APPENDIX 2
Western Australia v. the Commonwealth (1995) 183 CLR
373 at 483-484
"6.The operation of s.7 of the Native Title Act Section
7(1) of the Native Title Act reads as follows:
" Nothing in this Act affects the operation of the
Racial Discrimination Act 1975."
It is difficult to identify the legal purpose which this
provision is intended to serve. It does not affect the validation of past
acts: s.7(2) expressly so declares. It is clear that the Native Title
Act does not repeal the Racial Discrimination Act either retrospectively
or prospectively. The reference to invalidity in the definition of "past
act" [325] contemplates the operation of the Racial Discrimination
Act during the relevant period. And the definition of "future act"
speaks of the invalidity of acts (including the enactment of State and
Territory laws) "apart from this Act" [326]. That definition
assumes, or at least allows for, the operation of the Racial Discrimination
Act where that operation produces the invalidity that falls within the
definition. Section 7(1) at least ensures that the Native Title Act is
not construed as impliedly repealing any of the provisions of the Racial
Discrimination Act. The latter Act continues to operate on subjects outside
the Native Title Act in precisely the same way as it operated before the
Native Title Act came into operation.
Western Australia sought to use s.7(1) as the vehicle for
destruction of the substantive provisions of the Native Title Act relating
to future acts. The Native Title Act was said to discriminate in favour
of Aborigines and Torres Strait Islanders and thus to offend the Racial
Discrimination Act. As s.7(1) preserved the operation of the Racial Discrimination
Act, so the argument ran, the offending provisions of the Native Title
Act "must be regarded as inoperative". The argument encounters
considerable obstacles. In the first place, it is not easy to detect any
inconsistency between the Native Title Act and the Racial Discrimination
Act. The Native Title Act provides the mechanism for regulating the competing
rights and obligations of those who are concerned to exercise, resist,
extinguish or impair the rights and interests of the holders of native
title. In regulating those competing rights and obligations, the Native
Title Act adopts the legal rights and interests of persons holding other
forms of title as the benchmarks for the treatment of the holders of native
title [327]. But if there were any discrepancy in the operation of the
two Acts, the Native Title Act can be regarded either as a special measure
under s.8 of the Racial Discrimination Act [328] or as a law which, though
it makes racial distinctions, is not racially discriminatory so as to
offend the Racial Discrimination Act or the International Convention on
the Elimination of All Forms of Discrimination [329]. And further, even
if the Native Title Act contains provisions inconsistent with the Racial
Discrimination Act, both Acts emanate from the same legislature and must
be construed so as to avoid absurdity and to give to each of the provisions
a scope for operation. The general provisions of the Racial Discrimination
Act must yield to the specific provisions of the Native Title Act in order
to allow those provisions a scope for operation. But it is only to that
extent that, having regard to s.7(1), the Native Title Act could be construed
as affecting the operation of the Racial Discrimination Act.
Section 7(1) provides no basis for interpreting the Native
Title Act as subject to the Racial Discrimination Act. The Native Title
Act prescribes specific rules governing the adjustment of rights and obligations
over land subject to native title and s.7(1) cannot be construed as intending
to nullify those provisions. It may be that s.7(2) is otiose but that
provision is properly to be seen as inserted out of an abundance of caution.
It follows that the inconsistency between the W.A. Act and the Racial
Discrimination Act either survived the enactment of the Native Title Act
or, if the Native Title Act affected the relevant provisions of the Racial
Discrimination Act, from the time when that occurred, an inconsistency
arose between the W.A. Act and s.11 of the Native Title Act."
_________________________________________
(329) Sadurski, "Gerhardy v. Brown v. The Concept of
Discrimination: Reflections on the Landmark Case that Wasn't", (1986)
11 Sydney Law Review 5; McKean, Equality and Discrimination under International
Law, (1993) at 288; Brownlie, The Rights of Peoples in Modern International
Law, (1983) at 10; Australian Law Reform Commission, Report No.31, The
Recognition of Aboriginal Customary Laws, (1986) vol.1 pars 148, 150.
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