Extract from Kirby J.

Kirby J

212 My purpose in these reasons is to demonstrate that the claims for relief before this Court are far from unarguable. To the contrary, the major constitutional obstacle urged by the Commonwealth is expressly rejected by a majority, with whom on this point I concur. The proper response is to overrule the demurrer. We should commit the proceedings to trial to facilitate the normal curial process and to permit a transparent, public examination of the plaintiffs’ evidence and legal argument. The law would then determine whether intuition was correct and a proper case can be presented that brings the claims within demonstrated legal entitlements that have not been respected in the legislation. The law of Australia owes the Aboriginal claimants nothing less.

213 The legislative provisions in question here are applied to Aboriginal Australians by specific reference to their race . The Emergency Response Act expressly removes itself from the protections in the Racial Discrimination Act 1975 (Cth) and hence, from the requirement that Australia, in its domestic law, adhere to the universal standards expressed in the International Convention on the Elimination of All Forms of Racial Discrimination, to which Australia is a party .

214 If any other Australians, selected by reference to their race, suffered the imposition on their pre-existing property interests of non-consensual five-year statutory leases, designed to authorise intensive intrusions into their lives and legal interests, it is difficult to believe that a challenge to such a law would fail as legally unarguable on the ground that no “property” had been “acquired” . Or that “just terms” had been afforded, although those affected were not consulted about the process and although rights cherished by them might be adversely affected. The Aboriginal parties are entitled to have their trial and day in court. We should not slam the doors of the courts in their face. This is a case in which a transparent, public trial of the proceedings has its own justification.

215 The issue for decision is not whether the “approach” of the majority is made on a basis less favourable because of Aboriginality . It is concerned with the objective fact that the majority rejects the claimants’ challenge to the constitutional validity of the federal legislation that is incontestably less favourable to them upon the basis of their race and does so in a ruling on a demurrer. Far from being “gratuitous” , this reasoning is essential and, in truth, self-evident. The demurrer should be overruled.

(Wurridjal v The Commonwealth of Australia [2009] HCA 2, pp 78-79)