doing it to ourselves, but of course we have no choice anyhow. We either submit to the Commonwealth regime or we do it - - -

DEANE J: But when you say "backed in", the Commonwealth could have, of course, excluded you altogether.

MR DOYLE: That is if it had said that native title might not, yes - - -

DEANE J: Can only be extinguished by the Commonwealth procedure, so in one sense you are backed in, in the other, you are given the window of opportunity.

MR DOYLE: Yes, but our argument is - just to repeat myself - the nature and degree of control.

DEANE J: I follow you.

MR DOYLE: And, Your Honours, that is all on that aspect of the matter. Questions 10 and 11 I am content to rely upon the written submissions just making the point that, in our submission, because the head of power is not protection of native title, native title is something that can be done under the head of power, the Murphyore's reasoning does not apply. As to Question what was 14 but should be 12, as I understand it, that is not a matter now to be dealt with and so there is no need to pursue those submissions. They are our submissions if the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for the Commonwealth.

MR GRIFFITH: If the Court pleases, the Commonwealth is somewhat bemused that having done its best to answer what I thought in linear measurement was a line of documents which would probably just exceed my height if stacked vertically, that in essence the factual issues relied upon before the Court now seem to be some only of the matters of fact which were pleaded in the statement of claim in which the Commonwealth agreed to, for the purpose of this case, and so far as historical material is concerned, that the first or part of the first volume of the many volumes of supporting historical documents which, up to the time of argument, we had been dealing with as documents put forward to be answered in their entirety.

To us this case demonstrates, if I make an observation as I start, that use of written submissions in constitutional litigation of this sort are essential but it also does expose to us the possibilities of misuse or abuse. We, of necessity, have prepared materials in answer to what we saw as an ambulatory argument, running over a history of 115 years. What we have prepared can readily be adapted to the cases that seems to have been in the Court. But if native title includes rights to timber, there would seem to be a lot of trees possibly lost in the preparation of this case.

Your Honours, we have in addition to our 68 pages of written submissions which remain of the essence to our case - we do not intend in our oral submissions to go far beyond our written submissions, although we do intend to file on Monday a short written submission in answer to the 62 pages from my learned friend, the Solicitor-General from South Australia.

Most of the materials which the Commonwealth has filed are merely collations, conveniently collecting citations made in the course of our written submissions, and I will take the Court briefly to them as necessary, and only briefly also to our other filed historical material which now seems to have a reduced relevance, having regard to the reduced ambit of the argument basing historical reference essentially to matters up to the time of the Act of State, the settlement of Western Australia in June 1829.

Our submissions will remain in what we see as a logical order of our written submissions; to deal firstly, but briefly, with the factual and historical materials going to support the allegation that there was no surviving native title in Western Australia after 18 June 1829 which, of course, if that fact is true it will mean, firstly, there is nothing for our Act to attach to and, of course, there is no work to be done by the Western Australian Act, as was pointed out in argument this morning.

We will then deal with the allegation that the Native Title Act is supported neither by the races power nor the external affairs power. We say either is sufficient, but both are here made out. That is questions 10A, B and C. We will then deal with the issues together of controlling State legislative powers, the issues which have been identified as matters of construction, questions 3 to 7; then deal with question 2, the issue of whether section 223(3) is a law directed to the State of Western Australia; then question 9, "Impairment of State Functions"; we will deal shortly with question 13 - in fact, I will deal shortly with question 13 now dealing with the validity of section 53 by saying we adopt the written submissions we have already filed with reference to that matter.

Then we will deal with the issue of whether, if the Act otherwise is valid, Parliament has, as has been asserted in argument, "shot itself in the foot" by the operation of section 7. As to the corporations power, as has been indicated we are agreed that it is unnecessary to answer question 12, because as we now see it, the corporations power will not relevantly extend the operation of Subdivision B if the Act is otherwise valid supported by the races or external affairs power. If it were not so supported, we would not wish to argue that this provision could stand alone. So for that reason, our submission is, and it seems now agreed, that question 12 is unnecessary to answer.

We will then deal with the question of the validity of section 12 which we agree remains an independent issue. In our written submissions we say section 12 is a section whose significance should not be overstated, but although we are in agreement with Western Australia and South Australia that the section could be severed, on our submissions, to adopt the expression by my learned friend, Mr Jackson, "on its debut", something new, it should be accepted as a fresh young thing coming from sound constitutional stock, but we will see about that at the conclusion of our submissions.

So far as the additional questions are concerned, we do not intend to get all that involved in additional questions 1 to 4 because, again, we are in agreement with Western Australia that an affirmative answer to the earlier questions on power will carry question 4. If that is the case, it will be unnecessary to deal separately with additional questions 1 to 4.

The Court has already been treated with a summary of the Act, both in volume 1 of Western Australia's submissions and also in the oral arguments. But it may assist the Court if I did hand to the Court what we have prepared as a summary of the Native Title Act, which we feel is a useful summary to have if it sometimes becomes a little bit difficult to manoeuvre through some of the sections, particularly by reference to the picking up of definitions. So if I may hand the Court that summary - although I do not intend to take the Court through it.

Turning then to question 1, the historical issues, may we adopt by reference the short submissions which we make in our written submissions in part 2 on pages 3 to 8. Some parts of that treatment dealing with the questions of matters subsequent to settlement of Western Australia from page 6, paragraph 2.9 onwards perhaps should be somewhat separately dealt with, given that the cedenal date relied upon by my learned friend the Solicitor-General for Western Australia is the date of the Stirling proclamation in 1829.

In paragraph 2.10 may I correct the reference to Calder in the last line to page 217 rather than page 414 as stated. We do refer to an extract of Stirling's proclamations on page 5. They of course appear in the documents filed by Western Australia but, if the Court pleases, rather than going to that reference following the order of our written submissions, we would wish to make our submissions now to the Court having regard to what seems to be the altered basis of emphasis put in argument before the Court.

As it is agreed, as we understand it, that there is no challenge by the plaintiff as to Mabo [No 2], in particular the manner in which the authority of Re Southern Rhodesia was dealt with, our submission is that when one has regard to the principles of Mabo - and we have summarised them in the first paragraph of our submissions in Part 2 - it must be that the submissions made by Western Australia regarding the alleged effect of the acquisition of sovereignty must fail. Even Lord Sumner, as Your Honour Justice Brennan referred to in Mabo [No 2], commencing at the bottom of page 55, said:

For example, Lord Sumner in In re Southern Rhodesia understood the true rule as to the survival of private proprietary rights on conquest to be that "it is to be presumed, in the absence of express confiscation or of subsequent exproprietary legislation, that the conqueror has respected them and forborne to diminish or modify them".

I will not remind the Court of the manner in which the other Privy Council authorities were there dealt with and established.

Our submission is that at no point is the Western Australian material sufficient to explicitly or even implicitly demonstrate a plain intention that if there was any native title, then such native title should be extinguished. We now know the force of the common law rule. Again, it is sufficient to state what Your Honour Justice Brennan referred to at page 57 of Mabo as to that. Your Honour said at about point 3:

The preferable rule, supported by the authorities cited, is that a mere change in sovereignty does not extinguish native title to land.

It is not a presumption that is expressed, in our submission, by Your Honour by reference to a rule.

This historical material that is now referred to, limited in essence to matters occurring prior to 1829 and by reference to Western Australia only so far as the complainant is concerned cannot, we submit, be regarded as sufficiently demonstrating the necessary clear and plain intention required to sufficiently exercise the power to extinguish native title. Of course, as we have noted in our written submissions, Stirling's instructions include a direction to protect the Aborigines in their free enjoyment of their possessions, and we do in our Appendix 1 make particular reference to this part of the instructions, and I will take Your Honours to it shortly.

It is our submission in the events which happened in Western Australia there was parcel by parcel dispossession and that is certainly, in our submission, insufficient to establish the principle of determination of native title which is sought here to be made out.

The fact that there was a parcel by parcel appropriation, in our submission, does go to confirm what does seem to be sufficiently established by the materials up to 1829, that there was certainly no intention for the complete beneficial ownership of the entire land area of Western Australia to pass to the Crown to the exclusion of the proprietary rights of the native occupants. On the Western Australian's own factual material put before the Court, some 160 years later, it may well be that the native occupants are still the only persons in possession of much of its area.

We have been taken to original instructions in the materials relied upon by my learned friend, Mr Parker, showing that the State was to be surveyed county by county, township by township over its entire area. But the Court has not been told whether the substantially unsettled areas of the States, which in the Western Australia's short summary volume, "Land and Resources Administration and Use" at page 10, indicates that the area of Western Australia still - vacant Crown land is some 35 per cent - one of these pie charts that Your Honours have been taken to by my learned friend, Mr Jackson - is, itself, subject to the surveys and appropriation and, in our submission, the Court may conclude that it has not been.

Of course, contemplated surveys in no way establish immediate, complete and absolute dispossession and termination of native title. This is the ordinary process of parcel by parcel grant and extinguishment. It is the ordinary process which occurred in the other colonies and, in our submission, there is nothing whatsoever particular in the evidence, including that not relied upon but filed on behalf of Western Australia, that what happened in Western Australia was, we submit for Australia and perhaps through other British colonies, the unique result of complete dispossession from the moment of assumption of sovereignty, from the moment of the original act of State.

In our submission, to make the argument that there was such complete assumption of beneficial owners is an untenable submission to make consistently with the Court's decision in Mabo [No 2]. So the unstated premise, we would submit, of Western Australia's argument of the Court is, in effect, to invite the Court to reconsider at least to the extent to water down the clear statements of principle which we have summarised in the first paragraph of part 2 of our submissions in which Your Honour Justice Brennan summarised in your judgment as being relevant, applicable principle to the colonies of Australia.

In the terms of document 35, which we have included in Appendix 1 to paragraphs 2.1 to 2.17 of our documents - this appears at page 98 to 99 of that document - the essence of the argument made by my learned friends and learned friend, the Solicitor-General for Western Australia, we submit is - and this is a document by reference to Governor FitzRoy writing to Earl Grey in 1847, dealing with the situation in New South Wales - - -

DEANE J: What volume was this, Mr Solicitor?

MR GRIFFITH: I am sorry, Your Honour, this is the volume called Appendix 1 to paragraphs 2.1 to 2.17.

DEANE J: This is the Commonwealth?

MR GRIFFITH: The Commonwealth's volume, yes, Your Honour. I should indicate to Your Honours that this is the Commonwealth's principal volume on historical materials and, by and large, my references will be to this document save where I indicate otherwise when dealing with the historical material.

BRENNAN J: It is accepted as Western Australia's documents are accepted, is that so?

MR GRIFFITH: Your Honour, in fact the primary sources are attached in two separate volumes, called part 1 documents 1 to 42, and part 2 documents 43 and following, so that the extracts in this document, Your Honour, so far as they are extracts of documents, are merely conveniently extracted from the primary sources which the Court has.

BRENNAN J: I understand that the proof is not challenged but the question is, if there should be any findings of fact to be made, are the findings of fact to be made equally from this document and from Western Australia's document, and are they to be biding on all parties to this litigation?

MR GRIFFITH: Your Honour, there are two issues: one was the matters of fact as to the circumstances of the geography, economy, development and administration of Western Australia, and they have been agreed as pleaded for the purpose of the case. Your Honour, the other aspect is historical documents which, as we understand it, the parties have put before the Court as historical documents, so that there is no dispute, certainly on our part and, we understand, not from the other parties either that these are merely historical documents which can be read according to their terms as being historical documents.

So that, Your Honours, to whether or not something that Governor FitzRoy said to Lord Grey is true or not, we do not really seek to establish that; we just say it is an historical contemporaneous document. But Your Honour, unless there is demurrer, and we will let you know, we would understand that these historical documents, the volumes of Western Australia and our summary document with extracts which extracts documents by their terms exactly from the original which is photostated in the supporting two volumes is merely documents of history which Your Honours could gather from the National Library or some other source.

Both parties, Your Honours, have taken the course of extracting the relevant parts and putting them before the Court and the Court has the advantage of being able to go to the original, which is a useful thing to do. One thing which is very striking is when one reads Lord Grey's dispatches. They look like they were written by his own hand with a quill pen, and one must appreciate much more than one might have, Your Honour, the obligations of the Secretary of State for the colonies in having to, in such detail - one would expect to find candle grease even, Your Honour, on the original - write these documents.

Your Honours, even the form is interesting. One could pick that up from the typed version which my learned friend, Mr Parker, took the Court to yesterday, but in fact the original versions which are contained both in the Western Australian documents and also in our extracted two volumes are written down usually the left-hand margin, leaving one half of the page vertically free for afterthoughts and annotation. So that, it is an interesting read, so far as being a survey, Your Honours, of relevant history.

What we have done in Appendix 1 to explain its function - and this document is a useful example of the reference - we have referred to this document and we have extracted from the original, which is included in the two additional volumes, what we see as relevant paragraphs, and we hope in that way to lighten the burden of the Court in dealing with this historical material. The point of my reference was to say that, rather colourfully, Governor FitzRoy in document 35 in 1847, in writing to Earl Grey, refers to the condition of the Aborigines and at the bottom of page 98, he says:

"Another subject", he observes "deeply affecting the future condition of the Aborigines is the probability that, unless suitable reserves are immediately formed for their benefit, every area acre of their Native soil must shortly be so leased out and occupied as to leave them in a legal view no place for the sole of their feet.

In essence, as we understood it, that was the submission made by my learned friend, Mr Parker, this morning. Although his contention to the Court, as we understand it, was that from the moment of the proclamation in 1829 there was no continuing legal entitlement to be in occupation, that as parcel by parcel, county by county, township by township, areas of 100 square miles were alienated, so the Aboriginals would have to move the soles of their feet out, until eventually if the intendment of the original instructions were complete, they would either be crossing the Sandy Desert to South Australia or New South Wales, or walking into the sea. That seems to be the essence of the argument so far as both legal and also factual entitlement is concerned.

We feel it is unnecessary for us to remind the Court of the statements of various of Your Honous as to the manner in which the common law, as presently articulated, could contemplate that as being taken to be the legal consequence of an act such as the very act of settlement and proclamation which is relied upon here. But our submission as to this material is that what is wanting is the requisite expression of intention to displace native title. We submit it is not in the documents referred to by Western Australia, but we also seek to take an active position.

The function of our appendix 1 is to show, not merely by reference to the documents cited by Western Australia, and also by reference to further Western Australian documents which we referred to, but also briefly by reference to matters of colonial history, and particularly by reference to history of the settlement of New South Wales and the other Australian colonies, that such a submission and exhumation of difference as to Western Australia is not the situation which in fact obtained historically.

So that our position is that there is a continuity to which the result in Western Australia in the history of colonial settlement, arising from activities of the government of the United Kingdom, falls quite consistently - not uniquely and separately different, and particularly a difference which would, if correct, perpetuate, as my learned friend Mr Parker seemed to concede in his submissions, using the expression "unfortunately" at one stage. With such "unfortunate" effects on the continuation of not merely legal rights of the native inhabitants, but as was made clear by the submissions, also their factual rights to retain physical possession of any part of what, admittedly, previously was their territory.

McHUGH J: It does seem a little odd that native title could be extinguished by the grant of a particular lot but that it was not extinguished by an anterior announcement of an intention to grant lots.

MR GRIFFITH: Your Honour regards that as strange?

McHUGH J: Yes.

MR GRIFFITH: Your Honour, that perhaps could be a view which could be entertained but, in our submission, it is a matter which this Court has already passed upon.

McHUGH J: No, I do not think it has, Mr Solicitor. As I understand the argument, Mabo is accepted, and with sovereignty, native title is retained but, as I understand the argument for Western Australia, at the moment of the proclamation having regard to the intention of the Crown, it disappeared.

MR GRIFFITH: Our submission is that it is no different from the occupation of any other colony in Australia. The historical fact is that it proceeded in the same way starting where you land and working outwards, which is exactly what occurred in the other colonies. We submit that there is no relevant difference in legal operation. As Your Honour will see in our submissions, we also say the fact that it can be said that there was one influence more strong in Western Australia rather than other, in essence, it makes no difference to, in effect, the illegal history.

McHUGH J: Except there is a lot of material which indicates that certainly in the early years there was no intention to dispossess the Aborigines. But 40 years later attitudes seem to have changed, at least in the colony.

MR GRIFFITH: Your Honour, our material shows that that is really exactly what happened in New South Wales as well, that one sees 30 or 40 years later governors saying "It's a pity that we've let this go; we must do something about it." We see reports such as the 1837 report to which I will take the Court indicating regret of a failure to act in a way which it was intended to act but which has not been carried out. In our submission, Your Honour, the failure to live up to, in effect, the discharge of what we say is the duty of recognition of native title - - -

McHUGH J: The only point I am putting to you is that if an intention on the Crown is sufficient to extinguish native title, why does it have to be manifested exclusively by a grant of a particular lot?

MR GRIFFITH I should make it clear that it is not our submission that it can be manifested only by the grant. It could be manifested by a legislative Act in the same form of the Western Australian Act passed last year, passed by a legislative council in 1860. In our submission, that could have the same effect.

McHUGH J: Why could it not be extinguished by an invitation for settlers to come and pick out their lots?

MR GRIFFITH: Because nothing has happened, Your Honour. It is not a question of determination. At that stage there is a mere potential, in our submission, for determination.

McHUGH J: ..... to indicate then that the critical point is not the Crown's intent but acts which are inconsistent with native title. Until possession is taken of the land by the grantee, nothing happens.

MR GRIFFITH: Your Honour, I hope we are not adding to the great catch-22 circle which was mentioned in argument yesterday, the question of which comes first, whether one is looking for a clear intention to displace something which one might take it, looking back now wise with the Court's decision, to be a principle of which those who were actually involved in the time were not particularly aware, to require a statement of direct and obvious intention to displace what is now accepted as the surviving right of the native title owners in the case of settlement by the circumstances of the Australian colonies as much as settlement by conquest.

Your Honour, I suppose in essence it is for the Court to fix the guideposts in this matter. At the moment the guideposts have been fixed by Mabo [No 2]. No party before the Court has sought to challenge that and its authority is accepted for the purposes of this litigation, as we understand it. Within that authority, Your Honour, our submission is that the relevant principle is clear. One must look to more than just the ordinary facts of settlement which exist in the Australian colonies. We go further in our submissions, Your Honours, and make a positive case that in essence the facts in Western Australia do not have a relevant difference. Inasmuch as they might be seen to have a relevant difference after perusal of that material, our submission would be that it is not a difference in operation which has the effect of reversing what is the normal position expressed by the majority of this Court as being a rule which applies in the circumstances of - - -

McHUGH J: But it is of some importance to particularise it. In Mabo you were dealing with people who had specific lots of land, buildings on them; in Africa you have got huts; even in the United States I suppose you had the wigwam. But this is a different situation. If Stirling got his 100,000 acres, was that grant itself sufficient to extinguish native title if he never go near the land?

MR GRIFFITH: Your Honour, consistently with Mabo [No 2], the grant of the land, equivalent of fee simple, must have been sufficient. The Court have held that.

TOOHEY J: I am not clear to what the extent the Court is now being called upon to give guidance if in fact Question 1(a) now stops short of (i). The question could be answered yes or no. If it was answered no, that title was not extinguished by the establishment of Western Australia as a colony, is that the end of the matter?

MR GRIFFITH: Your Honour, we submit it is because my learned friend's concession was that if it was not extinguished then, it was not completely extinguished at any time thereafter up to the - - -

TOOHEY J: Yes, but I am not clear as to the status of Question 1(a) and that question ultimately has to be directed at the Solicitor-General for Western Australia. But are (ii) to (vii) still part of Question 1(a)?

MR GRIFFITH: Your Honour, our submission is that having regard to the manner in which it is argued, if the answer to Question (a)(i) is yes, then all the others are yes because that is including everything .....If the answer to (a)(i) is no, then his concession is all the others are no. His concession could mean nothing else.

TOOHEY J: That is what I would understand the position.

MR GRIFFITH: Otherwise we have not had a concession about anything, Your Honour.

TOOHEY J: It just may need clarification before the case finishes.

MR GRIFFITH: What we understood, Your Honour, there was brief reference to the consequent history to deal with some problem areas such as the reservation issue and other brief references intended to confirm that the answer to 1(a)(i) was yes, and that was its only purpose. We would refer to matters subsequent to 1829 for the purpose of saying that when one looks at what happened subsequently, it confirms that the answer to 1(a)(i) must be no because what happened was merely the recurrence of the same piece by piece alienation which occurred in the other colonies but, Your Honour, that is our understanding of the effect of the submission, that it does not remain open to have a contrary answer to anything after (i).

In paragraph 2.7 of our submissions we make the point that any assumption by imperial, colonial or State officials that there were indigenous inhabitants or that they had no native title rights, is irrelevant. But, as I mentioned, our analysis does go further to look at primary sources to show that from its inception the Crown did recognise rights of Aboriginal people in the course of settlement of Western Australia, as it did in the course of the settlement of the other colonies and we refer in the extract to page 5, from Captain Stirling's proclamation of 18 June 1929, to see such a reference there itself.

The Western Australian submissions rely on the fact that alienation has occurred in Western Australia in a particularly uniquely low proportion of the State's area; compared to, say, Victoria. It seems everything is alienated almost by fee simple. And Western Australia has emphasised that a considerable portion of its lands have not been alienated and appropriated by the Crown. You also would have the pie charts that I referred the Court to, referring to percentage which is subject to pastoral lease.

It is our submission that this case does not call upon the Court to consider issues as to pastoral lease as a discrete issue. The written submissions of Western Australia refer to the possibility that a larger part of Western Australia will be subject to the uncertain operation of claims in respect of native title if pastoral leases are subject to native title. But, as the Court will see in our submissions, the Commonwealth submissions do concede that if there is a pastoral lease in those circumstances the native title comes to an end. But our submissions, of course, are that the existing provisions in lease confirming the right of entry of native people for their customary activities is a confirmation of pre-existing recognition of the rights of Aboriginal people subject to that alienation.

Your Honours, we do submit that it is not necessary and, indeed, inappropriate for this case to be dealt with as being the case to determine whether or not, in the circumstances of pastoral leases, there is determination of native title. It is not an issue which is before the Court to be answered by any of the questions which have been stated by His Honour the Chief Justice, in our submission.

When one looks at the facts which are asserted that a substantial proportion of the Western Australian lands have not been alienated and appropriated, even to the point of view of pastoral lease use, that there are substantial portions of Western Australia that are vacant Crown land, in our submission, that does militate against a submission that on the settlement of Western Australia some 160 years ago all native title was determined.

So that in as much as Western Australia has, in the course of submission, made particular reference to the size and area and peculiar land usage position there, we submit that it is far from supporting its submissions; it has the opposite effect.

Could I take the Court then to our document, Appendix 1. We summarise in the index page the structure of this document. In Part A we make specific submissions on the events and matters specified by Western Australia. This is somewhat more extensive now than is required because our submissions deal in pages up to page 62, with the 94 documents up to the Pearling Act 1990, which were relied upon by Western Australia in its pleading and in the written materials which were delivered to us. It now seems, in essence, that the documents relied upon are those dated up to 1829 or shortly thereafter. It may assist the Court if I hand to the Court a short summary which gives the number of document by reference to the Western Australian reference and our page reference to this volume is where we discuss that document. It is not a particularly useful index because as it turns out each document number almost coincides with the page number with which we deal with it.

The function of Part A is to apply the principles of our general submissions, which we make in Part 2 of our filed submissions, to each of the documents specified by Western Australia in Annexure A to its Statement of Claim, and we cite by reference to those documents, in our discussion, both the authorities which we refer to in our filed submissions, under Part 2, and also additional authorities. In Part B of this document, we note events and matters which we submit demonstrate that all native title has not been extinguished throughout Western Australia; necessarily this discussion will be adapted, given the limitation on the temporal reach now of Western Australia's argument. It does that by reference to division into three relevant parts. Our general submission, of course, is that the acquisition of sovereignty over and settlement of Western Australia, followed the same pattern as occurred with other British colonies and, particularly, the settlement of New South Wales.

After a general introduction in Part B we include briefly, and some of these citations have already been referred to by the Court in argument, to five documents by way of reference to British colonial settlement outside of Australia. In section B2 there is a considerable citation of some 36 documents by reference to the settlement of New South Wales directed to show that there was a similar course of development in New South Wales and, of course, this is established by Governor Stirling's instructions themselves because they specifically pick up by reference, within the same terms, instructions previously given to successive governors of New South Wales prior to 1829.

We then in section B3 have some 48 further documents by reference to the position in Western Australia. Some of these documents are ones already referred to by Western Australia and some are not. What we seek in that way is to flesh out the position so far as the Western Australian history is concerned. The original documents referred to, as I mentioned, are divided into two volumes. The first volume contains the original source materials for documents 1 to 42, the British documents and the New South Wales documents. The second volume contains the Western Australian materials and, as I have mentioned, we also make reference to Western Australian documents separately referred to and filed by Western Australia.

In Part C, which is merely a citation of historical books and materials with respect to the history of Australia, we refer to those lists of authorities to make the point which we make on page 2 of our Appendix, namely, that we submit that the history of Western Australia as for other colonies is complex and, we say, that the historical material cited for this purpose primary sources in Part C indicate that there is both complexity and disagreement as to issues of motivation, relationship between indigenous people of Western Australia and European settlers, imperial, colonial and Commonwealth and State governments, and that many issues have not yet been the subject to historical research, so that we do make the point in the last paragraph on page 2 that it is not agreed or conceded by us and, we say, the materials referred to in Part C establish that an issue put by Western Australia as a plain matter of fact as the reasons of settlement for Western Australia are not matters merely to be established by assertion.

Of course, these issues of history are matters which are also referred to in some detail in things such as the Seaman report which is extracted as part of our second volume of materials.

I also mention to the Court in paragraph 4.33 of our submissions, we do refer to part of the explanatory memorandum which was in Parliament, supporting the establishment of the link between present disadvantages by Aboriginal peoples and their historic dispossession from their lands. This is given some prominence in the preamble to the Native Title Act by reference to the Royal Commission into Aboriginal Deaths in Custody, the Seaman Aboriginal Land Inquiry, the Woodward Aboriginal Land Rights Commission. Your Honours, so that there is a convenience of reference to that material, we have extracted in a volume headed, Selected Extracts from Reports Referred to in Explanatory Memoranda to the Native Title Act 1993, extracts from those three reports to give, in effect, the relevant content to the reference in the explanatory memorandum. I will not be taking the Court in detail in that volume but I mention it to the Court as being a - - -

MASON CJ: But in what way is it going to assist us to resolve the questions that are under consideration?

MR GRIFFITH: Your Honour, may I develop that when I deal with Part 4 because we there seek to establish a link but if I could indicate that the basis on which it is pleaded in is in our defence which we file to Part G of the statement of claim, which is included in the case stated book, and that is pleading by reference to the questions of Australia's obligation under the conventions, particularly as to special measure issues, and the Court will see what we there do, Your Honour, is refer there to materials including these materials, amongst others, and also plead in support of a particular paragraph, paragraph 13 of our defence, matters of particular economic and social disadvantage, which we say the Court may have regard to as a special measure.

I should inform the Court that although it is the case that by agreement the statement of claim in this action is before the Court and the allegations of fact therein may be treated as facts for the purpose of this case by the Court, it is the case that there was an order made by the Your Honour the Chief Justice that the defendant file a defence to Part G of the statement of claim and that is a useful reference point to spell out both the chain of argument and also the matters to which the Commonwealth refers as going to justify, if further justification be needed, that the Native Title Act may be regarded as a special measure.

Your Honour, I mentioned that somewhat out of order merely to pick up the fact that there are some extracts to the Seaman Report and Aboriginal Deaths in Custody report in the second volume of the materials extracted for the purpose of consideration of the historical materials at this stage, but further extracts for the wider purpose which I have referred to in the separate volume. Of course, our treatment of that will be related to our principal submission that these are matters for Parliament rather than the Court to inquire into.

Many of the documents which we refer the Court to, as I mentioned, are interesting historically, but they also do have, in our submission, some relevance to the assessment of the submissions made by Western Australia asserting that there is a particular and unique history in Western Australia.

If I may take the Court, for example, to the document No 4 which we refer to in Part B(1) of our submissions, page 71 of the appendix volume, there is a reference there to "secret instructions for Captain James Cook, 6 July 1776. The original of that document, by way of example of how we use the extracts, appears in our Part 1 of the historical extracted materials volume. Just taking the Court briefly to that extract at page 398 under tab 4 - Your Honours, do not seem to have a tab - but the marginal note says, "Confidence in Cook" and the instruction is -

to stop at Madeira, the Cape de Verd, or Canary Islands, to take in wine for the use of their companies.....taking care to remain there no longer than may be necessary for that purpose.

But having taken in the wine, going over to the next page 401, the instruction under the marginal note "Annexation" is:

You are also, with the consent of the natives, to take possession in the name of the King of Great Britain, of convenient situations in such countries as you may discover, that have not already been discovered or visited by any other European Power, and to distribute among the inhabitants such things as will remain as traces and testimonies of your having been there; but if you find the countries so discovered are uninhabited, you are to take possession of them for his Majesty by setting up proper marks and inscriptions as first discoverers and possessors.

So very much even in Cook's instructions when he was heading off into an uncertain southern hemisphere, there was a British Government instruction requiring by its terms consent of the natives to any act of taking possession.

The previous document which is extracted on page 70 of our Appendix volume, already referred to in passing by Justice McHugh, where instructions from George III to Governor James Murray in Quebec, there is an injunction one sees at the foot of page 70, and it is sufficient for me to take the Court to this extract, stating by reference to Proclamation of 1763:

We have by Our Proclamation.....strictly forbid, on pain of Our Displeasure, all Our Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the lands reserved to the several Nations of Indians -

And one can see similar restrictions on the documents extracted on page 69, the instructions from Earl Egremont, Secretary of State, and secondly, the proclamation of 1763 by reference to the Indian Nations, where the terms are, we are dealing with the:

several Nations or Tribes of Indians, with whom We are connected, and who live under our Protection -

they say:

should not be molested or disturbed in the possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds -

We also refer briefly to the 1837 report of the Select Committee on Aborigines (British Settlements), which I have already made passing reference to. That extract appears on page 71, but the particular part we refer to is on the top of page 73, and I remind the Court these are extracted words from the document itself, the document appearing as in order in Part 1 of the larger volume of the source materials:

'It might be presumed 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. Europeans have entered their borders uninvited, and, when there, have not only acted as if they were undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country...If they have been found upon their own property, they have been treated as thieves and robbers. They are driven back into the interior as if they were dogs or kangaroos.'

And then there is particular reference on page 74 to the Australian colonies and a note in the last paragraph extracted at page 74 as to:

duties of Protectors of Natives in New Holland: 'Especially they should claim for the maintenance of the Aborigines such lands as may be necessary for their support......To require from the ignorant hordes of savages living in Eastern or Western Australia the observance of our laws would be absurd, and to punish their non-observance of them by severe penalties would be palpably unjust.'

And, by way of comment, we make the comment of page 75 of our extract.

If I could turn for the moment to Part A of our extract, which appears on page 3 and following. As is seen by the example dealing with documents 1, 2, 3 and 4, of which documents 1 and 2 were referred to by my learned friend, Mr Parker, in his submissions to the Court, our submissions are made by reference to the terms of the document and we combine that with appropriate reference to authorities. Our comments in dealing document by document are sometimes necessarily repetitious, but in essence by reference to the documents and I confine myself to those which are now relied upon by Western Australia in the case that it puts before its Court - really reflect general propositions so far as the Commonwealth is concerned.

Firstly, that we submit that it is not necessary that the native title rights be expressly recognised or preserved by the Crown for such rights to survive the Crown's acquisition of sovereignty. We secondly submit that these documents, as have been referred to and relied upon, do not negate or reverse the assumption of common law, that the Crown intends the native title rights of indigenous inhabitants to be fully respected.

Thirdly, our comments which are made by way of submission here are that the exercise of sovereign power to extinguish native title must reveal, we submit, a clear and plain intention to do so when the action is to be taken by the legislature, or where the action is to be taken by the executive. We submit that many of these documents referred to are consistent only with the acquisition of sovereignty by radical title by the Crown and not with the demonstration of acquisition of full beneficial ownership of all the land in Western Australia. We say further that these documents referred to are not inconsistent with the continuing existence of native title.

Of course, particular documents do constitute a determination of native title. For the most part they are documents not now relied upon by Western Australia. These documents, we submit, only operate in respect of parcel by parcel alienation and do not demonstrate what we submit is the requisite clear and plain intention by the Crown to extinguish native title over all wastelands of the Crown. So that all the land with respect to which beneficial title is held has had native title extinguished completely and utterly as from 1829, which is the submission now made to the Court.

There are further, we submit, many occasions - and this, of course, follows by reference to the later history after 1829 - when there is specific and sufficiently implicit recognition of some native title rights. Indeed, matters which could be regarded as consistent with Captain Cook's secret instruction, certainly consistent with the settlement of other colonies including New South Wales and also consistent, we submit, with Governor Stirling's instructions.

Unless the Court desires us to do so, we do not intend to got through our comments document by document. I have given the Court the table of citation of the documents by reference to the numbers both in the Western Australia's submissions and also the identical numbering used by us by reference to those documents and our comments on them, and our submissions appear at the relevant pages up to certainly document 19, the Letters Patent and Commission of Instructions to Captain Stirling, which commences the summary as to that commences on page 19 of our submissions.

Given the limitation on the ambit of particular reference to the documents, it would seem that the most relevant part of our document by document refutation appears in the pages from page 3 to page 22. That does not mean that our comments on subsequent documents are not relevant because my learned friend has made some passing submissions of subsequent history as confirmatory of what he has submitted as the legal consequence of the act of State of settlement itself. We would submit to the Court that our comments and refutations are sufficiently exhaustive and we desire them to stand and be read by themselves.

However, may I make particular reference to the reference to "possession" in Governor Stirling's instructions. This is a matter which we discuss on page 21 and 22 of our submissions. The particular paragraph is paragraph - by reference to this - is picked up from the Western Australian submission's paragraph E36(d) and it is also a matter which we refer to in our filed submissions, but the instruction was:

especially take care to protect the aboriginal inhabitants of WA in their persons and in the free enjoyment of their possessions.

Western Australia has submitted in paragraph E36(d) in the context "possessions" could not have meant rights and land, and in paragraph E42(c) contrasts the instructions given to Stirling with those given to Captain Phillip in relation to New South Wales. Captain Phillip's instructions are contained in Part B document 8 where there the terms were Aboriginal inhabitants were not to be subjected to:

any unnecessary interruption in the exercise of their several occupations.

The Commonwealth submits that there is no reason why "possessions" should be given a restricted interpretation that excludes native title rights and interests of the Aboriginal inhabitants of Western Australia. We submit it could not have been the royal intention to exclude those rights and interests from the application of the instructions given to Stirling to take special care to protect the Aboriginal inhabitants and their persons and to prevent violence and injustice against them. In its context, we submit, that possessions has at least the equivalent meaning to occupations, as used in the instructions to Captain Phillip and, we say, that that clearly includes land.

If we may make some contemporary reference in page 21 of our instructions, we extract from Cowell's 1607 dictionary a meaning, 1794 Dyche, Thomas and Pardon's dictionary, 1909 Oxford English Dictionary, and also a reference to the Second Edition of the Oxford English Dictionary on page 22; contemporary definitions which make it clear that such a meaning is a natural meaning to the term.

So that we submit that there was far from a contrary intention, there was a specific reference by the use of the term "possessions" to protection of Aboriginal interests and land. Of course the fact that this instruction was not complied with in the letter in the spirit, we submit, is beside the point so far as legal effect is concerned.

Having taken the Court to this volume of analysis, it is our submission that there is, within the context of our detailed analysis, sufficient material before the Court, not only to refute the principal argument put by Western Australia as to the effect that is asserted of the act of State settlement of Western Australia, but also to establish, and certainly very much consistently with the analysis of a majority of this Court in the Mabo [No 2] decision, that there was in Western Australia as much for the other colonies of Australia a failure to take any act which could be construed to manifest the necessary and requisite intention to exclude the continued existence of native title, which the decision of this Court undoubtedly would establish existed at the time of such settlement.

That being the case, of course, the necessity of the Western Australian submission is to demonstrate that native title has been completely excluded on that acquisition of radical title throughout the whole State. It is an "all or nothing" submission, and in our submission it being palpably clear that the "all" cannot be made out, it would follow that the Question (a)(i) must be answered "no". That being the case, as I have mentioned already in my submissions, our submission is that it would follow that the other remaining parts of Question 1(a) also must be answered "no".

Subject to again referring the Court to the detail of our submissions which we feel in a logical form are both stated in Appendix 1 and supported by the primary sources themselves, those are the submissions the Commonwealth desires to make on the historic issue.

May we turn then to the terms of the Act itself, dealing firstly with the issue raised in Part 3 of our filed submissions dealing with Question 10(a), the races power. There has been some reference of course made to Part 2 of the Act, section 10 and following, appearing on page 8 of the booklet print. Section 10 is a section that perhaps in one view could be regarded as a motherhood provision in that, absent the provision, one might say the Act would operate according to its terms in precisely the same manner.

But perhaps by way of reference, could I indicate to the Court that there is a derivation of section 10, section 35 of the Canadian Constitution Act 1982. Subsection (1) says:

The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognised and affirmed.

It is perhaps no harm that there is a reference point such as section 10.

I will have something to say about the operation of section 11(1) and (2) in due course, but of course the function of subsection (1) is not to provide that native title may be extinguished only under this Act. It is not a prohibitory provision of that form. The point is already made that the parts of the Act other than subsection (1) independently provide for terms of extinguishment of native title, but the point we would like to add is also the Act itself does not provide for the determination of native title. It is something which can be done independently. Our submission is that it is a question of the operation of the Act as to whether or not determination is done effectively, but certainly 11(1) is not an operative provision either providing for determination or prohibiting determination.

We emphasise that it does not provide that whatever is to be done in respect of determination may only be done under this Act. Indeed, as we make detailed submissions, particularly in answer to submissions of the learned Solicitor-General of South Australia, section 19 itself does not provide for the determination so far as State laws are concerned. It is the State laws which will provide for that determination.

Of course, it is admitted that there are interesting issues of construction arising under the Act. That is not surprising given the complication of the subject-matter necessary to be addressed by, we would say firstly, the people of Australia, but by their representatives of Parliament of Australia, in coming to grips with the recognition of the common law in respect of native title which was exposed by the decision of this Court in Mabo [No 2]. The Act, as is known - and it can be seen from its parliamentary history - is the product of that anxious consideration, we submit, by the people of Australia and their representatives to provide appropriately for the recognition of a legal situation in respect of the common law native title which was held by this Court to continue to subsist within Australia, notwithstanding a general perception within the community that hitherto such native title would not continue to exist.

Given, of course, the Court's decision is, on its face, something which affects the issue of land title throughout the continent and offshore island areas of Australia and, also, possibly - the Act covers that situation offshore - non-land parts of Australia, undersea parts of Australia, and given the fact, as it is, that land management, as a matter hitherto substantially vested in the States - State by State, Territory by Territory - it is not surprising that the legislative mechanism to provide for the statutory recognition of the native title as enunciated by this Court is affected by legislation which is somewhat complicated in its operation, and even somewhat difficult in its construction in providing appropriately for a balance of recognition of the native title, recognition for mechanisms for how past purported appropriations of native title might be dealt with, and recognition of appropriate mechanisms having regard to the competing interests involved, to provide for appropriate structure for future alienations. At the same time, to express what was the reference points of recognition and to express also an appropriate regime for compensation in circumstances where the title itself either has been validly determined or may, in the future, be provided to be validly determined.

Having regard then to the terms of the Act, our general submission is the Court, when it is invited to construe this legislation, should approach it in an open way having regard to the function of the Act, considering what is it that the Act is seeking to ensure and, in our submission, should not take a narrow or pedantic view as to adopting a particular meaning which, if adopted, will tend to frustrate what seems to be the structure of the Act rather than to carry it into effect.

May I refer the Court just briefly to what Your Honour the Chief Justice and Justice Brennan said in Richardson v Forestry Commission, 164 CLR 293. Your Honour, in there construing the relevant convention, referred to Justice Dixon in Attorney-General of Victoria v the Commonwealth - this is the Pharmaceutical Benefits case - and though I could cite Justice Dixon I prefer to cite Your Honour's citation with approval. The citation for Justice Dixon is 71 CLR 267. But Your Honours, in construing in this case section 18 of the relevant Act, said:

"In discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour. We should give to the powers conferred upon the Parliament as ample an application as the expressed intention and the recognised implications of the Constitution will allow. 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 obviously is again a "motherhood-type" statement, but in our submission, it is something to be borne in mind in considering all the issues of construction, and even to some extent power under the Act, and particularly, we would invite the Court to have this precept of Justice Dixon in mind in considering what was first put by my learned friend, Mr Jackson, in his first line of argument to the Court dealing with issues which he frankly put to the Court as issues of construction. The submissions by reference particularly to this issue of what is meant by "validity", in our submission, are not issues of power at all.

They are issues of construction, and we will invite the Court - and I will try and restrain myself from againreferring to this approach because our submissions are predicated upon it as being the appropriate approach for the Court; throughout, we submit, the difficult task of construing this legislation which we say is seeking to do something which is very difficult indeed to implement concisely and completely effectively to reflect what in essence is the - we would say we can put it as high as the social compact which has been drawn together by the Parliament, after anxious consideration in the terms of the Native Title Act.

I will not take the Court to the various supplementary parts and comments in this publication which indicate the reason why it can be put that this is, we submit, no ordinary Act of Parliament. It is a special Act arising from special circumstances created by an important decision of this Court based on assessment of appropriate morality as well as based on assessment of the clear statement of what are presently the relevant common law principles.

Turning then to the races power - I have said enough about motherhood, so I will not repeat our submissions down to paragraph 3.6 dealing with the approach by which we say the Court should consider the races power as any other power. But when one has regard to section 51(xxvi), the expression "for whom it is deemed necessary to make special laws", in our submission, is no more than a designation of those people of any race with whom the power may attach. It is a description of the race. You say, "What's the power?" "The powers with respect to the people of any race." They are defined as being a race for whom it is deemed necessary to make special laws.

So that is merely descriptive, we say, of the object. It is not a qualification to power, it is an identification of subject-matter and, of course, has has been made clear both by a majority and also a minority - - -

McHUGH J: So does your submission reject the approach of Justice Stephen in Koowarta, so far as the word "special" is concerned?

MR GRIFFITH: Yes, Your Honour, we specifically do that in paragraph 3.13 on page 12.

McHUGH J: Does that mean he writes it out of the paragraph, does it not? Because, if your submission is right, the power would be exactly the same even if "special" was not in paragraph (xxvi).

MR GRIFFITH: Your Honour, we still admit work for "special" but not for "whom it is deemed necessary". But one cannot write out everything and say if it is about a race it is open slather. We do not count out the role of the Court, but what we do say is that once it is seen that it is for the people of any race, then it is for Parliament to exercise its power by reference to the general principles that we have already referred to.

McHUGH J: Who determines whether the law is a special law? Is it Parliament, or is it this Court?

MR GRIFFITH: We say it is for Parliament to do this.

McHUGH J: That is why I was putting to you that on that reading "special" would have no real place to play. That the power would be the same if it was expressed, "The people of any race for whom it is deemed necessary to make laws"?

MR GRIFFITH: Your Honour, you still have to be able to say what Parliament has done that can be described as a "special" law. I mean, if it does not fulfil the description of being a special law it is not a special law. But it is for Parliament to decide, we say, what the specialty is. It can give it content in that - - -

McHUGH J: Well, that means Parliament can make any law about the people of any race.

MR GRIFFITH: It can make discriminatory laws in their favour and against them, yes, Your Honour, in our submission, although the Court need not decide this again in this case.

McHUGH J: What part does "special" play?

MR GRIFFITH: Your Honour, not very much. Your Honours, I suppose it really does depends what one means by special in that we had to get involved with special for the purpose of an alternative argument in connection with the external affairs power which we will come to.

McHUGH J: I will not hold you, I do not think it affects this particular case.

MR GRIFFITH: Your Honour, in essence, we submit what special here means is that it provides for a deferential term of operation. If it applies to everyone generally, well then it is not special.

McHUGH J: So, there is no need for it to be based on the special needs or a special threat or problem which is posed to the people of a particular race?

MR GRIFFITH: Well, particularly not, we would submit, Your Honour, because if that were the case it would be the Court who would be deciding what was special rather than the Parliament and, Your Honour, one thing is clear, the founding fathers intended, although having listened to Justice Scalia on this last Thursday, I give myself declining importance to these issues. It was clear, Your Honour, that the races power was there principally to enable legislation to be made discriminatory against a race. Now, whether or not that is how it should be completely read, it is quite clear that that is the meaning of those terms from the point of view of what did they mean in the Constitution either before or after the - - -

McHUGH J: This is one occasion you do not want us to read it in a Cole v Whitfield sense as to what was intended by the framers,is it?

MR GRIFFITH: No, Your Honour, I am hoping to get through my submissions without talking about either the intention of the framers or too much about the intention of Parliament in this matter because we feel that it is clear enough without seeking the imponderable. Your Honour, it is well known that this Court has not yet determined the issue of whether or not one can have, nowadays, a discriminatory against law under this power, but our submission will be, if it is necessary to determine that, that it is quite plain, Your Honour, that its original and continuous meaning and a meaning of which is not affected either by the 1967 amendment or, we would submit, affected by the adoption and adhesion by Australia of foreign conventions which may do a lot of things, Your Honour, but they cannot, in our views, affect the meaning of words of the Constitution.

It might be, though, Your Honour, the fact that we can make that submission give some force to the resistance we make to Your Honour's suggestion, which I can perhaps loosely translate to saying, if you are right, it really deals the Court out of the issue. Once you have a deferential law it is for Parliament to deem it necessary and, we say, that is plain meaning of the Constitution, we refer back to Quick and Garran to establish it has always been its meaning too, to indicate that the races power is a very wide power indeed, and if that is implicit in our submissions, that is because, in our submission, that is the plain meaning of the races power. It is a power that has not been used very much; it is a power which one would expect and, we would say, confidently not to be used nowadays ever in a discriminatory against manner. That is why we do not have any decisions on it, we would suppose, because that is not the sort of thing that Parliaments do, and it is a power to be exercised now, one would expect, by the Parliament having regard to the obligations of conventions establishing a regime against discrimination as regarded in international law and as regarded in municipal law by reference to race, that one would expect any law passed by reference of races power would be a reasonable and an appropriate law .b

But at the end of the day, Your Honour, we say that is for Parliament to construe rather than for this Court to, as it were, second-guess either by reference to the narrowing of meaning that Justice Stephen referred to in Koowarta or by reference to some other expression of requirement of purposive connection. In one word, Your Honour, we take the strong view on this power and, of course, in the connection with this case if the Act is supported by the races power subject to section 7 we would say, "That's that for power," it does not have to be supported by the external affairs power as well, subject to section 7.

We make the point in paragraph 3.8 that the effect of the amendment is to make it clear, of course, that Aboriginal people either collectively or sub-groups, are included within the races power and in our reference to Quick and Garran can I refer the Court to pages 11 to 14 to our volume of additional materials. Next time, Your Honours, we will use different colours.

If I may, seeing this is my first reference to additional materials, take the Court to the index of our volume headed Additional Materials Referred to in Written Submissions. This is one of the documents I referred to which is furnished to the Court merely as an aid rather than as an increase to the heavy burden of material which the Court already has. And, what we have done is that we have extracted in three groups particular materials which - some would not take much ferreting out, some might, but just so the Court conveniently has them - we refer to in our filed submissions, and so we refer firstly to those we are now dealing under Part 3.

Under Part 4 we have other citations and then we have two brief citations under Part 10, but that is dealing with section 53 and I will probably leave the Court to its own devices on that when I come to that, but perhaps the Court can keep it in the back of its mind and I will attempt to give the page citations as I go through to material which is in this volume. So, for example, in paragraph 3.8, the extract appears on pages 11 to 14. So, what we next make of our submissions is to when it is we have a special law, and we refer to the fact that six of the Court, we say, in Tasmanian Dams regarded as the law falling within that when it conferred special rights on members of a race or imposed special duties on other persons dealing with that race; and that seems an obvious enough meaning, but it has the authority of the Court. And, the majority in the Tasmanian Dams, as we say in paragraph 3.10, accepted that:

a law of general application which operated to protect the cultural heritage of Aboriginal people -

also was within the races power, and the Court will remember that this was not a unanimous view; there was a difference that to some court, the generality destroyed the specialty, but the fact that that was the point of difference, in our submission, establishes that that is the reference point for the meaning of "special". Are you making particular provision either granting special rights, imposing special duties, dealing with something of sufficient substance, and of course it does not have to be confined to matters of physical substance; it can deal with matters of cultural and social heritage and the like.

So we would accept what Your Honour Justice Deane says, we have extracted in paragraph 3.10 in the Tasmanian Dam case, that:

".....as a matter of substance, a special law which protects the persons or the property or the activities of Aboriginal people is...a law with respect to the people of the Aboriginal race."

So the function of the Court is to say, does it have that aspect of specialty? If it does, in our submission, then it falls within the description.

McHUGH J: In the Conventions "special" was used in the sense of applying only to the race and not to the general community.

MR GRIFFITH: Your Honour, could I avoid any reference to the Conventions under this head of power because we only refer to them in connection with the external affairs argument, and even then it is at our second layer of argument and, perhaps if I make the point again, we submit, Your Honour, whatever "special" means in placitum (xxvi), it does not derive its meaning from the Conventions. Your Honour, can I say that I am willing to answer your question in that context, or answer it now if you want it early.

Paragraph 3.11 makes a point by reference to the Tasmanian Dam case. But we draw together what we say is the position for special law in paragraphs 3.12, and that we contrast with what we say is the not preferred choice given by Justice Stephen which we refer to in paragraph 3.13. Justice Stephen's approach could be regarded as a purposive approach. We say that it is a question of operation. If the Court looks at the law and, by its terms, can say that it provides, or its operation is to confer:

a benefit or imposes an obligation on the people of a race which benefit is not conferred.....or which obligation is not imposed on other people; or

confers a benefit or imposes an obligation on other people in their dealings with people of a race which benefit is not conferred or which obligation is not imposed in their dealings with people of other races -

then it can be regarded as "special". So it is special if it is different, if it has "differential terms or operations". It does not have, in our submission, an element of the Court inquiring the nature of the special difference and forming a view as to whether or not that could be regarded by a Parliament as an appropriate difference.

It is a wide power. It has not been exercised very much but, in our submission, that is no inhibition in recognising its plain meaning when the power has been exercised. Given the circumstances of the 1967 referendum and the amendment there effected, what plainer case for operation in exercise of the power of the races power could be, we submit, the passing of the Native Title Act dealing with the issues thrown up by the Court in its Mabo [No 2] decision.

We refer in paragraph 3.13, the top of page 13, with the issue in Koowarta. Can I refer the Court to the extract from Lindell's article which is included in this volume of additional material; pages 18 to 50 of the numbered pages, bottom right-hand each page, and, in particular, at page 51 where - I will go back to 50, I am sorry, Your Honours - where, at the top of the page Mr Lindell says - he refers previously to this discussion and the differences over the last few pages of an approach between some members of the Court and Justice Stephen. He seems to have a little bit of sympathy for Justice Stephen, but none the less he says:

An interesting effect of adopting the Stephen J view is that it could help to undermine quite considerably the extent to which the Parliament's opinion as to the necessity of the law enacted as an exercise of the races power is conclusive. Gibbs CJ, Wilson and Dawson JJ all emphasised that the Parliament's opinion as to the special character of the law could not be conclusive. On the view of Stephen J it would be necessary to show the objective existence of a "special need" or a "special threat" in order to show that the law was "special" in character -

and then he goes on to discuss the view of the other judges.

It is a useful discussion under the curious title of a juxtaposed discussion of the corporations and the races power together but, in our submission, the effect of adopting an approach such as that is to disregard and negate what is clearly, as we say in paragraph 3.15, the meaning of "deemed", meaning deemed by the Parliament. Your Honour Justice Dawson had no doubt about that in the Tasmanian Dam's case at page 319. I refer to the fact that this - and I think Mr Jackson submitted it as a plain fact as well, so we are agreed - is the obvious meaning of "deemed". We refer to the Federal Convention Debates but, seeing I am not so keen on submitting them at the moment, could I just give the Court the page references: the official records of the 1891 debates at pages 1 to 3 of this volume and the third session, 1898, pages 7 to 10. Those extracts make it absolutely clear what was intended, but perhaps we do not have to go to there to establish it. It seems common ground in the parties before the Court, although that does not bind the Court either.

We mention that it was the meaning put to the electors in the 1967 referendum. That appears at page 8 of this volume of materials. That is at least what the debaters thought they were - it is page 15 and following. Pages 15 to 17 is the case for and against the referendums, so there was an overwhelming vote apparently on the assumption.

So we do make our strong submission in paragraph 3.16 that there is no scope for judicial inquiry into whether it is deemed necessary. We say there is no scope for a judicial inquiry into proportionality of the law's response to the circumstances perceived by Parliament as long as it is different. We are happy to leave for another day as to whether discrimination can be adverse as well as benign and beneficial. In our submission, it may be but one would it expect it not to be a power exercised in that way.

We would submit that that is sufficient for power. It must be clear that this is a special law. Indeed, one does not even have to go to the preamble to see that.

Our alternative submission in paragraph 3.17 is that if there is to be an inquiry, which we wholly deny, it must be a very limited one; even more limited than ones we may have in respect of defence power and external affairs power. But, if it is one that can be described as whether the view taken by Parliament was reasonably open to it that a special law was needed in respect of native title for native title claimants within Australia, in our submission, the authority to establish that special need is Mabo [No 2]. One need go no further than to say there was a situation which not only was there a need but there was an absolute obligation for parliamentary response. Absent the races power, the response might have been a little more piecemeal. Also, it might not have been piecemeal because, in our submission, it would be the external affairs power that would support the parliamentary response by the Commonwealth. But with the races power, then there is a clear constitutional power which enables, we submit, all that is done in the Act to be provided for. I will deal in detail with the arguments other than arguments by reference to power which were made.

The remainder of our submissions on this point refer to the issue of characterisation of this Act. The preamble declares an intention of the Parliament the Act is to:

be a special law for the descendants of the original inhabitants of Australia.

I will take the Court further to this aspect of the preamble but in as much as this paragraph is referred to as being referable to an intention that the enactment be, and only be, an enactment referable to being a special law for the purposes of the Racial Discrimination Convention, we say clearly, in this aspect, that is not so.

Even without that recital, in our submission, the Act provides the essential characteristics of native title can only be possessed by Aboriginal people and Torres Strait Islanders. Section 223 provides that. It operates to confer a benefit on Aboriginal people and Torres Strait Islanders and we summarise in paragraph 3.21 what we say what might be regarded as the benefits for those persons of that race, or those races. I will not go through those with the Court because the Court has been sufficiently taken to those sections in total, although perhaps not in this form of subdivision but our submissions speak for themselves. We make the point in paragraph 3.22 that there may also be benefits conferred upon other persons, but that does not affect characterisation.

I am unsure whether section 201 is presently still under attack by Western Australia, but we would make the point there that they are dealing with the Aboriginal and Torres Strait Islander land fund. That must be a section squarely within power, but I think perhaps on inquiry my learned friend, Mr Jackson, will say that he is not challenging that any more. I should indicate that in any event that section is going to be repealed because there is going to be a substitute Act providing in more exhaustive terms for a fund of this sort. So, for that reason, perhaps I do not have to refer to paragraph 3.24 of our submissions.

It is only in paragraph 3.25, then we move to our fall-back position if the Justice Stephen view is right. We say that it is appropriate plainly to regard it as open to Parliament to see there was a special need for these challenged provisions and that they can be capable of being so regarded. Your Honours, I have indicated that I will deal with this issue in more detail under the external affairs power. I have also indicated that our defence to Part G which I have referred to spells out matters that we rely on with some particularity by reference to the schedule contained in that defence. So, for this part of the argument, we adopt that as establishing the special need.

That is our submission with respect to races power, if the Court pleases. We submit that it is sufficient to answer Question 10(a) as establishing the validity of the various sections, so that so far as there is any overlap which is almost complete in Question 10(b) our submission is that once valid, the provisions are valid. So that perhaps technically it is not necessary for the Court to go on and deal with the aspects, and we say secondary aspect, of support of the external affairs power for these very same provisions.

I am reminded of the argument in Horta. There were there three or four alternative arguments on the external affairs power and only one was necessary to find that the law was not invalid. In that circumstance, the Court found it unnecessary to deal with the other two or three ways in which our submissions put it. Similarly here, so that we are quite happy for the Court to decline to answer the question by reference to sections already held not invalid by reference to the races power.

I do not think the difference in a few of the sections is significant enough to be of much concern from that approach, so I suppose for that reason we should be able to be fairly short on external affairs power. But against that, there are some interesting issues of construction which arise and to some extent they do involve revisiting Gerhardy v Brown and revisiting again the terms of the Convention and, by reference to such materials, are available reworking a little bit, we would submit, the ground which was first broken up by the Court in Gerhardy.

So that, although our submission is that the Court need not dispose of all these issues, it is necessary, in the argument which has been put against us, for us to deal with the arguments based on support sought by reference to the external affairs power. For the moment though, I would like to put on one side the related issues which must be addressed in dealing with the operation of section 7. The first support, of course - and I suppose the principal one - is by reference to the Racial Discrimination Convention, which we define in paragraph 2, and for convenience I will call it that.

The point where, right at the outset, we would part company with the case being put against us is that the case put against us is that this Act may be supported, the various sections - I will just say this Act, because substantial parts of it are detailed in Question 10B - can only be supported as a special measure. We wish to make it plain that is not our primary submission; that is our fall-back submission, that we submit, and we seek to do so very directly and fairly shortly in our submissions, that the support for this Act, in our submission, is not limited to support as a special measure within the meaning of Article 1 paragraph 4. And we say that, notwithstanding the reference to that article in the preamble on page 3 of the print of the Act.

The Western Australian submissions, as we read them on paragraph J22, refer to the preamble and say that makes it clear that Parliament intended the Act to be a special measure for the purposes of paragraph 4 Article 1. Well, it may be that it did, it may be that it did not, but, in our submission, that is not to say that the effect of the terms of the Act are that only if an Act which can be otherwise supported - and we have already demonstrated it can be wholly supported by the races power - is regarded as a special measure for the purposes of paragraph 4 Article 1; it is to have effect, and only to that extent is a provision by way of operation, as a suffix to an Act otherwise in power, is a construction which we reject. It is only the preamble that is referred to by Western Australia, and I will say something about that, but I mean one thing we have in the preamble, immediately before that paragraph relied upon as indicating an intention by Parliament to confine constitutional support to paragraph 4 of Article 1 of the Racial Discrimination Convention alone, is all the preamble, which indicates certainly a very powerful social situation requiring to be duressed effectively by the Parliament, but if I may leave the Court to read the preamble and, for instance, the strong statement after reciting the decision of the High Court, and reciting Australia's adherence to the foreign conventions on page 2 of the preamble, it refers to the fact that:

The people of Australia intend:

(a) to rectify the consequences of past injustices by the special measures -

That does not mean, we say, merely a law within Article 1 paragraph 4, and also:

(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

The Parliament of Australia intends that the following law will take effect according to its terms -

I am wondering if that is not a very surprising statement of intention. By and large, what Parliament intends by its laws is that they should take effect. But here it is suggested that there is a doubt about this because of the reference in the following paragraph, that Parliament has a view that this law falls within Article 1, paragraph 4. To the obvious question: what if they are wrong about that, what is the position? Western Australia's case on this point is wholly: if they are wrong about that, the parliamentary intention expressed in this Act is that the whole Act should fail.

We would say that that would be an unnatural and unreasonable construction of those words standing alone. But they do not stand alone, they stand within the full legislative history of the Act itself in the context of dealing with the situation seriously required to be considered following this Court's decision in Mabo [No 2]. But to make it abundantly clear in the paragraph before, Parliament has answered this question itself. Question: does Parliament intend this Act to take effect according to its terms, even if it is not a law being a special measure within Article 1, paragraph 4? Answer: the Parliament of Australia says it intends that the following law will take effect according to its terms.

It also says, and will be a special law, we say, within the races power, for the descendants of the original inhabitants of Australia who have already been held by this Court to fall within the races power. They did not have to be held by this Court because that must be the case after the amendment of 1967.

So, in our submission, there is no issue here. The question is asked. The question is answered by Parliament, and that is that. Parliament does intend this Act to take effect according to its terms, and if we may ask a rhetorical question it must be an extraordinary proposition to suppose that having, through the anxious debate which is disposed by displacement if nothing else, is disclosed by the fact that the only part of Hansard cited by my learned friend, Mr Jackson, was the speech by Senator Chamarette in the Senate to give meaning to, he said, section 7 of the Native Title Act. It is established by the legislative history as being an Act which all the Parliament fully participated in. Our submission is that it would be absurd to conclude, because of the statement in the last paragraph of the preamble, that Parliament intended the whole Act should fail in the event that this Court, on reflection, took the view that the Parliament was wrong in regarding this Act as falling within Article 1 paragraph 4 of the Convention.

So, in our submission, that is sufficient to dispose of that argument that the Act stands or falls as a special measure. Having made that submission, we have already made it clear that we see support for the Act outside external affairs. So to draw it together we say that "Parliament" in the sentence:

The Parliament of Australia intends that the following law will take effect according to its terms -

and the remainder of that sentence, "intends firstly that this law will be valid if supported by the races power; secondly, it intends that it will be supported and be valid by the external affairs power", if that is necessary. I will leave on one side the corporations power which I prefer not to detain the Court with.

We say that it will be valid if it is regarded as supported by the Racial Discrimination Convention because the law is not discriminatory. We say if the law is discriminatory, which we deny, it would be valid law if it falls within being a special measure within Article 1.4 and also Article 2.1. There seems to be no relevant different matter of inquiry. But there is an issue of inquiry. Is the law itself discriminatory within Article 1.1 and Article 5? Our positive submission on that is that it is not.

The law may be supported by any one of those four steps, in our submission. It is not a law which Parliament has declared. Given - and I take the analogy of the Horta case - that there are four possible steps to support it, it is not a law to be held valid because the Court can construe its terms to indicate that Parliament has confined its power in this important subject-matter. It has hobbled itself, shot itself in both feet, is the submission, and said the whole Act stands or falls on whether or not it falls within Article 1 of paragraph 4.

If the Act is not discriminatory at all, our submission is it does not fall within Article 1, Article 4 because it does not have to be a special measure. It may be enacted pursuant to the Convention because it is an Act which is not discriminatory in the sense used by the Act and it is an Act having regard to what it does which is authorised and supported as being a direct implementation and an obligation on Australia arising from the terms of the Convention itself, in particular Articles 2 and 5.

DEANE J: It could fall within Article 1.4 and not be discrimination. In one sense, if you are simply going to approach this through the Racial Discrimination Act or the Convention, do you not really go first to Article 5, the source of legislative power?

MR GRIFFITH: We do, Your Honour, but also Article 2.

DEANE J: I realise you have got hanging over you the problems of the majority judgments in Gerhardy in terms of how one deals with this.

MR GRIFFITH: It is not a real problem, Your Honour. It is a matter of revisiting and thinking it a bit further. It might be, Your Honour, that in Gerhardy one can say the decision itself was right because section 19 was such an extreme provision.

DEANE J: The judgments are very much reflected the way the case was argued.

MR GRIFFITH: Which was not all that satisfactory, yes, Your Honour. I was there, so I am criticising myself.

DEANE J: If you approach it through Article 5 and if it comes within Article 5 obligations, it will be an unexpected result if doing what Article 5 requires, in a context such as this, constitutes discrimination for the purposes of the Convention.

MR GRIFFITH: Your Honour, we would entirely agree, but we would also approach through Article 2.1 to get to the same point. It is a curious Convention, Your Honour, because, as it were, special measures are dealt with twice, Article 1.4 and Article 2.2. But, Your Honour, we do accept, and it was referred to by my friend, Mr Jackson, that under Article 5, particularly the rights, (d)(v) and (d)(vi) - - -

DEANE J: I had more in mind the introductory words.

MR GRIFFITH: Yes, I should add that as well, Your Honour, yes. Can I go to introductory words of the definition of "racial discrimination" in Article 1.1 because that really is the starting point, in our submission. "Racial discrimination" is defined as meaning:

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin 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 Honours, what we say is what the Act does, far from being an act of racial discrimination which may, notwithstanding its discriminatory contrary to that definition in Article 1.1, none the less be provided as a special measure under Article 1.4 or as a special and concrete measure under Article 2.2, is a matter where, we submit, that what is dealt with here is a matter of racial discrimination itself which is being rectified by the Native Title Act, not perpetrated.

In Gerhardy it was put that section 19 was a matter of racial discrimination by its terms. Now, if I can leave on one side the issue of whether or not that was a correct characterisation perhaps it does not matter much for the purpose of my argument. Here the issue is that the Act itself is demonstrated to reverse identified discrimination as discrimination has been identified by this Court, and if one has an aspect of racial discrimination within society - it comes within the matters of Article 5, we submit, the chapeau and particular paragraphs - well then, what is the obligation? Under Article 2.1, "States parties condemn racial discrimination" and, we say, the Mabo [No 2] position disclosed the situation of racial discrimination in our laws - "and undertake to pursue by all appropriate means" - - -

BRENNAN J: Is it Mabo [No 2] or Mabo [No 1)?

MR GRIFFITH: Mabo [No 1] establishes the contrariety to the Act; Mabo [No 2] establishes the principal right on which Mabo [No 1] found that there was a contrariety to the - - -

DAWSON J: That is not really quite right, but still.

MR GRIFFITH: Your Honour, is it close enough for the purpose - - -

BRENNAN J: Unless you approach it this way through Article 1.1 and Article 5, you are going to have to answer the question whether there are any, and if so, which provisions of the Native Title Act which go beyond what is necessary for the purposes of the Convention. Do you wish to do that?

MR GRIFFITH: Your Honour, we say that no provision goes beyond. We will go through and list the ones we say do, but we say none goes beyond, Your Honour. But, yes, we do do that in our submissions. So that, I should indicate to the Court that we do also deal with the special measures argument, but our principal argument is that this is not necessary in this case.

DEANE J: Do you accept the question as Justice Brennan put it to you, or would you say it goes beyond what is a law with respect to the external affair, or affairs constituted by the Convention?

MR GRIFFITH: Your Honour that is a happier way of expressing it, with respect.

DEANE J: I would have thought it was a more favourable way from your point of view.

MR GRIFFITH: That is why I accept, Your Honour. Perhaps I just detected that His Honour Justice Brennan was some distance towards me, so I said yes, but Your Honour, that is a better way and I will read the transcript and use that term tomorrow.

Your Honours, if I could conclude with this point, that the obligation under Article 2, once you find racial discrimination - we say, between Mabo [No 1] and Mabo [No 2] and the laws of Australia, the racial discrimination is identified, then what is the obligations of State parties? They do more than condemn it. They are required to pursue by all appropriate means and without delay the policy of eliminating it, so it is a positive duty under the Convention to eliminate, and under paragraph (c) that includes amending, rescinding and nullifying. More about nullifying when we are talking about invalidity of State laws, but:

to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

Perhaps, we should have, in the Act, used the word nullify, rather than validity, but anyway. Also, paragraph (e) provides for obligations. Paragraph (d), I should mention:

Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation;

Also, paragraph (e) provides for obligations. Paragraph (d), I should mention:

Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization -

Possibly (c) is sufficient for our purposes but what we say is that there is a principal and primary obligation with respect to identified racial discrimination within Australia for Australia to enact laws "to amend, rescind or nullify" that aspect of discrimination.

We do seek to make a positive case that that is exactly what our law does and if I could give the Court the reference to the paragraph of our submissions which we say are the features appropriate and adapted for ensuring that native title holders have equality in the enjoyment of their rights. They are contained in paragraph 4.26 and we there bundle up various parts of the Act and then refer to them in the following paragraphs.

But it is our principal submission, if I could leave as a parting submission to the Court before we adjourn, that this is the way to go with the Racial Discrimination Act. I will refer to Gerhardy but perhaps it is sufficient to leave Gerhardy as a special case dealing with a law which, on its face, was adversely racially discriminatory and needs a bit of explanation in thinking about to decide whether or not it was, in fact, compared with what we refer to in paragraph 4.26 of our submissions as being, in essence, the substance of the Act, all of which is designed, we say, to ensure the ending of this circumstance of racial discrimination within Australia. Is that a convenient time?

MASON CJ: Yes, Mr Solicitor. We will adjourn now and resume at 2.15 on Monday.

AT 4.15 PM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 12 SEPTEMBER 1994