Walker v New South Wales [1994] HCA 64

 

Walker v New South Wales [1994] HCA 64

Click to access walker-v-new-south-wales-1994-hca-64.pdf


 

JURISDICTION – ALL ARE EQUAL BEFORE THE LAW

Extract from Walker v New South Wales [1994] HCA 64:

“The proposition must be rejected. It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle (See Racial Discrimination Act 1975 (Cth), s.10). The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters (Bennion, Statutory Interpretation, 2nd ed. (1992) at 255). The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting (Re Sawers; ex parte Blain (1879) 12 Ch D 522 at 526; Gold Star Publications Ltd. v. Director of Public Prosecutions (1981) 1 WLR 732 at 734). And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose (Bennion, op. cit. at 260). The presumption applies with added force in the case of the criminal law, which is inherently universal in its operation, and whose aims would otherwise be frustrated.”


Findings: (1) The Parliament of New South Wales has legislative competence to regulate or affect the rights of Aboriginal people. (2) The application of laws made by that Parliament to Aboriginal people is not subject to their acceptance, adoption, request or consent. (3) As Aboriginal people enjoy the benefits of domestic laws, they must also accept the burdens those laws impose.

“The legislature of New South Wales has power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever (See s.5 Constitution Act 1902 (N.S.W.). The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected. As Gibbs J (with whom Aickin J agreed) said in Coe v. The Commonwealth of Australia (1979) 53 ALJR 403 at 408; 24 ALR 118 at 129):

“The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside.”

“There is nothing in the recent decision in Mabo v. Queensland (No.2) (4 (1992) 175 CLR 1) to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent.”


Some cases citing this decision

You will note that the principle raised in Walker v New South Wales [1994] HCA 64 has often been cited in cases as a judgment authority where it applied to non-Aboriginal people in the same manner. As was said in:

Brisbane City Council v Curr [2014] QMC 28:

“It could be argued that the principle set out by Mason CJ [citing Walker] above is not offended by what has been done here. The defendant is a non Aboriginal person. It could be argued that the law equally applies to him as it does to an Aboriginal person as long as he is doing for Aboriginal purposes and for no other purpose. In my view, because of what follows, the fact that he is a non Aboriginal person acting on the instruction of or at the request of an Aboriginal elder doesn’t assist the defendant’s argument.”

Further:

“Section 2 of the Constitution Act 1867 (Qld) similarly provides that the legislative assembly can advise and consent to the Queen making laws for the peace, welfare and good government of the colony in all cases whatsoever and through the Land Act, the Local Government Act and the City of Brisbane Act the Brisbane City Council is empowered to make these by-laws which it is alleged the defendant has offended. As Mason CJ said as quoted above, [Walker v NSW] the proposition that these laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected.”

Deputy Commissioner of Taxation v Aitken [2015] WADC 18:

(At 44) “The suggestion that laws do not apply to the defendant because he is a UK citizen, even if it was established that he was a UK citizen, is absurd. All persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded. So also must they accept the burden those laws impose: Walker v New South Wales (1994) 182 CLR 45.”

Anderson v Kerslake [2013] QDC 262:

(At 31) “The learned acting Magistrate considered the appellant did not seek to challenge she did not have such an excuse, but based on her 25 page submission, her defence to the charge was, she is not subject to the laws of Australia or Queensland and those laws were invalid. He observed he had already dealt with this argument in deciding the jurisdictional issue. The written submissions of the prosecutor were accepted. His Honour considered himself bound by the authorities mentioned in the submission, and in particular Coe v Commonwealth of Australia; Walker v New South Wales; The Australian Workers’ Union of Employees of Queensland v State of Queensland; State of Queensland v Together Queensland, Industrial Union of Employees & Anor; Mabo v Queensland (No 2).”

Fyffe v State of Victoria [1999] VSCA 196:

(At 22) “The Victorian Parliament has, of course, power to legislate “in and for Victoria in all cases whatsoever”; see s.16 of the Constitution Act 1975. Mr Fyffe resides in Victoria and we can take judicial notice that the relevant land is situated within the State. Mr Fyffe is accordingly subject to the laws of Victoria. The submissions bearing on secession should in our view be rejected as an abuse of process. See also Coe v Commonwealth (1979) 24 A.L.R. 118 per Gibbs, C.J. at 128-129; Coe v Commonwealth (No. 2) (1993) 118 A.L.R. 193 at 199; Walker v New South Wales (1994) 182 C.L.R. 45 per Mason, C.J. at 49-50.”

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