FEDERAL COURT OF AUSTRALIA

Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) [2020] FCAFC 39

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The Barngarla people are the holders of native title in an area of land situated on the Eyre Peninsula in South Australia. Their interests in the land are recognised in a determination of native title made in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 (Croft No 2) as amended in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 3) [2018] FCA 552 (Croft No 3) (the determination).

2    The appellant is the Barngarla Determination Aboriginal Corporation RNTBC (BDAC). It is the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth) in respect of the land described in the determination.

3    The respondent is the District Council of Kimba. The land described in the determination is situated in its local government area.

4    In 2017, two sites within the Council area were nominated by their owners under s 7 of the National Radioactive Waste Management Act 2012 (Cth) (NRWM Act) as possible sites for the construction of a national radioactive waste management facility (the facility). The nominated sites each neighbour land in respect of which the Barngarla people hold native title rights and interests.

5    In its originating application, BDAC alleged that the Council had contravened s 9(1) and s 9(1A) of the Racial Discrimination Act 1975 (Cth) (RD Act) by passing resolutions for the conduct of a non-binding poll to gauge the level of community support for the construction of the facility on the nominated sites. The effect of the resolutions was that the possession of native title rights and interests would not qualify a person to participate in the poll. Among other things, it was alleged that the passage of the resolutions was an act involving a distinction, exclusion, restriction or preference based on race.

6    The primary judge dismissed the originating application: Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092.

7    For the reasons given below, the appeal from that judgment should be dismissed.

THE RESOLUTIONS

8    It is convenient to begin with a description of the resolutions complained of and the legal and factual contexts in which they were made.

9    The facts are largely uncontested. The narrative that follows is drawn from the reasons of the primary judge.

10    A stated object of the NRWM Act is to provide for the selection of a site for the facility: s 3. Section 9 and s 14 provide that the Minister for Resources and Northern Australia may approve the nomination of land for the facility and declare that site to be the selected site for the facility.

11    The properties nominated under s 9 of the NRWM Act are known as “Napandee” and “Lyndurst”. Each site is situated within 25 km of the township of Kimba. They neighbour the Pinkawillinie Conservation Park and the Lake Giles Conservation Park respectively. The Barngarla people have native title rights and interests in land situated within each Conservation Park. The rights recognised in the determinations are the non-exclusive rights to use and enjoy the land and waters in accordance with their traditional laws and customs.

12    The NRWM Act imposes limited obligations upon the Minister to afford procedural fairness to persons whose interests may be affected by the selection of a site for the facility. Upon receiving the nominations relating to Napandee and Lyndhurst, the Minister embarked upon a process of community consultation. The process of consultation appears to have exceeded that required by the NRWM Act, but nothing significant turns on that.

13    In “Phase 1” of the consultation process the Minister sought feedback from the communities in which the nominated sites were situated. In May and June 2017, at the Minister’s request, the Council conducted a poll of its community with a view to gauging the level of support for the nomination of the sites. The Council passed resolutions identifying the classes of persons who would be eligible to vote in the poll. The effect of the resolutions was that the franchise for the poll would be same as that fixed for local government elections under s 14 of the Local Government (Elections) Act 1999 (SA) (LGE Act).

14    Of the 690 persons who took part in that poll, 57.4 % voted in favour of the establishment of the facility and 42.6 % voted against it.

15    In “Phase 2” of the consultation process the Minister commenced an assessment of the technical suitability of the two nominated sites and embarked upon further consultation with the community. The Minister wrote to the Council proposing that a ballot be conducted by the Australian Electoral Commission on behalf of the Council. The identification of the franchise and the questions to be asked of voters were matters left to the Council to decide.

16    On 9 May 2018, 13 June 2018 and 27 July 2018, the Council carried a series of resolutions that now form the subject of this appeal. The resolutions were expressed as follows:

9 May 2018

Conducting of a Ballot

108.2018     …

That Council:

(a)    Accede to the request from the Minister for Resources and Northern Australia to facilitate a final ballot regarding the site selection of the [Waste Facility] in a manner consistent with the provisions of the [LGE Act], subject to all of the information specified in attachment A of the correspondence received by Council on May 4, 2018 (reference MS18-000969) being made publicly available by midday on July 23, 2018; and

(b)    Reserve the right to terminate the ballot after the above-mentioned date has passed in the event it believes the Minister has failed to provide the information specified in (a) to a level of detail that would allow the community to make an informed, considered decision in respect to the facility being constructed at the two nominated sites in Kimba.

…

CARRIED

13 June 2018

Conducting a Ballot

129.2018    That Council resolves to:

1)    Provide the Chief Executive Officer with the authority [to] work with the Australian Electoral Commission (AEC) to hold a ballot in relation to the hosting of a [Waste Facility];

2)    Provide the Chief Executive Officer with the authority to enter into and accept a contract with the AEC for the conduct of the ballot;

    and;

3)    Authorise the Chief Executive Officer to provide the House of Assembly Roll and the Chief Executive Officers’ (Voters) Roll as specified under section 14 of the [LGE Act] to the AEC for the purposes of conducting the ballot.

…

CARRIED

130.2018    That Council resolves that the following question be provided to the Australian Electoral Commission for the purpose of conducting [the] ballot:

‘Do you support the proposed [Waste Facility] being located at one of the nominated sites in the community of Kimba?’

…

CARRIED

27 July 2018

7. Formation of Council position on continued facilitation of ballot re: NRWMF site selection

…

180.2018    That Council continue with the community ballot for the site selection of the [Waste Facility], pursuant to resolution 108.2018.

17    An effect of the resolutions was that a person’s eligibility to participate in the ballot depended upon the person being included on a roll of electors for the purposes of local government elections conducted under the LGE Act. The qualification of a person to enrol to vote in such an election is defined in s 14 of the LGE Act. It relevantly provides:

14—Qualifications for enrolment

(1)    Subject to this Act—

(a)    a natural person is entitled, without application, to be enrolled on the voters roll for an area or ward if that person is enrolled as an elector for the House of Assembly in respect of a place of residence within the area or ward; and

(ab)    a natural person (not being a person referred to in paragraph (a)), who is of or above the age of majority, is entitled, on application to the chief executive officer under this section, to be enrolled on the voters roll for an area or ward if that person—

(i)    is resident at a place of residence within the area or ward and has been so resident for a continuous period of at least 1 month immediately preceding the date of the application for enrolment; or

(ii)    is a ratepayer in respect of rateable property within the area or ward and is the sole owner of that rateable property; or

(iii)    is a ratepayer in respect of rateable property within the area or ward, is the sole occupier of that rateable property, and is not a resident in respect of that rateable property; and

(b)    a body corporate is entitled, on application to the chief executive officer under this section, to be enrolled on the voters roll for an area or ward if it is a ratepayer in respect of rateable property within the area or ward and is the sole owner or sole occupier of the rateable property; and

(c)    a group of persons (consisting of natural persons, bodies corporate or partly of natural persons and partly of bodies corporate) is entitled, on application to the chief executive officer under this section, to be enrolled as a group on the voters roll for an area or ward if—

(i)    the members of the group are all ratepayers in respect of rateable property within the area or ward; and

(ii)    the members of the group are joint owners, owners in common or joint occupiers of the rateable property; and

(iii)    at least one member of the group (being a natural person of or above the age of majority or a body corporate) is not enrolled on the relevant voters roll under paragraph (a), (ab) or (b), and no member of the group is enrolled on the relevant voters roll under paragraph (a) or (ab)(i) as a resident in respect of the rateable property; and

(iv)    no member of the group who is an occupier of the rateable property but not an owner is a resident in respect of the rateable property.

18    For convenience, the criteria referred to in this provision may be referred to as the s 14 criteria and the persons who fulfil the criteria may be collectively referred to as the franchise. It is common ground that the land situated in the determination area is not “rateable property” and the possession of native title rights and interests in the determination area is not otherwise sufficient to fulfil the s 14 criteria.

19    The evidence before the primary judge was that the resolution of 9 May 2018 was made without the Council adverting to the existence of the Barngarla people or their interests in land neighbouring the nominated sites.

20    The resolution of 27 July 2018 was passed after the Council had considered correspondence from BDAC asserting the desire of its members to participate in the ballot in their capacity as native title holders. In that correspondence, BDAC submitted that its members should be entered on the Council’s own voter roll for the purposes of s 14 of the LGE Act. Alternatively it was submitted that the Council should prepare a separate and specific roll of voters for the purposes of the ballot, which should include BDAC’s members in their capacity as native title holders. The Council responded by letter from its Chief Executive Officer, Ms Debra Le-anne Larwood. By her correspondence, Ms Larwood acknowledged that BDAC’s members held native title in land situated in the Council area. She acknowledged that as native title holders they fell within the definition of an “owner” of the land for the purposes of the LGE Act. She said, however, that the rights of ownership did not qualify the members to vote because the land in respect of which the native title was held was “non-rateable”. She said that some of BDAC’s members may be eligible to vote in the ballot by reason of satisfying the criterion in s 14(1)(a) of the LGE Act.

21    In further exchanges of correspondence, BDAC urged the Council to reconsider its position. It unsuccessfully petitioned the Commonwealth department responsible for administering the NRWM Act to conduct a separate ballot of its members.

22    BDAC’s representations were considered by the Council at a special meeting conducted on 27 July 2018. At the conclusion of that meeting the Council passed its resolution to “continue with the community ballot pursuant to” the resolution it had previously passed on 9 May 2018.

23    For reasons that need not be explained here, the ballot provided for by the Council’s resolutions has not yet been conducted.

THE PROCEEDINGS AT FIRST INSTANCE

24    At first instance BDAC sought declaratory relief relevantly to the effect that “the resolution” passed by the Council to adopt the s 14 criteria as the franchise for the ballot “constituted a contravention of, and was rendered unlawful by” s 9(1) and s 9(1A) of the RD Act. The relevant act relied upon was the whole of the Council’s processes in passing the resolutions extracted at [16] above. BDAC sought further declarations to the effect that the Council’s “facilitation” of the ballot contravened s 9(1) and s 9(1A) of the RD Act.

25    Section 9 of the RD Act relevantly provides:

(1)    It is unlawful for a person to do any act involving a 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 any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A)    Where:

(a)    a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)    the other person does not or cannot comply with the term, condition or requirement; and

(c)    the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

26    For the purpose of this provision it was and remains common ground that BDAC’s membership is comprised of persons who belong to the Aboriginal “race” and/or are of Aboriginal “ethnic origin”. The primary judge used the word “Aboriginality” to encompass both concepts.

27    It was not disputed that BDAC’s members were all native title holders pursuant to the determination. The Council did not take issue with BDAC’s standing to commence the proceedings to advance the individual interests of its 211 members on the basis that each individual member asserted an interest as a native title holder in being eligible to vote qua his or her status as a native title holder.

28    The primary judge summarised the approach to the construction and application of s 9(1) of the RD Act settled in the authorities in terms that are not challenged on the appeal (at [17]). It is convenient to extract his Honour’s summary in full:

(a)    the provision should be interpreted broadly and beneficially in accordance with the fundamental purpose of the Convention to which it gives effect: Baird at [60];

(b)    at its heart, the expression ‘any act involving a distinction, exclusion, restriction or preference’ connotes a difference in treatment based on one or more of the stated characteristics: Gerhardy v Brown [1985] HCA 11, (1985) 159 CLR 70 at 118, 127-8 (Brennan J); Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [38] and, on appeal [2001] FCA 123, (2001) 105 FCR 56 at [29];

(c)    although s 9(1) involves inherently elements of comparison, it does not require the identification of a particular comparator: Baird at [63]; Qantas Airways Limited v Gama [2008] FCAFC 69, (2008) 167 FCR 537 at [76]; Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20, (2008) 235 CLR 232 at [7]; Wotton v State of Queensland (No 5) [2016] FCA 1457 at [559]-[560];

(d)    a motive or intention to discriminate is not an element of a contravention; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56, (1989) 168 CLR 165 at 176; Waters v Public Transport Corporation [1991] HCA 49, (1991) 173 CLR 349 at 360; Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 at 33-34, 40-41, although their presence may be evidence that the conduct was engaged in for the proscribed purpose;

(e)    the operation of s 9 is not confined to acts undertaken pursuant to an obligation to do those acts: Baird at [62], Shurat HaDin, Israel Law Centre v Lynch (No 2) [2014] FCA 413 at [91];

(f)    it is the act involving the distinction which must be based on race: Baird at [71];

(g)    the term ‘based on’ does not connote a relationship of cause and effect, whether in a ‘but for’ or in any other sense. It signifies that the discrimination must be ‘on’ racial grounds: Gerhardy v Brown at 81 (Gibbs CJ). In Macedonian Teachers’ Association at 27, Weinberg J said:

[The] expression [‘based on’] does not, of itself, suggest a relationship of cause and effect. It suggests rather a relationship of a different and broader kind. The links between the elements connected by this expression must, no doubt, be real and tangible, but not necessarily causal in nature. To ask whether the manner in which the complainant was treated is in any way referable to his race, colour, descent or national or ethnic origin is not necessarily to ask whether these characteristics ‘caused’ the impugned conduct.

This reasoning was endorsed on appeal: Victoria v Macedonian Teachers’ Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 at [8] and by the Full Court in Bropho v Western Australia [2008] FCAFC 100, (2008) 169 FCR 59 at [67]-[68]. It means that there must be an examination of the actual basis for the conduct, by considering the matters on which the conduct did turn: Wotton at [551]; and

(h)    there must be a close relationship between the designated characteristic and impugned conduct: Macedonian Teachers’ Association at 33.

29    The primary judge held that the passage of the resolutions was an “act” to which s 9(1) of the RD Act could apply. His Honour rejected the Council’s submission that it had done no more than apply the self-executing provisions of the LGE Act. His Honour held that the decision to adopt the franchise involved the exercise of a discretion on the Council’s part. It was not bound to adopt that franchise, but had chosen to do so. The Council does not raise any contention about those findings.

30    As to whether the decision to adopt the franchise for the purposes of the ballot was an act that involved a distinction, exclusion, restriction or preference “based on” Aboriginality, the primary judge said:

85    In my opinion, it should be accepted that the non-inclusion of the members of BDAC in the franchise for the ballot involve distinction or exclusion. They (and others who did not meet the requirements for the franchise) were thereby precluded from participating in the ballot being arranged by the Council for the purposes of ascertaining the views of the Kimba ‘community’, using that term in an extended sense. I did not understand Council to contend to the contrary.

86    However, accepting that that is so, BDAC does not establish that the exclusion was ‘based on’ the Aboriginality of its members. In particular, it has not established that the decision concerning the franchise for the ballot was referrable to the Aboriginality of its members. A number of considerations indicate that that is so.

31    His Honour continued (at [87]):

First BDAC did not point to any matter indicating that the Council’s resolutions or its ‘facilitation’ of the ballot were referrable to the Aboriginality of its members. Instead, BDAC’s submissions focussed on the outcome of the resolutions, namely, that its members are in fact excluded from the ballot. As already seen, the Council’s adoption of the s 14(1) franchise for the ballot means that that exclusion arises not by reason of the Aboriginality of BDAC’s members, but by reason of their place of residence and the fact that they are not ratepayers.  …

32    The primary judge considered it pertinent that BDAC members who could satisfy the s 14 criteria were eligible to vote. That fact, he said “militates against a conclusion that their exclusion is referrable to their Aboriginality” (at [107]).

33    The other considerations referred to by the primary judge included the unchallenged evidence of Ms Larwood who deposed to the matters that the Council had relied upon in passing the resolutions (reasons, [88] – [89], [92] – [93]). His Honour accepted that the matters alleged to have been considered by the Council had in fact been considered and concluded that “they were sensible matters for the Council to take into account” (reasons, [89]). His Honour concluded that none of the matters identified by Ms Larwood were referrable to the Aboriginality of BDAC’s members (reasons, [90]). He continued:

92    Ms Larwood deposed that following its receipt of the letter from BDAC of 30 May 2018, the Council had considered it with reference to the criteria in s 14 of the LGE Act and had obtained legal advice to the effect that native title holders were not within those criteria unless they were also a resident or ratepayer. Following the receipt of BDAC’s letter of 12 June 2018, the Council again considered the position of native title holders in relation to the ballot. Ms Larwood said in respect of the Council’s decision:

[T]he decision wasn’t taken lightly. It was investigated properly. There was a lot of issues that would arise that if – if the Barngarla Determination Aboriginal Corporation – we went outside of the guidelines to allow them to vote, it then opened up, should we be letting all owners who are non-ratepayers have a vote; should we be letting those that occupy businesses or premises in Kimba but aren’t actually eligible to vote because they’re not a ratepayer to vote. It also then brought about who would vote, as in, should all members vote or, as owners who are ratepayers, they only get one vote. So it brought that into question. It also brings into question along the lines of, people that may shop, work, socialise in Kimba but don’t actually own land in Kimba don’t get a vote. So there’s a whole – there was a whole consideration given to that. I don’t want to make it seem like we just brushed it off, because there was some intense discussion about it. And we did look at other – other concerns that would bring into it if we did go down that path.

93    This evidence was not challenged and I accept it. It indicates that the Council’s continuing decision that BDAC’s members should not be included in the ballot was not made because of their Aboriginality, but as part of a more general discussion about whether the s 14(1) franchise should be expanded for the purposes of the ballot. The Council had to make a decision as to the categories of persons who constituted the Kimba ‘community’ for the purposes of the ballot. It appreciated that once it departed from the s 14(1) franchise, a number of difficulties and uncertainties arose. It is understandable that the Council sought to avoid those difficulties by adhering to the provisions with which it and the community were familiar, which had an objective existence, and which had a high level of transparency and independence from the Council.

34    As to the “integrity” of the composition of the franchise, the primary judge accepted that the adoption of the s 14 criteria provided the Council with some assurance of the composition of the voters: it could assume, for the purposes of s 14(1)(a), that those who were on the House of Assembly Roll had satisfied the requirements for enrolment under the relevant electoral laws and it could assume that the roll prepared by its own Chief Executive Officer was comprised of persons who had satisfied the LGE Act provisions. But, his Honour said (at [95]):

… the Council could be less certain of the membership of BDAC. It had not been provided with the eligibility requirements for its membership ... and it did not have knowledge of the way in which BDAC did in practice maintain its register of members.

35    The primary judge recorded that there was no evidence that the Council had knowledge of the identities or addresses of BDAC’s members. However, although relevant, that consideration was “not decisive because, as indicated earlier, motive and intention are not necessary elements of a contravention of s 9(1)” (reasons, [108]).

36    The primary judge said that s 14(1) of the LGE Act reflected a policy judgment made by the South Australian Parliament as to those persons it considered appropriate to “have a say” in the affairs of a Council and the community for which it was responsible. His Honour said (at [99]) that whilst the Council could have adopted a different franchise, the fact that it had adopted the same franchise applicable for local government elections:

… points against the exclusion of the BDAC members having been attributable to their Aboriginality, or account having been taken in some way of that Aboriginality.

37    The primary judge went on to consider the classes of persons who did not qualify for the franchise. His Honour said the fact that others had been excluded from the ballot by reference to different considerations did not of itself mean that the exclusion of BDAC’s members was not referrable to their Aboriginality:

…  But the fact that persons were excluded on the basis of the same criteria as applied to BDAC members and which had nothing to do with Aboriginality, does point against the exclusion of BDAC’s members having been referable to their Aboriginality.

38    His Honour said that BDAC’s non-resident members were on the same footing as other non-residents who had property interests in the Council area but who were not ratepayers in respect of those interests (at [100]), such that there had been no differential treatment. The latter class of persons was not a hypothetical class, the primary judge having earlier accepted Ms Larwood’s evidence that such persons existed.

39    As to the Council’s stated concern to ensure consistency in the provision of only one vote for a corporation, the primary judge said that the rights and interests of the members of BDAC took the form of group interests: reasons, [104] – [105]; Mabo v Queensland (No 2) (1992) 175 CLR 1 (at 63 Brennan J, at 110 Deane and Gaudron JJ and at 178-179 Toohey J) (Mabo No 2); Griffiths v Northern Territory of Australia (No 3) (2016) 152 ALD 72 (at [219]). As such, in relation to the ballot, BDAC’s members were in some respects similar to members of a group to which s 14(1)(c) of the LGE Act applied. His Honour continued (at [105]):

As the Council submitted, BDAC seeks that each of its members have a vote in respect of their joint interest in the native title land. This could amount to 211 votes. In contrast, all other joint owners have only one vote. Accordingly, putting to one side the fact that the native title holders of BDAC are not ratepayers, it is apparent that BDAC seeks to have its members treated differently from the members of other groups and, in fact, for them to have greater rights. The potential for this to be the case provides a further objective justification for the Council’s desire to have the ballot conducted in accordance with a known and accepted set of rules to which is attached a high level of transparency and accountability.

40    The conclusion that the adoption of the s 14 franchise was not an act that involved a distinction, exclusion (etc) “based on” race rendered it unnecessary for the primary judge to consider whether the act had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

41    The primary judge went on to conclude that by adopting the franchise, the Council did not contravene s 9(1A) of the RD Act. The rejection of that part of the appellant’s case is not the subject of discrete challenge on this appeal and need not be considered.

ISSUES ARISING ON THE APPEAL

42    The grounds of appeal are:

1.    The Primary Judge erred in concluding that the Respondent did not directly discriminated against the Appellant as prohibited by subsection 9(1) of the Racial Discrimination Act 1975.

2.    The Primary Judge erred in addressing the issue of whether the Respondent’s acts involved a distinction based on Aboriginality.

3.    The Primary Judge erred in concluding that the Appellant had not established that either of the ‘acts’ on which it relied contravened subsection 9(1) of the Racial Discrimination Act 1975.

4.    The Primary Judge erred in not providing sufficient reasons for his decision that the Respondent had not directly discriminated against the Appellant as prohibited by Subsection 9(1) of the Racial Discrimination Act 1975.

5.    The Primary Judge erred in not addressing the Appellant’s submissions which focussed on the outcome of the resolutions, namely, that its members are in fact excluded from the Ballot.

6.    The Primary Judge erred in not addressing why the Respondent’s arguments relating to why it adopted the criteria for entitlement to vote in the Ballot outlined in section 14 of the Local Government (Elections) Act 1999 (SA) (s.14 franchise) should be accepted over those of the Appellant that focussed on the outcome of the resolutions.

7.    The Primary Judge erred in his consideration of the Respondent’s motive and intention for adopting the s.14 franchise.

8.    The Primary Judge erred in that while he dealt with the issue of whether the Respondent’s behaviour in question was ‘based on’ race by referring to the s.14 franchise issue, particularly the advantages and disadvantages of the s.14 franchise approach, he did not properly address whether taking such approach by the Respondent constituted direct discrimination of the type prohibited by subsection 9(1) of the Racial Discrimination Act 1975.

9.    The Primary Judge erred in that while he stated that the Respondent’s submissions focussed on the reasons why it adopted the s.14 franchise and that the motive and intention for doing so is irrelevant, the relevant question should have been whether or not the Respondent engaged in discriminatory conduct that was prohibited by subsection 9(1) of the Racial Discrimination Act 1975.

10.    The Primary Judge erred in:

(a)    his treatment of the evidence of Ms Larwood; and/or

(b)    failing to conclude that Ms Larwood was unable to give probative evidence as to what was in the minds of those who decided to use the s.14 franchise because she is not a voting member of the Respondent.

43    The fourth ground of appeal may be rejected at the outset. The reasons of the primary judge are coherent and detailed. There is no proper basis to argue that the reasons do not adequately disclose the legal and factual bases for the dismissal of BDAC’s claim at first instance.

44    The remaining grounds of appeal give rise to two related issues.

45    The first is whether the primary judge erred in concluding that the act of the Council did not involve a distinction, exclusion (etc) based on race within the meaning of s 9(1) of the RD Act. The second is whether the primary judge erred in admitting and considering the evidence of Ms Larwood in respect of the Council’s asserted reasons for adopting the franchise.

46    By a notice of contention, the Council argued that if the primary judge erred in the manner alleged by BDAC, there could be no finding of contravention because the relevant act did not have the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right of fundamental freedom.

CONSIDERATION

47    The reasons of the primary judge contained a concise summary of legal principle, extracted at [28] above. That summary was not challenged on this appeal. We adopt it as a correct statement of the principle. Argument on the appeal in connection with the proper construction of the phrase “based on” did serve to illuminate the meaning of the phrase beyond that given in the cases to which the primary judge referred. As Weinberg J said in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 33:

The requirement is one of sufficient connection. That there must be a close relationship between the designated characteristic and the impugned conduct is not in doubt - it is the nature of that relationship which is critical.

48    For the disposition of the appeal, it is sufficient to emphasise that to prove a contravention of s 9(1) of the RD Act it is not necessary to prove the existence of a subjective motivation to (for example) exclude the complainant based on his or her race. But that is not to say that the subjective motivations of the alleged contravener are irrelevant. Whilst the absence of a subjective motivation will not be determinative, proof of the existence of a subjective motivation to discriminate may point to a conclusion that the relevant act involved an exclusion based on race.

49    Expressed another way, proof of an intention to discriminate against a person by reason of his or her race will invariably support a contention that the act complained of was based on race. In cases where the act complained of is in the nature of a decision, it will be permissible to consider the matters upon which the decision turned. An analysis of those matters may disclose that the act was done by reference to race, even if there be no subjective motivation to discriminate on that basis. As Allsop J (as he then was) said in Baird v Queensland (2006) 156 FCR 451 (at [70]):

…  One does not look at the act divorced from the relevant distinction etc in assessing the relationship with race. It is the part of the act that is the distinction etc or the act involving the distinction that must be based on race.

50    It follows that the primary judge did not err in admitting the evidence of Ms Larwood. There was no objection to that evidence at first instance, whether on the ground of relevance or on the ground that Ms Larwood could not depose to the reasoning process of the members of the Council who together passed the resolutions complained of. Indeed, the evidence of Ms Larwood was in large part adduced by BDAC in cross-examination.

51    As to the findings based on Ms Larwood’s evidence, BDAC faces the considerable difficulty that the evidence went unchallenged. In the circumstances, it was clearly open to the primary judge to conclude that the Council’s reasons for adopting the franchise were as Ms Larwood had asserted them to be. However, that conclusion was not determinative.

52    The primary judge went on to conclude that the Council’s justifications for adopting the franchise withstood objective scrutiny and that none of the justifications were based on race. It remains to consider whether his Honour erred in these conclusions.

53    BDAC submitted that the inference that the act of passing the resolutions involved a distinction, exclusion (etc) based on race arose by reason of the practical exclusionary effect of the outcome. In support of that submission, BDAC relied on the following facts or propositions:

(1)    The Council decided to conduct the ballot.

(2)    It was the Council and the Council alone that had decided the eligibility criteria to participate in the ballot.

(3)    BDAC’s members are the native title holders for the area neighbouring the nominated sites.

(4)    The Council made its decisions without including the interests of the native title holders.

(5)    The Council decided on an eligibility criterion that the native title holders could not fulfil by reference to their status as native title holders.

(6)    The native title holders did not qualify for the ballot unless they could fulfil the s 14 criteria.

(7)    The native title holders clearly had an interest in the results of the ballot, because they have been recognised as holding native title in respect of the areas neighbouring the sites.

(8)    The native title holders include members of BDAC and those members are Aboriginal people.

54    The argument that persons holding native title rights and interests in land neighbouring the nominated sites had a unique interest in the results of the ballot may be readily accepted. Since Mabo No 2, the High Court has declared and explained the recognition by the common law of native title rights and interests and the nature of the connection between Indigenous people and their land and waters that give rise to them. In Love v Commonwealth of Australia [2020] HCA 3, Gordon J recently described the connection in this way:

289    The fundamental premise from which the decision in Mabo v Queensland [No 2] proceeds - the deeper truth - is that the Indigenous peoples of Australia are the first peoples of this country, and the connection between the Indigenous peoples of Australia and the land and waters that now make up the territory of Australia was not severed or extinguished by European ‘settlement’.

290    That connection is spiritual or metaphysical: ‘[t]here is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole’. And the connection that persisted, and continues to persist, is a connection determined according to Indigenous laws acknowledged, and the traditional customs observed, by the Indigenous peoples.

…

363    It is connection with land and waters that is unique to Aboriginal Australians. As history has shown, that connection is not simply a matter of what the common law would classify as property. It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond Federation. It is older and deeper than the Constitution.  …

(footnote omitted)

55    And Edelman J said (at [451]):

Native title rights and interests require a continuing connection with particular land. However, underlying that particular connection is the general spiritual and cultural connection that Aboriginal people have had with the land of Australia for tens of thousands of years. In other words, underlying a connection to any particular land is a general, ‘fundamental truth ... an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole’. Sometimes events, including the cessation of the existence of a particular Aboriginal society, cause the loss of native title rights to land. But the loss of those rights to, and the relationship with, particular land, or even the effluxion of particular Aboriginal societies, does not extinguish the powerful spiritual and cultural connections Aboriginal people have generally with the lands of Australia. Those connections are inextricably part of Aboriginal identity as members of the broader community of the first people of the Australian land generally. The very words ‘Aboriginal’ and ‘indigenous’, aborigine or ‘from the beginning’, enunciate a historical, and original, connection with the land of Australia generally. The sense of identity that ties Aboriginal people to Australia is an underlying fundamental truth that cannot be altered or deemed not to exist by legislation in the same way that changing legislative definitions of citizenship cannot alter the fundamental truth underlying identity that is shaped by the core combined norms that metaphorically tie a child to Australia by birth and parentage.

(footnotes omitted)

56    BDAC’s oral submissions proceeded from the starting point that its members were excluded from the ballot. From there it was submitted that because all of BDAC’s members were Aboriginal, the practical effect of the resolutions was to exclude BDAC’s members from the franchise by reference to their Aboriginality. As we understand the submission, the special nature of the members’ interests in the land neighbouring the nominated sites was relied upon as a basis to argue that no justification advanced by the Council could withstand objective scrutiny and that, accordingly, the adoption of the franchise must necessarily be characterised as an act referrable to the race of BDAC’s members.

57    These submissions misstate the exclusionary effect of the resolutions. It is not correct to say that BDAC’s members were excluded from the ballot. Membership of BDAC was not a characteristic that disqualified any person from the franchise. Rather, the effect of the resolutions was that possession of native title rights and interests was not included among the various qualifying criteria. The distinction is important. For as the primary judge concluded, any person who fulfilled one or more of the s 14 criteria could participate in the ballot irrespective of the person’s race. Similarly, the classes of persons who were excluded from the franchise included persons who were Aboriginal and persons who were not. The primary judge was correct to find that these features of the resolutions militated against a conclusion that the relevant act involved an exclusion based on race.

58    It is true to say that the s 14 criteria included the possession by a person of an interest in rateable property in the Council area even if the person did not reside in the area. In that respect it might be said that there was a preference accorded to persons having interests in land that was rateable over those having interests in land that was not (such as land falling within the determination area). It is not insignificant that the non-rateable land in the Council area did not comprise only that land falling within the determination area but included all non-rateable land, irrespective of the race of the person having a recognisable interest in it.

59    It also true to say that the effect of the determinations of native title in favour of the Barngarla people was to recognise their possession of rights and interests in land by virtue of their connection with it as Aboriginal people. That circumstance called for a careful analysis of the resolutions to ascertain whether they were in any way referable to the Aboriginality of the native title holders. In undertaking that analysis, the primary judge did not confine himself to a search for express advertence to Aboriginality in the Council’s deliberative processes. Rather, his Honour examined whether the various justifications for confining the franchise to the s 14 criteria could be said to be in any way “referrable to” the Aboriginality of the native title holders in the sense described in the authorities.

60    The primary judge concluded that each of the matters advanced by the Council to justify the resolutions were shown to be referrable to “sensible” concerns that were unrelated to race. Importantly, that part of his Honour’s reasoning was not subject to effective challenge on this appeal, just as the asserted factual foundation for the Council’s concerns was not effectively tested, whether in cross-examination of Ms Larwood or otherwise.

61    There may be cases in which an examination of the purported justification for an act reveals that the justification is nonsensical or cannot otherwise withstand objective scrutiny. In such cases, it may be open to infer that the act could not have been done for the asserted reasons and so render it more likely that the act was subjectively based on race in the requisite sense. There may be other cases in which the justification advanced for an act inherently contains within it a distinction, exclusion (etc) based on race and so support a finding that the act amounted to a contravention of s 9(1) of the RD Act, whether or not there was a subjective motivation to discriminate.

62    The justifications advanced by the Council in this case bore neither of these features. The inferences the primary judge drew from the unchallenged evidence are not shown to be affected by appealable error. We would respectfully draw the same inferences.

63    As has been emphasised, the subjective reasons for doing an act are not the only relevant considerations when determining whether the act contravenes s 9(1) of the RD Act. In the present case, however, it has not been shown that the relevant act was based on race notwithstanding the special interests of the Barngala people in the outcome of the ballot.

64    There being no appealable error of the kind alleged in the grounds of appeal, it is unnecessary to determine the question raised on the Council’s notice of contention.

Associate:

Dated:    13 March 2020