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

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

Native title was not extinguished in Western Australia by the establishment of the colony or subsequent events, except parcel by parcel through specific acts. The Native Title Act 1993 (Cth), except for s 12, is a valid law with respect to the people of any race for whom it is deemed necessary to make special laws under s 51(xxvi) of the Constitution of the Commonwealth, and does not impermissibly burden or discriminate against Western Australia or impair its functions as a State. The Land (Titles and Traditional Usage) Act 1993 (WA) is inoperative or invalid due to inconsistency with the Racial Discrimination Act 1975 (Cth) and/or the Native Title Act 1993 (Cth), by operation of s 109 of...

Jurisdiction
Australia
Procedural Posture
Reserved Questions for the Opinion of the Full Court; Proceedings Combining P 4 of 1994, P45 of 1993, and M147 of 1993 / Final Judgment of the High Court of Australia
Outcome
The majority answered the reserved questions as set out in the order: most provisions of the Native Title Act 1993 (Cth) (except s 12) are valid; s 12 is invalid and severable; the Land (Titles and Traditional Usage) Act 1993 (WA) is inoperative or invalid due to inconsistency with the Racial Discrimination Act or...
Legal Topics
['validity of the Native Title Act 1993 (cth)' 'racial Discrimination Act 1975 (cth) Inconsistency' 'state and Commonwealth Legislative Powers' 'extinguishment of Native Title' 'operation of S 109 of the Constitution' 'discriminatory Laws' 'federal State Relations']
['constitutional Law' 'native Title' 'discrimination Law' 'property Law'] ['validity of the Native Title Act 1993 (cth)' 'racial Discrimination Act 1975 (cth) Inconsistency' 'state and Commonwealth Legislative Powers' 'extinguishment of Native Title' 'operation of S 109 of the Constitution' 'discriminatory Laws' 'federal State Relations']

Case Brief

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Procedural Posture

Reserved Questions for the Opinion of the Full Court; Proceedings Combining P 4 of 1994, P45 of 1993, and M147 of 1993 / Final Judgment of the High Court of Australia

Legal Issues

  1. 1 ['Was native title extinguished in Western Australia by acts of State or subsequent legislation?' 'Is the Native Title Act 1993 (Cth), in relevant provisions, valid under the Constitution?' 'Are any provisions of the Native Title Act 1993 (Cth) beyond Commonwealth legislative power?' 'Is the Land (Titles and Traditional Usage) Act 1993 (WA) invalid due to inconsistency with federal law?' 'Does the Native Title Act 1993 (Cth) impose impermissible burdens or discrimination on Western Australia?' 'Does the Racial Discrimination Act 1975 (Cth) protect native title from extinguishment?']

Ratio Decidendi

Native title was not extinguished in Western Australia by the establishment of the colony or subsequent events, except parcel by parcel through specific acts. The Native Title Act 1993 (Cth), except for s 12, is a valid law with respect to the people of any race for whom it is deemed necessary to make special laws under s 51(xxvi) of the Constitution of the Commonwealth, and does not impermissibly burden or discriminate against Western Australia or impair its functions as a State. The Land (Titles and Traditional Usage) Act 1993 (WA) is inoperative or invalid due to inconsistency with the Racial Discrimination Act 1975 (Cth) and/or the Native Title Act 1993 (Cth), by operation of s 109 of...

Court Disposition

The majority answered the reserved questions as set out in the order: most provisions of the Native Title Act 1993 (Cth) (except s 12) are valid; s 12 is invalid and severable; the Land (Titles and Traditional Usage) Act 1993 (WA) is inoperative or invalid due to inconsistency with the Racial Discrimination Act or...

Orders

  • ['Questions reserved answered as follows: Native title not extinguished by establishment of Western Australia or subsequent events (as per A.1(a)); s 12 of the Native Title Act is invalid and wholly severable; all other challenged provisions of the Native Title Act (except s 12) are valid; the Land (Titles and...