FEDERAL COURT OF AUSTRALIA
Bropho v State of Western Australia [2007] FCA 519
RACIAL DISCRIMINATION – reserve for the use and benefit of aboriginal inhabitants – vested in aboriginal corporation – vesting revoked – land area of reserve increased and reserve re-vested in the same corporation – vesting transmitted to 1998 management order by legislation – alleged misconduct on the reserve – public inquiries into such conduct – 2002 management order replaces 1998 order – alleged continuance of misconduct on reserve – safety of women and children said to be at issue – enactment of Reserves Act purporting to (1) revoke 2002 management order; (2) place care, control and management of the reserve in the Aboriginal Affairs Planning Authority; (3) authorise administrator to take actions with respect to vacating and occupancy of reserve; (4) exclude rules of natural justice in relation to administrator’s directions; (5) provide immunity from judicial supervision of decisions of administrator; (6) provide protection from liability – whether 2002 management order invalid for statutory non-compliance – whether any inconsistency of Reserves Act with ss 9 or 10 of the Racial Discrimination Act
RACIAL DISCRIMINATION – rights to equality before the law – whether applicants have a right to manage and otherwise exercise statutory ownership rights – whether applicants have a human right of ownership of the reserve under that legislation – was there a lack of enjoyment by the applicants of such rights by reason of their race – – whether rights arbitrarily deprived – whether applicants’ right of freedom of movement and residence within the borders of the state deprived – whether any such deprivation arbitrary – whether applicants deprived of right to equal treatment before tribunals – whether applicants deprived of possession – whether applicants deprived of right to participate in public affairs – whether justificatory contentions applicable – whether enactment reasonable, proportionate and legitimate - whether Reserves Act a special measure
RACIAL DISCRIMINATION - whether any act done involving a distinction, exclusion, restriction or preference based on race having 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 – whether any act depriving applicants of right to manage and otherwise exercise ownership rights in relation to the reserve – whether any such deprivation arbitrary – whether any deprivation of applicants’ right to freedom of movement and residence within the borders of the state– whether any such deprivation arbitrary – whether any act in relation to applicants’ right to equal treatment before tribunals or right to participate in public affairs – whether justificatory contentions applicable – whether enactment reasonable, proportionate and legitimate – whether a special measure
RACIAL DISCRIMINATION – whether acts of administrator contravened Racial Discrimination Act - whether acts contravened provisions relating to land, housing and accommodation
TORT – trespass - whether applicants deprived of possession
Commonwealth of Australia Constitution Act 1900 (Imp) ss 92, 109, 117
Aboriginal Councils and Associations Act 1976 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PH(2)
Disability Discrimination Act 1992 (Cth) s 6, 6(1)(b)
Lands Acquisition Act 1989 (Cth) ss 23, 24, 26, 27, 28, 52, 55
Racial Discrimination Act 1975 (Cth) ss 8, 8(1), 9, 9(1A), 10, 10(1), 10(2), 10(3), 10(3)(a), 10(3)(b), 12(1)(d)
Federal Court Rules O 11 r 10
Aboriginal Affairs Planning Authority Act 1972 (WA) ss 4, 15(1), 26, 31, 32
Aboriginal Heritage Act 1972 (WA) s 18
Acts Amendment (Land Administration) Act 1987 (WA) s 60(c)
Acts Amendment (Reserves) Act 1982 (WA) s 8
Child Welfare Act 1947 (WA) s 29
Conservation and Land Management Act 1984 (WA) s 106
Land Act (Transmission of Interests) Act 1992 (WA) s 4
Land Act 1933 (WA) ss 29, 29(1), 33, 33(1), 33(2), 34B(1), 37
Land Administration Act 1997 (WA) ss 41, 46, 46(1), 46(5), 46(10), 50, 50(1)(a), 50(1)(b), 50(2), 170, 175, 202, 204, 207 to 257, 267, 267(1)(a), 267(2)
Land Amendment Act 1948 (WA) s 5
Parks and Reserves Act 1895 (WA) s 8
Public Sector Management Act 1994 (WA) s 11(1)
Reserves (Reserve 43131) Act 2003 (WA) ss 2, 4, 4(1), 4(2), 5, 5(1), 5(2), 5(5), 6, 7, 7(2)(a), 7(3), 7(3)(a), 7(3)(b), 8, 9, 10, 11, 12, 13
Restraining Orders Act 1997 (WA) s 13
Rottnest Island Authority Act 1987 (WA) ss 48(2)(b), 30
Zoological Parks Authority Act 2001 (WA) s 45(2)(c), 30
Reserves (Reserve 43131) Bill 2003 (WA)
International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, New YorkArts 1(4), 5, 5(a), 5(b), 5(d)(i), 5(d)(v)
N Lerner, Group Rights and Discrimination in International Law, International Studies in Human Rights, 2nd edn, Martinus Nijhoff Publishers, 2003
McRae, Nettheim and Beacroft, Indigenous Legal Issues (2nd edn, LBC Information Services, 1997)
Pearce DC and Geddes RS Statutory Interpretation in Australia (4th ed, Butterworths, 1996)
‘Direct discrimination and a defence of reasonable justification’ (2003) 77 ALJ 514
Attorney-General (N.S.W.) v Perpetual Trustee Co. (Ltd.) (1940) 63 CLR 209
Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165
Australian Medical Council v Wilson (1996) 68 FCR 46
Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595
Bella Bropho v State of Western Australia [2005] FCA 941
Bella Bropho v Western Australia [2006] FCA 272
Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567
Brennan v Comcare (1994) 50 FCR 555
Bropho v State of Western Australia [2006] WASCA 109
Bull v Attorney-General for New South Wales (1913) 17 CLR 370
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436
Coleman v Powers (2004) 220 CLR 1
Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191
Commonwealth v South East Queensland Aboriginal Corporation for Legal Services [2006] 1 Qd R 12
Commonwealth v WMC Resources Ltd (1998) 194 CLR 1
Craig v South Australia (1995) 184 CLR 163
Cunliffe v Commonwealth (1994) 182 CLR 272
Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602
Dilatte v MacTiernan [2002] WASCA 100
Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455
Evans v Western Australia (1997) 77 FCR 193
Fulcher v Hilt (1985) 61 ALR 359
Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534
Gerhardy v Brown (1985) 159 CLR 70
Health Insurance Commission v Peverill (1994) 179 CLR 226
Herniman v Smith [1938] AC 305
Hicks v Faulkner (1878) 8 QBD 167
Hodges v Webb [1920] Ch D 70
Hornsby Council v Roads and Traffic Authority (NSW) (1997) 41 NSWLR 151
James v United Kingdom (1986) 8 EHRR 123
Kioa v West (1985) 159 CLR 550
Koowarta v Bjelke Petersen (1982) 153 CLR 168
Kruger v Commonwealth (1997) 146 ALR 126
Leeth v Commonwealth (1992) 174 CLR 455
Lithgow v United Kingdom (1986) 8 EHRR 329
Little v Law Institute of Victoria (No 3) [1990] VR 257
Mabo v Queensland(1988) 166 CLR 186
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202
MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622
Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8
Manchester Airport Plc v Dutton [2000] 1 QB 133
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
Melkman v Commissioner of Taxation (1988) 20 FCR 331
Mellacher v Austria (1990) 12 EHRR 391
Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151
Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565
Municipal District of Concord v Coles (1906) 3 CLR 96
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298
Nguyen v Refugee Review Tribunal (1997) 74 FCR 311
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442
O'Sullivan v Farrar (1989) 168 CLR 210
Pareroultja v Tickner (1993) 42 FCR 32
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Purvis v New South Wales (2003) 217 CLR 92
R v Hickman; Ex parte Fox (1945) 70 CLR 598
R v Secretary of State, Ex parte McQuillan [1995] 4 All ER 400
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Rasmussen v Denmark (1985) 7 EHRR 371
Re Queensland Electricity Commission; Ex parte Electrical Trades Union(1987) 61 ALJR 393
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Secretary, Department of Veteran's Affairs v P (1998) 79 FCR 594
Simpson v United Kingdom (1986) DR 274 (European Commission of Human Rights, 14 May 1986)
Sinclair v Maryborough Mining Warden(1975) 132 CLR 473
Smallwood v State of Queensland [1985] 1 Qd R 477
South Australia v Tanner (1989) 166 CLR 161
Sportodds Systems Pty Ltd v New South Wales (2003) 202 ALR 98
The Queen v Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 158 CLR 327
Trau v Repatriation Commission (1998) 88 FCR 349
Vanstone v Clark (2005) 147 FCR 299
Western Australia v The Commonwealth Native Title Act Case (1995) 183 CLR 373
Western Australia v Ward (2002) 213 CLR 1
Yanner v Eaton(1999) 201 CLR 351
BELLA BROPHO on behalf of the Members of the Swan Valley Nyungah Community Aboriginal Corporation and Aboriginal inhabitants of Reserve 43131 v STATE OF WESTERN AUSTRALIA, ABORIGINAL AFFAIRS PLANNING AUTHORITY and BARRY CHARLES JAMESON
WAD 157 of 2003
BELLA BROPHO on behalf of the Members of the Swan Valley Nyungah Community Aboriginal Corporation and Aboriginal inhabitants of Reserve 43131 v STATE OF WESTERN AUSTRALIA, ABORIGINAL AFFAIRS PLANNING AUTHORITY and BARRY CHARLES JAMESON
WAD 204 of 2004
NICHOLSON J
13 APRIL 2007
PERTH
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 157 OF 2003 |
| BETWEEN: | BELLA BROPHO on behalf of the Members of the Swan Valley Nyungah Community Aboriginal Corporation and Aboriginal inhabitants of Reserve 43131 Applicant
|
| AND: | STATE OF WESTERN AUSTRALIA First Respondent
ABORIGINAL AFFAIRS PLANNING AUTHORITY Second Respondent
BARRY CHARLES JAMESON Third Respondent
|
| JUDGE: | NICHOLSON J |
| DATE OF ORDER: | 13 APRIL 2007 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. Costs reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 204 OF 2004 |
| BETWEEN: | BELLA BROPHO on behalf of the Members of the Swan Valley Nyungah Community Aboriginal Corporation and Aboriginal inhabitants of Reserve 43131 Applicant
|
| AND: | STATE OF WESTERN AUSTRALIA First Respondent
ABORIGINAL AFFAIRS PLANNING AUTHORITY Second Respondent
BARRY CHARLES JAMESON Third Respondent
|
| NICHOLSON J | |
| DATE OF ORDER: | 13 APRIL 2007 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. Costs reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
TABLE OF CONTENTS
PART B: GENERAL FINDINGS OF FACT
BACKGROUND CIRCUMSTANCES OF THE SVC AND THE RESERVE PRIOR TO THE RESERVES ACT
Conduct on the Reserve 1993 – 2002
Coronial report on the death of Susan Taylor
Conduct on and concerning the Reserve February - July 2002
Negotiation of 2002 Management Order (August - October)
Further conduct on or concerning the Reserve
Events immediately preceding the enactment of the Reserves Act
Events related to the Reserve following the enactment
Appointment of the Administrator
Revocation of 2002 Management Order
Directions to leave the Reserve
Work undertaken by Administrator
Further events involving the Reserve
The claim based on s 9 of the RDA for deprivation of the right of freedom of movement and residence
The claim under s 9 of the RDA in respect of the acts of the Administrator
The claim under s 12(1)(d) of the RDA for refusal to permit occupation
The claim for deprivation of possession
PART E: SPECIFIC FACTUAL ISSUES
WHO ARE THE MEMBERS OF THE SVC AND WHO WERE INHABITANTS OF THE RESERVE?
Was Robert Bropho an Aboriginal inhabitant of the Reserve?
Was Iva Hayward–Jackson an Aboriginal inhabitant of the Reserve?
DID THE APPLICANT AND THE MEMBERS MANAGE THE RESERVE?
THE CIRCUMSTANCES OF THE INHABITANTS LEAVING THE RESERVE [ISSUE 29]
WHETHER ALTERNATIVE ACCOMMODATION WAS OFFERED
WAS THE RESERVE PREVIOUSLY THE SUBJECT OF GRANTS OF FREEHOLD TO NON-ABORIGINAL PERSONS?
PART F: ISSUES OF INVALIDITY OF THE 2002 MANAGEMENT ORDER
DID THE SVC GIVE INFORMED CONSENT TO THE 2002 MANAGEMENT ORDER AS REQUIRED BY THE LAA? [ISSUE 9]
WAS THE 2002 MANAGEMENT ORDER IN THE PUBLIC INTEREST AS REQUIRED BY THE LAA? [ISSUE 10]
PART G: DISCRIMINATION AND THE RESERVES ACT
The content of ss 9 and 10 of the RDA
WAS THE Purpose of THE Reserves Act DISCRIMINATORY?
WAS THE EFFECT OF THE RESERVES ACT DISCRIMINATORY?
The relevance of the Reserve being only for Aboriginal inhabitants
The Reserves Act with related enactments
PART H: INCONSISTENCY OF RESERVES ACT AND RDA s 10
SUBPART 1: deprivation of rights of ownership and management of property
The relevant statutory provisions
The designation of the Reserve
The 1995 vesting of the Reserve in the SVC
Transition of the 1995 vesting to the 1998 Management Order
Position under the 2002 Management Order
Other reasons why right to manage is not ‘property’
subPART 3: RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE within the borders of the state
Whether such right on the Reserve
Scope of recognised limitations on the right
Did the Reserves Act also have a limiting effect?
The issue of size of the area of the contested limitation
WHETHER ARBITRARY DEPRIVATION OF RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE
subPART 4: RIGHT TO EQUAL TREATMENT BEFORE TRIBUNALs ADMINISTERING JUSTICE
subpart 5: right to participate in public affairs
PART I: INCONSISTENCY OF RESERVES ACT AND RDA s 9
SUBPART 1: RIGHTS OF OWNERSHIP AND MANAGEMENT
SUBPART 2: RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE
Applying the elements of s 9 of the RDA
ARBITRARY DEPRIVATION OF RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE [ISSUES 12, 14, 15 AND 19]
SUBPART 3: RIGHT TO EQUAL TREATMENT BEFORE TRIBUNALS
SUBPART 4: RIGHT TO PARTICIPATE IN PUBLIC AFFAIRS
PART J: CONTRAVENTION OF THE RDA BY ACTS OF THE ADMINISTRATOR
SECTION 9 OF THE RDA AND ACTS OF THE ADMINISTRATOR [ISSUES 30-32]
SECTION 12(1)(D) OF THE RDA: REFUSAL TO PERMIT OCCUPATION [ISSUES 32-34]
DEPRIVATION OF POSSESSION [ISSUES 35-38]
PART L: JUSTIFICATORY CONTENTIONS
Whether defence of reasonable justification
Evidence of lack of reasonableness of respondents in forming opinion on concerns
Issue concerning possibility of injunctions
Reasonableness and proportionality of the solution
Appropriateness of defence of reasonable justification
Reasonableness and proportionality in relation to property rights
The availability of alternative measures
WAS THE RESERVES ACT A SPECIAL MEASURE [ISSUE 19]
The advancement and human rights claimed to be protected
The curial approach to the provision
The sole purpose of the government view
Absence of separate rights for different racial groups and discontinuance
the exception to special measure: s 10(3) OF THE RDA [ISSUE 19]
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WESTERN AUSTRALIA DISTRICT REGISTRY | WAD 157 OF 2003 |
| BETWEEN: | BELLA BROPHO on behalf of the Members of the Swan Valley Nyungah Community Aboriginal Corporation and Aboriginal inhabitants of Reserve 43131 Applicant
|
| AND: | STATE OF WESTERN AUSTRALIA First Respondent
ABORIGINAL AFFAIRS PLANNING AUTHORITY Second Respondent
BARRY CHARLES JAMESON Third Respondent
|
|
| WAD 204 OF 2004 | |
| BETWEEN: | BELLA BROPHO on behalf of the Members of the Swan Valley Nyungah Community Aboriginal Corporation and Aboriginal inhabitants of Reserve 43131 Applicant
| |
| AND: | STATE OF WESTERN AUSTRALIA First Respondent
ABORIGINAL AFFAIRS PLANNING AUTHORITY Second Respondent
BARRY CHARLES JAMESON Third Respondent
| |
| JUDGE: | NICHOLSON J | |
| DATE: | 13 APRIL 2007 | |
| PLACE: | PERTH | |
REASONS FOR JUDGMENT
1 The claims in these cases are in respect of alleged racial discrimination. The claims are brought by former Aboriginal inhabitants of the Swan Valley Nyungah Community Aboriginal Corporation (the SVC) in respect of the enactment of the Reserves (Reserve 43131) Act 2003 (WA) (the Reserves Act) and actions taken under it. It is claimed that the effect of the enactment and the actions was that the Aboriginal inhabitants are no longer able to manage or reside at the Lockridge Camp of the SVC.
2 The applicant in both claims (Bella Bropho) is an Aboriginal person of Nyungah origin. She has been at all relevant times and continues to be a Governing Committee member, Vice-Chairperson, spokesperson and member of the SVC. Further Ms Bropho claims to represent as applicant all persons who were Aboriginal persons of Nyungah origin and also members of the SVC who were Aboriginal inhabitants of the Reserve 43131 (the Reserve) at any time during the period 14 May 2003 to 13 June 2003. Bella Bropho was such an inhabitant. Although I will refer to her as the applicant, it will also be necessary to refer to those whom she represents as ‘the applicants’.
3 The claims which Bella Bropho brings to the Court are directed to the legality of the Reserves Act. That Act came into effect on 12 June 2003 and expired on the second anniversary of that date. The Act is of concern to her because it purported to revoke the management order (the 2002 Management Order) whereby the care, control and management of the Reserve had been placed with the SVC; placed the management of the Reserve with the second respondent, the Aboriginal Affairs Planning Authority (the AAPA); and authorised the third respondent, the Administrator appointed under the Act (the Administrator) to make directions to persons not to enter the Reserve, to leave the Reserve and to prevent entry or facilitate removal of a person. Purportedly pursuant to these powers, directions were made on 13 June 2003 to all persons (other than persons in categories listed as assisting the Administrator in the performance of his obligations) forbidding entry to the Reserve without the express authority of the Administrator. The result is that the Reserve is presently unoccupied and all the Aboriginal inhabitants of the Reserve and other persons living on the Reserve have moved elsewhere.
4 The essential foundation of the case which Bella Bropho brings is that the Reserves Act is invalid as a consequence of its inconsistency with certain provisions of the Racial Discrimination Act 1975 (Cth) (the RDA). She also challenges the actions taken by the Administrator on the same grounds. Additionally, in reliance on the associated jurisdiction of the Court, claims are made for trespass and deprivation of possession.
5 The relief sought is declaratory, injunctive and damages. The injunctive relief sought is mandatory, directed to the respondents to vacate the Reserve and deliver possession of it to the SVC and its members, the Aboriginal inhabitants of the Reserve.
6 Proceeding WAD 157 of 2003 was filed in this Court on 22 July 2003. Proceeding WAD 204 of 2004 was filed on 25 August 2004. The second proceeding was filed following a claim made under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) to cover the eventuality that such a claim was a necessary precondition to the bringing of a claim in this Court. On 28 July 2004 a delegate of the President of the Human Rights and Equal Opportunity Commission issued a notice of termination of the complaint pursuant to s 46PH(2) of the HREOC Act on the ground that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.
EVIDENCE
7 The trial proceeded on affidavits subject to cross-examination where required. Based on the manner in which most of the witnesses were addressed in evidence, these reasons generally avoid the use of honorifics and refer to all witnesses by their given and family names. The following is a list of the affidavits tendered by each party and which ones resulted in cross-examination:
| Affidavits Tendered by the Applicant | Relationship with the Reserve | Cross-Examined |
| Bella Lena Bropho sworn on 15 December 2003 | Aboriginal inhabitant | Yes |
| Bella Bropho sworn on 25 August 2004 | | Yes |
| Bella Bropho affirmed on 26 July 2006 | | Yes |
| Margaret Joanna Jeffery sworn on 15 December 2003 | Non-Aboriginal non-inhabitant, volunteer secretary of the SVC | Yes |
| Margaret Joanna Jeffery affirmed on 25 November 2005 | | Yes |
| Margaret Joanna Jeffery affirmed on 27 July 2006 | | Yes |
| Denise Roberta Sambo sworn on 15 December 2003 | Aboriginal inhabitant | Yes |
| Denise Sambo affirmed on 26 July 2006 | | Yes |
| Robert Charles Bropho sworn on 15 December 2003 | Aboriginal inhabitant | Yes |
| Gregory John Stratton sworn on 11 December 2003 | Non-Aboriginal non-inhabitant, recording a documentary on the Reserve | No |
| Sharon Leah Davies sworn on 15 December 2003 | Non-Aboriginal non-inhabitant, volunteer of the SVC | No |
| Sharon Davies affirmed on 26 July 2006 | | No |
| Lynda Nutter sworn on 19 December 2003 | Non-Aboriginal non-inhabitant, neighbour of the Reserve | No |
| Charlotte Lyndon Bropho affirmed on 27 July 2006 | Aboriginal inhabitant | No |
| Dorothy Bropho affirmed on 27 July 2006 | Aboriginal inhabitant | No |
| Naomi Bropho affirmed on 27 July 2006 | Aboriginal inhabitant | No |
| Paul Allardyce affirmed on 1 August 2006 | Non-Aboriginal non-inhabitant, volunteer of the SVC | No |
| Tina Rose Jackson affirmed on 7 August 2006 | Aboriginal inhabitant | No |
| Affidavits Tendered by the Respondents | Job Title during the Relevant Period | Cross-Examined |
| Irene Mary Thomas sworn on 9 December 2003 | Manager of the Midland Department of Community Development (DCD) Office from 5 May 2003 | No |
| Irene Mary Thomas sworn on 10 March 2004 | | No |
| Terrence Joseph Daly sworn on 4 December 2003 | Manager of Customer Service, Mirrabooka Regional Office, Department of Housing and Works (DHW) | No |
| Terrence Joseph Daly sworn on 19 February 2004 | | No |
| Paul Terence Godden sworn on 4 December 2003 | Manager of Land Claims Mapping Unit in the Department of Land Information(DLI) | No |
| Lesley Ann Affleck sworn on 31 March 2004 | Policy Officer in the Department of Planning and Infrastructure | No |
| Debra Fletcher report filed on 6 February 2004 | Historian | No |
| Lynsey Sarah Warbey sworn on 5 December 2003 | Senior Policy Officer in the Department of the Premier and Cabinet of WA (DPC) | No |
| Lynsey Sarah Warbey sworn on 4 October 2005 | | No |
| David John Pedler sworn on 5 December 2003 | Regional Manager Metropolitan/Wheatbelt Region of Department of Indigenous Affairs (DIA) | No |
| Grahame John Searle sworn on 4 December 2003 | Acting Chief Executive Officer of the Department of Land Administration (DOLA) that became DLI | Yes |
| Roland James Bayman sworn on 5 December 2003 | Acting Manager Midland District of DCD | Yes |
| Barry Charles Jameson sworn on 5 December 2003 | Charted Accountant and Registered Company Auditor, Administrator of the Reserve | Yes |
| Barry Charles Jameson sworn on 18 February 2004 | | Yes |
| Caroline Jane Brazier sworn on 5 December 2003 | Director General of DCD | Yes |
OBJECTIONS TO DOCUMENTS
8 Exhibit P is the bundle of documents. It was admitted on the basis that a limited number of objections would be raised in closing submissions.
9 The applicant objects to exhibit P documents 5, 8 and 9 being received as relevant evidence. They each comprise Orders in Council which are said not to be related to this matter. The respondents propose their tender to prove that the transitional provisions to the Land Administration Act 1997 (WA) (the LAA) affected other management bodies in respect of other reserves, so that those provisions therefore are not discriminatory. On that basis I accept the documents are relevant.
10 The applicant objects to exhibit P document 98. It is a Parliamentary statement, so the use to which it may be put by way of evidence is limited by Parliamentary privilege. The applicant objects, therefore, to its admissibility to prove any fact contained in the statement. However, the applicant has pleaded the document. It is also admissible on the question of special measure: Bella Bropho v State of Western Australia [2005] FCA 941 at [117]-[118]. The document is admitted as proof of what was said to Parliament by the Premier on 14 May 2003 and as proof of what Parliament believed in enacting the Reserves Act. It is not admitted beyond that as otherwise proof of its contents.
11 The applicant objects to exhibit P documents 119, 120 and 121. Each of them comprises a criminal record of persons about whom there has been other evidence. They relate to Robert, Harvey and Herbert Bropho. The applicant states there is no evidence that such records were known to those advising the Government at the time when the Reserves Act was enacted. It is contended by the applicant that the records are therefore not admissible relevant evidence to support the reasons for the enactment or validity of the Reserves Act. The respondents contend that these go to the reputation and character of those named persons, in issue in relation to the appropriateness of the respondents’ actions. They are entitled to admission on that basis and the issue of knowledge of reputation and character falls to be considered when that evidence is sought to be relied upon. In relation to exhibit P document 120, the criminal record of Harvey Bropho, this is relevant because the respondents questioned Denise Sambo concerning his criminal record and the credibility of her evidence in that respect is in issue.
12 The respondents object to exhibit P document 115, A Report of the Select Committee on Reserves. The applicant submits that document is admissible subject to Parliamentary privilege and so is not admissible to prove the facts contained in it. However it is submitted that document 115 is admissible to the extent that it provides content to matters deposed to by Margaret Jeffery by way of reference to the report in the affidavit affirmed 25 November 2005 to which it was annexed. In Bella Bropho v Western Australia [2006] FCA 272, I ruled the document inadmissible on the grounds of hearsay and opinion. Grounds based on relevance and parliamentary privilege were not upheld but that cannot overcome the inadmissibility arising from hearsay and opinion.
13 The respondents object to exhibit P document 21, an extract from a Report of the Australian Institute of Health and Welfare. The applicant again maintains the document is admissible to the extent that it provides content to matters deposed to by Margaret Jeffery by way of reference to the report in the affidavit affirmed 25 November 2005 to which it was annexed. Alternatively, that document 21 is to be taken into account as submission by the applicant. Document 21 fails for the same reason as document 115, having also been previously ruled upon in Bropho [2006] FCA 272.
CONFIDENTIALITY
14 The respondents’ submission makes reference to evidence the subject of consensual confidentiality orders made by Lee J on 13 February 2004. Under orders 21 and 22, the supplementary affidavits of Irene Mary Thomas and Terrence Joseph Daly (exhibits 1(2) and 2(2) respectively) are to be viewed only by, and not disclosed to anyone except for the Court, Court staff, the deponents and other officers of the respondents and the solicitors and counsel for the parties.
PART B: GENERAL FINDINGS OF FACT
BACKGROUND CIRCUMSTANCES OF THE SVC AND THE RESERVE PRIOR TO THE RESERVES ACT
Origins
15 The SVC was incorporated on 25 February 1994. It comprised the group previously known as the Fringedwellers of the Swan Valley, of which the Bropho family was a major participant. The group had been formed in the 1970s. In April 1977 the Fringedwellers established a tent city in Stirling Square, Guildford to protest the poor housing conditions available to them. By June 1977 they were relocated to a temporary camp on Reserve 25363, immediately adjacent to the Reserve. Later they returned to Stirling Square and later still moved to Herisson Island on 10 December 1978. In the 1980s the group moved to the Reserve. However, their occupancy was tenuous and uncertain and they moved back to Herisson Island in October 1984 before again returning to the Reserve.
16 On 19 July 1994 (gazetted on 22 July 1994) the Reserve was set apart as a public reserve for the purpose of ‘Use and Benefit of Aboriginal Inhabitants’ pursuant to s 29 of the Land Act 1933 (WA) (the Land Act 1933). Pursuant to s 33(2) of the same Act it was vested in the SVC for that purpose.
17 At the beginning of 1995 tension arose at the Reserve concerning the management of the SVC by Robert Bropho Snr and members of his family. (All references to Robert Bropho are to Robert Bropho Snr unless otherwise stated). In April 1995 the SVC passed a resolution which had the effect of vacating the office of Chairperson. A son of Robert Bropho became Chairperson and Robert Bropho’s daughter, Bella Bropho, became Vice-Chairperson. On 12 December 1995 the vesting of the Reserve was revoked pursuant to s 34B(1) of the Land Act 1933. The Reserve was amended pursuant to s 37 of that Act. It was then revested in the SVC for the same designated purpose as previously pursuant to s 33(2) of that Act.
18 On 30 March 1998 the Land Act 1933 was repealed by the LAA. Pursuant to the transitional provisions in the Second Schedule to the LAA the vesting order of 12 December 1995 became a management order (the 1998 Management Order) under s 46 of the LAA.
Conduct on the Reserve 1993 – 2002
19 In 1993 Arthur Edward Bropho (aged 27) hanged himself from a tree said to be on the Reserve. Police considered the death to be a suicide. According to Margaret Jeffery, Arthur Bropho did not live or die at the Reserve, but rather died at Bennett Brook (which is near the Reserve).
20 In November 1994 Edna Maria Bropho (then 14 years old) was excluded from the Reserve by Robert Bropho and lived a transient lifestyle. From an early age, Edna had resided with her great aunt Edna Bropho Snr and her husband Robert Bropho. Edna was chronically addicted to various substances, having sniffed toluene since age 9 together with heavy use of marijuana on a daily basis. She was unable to read due to the effects of substance abuse and only attended school on a limited basis. Caroline Brazier accepted in cross-examination that one of the reasons Edna was excluded from the Reserve was because of her ‘sniffing’.
21 In February 1995 the Department of Community Development (the DCD) received reports that Edna Bropho was afraid to return to the Reserve because of physical violence from her uncle, Harvey Bropho and the absence of protection from other adults at the Reserve. This gave rise to a formal Child Maltreatment Allegation. A further Child Maltreatment Allegation was later raised concerning an alleged physical assault by Herbert Bropho. Margaret Jeffery denies any knowledge of these events.
22 Denise Sambo, de-facto partner of Harvey Bropho, gave oral evidence that despite knowing Harvey had an extensive criminal record for violence, to Ms Sambo’s knowledge, Harvey had never assaulted or threatened any one and she had never seen him commit any of these acts.
23 From approximately 1995 the Derbarl Yerrigan Health Service (the Service) (formerly Perth Aboriginal Medical Service) had been banned by Robert Bropho from entering the Reserve and so did not have any adequate access to the Reserve. Evidence was given to the Coronial Inquiry into the death of Susan Taylor that the Service had difficulties accessing the area of the Reserve since the 1980s. The Coronial Inquiry heard evidence that the Service was banned from attending the Reserve following an incident in which nursing staff from the service had given a needle to the daughter of Bella Bropho when she had a cold. The community believed that event had resulted in the child’s death and had caused the community to lose faith in the Service. The community then began to seek their medical services from the Lockridge Medical Service instead.
24 In 1995 members of the Western Australian Police Service (WAPS) attended the Reserve having followed a stolen vehicle onto the property. A serious confrontation developed in which the police car was damaged by a number of persons, including Robert Bropho. Following the incident it was police procedure to call ahead to Robert Bropho before entering the Reserve and as a general rule two vehicles would enter the campsite together. Mr Bropho denied that the 1995 incident had occurred, but did not dispute the existence of the police procedure. Mr Bropho described it as ‘building bridges’.
25 Between April and May 1996 Cynthia Parfitt (aged seven) alleged that she had been sexually abused at the Reserve by Guy Bropho (aged 14), the grandson of Robert Bropho. She also identified other children whom she believed had been abused by Guy Bropho. Robert Bropho refused access to the Reserve to government agencies who visited to discuss the matter and did not allow investigators to talk to the children concerned or their parents.
26 In May 1996 the SVC Camp School began. It was established as an annex to the existing Lockridge Primary School and operated as a kindergarten up to grade 10 school.
27 On 24 June 1996 Robert Bropho denied the DCD access to the Reserve to discuss a program aimed at keeping children safe from abuse. His response was regarded as abrupt and the DCD staff were advised they were no longer permitted on the Reserve. Mr Bropho denied this in his evidence.
28 On 12 July 1996 Nicole Bropho (aged 13) was found deceased at the Reserve, having hanged herself on the perimeter fence.
29 On 10 September 1996 Edna Bropho (aged 16) alleged physical abuse by Herbert Bropho whilst she was staying briefly at the Reserve. Her injuries were noted as a gash to the head and four long red/purple welts which she claimed had been inflicted with a bottle and a broom. Miriam Spratt also made allegations at this time that Herbert Bropho had been hitting children who lived at the camp.
30 In mid-1997 Robert Bropho ordered the DCD staff off the Reserve. At the time the DCD were involved in the investigation of claims made by a young child on the Reserve that he had been inappropriately touched by older boys. They wished to talk to the boys concerned but were unable to follow up the allegations due to lack of access. Mr Bropho confirmed this incident in his evidence. Subsequent to that incident officers from the DCD Midland office did not seek to access the Reserve. However some of the DCD staff from other district offices continued to access the Reserve.
31 In mid-1997 a weekly playgroup conducted by the DCD on the Reserve was no longer able to operate as a consequence of what was considered to be the direction of Robert Bropho. He closed down the playgroup after Richard Bropho ‘run amok with one of the teachers’ abusing her. In other words, the playgroup was closed as a measure to protect the teacher.
32 In October 1997 the DCD was notified that Marion Bropho, a three month old child, had been abandoned in Northbridge near the City of Perth. Marion was returned to her mother, Dorothy Bropho. According to Dorothy she was ‘going out’ and left Marion with two of her cousins who were later picked up on bench warrants by the police.
33 On 20 October 1997 Robert Bropho, after a confrontation, ordered one of the SVC Camp School teachers off the premises. The teacher did not return and was replaced with a new teacher. Mr Bropho denied that he ordered the teacher to leave the Reserve.
34 On 23 January 1998 police observed Susan Taylor (aged 15) attempting to hang herself from the front perimeter fence of the Reserve.
35 On 10 May 1998 Susan Taylor again attempted to hang herself and was conveyed to the Swan Districts Hospital Emergency Department where she was reported as acting violently towards staff. She was later conveyed to Graylands Hospital and then Bentley Adolescent Inpatient Unit.
36 On 5 and 6 August 1998 police attended the Reserve attempting to catch Richard Bropho who was allegedly heavily intoxicated. In the following two days Richard Bropho had a violent confrontation (one of a physical threat of violence and one of verbal abuse) with the Camp School’s two teachers.
37 On 14 August 1998 the Department of Education (DOE) withdrew its school teachers from the Reserve due to concerns about violence on the Reserve. Arrangements were made with Robert Bropho for the teachers to return to the school to collect personal belongings. The teachers were given five minutes to get a few possessions and leave by Robert Bropho who stood at the gate to the camp, allegedly in an intimidating manner. DOE property was left at the Reserve in a transportable building.
38 Bella Bropho gave evidence that this arose from one incident involving Richard Bropho. Margaret Jeffery testified that the school was closed by the community following an incident involving one of Robert Bropho’s sons who was affected by ‘speed’.
39 On 4 January 1999 Susan Taylor made a complaint to police at the Midland Detectives Office in relation to an allegation of an indecent assault and a physical assault perpetrated on her by her uncle, Richard Bropho. That incident was alleged to have occurred on the Reserve. The Coroner, in his Report into the death of Susan Taylor, accepted that after the incident Susan Taylor had gone to Robert Bropho’s place where he did little or nothing to investigate her concerns. According to Margaret Jeffery, Susan Taylor was being abused elsewhere than at the Reserve.
40 In February 1999 Susan Taylor hanged herself in the ablution block of the Reserve. The Report of the Coroner into her death found that she, along with other young people associated with the Reserve, had been sniffing spray paint on the morning of her death. Ms Taylor was not a resident of the Reserve but was a frequent visitor to the Reserve.
41 On 22 March 1999 the police received a complaint that Robert Bropho had sexually assaulted Lena Spratt, a former resident of the Reserve. The police arrested Mr Bropho on 28 June 1999 following this complaint from Lena’s mother, Miriam Spratt. The charge was later withdrawn prior to the trial because of deficiencies in the DNA evidence, but the charge was reinstated on 21 May 2003. Robert Bropho was acquitted of the charge in September 2004.
42 On 16 May 1999 Clinton Bropho was admitted to the Swan Districts Hospital for
non-accidental injuries. He had been assaulted by his uncle, Herbert Bropho because he had been sniffing glue. Bella Bropho, Margaret Jeffery and Charlotte Bropho deny any knowledge of this event and state that they would have known if this event had occurred.
43 In November 1999 Marion Bropho (then aged two) was reported to have been abandoned outside the gates of the Reserve. Margaret Jeffery denies any knowledge of this event. Dorothy Bropho, Marion’s mother, also denied that this occurred.
44 On 25 December 1999 the DCD arranged for temporary accommodation for Dorothy Bropho and her daughter Marion after Dorothy contacted the DCD saying she had had a family dispute, felt unsafe and wanted to leave the Reserve. Several other requests for emergency accommodation were made by Dorothy in early 2000. Margaret Jeffery denies any knowledge of this event. According to Dorothy, she and her mother had ‘a little disagreement’ and that she wanted to give her mother ‘a bit of room … because her partner had got released from gaol just before Christmas’.
45 On 8 January 2000 the Swan Hospital Emergency Department provided a medical report that Richard Bropho was treated for lacerations to the head, stomach and legs as a result of an assault by Herbert Bropho that occurred at the Reserve. Bella Bropho, Margaret Jeffery and Charlotte Bropho deny any knowledge of this event and state that they would have known if this event had occurred. However Charlotte Bropho admitted that Herbert would ‘jar up’ Richard and ‘tell him off’ for sniffing.
46 On 12 and 13 April 2000 Marion Bropho (then aged two years and nine months) was sexually assaulted by her mother’s brother, Timothy Bropho, and her cousin Nigel Bropho at the Reserve. As a result of the sexual assault, Marion suffered severe injuries and tears to her vagina and anus. According to Naomi Bropho and Margaret Jeffery, both men were living on the Reserve at the time.
47 Marion Bropho had been left with Naomi Bropho by her mother Dorothy Bropho, who according to Naomi, ‘was on heroin’ and ‘wanted to go somewhere else’. Naomi then left Marion with Nigel Bropho because she had to care for her own child. According to Margaret Jeffery, both men were severely under the influence of glue and alcohol and were in a psychotic state at the time. Naomi Bropho also stated that Nigel was under the influence of glue at the time as she could smell it on his breath.
48 Nigel Bropho pleaded guilty to the sexual assault in July 2001 and was sentenced to two years detention. Timothy Bropho was convicted following a trial in May 2002 and sentenced to 12 years imprisonment. Following the sexual assault in April 2000, Marion Bropho was removed from Dorothy Bropho’s custody and placed in foster care. Marion was made a ward of the State in November 2000. Caroline Brazier explained in her oral evidence that she was concerned, not just about the fact that this incident occurred, but also about the level of substance abuse by those two residents of the Reserve that led to them committing the crime.
49 According to the DCD’s records, on 29 June 2000 a young woman, Natasha Bropho, (daughter of Bella Bropho) had her throat cut with a tennis racket by Herbert Bropho while at the Reserve. Charges were laid against Herbert Bropho. Bella Bropho confirmed in her oral evidence that Natasha had a laceration to her neck caused when Herbert Bropho accidentally hit her with a tennis racket. Herbert was not convicted of assault because Natasha went to South Australia and did not appear to give evidence. Natasha denied that was because she was scared to give evidence against Herbert, but her evidence in that regard was unconvincing.
50 According to Bella Bropho and Margaret Jeffery, Herbert Bropho assaulted Natasha Bropho because she was sniffing. Bella Bropho acknowledged that Herbert used to bash children he found sniffing on the Reserve but said, ‘[i]t finally dawned on my brother Herbert what he was doing, that it was wrong, and that it was no way to help sniffers, with violence. His attitude has changed now. He does not use violence against sniffers’.
51 On 29 June 2000 Maree Baker was physically abused by Herbert Bropho. This was substantiated on the DCD computer record system on 30 June 2000. According to Margaret Jeffery, Maree was assaulted by Herbert Bropho because she was sniffing solvents. He was duly charged.
52 On 30 May 2001 Lynette Bropho and a seven year old child sought assistance to escape from domestic violence occurring on the Reserve. Bella Bropho, Margaret Jeffery and Charlotte Bropho deny any knowledge of this event and state that they would have known if any domestic violence had occurred at the Reserve.
53 In August 2001 Clinton Pickettmade allegations about physical and sexual abuse of himself and other youths on the Reserve.
54 On 20 September 2001 Morgan Spratt (also known as Morgan Bropho) (aged 22) died at the Reserve as a result of acute toluene toxicity brought about by solvent abuse. Morgan lived in Northam but would stay at the Reserve whilst in Perth. Morgan suffered from organic and drug induced psychosis brought on by years of solvent abuse. According to the Report of the Coroner into the death of Morgan Spratt (delivered on 2 April 2004), for much of the time Morgan was at the Reserve he was on one substance or another, and whilst some on the Reserve believed that he was not medication compliant, no-one seemed to have endeavoured to determine what he should be taking and when.
55 On 29 October 2001 a 14 year old girl, Megan Bropho (who was not a resident of the Reserve), was picked up by police in an intoxicated state. Kiara police were concerned about dropping her at the SVC.
56 On 11 January 2002, Ric Baker sought priority housing from the Department of Housing and Works (DHW) on the basis, he said, of financial hardship, homelessness, domestic violence and harassment from residents of the Reserve. However he was not provided priority housing at that stage.
Coronial report on the death of Susan Taylor
57 In 2001 the Western Australian Coroner, his Worship Alistair Hope, conducted an inquest into Susan Taylor’s death. The Report of the Coroner into the death of Susan Taylor was published on 21 November 2001. The evidence given at that inquest, and the Coroner’s report, disclosed high levels of substance abuse by, and sexual abuse of, young people associated with the Reserve. The Report also highlighted significant difficulties experienced by service providers in gaining access to the Reserve and those in the community. It specifically investigated access to the campsite by the Family and Children’s Services (now the DCD) and the police.
The Gordon Inquiry
58 On 15 January 2002 the Acting Premier and Minister for Public Sector Management established an inquiry under s 11(1) of the Public Sector Management Act 1994 (WA) (Public Sector Management Act) entitled ‘Inquiry into Responses by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities’. That inquiry was conducted by Magistrate Sue Gordon AM, the Hon Kay Hallahan AO and Mr Darrell Henry and is generally known as the ‘Gordon Inquiry’.
59 The Gordon Inquiry was triggered by the Government’s consideration of the Report of the Coroner into the death of Susan Taylor. In February 2002 Lynsey Warbey was seconded from the Crown Solicitor’s Office to be the instructing solicitor for Richard Hooker, counsel assisting the Gordon Inquiry.
60 On 31 July 2002 the Gordon Inquiry report ‘Putting the Picture Together, an Inquiry into Response by Government Agencies to Complaints of Family Violence and Abuse in Aboriginal Communities’ was published. The report contained various findings and recommendations with respect to the functions of Government agencies in relation to aboriginal communities.
61 Part 5 of the Gordon Inquiry report addressed issues relating to the occupants of the Reserve. Recommendation 141, within Pt 5 of the Gordon Inquiry report, was the only recommendation dealing specifically with the SVC. That recommendation was that:
‘The Inquiry recommends that urgent steps be taken to develop Memorandum [sic] of Understanding between the Swan Valley Nyungah Community and those government agencies which may reasonably seek access to that community. In developing those Memoranda of Understanding, the conclusion of the Inquiry as to the good faith of service providers and their legitimate exercise of government function, ought be taken into account.’
62 Between August 2002 and December 2002 a Directors General Taskforce (DG Taskforce), with assistance from a taskforce secretariat within the Department of Premier and Cabinet (DPC) prepared the Government’s response to the Gordon Inquiry report.
63 At the beginning of December 2002 the Government published its response to the Gordon Inquiry report. In relation to the Gordon Inquiry recommendation 141, (which concerned the development of a Memorandum of Understanding (MOU) between the SVC and the Government) the response stated that:
‘The Government has acted quickly to examine and respond to issues concerning the Swan Valley Nyungah Community (SVNC) and Government agencies’ relationship with this community.
This examination and the report into the findings of the Coroner’s Court Western Australia about the investigation into the death of 15-year-old Susan Taylor, who died in tragic circumstances at the reserve, and the Gordon inquiry, gave rise to concerns about the management of the Lockridge land occupied by the Swan Valley Nyungah Community Aboriginal Corporation and the health and well-being of children and families resident on this land.
The State Government has acted quickly to register a new management order over the land to ensure it is managed in the best interests of it’s residents. This management order, which has taken effect, ensures that Government agencies have full access to the community, so that residents can get the benefit of Government services. This is especially important for community services, education and health officers.
The agreement reached will allow Government to monitor the corporation to ensure it is run in an open and democratic way and in compliance with its rules and relevant Commonwealth legislation. The corporation is also required to prepare a management plan within six months for Ministerial approval.’
64 The Government’s response did not include a MOU with the SVC. Caroline Brazier explained that Memoranda of Understanding are effective if developed and implemented with people who are committed to working closely with Government, but where that is not the case they have not proved to be effective.
65 Two separate committees were established within the Government to implement the Government’s response. Those committees were:
(a) Directors General Gordon Implementation Group (Gordon Implementation Group). This comprised the Directors General of the DCD, DOE, Department of Indigenous Affairs (DIA), Department of Health (DOH), DHW, Department of Justice (DOJ), Department of Local Government and Regional Development, the Commissioner for Police and Shawn Boyle from the Social Policy Unit of DPC. It was co-chaired by Caroline Brazier, the Director General of the DCD, and Barry Mathews, the Commissioner for Police. Its role was to oversee the implementation of the Government’s response.
(b) Senior Officers Gordon Implementation Group (Senior Officers Group). This comprised the same representatives as the Gordon Implementation Group as well as other senior government officers and representatives from the Aboriginal and Torres Strait Islander Commission (ATSIC). It was co-chaired by Sean Boyle of DPC and Mick Gooda, State Manager of ATSIC. It had a more active role in the development and management of projects which were part of the Government’s Gordon Inquiry response.
66 The Government also established the Gordon Implementation Secretariat (the Secretariat) within the DPC, to co-ordinate the Government’s response. On 24 February 2003 Lynsey Warbey was appointed the manager of the Secretariat. The role of the Secretariat was to monitor the implementation of the Government’s response to the Gordon Inquiry report, support the DG Taskforce, the Gordon Implementation Group and the Senior Officers Group, perform ad hoc policy and project management functions and report to the Government on implementation and other key issues or projects.
67 On 3 December 2002 the SVC again wrote to the Premier referring to their earlier letters of 17 October 2002 and 5 November 2002 concerning the negotiation of a MOU and referring to a media release that the Premier would be meeting with ATSIC to discuss the implementation of the Gordon Inquiry.
Conduct on and concerning the Reserve February - July 2002
68 On 25 February 2002 the DCD received a report that a 16 year old girl associated with the Reserve, Tina Jackson, was under the influence of alcohol and concerns were held for her safety. On 11 March 2002 the DCD received a further report of concerns that Tina Jackson was sniffing. Bella Bropho, Margaret Jeffery and Charlotte Bropho deny any knowledge of these events and stated that Tina only occasionally resided at the Reserve and did not sniff at the Reserve. Tina also stated that she never sniffed at the Reserve because she would have ‘got in trouble’.
69 In March 2002 Roland Bayman took over as Manager of the DCD Midland office and was told by other officers of that Department that the DCD officers had been excluded from the Reserve around 1997 by Robert Bropho. He was also told that efforts by Donna Birch, a Senior Aboriginal Services Officer within the DCD Mirrabooka office, prior to the Gordon Inquiry, to develop a MOU with the SVC about access and service provision had been put on hold pending the outcome of the Gordon Inquiry.
70 On 1 March 2002 a Crown Prosecutor, Patti Chong, was involved in trial preparation for the prosecution of Timothy Bropho for sexual abuse of Marion Bropho. Ms Chong visited the Reserve to interview witnesses associated with the matter. Robert Bropho was initially co-operative but became antagonistic when Ms Chong asked to interview other relevant witnesses, calling her a liar and restricting her contact with members of the Reserve. Ms Chong’s evidence to the Hooker Inquiry (defined in [83] below)was that Mr Bropho said:
‘When you telephoned me to say you wanted to come up to see people, you told me you wanted to see Lorelle Bropho, you wanted to see Damien Parfitt and you wanted to see me. You never mentioned that you wanted to see Bella Bropho or anybody else what gives you the right of having told me some untruth to come in now to speak to anybody that I (sic) wish in the community.’
71 The applicant submits it is a reasonable interpretation of that evidence that Robert Bropho in a misguided sense considered that Patti Chong was approaching the matter in a surreptitious manner and that he had a duty not to be hood-winked by her into exposing members of the community to such an approach.
72 On 14 March 2002 whilst leading evidence in the trial against Timothy Bropho, Patti Chong received messages from, and spoke to, Robert Bropho who threatened to sue her for defamation, stating that she had done enormous damage to his community because of what had been reported in the press regarding the trial. The applicant submits it is not unlawful conduct for Robert Bropho to have threatened to sue for defamation unless he did so knowing that the prosecution of any such action would be malicious and done without him honestly believing that the prosecution of the action was justified, and that there was reasonable and probable cause for the action: Hicks v Faulkner (1878) 8 QBD 167 at 171; Herniman v Smith [1938] AC 305; Little v Law Institute of Victoria (No 3) [1990] VR 257 at 262-263. The evidence does not support a conclusion that Robert Bropho had the requisite knowledge to make the threat unlawful. He apparently did not know, although Ms Chong knew or ought to have known that what she had said in opening of the Crown case was subject to absolute privilege, and so she could not be sued for defamation: see Peterson LJ in Hodges v Webb [1920] Ch D 70 at 89.
73 On 29 May 2002 Tina Jackson was admitted to Royal Perth Hospital for sniffing. She refused to return to the SVC. Tina Jackson was not a regular resident at the Reserve, but Caroline Brazier was generally aware that girls were fearful of going to the Reserve on occasions. Tina Jackson stated in her affidavit that she was not in hospital for sniffing and that she only sniffed occasionally and did not do it anymore.
74 On 1 July 2002 Kathleen Clarkson and her three year old child requested emergency accommodation to escape domestic violence at the Reserve. Bella Bropho, Margaret Jeffery and Charlotte Bropho state that Ms Clarkson had left the Reserve before July 2002 and denied any knowledge of this event. They also stated that they would have known if any domestic abuse had occurred at the Reserve.
75 On 5 July 2002 a young woman, Isobel Bropho, stated to the DCD case workers that she had been raped and sexually abused as a child by Robert Bropho and that another young woman, Edna Bropho had also been treated the same way. The latter denied on oath at the Coronial Inquiry into the death of Susan Taylor that this had occurred. Both had chronic substance abuse problems and in 2003 were in prison in South Australia and Western Australia. Robert Bropho has since been charged in relation to those allegations.
76 On 10 July 2002 Bonnie Wallam, the pregnant partner of Richard Bropho (a young man in his early 20s and a grandson of Robert Bropho), reported that she had been assaulted by Richard Bropho and was seeking accommodation to escape from him.
77 On 30 July 2002 the Swan Districts Hospital reported concerns that a nine year old child, Peula Bropho, had been admitted for medical treatment (not related to abuse) but by the time she was ready to be discharged no family could be contacted and no-one had visited her while she was in hospital. According to Denise Sambo, she visited Peula every day and believes that this information is a mistake.
78 Roland Bayman a project manager of the DCD was asked in cross-examination whether this was the same incident which formed the basis of his interview with Peula Bropho in April 2003 (the 2003 meeting being in relation to Peula’s well being after she had been to the Lockridge Medical Centre for scabies) and Mr Bayman said he believed it was the same. Caroline Brazier understood there may have been two different occasions involving the same child. In the respondents’ submission there is no inconsistency between the evidence of Mr Bayman and Ms Brazier. Mr Bayman was clearly confused by the ambiguous nature of the questioning, and the better understanding of his evidence is that there were two incidents both involving the same girl. I proceed on the basis such was the case.
Negotiation of 2002 Management Order (August - October)
79 On 10 October 2002 the Department of Land Administration (DOLA) provided the SVC with a copy of the conditions for the proposed 2002 Management Order for agreement. On 11 October 2002 the SVC wrote to the Minister for Lands advising of their acceptance of the 2002 Management Order and stating that ‘you have put into writing all the changes that we want to the management order’.
80 On 11 October 2002 Lesley Affleck, on behalf of the Minister for Planning and Infrastructure, wrote to the SVC stating that some small amendments to the proposed 2002 Management Order’s conditions had been necessary and providing a revised copy of the conditions for the proposedorder for agreement.
81 On 11 October 2002 Harvey Brophy wrote to the Minister for Planning and Infrastructure and confirmed that the 2002 Management Order was acceptable. The letter stated that ‘if this is the final version of the management order, lets get on with it. We have discussed it and it is acceptable’. (Whether in fact the SVC gave informed consent is considered below).
82 On 11 October 2002 the documents pertaining to the revocation of the existing 1998 Management Order and proposed 2002 Management Order were lodged at DOLA for registration. Pursuant to these documents:
(a) the Order in Council gazetted on 12 December 1995 vesting Reserve 43131 in the SVC for the designated purpose of ‘Use and Benefit of Aboriginal Inhabitants’ (as purportedly converted to a management order by the 1998 transitional provisions) was revoked pursuant to s 50 of the LAA; and
(b) by registration of the 2002 Management Order the Minister placed the care, control and management of Reserve 43131 with the SVC for the purpose of ‘Use and Benefit of Aboriginal Inhabitants’ subject to the conditions set out therein. The 2002 Management Order required, amongst other things that the SVC prepare a management plan by April 2003 for the approval of the Minister for Planning and Infrastructure.
The Hooker Inquiry
83 On 23 October 2002 following the Gordon Inquiry report, another inquiry was established under the Public Sector Management Actto review the DCD’s handling of a number of child abuse cases. That inquiry was conducted by a barrister, Richard Hooker (the Hooker Inquiry). The report was published on 30 April 2003. Of the eight cases reviewed by the Hooker Inquiry, four were associated with the SVC, being Marion Bropho, Edna Bropho, Morgan Bropho and Timothy Bropho.
84 When the Hooker Inquiry report came to the attention of Caroline Brazier in mid-May 2003, she was satisfied that the concerns previously expressed to her by senior officers of her Department had been well-founded. Having regard particularly to Marion Bropho’s case, and the other cases not associated with the SVC, Richard Hooker concluded that:
‘One cannot fail to be moved, from beginning to end, by the horrific criminal conduct disclosed in the file documentation. That the victims are all children – most of them very young infants – serves to compound the tragedy. The seemingly self-perpetuating spiral of deprivation, substance abuse, and, in many cases, sheer sexual deviancy, continues to demand the most careful, dedicated measures from Government to redress its progress and avert its dreadful impact.’
Mr Hooker also concluded that:
‘For the Department of Community Development, its management and staff remain the most valuable of assets. With a certain fine tuning of some specific aspects of its service delivery, and the ongoing consideration of the conceptual challenges posed for its delivery of services, the Department with its new structure and richer, contemporary legislative base, can further enhance its quality of performance and continue to be a leading component of the Government of Western Australia in targeting the ongoing and utterly unacceptable abuse of children and other powerless Aboriginal Australians.’
Further conduct on or concerning the Reserve
85 On 17 October and 5 November 2002 the SVC wrote to the Premier and a number of Ministers concerning the Gordon Inquiry report and negotiation of a MOU between the Government and the SVC. No substantive step resulted.
86 In the meantime the DCD received reports of incidents involving domestic and family violence, intimidation, abuse and neglect amongst persons associated with the Reserve, although not solely from inhabitants of it.
87 On 21 November 2002, a meeting was convened at the request of the Director General of the DPC of representatives of seven government agencies. It was called to inform them about the new 2002 Management Order for the Reserve and that the Government wanted them to exercise their right of access to the Reserve in accordance with that order to perform their functions and also to ascertain what services were being provided to the SVC and how government agencies could better coordinate service provision to that community. That approach was favoured consistently with the recommendation of the Gordon Inquiry. The meeting agreed to undertake a stock take of the services and resources being delivered to the communities and how they could be more effectively delivered. The Midland office of the DIA was to take on the co-ordinating role for future meetings. The priority was to prevent further incidents of abuse of women and children such as had been disclosed in the Coronial Inquest into the death of Susan Taylor and the Gordon Inquiry.
88 On 29 November 2002 a meeting was held at the DIA Midland office consisting predominantly of the local Midland government agencies and frontline service provider staff involved with the SVC. The group became known as the Interagency Working Group (the Working Group). Agency representatives agree that their goal was to ensure residents of the SVC had access to the services provided by Government and other agencies, to enable individuals and families to live in a safe and healthy environment. The outcomes of the meeting were that by 2 December 2002 the DIA would contact the SVC leaders to acknowledge their correspondence seeking a MOU, to explain the intention of a collaborative and coordinated agency approach to service provision to the SVC, and to discuss the SVC involvement in that process. It was also agreed the Working Group would conduct a workshop with the SVC at the Reserve to identify and consider issues of concern to the SVC and develop an action plan based on the collaborative and coordinated agency approach.
89 On 2 December 2002 the DIA Regional Officer, David Pedler phoned the SVC office but was unable to speak to Robert Bropho. He was told by Margaret Jeffery that it would not be possible for a meeting to take place until late January 2003.
90 On 3 December 2002 the SVC again wrote to the Premier referring to the earlier letters concerning the negotiation of a MOU.
91 In early December 2002 Lynsey Warbey of the DPC and the Director General of the DIA organised a delegation of government officers to visit the Reserve to conduct what was known as a ‘community audit’. Its purpose was to gather information about who was living on the Reserve, to assist in planning government service delivery to the SVC as well as to explain to the SVC the Government’s intention to improve service delivery using the 2002 Management Order.
92 The visit was planned for 4 December 2002. The residents of the Reserve had only about 10 minutes notice of the visit. They comprised approximately 25 persons, including women and children, headed by Robert Bropho. The visiting group was headed by a Police Superintendent supported by a Police Sergeant. Media representatives were at the gate of the Reserve. In the eyes of the community of inhabitants, it appeared as a show of force by the Government. The view of Roland Bayman of the visiting party was that he was met in a threatening manner and, because of the resulting tense mood, no audit was conducted. However, Robert Bropho agreed that the Working Group could meet with the SVC management to discuss the proposed workshop with the whole of the SVC on 17 December 2002. Mr Bayman told Mr Bropho on the occasion that, where appropriate, the DCD would telephone ahead to say it wanted to speak to someone on the Reserve but that on occasions they would attend unannounced, with or without police.
93 On 5 December 2002 Roland Bayman again visited the Reserve, this time with a DCD child protection worker, to speak with a young girl about whom there were concerns whether her needs were being adequately met by her carers. Although a meeting was sought in the privacy of the girl’s home, Robert Bropho told Mr Bayman that they could meet in the public open space on the Reserve. That was where the meeting took place, it being also attended by Sharon Davies who made notes. In his evidence Mr Bayman conceded that the reception he received at this subsequent visit may have been adversely affected given the events of 4 December 2002.
94 On 6 December 2002 the Working Group met to plan the workshop.
95 On 10 December 2002 the SVC wrote to the Premier referring to the community audit on 4 December 2002. In a memorandum to various government officers of the same date the community described the audit as a raid and requested that they be informed of any visit.
96 On 18 December 2002 a meeting was held at the Reserve to discuss the community workshop. Although other Aboriginal people were present, only Robert Bropho and Margaret Jeffery spoke on behalf of the SVC. Mr Bropho commenced the meeting by presenting the government officers with a document entitled ‘Preliminary Suggestions for Assistance’ together with a copy of a letter to the Coroner complaining in relation to what he considered to be errors in the report on the inquest in to the death of Susan Taylor. He spoke also about the removal of the classroom from the Reserve earlier in the year, and his desire for a MOU with the Premier. David Pedler of the Working Group said that they were not able to respond to those issues, their role being to discuss local services for the residents of the camp and the workshop. He stated that the context was one where the Government was unable to engage with members of the community regarding direct service provision or to identify with precision who were the members of it. Robert Bropho said he would think about the workshop and contact Roland Bayman concerning it. In relation to discussing service delivery and meeting off the Reserve, Mr Bropho did not give a commitment and stated his preference for these issues to be discussed within the community. At the meeting on 18 December 2002, Mr Bropho had stated that no-one would be available over the school holidays to attend any meetings.
97 On 18 December 2002 the Premier responded to the SVC’s letters of 17 October, 5 November and 3 December 2002 regarding the negotiation of a MOU. The Premier stated:
‘As I have made clear in the Government’s response to the Gordon Inquiry, rather than seek a new Memorandum of Understanding with the Swan Valley Nyungah Community, we have instead focussed upon a new management order guaranteeing that Government agencies have access to the Lockridge camp … It is undoubtedly in the best interests of the families and children in the community that they receive the government services which will assist them in their day to day lives … It is this Government’s firm view that children and families are entitled to the same level of services no matter where they live.’
98 On 20 December 2002 David Pedler wrote to Robert Bropho confirming the outcome of the meeting on 18 December 2002. He stated that it had been suggested that the next meeting take place at a venue other than the SVC to demonstrate good faith with local service providers. Mr Bropho responded on 27 January 2003 that the SVC had not suggested meeting elsewhere and that only Mr Pedler had done so.
99 In January 2003 Richard Bropho made allegations to an officer of the DOJ of being physically assaulted by his uncle on the Reserve. Richard was known as being a substance abuser. In February 2003 he was arrested and released into the care of Charlotte Bropho, wife of Herbert Bropho, at the Reserve.
100 On 5 February 2003 David Pedler provided a briefing note to the DIA Director General on the recent events regarding the SVC. In it he expressed the opinion that Robert Bropho was applying a passive resistance strategy to the attempts by the Working Group to establish access arrangements to the residents of the SVC. He stated that discussions regarding the workshop had been unproductive and gave his assessment that the likelihood of SVC residents participating in it was doubtful given Mr Bropho’s ongoing influence. The foundation of these opinions was not made apparent and the applicant submits that maybe he was relying on a misunderstanding of the correspondence.
101 On 14 February 2003 the Director General of the DCD, Caroline Brazier, was informed that Clinton Pickett had made allegations in August 2001 about physical and sexual abuse of himself and another youth on the Reserve. On 18 February 2003 he was removed from the Reserve by the DCD and the Police and interviewed again about the allegations. He refused to repeat the allegations or to speak about occurrences on the Reserve. I accept the submission of the applicant that the Court cannot draw any adverse inference against any person associated with the applicant from a report to Ms Brazier that officers involved in the interview considered he was frightened to speak out.
102 On 19 February 2003 a number of government agencies received a letter from the SVC containing what were said to be specific proposals on substance abuse. Roland Bayman advised the SVC he had referred the letter and the earlier preliminary suggestions to agencies who had more expertise and experience in dealing with such matters, the DCD not having any broad policy proposals to address relevant solutions.
103 On 27 February 2003 the Working Group met at the DIA Midland office to discuss the workshop. A further meeting was planned for 19 March 2003.
104 On 14 March 2003 the Gordon Implementation Group met. From discussion there concerning the SVC, a consensus emerged that each Department was having limited success in improving conditions and that the focus on providing better services to the SVC would not solve the problem of child safety either from physical and sexual abuse, substance abuse or self harm while the existing management structure was in place. The principal concern with that structure was the dominating role of Robert Bropho. The Gordon Implementation Group considered that he had regulated and continued to regulate the conditions of access by government officers to the Reserve and to persons on the Reserve and showed no genuine intention of working with the Government to improve conditions there. In their evidence both Bella Bropho and Margaret Jeffery denied that Robert Bropho decided who could come onto the Reserve. Mr Bropho testified that he had been the spokesman for the community for many decades and under the direction of it, it was his job to tell people to leave the Reserve. The applicant submits that the government officers were unable to distinguish between the role of Mr Bropho in fulfilling this function and the issue of dominance of management by him. Furthermore, she submits that they did not give any consideration to the need for balance between access by them and the need of members of the community for privacy.
105 The outcome of the meeting of the Gordon Implementation Group was that it was agreed the concerns of the agencies should be reported to the Cabinet Standing Committee on Social Policy, together with options for improving the management of the Reserve. A report to that effect was tabled at a Senior Officers Group meeting on 22 April 2003. It stated that State instrumentalities were being prevented by the SVC from providing services to or securing the safety and welfare of persons accessing or resident on the Reserve. Nevertheless it stated that DIA was in regular contact with the community; the DCD had been accessed for services on an ad hoc basis; the Kiara Police Station had made gains in obtaining unimpeded access to the community; DOH had provided regular visits by Aboriginal Health Workers based in Midvale; the Department of Education and Training (DET) was developing protocols for access to the community and the DOJ had protocols in place and that there were no difficulties in complying with protocols or gaining access. Therefore the applicant submits that the Gordon Inquiry report confirmed that government services were being provided to the SVC. She further submits that the matters identified by the report as ‘remaining concerns’ should be understood as referrable to the need to engage in dialogue concerning the ‘political’ ground rules or terms of a management plan and the issue of whether meetings should be held on the Reserve or at a neutral venue.
106 On 18 March 2003 the DCD’s Northam office advised senior management that Robert Bropho had ordered that Clinton Pickett be removed from the Reserve to pre-empt action by the DCD. Officers of the DCD were unable to locate Mr Pickett. Charlotte Bropho, with whom Clinton Pickett was living, deposed that he had left the Reserve because he was worried that the DCD were coming to take him away. She denied that Robert Bropho had ordered Clinton’s removal.
107 On 19 March 2003 the Working Group met again. It was agreed that representatives of the DCD would contact Robert Bropho to arrange a time to visit the SVC to discuss the proposed workshop.
108 On 21 March 2003 a Senior Officers Group meeting was held at the DIA. It was decided not to make a specific response to the letter from the SVC of 19 February 2003 concerning substance abuse. Rather the Working Group and the individual agencies would continue to focus on provision of services to the residents of the SVC and other Aboriginal communities. The applicant submits that the Working Group did not seem to realise that if it engaged with the SVC on the broader policy issues identified by the SVC, a relationship of mutual trust may have developed which in turn may have facilitated the provision of services. This submission overlooks the fact that the Working Group was bound to focus on issues of departmental concern rather than broader policy issues within the provenance of higher levels of Government.
109 On 25 March 2003 Clinton Pickett was picked up by Police. He made the following statements to the DCD officers: his uncle, Herbert Bropho, had made threats to kill him; his father had told him not to return to the Reserve because his uncle would kill him; he had been living on the streets with his mother and his sister Lynette Bropho since leaving the Reserve and he did not want to return to the Reserve as he did not feel safe. However, both Margaret Jeffery and Charlotte Bropho deposed that Clinton has learnt to tell people what they want to hear and he had never said anything concerning threats to him by Herbert Bropho.
110 On 26 March 2003 officers of the DCD and the DIA visited the Reserve to endeavour to arrange a meeting between the SVC and the Working Group to discuss service provision. Robert Bropho would not meet with them, referring them to Margaret Jeffery, Sharon Davies and Iva Hayward-Jackson. They state they were not interested in meeting with the Working Group, preferring to talk to the Government about a MOU and the Preliminary Suggestions communication. Margaret Jeffery considered the officers did not appear to understand what she referred to.
111 On 2 April 2003 Roland Bayman sent a copy of the SVC’s Proposal on Substance Abuse to the Drug and Alcohol Office, sending a facsimile copy to the SVC.
112 In April 2003 Richard Bropho and his partner were picked up by Police for sniffing solvents and being on the streets. The DCD offered to return them to the Reserve but each expressed such strong fears about returning there that the DCD arranged and paid for hotel accommodation. Margaret Jeffery deposed that both Richard Bropho and his partner were rendered violent by sniffing so that, when attempts were made to remove cans from either of them, allegations of assault arose.
113 On 30 March 2003 the SVC provided to the Minister for Planning and Infrastructure and DOLA a written draft management plan as was required by the 2002 Management Order for the Reserve. On 16 April 2003 DOLA referred the draft to a number of government agencies for comment.
114 On 6 May 2003 the DCD Director-General, Caroline Brazier provided the DCD’s comments on the draft management plan to DOLA. The draft management plan stated that ‘new and unannounced visitors are advised to come to the office … they are then directed to who they need to see’. It further stated ‘by common courtesy most visitors ring ahead’. Caroline Brazier was of the opinion that those statements were not consistent with cl 3 of the Annexure to the 2002 Management Order which provided that persons representing a State authority would be entitled to enter on and remain within the boundaries of the Reserve in order to carry out the lawful exercise and performance of the functions and duties of that authority without being required to obtain the prior approval or give prior notification to the SVC. In Ms Brazier’s opinion, the DCD officers needed to be able to make unannounced visits and have direct and unimpeded contact with individual families and children at the Reserve. She also considered that it was important that members of the SVC were free to be contacted directly by officers of the DCD and were free to directly contact such officers.
115 Caroline Brazier considered that the tenor of the draft management plan gave a strong impression of a closed community, there seemed little in the way of encouragement of communication or interaction with the wider Nyungah or Western Australian community, and there were not clear provisions as to how the SVC proposed to ensure the welfare, safety and development of children resident in the community.
116 Caroline Brazier’s affidavit states that on 8 May 2003 the DOH Director-General, Mike Daube gave his Department’s comments as follows:
‘Our primary concern centres on the issue of access to the community for health professionals. While a particular Aboriginal Health Worker has been identified as acceptable within the Plan, there is no broader mention of access for health care providers and in particular no mention of access for emergency ambulance services.
There is a general mention in the Plan that visitors are permitted into the community after they first report to the “office” as a common courtesy. This is inappropriate in relation to patient confidentiality. Further, in the event of psychological/psychiatric consultations such as those associated with suspected child abuse, the fear and apprehension of adolescent and other patients would (sic) be compunded (sic) if they felt that the reasons for a visit were being discussed with elders or community administrators.
There are also some concerns with environmental health issues at the site, and Health would wish to see particulars of waste water and sewerage disposal in the Plan.
While improvements can be made to the Plan, we doubt that these on their own will bring about the changes needed.’
117 On 9 May 2003 Lynsey Warbey received a letter from Barry Matthews, the Commissioner of Police, containing the Police Department’s comments on the draft management plan. Mr Matthews indicated that the draft management plan should ‘include a clear and strong statement of commitment to the safety and security of all inhabitants and visitors to the Reserve, as well as the [SVC’s] support for the Gordon Report recommendations as they relate to [the SVC]’. The Police Commissioner queried whether there should be a main gate to the Reserve as ‘the very existence of a gate carries with it the potential for it to be locked at any time, which may hinder police when their very presence is needed urgently’. It was also noted that other Aboriginal communities did not have gates restricting vehicle access.
‘There is an expectation that the Community should not be exempt from the provisions of West Australian law, particularly in relation to the rights and welfare of children resident there. The lack of specificity in statements [namely the draft management plan] … could conceivably give rise to an expectation by members of the Community that residence at the Community confers some exemption from the legal rights and responsibilities of citizenship.’
It is not apparent on what basis in law this opinion could have had a foundation.
119 The applicant submits that these responses were unduly negative and were unreasonable. She asserts that the provisions of the draft management plan were amenable to amendment in the course of response. In relation to the Police response concerning the gate, she states that it was an issue where a balance needs to be struck between protection and emergency entry.
120 On 14 April 2003 the Secretariat prepared a draft document entitled ‘Report on Service Provision to Swan Valley Nyungah Community’. David Pedler commented on the draft that the influence of the non-indigenous supporters in ensuring ongoing non-cooperation was a significant factor, so that access would be problematic even if Robert Bropho was not present at the Reserve. The applicant asserts there was no basis in fact for such a conclusion by Mr Pedler.
121 On 22 April 2003 a Senior Officers Group meeting considered the report. The Secretariat then continued working on a Cabinet submission regarding the implementation of the Government’s response to the Gordon Inquiry report.
122 On 28 April 2003 the DCD Director-General was informed by the Department’s Media Liaison Officer that the Government had been contacted by journalist, Colleen Egan, and advised that she had received anecdotal evidence from several sources that Robert Bropho was running the SVC ‘with an iron fist’. Ms Egan raised questions regarding a particular woman who claimed she had been threatened with violence but was too frightened to leave the Reserve. On 29 April the DPC advised the Premier’s office of the information. The applicant submits that these occurrences should be seen as precipitating a shift in approach by the Government from developing a management plan to enacting the Reserves Act.
123 On 1 May 2003 the Premier raised the issue of the Reserve at a Strategic Management Council meeting. He was advised of the continuing concerns identified at the meeting of the Gordon Implementation Group on 14 March 2003, such concerns being directed to the safety of women and children at the Reserve. The Gordon Implementation Group expressed the opinion that the management of the Reserve did not have any intention of addressing in good faith the requirements of the 2002 Management Order of October 2002 and that strong action was warranted. (The applicant contends that the Gordon Implementation Group had no reasonable basis for forming their opinion and the evidence on that is set out in Part L: Justificatory Contentions). The Premier indicated that he wanted something to be done about the situation as a matter of urgency. As a consequence, various meetings and inquiries were undertaken by the relevant agencies. These included discussion of the option of formally removing the control of the Reserve from Robert Bropho and his extended family. The focus of the inquiries and discussions was directed to the issue of how to reduce the risk to the women and children of the SVC by protecting them from intimidation, physical violence and sexual and emotional abuse. The evidence of Caroline Brazier and Lynsey Warbey address the detail of these steps.
124 In late April 2003 a 13 year old Aboriginal girl was reported to the police as having run away by her father and as living at the Reserve with Charlotte Bropho and Herbert Bropho. The applicant also deposed that Robert Bropho had also called police regarding the child because her father was causing trouble for the community and they did not want her to remain on the Reserve. On 2 May 2003 Bella Bropho requested the Midland DCD to remove the child because of brewing trouble between Herbert Bropho and the child’s father. The outcome was that the child was removed by the DCD on that day. Subsequently Robert Bropho was charged with sexually assaulting the child while she was residing at the Reserve on that occasion. On 2 December 2005 he was convicted in the District Court of Western Australia of two counts of indecent dealing with Lee Marie Parfitt. His conviction was upheld on appeal to the Full Court of the Supreme Court of Western Australia: Bropho v State of Western Australia [2006] WASCA 109.
125 In their evidence to this Court, Bella Bropho, Margaret Jeffery and Robert Bropho maintained that he was innocent of those charges and did not accept that the incident had occurred.
126 Apart from the charges involving Lee Marie Parfitt, Robert Bropho later faced charges of rape and indecent assault of girls under the age of 16, arising out of separate incidents alleged to have occurred in the 1970s and 1980s. The two persons concerned were Lena Spratt and Isobel Bropho.
127 The applicant submits that, in contrast to the advice from the Gordon Implementation Group to the Premier, the events concerning this child represented an appropriate involvement by the DCD in addressing a welfare issue.
128 On 5 May 2003 the sister of the child in question and a member of the Bropho family, advised the DCD she was frightened because she had been subjected to continued harassment and violence by residents of the Reserve, especially by Charlotte Bropho and Herbert Bropho, since she had left the Reserve. She was moved initially into a protective hotel and then into a new house.
129 On the same date three teenage boys who had resided at the Reserve made a number of allegations concerning people on the Reserve, including Robert Bropho and Herbert Bropho. Margaret Jeffery denied knowledge of the events alleged.
130 Also on the same date also the Premier’s Chief of Staff met with the State Manager of ATSIC to discuss changing the management of the Reserve. The latter indicated he was supportive of the idea of changing the management as family violence and child abuse could not be tolerated. A number of meetings were held subsequently to discuss the Government’s strategy for dealing with the Reserve.
131 Following the meeting of 1 May 2003, the DCD Director General, Caroline Brazier made enquires of the DCD and was told that it did not know the number, identity or ages of the children on the Reserve. She gave instructions for such information to be sought. This continued until August 2003.
Events immediately preceding the enactment of the Reserves Act
132 On 12 May 2003 the DCD Director General, Lynsey Warbey of the DPC and the Director General of the DIA attended a Cabinet meeting in order to brief Cabinet on the issues impacting on the Government’s responsibility to ensure the safety of women and children within the Reserve. The outcome was that Cabinet approved the drafting of the Reserves (Reserve 43131) Bill 2003 (WA) (the Reserves Bill).
133 Lynsey Warbey gave evidence that during the course of discussions leading up to the this Cabinet meeting, it was recognised that there was a need to include in any legislation provisions excluding the application of the rules of natural justice to, and the opportunity for judicial review of, decisions by the administrator to remove persons from the Reserve.
134 According to Lynsey Warbey a concern was expressed at a number of the meetings that the whole rationale for the legislation, namely to protect women and children on the Reserve, could be defeated if a person whom the administrator considered it necessary to remove from the Reserve could go to court and get an interim injunction and thereby remain on the Reserve for months or years pending the hearing of their claim for a prerogative writ. Ms Warbey in her oral evidence stated that because of these concerns there was a clear policy direction that the administrator was required to have the ability to shut down or remove certain people immediately from the Reserve should the circumstances require it.
135 There was also a concern that government officers were hearing allegations of abuse and intimidation of women and children associated with the Reserve but those women and children were too frightened to make formal complaints to the police or the DCD. In Lynsey Warbey’s opinion, in those circumstances there may be good reasons to want to act to remove persons suspected of child abuse or intimidation from the Reserve even though there was no formal complaint or evidence upon which such action could be justified.
136 In his oral evidence Grahame Searle also stated that he had suggested the Reserves Act because of the Government’s concern for the safety of the people on the Reserve and a desire to avoid unnecessary delay. It was Mr Searle’s view that should the Minister exercise her powers under the LAA and take administrative action to revoke the 2002 Management Order it was likely to lead to an injunction being sought. This would have delayed government action significantly, during which time the Government could not guarantee the safety of those people residing on the Reserve. It was Mr Searle’s view that if the Government wished to take action swiftly ‘the best way to do it was to use the parliament, which is the voice of the people, to pass a piece of legislation in order to give effect to what the government’s intent was’.
137 The applicant submits that the advice referred to in these preceding paragraphs failed to take into account the requirement on a court in granting an injunction to balance the harm which might be accorded to a person from being directed not to remain on the Reserve and the risk of detriment to others if the injunction was granted. Additionally she submits that the same advice gave insufficient credence to the powers of the Government to protect children without any necessity for a complaint as provided for in s 29 of the Child Welfare Act 1947 (WA).
138 During this period a strategic management plan was also developed for dealing with the Reserve, assuming a Reserves Act was passed. That plan provided, amongst other things:
(a) the placing of care, control and management of the Reserve with the AAPA as a temporary measure until an appropriate non-government incorporated organisation could be found to manage the Reserve. The plan referred to an organisation called Nyoongar Mia Mia as a future option however it was not considered ready for such a responsibility at that time;
(b) Robert Bropho, Herbert Bropho, Harvey Bropho, Sharon Davies, Margaret Jeffery and Iva Hayward-Jackson would be removed in the first instance. DHW would have two houses available to relocate Herbert and Harvey Bropho and their families, and emergency hostel lodging would be available for Robert Bropho;
(c) housing would need to be provided for families who chose to leave the Reserve following the removal of the above persons, however it was considered they should be encouraged to stay at the Reserve in the interim period to protect them from any retaliatory attacks. The administrator would be responsible for talking to the remaining residents about the various housing options available to them. The Government’s preferred option was for residents to remain at the Reserve in the first instance as that would provide better access to those persons than would be the case if they were to disperse into the wider community; and
(d) the future use and purpose of the Reserve was to be determined through a process of consultation with the Aboriginal community.
139 The applicant submits that the possibility of retaliatory attacks in par (c) of this statement is unwarranted. However, Lynsey Warbey testified that such a possibility was a concern expressed by the DCD and the Police.
140 Following a meeting of the Premier and various officers and ATSIC representatives on 14 May 2003, ATSIC issued a press release stating:
‘ATSIC has labelled moves by the WA State Government, to gradually close the Swan Valley Nyungah Community as necessary if it ensures community safety…
The Government was now morally and legally obliged to act on evidence that conditions at the camp had not improved since the Gordon Inquiry…
Wherever the Government has knowledge that child abuse is occurring, indigenous or non indigenous, the government has a mandate and an obligation to intervene. ATSIC does not wish to see claims of racism cloud this very serious issue. This is about basic human rights and the safety of young indigenous Australians. The leaders of the Swan Valley Nyungah Community have not sought to engage with Government responsibly to address this issue. Instead, they have demonstrated that they lack the necessary leadership to provide a safe living environment for community members.’
141 The applicant contends that where the press release speaks of the SVC not engaging with Government, it takes no account of the repeated requests between October and December 2002 by the SVC for the Government to conclude a MOU, the presentation by the SVC to Government of the Preliminary Suggestions on 18 December 2002 and the drafting by the SVC of a management plan on 30 March 2003.
142 On 14 May 2003 following the meeting with ATSIC, Sandra Eckert and Lynsey Warbey briefed the Premier on the draft Reserves Bill. The Premier later that day made an address to Parliament regarding the SVC, announcing that he intended to close the community, stating that:
‘ the ongoing existence of this camp represents an unacceptable risk to those who reside there. Those who rule it defy all efforts to provide a better future for its inhabitants. It remains a place of ruination and despair. The abuse and violence perpetrated against women and children at that community reads like a horror story…
Despite [changes to the management order] and the best efforts of government officers I have recently been informed by the responsible directors general that the women and children who reside there are not free to access government services or information… This Government is of one mind: the risk of abuse and violence to women and children of that camp is unacceptable… I am not prepared to wait for another Susan Taylor before we act.’
143 The applicant makes the same submission on this statement as on the preceding press release. Additionally she states that the reference by the Premier to women and children not being free to access government services and information, is a reference to the same women and children who have the services from government agencies detailed in the affidavit of Margaret Jeffery and which Caroline Brazier and Roland Bayman agreed in evidence they had access to; and who on 15 May 2003 attended Parliament House to deliver an open letter to the Premier signed by the following women: Bella Bropho, Denise Sambo, CL Bropho, Helen Woods, Gladys Bropho, Carol Riddle, Kerry Bropho, Joyce, Sadie, Peula, Sarah, Tina and Marie saying inter alia:
‘We do not understand why you state that ‘the women and children who reside [in our community] are not free to access government services of information.
We are completely free to access any services or information we require. The Community has always helped us in any way it can. We can make telephone calls any time, we have access into and out of the Community at all times and transportation is provided for us if we need it.
…
We have always been free to speak out and to speak to anyone we care to. We are strong Women and no one tells us what to do or say.’
144 On 15 May 2003 the Reserves Bill was introduced into the Western Australian Parliament. During the Second Reading Speech to Parliament the Premier stated that:
‘It is a fundamental responsibility of the Western Australian Government to provide a safe and secure environment for all its citizens, particularly its children… The tragic death of Susan Taylor at the Swan Valley Nyungah Community is but one terrible example of the systemic sexual and physical abuse, substance abuse, family violence and intimidation that has occurred, and continues to occur in this community…
Grave concerns continue to be held about the safety of children and women living in the Swan Valley Community. Senior government officers advise that residents are not free to access government services, that intimidatory tactics prevent reporting of incidents, and that communication between children and women, and government officers is being hampered by the community management…
There is only one course of action that will secure for the children and women of the SVNC the protection and safety they deserve and halt the cycle of abuse and violence, that is, the current management order must be revoked and the Swan Valley Reserve be vested in the Aboriginal Affairs Planning Authority so that the reserve might truly fulfil its role 'for the use and benefit of the Aboriginal Inhabitants. …
I do not undertake this legislation lightly but with much consideration and concern for the children and women of the Swan Valley Nyungah Community, as it has become abundantly clear that the Swan Valley Nyungah Community Aboriginal Corporation is no longer fit to continue its management role of the reserve. This issue is not about race; it is about intimidation, violence and abuse. The safety of all our children must be paramount, and it is incumbent upon all Western Australians to uphold the right of every child in this State to security and protection.’
145 The applicant again contends that by repeating the reference to the women and children, the Premier was either unaware of or gave no weight to the letter delivered to Parliament on the same day on behalf of the women and children of the Reserve.
146 The applicant and Denise Sambo went to Parliament House to deliver the petition to the Premier, having heard of the proposal to close the Reserve through the media. An official told Ms Sambo of the impending closure but no-one told her women and children were going to be removed from the Reserve.
147 Following the introduction of the Reserves Bill numerous meetings were held from the middle of May 2003 onwards to plan for what would happen following the passing of the Reserves Bill. It had generally been agreed within Government that families would not be moved from the Reserve straight away but that there would be a period of transition after the enactment of the Reserves Act during which time the families’ needs and aspirations would be ascertained and they would be relocated to other suitable accommodation. It was generally agreed that leaving the families to live on the Reserve was not a viable option because of the risk that the same social problems would continue.
Events related to the Reserve following the enactment
148 On 21 May 2003 a DCD field officer, Peta Hart, filed an incident report following a visit to the Reserve. Her evidence and that of Caroline Brazier suggested that she was faced by intimidatory tactics of men in the community. The affidavit of Margaret Jeffery suggests that Robert Bropho and Iva Hayward-Jackson were keen to ensure that Ms Hart properly identified herself. Events in which Ms Hart was enclosed in a room by actions of Ms Jeffery and Sharon Davies are said by the applicant as being designed to accord Ms Hart privacy in conducting her interview. It is sufficient to find that the quality of communication between each ‘side’ was such as to leave each fearing the worst of the other.
149 On 25 May 2003 the SVC held an ‘open day’ on the Reserve for the media. According to Bella Bropho, that was an opportunity for the SVC to put forward their case and their concerns. Ms Bropho agreed that she told the media ‘there is no violence, sexual harassment, or solvent abuse in this community at all’. She maintained in her evidence that statement was accurate, except that she acknowledged some kids were sniffing. When particular incidents were then put to her, she admitted the incidents but frequently answered to the effect ‘that’s only just one incident’. Respondents’ counsel directly put to Ms Bropho ‘do you accept that there was any abuse happening at the Reserve in relation to children?’, to which she replied ‘Only one incident and that was dealt by the law in a proper way’.
150 Bella Bropho was also asked if she knew that Herbert Bropho was threatening to kill sniffers if he found them on the campsite, to which she replied ‘I wouldn’t have a clue, wouldn’t have any knowledge’. She expressed the opinion that there was no violence on the Reserve. This can be contrasted with Ms Bropho’s admission in her affidavit of 26 July 2006 that Herbert Bropho assaulted her daughter and used to ‘bash’ children he found sniffing on the Reserve.
151 When it was put to her that Susan Taylor died at the Reserve, Bella Bropho responded ‘nobody was charged’, and that ‘everybody gets on with their own lives and there’s no disruption of anything’.
152 I agree it is clear that Bella Bropho’s statement to the media on 25 May 2003 did not correctly describe the situation. In her evidence before the Court she continued to play down the extent of violence, sexual harassment and solvent abuse at the Reserve around that time.
154 In his evidence Robert Bropho also said that he had no knowledge of his sons Herbert and Harvey Bropho being violent or intimidating towards other people. When particular incidents involving Herbert were put to him, Mr Bropho responded that they could have happened when he was not there. It is clear that in this respect Mr Bropho’s evidence should not be accepted.
Appointment of the Administrator
155 Commencing on 12 June 2003, the Administrator was appointed by the AAPA as the administrator of the Reserve pursuant to s 7 of the Reserves Act for a period of 12 months. The Administrator had been nominated by ATSIC as their first choice for administrator and he was subsequently recommended to the AAPA.
156 The Terms of Reference of the Administrator’s appointment were to:
(a) take control of the Reserve;
(b) maintain and care for the land and to repair and keep maintained all infrastructure on the land;
(c) remove, and keep removed, all persons previously using the land;
(d) prevent the entry of persons onto the land unless otherwise authorised;
(e) determine options for viable future use of the land; and
(f) abide by all laws of the State of Western Australia and the Commonwealth of Australia.
157 On 12 June 2003 the Administrator attended a meeting at the DIA Midland office, with representatives from DIA, DPC, DCD, DHW, WAPS, Chubb security staff and ATSIC where his role as administrator of the Reserve was further explained to him.
158 At the meeting the Administrator discussed and agreed with the others present that upon his appointment as Administrator he would as soon as possible enter the Reserve and give directions to Robert Bropho, Harvey Bropho, Herbert Bropho and Robert Bropho (Jnr) to leave the Reserve. This was because he was told by officers of the DCD and DOH that they were the persons who were preventing government officers from having full and free access to the Reserve.
159 The Administrator also agreed with the others present at the meeting that the DCD and DOH would seek to resettle the other residents of the Reserve over the course of the following two or more weeks, and he would then secure the Reserve. He was told by Richard Curry and Carolyn Petroboni of DIA that part of his role as Administrator would be to consult with the Aboriginal community and relevant non-Aboriginal persons about possible future uses of the Reserve. He was told that the Government wanted the Reserve to continue to be used exclusively for the benefit of Aboriginal people.
Revocation of 2002 Management Order
160 On 13 June 2003 the 2002 Management Order (placing the care, control and management of the Reserve with SVC for the purpose of ‘Use and Benefit of Aboriginal Inhabitants’ subject to the conditions set out therein) was purportedly revoked pursuant to s 4 of the Reserves Act.
Directions to leave the Reserve
161 On 13 June 2003 the Administrator made the following direction:
‘I, Barry Charles Jameson of 31 Keen Street, Lismore, NSW, having been engaged under section 7(2)(a) of the Reserves (Reserve 43131) Act 2003(“the Act”) as the Administrator of Reserve 43131 (‘the reserve’), in accordance with the power vested in me under the Act hereby direct that the following people can enter and leave the reserve for the purpose of assisting in the performance of my obligations as the Administrator:
· members of the Police Service;
· Chubb security personnel;
· members, employers and contractors engaged by ATSIC (upon presentation of suitable identification);
· employees and contractors engaged by Government departments or agencies, including but not limited to the Department of Community Development, Department of Housing and Works, Department of Indigenous Affairs, Western Power, and the Water Corporation (upon presentation of suitable identification);
· C & C Locksmiths;
· Mrs Mop – rubbish removal company.
A person not listed in this direction (“an excluded person”), is not permitted to enter the reserve without my express authority.
Should an excluded person enter the reserve without my express authority, he or she shall be removed from the reserve with the assistance of Chubb security or the Police (as necessary).’
He also made specific directions in writing to Robert Bropho and Iva Hayward-Jackson in reliance on s 7(3)(b) of the Reserves Act requiring each of them to leave the Reserve.
Work undertaken by Administrator
162 At all times since 13 June 2003, all persons have, pursuant to the Administrator’s direction, been excluded from the Reserve except those whom he has approved to enter the Reserve. The Administrator deposed that he gave and maintained that direction to protect the infrastructure on the Reserve from damage through vandalism or other intentional acts, to prevent unauthorised occupation of the Reserve pending the implementation of the AAPA decision as to the future use of the Reserve and to limit his potential legal liability as the person with care, control and management of the Reserve for any injury to persons or property on the Reserve or as a result of things done on the Reserve.
163 Since 13 June 2003 the Administrator has permitted access to the Reserve to persons who have had a legitimate reason to do so. This has included security personnel to secure the Reserve from unauthorised entry; contractors engaged to perform work on the Reserve; members of the Bennett Brook Catchment Groupto inspect the vegetation on the Reserve and give advice about plant identification, suitability and pruning; City of Bassendean rangers to collect animals belonging to the former residents of the Reserve; representatives of Aboriginal Hostels Ltd to survey land for a proposed 30 bed nursing home and Fire and Emergency Services Authority of Western Australia personnel to inspect fire mitigation requirements.
164 The applicant and those she claims to represent, along with all other persons (Aboriginal and non-Aboriginal), have not been permitted to access the Reserve if there was not a particular reason for their doing so.
165 On 14 June 2003 Denise Sambo, Sharon Davies, Joyce Parfitt and Sadie Jackson returned to the Reserve to collect a dog that Ms Sambo had left at the Reserve. They were prevented from entering the Reserve by a security guard. Shortly after a Shire ranger drove out of the Reserve with the dog, which was returned to Ms Sambo.
166 In the days following 13 June 2003 the Administrator arranged for a locksmith and a glazier to attend the Reserve to make the cottages secure by replacing door locks and broken windows.
167 According to Margaret Jeffery the SVC carried out maintenance work at the Reserve including cutting grass, maintaining fire breaks, plumbing, gardening, bushland planting, repairing buildings, electrical work, plastering and painting and clearing up and arranging for removal of rubbish.
168 However over the course of the 5 weeks following 13 June 2003 the Administrator arranged for cleaning contractors, plumbers and an electrician to work on the cottages to bring them up to a standard where they were hygienic and safe. He also had pest control contractors inspect the cottages and spray for white ants in the roof cavities, wet areas and kitchens.
169 The Administrator also discovered that there was an enormous amount of rubbish on the Reserve, including old car bodies, shopping trolleys, bedding, household furniture and drums. In oral evidence the Administrator agreed that a significant amount of this rubbish had been there for some period of time but was unable to provide an estimation of the age of the dump, only that it was unlikely to have been as old as 10 or 20 years. The Administrator also gave oral evidence that in relation to some of the rubbish, such as the car bodies, it could only have been brought from Lord Street, through the Reserve. He accepted that in relation to rubbish such as car bodies removed from the Bennett Brook area he was unaware of the possibility that there was access to dump rubbish in that area via the next door Pyrton property.
170 The Administrator engaged a contractor to remove rubbish located around the cottages. The contractor removed 100 cubic metres of rubbish (approximately 100 tonnes).
171 In her evidence Margaret Jeffery explained that the disposal of rubbish on the Reserve had been a long term issue and that the Shire of Swan did not start collecting rubbish from the Reserve until 2001. The service was only able to take a limited quantity of accumulated rubbish each year. In oral evidence the Administrator stated that he had met with the Mayor of the Shire of Swan following his appointment. The Mayor indicated that the Shire was aware that there was a rubbish problem on the Reserve which it wished to have cleared up but it had experienced difficulties getting access to the Reserve to remove the rubbish.
172 Following his appointment as Administrator, the Administrator consulted widely with members of the Nyungah community about the future use of the Reserve for the purpose of preparing a report to the Minister for Aboriginal Affairs. Among those Nyungah people with whom he spoke, there was a great deal of interest in making the Reserve available for use by Nyungah people and others for a range of purposes.
174 In September 2003 the Administrator was informed by the DIA that it had been contacted by the Crown Solicitor’s Office, which in turn had received a request that persons involved in the Federal Court native title claim proceedings over the Perth metropolitan area be allowed to enter the Reserve for the purpose of an ‘on-country’ hearing. The Administrator understood that those persons included some former residents of the Reserve.
175 On 18 September 2003 the Administrator wrote to the Crown Solicitor’s Office informing them that he would allow access subject to certain specified conditions. He asked the Crown Solicitor’s Office to refer the contents of his letter to the Federal Court. He understands that the hearing on the Reserve did not proceed.
176 On 22 October 2003 the Administrator engaged a contractor to prune the trees at the front of the Reserve and cut fire breaks, pursuant to a consent under s 18 of the Aboriginal Heritage Act 1972 (WA) given by the Minister for Indigenous Affairs. The trees were overgrown, and there were not adequate fire breaks around the Reserve as required by law. Noxious plants were also prolific in creek beds on the Reserve. The Administrator gave oral evidence that the trees fronting the Reserve were mostly scrubby and self sown and that residents surrounding the Reserve were unhappy with how the Reserve presented. The Administrator met with the Bennett Brook Catchment Group who indicated to him which trees were of significance or value and should be kept and those which could be cut down or removed.
177 According to Margaret Jeffery adequate fire breaks had been planned at the Reserve and the noxious plants in the creeks were the result of planting by the SVC with assistance from Men of the Trees and the Bennett Brook Catchment Group.
178 On 12 June 2004 the Administrator’s appointment as administrator of the Reserve expired.
Further events involving the Reserve
180 The Deputy State Coroner made the following remarks in her report:
‘The then non-interventionist response tried at the Lockridge community, and attempts by its leaders and associates to restrict welfare agencies from the community unless at their behest, for whatever reason, has also been a complete disaster for the aboriginal community. It realistically resulted in a denial of basic human rights to vulnerable members of the Lockridge Community and, by example other aboriginal youth. By way of mis-education and isolation it prevented those in most need of protection from being able to access agencies which may have assisted, or at least tried, to offer some protection.’
The applicant submits that these comments are of a general nature and cannot be seen to have been drawn from any specific evidence the subject of the Inquiry into the death of Mr Spratt.
THE RESERVES ACT
181 The Reserves Act has the long title of being ‘an Act to provide for the care, control and management of Reserve 43131 in the Swan Valley and for related matters’. It was assented to on 12 June 2003 and came into operation on that day (s 2). It expired on its second anniversary on 12 June 2005.
182 Section 4 addressed the revocation of 2002 Management Order as follows:
‘4.
(1) Management order no. I262262 is revoked by force of this Act.
(2) The revocation, under subsection (1), of management order no. I262262 has effect as if it were a revocation of a management order under the LAA section 50(2).’
183 The placing of the Reserve in the care, control and management of the AAPA was addressed in s 5 as follows:
‘5.
(1) The care, control and management of the reserve are, by force of this Act, placed with the Authority for the same purpose as that for which the relevant Crown land is reserved and for purposes ancillary or beneficial to that purpose.
(2) The placing, under subsection (1), of the care, control and management of the reserve has effect as if it were done under the LAA section 46(1).
(3) The LAA Minister may by order subject the care, control and management of the reserve to such conditions as the LAA Minister specifies and such an order has effect as if it were an order as defined in the LAA section 3(1).
(4) A reference in the LAA to a management order is, in relation to the reserve during such time as the care, control and management of the reserve remain placed with the Authority (either solely or jointly), a reference to the effect of subsection (1) and any order under subsection (23).
(5) To avoid doubt, nothing in this Act prevents –
(a) the revocation, under the LAA section 50, of the effect of subsection (1); or
(b) the taking of any other action under the LAA or any other written law in relation to the reserve, or the care, control and management of the reserve,
without the need for a further Act.’
184 The powers of the Administrator were provided for in s 7 in the following terms:
‘7.
(1) In this section –
“administrator” means-
(a) a person engaged under subsection (2)(a); or
(b) an officer nominated under subsection (2)(b).
(2) The Authority may –
(a) engage a person under a contract for services; or
(b) nominate an officer referred to in the Aboriginal Affairs Planning Authority Act 1972 section 15(1)
to enable the Authority to perform effectively its functions in relation to the reserve.
(3) The administrator may –
(a) direct a person not to enter the reserve during a period of time specified in the directions or until such time as the direction is revoked;
(b) direct a person to leave the reserve;
(c) with such assistants as the administrator thinks are necessary –
(i) prevent a person from entering the reserve contrary to a direction under paragraph (a);
(ii) remove a person from the reserve if the person does not comply with a direction under paragraph (a) or (b).
(4) A direction under subsection 3(a) or (b) may be oral or in writing and must be given to the person who is the subject of the direction before the exercise of a power under subsection (3)(c) or (7).
(5) The LAA Minister, in an order under the LAA section 46(1) by which the care, control and management of the reserve is placed with a person other than the Authority, may authorise a person, or a holder of an office, specified in the order, to exercise any power set out in subsection (3).
(6) If –
(a) there is no administrator and a person has not been authorised under subsection (5); or
(b) the land that is the subject of the reserve at the commencement of this Act is no longer a reserve as defined in the LAA section 3(1),
the LAA Minister may exercise, in relation to the land, any power set out in subsection (3).
(7) A police officer may –
(a) prevent a person from entering the reserve contrary to a direction under subsection (3)(a);
(b) remove a person from the reserve if the person does not comply with a direction under subsection (3)(a) or (b).
(8) The powers that a person may exercise under this section are in addition to, and do not derogate from, the powers that the person has under any other law.
(9) A person who may exercise a power under subsection (3)(c) or (7) may use such reasonable force as is necessary for the purpose of exercising the power.
(10) A power may be exercised under this section in relation to the land that is the subject of the reserve even though a person has a legal or equitable right or interest in the land and whether or not the land is a reserve as defined in the LAA section 3(1) at any particular time.’
185 It is necessary to read the powers in s 7(3) in the context of the following additional provisions:
‘8. The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to a direction under section 7(3)(a) or (b).
9.
(1) A discretion that a person has for the purposes of section 7(3) is absolute and the person is not required to give reasons for how the discretion is exercised.
(2) A person is not entitled, because of anything in this Act or anything done by another person, to expect that a discretion referred to in subsection (1) will be exercised in a particular way.
10. A person who gives a direction under section 7(3)(a) or (b) is not required to give reasons in relation to the direction, but if the person thinks that it would be in the public interest to disclose any or all reasons, the person may do so.’
186 Immunity from judicial supervision was sought to be provided by s 11, reading:
‘11. No writ of certiorari, mandamus, or prohibition, or other prerogative writ, is to issue and no declaratory judgment or injunction is to be given or granted, in respect of –
(1) any decision made or purporting to be made under section 7; or
(2) anything else done or purporting to have been done under section 7.’
187 Protection from tortious liability is also sought to be provided by s 12.
THE RACIAL DISCRIMINATION ACT
188 The amended application relies on ss 9, 10 and 12(1)(d) of the RDA. The respondents rely upon s 8.
189 Section 8(1) of the RDA reads:
‘8
(1) This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).
….’
190 The Convention is a reference to the International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, New York. Article 1(4) of the Convention reads:
‘Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’
191 Section 9 of the RDA addresses the unlawfulness of an act involving racial discrimination having certain effects:
‘9
(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.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4) The succeeding provisions of this Part do not limit the generality of this section.’
192 Section 10 of the RDA provides for rights to equality before the law:
‘10
(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.
(3) Where a law contains a provision that:
(a) authorizes property owned by an Aboriginal or Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
(b) prevents or restricts an Aboriginal or Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;
not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by a person.’
193 Article 5 of the Convention relevantly reads:
‘In compliance with the fundamental obligations laid down in Article 2 of the Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice;
(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;
(c) Political rights, in particular the rights to participate in elections – to vote and to stand for election – on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the State;
…
(v) The right to own property alone as well as in association with others;
(vi) The right to inherit;
…’
194 Section 12(1)(d) of the RDA legislates with respect to unlawful conduct by reason of race, colour or national or ethnic origin in relation to land, housing and other accommodation:
‘12
(1) It is unlawful for a person, whether as a principal or agent:
…
(d) to refuse to permit a second person to occupy any land or any residential or business accommodation; or
…
by reason of the race, colour or national or ethnic origin of that second person or of any relative or association of that second person.
…’
THE ELEMENTS OF THE CLAIMS
195 The elements of each of the claims as identified by the applicant are as follows:
The claim under s 10(1) of the RDA in relation to deprivation of the right to manage and otherwise exercise ownership rights in relation to the Reserve
1. Was the land the subject of the Reserve property owned by the applicants for the purposes of the section?
2. Did the 2002 Management Order confer property upon the SVC?
3. If so, did the 2002 Management Order confer beneficial ownership on the applicants?
4. Were the applicants the beneficial owners of the land the subject of the Reserve by reason of vesting in trust in the SVC on 12 December 1995?
5. Did the vesting confer an interest in the land upon the SVC?
6. If so, did the vesting confer beneficial ownership upon the applicants?
7. Were the 30 March 1998 transitional provisions to the LAA invalid by reason of s 10(1) of the RDA insofar as they converted the vesting to the 1998 Management Order?
8. Was the revocation of the 1998 Management Order on 11 October 2002 invalid?
9. Did SVC freely give prior informed consent?
10. Was the revocation in the public interest?
11. Was it invalid by reason of inconsistency between s 46 (or s 50) of the LAA and s 9 of the RDA?
12. If not, did the applicants have a human right to manage and otherwise exercise ownership rights in relation to the Reserve?
13. Is any right to manage and otherwise exercise ownership rights in relation to the Reserve a right to which s 10 of the RDA applies?
14. Did the Reserves Act result in the applicants not enjoying the right to manage and otherwise exercise ownership rights in relation to the Reserve which is a right enjoyed by persons of another race?
15. Was the Reserves Act thereby inconsistent with s 10(1) of the RDA and Art 5(d)(v) of the Convention?
16. Is there a causal connection between the applicants’ race and the alleged non-enjoyment of their right to manage and otherwise exercise ownership rights in relation to the Reserve?
17. Is a law of the State inconsistent with s 10(1) of the RDA if it is reasonably appropriate and adapted to a legitimate end?
18. Was the Reserves Act reasonably appropriate and adapted to a legitimate end?
19. Was the Reserves Act nevertheless valid as a special measure? Or did the exception in s 10(3) apply?
The claim under s 10(1) of the RDA in respect of a right not to be arbitrarily deprived of the right to manage and otherwise exercise ownership rights in relation to the Reserve
196 Elements of this claim are items 1, 10, 12, 14, 15, 18 and 19 above. In addition:
20. Did the applicants receive notice?
21. Did the applicants have a right to be heard or other fair process?
22. Did the applicants have a right to compensation?
23. Did ss 8 and 9 of the Reserves Act cause any deprivation to be arbitrary?
24. Is any deprivation of the right to manage and otherwise exercise ownership rights arbitrary if it is in the public interest?
The claim under s 10(1) of the RDA that there was a deprivation of the right of freedom of movement and residence
197 Issues 15 and 19 are repeated. Additional issues here are:
25. Did the applicants have a right of freedom of movement and residence within the Reserve?
26. Did the Reserves Act authorise the deprivation of the applicants’ right of freedom of movement and residence within the State?
27. Did the Reserves Act authorise the deprivation of the applicants’ right of freedom of movement and residence within the Reserve?
28. Did the Reserves Act result in the applicants not enjoying the right of freedom of movement and residence that is enjoyed by persons of other races?
The claim under s 10(1) of the RDA that the applicants experienced arbitrary deprivation of their right of freedom of movement and residence
198 The elements here are the same as in the preceding claim, save that they are directed to the element of arbitrariness.
The claim under s 10(1) of the RDA for the right to equal treatment before Tribunals administering justice
199 The elements are the issues in 14, 15 and 19, save they are directed to this issue.
The claim based on s 9 of the RDA for deprivation of right to manage and otherwise exercise ownership rights in relation to the Reserve
200 The elements comprise issues 12, 14, 15 and 19.
The claim based on s 9 of the RDA for the right not to be arbitrarily deprived of the right to manage and otherwise exercise ownership rights in relation to the Reserve
201 This involves the same elements as the preceding claim but directed to the issue of arbitrariness.
The claim based on s 9 of the RDA for deprivation of the right of freedom of movement and residence
202 The elements parallel the elements in the same claim under s 10(1).
The claim under s 9 of the RDA for arbitrary deprivation of right of freedom of movement and residence
203 The elements again parallel the same claim under s 10(1).
The claim under s 9 of the RDA in respect of the acts of the Administrator
204 The elements are:
29. Did the Administrator direct the applicants not to enter the Reserve?
30. Did the acts of the Administrator involve a distinction, exclusion, restriction or preference based on race?
31. Did the acts of the Administrator have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of any human right or fundamental freedom?
205 The last element is that in issue 15.
The claim under s 12(1)(d) of the RDA for refusal to permit occupation
206 In addition to issue 15, the elements are:
32. Did the Administrator refuse to permit the applicants to occupy the Reserve?
33. If so, was the refusal by reason of the race of the applicants?
The claim for deprivation of possession
207 The elements are:
34. Do the applicants have property in the Reserve capable of supporting an action in trespass?
35. If so, has the second respondent trespassed on the Reserve?
36. If so, has the Administrator trespassed on the Reserve?
37. Is the claim in trespass barred by s 12 of the Reserves Act?
208 In identifying the issues under discussion in the following reasons I have given them the number or numbers which reflects their place in the above list of elements.
PART E: SPECIFIC FACTUAL ISSUES
WHO ARE THE MEMBERS OF THE SVC AND WHO WERE INHABITANTS OF THE RESERVE?
209 The term ‘Aboriginal inhabitants’ is not a defined term in the Aboriginal Affairs Planning Authority Act 1972 (WA). Section 26 refers to ‘any land…reserved for the use and benefit of theAboriginal inhabitants’ and s 32 empowers a declaration that ‘the right to the exclusive use of any area…shall be reserved fortheAboriginal inhabitants of that area, being persons who are or have been normally resident within the area, and their descendents’. I take the description as referring to persons occupying a house on the Reserve as their principal place of residence.
210 The persons who were Aboriginal persons of Nyungah origin, members of the SVC and Aboriginal inhabitants of the Reserve comprise a fluctuating group. It is said the evidence of who comprised the group from time to time is to be found in the following:
(a) list of Members of the SVC dated 10 December 1993 (exhibit P10);
(b) statements of Compliance by Committee Members of the SVC, for the purposes of the Aboriginal Councils and Associations Act 1976 (Cth) (the ACA Act), dated 17 April 1996, 3 February 1998, 18 December 2000, 10 October 2001 and 21 September 2002 (exhibits P19, 20, 22, 23 and 49);
(c) minutes of Annual General Meeting of the SVC, 21 September 2002 (exhibits P45 and P46);
(d) SVC Register of Members July 1998 – 21 September 2002 adopted at the Annual General Meeting of the SVC on 21 September 2002 (exhibit P47);
(e) report of Debra Fletcher (exhibit 5);
(f) affidavit of Irene Mary Thompson sworn 9 December 2003 (exhibit 1);
(g) affidavits of Bella Lena Bropho sworn 15 December 2003, 25 August 2004 and 26 July 2006 (exhibits A1, 2 and 3);
(h) affidavit of Robert Charles Bropho sworn 15 December 2003 (exhibit D);
(i) affidavits of Denise Roberta Sambo sworn 15 December 2003 and affirmed 26 July 2006 (exhibits C1 and 2);
(j) affidavits of Margaret Joanna Jeffery sworn 15 December 2003. [22]-[25] and affirmed 25 November 2005, and 27 July 2006, [5] and [6] (exhibits B1, 2 and 3);
(k) affidavit of Naomi Bropho affirmed 27 July 2006 (exhibit J);
(l) affidavit of Tina Rose Jackson affirmed 7 August 2006 (exhibit N);
(m) affidavit of Dorothy Bropho affirmed 27 July 2006 (exhibit I);
(n) affidavit of Charlotte Lyndon Bropho affirmed 27 July 2006 (exhibit H).
211 I have examined the above evidence. A most useful starting point is appendix 11.3 of the report of the Expert Historian, Debra Fletcher which catalogues the residents of the Lockridge land from sources up to and including 2001. In appendix 11.4 it contains family trees. The affidavit of Irene Thomas, Manager of the Midland DCD, gives evidence of a helpful survey in May/June 2003.
(a) Robert Bropho (although Ms Warbey was told by other government officers that he spent much of his time living outside the community with Margaret Jeffery – a hearsay statement now requiring consideration in the context of the evidence of both Robert Bropho and Margaret Jeffery).
(b) Herbert Bropho, Charlotte Bropho and two [one] children. Lee Marie Parfitt was also living with them intermittently.
(c) Gladys and Clem Woods and two children.
(d) Harvey Bropho and Denise Sambo and two [five] children.
(e) Bella Bropho and her partner, and seven or eight [four] children.
(f) Peula [Philomena] Bropho and family [her son Sam]. [Ms Thomas deposed she was an itinerant resident.]
(g) Carol-Ann Bropho [Ms Thomas deposed she was an itinerant resident.]
213 Ms Thomas also described as itinerant residents Clinton Pickett, son of June Bropho; Kerry Bropho and Lee Marie Parfitt. She identified the children residing at the Reserve as being Jamie Baker (aged 15), Marie Baker (aged 13), Shaun Baker (aged 14), Sarah Bropho (aged seven), Peula Bropho (aged eight), Sam Bropho (aged 14), Janelle Baker (aged five), Louis Bropho (aged three), Richard Bropho (infant), Tina Jackson (aged 17), Sadie Jackson (aged 10), Joyce Parfitt (aged 12), Herbert Parfitt/Bropho (aged about five), Clemisha Wood (infant) and her two and a half year old sister.
214 Against this background I can accept the further evidence of Ms Warbey that it was difficult to establish firm residency figures because of the highly transient nature of the population.
215 Bella Bropho gave evidence that around the time the Reserve Act was passed there were 25 children, 12 women and 10 men living on the Reserve. She identified a number of those persons (generally consistently with the list above) and said they were all one family. Margaret Jeffery agreed with Bella Bropho’s evidence and said that the population varied. She confirmed there were members of the SVC who did not live at the Reserve.
216 The question of who were the members of the SVC and Aboriginal inhabitants of the Reserve as at 13 June 2003 does not need to be definitively answered at this stage of the proceedings (but may have greater relevance if the Court later needs to consider damages and other relief). There were, approximately, in the order of 25 children, 12 women and 10 men at the Reserve. Non-Aboriginal people also entered upon and associated with the Aboriginal inhabitants of the Reserve, including Margaret Jeffery, Sharon Davies, Lynda Nutter, Greg Stratton and Paul Allardyce.
Was Robert Bropho an Aboriginal inhabitant of the Reserve?
217 The respondents submit that the evidence in relation to whether Robert Bropho lived permanently at the Reserve was contradictory. When Bella Bropho was first asked whether Robert Bropho lived at any other address than the Reserve, she said ‘only on occasions with Ms Margaret Jeffery down at her…’. She also said that he lived with Margaret Jeffery twice, but did not know when. In other parts of her evidence she said Mr Bropho only went there when the Reserve was closed but then seemed to contradict that by saying he ‘moved back’ (which he clearly has not done since 13 June 2003). Ms Jeffery’s evidence was that Robert Bropho never stayed at her house between 1995 and June 2003, and only visited twice, and then only coming as far as the front door.
218 When Robert Bropho was asked about his residence, he said that between the time the Reserve was in ‘full swing’ and June 2003 he had a bed at Margaret Jeffery’s house and he would sometimes stay at her house to do work and go back to the Reserve the next day. He did this several times but could not say how many times.
219 The respondents submit that Robert Bropho’s evidence on this issue should be accepted, and that it is open to the Court to find that Bella Bropho did not give her evidence on this issue fully and frankly and Margaret Jeffery deliberately gave false evidence in this regard.
220 The applicant submits that Robert Bropho was an Aboriginal inhabitant of the Reserve and should be found to have been a resident of the Reserve at all relevant times. The evidence upon which the applicant relies in support is substantially the same as that relied upon by the applicant to establish the membership of the SVC and residency at the Reserve. As to the cross-examination referred to by the respondents, the applicant submits that there was some confusion between counsel and witnesses on what period was being addressed so that there is no basis for concluding false evidence was given.
221 Having considered that evidence and the effect of the evidence I am of the view that whatever doubts may have been left hanging on the exact period of Robert Bropho’s residency, he is correctly to be found as having been an inhabitant of the Reserve. That is, he lived or dwelt there, if not all the time, then substantially. Importantly he was so at the time and immediately before the enactment of the Reserves Act. It is not necessary to make any adverse credibility findings to safely arrive at this finding. In my view the effect of the evidence is to establish that Robert Bropho was an inhabitant of the Reserve and lived and dwelt there, certainly for a majority of his time. He lived and dwelt on the Reserve even if on some occasions living and dwelling elsewhere.
Was Iva Hayward–Jackson an Aboriginal inhabitant of the Reserve?
222 The applicant also submits that Iva Hayward–Jackson was an Aboriginal inhabitant of the Reserve (being the son of a deceased Nyungah elder) who had a house allocated to him on the Reserve in which he resided from time-to-time prior to 13 June 2003; though he also had a residential address in Subiaco. She submits that the evidence of that is to be found in the following:
(a) affidavits of Bella Lena Bropho sworn 15 December 2003, [8], and 25 August 2004, [9] (exhibits A1 and 2) and evidence of Bella Bropho (4/9/06).
(b) affidavit of Robert Charles Bropho sworn 15 December 2003, [27] (exhibit D), contra evidence of Robert Charles Bropho (6/9/06);
(c) affidavit of Denise Roberta Sambo sworn 15 December 2003, [11] (exhibit C1);
(d) affidavit of Margaret Joanna Jeffery sworn 15 December 2003, [24] (exhibit B1).
These are in large part affidavits in standard form content so far as they list the inhabitants of the Reserve. So far as the lists all referred to Iva Hayward-Jackson they did not stand up in cross-examination.
223 Bella Bropho’s evidence was that Iva Hayward-Jackson lived on the Reserve, in house number four. She denied having any knowledge of him living in Subiaco. Margaret Jeffery’s evidence was that Iva Hayward-Jackson was living at the Reserve, but when it was put to her that he lived in Subiaco, she said that was his official address but he often lived at the Reserve and had a room there. Contrary to his affidavit evidence Robert Bropho said that Iva Hayward-Jackson lived in Subiaco and did not at any time sleep at a house on the Reserve. He described him as a person living around Subiaco who had come to the Reserve to assist as their land and culture officer.
224 I find that the applicant has not made out that Iva Hayward-Jackson was an inhabitant of the Reserve.
DID THE APPLICANT AND THE MEMBERS MANAGE THE RESERVE?
225 The applicant contends she and those whom she represents managed the Reserve in the manner pleaded. She asserts that the applicants, as Nyungah People, have a capacity to manage the land in accordance to the laws and customs of Nyungah people which persons (such as the respondents) who are not Nyungah people, do not.
226 Bella Bropho deposed that the residents of the Reserve and their friends and relatives and other Nyungah people have gathered at the Reserve to socialise and to celebrate various events such as Christmas and birthdays. She further stated that they have gathered according to ‘traditional law and custom’ to mourn the passing away of her mother, the late Edna Bropho, and other residents of the Reserve. Additionally she deposed that Nyungah custodians of the Reserve have cared for and watched over the Reserve and protected it in an Aboriginal spiritual dreaming way. She stated that the SVC had arranged for a primary school to open at the Reserve and controlled the manner of access to the Reserve.
227 In his first affidavit Robert Bropho deposed that ‘the area of the Reserve has been our ancestors’ land since time began’. Further he deposed that the Reserve was adjacent to Bennett Brook, the site of the creation of the ancestral creation-time figure, the Waugyl. He described the Reserve as an area of religious significance to Nyungah people from the Swan Valley and a dreaming track and ‘traditional’ camping ground.
228 On the question of use and management of the Reserve, Robert Bropho deposed that the SVC, in managing the Reserve in accordance with traditional laws and customs, had, for example, acted as follows:
‘(a) not disturbed the land in the Reserve or dug around in the Reserve or allowed others to do so;
(b) allowed and enabled Nyungah people with traditional connections to the Reserve to reside at the Reserve;
(c) allowed and enabled Nyungah people to hold religious and social gatherings at the Reserve according to traditional law and custom;
(d) allowed and enabled Nyungah people to mourn at the Reserve according to traditional law and custom;
(e) allowed and enabled Nyungah people who are traditional custodians of the Reserve to care for and watch over the Reserve and to protect it in an Aboriginal spiritual dreaming way;
(f) allowed and enabled Nyungah people to properly acknowledge and respect the religious significance of the Reserve in accordance with traditional law and custom;
(g) made decisions in relation to the Reserve as directed by the traditional custodians of the Reserve in accordance with traditional law and custom; and
(h) allowed and enabled Nyungah elders to pass on knowledge about traditional laws and customs to young Nyungah people who require that knowledge to properly care for and manage the Reserve.’
The respondents admit that to some extent the applicants did these things, except those referred to in particular (g), but deny that they did so pursuant to any right of ownership.
229 As a further aspect of management Robert Bropho deposed that the SVC had applied for and obtained funding from ATSIC to build new dwellings, an office and further infrastructure facilities on the Reserve (the ‘Environmental, Health and Housing Project’). It had advertised for, interviewed, selected and employed an architect and a construction manager for the project. It had employed residents of the Reserve as building labourers. It ensured that the dwellings were designed to be culturally appropriate for Nyungah people. It requested and obtained the installation of a solar energy system. Thirteen houses and one office were completed under the project.
230 Additionally he deposed that the SVC had provided assistance to Nyungah people and others coming to the Reserve. This included provision of temporary accommodation at the Reserve; of emergency food; of transport; of emotional support; and the facilitation of the provision of government and non-government services to residents of the Reserve.
231 Further Mr Bropho referred to the SVC allowing and enabling meetings in relation to processes under the Native Title Act 1993 (Cth) (the Native Title Act).
232 In respect of land management, his evidence was that the SVC arranged for various native trees and bushes to be planted and for wildlife (such as turtles) on the Reserve to be protected. It also took action to protect and control access to the Reserve by having a fence installed and access gates established.
233 Margaret Jeffery’s evidence supported some aspects of Robert Bropho’s account. In addition she deposed that the maintenance work carried out at the Reserve on behalf of the SVC included, cutting grass; maintaining fire breaks; arranging for plumbing and electrical work; gardening, bushland planting; repairing buildings and fittings; plastering and painting; and clearing up and arranging for the removal of rubbish.
234 Denise Sambo’s affidavit is also corroborative of aspects of the management carried out by the SVC.
235 This evidence, particularly as it relates to claims of tradition and religious association, must be read in the light of the expert evidence of Debra Fletcher. On the question whether the Reserve was a traditional camping ground of Nyungah people, she found that what was a traditional camping ground until the late 19th century, became the home to a different family group who sought out the area for the same practical reasons as the original inhabitants. On the question whether the Reserve is an area of religious significance to Nyungah people from the Swan Valley area, she found it was such. I accept that these findings should be accepted for application here, this trial not having extended to re-examining the range of evidence reviewed by that expert. Evidence given on issues touched by the expert’s findings in the two respects referred to should therefore be understood in terms of those findings as necessary.
236 The evidence of background circumstances set out above makes apparent that, if the SVC was exercising a management role in relation to the Reserve, it inadequately provided for the management and maintenance of it. Nevertheless, it is apparent from the same evidence that the SVC, acting through the applicant and its members, managed the Reserve to a degree. By that finding I do not intend to imply that such management was up to the standard which it should have been; only that to some degree the SVC fulfilled a management role in relation to the Reserve. From the evidence of the actions deemed necessary to be taken by the Administrator, it is apparent that the manner in which the SVC discharged that role fell well short of what was required for full and effective management of the Reserve.
THE CIRCUMSTANCES OF THE INHABITANTS LEAVING THE RESERVE [ISSUE 29]
238 It is agreed that the Administrator directed in writing Robert Bropho and Iva Hayward-Jackson, and orally directed Margaret Jeffery, Sharon Davies, and Greg Stratton to leave the Reserve on 13 June 2003. (The applicants submitted that it was agreed that Lynda Nutter also received an oral direction. This was not pleaded and was not agreed. Her affidavit states she was at the Reserve when the Administrator told Robert Bropho to leave but not that she received such a request. The affidavit of the Administrator does not refer to her as a person requested to leave).
239 I accept the applicant’s submission that other Aboriginal inhabitants left the Reserve before 13 June 2003:
(a) in the knowledge that the Reserves Billhad been introduced into the Parliament (it having in fact been passed by Parliament on 15 May 2003 and was assented to on 12 June 2003);
(b) aware of what they perceived to be the likely intention of the first respondent to exercise a power such as that under the Reserves Act to direct them to leave the Reserve;
(c) in anticipation of receiving a direction to leave the Reserve under the Reserves Act if they had not left the Reserve; and
(d) wishing to avoid undue attention from the media.
The knowledge and anticipation was based on the statement of the Premier made in the Legislative Assembly on 14 May 2003 and various reports of that statement in the public media in Western Australia that ‘the Government … intends to close the Swan Valley Nyungah camp in Lockridge’.
240 The affidavits of Bella Bropho, Denise Sambo and Sharon Davies support findings to the effect of this submission. Oral testimony establishes that residents wished to be away from the Reserve so that the media could not take photographs of the departure of themselves and their families, which they considered would be humiliating.
241 Margaret Jeffery, in cross-examination, claimed that the women left the Reserve because of threats from Minister Carpenter the day after the release of the Gordon Inquiry report. When asked what the threat was, Ms Jeffery said: ‘Losing their homes, losing their property, losing their ancestors’ spirits’; and that he was going to work to close the community down. In re-examination she conceded that Mr Carpenter had actually said he was trying to get support from his Cabinet colleagues to have the 2002 Management Order revoked and that he said nothing about people losing their homes or their spiritual connection. Her earlier evidence in cross-examination that Mr Carpenter made threats is therefore lacking credibility.
242 At the time of the enactment of the Reserves Act it was not the intention of the Government that all persons would be immediately removed from the Reserve. It was intended that the Administrator would give notices to bring about the removal of Robert Bropho Snr and Jnr, and Harvey and Herbert Bropho as persons considered to have inhibited access by Government agencies. Lynsey Warbey testified that there was no intention to remove women and children and that service providers were planning to go in and talk to each of them about what they wanted to do.
243 Ms Thomas deposed that as at 10 June 2003 the Government’s intention once the Reserves Bill was enacted was to appoint an administrator and remove certain men from the Reserve, with women and children remaining on the Reserve until the DCD and other agencies had worked with them and identified suitable alternative arrangements based on their needs and wants.
244 Based on this the applicant submits it was the first respondent’s intention that the Aboriginal inhabitants would not remain in their homes on the Reserve (except perhaps some Aboriginal inhabitants for a short period following 13 June 2003: see the evidence of Roland Bayman, David Pedler and Caroline Brazier). David Pedler accepted in cross-examination that it was the intention of government that ultimately everybody would have been removed. I therefore accept that the applicant’s submission on this issue correctly states the intended position.
WHETHER ALTERNATIVE ACCOMMODATION WAS OFFERED
245 This issue arises as a consequence of the plea by the respondents in the defence that they offered to provide alternative accommodation. That was in response to the applicant’s plea that the Reserves Act arbitrarily deprived the applicants of the right to manage and otherwise exercise ownership rights over the Reserve.
246 The affidavits of Terrence Joseph Daly sworn 4 December 2003 and Irene Mary Thomas sworn 9 December 2003 set out the extent to which the first respondent offered to provide housing assistance to the Aboriginal inhabitants of the Reserve up to 1 July 2003. Supplementary affidavits provide particulars of accommodation made available but are subject to the agreed confidentiality orders previously referred to.
247 The applicant submits it is apparent from the affidavit of Terrence Daly that 18 days after the direction was given by the Administrator for them to leave their homes, no alternative accommodation had been provided. It is said no concrete or particular offer was made up to that time (see the evidence of Roland Bayman and David Pedler) and that the only accommodation deposed to in any detail as having been provided was on 18 August 2003 (sic 2004).
248 In contrast the respondents rely on evidence of various steps taken to make arrangements for accommodation.
249 On 5 June 2003, officers of the first respondent visited the Reserve and told Robert Bropho that they wanted to speak to the women about the wants and needs of the families of the SVC. Mr Bropho said that the women and children had left the Reserve. On 9 June 2003 an officer of the first respondent gave notice of a meeting on 10 June 2003 at the Kiara Police Station to discuss the wants and needs of the families of the SVC. On 10 June 2003, officers of the first respondent waited at the Kiara Police Station to meet with the Aboriginal inhabitants of the Reserve to discuss the wants and needs of the families of the SVC. Neither the applicant nor any other Aboriginal inhabitants of the Reserve attended that meeting. On 10 June 2003, officers of the first respondent went to the Saunders Street Aboriginal Community and left messages for the applicant and other Aboriginal inhabitants of the Reserve that they wanted to discuss assistance to the Aboriginal inhabitants of the Reserve. On 13 June 2003, the Administrator asked Robert Bropho if he had alternative accommodation available to him. Mr Bropho said that he did. On 17 June 2003, officers of the first respondent spoke with Herbert and Charlotte Bropho at the Saunders Street Aboriginal Community about their housing needs. On 1 July 2003, officers of the first respondent spoke with Robert Bropho at the Saunders Street Aboriginal Community about the housing needs of the applicant and former Aboriginal inhabitants of the Reserve. Mr Bropho said that those people did not want any housing assistance from the DHW. On 21 July 2003, an officer of the first respondent went to Margaret Jeffery’s house in Guildford and spoke to the applicant and others about providing emergency public housing. Between July and September 2003 the first respondent provided emergency accommodation and/or public housing to a number of Aboriginal inhabitants of the Reserve.
250 As this issue can only be resolved by reference to the confidential affidavits previously referred to, I propose to return to this issue only in the event that it becomes necessary to decide whether any offer of alternative accommodation counterbalanced the loss of the rights which the applicant seeks to assert so as to make any deprivation of rights not arbitrary.
WAS THE RESERVE PREVIOUSLY THE SUBJECT OF GRANTS OF FREEHOLD TO NON-ABORIGINAL PERSONS?
251 The whole of the Reserve was previously a portion of Swan Locations N & O, the subject of a fee simple grant issued on 19 May 1837 to Messrs Charles Ridley and James Walcott, both non-Aboriginal persons.
PART F: ISSUES OF INVALIDITY OF THE 2002 MANAGEMENT ORDER
252 It is convenient to address here issues of whether the revocation of the 1998 Management Order and the substitution of the 2002 Management Order were invalid as a consequence of non-compliance with the LAA.
DID THE SVC GIVE INFORMED CONSENT TO THE 2002 MANAGEMENT ORDER AS REQUIRED BY THE LAA? [ISSUE 9]
253 Section 50(1)(a) of the LAA provides:
‘50.
(1) When a management body –
(a) agrees that its management order should be revoked; or
(b) does not comply with its management order or with a management plan which applies to its managed reserve or does not submit a management plan in compliance with a request made under section 49(2),
the Minster may by order revoke that management order.’
254 The applicant has pleaded that the SVC did not give consent to the 2002 Management Order as required by s 50(1)(a) of the LAA.
255 There can be no dispute that the SVC expressly consented to the 2002 Management Order. On 11 October 2002 Harvey Bropho, Denise Sambo and Robert Bropho on behalf of the SVC wrote to the Minister for Lands stating that ‘you have put into writing all the changes that we want to the management order’. After referring to an increase in racist attacks against Aboriginal people, he also stated that the SVC ‘again confirm[s] that we agree to make no claim for compensation’. In another letter on the same day Harvey Bropho as Chairperson of the SVC wrote to the Minister for Lands stating ‘if this is the final version of the management order, lets get on with it. We have discussed it and it is acceptable’. Those communications raise the presumption that the SVC had in fact consented to the revocation.
256 The applicant’s argument is that the SVC did not ‘freely give prior informed consent’.
257 The evidence relied upon by the applicant to support this contention is as follows. On 12 September 2002 the Minister for Planning and Infrastructure wrote to Harvey Bropho as Chairperson of the SVC requesting its agreement to the existing 1998 Management Order in favour of the community being revoked and a new management order made setting out various conditions. The letter stated that this followed a meeting with representatives of the SVC on 20 August 2002 at which the Minister had expressed the need for open access to the site and concerns raised by a variety of government agencies gaining access to ensure health and well-being of residents. The letter included copies of the proposed revocation, new order and the conditions. It explained that the 2002 Management Order required the installation of a pedestrian gate and the development of a management plan for the Reserve within six months of the order. Further the letter stated that as the new management order was effectively being given in exchange for the 1998 Management Order, the orders would be made on the basis that the SVC would not claim any compensation for improvements on the Reserve. The Minister concluded by asking that the recipient respond to her by the close of business on 20 September 2002. Earlier in the letter she had stated that the orders were those which she proposed to make ‘subject to any reasonable objections from the Corporation being received before the [sic] 20 September 2002’.
258 The affidavit of Margaret Jeffery deposes that the SVC held a meeting on 21 September 2002 to discuss the Minister’s letter. The meeting considered the SVC could not refuse to consent, on the basis that it would not lose any rights to use, care for, control or manage the Reserve by agreeing to the new management order. On 21 September 2002 the SVC wrote to the Minister requesting certain additions, subject to which the new management order was acceptable to it. The SVC also agreed to make no claim for compensation. Ms Jeffery testified that the SVC read the letter as being one with which it had to agree.
259 The content of the above letters and the evidence of the circumstances in which they were sent, apart from the evidence of Ms Jeffery, is entirely supportive of the inference that the consent was freely given. Harvey Bropho did not give evidence so that it may be inferred he had no evidence to give to negate that inference.
260 The additional evidence of the circumstances in which the consent was given does not provide a basis for a finding that the consent was not voluntary and legally effective. The evidence supports findings that, in addition to the statements of consent:
(a) the SVC was given notice of the proposed 2002 Management Order and was given an opportunity to comment, including an extension of time within which to comment;
(b) the terms of the proposed 2002 Management Order were the subject of negotiations between the SVC and the first respondent; and
(c) the SVC had legal assistance from senior counsel, whose fees were partly paid by the first respondent.
261 In any event, the applicant has not distinctly pleaded duress or fraud or non est factum and so cannot deny the legal effect of the consent which was given: O 11 r 10 of the Federal Court Rules.
262 The applicant also argues that, in order to validly revoke a management order pursuant to s 50(1)(a) of the LAA, what is required is not informed consent or even acquiescence, but establishment of the fact that the management body ‘agrees that its management order should be revoked’ (Emphasis added). The applicant submits the circumstances clearly did not suggest that an agreement was reached that the 1998 Management Order should be revoked. It is therefore submitted that the revocation of the 1998 Management Order was not validly achieved as an exercise of the power under s 50(1)(a) of the LAA. The reference in the relevant portion of s 50(1)(a) to ‘should’ can only be construed in its context to mean that it agrees to the Minister’s proposal to revoke the management order. There is no reason in policy to favour a construction that would place the Minister in the position where, having received a consent from a management body to the revocation of a management order, it could subsequently disagree that the management order ‘should’ be revoked.
WAS THE 2002 MANAGEMENT ORDER IN THE PUBLIC INTEREST AS REQUIRED BY THE LAA? [ISSUE 10]
263 Section 50(2) of the LAA provides:
‘50.
(2) If, in the absence of agreement or non-compliance referred to in subsection (1), the Minister considers that it is in the public interest to revoke a management order, the Minister may by order revoke the management order.
…’
264 If in fact no informed consent had been given, that would not have the consequence of making the revocation invalid unless it is also shown that the Minister made the revocation without considering that it was in the public interest as provided for in s 50(2) of the LAA.
265 The Minister’s letter dated 12 September 2002 raising the prospect of a new management order referred to ‘the need for open access to the site and concerns raised by a variety of Government agencies in gaining access’ and went on to say:
‘Open access for Government agencies is a necessary requirement for the management of the site to ensure the health and well-being of residents. Concerns have also been raised in relation to the Swan Valley Nyungah Community Aboriginal Corporation's accountability, transparency and its compliance with its rules and the provisions of the Aboriginal Councils and Associations Act 1976 (Commonwealth).’
266 The applicant submits there was no demonstrated public interest reason for the 2002 Management Order.
267 There are a number of authorities which exemplify the breadth of the meaning of the phrase ‘in the public interest’. In O’Sullivan v Farrar (1989) 168 CLR 210, Mason CJ, Brennan, Dawson and Gaudron JJ (at 216) said that the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only insofar as the subject matter and scope and purpose of the statutory enactment may enable given reasons to be pronounced definitely extraneous to any objects the legislature could have had in view.
268 In Evans v Western Australia (1997) 77 FCR 193 at 215 Nicholson J cited O'Sullivan 168 CLR at 216 and the following statement from Lockhart J in the Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50: ‘The public interest is a concept of wide meaning and not readily delimited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest’. Nicholson J went on to find that the National Native Title Tribunal had not erred in taking into account that on-going exploration activities were essential to the health of the mining industry, as part of the public interest in a proposed future act under the Native Title Act being undertaken.
269 Right to Life Association (NSW) Inc 56 FCR 50 and O'Sullivan 168 CLR 210 were also cited by Jacobson J in the Full Court in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 at [243]-[245]. His Honour said (at [246]):
‘… it is plain that the categories of public interest are not closed and that different minds will differ as to what is, or what is not, in the public interest…There is nothing in the subject matter or scope of the FOI Act which confines the discretionary factors to be taken into account in the manner suggested by the appellant.’
270 The majority in the High Court in Re Queensland Electricity Commission; Ex parte Electrical Trades Union (1987) 61 ALJR 393 at 400 recognised that there may be competing public interests, and that the factors on one side may need to be weighed against the factors on the other side to arrive at an overall conclusion. In Sinclair v Maryborough Mining Warden(1975) 132 CLR 473, Jacobs J said (at 487) that:
‘The public interest is an indivisible concept. The interest of a section of the public is a public interest, but the smallness of the section may affect the quantity or weight of the public interest so that it is outweighed by the public interest in having the mining operation proceed.’
271 So far as it may provide further guidance to the Court, the respondents rely upon similar statements made in the context of international human rights law. In James v United Kingdom (1986) 8 EHRR 123 the European Court of Human Rights considered the meaning of the sentence: ‘No one shall be deprived of his possessions except in the public interest’, in Art 1 of Protocol No. 1 to the European Convention on Human Rights. At [46] the Court said:
‘…the notion of 'public interest' is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve considerations of political, economic and social issues on which opinion within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is 'in the public interest' unless that judgment be manifestly without reasonable foundation.’
This was followed in Mellacher v Austria (1990) 12 EHRR 391 at [45].
273 Secondly the applicant submits that the concerns raised in the Minister’s letter regarding open access for government agencies being a necessary requirement for management of the site was adequately accommodated by the regime in place in the community, which was no more restrictive than exists in many residential estates. The applicant relies on her affidavit evidence as well as the affidavit evidence of Robert Bropho, Margaret Jeffery and Denise Sambo relating to control by the SVC of access to the Reserve, all of which is given in the affidavits in similar form. That evidence has been set out in the context of all evidence in the narrative earlier in these reasons. I am unable to agree that the evidence relied upon viewed in that context supports the inference which the applicant asserts. The weight of that evidence viewed as a whole is that many agencies and both the Coronial Inquiry into the death of Susan Taylor and the Gordon Inquiry considered that the regime in place did not adequately provide open access. The intended purpose of the management plan was to achieve just that.
274 Thirdly, the applicant submits that the 2002 Management Order in itself was not capable of achieving the protection of women or children or any similar public purpose. Reference is made to the evidence of Graham Searle. He testified in cross-examination that the need for the 2002 Management Order did not come about as a consequence of any breach of the 1998 Management Order or legislation. However, the 2002 Management Order had provided for the development of a management plan over a six month period to address the issues of concern. Nevertheless he had been concerned that any administrative action taken may have led to an application to the courts for injunctive relief which would have held up such action. Consequently he had supported the enactment of legislation to remove that possibility. I do not read his evidence as stating that the 2002 Management Order could not have achieved its aims; only that there was a risk its revocation by the Reserves Act could have given rise to litigation seeking injunctive relief which would have delayed progress on delivery of executive relief. In any event, as has been stated above, the existence of a breach of a prior order or legislation was not a necessary pre-condition to the exercise of the Minister’s discretion to determine what was in the public interest.
275 Fourthly, the applicant submits that there was no evidence given supporting the contentions of the respondents concerning the purpose of the 2002 Management Order. Firstly, she states there is no legal basis for suggesting that the SVC had a legal obligation to secure the safety and welfare of persons accessing or residing on the Reserve any more than any other land management body might have been expected to assume that obligation in relation to any other reserve. If that were so it would not preclude the inference that if the resultant management plan under the 2002 Management Order had been developed it would have addressed the issues of public concern. Secondly, the applicant contends there is no evidence that the SVC was failing to secure the safety and welfare of persons accessing or residing on the Reserve any more than any State agency responsible for securing the safety and welfare of persons accessing or residing on the Reserve. For example, none of the government agencies aware of the circumstances of the non-resident Susan Taylor had been able to secure her safety Thirdly, the applicant submits that State instrumentalities were not being prevented by the SVC from providing services to or securing the safety and welfare of persons accessing or resident on the Reserve. This is supported by reference to the evidence concerning access by officers of the DCD Cannington, Mirrabooka and Northam, Kiara Police, DOJ, Lockridge Medical Practice, Community Health Nurse and staff of Calunga School: see the oral evidence of Caroline Brazier and Roland Bayman, the affidavit of Margaret Jeffery of 15 December 2003 and the Schedule to the Report on Service Provision to Swan Valley Nyungah Community April 2003 (exhibit P80). Fourthly, the State or any of its instrumentalities had capacity to secure the safety and security of persons accessing or residing on the Reserve. There is evidence in relation to the provision of security from substance abuse and the sexual predations upon women of bungeemen: evidence of Caroline Brazier and Roland Bayman.
276 Fifthly, the applicant contends that the compliance by the SVC with the requirements of the ACA Act and consequent accountability and transparency of the association are matters for the Commonwealth Registrar of Aboriginal Corporations to supervise (not the State). It is said that a new management order was not a ‘necessary or appropriate’ mechanism for ensuring compliance with statutory obligations existing under the ACA Act. In any event, the SVC claims to have been compliant with the requirements of that legislation. The applicants tendered to the respondents a compliance report by Deloitte Touche Tomatsu in relation to the SVC’s compliance with the ACA Act. The respondents said it was not relevant to include in the agreed documents, from which the applicants inferred that compliance by the SVC with the ACA Act is no longer in issue. This contention is not a consideration which makes the Minister’s exercise unreasonable. Short of any unreasonableness, it was for the Minister in the exercise of determining the public interest to decide what was within that discretion ‘necessary or appropriate’.
277 While there is evidence in the applicant’s case of co-operation in relation to health and welfare issues, it was not the case that there was no evidence the SVC was failing to secure the safety and welfare of persons accessing or residing on the Reserve. Similarly there was evidence that access to the Reserve by government officials to improve provision of government services to Aboriginal inhabitants of the Reserve was frustrated by the management of the SVC. The evidence previously recounted, including the findings of the Coronial Inquiry into the death of Susan Taylor and the Gordon Inquiry, is evidence of such failures. Whether or not that was greater or less than other government agencies is not to the point. The Minister’s discretion was exercised in relation to the Reserve, not in relation to other government agencies. The same may be said of the other evidence relied upon. The Minister had a broad discretion and, provided it was not exercised unreasonably, that is, with no evidentiary foundation for its exercise, it was the Minister who was entitled to weigh the factors now asserted together with all other relevant factors.
278 In short, these contentions of the applicant on this issue are answered by the fact that in the making of the 2002 Management Order there is no reason to doubt that the Minister’s concerns were genuine; nor could they be said to be manifestly unreasonable as the law understands that concept. Given the breadth of the concept of public interest, it cannot be said – even taking the evidence on which the applicant relies on this issue at its highest – that the Minister did not act ‘in the public interest’.
279 Even if I had been unable to reach this conclusion on this issue I would be required to consider the effect of s 4(2) of the Reserves Act. That provided:
‘4(2) The revocation, under subsection (1), of the management order no I1262262 has effect as if it were a revocation of a management order under the LAA section 50(2).’
On one view this mandates that the revocation complied with s 50(2) of the LAA and so was in the public interest. Assuming the Court cannot be thus precluded from examination of the compliance with s 50(2), I am satisfied that in any event such compliance did take place for the preceding reasons.
PART G: DISCRIMINATION AND THE RESERVES ACT
NATURE OF DISCRIMINATION
The content of ss 9 and 10 of the RDA
280 The inter-related elements for the applicant of s 10(1) are (1) by reason of (2) a law, or of a provision of a law, of the Commonwealth or of a State or Territory, (3) persons of a particular race, colour or national or ethnic origin (4) do not enjoy or do so to a more limited extent than persons of another race, colour or national or ethnic origin (5) a right that is enjoyed by persons of another race, colour or national or ethnic origin.
281 The inter-related elements which constitute s 9(1) are that the unlawfulness is created by (1) any act (2) involving a distinction, exclusion, restriction or preference (3) ‘based on’ race, colour, descent or national or ethnic origin (4) which has the purpose or effect (5) of nullifying or impairing (6) the recognition, enjoyment or exercise, on an equal footing (7) of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
282 In Gerhardy 159 CLR 70 at 99 Mason J contrasted the wording of s 9 and s 10 of the RDA as follows:
‘Section 10 makes no reference to racial discrimination; nor does it make any reference, as s 9(1) does, to the elements of the definition of “racial discrimination” in Art. 1.1 of the Convention. Instead s 10 is expressed to operate where persons of a particular race, colour or origin do not enjoy a right that is enjoyed by persons of another race, colour or origin, or do not enjoy that right to the same extent.’
Suggesting that questions as to the validity of s 10 might be thought to arise from the fact that it does not follow the language of the Convention, he continued:
‘The exclusion of persons of a race, colour or origin from the enjoyment of a relevant right by reason of a law does not necessarily involve “racial discrimination” in that it may not amount to a distinction, exclusion, restriction or preference “which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise” of the right “on an equal footing”. Consequently, s. 10 should be read in the light of the Convention as a provision which is directed to lack of enjoyment of a right arising by reason of a law whose purpose or effect is to create racial discrimination.’
283 A further distinction between the sections might be thought to arise from the fact that s 9 refers to human rights and s 10 refers only to rights. However, in Mabo v Queensland(1988) 166 CLR 186at 217 Brennan, Toohey and Gaudron JJ said that ‘section 10 of the Racial Discrimination Act is enacted to implement Art. 5 of the Convention and the “rights” to which s 10 refers is, like the rights mentioned in Art. 5, a human right - not necessarily a legal right enforceable under the municipal law’.
284 Additionally it is to be noted that s 10 expressly addresses a law or a provision of a law whereas s 9 addresses an act. I approach the sections primarily on the basis that it is s 10 which must be considered in relation to the Reserves Act and its provisions and that s 9 must be considered in relation to acts, such as those of the Administrator. In case it is thought (as some of the submissions appear to accept) that the reference to an act in s 9 is to include a reference to the passage of the Reserves Act, I have also considered that position.
Effect
285 In Western Australia v Ward (2002) 213 CLR 1 at 99 Gleeson CJ, Gaudron, Gummow and Hayne JJ said of s 10(1):
‘A number of points may be made at once. First, the sub-section does not use the word “discriminatory” or cognate expressions. Yet these terms are used throughout the authorities in which s 10(1) has been considered. That to which the sub-section in terms is directed is the enjoyment of rights by some but not by others or to a more limited extent by others; there is an unequal enjoyment of rights that are or should be conferred irrespective of race, colour or national or ethnic origin. “Enjoyment”' of rights directs attention to much more than what might be thought to be the purpose of the law in question. Given the terms of the Convention which the RDA implements (the International Convention on the Elimination of all Forms of Racial Discrimination) that is not surprising. The Convention's definition of racial discrimination refers to any distinction, exclusion, restriction or preference based (among other things) on race which has the purpose or effect of nullifying or impairing (again among other things) the enjoyment of certain rights. Further, the basic obligations undertaken by States party to the Convention include taking effective measures to nullify laws which have the effect of creating or perpetuating racial discrimination (Art 2, s 1(c)). It is therefore wrong to confine the relevant operation of the RDA to laws whose purpose can be identified as discriminatory (cf Waters v Public Transport Corporation (1991) 173 CLR 349.)’
286 In Ward 213 CLR at [113] their Honours considered it was critical that there had been a conclusion that the State law provided for differential treatment of land holding according to race. At [117] their Honours said that ‘it is because native title characteristically is held by members of a particular race that interference with the enjoyment of native title is capable of amounting to discrimination on the basis of race, colour, or national or ethnic origin.
Indirect discrimination
287 The relevance of the effect of racial discrimination brings into consideration the distinction between direct and indirect discrimination. R. Dubler in ‘Direct discrimination and a defence of reasonable justification’ (2003) 77 ALJ 514 at 517 describes the distinction as follows:
‘The former is said to arise where the discriminatory conduct is ‘directly’ grounded upon the complainant’s status or a characteristic appertaining generally or generally imputed to the complainant’s status. The latter occurs where the respondent imposes an avowedly neutral condition but it has in fact a disproportionately detrimental impact on persons of the status of the complainant that is unreasonable.’
288 A highpoint of statutory expression of this in Australian law appears in s 6 of the Disability Discrimination Act 1992 (Cth) as follows:
‘For the purpose of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.’
289 The closest a provision of the RDA comes to this is in s 9(1A). That section does not have any reference to proportionality but rather, like s 6(1)(b) of the Disability Discrimination Act, refers to the requirement to find the reasonableness of the term, condition or requirement having regard to the circumstances of the case. This was considered by a Full Court (Black CJ, Heerey and Sackville JJ) in Australian Medical Council v Wilson (1996) 68 FCR 46. Heerey J, with whom Black CJ generally agreed, traced the legislative history of s 9(1A) at 52-55. At 55 his Honour said that the mutual exclusivity construction should be applied in the present case to ss 9(1) and 9(1A) of the RDA because such an approach was consistent with the language of the provisions, their legislative history and the preponderance of authority. Sackville J at 74 agreed on the basis that it was a preferable course unless and until the High Court specifically considered the terms and legislative history of the RDA. The consequence is that the Full Court was of the view that s 9(1) was confined to direct discrimination. This was applied in Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78.
290 In Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 at 318 Tamberlin J in obiter dicta accepted that the language of s 10 of the RDA did not exclude indirect discrimination. Also that the reasoning of Mason J in Gerhardy 159 CLR 70 did not restrict s 10 to direct discrimination, focussing on the ‘purpose or effect’ of the law and so upon its operation. He identified s 9(1A) of the RDA as the indirect discrimination provision in that Act.
291 His Honour therefore concluded that in principle s 10 is capable of applying to indirect discrimination so that it would not be sufficient to dismiss an application under s 10 by holding that a particular law, on its face, applies equally to all individuals if in fact there is discrimination by reason of the operation of the law. The question must be whether the effect on (relevantly) Aboriginal people is so disproportionate in comparison with persons of another race as to constitute discrimination. While that is not reasoning in a binding authority it seems to me that is a view which should receive consideration in relation to the applicant’s contentions.
292 The applicant does not place any reliance on s 9(1A) of the RDA. In the case of s 9, it seems to me that I am required to proceed on the basis that it applies to direct discrimination, so that, in measuring effect, regard should be had only to direct effect. In the case of s 10(1), I should proceed on the basis that it is capable of application to direct or indirect discrimination. Therefore in measuring ‘effect’ under s 10 I should consider, in addition to direct effect, whether an indirect effect is established as a consequence of the proportionality of impact on (relevantly) Aboriginal persons of the Reserves Act or a provision of it.
Justificatory measures
293 In Nguyen 74 FCR at 319 Tamberlin J continued:
‘For a practice to amount to racial discrimination it must be “not reasonable having regard to the circumstances of the case”. The availability of alternative, non-discriminatory methods is one of the factors relevant to determining whether a practice is reasonable in the circumstances of the case: see Waters v Public Transport Corporation (1991) 173 CLR 349, per Dawson and Toohey JJ at 395. Other relevant factors will vary from case to case.’
294 The Australian Law Reform Commission in its 1986 Report on Recognition of Aboriginal Customary Law has endorsed an interpretation of the Convention as prohibiting only invidious discrimination. The Report states that the prohibition of discrimination does not preclude reasonable measures responding in a proportionate way to the special characteristics of particular groups. This reflects the international practice in which references to race become discriminatory only where they lack an objective and reasonable basis or a legitimate purpose: McRae, Nettheim and Beacroft, Indigenous Legal Issues (2nd edn, LBC Information Services, 1997) p324. In Lithgow v United Kingdom (1986) 8 EHRR 329 at 389 it was stated in reliance on Rasmussen v Denmark (1985) 7 EHRR 371 at [35] and [38] that a difference of treatment is discriminatory if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised.’ This is mentioned because argument has been addressed in these claims to whether the laws and acts of the first respondent were reasonable, proportionate and legitimate.
WAS THE Purpose of THE Reserves Act DISCRIMINATORY?
295 Section 9 of the RDA expressly requires attention to the purpose and effect of the act there I question. Although not expressly an element in the wording of s 10 in relation to a law or a provision of a law, the purpose and effect of the Reserves Act may be examined as one of those elements identified as necessary to establish the non-enjoyment of a right under s 10 of the RDA: Gerhardy 159 CLR at 99 per Mason J. Accordingly, it is appropriate to examine whether the purpose or effect of the Reserves Act was discriminatory.
296 Evidence is set out below under the heading ‘Was any deprivation not arbitrary because it was reasonable, proportionate and legitimate’ in support of the respondents’ contention that the purpose of the Reserves Act was to address issues of public interest, namely the safety of women and children. The government officials who provided that evidence consistently stated that the race of the applicants was irrelevant to the actions taken by themselves or the respondents in enacting the Reserves Act. Rather, their evidence was that the purpose of the Reserves Act was to ensure the protection of women and children associated with the Reserve.
297 The respondents also contend that the non-discriminatory purpose of the Reserves Act was demonstrated by the Premier in his address to Parliament on 14 May 2003 and the Second Reading Speech of the Reserves Bill the following day. During the Second Reading Speech to Parliament the Premier stated that:
‘… it has become abundantly clear that the SVC is no longer fit to continue its management role of the reserve. This issue is not about race; it is about intimidation, violence and abuse. The safety of all our children must be paramount, and it is incumbent upon all Western Australians to uphold the right of every child in this State to security and protection.’
298 None of this evidence was challenged in cross-examination and the only evidence from the applicants that could be taken to suggest racial discrimination was Robert Bropho’s complaint that when a white girl was murdered and raped in Canning Vale Shopping Centre, the shopping centre was not closed down. That evidence goes to proportionality and reasonableness, not to purpose.
299 The respondents argue that it must therefore be accepted that the purpose and motive of the enactment of the Reserves Act, and the exercising of powers under that Act, was not based upon the race of the applicants but was to protect the women and children resident on the Reserve from violence and bodily harm as stated by the respondents’ witnesses and evidenced by the addresses made by the Premier to Parliament.
300 I accept that the overwhelming effect of the evidence is that the purpose of the Reserves Act was to address the human rights of the women and children on the Reserve irrespective of race. There was not any racially discriminatory purpose of the Reserves Act.
WAS THE EFFECT OF THE RESERVES ACT DISCRIMINATORY?
The relevance of the Reserve being only for Aboriginal inhabitants
301 It is to the effect of the Reserves Act that the applicant’s case is principally directed. She contends that whatever the purpose of the Reserves Act, its effect was discriminatory. This is said to follow from the fact that the Reserves Act authorised acts which in their actual application were limited to a particular reserve, being a reserve for the use and benefit of Aboriginal inhabitants, so that the acts only affected Aboriginal inhabitants of the Reserve and persons associated with them. It is said that the effects on the enjoyment of rights were by reason of the applicants’ race and that the effect of the Reserves Act was to substantially impair or nullify the capacity of the Aboriginal inhabitants of the Reserve to enjoy those rights on an equal footing with other persons in the State.
302 The respondents agree that s 10 of the RDA only applies where the purpose or the practical operation and effect of a law is to create racial discrimination. The respondents acknowledge that s 10 of the RDA is not confined in its operation to laws that have a clearly racially discriminatory purpose. That is, the effect of a law is assessed independently of its apparent purpose. Section 10 of the RDA operates against inequality in the enjoyment of a human right, based on race. They contend that s 10 of the RDA is not engaged simply because the applicants are Aboriginal and the Reserves Act has an effect on their human rights. This is said to be supported by Mason J in Gerhardy 159 CLR at 99, as referred to above, who relevantly stated that ‘the exclusion of persons of a race, colour or origin from the enjoyment of a relevant right by reason of a law does not necessarily involve ‘racial discrimination’ and that s 10 was a provision directed to laws whose ‘purpose or effect was to create racial discrimination’. The respondents argue that s 10 could only be engaged if the Reserves Act affected the applicants’ human rights by reason of their Aboriginality (or by reason of an attribute which is an essential characteristic of being Aboriginal). It is said there must be a causal connection between their Aboriginality and the alleged non-enjoyment of their human right.
303 There is general support for this in what was said by the Full Court (Carr, Sundberg and North JJ) in Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 213:
‘We think that it is important to have regard to the words “by reason of” when construing s 10. They require the practical application of causation principles explained in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, whilst at the same time according due recognition to the beneficial purposes and objects of the RDA. The ambit of the expression “by reason of” is not confined to the absence or limited extent of the enjoyment of the persons first mentioned in the section, but must extend right through to the point at which the section starts to do its deeming work.’
The Reserves Act with related enactments
304 The respondents submit that if the effect of the Reserves Act is to be judged, it is important that the courts have recognised that in ascertaining the existence of discrimination, it is necessary to have regard to all relevant instruments and legislation read together. In Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ held that, in identifying discrimination against telecommunications carriers for the purposes of the Telecommunications Act 1997 (Cth), it was appropriate to read State statutes in conjunction with levies imposed by local authorities (at 631). Similarly, in Commonwealth v South East Queensland Aboriginal Corporation for Legal Services [2006] 1 Qd R 12, Muir J held that, for the purposes of s 10 of the RDA, a provision of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) creating a statutory qualification on a grant of property could not be read in isolation from the provision permitting the grant itself (at 28-29). It is contended that the change in management order effected by the Reserves Act was expressly done in accordance with s 50(2) of the LAA: see ss 4(2), 5(2), 5(5) and 6 of the Reserves Act. Therefore, on its face, the Reserves Act must be read in conjunction with the LAA to determine its effect. I agree with this submission and have already applied that approach in considering whether the 2002 Management Order was in the public interest.
The Reserves Act in isolation
305 Further or alternatively, the respondents say that even if the Reserves Act is viewed in isolation and not in the context of the LAA and its effect on other reserves generally, the fact that the Reserves Act happens to affect persons of a particular race will not necessarily lead to the conclusion that it affects them by reason of their race (and hence have a discriminatory effect) if there is another true rationale or basis for the law.
306 The respondents contend that, for the purposes of s 10 of the RDA, the inquiry into the effect of a law requires the correct characterisation of the law and the identification of its true basis of operation. Legislative or executive objectives may often be undertaken in a manner that incidentally interferes with human rights, but nevertheless do not discriminate or are carried out in a reasonable manner to achieving the objective. Such action will therefore not be unlawful: see, for example, Melkman v Commissioner of Taxation (1988) 20 FCR 331 at 336; Nguyen 74 FCR at 319 and Macabenta 90 FCR at 213.
307 The Reserves Act, viewed in isolation, does not have general application throughout the State. It is directed at one specific area of land and its management. Therefore, the criterion on which the Reserves Act operates must be ascertained by reference both to its text and also to the expressed purpose for which it was enacted. Thus the respondents contend the applicant cannot succeed simply by establishing that it was a characteristic of the Reserve that it was inhabited by people who were, in the main, Aboriginal people.
308 In Purvis v New South Wales (2003) 217 CLR 92, the High Court held that the actions of a school authority in removing a student who exhibited violent tendencies as a result of brain damage did not discriminate against that student on the basis of his disability. Gleeson CJ held (at 102) that the ‘true basis’, the ‘expressed and genuine basis’, for the school authority’s actions was the authority’s responsibility to prevent violence. Similarly, McHugh and Kirby JJ held (at 134) that, where racial discrimination is alleged, it is appropriate to compare the treatment that would be received by people of different races exhibiting the same characteristic on which the law is expressed to operate (such as ‘misbehaviour’). Gummow, Hayne and Heydon JJ held that (at 161):
‘It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability.’
309 The respondents contend it is also clear from the authorities that not all laws effecting the unequal enjoyment of protected human rights as between the people of different races will fall within the operation of s 10 of the RDA. The reason is that such laws also have an effect that serves another purpose. It is said that s 10 of the RDA thus has a qualified or balanced operation with respect to laws that may produce racial inequality in their effect. The State must retain a capacity to legislate for genuine purposes, see Smallwood v State of Queensland [1985] 1 Qd R 477 at 481 per Kelly J. In that case the equal application of the law (the Community Services (Aborigines) Act 1984 (Qld)) to all persons in certain locations, irrespective of race, defeated the action under s 10 of the RDA (even though the Act’s practical effect was undoubtedly greater in respect of Aboriginal than non-Aboriginal people). See also South East Queensland Aboriginal Corporation for Legal Services [2006] 1 Qd R 12 at 29 per Muir J, Fulcher v Hilt (1985) 61 ALR 359 at 367 per Wood J and Vanstone v Clark (2005) 147 FCR 299 at 352 per Weinberg J.
310 The respondents therefore submit that where a law applies without racial distinction to a thing, an activity, or to defined circumstances, there is no basis for the operation of s 10 of the RDA. They argue it is not sufficient for the purposes of s 10 of the RDA simply or only to show that such a law may be more likely to affect persons of a particular race more than others. This submission does not sit with the concept of indirect discrimination, where the effect of the operation of a law or a provision of it may disproportionally impact on persons of one race so that in itself creates the reason for the discrimination. In my view the law recognises that as the dominating principle where it applies because it subsumes the issue of causality by the fact of the disproportional effect.
311 The respondents contend that in this case the evidence discussed demonstrates that the Reserves Act was enacted because of particular circumstances which existed in relation to a particular reserve and that its effect upon the applicants was not by reason of their race. In particular, persons associated with the Reserve were Aboriginal and non-Aboriginal, and both were affected by the Reserves Act. It is also said that the Reserves Act does not change the status of the land as a reserve for the ‘Use and Benefit of Aboriginal Inhabitants’ and that the only change is in the identity of the management body. Accordingly, even viewed in isolation, it is said that the Reserves Act does not breach s 10 of the RDA.
Reasoning
312 I have difficulty in being invited to make a judgment on whether the Reserves Act was discriminatory in globo. This is for two reasons. First, both ss 9 and 10 of the RDA apply with respect to a particular human right. Second, as s 10 applies in relation not only to laws as a whole but also to provisions of a law, attention should be directed to the specific provisions of the Reserves Act in reaching a view whether, in relation to a particular human right, there is not any inconsistency with the RDA. There are a variety of provisions in the Reserves Act. This is not a case where the law under scrutiny is of such uniform effect that it can be addressed globally.
313 I therefore propose to proceed on the basis of giving consideration to each of the rights upon which the applicant seeks to rely and then considering in relation to each of them whether there is any inconsistency with either s 9 or s 10 of the RDA. In doing so I will have in mind and return to the submissions of the parties on the relevance of the fact of the Reserve was formerly in the care, custody and control of the SVC and that, as a consequence, the residents were Aboriginal persons.
PART H: INCONSISTENCY OF RESERVES ACT AND RDA s 10
314 Consideration of the existence of an inconsistency with s 10 of the RDA requires that the Court find whether (1) by reason of (2) a law (3) persons of a particular race (4) do not enjoy or enjoy to more limited extent than persons of another race (5) a right (6) that is enjoyed by persons of another race.
315 The human rights which the applicant contends were not so enjoyed are:
(a) the right to own property alone as well as in association with others, said to have been nullified by the revocation of the vesting order in favour of the SVC in whom a property interest in the land had been vested: Art 5(d)(v) of the Convention and Ward 213 CLR at [240]-[241].
(b) the right to freedom of movement and residence, including the freedom to choose to reside on the Reserve, which was designated solely for the use and benefit of the Aboriginal inhabitants, said to have been nullified or impaired by s 7(3) of the Reserves Act; Art 5(d)(i) of the Convention;
(c) the right to equal treatment before tribunals, said to have been nullified by the privative clause in s 11 of the Reserves Act and the denial of natural justice in s 8 of the Reserves Act in respect of Aboriginal inhabitants seeking to exercise the right in par (b) above and being prohibited from doing so by an exercise of power pursuant to s 7(3) of the Reserves Act; Art 5(a) of the Convention;
(d) the right to participate in public affairs at the level of the community, as a member of the SVC making decisions about the management of the Reserve, said to have been nullified by the revocation by s 4(1) of the Reserves Act of the vesting order in favour of the SVC: Art 5(b) of the Convention. This is not a matter which is pleaded in the amended substituted statement of claim. However, the applicant contends that it is a matter of law which is not required to be pleaded and is merely another legal basis upon which to conclude that the Reserves Act is inconsistent with s 10(1) of the RDA, as pleaded at [43] of the amended substituted statement of claim.
SUBPART 1: deprivation of rights of ownership and management of property
THE NATURE OF PROPERTY
316 In addressing rights of the applicants in relation to ownership and management, the applicant relies on a number of recent decisions in which there has been dicta describing the nature of ‘property’ at law both at general law and in a human rights context.
317 The first is Mabo 166 CLR at 217 where Brennan, Toohey and Gaudron JJ said:
‘Section 10 of the Racial Discrimination Act is enacted to implement Art 5 of the Convention and the “right” to which s 10 refers is, like the rights mentioned in Art 5, a human right – not necessarily a legal right enforceable under the municipal law. The human rights to which s 10 refer include the right to own and inherit property…’
The passage continues:
‘Although the human right to own and inherit property (including a human right to be immune from the deprivation of property) is not in itself necessarily a legal right, it is a human right the enjoyment of which is peculiarly dependent upon the provisions and administration of municipal law. Inequality in the enjoyment of that human right may occur by discrimination in the provisions of the municipal law or by discrimination in the administration of the municipal law or by both.’
318 The respondents say of these passages that their Honours did not say that the property the subject of the right could be property that exists otherwise than under domestic law. They did say that ‘property’ in this context must embrace rights of any kind in or over the Murray Islands’, but went on to explain that:
‘If the assumption be made that traditional rights survived the annexation of the islands and were thereafter recognised by the common law, and if the effect of the 1985 Act be left aside, the general law of Queensland would now recognise two categories of legal rights to be enjoyed under the Crown in and over the Murray Islands…. If we accord to the traditional rights of the Miriam people the status of recognised legal rights under Queensland law (as we must in conformity with the assumption earlier made), the 1985 Act has the effect of precluding the Miriam people from enjoying some, if not all, of their legal rights in and over the Murray Islands while leaving all other persons unaffected in the enjoyment of their legal rights in and over the Murray Islands.’ (Emphasis added)
319 Deane J (at 228 and 230) similarly assumed for the purposes of deciding the demurrer in that case the traditional proprietary rights and interests of the Murray Islanders survived the annexation of the Murray Islands to Queensland. On the other hand, Mason CJ at 198-199, and Dawson J at 243, were unwilling to decide the matter on the basis of an assumption that the traditional rights and interests asserted by the plaintiffs in that case constituted a right to own property or a right to inherit property within the meaning of the Convention when no such rights were agreed or proved.
320 At 229-230 Deane J stated:
‘… The word “right” is used in s. 10(1) in the same broad sense in which it is used in the International Convention, that is to say, as a moral entitlement to be treated in accordance with standards dictated by the fundamental notions of human dignity and essential equality which underlie the international recognition of human rights: cf., the preamble to the International Convention. In that sense, the moral entitlement to own property alone as well as in association with others and the moral entitlement to inherit which are referred to in Art. 5 of the International Convention are “rights” for the purpose of the guarantee against racial discrimination contained in s. 10 of the Commonwealth Act. Implicit in those moral entitlements is the “right” to enjoy immunity from being “arbitrarily dispossessed of [one’s] property” which is expressly recognized by Art. 17(2) of the Universal Declaration of Human Rights 1948. …’
321 Yanner v Eaton(1999) 201 CLR 351is the next relevant authority. There Gleeson CJ, Gaudron, Kirby and Hayne JJ said at [17]:
‘17. The word “property” is often used to refer to something that belongs to another. But… “property” does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of “property” may be elusive. Usually it is treated as a "bundle of rights”.’
322 Gummow J in Yanner 201 CLR at [85]-[86] said:
‘85. Property is used in the law in various senses to describe a range of legal and equitable estates and interests, corporeal and incorporeal. Distinct corporeal and incorporeal property rights in relation to the one object may exist concurrently and be held by different parties. Ownership may be divorced from possession. At common law, wrongful possession of land might give rise to an estate in fee simple with the rightful owner having but a right of re-entry …
86. Finkelstein J recently pointed out that, to Hohfeld, property comprised legal relations not things, and those sets of legal relations need not be absolute or fixed. Hohfeld said of “property”:
“Sometimes it is employed to indicate the physical object to which various legal rights, privileges, etc., relate; then again - with far greater discrimination and accuracy - the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object. Frequently there is a rapid and fallacious shift from the one meaning to the other. At times, also, the term is used in such a ‘blended’ sense as to convey no definite meaning whatever.”’
323 Of this the respondents say that the High Court there held that a declaration in a Queensland statute that the Crown held property in all native fauna did not confer beneficial ownership of such fauna in the Crown but merely a statutory right of control (see especially at [30]). They say that is not authority for the converse proposition i.e. that a person upon whom is conferred a statutory responsibility of care, control and management may have property in something ‘even though the statute expressly declares that they do not’ (a submission to which I will return).
324 Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in the Western Australia v The Commonwealth Native Title Act Case (1995) 183 CLR 373 at 437, after referring to the passages from Mabo 166 CLR at 217 and at 229-230, said:
‘“Property” in the context of human rights with which we are concerned included land and chattels as well as interests therein….’
325 The respondents draw attention to the full context of what was said by the members of the High Court in the joint judgment, namely:
‘“Property” in the context of the human rights with which we are concerned includes land and chattels as well as interests therein. Where, under the general law, the indigenous “persons of a particular race” uniquely have a right to own and inherit property within Australia arising from indigenous law and custom but the security of enjoyment of that property is more limited than the security enjoyed by others who have a right to own or to inherit other property, the persons of the particular race are given, by s.10(1), security in the enjoyment of their property “to the same extent” as persons generally have security in the enjoyment of their property’ (Emphasis added.)
A similar passage appears in Ward 213 CLR at 103 [116].
326 In Ward213 CLR 1 the judges joining in delivering joint reasons (Gleeson CJ, Gaudron, Gummow and Hayne JJ) said at [95]:
‘…The metaphor of “bundle of rights” which is so often employed in this area is useful in two respects. It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land…’
In similar terms McHugh J in Health Insurance Commission v Peverill (1994) 179 CLR 226 at 263-264 said:
‘Under the general law, the term “property” has ceased to describe any res, or object of sense, at all, and has become merely a bundle of legal relations – rights, powers, privileges, immunities.’
DID THE APPLICANT AND OTHERS HAVE PROPERTY RIGHTS CREATED BY STATUTE, BEING A RIGHT TO MANAGE AND OTHERWISE EXERCISE OWNERSHIP RIGHTS? [ISSUES 1-8 AND 13]
327 In examining the statutory sources of the applicants rights claimed in respect of management and ownership, it follows that the words property, ownership and management must take their colour primarily from the relevant statute or statutes.
328 The four possible sources of statutory rights of property for which the applicants contend are Acts in connection with (1) the designation of the Reserve; (2) the 1995 vesting of the Reserve in the SVC; (3) the transition of that vesting into the 1998 Management Order; and (4) the substitution of the 2002 Management Order.
The relevant statutory provisions
329 Section 29(1) of the Land Act 1933 provided:
‘The Governor may, subject to such conditions and limitations as he thinks fit, reserve to Her Majesty, or dispose of in such manner as for the public interest may seem fit, any lands vested in the Crown and the purpose for which any such lands are so reserved or disposed of shall be specified in the reservation or disposition.’
It is to be noted that the effect of a reservation is, subject to conditions and limitations, to create a reservation ‘to Her Majesty’ and not to create rights in others.
330 Section 33(2) of the Land Act 1933provided:
‘By Order the Governor may direct that any land shall vest in and be held by any person for the designated purpose, subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the designated purpose…’ (as amended by the Acts Amendment (Land Administration) Act 1987 s 60)
Section 33(1) was also amended to include a definition of ‘designated purpose’ as meaning ‘the purpose for which land is reserved under this Act and any purpose ancillary, and beneficial, to that purpose’.
331 Section 34B(1) of the Land Act 1933 (as amended by the Land Act (Transmission of Interests) Act 1992 (WA), s 4) provided:
‘34B.
(1) The Governor may, by Order in Council published in the Gazette, revoke an Order in Council made under section 33(2), whether before or after the coming into operation of Part II of the Acts Amendment (Reserves) Act 1982, and upon such publication every person in whom land is vested pursuant to the Order in Council revoked is thereby divested of the land but any estate or interest lawfully granted over or caveat lodged in respect of the whole or any part of the land shall continue, in the case of land which –
(a) remains reserved under this Act;
(b) becomes Crown land; or
(c) having become Crown land, is subsequently reserved under this Act,
subject to and in accordance with the terms of that estate or interest or subject to that caveat as if –
(d) that land not being vested in another person under an Order made under section 33(2), Her Majesty; or
(e) that land being vested in another person under an Order made under section 33(2), the other person,
were the person in whom that land was so vested at the time when that estate or interest was created or the estate or interest claimed by that caveat was created, as the case requires.’
332 The LAA replaced the Land Act 1933 with effect from 30 March 1998.
333 Section 41 of the LAA provides that ‘subject to section 45(6) [which is not relevant in this case], the Minister may by order reserve Crown land to the Crown for one or more purposes in the public interest’. Clause 14(2) of the transitional provisions in Sch 2 to the LAA provided that any land reserved under s 29 of the Land Act 1933 and remaining so reserved immediately before 31 March 1998 (which is the case with the Reserve) is to be taken to be land reserved under s 41 of the LAA.
334 Section 46(1) of the LAA provides:
‘The Minister may by order place with any one person or jointly with any 2 or more persons the care, control and management of a reserve for the same purpose as that for which the relevant Crown land is reserved under section 41 and for purposes ancillary or beneficial to that purpose and may in that order subject that care, control and management to such conditions as the Minister specifies.’
Subsection 46(10) was added by the Land Administration Amendment Act 2000 (WA) and provides:
‘In subsection (1), a reference to a person is a reference to-
(a) a person having perpetual succession;
(b) ……………………’
Subsection 46(5) provides:
‘An order made under subsection (1)…does not create any interest in Crown land in the relevant reserve in favour of the management body of that reserve.’
The designation of the Reserve
335 The Western Australian Government Gazette (Government Gazette) of 22 July 1994 at 3754-3755 stated:
‘Reserve No. 43131 comprising Swan Location 11942 with an area of 7.9699 hectares on Land Administration Plan 18524 for the designated purpose of “Use and Benefit of Aboriginal Inhabitants”.’
The same Government Gazette at 3751 stated:
‘Reserve No. 43131 (Swan Location 11942) vested in the Swan Valley Nyungah Community Aboriginal Corporation for the designated purpose of “Use and Benefit of Aboriginal Inhabitants”.’
In the Government Gazette of 12 December 1995 at 6007 it was announced that the above Order in Council of 22 July 1994 vesting the Reserve in the SVC had been revoked under s 34B(1) of the Land Act 1933.
336 Also in the Government Gazette of 12 December 1995 at 6013-6014 was an announcement that:
‘Reserve No. 43131 (Swan Location 11942) “Use and Benefit of Aboriginal Inhabitants” to include Location 11966 as surveyed and shown bordered red on Land Administration Plan 18524 and of its area being increased to 8.8777 hectares accordingly.’
At 6002-6003 of the same Government Gazette it was advised that pursuant to s 33(2) of the Land Act 1933:
‘Reserve No 43131 (Swan Location 11942 and 11966) vested in the Swan Valley Nyungah Community Aboriginal Corporation for the designated purpose of “Use and Benefit of Aboriginal Inhabitants”.’
337 The applicant submits that the fact that the land was reserved for the ‘Use and Benefit of Aboriginal Inhabitants’ is land which the Aboriginal inhabitants have a right to use and so, within the concepts of property, is a property right.
338 The respondents submit that the reservation of the relevant land for the purpose of ‘Use and Benefit of Aboriginal Inhabitants’ did not confer any interest in the land upon any particular Aboriginal persons or Aboriginal persons generally. In Ward 213 CLR at [221] the joint judgment of the High Court said that the designation of land as a reserve for a purpose under the Land Act 1933 did not without more create any right in the public or any section of the public so as to extinguish native title. At [219] the majority said that by reserving land the executive took to itself and asserted how the land would be used. No different conclusion arises under the LAA – see in particular s 41 of the LAA referred to above.
339 Consequently, the designation of the Reserve cannot be understood as having in itself created any right in the public. The designation did not give rise to any identifiable class with any interest of any kind in the Reserve.
The 1995 vesting of the Reserve in the SVC
340 The applicant contends that the applicants became beneficial owners of the land the subject of the Reserve by reason of its vesting in trust in the SVC on 12 December 1995 by Order in Council. It is said the vesting in trust conferred the legal estate of the land in the SVC: Ward 213 CLR at [240]. The effect of that vesting is said to have been that the Aboriginal inhabitants acquired beneficial ownership as a clearly defined section of the public. They are persons who may exercise the rights of ‘use and benefit as of right’ so that they have a ‘right, power or privilege’ sufficient to fall within the concept of ‘ownership of property’ in s 10(2) of the RDA.
341 The joint judgment in Ward 213 CLR at [238]-[241], held that where the purpose of a reserve was of a charitable nature, the effect of a vesting under s 33 of the Land Act 1933 was the creation of a public charitable trust. The respondents submit that the vestee did not thereby obtain a beneficial ownership of the land the subject of the Reserve.
342 Attention needs to be directed to the foundation of the reasoning of the joint judgment in the High Court in Ward 213 CLR 1. The relevant form which s 33 of the Land Act 1933 stood in relation to the issues there under consideration was:
‘33. The Governor may by Order in Council published in the Gazette –
(a) direct that any reserve shall vest in and be held by any municipality, road board, body corporate, or persons to be named in the order, in trust for the like or other public purposes, to be specified in such order; or
…’ (Emphasis added.)
That was the foundation of the High Court’s reasoning of the existence of a trust in the form of a charitable trust (although not exclusively so: see at [241]). By the Land Amendment Act 1948 (WA) s 5, s 33 was repealed and a new section substituted reading:
‘…
(2) By order the Governor may direct that –
any land shall vest in and be held by any person for the purpose –
and by the same or any subsequent Order the Governor may, subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the purpose –
confer upon that person, power to lease for the purpose the whole or any part of the land.’
That removed the concept of trust previously associated with vesting under that legislation. The concept of trust was not reintroduced by amendments to s 33 in the Acts Amendment (Reserves) Act 1982 (WA), s 8 or the Acts Amendment (Land Administration) Act 1987 (WA) s 60(c).
343 In Ward 213 CLR at [234] the joint judgment stressed the importance of the central inquiry being directed, not to the use of the reserved land, but to the rights created in others or asserted by the executive. At [228] they said the relevant starting point is the legislation. In the provisions of the Land Act 1933 as they relevantly stood on the vesting of the Reserve in the SVC, there was no legislative foundation for a conclusion that the vesting created a charitable trust.
344 What the Land Act 1933, s 33 did on the vesting of the Reserve was to vest it in the SVC to be held by it for the designated purpose. Whether that is sufficient to create a trust and whether any trust so created would be of a charitable character has not been argued. Assuming in the applicant’s favour that such may be the case, I return to that argument.
345 If, as the applicant contends, the SVC held the legal estate in the Reserve as a trustee of a public charitable trust for the purpose of ‘Use and Benefit of Aboriginal Inhabitants’, there could not be any individual beneficiaries of the trust: see Attorney-General (N.S.W.) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209 at 222 where Dixon and Evatt JJ said:
‘A charitable trust is a trust for a purpose, not for a person. The objects of ordinary trusts are individuals, either named or answering a description, whether presently or at some future time. To dispose of property for the fulfilment of ends considered beneficial to the community is an entirely different thing from creating equitable estates and interests and limiting them to beneficiaries. In this fundamental distinction sufficient reason may be found for many of the differences in treatment of charitable and ordinary trusts.’
346 Furthermore, if that were the case the trust would be for the use and benefit of the Aboriginal inhabitants of the State (which is the purpose of the Reserve), not for the use and benefit of just the applicants or just the inhabitants of the Reserve from time to time. There are three reasons why this must be the case.
347 First, there may be no Aboriginal people inhabiting a reserve when it is created, or at any particular time; and if the reserve is only for the present inhabitants then no other Aboriginal people could legitimately come to inhabit the reserve.
348 Secondly, such an interpretation is consistent with ss 4, 26, 31 and 32 of the Aboriginal Affairs Planning Authority Act 1972 (WA), which provide that any Aboriginal person may access a reserve for ‘Use and Benefit of Aboriginal Inhabitants’ and provide that an additional order may be made limiting access to particular reserves to only Aboriginal people in that locality. Such an additional order would be unnecessary if a reserve for ‘Use and Benefit of Aboriginal Inhabitants’ only referred to the people actually on the reserve.
349 Thirdly, there cannot be a charitable trust just for a small number of specific individuals and there could not be a non-charitable trust the beneficiaries of which were just the inhabitants of the Reserve from time to time since there is no such defined class of persons.
350 Accordingly, I do not consider the applicant can make out ownership in the applicants as a consequence of vesting of the Reserve in the SVC.
Transition of the 1995 vesting to the 1998 Management Order
351 Under cl 16 of the transitional provisions in the Second Schedule to the LAA, on 31 March 1998 the 1995 vesting under the Land Act 1933became the 1998 Management Order under the LAA. Transitional provision 16(1) reads:
‘16.
(1) An order made under section 33 of the repealed Act and subsisting immediately before the appointed day continues, subject to this Act, to subsist after the appointed day as if that order were a management order or an order made under section 46(3) or 59(5), as the case requires, of this Act.’
352 As has been seen above in the examination of the relevant statutory provisions, s 46(1) of the LAA empowers the Minister to place the care, control and management of a reserve with persons. Section 46(5) provides that an order made under s 46(1) does not create any interest in Crown land in the relevant reserve in favour of the management body of that reserve. The transition to the 2002 Management Order did not therefore create any interest for the SVC in the Reserve.
353 The question of whether s 46(5) and/or transitional provision cl 16(1) is inconsistent with s 10 of the RDA is considered below
Position under the 2002 Management Order
354 Paragraph [20] pleads that, by reason of the 2002 Management Order, the applicants are the beneficial owners of the land the subject of the Reserve which is vested in trust in the SVC for their use and benefit as Aboriginal inhabitants of the Reserve. Paragraph [29] of the amended substituted statement of claim, which pleads that the Reserves Act deprives the applicants ‘as members of the [SVC] and Aboriginal inhabitants of the Reserve’ of the ‘right to manage and otherwise exercise ownership rights in relation to the Reserve’. I agree with the respondents that this latter pleading is ambiguous as to whether the ownership is said to arise:
or both.
355 The applicant maintains that care, control and management are property interests of the kind referred to in Yanner 201 CLR at [17]-[20]; Peverill 179 CLR at 263-264 and Ward 213 CLR 1. As the applicants are members of the SVC, it is contended the members are entitled to exercise the rights and interests placed in the SVC in accordance with its rules.
356 As has been seen above, s 46(5) of the LAA provides that a management order under s 46(1) ‘does not create any interest in [the Reserve] in favour of the management body of that reserve’. Consequently (and subject to any inconsistency with the RDA) the 2002 Management Order which placed the care, control and management of the Reserve with the SVC did not confer ‘any interest’ in the Reserve upon the SVC. It cannot therefore be said to be an owner of the Reserve (or to have any interest in it by statute, apart from the RDA) as a consequence of the making of the 2002 Management Order.
357 I regard the statutory provision in s 46(5) of the LAA as so categorical that there is no need to form a view on the alternative argument based on consideration of general principles relating to a company having a separate legal personality from its members.
358 The respondents contend that even if it were permissible to look beyond the express provision in s 46(5) of the LAA to decide whether a management body could be said to have ‘property’ in a reserve, there is nothing in the LAA or the general law to support the applicants’ claim to have property in the Reserve.
359 In The Queen v Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 158 CLR 327 the High Court held that a grazing licence under Northern Territory Crown land legislation was not an estate or interest in land and therefore land the subject of a grazing licence remained unalienated Crown land. Mason J at 342 (with whom Gibbs CJ and Brennan J generally agreed on this issue) said that no-one who has a merely personal interest in land can be said to have an estate or interest in the land. Mason J said that a grazing licence was not property because it lacked the requisite degree of permanence (because of the Minister’s power to cancel the licence) and it was not assignable. At 344 Mason J concluded that, notwithstanding its similarity to a profit a prendre, a grazing licence was a ‘creature of statute forming part of a special statutory regime governing Crown land. See also Wilson J (with whom Murphy J and Gibbs CJ agreed on this issue) at 353.
360 The respondents submit that the applicants’ relationship to the Reserve in this case fails each of those criteria. First, it is not definable or identifiable by third parties. The Aboriginal people on the Reserve varied from time to time, and the meaning of the term ‘inhabitant’ is unclear. Secondly, it is not assignable. That is, the SVC could not transfer its management order, nor could any one or more of the applicants possess (let alone pass on) a right to decide who could or could not be an Aboriginal inhabitant of the Reserve. Furthermore, the non-assignability is inherent in the nature of the management order. Thirdly, the 2002 Management Order could be cancelled by the Minister by agreement, for breach of a condition of the management order or in the public interest; and the Reserve could be cancelled by the Minister at any time.
361 This suggests that the applicants ‘interest’ arising from the 2002 Management Order was in the nature of a statutory responsibility, taking its content and colour from the LAA. In Hornsby Council v Roads and Traffic Authority (NSW) (1997) 41 NSWLR 151 at 152-153 Mason P gave two possible characterisations of the relationship arising from the placement of the ‘care, control and management’ of land. The first was that of a statutory responsibility, entirely outside the field of rights occupied by the group comprising the definition of ‘interest.’ The second was that of a public trust, falling short of a proprietary right that would sustain a caveat: Municipal District of Concord v Coles (1906) 3 CLR 96 at 111 per Barton J. On either of these possibilities, what the applicants held from the 2002 Management Order cannot be described as coming within the concept of ‘property’ when the provisions of domestic statute law (apart from the RDA) are taken into account.
362 That position in relation to such domestic law is not improved for the applicants by approaching the concept of property through the dicta on which they rely from Yanner 201 CLR 351, Peverill 179 CLR 226 and Ward 213 CLR 1. This is because the concepts of property there referred to cannot overcome the effect of the provisions of the applicable statutes considered above on this issue and in particular s 46(5) of the LAA. Those statutory provisions are determinative of the nature of the legal relationship arising from the 2002 Management Order.
363 Any contention that s 46 of the LAA is wholly or partly inconsistent with s 10 of the RDA is considered below.
was there an inconsistency involving ss 46 and 50 of the LAA and transitional provision 16(1) with s 10 of the RDA
364 I do not consider that the applicant can succeed in establishing that either ss 46 or 50 or transitional provision cl 16(1) in the Second Schedule to the LAA is inconsistent with s 10. This is because they all applied equally to all reserves irrespective of the race of the persons holding the reserve. This was not a case where the LAA only affected reserves held for the use and benefit of persons of the Aboriginal race. Therefore the applicants did not enjoy any proprietary or human right (if they relevantly had them) in relation to the Reserve to any lesser extent than persons of other races.
DID THE APPLICANTs HAVE A HUMAN RIGHT OF OWNERSHIP OVER THE RESERVE RECOGNISED BY the RDA? [ISSUE 12]
365 It is common ground that a human right for the purposes of s 10 of the RDA need not necessarily be a legal right enforceable in the general law and that s 10 of the RDA is not confined to the rights mentioned in Art 5 of the Convention: s 10(2) of the RDA. However, the question nevertheless arises whether such rights as the applicants may have had in relation to the Reserve qualify as human rights within that ambit.
Applicant’s submissions
366 In contending for the existence of a human right of management and ownership the applicant initially relies upon a number of authorities said to show the breadth and flexibility of the concept of property in the Convention and the RDA, particularly Mabo 166 CLR at 217 per Brennan, Toohey and Gaudron JJ (see also Deane J at 229); Yanner 201 CLR at [17]-[20] per Gleeson CJ, Gaudron, Kirby and Hayne JJ and per Gummow J at [85]-[86]; Native Title Act Case 183 CLR at 437 and Ward 213 CLR at 95. These authorities have been examined above.
367 Additionally the applicant argues that beneficial legislation should be interpreted consistently with its beneficial purpose: Brennan v Comcare (1994) 50 FCR 555 at 561; Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at [187]; Bull v Attorney-General for New South Wales (1913) 17 CLR 370 at 384 and Pearce DC and Geddes RS Statutory Interpretation in Australia (4th ed, Butterworths, 1996) at p 222. Therefore the applicant submits there is no reason to conclude that the term ‘property owned’ (appearing in s 10(3) in the RDA) was intended to be interpreted as applying only to one of the narrow uses of the words ‘owned’ and ‘property’ which might be adopted by the common law or statute law from time to time: see Coles 3 CLR at 111; Hornsby 41 NSWLR at 152-153; Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235 and Peverill 179 CLR at 243-244. Gibbs CJ in Gerhardy 159 CLR at 86, stated that:
‘The words of the Convention, and those of the Racial Discrimination Act which are taken from the Convention are vague and elastic.’
Tamberlin J in Nguyen 74 FCR at 317 noted that:
‘All members of the Court [in Gerhardy 159 CLR 70] considered that section 10 should receive a liberal interpretation and should not be read in a technical narrow sense.’
They were echoing the words of Deane J in Mabo 166 CLR at 230: ‘…the section [s 10] is not to be given a legalistic or narrow interpretation’.
368 The applicant also contends that the effect of this case law and the Convention is that there is no reason to interpret the use of the phrase ‘property owned’ in s 10(3) of the RDA narrowly to exclude the legal relationship which the Aboriginal inhabitants have with the Reserve. The question is therefore whether the legal relationship of the applicants to the Reserve, although not qualifying as ‘property’ in the general law (apart from the RDA), can nevertheless qualify as ‘property’ for the purposes of the RDA and the Convention. The applicant submits that the effect of the above-mentioned case law is that the concept of ‘property’ for the purposes of the RDA is not limited to interests which are recognised by the general domestic law, as contended by the respondents.
Respondents’ submissions
369 The respondents submit that when [29] of the amended substituted statement of claim pleads a ‘right to manage and otherwise exercise ownership rights in relation to the Reserve’, it fails to plead the basis of the right. It is also argued that it is not anywhere pleaded that such a right is a right within the meaning of s 10 of the RDA.
370 The respondents contend that the RDA is concerned only with rights fundamental to the individual’s existence as a human being and the rights and freedoms protected by s 10(1) of the RDA do not encompass every right which a person has under the domestic laws of a country or every other right a person may claim: see Gerhardy 159 CLR at 124 and 126; Mabo 166 CLR at 217 and 229; Secretary, Department of Veteran's Affairs v P (1998) 79 FCR 594 at 599-600; Trau v Repatriation Commission (1998) 88 FCR 349; and Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 476. In Department of Veteran’s Affairs v P 79 FCR 594 and in Trau 88 FCR 349, there were alleged rights to certain war veteran’s benefits which were found not to be fundamental rights or freedoms recognised under the RDA. In Ebber 129 ALR at 477 acceptance of a German educational qualification to allow a person to work as an architect was held not to be a fundamental human right or freedom.
371 The respondents submit that the case law on the scope and meaning of the word ‘property’, as relied on by the applicant and set out above, provides no basis for a finding that the applicants have property in the Reserve. Again in the respondents’ submission, it does not follow from the proposition that property can be a bundle of rights that any bundle of activities undertaken on land establishes the existence of a property right. Thus in Simpson v United Kingdom (1986) DR 274 (European Commission of Human Rights, 14 May 1986) at [5] the Commission said that the fact a person had been living in a house for a period of time with no legal title could not found a claim based on Art 1 to Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (which provided that ‘every… person is entitled to the peaceful enjoyment of his possessions’).
372 Other submissions of the applicant and respondents are considered in the reasoning which follows.
Reasoning in relation to human right of management and exercise of ownership rights as part of the human right to own property
373 Article 5(d)(v) contains the only use of the word ‘property’ in the Convention:
‘The right to own property alone as well as in association with others.’
374 From examination of the authorities and dicta set out above the language of the Convention must be understood in its reference to ‘property’ to not only encompass property as recognised in domestic law but also the human right to property (and that is not in dispute). Further that the word ‘property’ as there used is to be taken as referring to a bundle of rights. This directs attention to the character of the rights (if any) existing between the grantor and the grantee in relation to the relevant property interest. In this case the relevant right is to care, control and manage the Reserve.
375 The nature of the human right recognised by the RDA in relation to property is that – as Art 5(d)(v) requires – it must be ‘property’ which is ‘owned’. The juxtaposition of these requirements of ‘property’ and ownership is emphasised by s 10(3) of the RDA, which operates only where management occurs in relation property owned by Aboriginal persons. Even if the dicta of the High Court to which attention has been directed can support a concept of ‘property’ which is wider than property recognised by domestic law (apart from the RDA), it nevertheless must be ‘property’ which is ‘owned’.
376 This is not to deny that the word ‘own’ should itself receive a beneficial interpretation. However, in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 Gibbs CJ at 184, with whom Aickin and Wilson JJ agreed at 243 and 244 (in dissent in the result) said that: ‘although the word ‘own’ in Art 5(d)(v) should no doubt be given a wide meaning, it seems to be going too far to hold that the right to ‘own’ property includes a right to mere possession under a licence to occupy’. Hence even if a mere right of occupation was encompassed within the claimed right to manage, a right to property under the Convention could not be made out. A fortiori where there is no right of occupation. On the other hand, Brennan J in Koowarta 153 CLR at 266 said that the enjoyment of a licence to use property is a civil right within the meaning of Art 5(d) of the Convention.
377 It is not the case that the Convention brings its own definition of ‘own’ into play or that the use of that word in s 10(3) of the RDA is required by that Act to be understood in any special way other than that indicated by the members of the High Court in Koowarta 153 CLR 168. Consequently it becomes necessary to consider whether whatever qualifies as property in the bundle of rights under consideration is capable of being ‘owned’.
378 The question of what is ‘owned’ can only be resolved by looking to the effect of other domestic law determining issues of ownership, ownership being a private right recognised by the domestic law. For the reasons set out in the previous section, the applicants do not have an interest in the Reserve and so do not have any ownership interest in it. A right granted by statute must be interpreted in accordance with the domestic law which created it.
379 In Mabo 166 CLR 186there were a different set of circumstances because the rights claimed there were rights outside domestic law. They became recognised by common law only after the Court had identified the legal relations that could be seen to exist from the evidence led. That is not the position here.
380 It is not that the grantee may not have ‘property’ in such a reserve within the wide Convention concepts; rather that such property simply cannot be one of ‘ownership’ because the right is a statutory one not encompassing ownership. Likewise it cannot be said that rights in the nature of a bare licence or a non-charitable public trust can qualify as property ‘owned’. In the case of the ‘property’ here in issue, it cannot be the case that it can exist as an human right independently of its statutory origins.
Other reasons why right to manage is not ‘property’
381 In the respondents’ submission there are further reasons why a right to manage and otherwise exercise ownership of a public reserve which neither the applicants as Aboriginal inhabitants, nor the SVC as the management body, own, cannot be recognised as a human right for the purposes of the RDA.
382 First, they say that recognition of such a right would be inconsistent with the general (non-discriminatory) regime for the management of public reserves established by the LAA. Management of a reserve by a management body is created and defined by statute, not inherent common law or international human rights principles. Recognition of private human rights would be inconsistent with the nature of a vesting or a management order. Recognition of such a right held by individuals (in this case, the applicants) would also be inconsistent with the statutory conferral of care, control and management on a nominated management body which has a separate legal personality and is required to operate according to the LAA and the ACA Act.
383 Secondly, any such right is incapable of definition. For example, does it arise immediately, or only after a period of years of occupation, and if so, how many years? Do individuals have the right, or groups? In either case, what if different individuals or groups wish to exercise their rights to manage the Reserve in ways which are inconsistent? Does the same right arise in respect of other Aboriginal reserves, and in respect of other reserves for other purposes; and what are the facts or matters that are relevant to determining those questions? If the right only arises in respect of the Reserve, or only in respect of particular Aboriginal reserves, then is there a comparable right in respect of other reserves or other areas of land, and if so, what is it? It is necessary to answer these questions because the RDA only operates in the context where persons of a particular race do not enjoy a right which is enjoyed by other persons of other races (or enjoy it to a lesser extent).
384 I record these submissions but rest my view on the effect of the statutory regime.
WAS THEre a LACK OF ENJOYMENT BY THE APPLICANT OF the right to manage and otherwise exercise ownership rights UNDER s 10 OF THE RDA BY REASON OF THEIR RACE? [ISSUEs 14, 15, 16]
385 The applicant contends that the enjoyment of the right to own property alone as well as in association with others was affected by the revocation of the vesting order in favour of the SVC in whom a property interest in the land had been vested.
386 I have reached the view above that the vesting order cannot be a foundation of the applicant’s claim for a right because the mode of its revocation was not inconsistent with s 10 of the RDA in that the revocation applied equally to all persons in whom a reserve was vested under the Land Act 1933 without regard to race. The right claimed is also not made out as a human right. This renders the further consideration of this issue unnecessary. Simply put, there could not have been a lack of enjoyment of a particular right under s 10(1) of the RDA if no such right existed. However, in order to give full effect to the arguments that have been presented, I proceed to consider the principal submissions on the issue.
387 Section 10 of the RDA requires the applicant to establish that by reason of the Reserves Act the inhabitants of the Reserve do not enjoy or enjoy to a more limited extent the particular right (in this instance, the right of management and ownership) which is available to the other persons.
388 The applicant and the respondents have both contended that the comparison between the extent of the rights enjoyed by the inhabitants of the Reserve and persons of another race, colour or national or ethnic origin is not limited solely to one in respect only of this particular Reserve. The respondents have contended that such a comparison extends not only to this Reserve but to ‘other comparable reserves’, whilst the applicant has focused more broadly on ‘other reserves and other lands’.
389 The applicant argues that a causal connection between race and the non-enjoyment of a right is established if the effect of the Reserves Act upon a racial group is that the group does not enjoy a right and the law does not have that effect on other racial groups: see Mabo 166 CLR at 218 and Ward 213 CLR at 99-102. It is contended by the applicant that the Reserves Act did not have any effect upon the property rights of any people other than Aboriginal inhabitants of the Reserve (and those associated with the Aboriginal inhabitants). It is said that the particular sui generis rights of management and ownership which the applicants held as Aboriginal inhabitants of the Reserve (with the capacity as members of the SVC to enjoy the control of the management of the land) were peculiar to them as people of a particular race. It is also contended that, pursuant to the ACA Act, only Aboriginal people control the management of the corporation and the applicants in this case were Aboriginal people managing a reserve vested in that corporation for the use and benefit of Aboriginal inhabitants.
390 The respondents contend the fact that the purpose of the Reserve is for the ‘Use and Benefit of Aboriginal Inhabitants’ does not mean that rights in respect of the Reserve (including any ownership rights that might be thought to exist) are characteristically held by Aboriginal people. For example, the management body for a reserve for the ‘Use and Benefit of Aboriginal Inhabitants’ may be a non-Aboriginal person, or a corporation controlled by non-Aboriginal people (such as a church group running a mission). Occupation of and access to a reserve for ‘Use and Benefit of Aboriginal Inhabitants’ is not necessarily limited to Aboriginal people, but may include non-Aboriginal spouses, community workers, nurses and such. It follows from this that any rights of these people, being people of another race, colour or national or ethnic origin, would have been equally affected by the Reserves Act. The respondents submit that persons associated with the Reserve were both Aboriginal and non-Aboriginal and that both groups were affected by the Reserves Act. The applicants, then, were not treated any differently from other persons (Aboriginal or non-Aboriginal) in relation to the Reserve, nor any differently from other persons or management bodies in respect of other reserves.
391 To apply s 10(1) of the RDA in these circumstances of assumed proof by the applicant of a right to management and ownership, involves the following steps:
(i) selection of the comparator persons of (relevantly) another race who enjoy a right of management and ownership over a reserve. In Wilson68 FCR 46 Heerey J at 63 said the comparison was essential to ascertain whether the purpose or effect was discriminatory when it was apparently so. He continued at 64:
‘In Banovic the High Court had to consider s 24(1) and (3) of the Anti-Discrimination Act which for practical purposes are indistinguishable from s 5(1) and (2) of the Sex Discrimination Act. In dealing with the equivalent of s 5(2)(a) Dawson J said (at 187):
“But a proportion must be a proportion of something, so that it is necessary to determine the appropriate grouping or pool within which to calculate the proportions which are to be compared. The English cases have discussed in detail the problems associated with the determination of an appropriate base group. Two main contrasting approaches can be identified. One seeks to narrow the base group to the particular group of persons to whom the requirement is directed, while the other seeks to establish a broader base beyond the immediate context.
…
the contextual approach will provide different answers depending upon the circumstances of each case. …”’
He concluded at 64:
‘It is clear that the base group is a group which is affected by the term, condition or requirement in question; … the particular section of the public “upon whose lives the impact of the relevant requirement or condition has to be measured”.’
On the other hand Black CJ said at 48:
‘The Act gives effect to the International Convention on the Elimination of all Forms of Racial Discrimination. In this context the concept used in s 9(1) and in s 9(1A) of impairing the enjoyment of a right on an equal footing must be taken to be a broad one that involves looking at the footing upon which rights are enjoyed by those sections of the community at large who do not suffer from the racial discrimination and the other like types of discrimination that the Act aims to eliminate.’
Sackville J did not consider Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 provided support for a conclusion in relation to s 9(1A)(c). He said at 81:
‘In my opinion, the language used in s 9(1A)(c) is satisfied if the effect of a requirement to comply with a particular condition is to impair the exercise of a human right by persons of the same group as the complainant, on an equal footing with members of other groups, regardless of whether or not those other groups are required to comply with the same condition.’
Of course their Honours were considering s 9(1A) rather than s 10, although I consider the above reasoning gives some guide to the difficult issues arising in choosing a comparator. Although the applicant’s submissions on this issue lack specificity in identifying the persons of ‘another’ race, it is clear from the views of Brennan, Toohey and Gaudron JJ in Mabo 166 CLR at 217-218 that the persons compared to were variously referred to as ‘other members of the community’, ‘any other Australian’ and ‘those whose rights… did not take their origin from the laws and customs of the Miriam people.’ In the light of this there does not appear to be any proper basis upon which to confine the comparators to holders of comparable reserves.
(ii) assessment of whether the right is not enjoyed (which on the assumption would be the case) or was enjoyed to a more limited extent than such other persons. It is at this point that regard must be had to the effect of the relevant provisions of the Reserves Act upon the Aboriginal inhabitants. It is clear that, if they had held the right of management and ownership, ss 4 and 5 of the Reserves Act would have occasioned the right not to be enjoyed by the SVC and, to the extent if any in which they were involved in the exercise of the right, the applicants.
This raises the issue how much the effect on the SVC is an effect on the applicants. It is an issue not able to be resolved on the evidence. The connection between the SVC and the applicants was not such that the rights of the applicants would have been necessarily affected by any measure impacting on the SVC. I have earlier found that the applicant’s submission that the SVC was a charitable trust in favour of the applicants cannot be made out in the relevant law. The evidence shows that following the enactment of the Reserves Act and the substitution of the AAPA for the SVC, (1) the Administrator had the option not to require the Aboriginal inhabitants to leave although he intended to do so; and (2) they left in anticipation of such action by the Administrator. It was the anticipated actions of the Administrator on behalf of the AAPA which determined whether they were to have continuing residence; not the removal of the SVC. To make out their claim the applicants would have to overcome these obstacles which I do not consider their case has done.
(iii) there remains the question whether any such cessation of any assumed rights of the applicants through the SVC would have been ‘by reason of’ the race of the applicants. The provisions themselves are neutral. Therefore account must be taken of the effect of the provisions. The direct effect of the provisions was to cause the rights of the SVC to cease. On the respondents’ view the evidence is clear that such effect was not ‘by reason of’ the race of those leading the SVC or the race of the applicants. Rather it was ‘by reason of’ the assessment made by Parliament of the lack of requisite quality in management of the Reserve by the SVC with consequent jeopardy to the human rights of certain women and children being Aboriginal inhabitants of the Reserve. On the applicant’s case, the diminution would have impacted detrimentally to a disproportionate degree on the Aboriginal inhabitants so as to be unreasonable. For reasons given in Part L below, I do not consider that such disproportionality and unreasonableness can be made out. (In reaching this and like conclusions in relation to other rights I rely not only on the general and specific findings above but also on the evidence and findings in Part L relating to Justificatory Contentions).
392 If the right had been made out, it would also be necessary to consider whether the justificatory contentions resulted in this prima facie position being set aside.
SUBPART 2: RIGHT NOT TO BE ARBITRARILY DEPRIVED OF the RIGHT TO MANAGE AND OTHERWISE EXERCISE OWNERSHIP RIGHTS
DID THE APPLICANT RECEIVE NOTICE AND A RIGHT TO BE HEARD OR OTHER FAIR PROCESS ON THE ENACTMENT OF THE RESERVES ACT? [ISSUES 20 AND 21]
393 Margaret Jeffery deposed that the SVC did not receive any notice or communication from the Government that any person or group of people would have to leave the Reserve or would not be allowed back on to it once they had left, apart from media publicity. Therefore the applicant submits that there was no identified process by which she and those she represents had any prior notice of the content of the Reserves Act or any opportunity to be heard before the enactment of it.
394 The applicant contends that notice of an intention to enact legislation pertaining to the subject matter and a Parliamentary process for the enactment of the legislation does not constitute a fair process for the deprivation of property such as to make it otherwise than arbitrary. She states that an analogous process of deprivation of property by legislation was held to be arbitrary by three judges in Mabo 166 CLR at 216-219 per Brennan, Toohey and Gaudron JJ. She contends that a fair process would be one analogous to that provided for under the Lands Acquisition Act 1989 (Cth), which requires publication of a pre-acquisition declaration (s 23) or a certificate as to urgent necessity laid before both Houses of Parliament (s 24), a right for an affected person to obtain a re-consideration of a pre-requisition declaration (ss 26 and 27) and a review of that by the Administrative Appeals Tribunal (s 28) and an entitlement to just compensation (ss 52 and 55) and a detailed process for the claim to, and determination and payment of, compensation (Pt VII, Divs 4, 5 and 6). Alternatively under the LAA, which provides for notice of an intention to take interests in land (s 170), power to lodge an objection within 60 days in relation to the taking (s 175), an entitlement to compensation for an interest taken (s 202) including compensation for the loss of use of structures erected and improvements made by a management body under a management order (s 204) and a procedure for applying for and obtaining compensation (ss 207 to 257).
395 The rules of natural justice require that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West (1985) 159 CLR 550 at 628. As Mason J said in the same case at 584, ‘where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute’.
396 The relevant statutory authority here is the LAA. Under that Act, no particular process is required to be followed before a management order is revoked in the public interest (i.e. there is no express requirement for notice or a right to object). The relevant requirements of procedural fairness are those which arise at common law.
397 The statutory analogies upon which the applicant relies are referrable to interests of a proprietary character. I have earlier found that the nature of the applicants’ interest is not of the same character. The applicants’ interests are not analogous to the interests upon which the applicant relies to advance the contention of the requirement for prior notice of enactment of the Reserves Act.
398 In any event, the rules of natural justice at common law are in any particular case fact specific. Here the respondents had actual knowledge of the proposal to revoke the 2002 Management Order and to replace it with a new management order in favour of the AAPA, and made submissions to the first respondent about that proposal. That actual knowledge appears from the facts earlier set out. In short, they were the Premier’s statement to Parliament on 14 May 2003 of the intention to introduce legislation in relation to the Reserve; the introduction of the Reserves Bill on 15 May 2003; the letter dated 20 May 2003 from the SVC to the Premier; and a press conference held by the SVC on 25 May 2003 to state its opposition to the Reserves Bill. In the context of the provisions of the LAA and these particular circumstances, there cannot therefore be any practical injustice to the applicants.
399 The respondents plead justificatory conduct in defence of any deprivation and this is considered later in these reasons.
subPART 3: RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE within the borders of the state
WHETHER DEPRIVATION OF RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE within the borders of the state [ISSUES 25-28]
The terms of the right
400 Article 5(d) of the Convention lists ‘other civil rights, in particular:
‘(i) The right to freedom of movement and residence within the border of the State.’
401 There are three matters that attract observation. The first is that the paragraph refers to ‘right’ in the singular and refers to ‘movement and residence’ in conjunction. However, judicial authority to which reference will be made permits the addressing of movement or residence as separate components where appropriate. The second is that the right is one existing ‘within the border of the Convention State.’ It would appear these latter words are included, not to give emphasis to the obvious limits of jurisdiction of the Convention State, but to emphasise that the right is one co-extensive with the territory of the Convention State.
402 The third is that in relation to the freedom of residence, the right is open to being understood in two ways. The first is with reference to the actual place of residence of a person. The second is as a right within the Convention state but without reference to any particular place within that limit.
403 It is common ground that the applicants have the right to freedom of movement and residence in the borders of Australia as the Convention State.
Whether such right on the Reserve
404 The applicant submits that the applicants have a right of freedom of movement and residence within the Reserve arising out of the fact that the Reserve forms part of the State and the Reserve is reserved for the use and benefit of Aboriginal inhabitants. It is said the applicants therefore have a right of freedom of movement within the Reserve so that a restriction on its exercise within the Reserve would be a curtailment of a fundamental freedom of the applicants. [Issue 26]
405 The respondent argues that the fact the Reserve is reserved for the use and benefit of Aboriginal inhabitants does not mean that any particular Aboriginal persons, or indeed any Aboriginal persons, can as of right enter or reside upon the land. While the Reserve is for the use and benefit of all Aboriginal people, the management body may from time to time determine how the Reserve should be used and how Aboriginal people will benefit from it. I agree with this submission of the respondents. It has earlier been seen that the designation of the Reserve alone without more did not confer any interest on any Aboriginal persons.
406 The evidence is not clear on how the Aboriginal inhabitants each became residents of the Reserve. The implication from the evidence is that the SVC determined who became a resident and who was no longer to be a resident. That is consistent with the SVC being a community. This is so even though examination of the terms of the 2002 Management Order (being the order in place before the enactment of the Reserves Act) do not disclose any provisions relating to management of residents. I infer in the circumstances that any right of residence and movement on the Reserve which may have been held by any of the Aboriginal inhabitants was derivative from but not dependent on the fact of the management being held by the SVC, the community to which they belonged. Alternatively that the Aboriginal inhabitants of the Reserve at the time of the enactment of the Reserves Act were persons permitted by the management body (the SVC) to reside on the Reserve and so also to exercise their freedom of movement in relation to the Reserve at that time.
Scope of recognised limitations on the right
407 In Gerhardy 159 CLR at 86 Gibbs CJ said:
‘…the Convention is not concerned with rights that are purely private, such as the right of a landowner to decide for himself what persons he will allow on his land when they are not open to use by the public…The words of the Convention, and those of the Racial Discrimination Act which are taken from the Convention, are vague and elastic and in applying them one is likely to get more assistance from the realities of life than from books of jurisprudence. The right, given by statute, of access to an area so large that it constitutes more than one-tenth of the State, seems to me to be a right in a field of public life…’.
Mason J at 102 said:
‘In broad terms the concept [of freedom of movement] may be said to embrace a claim to immunity from unnecessary restrictions on one's freedom of movement and a claim to protection by law from unnecessary restrictions upon one's freedom of movement by the State or by other individuals. It extends, generally speaking, to movement without impediment throughout the State, but subject to compliance with regulations legitimately made in the public interest, such as traffic laws, and subject to the private and property rights of others. And it would include a right of access to facilities necessary for the enjoyment of freedom of movement, subject to legitimate regulation of those facilities… Despite the lack of universal consensus on content, it is no doubt correct to say that, in general, freedom of movement does not extend to access to property in private ownership.’
408 At 103-104 his Honour said that in exceptional circumstances freedom of movement may include access to privately owned land, such as where the purpose and effect of vesting extensive tracts of land in private ownership and denying a right of access to non-owners was to impede or defeat the freedom of movement across a State by persons of a particular race.
409 Murphy J at 107 similarly held that the exercise of the power to exclude in that case was an exercise of public power due to the size of the area involved and the fact that it was exercised by a body vested with particular statutory authority. See also Deane J at 145.
410 In the light of this authority the applicant accepts that freedom of movement and residence within particular areas of the State is necessarily restricted by private ownership and the general law: Gerhardy 159 CLR at 86 per Gibbs CJ and Mason J at 102-103; and R v Secretary of State, Ex parte McQuillan [1995] 4 All ER 400 at 421-422. However the applicant contends that no such restrictions applied to the applicants in relation to the Reserve.
411 The respondents submit that there is no absolute right to freedom of movement and residence within the Reserve. They say that as Mason J recognised in Gerhardy 159 CLR at 102, the Convention right of freedom of movement (and residence) must be subject to regulations legitimately made in the public interest. They contend this is consistent with the fact that Art 5(f) of the Convention recognises a ‘right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks’. That is some areas are by their nature to be open to access by the general public, while other areas, even if not private property, are nevertheless not intended for access and use by the general public. The respondents say a reserve for a scout hall, a nursing home, or a rifle range are examples of reserves that are clearly not intended to be freely available for movement and residence. Similarly, for example, access to schools, hospitals, government offices, museums etc located on public reserved land is restricted for reasons of safety and security. The conferral of care, control and management of a reserve upon a management body gives that body the power to decide how the land will be used, including who may enter and reside on the land (if indeed anyone is to reside on the land). Such a power is inherent in the statutory conferral of care control and management; and see s 267(2) of the LAA (which provides that residence on any Crown land without lawful excuse is prohibited).
412 Furthermore, the respondents say many Crown reserves in Western Australia are subject to a range of legislative restrictions upon freedom of movement and residence. For example:
(a) a Board can be appointed to manage a reserve under the Parks and Reserves Act 1895 (WA). Such a Board can make by-laws applying to the reserve, including prescribing the time at which any such land shall be opened and closed (s 8), and a ranger can remove any person from such land for breach or anticipated breach of the by-laws.
(b) under s 106 of the Conservation and Land Management Act 1984 (WA) a person may not occupy any reserve to which that Act applies without a lease, licence or permit under the Act, and s 124 authorises a ranger or conservation and land management officer to remove any person from any such land.
(c) see similarly ss 45(2)(c) and 30 of the Zoological Parks Authority Act 2001 (WA), and ss 48(2)(b) and 30 of the Rottnest Island Authority Act 1987 (WA).
413 Aside from the possibility of the Reserves Act, the only limitation on any right of freedom of movement and residence on the Reserve brought to attention by the parties arises from the LAA.
414 The applicant draws attention to s 267(1)(a) of the LAA which makes it an offence for a person to reside (and engage in various other activities) on Crown land ‘without either the permission of the Minister or reasonable excuse’. It is said that prohibition does not affect a general right to freedom of movement on the Reserve. It is further submitted that the prohibition in relation to residence was not in effect in relation to the Aboriginal inhabitants of the Reserve at the time of the enactment of the Reserves Act. The provision appears in the LAA as reprinted as at 22 June 2001 and there is no evidence of it having been repealed before the Reserves Act was enacted. It was proclaimed to come into effect in January 1997, some years before the passage of the Reserves Act. It was therefore a major limitation on the right of residence on Crown land.
415 The applicant contends that prior to the enactment of the Reserves Act the effect of the placing or vesting of the Reserve in the SVC and its reservation for the use and benefit of the Aboriginal inhabitants had the effect of providing either the implicit permission of the Minister or a reasonable excuse for the applicants to exercise and enjoy residence on the Reserve as of right. I accept that had any of the Aboriginal inhabitants been charged with an offence against s 267(1)(a) of the LAA, a court would have accepted a defence of either Ministerial permission or reasonable excuse, based on the fact of the Minister’s grant of the 2002 Management Order to the SVC.
416 The consequence is that at the time the Administrator acted to require some Aboriginal inhabitants to leave the Reserve and to prevent any person entering the Reserve, the Aboriginal inhabitants were lawfully resident upon the Reserve.
417 The other limitation arising from the LAA was that contained in s 50(2). That gave to the Minister the power, in the absence of agreement or non-compliance, and if considered by the Minister to be in the public interest, to revoke the management order. So far as the right to residence on the Reserve and movement on it was derivative from the fact of a community being appointed as manager, the power to revoke such appointment was a potential limitation on the right to freedom of movement and residence. Furthermore, the 2002 Management Order expressly provided in cl 8(b) that nothing in the Order limited in any way the powers or rights of the Minister under the LAA. So far as the Aboriginal inhabitants right of residence on the Reserve and movement within it was dependent upon their community being the manager of the Reserve, it was vulnerable to the Minister’s exercise of the power to revoke the appointment of the Manager.
Did the Reserves Act also have a limiting effect?
418 The applicant submits the Reserves Act authorised the deprivation of the right to freedom of movement and residence within the border of the Convention State by authorising the deprivation of the applicants’ freedom of movement and residence in the Reserve. [Issue 27]
419 The applicant says acts authorised by ss 5(1), 7(3), (5), (6), (7), (9) and (10) of the Reserves Act all comprise acts which resulted in the applicants not enjoying the right of freedom of movement and residence within the Reserve. The Reserves Act authorised a deprivation of those rights in a manner which had not previously existed in relation to the Reserve. The SVC as the management body under the 2002 Management Order prior to the enactment of the Reserves Act only had the power to restrict freedom of movement and residence within the Reserve in accordance with any rights of private ownership and the general law that may have existed. To the extent that the respondents are successful in arguing that there were no private ownership rights in relation to the Reserve, the SVC had no power in that regard. The SVC could not exercise such power as it had (a) without according procedural fairness; (b) in its absolute discretion; (c) with immunity from judicial review; and (d) with immunity from any action in tort, as provided for in the Reserves Act ss 8, 9, 11 and 12. The applicant submits that to the extent of the substantial difference between the powers of a management body under the LAA and the AAPA or a person appointed by the AAPA under the Reserves Act, the Reserves Act authorised a substantial deprivation of the applicants’ rights.
420 The applicant contends the Reserves Act resulted in the applicants not enjoying the right to freedom of movement and residence that is enjoyed by persons of other races. This, it is argued, is because the Reserves Act resulted in the powers under ss 7(3)(a) and (b) being exercised resulting in the applicants not enjoying the right not to be arbitrarily deprived of freedom of movement. [Issue 28]
421 The respondents contend that in this case the enactment of the Reserves Act did not of itself have any effect upon anyone’s freedom of movement and residence on the Reserve. For example, it did not make it a criminal offence for anyone, or anyone of a particular race, to enter or remain on the Reserve: cf Gerhardy 159 CLR 70. Nor did it result in the Reserve being in any way fundamentally different from any number of other Crown reserves in Western Australia with respect to the applicants’ (and the public’s) freedom of movement and residence. For this reason, and given the existing power of a management body under the LAA, the existence of s 7 of the Reserves Act did not have any greater effect upon the applicants’ freedom of movement and residence upon the Reserve than was the case before the enactment of the Reserves Act and s 10 of the RDA could have no application. Any breach of the RDA could therefore only arise in respect of the exercise of the power in s 7 of the Reserves Act if it contravened s 9 of the RDA.
422 The respondents argue that, as demonstrated above, the powers in s 7 of the Reserves Act are not dissimilar to powers conferred under other legislation in respect of other reserves. It did not affect a large area of land, nor did it prescribe where the applicants or anyone else could or could not go outside the Reserve. Access to the Reserve was possible with permission of the second respondent and there was no evidence that such permission was unreasonably withheld. Hence the Reserves Act simply does not affect any right of freedom of movement and residence (any more than granting the land the subject of the Reserve to another person in freehold would do so).
423 The respondents conclude by submitting that if, contrary to the above submissions, the applicants’ right of freedom of movement and residence has been affected by the Reserves Act then it was only affected by the existence and exercise of the power in ss 7, 8 and 9 of the Reserves Act. Sections 4, 5 and 6 of the Reserves Act did not of themselves restrict the applicants’ freedom of movement and residence on the Reserve in circumstances where the Reserve remained for the ‘Use and Benefit of Aboriginal Inhabitants’ and the second respondent was obliged to continue to manage it for that purpose. Hence the respondents say in those circumstances the Reserves Act would only be invalid (assuming it was discriminatory, as to which see elsewhere in these reasons) to that extent.
424 I agree with the respondents that the Reserves Act itself did not in its terms have any effect on the freedom of movement and residence of anyone. Sections 4, 5 and 6 did not in terms have that effect. The enactment of ss 7, 8 and 9 did not have that effect. Therefore the Reserves Act as a law does not create an inconsistency with s 10 of the RDA in relation to such freedom nor does any provision of it do so. It cannot be concluded that either ‘by reason of’ the enactment of the Reserves Act or of a provision of it there was created any whole or limited enjoyment of the right of freedom of movement and residence. The enactment of s 7 raised the possibility that the Administrator may act so as to effect the freedom of movement and residence of the persons on the Reserve. However, without that ‘act’ being taken, there was no operative causal link.
425 Further, the revocation of the 2002 Management Order by s 4(1) of the Reserves Act took effect as if it were a revocation under s 50(2) of the LAA. The revocation is therefore to be understood as the act of the Minister, not of the enactment of the Reserves Act.
426 What the enactment of ss 4 and 5 of the Reserves Act did was to remove from the management of the Reserve the SVC from which the Aboriginal inhabitants’ right of freedom of movement and residence was derivative. It did not as such curtail that right. It was open to the new manager (the AAPA) to continue to recognise such rights, if any, as existed.
427 The freedom of movement and residence of the Aboriginal inhabitants was not touched until the Administrator acted in reliance on s 7(3) of the Reserves Act. Those were acts which require consideration later in relation to s 9 of the RDA.
428 If this view does not reflect a correct application of s 10 there are other obstacles in the way of the applicant.
The issue of size of the area of the contested limitation
429 In Gerhardy 159 CLR 70 the High Court considered that a right of freedom of movement could be infringed in respect of an area of private property where that private property was sufficiently large (in that case, over ten percent of the State). Conversely in the respondents’ submission, a right of freedom of movement and residence within the borders of a state is not infringed just because occupation upon and use of a small and discrete area of Crown land (amounting to 8 hectares) is restricted. As Gibbs CJ said in that case, the concept of freedom of movement and residence is vague and elastic and must be considered in the context of the realities of life. Furthermore, it must be considered in the context of freedom of movement and residence ‘within the border of the State’.
430 The respondents submit that the realities of life are that the Reserve was for many years private property and therefore an area in which Aboriginal people did not have freedom of movement and residence, except at the discretion of the landowner. It was then a Crown reserve for purposes not associated with Aboriginal people. It is said that the applicants, and persons associated with them, had been living in the area of the Reserve only since the mid-1970s. While the SVC was the management body, only certain Aboriginal people were permitted or chose to live on and enter the Reserve.
431 Given the dicta in Gerhardy 159 CLR 70, this submission requires careful consideration. However, that case concerned the freedom of movement. When the freedom of residence is principally involved it is difficult to see why size should be determinative. The place of residence is necessarily confined. It therefore do not rely on this submission of the respondents.
WHETHER ARBITRARY DEPRIVATION OF RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE
432 This issue falls to be resolved in accordance with the reasons given below in Part L in relation to whether any deprivation was arbitrary.
subPART 4: RIGHT TO EQUAL TREATMENT BEFORE TRIBUNALs ADMINISTERING JUSTICE
DID THE RESERVES ACT DEPRIVE THE APPLICANTS OF THE RIGHT TO EQUAL TREATMENT BEFORE TRIBUNALS ADMINISTERING JUSTICE [COMPARE ISSUES 14, 15 AND 19]
433 Section 11 of the Reserves Act, commonly know as a privative clause, denies the right to equal treatment before tribunals by nullifying the rights which ordinarily apply to citizens to apply to the courts for judicial review of decisions of the executive government: see Craig v South Australia (1995) 184 CLR 163; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 at [380] and [461]-[474] per French J; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
434 In its terms s 11 of the Reserves Act applies the denial to any person affected by the actions of the Administrator under s 7 and wishing to challenge them. The Administrator is defined by s 7(1) to mean a person engaged under a contract of services under s 7(2)(a) or nominated as an officer referred to in the Aboriginal Affairs Planning Authority Act s 15(1) under s 7(3)(b) of the Reserves Act, in each case to enable the AAPA to perform effectively its functions in relation to the Reserve.
435 It is contended by the applicant that s 11 of the Reserves Act had a special effect upon the rights of the applicants because of their race. It is said their right to enter and remain on the Reserve was a right which was peculiar to them because of their racial status as Aboriginal persons. The Reserve was declared to be for the use and benefit of Aboriginal inhabitants. The applicant argues that the right to challenge in the courts an exercise of the authority granted under s 7 of the Reserves Act to prevent Aboriginal inhabitants from accessing the Reserve and so affecting their ability to exercise those rights is one which Aboriginal people (and those associated with those Aboriginal persons, by reason of that association) are denied the enjoyment of by the operation of s 11 of the Reserves Act to an extent which does not apply to other persons in relation to their exercise of property rights: see Mabo 166 CLR 186. Other persons are said not to be denied the right to the full range of judicial review in relation to the exercise of the rights which they may have in relation to the use and enjoyment of land.
436 Therefore the applicant says the Reserves Act was inconsistent with s 10(1) of the RDA and Art 5(d)(i) of the Convention by reason of the matters set out earlier in these reasons on that issue.
437 The respondents say that the human right recognised by Art 5(a) of the Convention is a right to equal treatment before tribunals administering justice and not a right of access to tribunals. They also note that the application of s 7 of the Reserves Act could be towards and was used in respect of non-Aboriginal people as well, including Margaret Jeffery, Sharon Davies, and Gregory Stratton.
438 The respondents also contend that even if a right to access tribunals administering justice existed, s 11 of the Reserves Act did not wholly remove the right of access, as evidenced by R v Hickman; Ex parte Fox (1945) 70 CLR 598 and Plaintiff S157/2002 211 CLR 476. The Hickman principle is to the effect that if legislation purports to impose limits on authority and contains a privative clause, there is a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. This admits of an attempt to reconcile the apparently conflicting legislative provisions. Where the decisions in question do not upon their face exceed the authority and do amount to a bona fide attempt to exercise the powers and relate to the subject matter of the authority, they will not be invalid: Plaintiff S157/2002 211 CLR at 501. The position in relation to privative clauses in enactments by States in this respect was described as follows by Gaudron and Gummow JJ in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 633:
‘… the special character of s 75 of the Constitution, …, means that considerations which apply to privative clauses intended to protect decisions and orders of State officers acting pursuant to valid State laws are somewhat different from those which apply in the case of Commonwealth law. The operation of a State privative clause is purely a matter of its proper meaning ascertained in its legislative context. However, privative clauses, whether in State or Commonwealth legislation, are construed “by reference to presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be applied”. Thus, a clause which merely provides that a decision is to be final and conclusive is construed as not excluding certiorari for error of law on the face of the record. So, too, a clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdiction error, at least in the sense that it involved a refusal to exercise jurisdiction or that it exceeded the jurisdiction of the decision-maker. However and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle.’ (Footnotes excluded.)
439 The respondent repeats the argument that the Reserves Act was in the public interest and reasonably appropriate and adapted to a legitimate end and so non-discriminatory.
440 I do not agree with the submission of the respondents that Art 5(a) of the Convention is confined to appearance before tribunals and not access to them. The paragraph falls for interpretation in the light of the preamble to it, which cites the goal of equality before the law. That context suggests that ‘the right to equal treatment’ should be read inclusively and not narrowly and so be read to include equal right to access to tribunals as well as equal right to treatment before tribunals. This view receives support from what was said by N Lerner, Group Rights and Discrimination in International Law, International Studies in Human Rights, 2nd edn, Martin Nijhoff Publishers, 2003 at p 59 based on the width of the opening words of Art 5 of the Convention.
441 That is not to say that any human right to equal treatment before tribunals is a guarantee of access to a tribunal administering justice in respect of every government action. It could only be a guarantee of access where the law permits such access and does so on a non-discriminatory basis.
442 I also do not agree that the fact that s 11 does not wholly remove access to the Courts assists the respondents. The jurisdiction which remains under the Hickman principle is one which applies as a matter of law and irrespective of race and like considerations. The issue is whether what was removed creates an inconsistency with s 10 of the RDA.
443 Turning to the issue of the application of s 10(1) to the right in question, the considerations are as follows:
(i) the selection of comparators should be on the same basis as posited in relation to the assumed right of management and ownership; that is generally in relation to other reserves and lands. The relevant comparison may therefore be found not within the limited confines of the Reserve but in relation to other reserves and hence to a wider spectrum of non-Aboriginal persons than those on the Reserve. There is no evidence that those persons on other reserves are similarly constrained in respect of the reserves which they hold.
(ii) assessment must be made of whether the right is not enjoyed (which on the facts is the case) when the right is enjoyed by comparators. Section 11 sought to bring immunity from judicial supervision in respect of any decision or act done or purported to be done under s 7. The powers in s 7 were exercisable in relation to (a) persons entering the Reserve and (b) persons leaving the Reserve. The powers in s 7 were in fact exercised by the Administrator (1) to direct all persons other than listed service persons not to enter the Reserve, in circumstances where most of the Aboriginal inhabitants had departed the Reserve; (2) to direct in writing two Aboriginal persons to depart the Reserve and to direct orally three non-Aboriginal non-resident persons to do so.
The applicant contends that to the extent that the Reserves Act may affect persons who are not Aboriginal persons, that effect is by reason of the association of those persons with Aboriginal persons and so the effect is still said to be by reason of the race of the Aboriginal persons. Section 10 of the RDA requires only that regard be had to the race of persons concerned and not to other factors, such as those sought to be relied upon by the applicant. For the purposes of the application of that section, regard must be had to the race of each of those persons.
The non-Aboriginal non-residents were Margaret Jeffery, Gregory Stratton, Lynda Nutter, Paul Allardyce and Sharon Davies. There is no evidence that these had any interest in the Reserve or contractual engagement (although being a volunteer) with the SVC so that they do not appear to have had any obvious interest for bringing a claim against the Administrator of the type referred to in s 11 of the Reserve Act. Nevertheless it is open to posit that the manner in which the Administrator executed his actions might have allegedly impacted on some of them in some adverse way so that they sought relief of that type and been precluded by an application of s 11.
The direct effect of the provision (s 11) was purportedly to bring immunity from judicial supervision in respect of any of the remedies stated in the section where those remedies were sought by any person affected by an act of the Administrator. This direct effect was not as such discriminatory.
However, indirect discrimination will be established where there is a disproportionately detrimental impact on (relevantly) Aboriginal persons. I consider that is the case in relation to the application of s 11 of the Reserves Act to the persons on the Reserve. The non-Aboriginal persons involved with the Reserve were few in number. The impact of s 11 was on the Aboriginal inhabitants, who were the holders of the right of residence if it was found to exist. As a consequence considerably more persons of the Aboriginal race were affected by s 11 than of any other race, so that it was persons of the Aboriginal race who did not enjoy the right of equal access to tribunals than persons of any other race. There was a clear disproportionality of effect on the Aboriginal inhabitants, detrimental in leading to the loss of their right when the right is enjoyed by other races.
(iii) because of the indirect discrimination so resulting, it was ‘by reason of’ a provision of the Reserves Act, namely s 11, that the Aboriginal inhabitants did not enjoy their right to equal treatment before tribunals when that right was enjoyed by persons of another race in comparator positions, including reserves.
444 That is the prima facie position. It remains to consider the effect of the justificatory contentions on that position in Part L below
subpart 5: right to participate in public affairs
445 The claim appears to be that the provisions of the Reserves Act deprived the Aboriginal inhabitants of the right to participate in political affairs. This is a reference to s 4 of the Reserves Act revoking the 2002 Management Order and s 5 placing the management with the AAPA in substitution for the SVC. While the applicants have listed this as a human right relevant to their claim they have not pressed the right in any further submissions nor has it been pleaded. I do not consider that the claim in this respect has been made out.
PART I: INCONSISTENCY OF RESERVES ACT AND RDA s 9
446 Reference to s 9 requires that consideration be directed to whether there is (1) an act (2) involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin (3) which has the purpose or effect of (4) 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. This contrasts with s 10 of the RDA which is concerned with the effect of a law or a provision of a law.
SUBPART 1: RIGHTS OF OWNERSHIP AND MANAGEMENT
DEPRIVATION OF RIGHT TO MANAGE AND OTHERWISE EXERCISE OWNERSHIP RIGHTS IN RELATION TO THE RESERVE [ISSUES 11, 12, 14, 15 AND 19]
447 The applicant submits the Reserves Act involves a distinction, exclusion, restriction or preference based on race; or authorises a person to do an act which involved a distinction, exclusion, restriction or preference based on race in respect of the right of the applicants to enter and remain on the Reserve. It is contended this was a right peculiar to them because of their racial status as Aboriginal persons. The Reserve was declared to be for the use and benefit of Aboriginal inhabitants. The causal connection is established between race and not enjoying a right, if the effect of the Reserves Act upon a racial group is that the racial group does not enjoy a right and the Reserves Act does not have that effect upon other racial groups: see Mabo 166 CLR 186 and Ward 213 CLR at [105]. In that way it is said s 9 operates in the same way as s 10. The discriminatory result may arise under s 9 from either the ‘purpose or effect’ of the act. Regardless of the motive or intent of the act, if the effect is to nullify or impair the recognition, enjoyment or exercise on an equal footing of a human right, then s 9 is infringed. The ‘intention, motive or purpose…do not carry the matter far [if the act is] inherently or essentially discriminatory’: per Lockhart J in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191 at 204; Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 26.
448 I regard it as unlikely that the Reserves Act is an ‘act’ to which s 9 is applicable. This is because s 10 expressly addresses the effect of a law or a provision of a law. Construing s 9 in that context shows that s 9 is directed to actions of persons, in contrast to enactments.
In any event from the reasoning earlier set out in relation to this right and s 10, it is apparent that I do not consider the applicant can make out this aspect of her claims. That is because I have earlier concluded that the rights in relation to management and ownership of property which the applicants claim and which the SVC had (namely, the care, control and management of the Reserve) do not have the status of human rights or fundamental freedoms. Specifically they are not human rights in relation to the ownership of property, even understanding those terms in the Convention context.
449 In the event the Reserves Act was an ‘act’ within s 9 of the RDA and the applicants had rights of management and ownership, the apparently disproportionate impact on them would not have given rise to relevant indirect discrimination because it is only in the circumstances of s 9(1A) of the RDA that it can arise and that section is not relied upon by the applicants.
RIGHT NOT TO BE ARBITRARILY DEPRIVED OF THE RIGHT TO MANAGE AND OTHERWISE EXERCISE OWNERSHIP RIGHTS IN RELATION TO THE RESERVE [ISSUES 20-24]
450 The issue of arbitrary deprivation is considered in Part L below.
451 The applicant also contends that to the extent the LAA in ss 46 and 50 purported to permit the revocation of the vesting order which vested a legal estate in the SVC, it comprised an arbitrary deprivation of the property interests of the applicants as Aboriginal inhabitants and members of the SVC and was invalid pursuant to s 109 of the Commonwealth of Australia Constitution Act 1900 (Imp) (the Constitution) to the extent of its effect on the rights of the applicants because of its inconsistency with s 9 of the RDA. Again I consider it unlikely that s 9 is intended to apply in respect of enactments. In any event, this contention cannot be made out in relation to the deprivation or the existence of property rights. The effect of cl 16 of the transitional provisions of the LAA has been considered in relation to the effectiveness of the 1995 vesting. It applied without involving any distinction, exclusion, restriction or preference. The same reasoning is applicable to the sections relied on here by the applicant.
SUBPART 2: RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE
DEPRIVATION OF RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE within the borders of the state [ISSUES 26-31]
452 The starting point on this right is again that it is agreed that the Aboriginal inhabitants enjoyed the right of freedom of movement and residence within the borders of Australia.
The acts of the Administrator
453 This requires consideration of the exercise of the power by the Administrator under s 7 and whether his acts restricted freedom of movement and residence in its application to the Aboriginal inhabitants of the Reserve.
454 As the evidence has shown, the large number of Aboriginal inhabitants left the Reserve, not as the result of any act of the Administrator, but because of their perception that such an act might be undertaken. Those facts do not enliven the provisions of s 9 in relation to those persons. This is because the section is only applicable when an act is done (and is of the type which involves the prohibited distinction, exclusion, restriction or preference based relevantly on race).
455 The direction of the Administrator of 13 June 2003 directed that certain people (police, security, cleaners and the like) could enter and leave the Reserve for the purpose of assisting him in the performance of his obligations as Administrator. This exercise of the power in s 7 evidences (in the listed persons entitled to enter and leave) a non-discriminatory basis of selection. In its reference to members of ATSIC and to others, the direction applied in that respect to Aboriginal and non-Aboriginal persons in the listed categories.
456 The principal impact of the direction derived from its provision that persons not so listed (‘excluded persons’) were not permitted to enter the Reserve without the Administrator’s express authority. That applied in respect of any person of any race who was outside the Reserve. It was neutral in its terms and applied to the Aboriginal inhabitants as well as the non-Aboriginal supporters who had left the Reserve or to any other person than a listed person.
457 Likewise relevant to the applicant’s case on this issue are the written directions of the Administrator made in reliance on s 7(3)(b) of the Reserves Act on 13 June 2003 to Robert Bropho and Iva Hayward-Jackson and the oral exercises to non-Aboriginal non-inhabitants (M/s Jeffery; M/s Davies; and Mr Stratton) to the same effect.
Applying the elements of s 9 of the RDA
(i) The most far-reaching acts of the Administrator were the acts of exclusion. However, the exclusionary acts did not in their terms involve a distinction, whether based on race or otherwise. The acts applied to all persons in relation to their entering the Reserve.
(ii) There was no distinction based on race involved in the acts of the Administrator giving notice (written or oral) to the persons who remained on the Reserve on 13 June 2003. The notice was given to Aboriginal and non-Aboriginal persons alike, both resident and non-resident.
(iii) The effect of the acts was to nullify the enjoyment on an equal footing of the human right of freedom of movement and residence of all those to whom the acts of the Administrator applied. The objective was to do so in order to remove the effects of the SVC and the associated community upon the persons whose rights had been adversely affected.
(iv) The act of the Administrator in excluding persons from the Reserve impacted disproportionately upon the Aboriginal inhabitants. This is so because the Reserve had been their place of residence. However, for reasons given earlier, under s 9 of the RDA considerations of indirect discrimination are confined to application in the circumstances addressed in s 9(1A) of the RDA which is not relied on by the applicant. Therefore no conclusions can be drawn in this instance of discriminatory character of the acts from disproportionate impact on the Aboriginal inhabitants in these circumstances.
ARBITRARY DEPRIVATION OF RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE [ISSUES 12, 14, 15 AND 19]
458 Whether or not any deprivation of the applicants’ right of freedom of movement and residence (if such had occurred) was arbitrary will depend on whether it was reasonably undertaken. That is examined below in Part L.
SUBPART 3: RIGHT TO EQUAL TREATMENT BEFORE TRIBUNALS
459 Section 9 of the RDA is referrable to ‘any act’ which involves a distinction, exclusion, restriction or preference based on race. There is no relevant act in the evidence by which the right to equal treatment before tribunals was the object of such action. Consequently no inconsistency with s 9 can be made out. To establish a breach of this right under s 9 it is not enough that there are actions which might arise under s 7 of the Reserves Act in relation to which s 11 of the Reserves Act precludes equal treatment before tribunals. The inconsistency to which s 9 directs attention is between one involving a racial distinction which itself nullifies or impairs the right to equal treatment before tribunals. It is s 11 which arguably does that rather than any act, so that the relevant inconsistency (if any) is arguable only in relation to s 10 of the RDA where the effect of a law or a provision of a law is material.
SUBPART 4: RIGHT TO PARTICIPATE IN PUBLIC AFFAIRS
460 This claim is not made out in the applicant’s case.
PART J: CONTRAVENTION OF THE RDA BY ACTS OF THE ADMINISTRATOR
SECTION 9 OF THE RDA AND ACTS OF THE ADMINISTRATOR [ISSUES 30-32]
461 These have been considered above in relation to s 9. It remains to consider those acts in relation to the justificatory considerations referred to below.
462 It is agreed that, if the Administrator breached s 9 of the RDA, the first and second respondents would be vicariously liable for the acts of the Administrator.
SECTION 12(1)(D) OF THE RDA: REFUSAL TO PERMIT OCCUPATION [ISSUES 32-34]
463 It is agreed that, if the Administrator breached s 12(1)(d) of the RDA, the first and second respondents are vicariously liable for the acts of the Administrator.
464 The applicant argues that the Administrator refused to permit the applicants to occupy the Reserve by directing some of them to leave the Reserve and directing all persons, including all of them, not to enter the Reserve and did so ‘by reason of their race’.
465 She also contends that the right to occupy the Reserve was only accorded to Aboriginal inhabitants by the terms of the reservation. Her argument is that the refusal to permit the applicants to occupy the Reserve effected by directions under the Reserves Act affected only the rights of Aboriginal persons and so operated by reason of their race: Mabo 166 CLR186 and Ward 213 CLR at [105].
466 The effect of the Administrators’ direction of 13 June 2003 in excluding all persons from the Reserve amounted to a refusal to permit a person to occupy land or residential accommodation because it excluded the Aboriginal inhabitants. Was it ‘by reason of the race’ of the Aboriginal inhabitants?
467 The weight of the evidence is heavily against a finding that the Administrator did so ‘by reason of’ the race of the applicants. His patent reason was to bring about the exclusion of the entire community represented by the SVC from the circumstances considered by the AAPA and Parliament to have been and to be inducive to the loss of human rights of certain women and children resident on the Reserve.
468 The question remains whether the applicants can make out that the acts of the Administrator were ‘by reason of’ their race because they impacted unreasonably and disproportionately upon them as the Aboriginal inhabitants of the Reserve. Aside from the words ‘by reason of’, there are no words in s 12(1)(d) inviting examination of a comparison in that respect, such as appear in s 10 of the RDA. The focus of s 12(1)(d) is upon the relevant act of ‘refusal’ as such. In the absence of any authority, such as the obiter remarks of Tamberlin J in Nguyen 74 FCR 311 in relation to the application of indirect discrimination under s 10 of the RDA, I do not consider it has application to s 12(1)(d).
469 If the position is otherwise, I do not consider the unreasonableness and disproportionality can be made out for the reasons given in Part L below.
DEPRIVATION OF POSSESSION [ISSUES 35-38]
470 Subject to one possible exception, the short point to be made here is that because the applicants did not have a right of ownership (amounting to exclusive possession) of the Reserve, they cannot succeed in an action for trespass.
471 The applicants do not have a proprietary interest in the Reserve recognised at law (as I have previously found in these reasons). They also have no proprietary right that the law would protect against a trespass. Trespass is a tortious action that came in to being to protect the legal relationships a person has with land. Without a recognisable and definable legal relationship (in this case between the applicant and the Reserve) there can be no trespass by another person for which the applicant can seek relief from the Court. It must be remembered that where a proprietary interest is granted by statute the right or interest created is consequentially limited by that grant. At no stage can it be said that the applicant was granted an exclusive right to possession of the land.
472 The possible exception arises from reasoning Manchester Airport Plc v Dutton [2000] 1 QB 133. There Laws LJ said at 150:
…the true principle is that a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys. This is the same principle as allows a licensee who is in de facto possession to evict a trespasser.
At 151 Kennedy LJ said:
The plaintiff does have a right to possession of the land granted to it by the licence. It is entitled ‘to enter and occupy’ (my emphasis) the land in question. The fact that it has only been granted the right to enter and occupy for a limited purpose …and that…the grant does not create an estate in land giving the plaintiff a right to exclusive possession does not seem to me to be critical.
Chadwick LJ dissented.
473 In Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 Barrett J gave extensive consideration to the reasoning of the majority in Manchester Airport[2000] 1 QB 133. At 561 he said:
‘The House of Lords has not been called upon to consider the majority decision in Manchester Airport Plc v Dutton, except in the limited context of an application for leave to appeal. Later cases in which the Court of Appeal’s decision has been cited have been disposed of without any need to analyse the reasoning of the majority: see Countryside Residential (North Thames) Ltd v Tugwell (2001) 81 P & CR 2; Alamo Housing Co-operative Ltd v Meredith [2003] EWCA 495. That reasoning has, however, been criticised by several commentators: see P Birts, “Trespass and possession: no loosing of the chains” (2000) 144 Solicitors Journal 316; M Wonnacott, “Flawed judgment” (1999) Estates Gazette 165 (Issue 9911, 20 March 1999); E Paton and G Seabourne, “Unchained Remedy: Recovery of Land by Licensees” (1999) Conveyancer and Property Lawyer 535; W Swadling, “Opening the numerus clausus” (2000) 116 Law Quarterly Review 354.’
Barrett J reviewed each of the critical articles and continued:
‘I must prefer the approach taken by Chadwick LJ in dissent. To do otherwise would be to fail to accept principles about the nature of trespass to land which are deeply rooted in Australian law and have been recognised by the High Court. The issue that the majority in Manchester Airport Plc v Dutton had with the traditional approach to trespass was some perceived illogical distinction between a licensee in possession and a licensee out of possession. But focus on the licensee’s bare rights overlooks the nature of the wrong of trespass and its foundation in possession.
Trespass to land is sometimes said to be an unlawful interference with one’s property, but more particularly it is an interference with possession. A right of possession of the kind enjoyed by a lessee will support an action in trespass. Possession in fact may also be sufficient, at least as against a defendant having no right of possession. Such a defendant, unless entering with the authority of the owner or lessee, may not plead that person’s right to possession as a defence and, for that reason, may be unable to resist an action by a plaintiff whose possession is possession in fact only. But possession in fact is by no means the equivalent of occupation, even sole occupation. It may be found to exist where, as Wonnacott put it (see at 562 [102] supra), a person “is, as a matter of observable fact, enjoying the rights and incidents of an estate or interest in land”. Mere physical presence or physical use can never satisfy that test.’
474 I do not see any reason not to follow the reasoning of Barrett J. In my view the reliance which the applicant places on the majority reasoning in Manchester Airport [2000] 1 QB 133 finds no support in Australian law and should not be followed here.
475 In the event that the position was to the contrary it would be necessary to consider the effect of s 12 of the Reserves Act. That would on its face preclude review by a court of the actions of the Administrator who acted in good faith in the performance of the functions bestowed upon him by the Reserves Act, subject to the Hickman principle. It would then be necessary to consider a further contention of the applicant that s 12 of the Reserves Act was itself inconsistent with the RDA in so far as it denied the applicants the right to equality before the law.
PART L: JUSTIFICATORY CONTENTIONS
was ANY DEPRIVATION not ARBITRARY because it was reasonable, proportional [ISSUE 23] and legitimate [issues 17 and 18]?
476 A deprivation will occur where a person is dispossessed of a possession or denied the future enjoyment of a right: The New Shorter Oxford English Dictionary (Clarendon Press, Oxford, 1993) at 639. Whether a deprivation is arbitrary will depend on whether the possession or right admits of its deprivation and in what circumstances.
Applicant’s contentions
477 Section 8 of the Reserves Act provided that the rules of natural justice did not apply to a direction to a person not to enter or to leave the Reserve. Section 9 provided that the exercise of discretion was absolute and not required to be exercised in any particular way. The applicant contends those provisions provide a substantial basis for concluding that the deprivation of the rights to manage and otherwise exercise property rights on the Reserve (and the rights to freedom of movement and to reside within Australia) occasioned by the operation of the Reserves Act was arbitrary. She argues that a decision which prevents a person from exercising property rights is arbitrary in the sense used in Art 17 of the Universal Declaration of Human Rights because when, as in this case, it is without notice, without any hearing or other fair process or any right to compensation for the loss of the right. Likewise, a decision is arbitrary if, as a result of the juxtaposition of the operation of ss 7, 8 and 9 of the Reserves Act, it is not based on some pre-existing criteria which are general in their application and provide an opportunity to comply with those criteria: MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 at 639; Dilatte v MacTiernan [2002] WASCA 100.
478 The respondents plead that the deprivation of rights to manage and otherwise own property was not arbitrary because it was reasonable. That leads to consideration of the question whether the enactment of the Reserves Act was a reasonable response to the first respondent’s concerns about the management of the Reserve and about unlawful conduct by persons on the Reserve and, as the applicant puts it, interference with the human rights of Aboriginal inhabitants of the Reserve.
Whether defence of reasonable justification
479 The applicant submits that the RDAprovides a code concerning the circumstances in which unlawful racial discrimination will be found to exist. Section 8, in particular provides for the exceptions to the application of the part of the Act in which ss 9, 10 and 12 appear. It is argued by the applicant it does not permit of what is described as a general ill-defined defence of ‘reasonable justification’.
480 If, which the applicant denies, reasonableness is relevant to whether or not a deprivation of property is arbitrary, the test of whether the deprivation was unreasonable is an objective one, requiring the Court to weigh the nature and extent of the discriminatory effect against the reasons advanced in favour of the measure taken: Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, per Bowen CJ and Gummow J at 263. In Commonwealth Bank v HREOC 80 FCR at 112 Sackville J said:
‘The presence of a logical and understandable basis is a factor – perhaps a very important factor – in determining the reasonable basis or otherwise of a particular condition or requirement. But it is necessary to take account of both the nature and the extent of the discriminatory effect of the condition or requirement… and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision.’
Evidence of lack of reasonableness of respondents in forming opinion on concerns
481 The applicant contends that the Court’s task is to decide objectively whether the actual facts of the situation warranted the discriminatory measure. She contends the respondents have not pleaded any actual facts as being the reason for the deprivation of property, only pleading ‘reasonable concerns’. The applicant’s submission is that there is no factual or evidentiary basis upon which the Court could conclude that the deprivation of property was objectively reasonable and not arbitrary.
482 The applicant argues the concerns of the respondents were not reasonable because they were not based upon a reasonable or sufficient inquiry into the circumstances upon which they were based. Reliance is placed in support on affidavits and the evidence given by the deponents in answer to questions in cross-examination which it is said disclose the process by which information was collated in the form of incomplete and second and third hand reports and conjecture and linking of events to the SVC which had no relevant connection to the manner of management of the SVC or, in some cases, even to the Reserve, in order to arrive at the concerns expressed. The affidavits are those of Caroline Brazier, Roland Bayman and David Pedler.
483 The applicant states that the evidence of Caroline Brazier and Roland Bayman confirmed that the Government had no evidence to support assertions that (i) residents were not free to access government services, (ii) intimidatory tactics prevented the reporting of incidents, or (iii) communication between children and women and government officers was being hampered by the community management. On the contrary, it is argued they conceded in evidence that residents had access to government services which they chose to access, that government agencies had access to the Reserve and that there were only issues of contention concerning access by officers of one office out of several of the DCD (i.e., Midland) and one medical service (the AMS) as a result of historical events which had caused the SVC members to lose faith in the nature of the service provided to the Community by that particular office and service.
484 This is said to be confirmed by the Draft Report on Service Provision to the SVC of the Working Group of April 2003 (exhibit P80) which reported in detail on the provision of services by relevant Departments. It stated, in summary:
‘The service providers, with the support of the interagency group, have kept a focus on the normalisation of relationships and the wellbeing of the residents, and a range of initiatives and services have been delivered by service providers in the Midland area, or accessed by residents of SVNC. These are detailed in attachment 1.
Departmental service providers reported a divergence of views in terms of ease of access to the residents, and in how to improve relationships with management to provide the residents freedom of access to local services. Most departments have developed, or are developing agreed protocols with the management of SVNC for individual services.’
485 However, this quotation must be contrasted with the following statements which are contained further on in the same report:
‘Departments report that positive development at SVNC remains limited whilst issues such as intimidation of residents, lack of confidentiality of health issues, the lack of a supportive environment for victims of domestic violence or child abuse to seek assistance, or lack of freedom for residents to leave camp and contact service providers still remain.
…
For any service provider a degree of trust has to be built and although this is happening for individual contacts with residents of the camp, overall there remains real concerns for the ongoing safety of the women and children. There is some doubt that continuing the current levels of time consuming negotiations with camp management for access to residents or cooperation in collaborative approaches would result in the effective levels of access or cooperation required. Service providers are not confident that the residents are safe and are free to seek and receive assistance without bias or intimidation…’
486 Additionally it is submitted that other affidavits of persons directly involved in the events in question reveal the degree of inaccuracy and error in the assumptions of fact made by senior public servants which might have been discovered if a reasonable or sufficient inquiry had been made before providing advice to the Government. Here reliance is placed on the affidavits of Margaret Jeffery, Bella Bropho, Denise Sambo, Sharon Davies, Dorothy Bropho, Naomi Bropho, Charlotte Bropho, Paul Allardyce and Tina Jackson.
487 The applicant also contends that there is no evidence that access and residence on the Reserve was ‘restricted’ to Robert Bropho and his family. It is said the evidence is that the Aboriginal inhabitants of the Reserve, at least in recent times, were largely persons who were part of or affiliated with the Bropho family. That does not result in any conclusion that the Reserve was not managed for the benefit of the Aboriginal inhabitants. Aboriginal people are at liberty to choose to live on any of the many reserves set aside for the use and benefit of Aboriginal people throughout the State. It is hardly surprising that Aboriginal people, in exercising that liberty, may tend to inhabit reserves where others with whom they are affiliated reside.
488 The applicant’s submissions continue by stating there is no evidence that the SVC did not take all reasonable steps within its power and capacity to manage the Reserve for the benefit of Aboriginal people. The fact that Aboriginal inhabitants of the Reserve suffered significant adverse social circumstances resulting in substance abuse, deaths and criminal activity on the Reserve was not as a result of any failure of the SVC to take all reasonable steps within its power to manage the Reserve for the benefit of Aboriginal people.
489 Furthermore it is argued there was no evidence from which to draw the conclusion that anything which the SVC did or failed to do caused or contributed to any of the deaths on the Reserve. One of the deaths (Arthur Edward Bropho) relied on by the respondents did not occur on the Reserve. It is argued that the death of Susan Taylor on the Reserve was fortuitous and could equally have occurred at Herne Hill, where she lived. Morgan Spratt’s death was as a result of toluene abuse despite serious attempts by Paul Allardyce, acting on behalf of the SVC to secure a psychiatric hospital placement for him: see the affidavits of Margaret Jeffery and Paul Allardyce and the evidence of Caroline Brazier.
490 Additionally the applicant argues there was no evidence that anything done or not done by the SVC caused or contributed to the commission of criminal offences on the Reserve or condoned criminal conduct among its members. It is said the fact that Robert Bropho and Bella Bropho made it clear in their evidence that they do not accept Robert Bropho’s convictions of offences of indecent dealing and that special leave to appeal those convictions is being sought does not detract from that proposition.
491 It is submitted that where individual members of the SVC have committed offences, that may amount to sufficient cause to disqualify such individuals from a management role in the SVC but it is not sufficient cause to justify revocation of the 2002 Management Order in favour of the SVC.
492 Further the applicant says that the DCD and other instrumentalities of Government did not demonstrate that they could have taken any steps which the SVC failed to take to reduce the risk of violence being visited on the inhabitants of the Reserve. Indeed, the evidence of Roland Bayman and Caroline Brazier for the DCD was that there was no assistance which the DCD could offer in relation to the management of toluene abuse, which is acknowledged as one of the highly prevalent and significant root causes of violence and death which occurred within the Reserve.
493 Therefore the applicant says the weight of evidence leads to the conclusion that the management of the SVC did not deliberately or unreasonably frustrate any attempts by government officers to improve the provision of government services to the Aboriginal inhabitants of the Reserve. The applicant accepts it is certainly the case that the SVC did not readily accept government services in whatever form the government chose to deliver them. It accepted services from a range of government agencies, but had a history of having rejected certain services or having put a stop to certain activities by government agents on the Reserve. Its judgment in doing so may have been questionable in certain instances. However, the applicant contends it did not amount to a general frustration of attempts by government officers to improve services to Aboriginal inhabitants of the Reserve. Rather the applicant argues that the SVC (perhaps unlike other Aboriginal communities) sought to engage with the Government in determining the nature and form of services provided. It might be said that an engagement between the service provider and the recipient in fashioning the nature of the service provided is generally a desirable process which would usually result in the service being tailored to better suit the needs of the recipient. The SVC engaged with government services in a manner which kept in mind the need to balance the provision of services with the maintenance of the autonomy and privacy of individuals and the group. The Gordon Inquiry reported in relation to the issue of access to the SVC and other Aboriginal communities:
‘The guiding principle, in the interests of sensible relations between government service providers and Aboriginal communities, lies in negotiation, understanding and mutual respect and trust.
Indeed, the submission of the SVNC to the State Coroner appeared to recognise these principles in the following way:
‘Government Departments and Community Service Organisations ought to recognise that Aboriginal communities are entitled to have their rights to personal privacy recognized… In circumstances where the unique nature of a community suggests that service providers and guardians of law, order and welfare, require special arrangements to gain access to a community in order to perform their functions and members of the community require their services, then such agencies should negotiate a protocol for entry which satisfactorily allows them to perform their necessary and desired function, while respecting the rights of members of the community’ (Hope: 34-35)
Alternative solutions
494 The applicant submits that a proportionate response may have been to identify individuals who were threatening the security of the person of Aboriginal inhabitants of the Reserve and to apply the coercive powers of the existing criminal law or existing legislation which enables protective restraining orders to be made in respect of persons and places, or enact special legislation which might provide protective measures which were adapted to protection of the security of the person of a similar kind to those types of provision. For example, there are powers outside of the operation of the Reserves Act for law enforcement officers and the courts to remove persons and prevent them from returning to places where they pose a threat to the safety of women and children (Restraining Orders Act 1997 (WA), s 13). Those powers can be exercised where there is a demonstrated risk of the kind said to be in issue here.
495 It is argued that another form of proportionate response might have been that which was recommended by the Gordon Inquiry as follows:
‘The Inquiry recommends that urgent steps be taken to develop Memorandum [sic] of Understanding between the Swan Valley Nyungah Community and those government agencies which may reasonably seek access to that community…’
Absence of comparators
496 Instead, the Reserves Act has indiscriminately affected a class of persons, which includes the potential victims and perpetrators of breaches of the right of security of the person, each in the same way, by depriving them of their homes against their will. The application of such a measure to any other community group or section of the public would be regarded as a fundamental breach of human rights. It is contended that there is no sufficient reason to view the Aboriginal inhabitants of the Reserve any differently.
Issue concerning possibility of injunctions
497 Another justification for the enactment of the Reserves Act contended for by the respondents is that the revocation of the 2002 Management Order otherwise than by the Reserves Act could have resulted in an interlocutory injunction being granted, leaving at risk the safety of women and children on the Reserve. The applicant says this contention completely disregards the basis upon which an interlocutory injunction might be granted. It fails to take into account the fact that an interlocutory injunction would not be granted unless the balance of convenience favoured it. It accords no credit to the capacity of the judicial process to balance the risk to which women and children might be exposed with any potential loss of property rights in determining whether or not an interlocutory injunction ought to be granted.
Reasonableness and proportionality of the solution
498 Further, the applicant contends that the Reserves Act changed the vesting of the Reserve from a vesting in a corporation of which the Aboriginal inhabitants were members to a vesting in a State instrumentality. It created powers in the agent of the State instrumentality to direct persons including the Aboriginal inhabitants to leave or not enter the Reserve and denied natural justice and judicial review to those persons in relation to the exercise of those powers. The powers in the Reserves Act were then used to make a general direction which had the effect of excluding all Aboriginal inhabitants from the Reserve. It is argued that the effect of that general direction on Aboriginal inhabitants was different from its effect upon others because only the Aboriginal inhabitants used and enjoyed the Reserve as of right and the direction affected the exercise of that right.
499 The submission continues to the effect that the enactment of the Reserves Act grossly exceeded what might have been a response which was reasonably appropriate and adapted or proportional to what can be recognised as a legitimate end, namely, as suggested, protecting Aboriginal persons requiring protection in order to ensure such individual’s equal enjoyment or exercise of the right to security of person and protection by the State against violence or bodily harm. The Reserves Act did not in any direct sense address that end or address the cause of any infringement of such rights. It is said by the applicant to have been a grossly
ill-adapted, inappropriate and disproportionate measure to protect rights of that kind. She contends its immediate effect was to indiscriminately dislocate a whole community of Aboriginal persons from the security of their homes and the right to freely pursue their economic, social and cultural development: International Covenant on Civil and Political Rights, Art 1.
500 The Reserves Act is said by the State to be justified because it removed any uncertainty as to the power of the management body to remove persons from the Reserve who posed a risk to the safety of women and children on the Reserve. The applicant argues that the difficulty with this justification for the Reserves Act is that the Reserve remains reserved for the use and benefit of Aboriginal people. The applicant contends that the Reserves Act goes beyond the usual provisions of the law and purports to empower an arbitrary exercise of the power of removal, without any reasonable basis being required for its exercise (Reserves Act ss 9 and 10), without recourse to judicial review of such an exercise of power being available (Reserves Act s 11) and without any obligation to accord procedural fairness (s 8). The consequence, it is contended, is that the Reserves Act has an effect upon the Aboriginal inhabitants of the Reserve in exercising their rights as Aboriginal people to use and enjoy the Reserve, which subjects them to a law which operates in a way which no other law operates to deny them rights which apply to other citizens in relation to their ability to exercise those rights over property. In other words, if any other person is threatening a woman or child with violence in a place which the first person has a right to occupy, then that person cannot be removed from the place and prevented from returning without there being a reasonable basis for doing so, a process which is either the subject of a judicial decision or is open to judicial review and the right to procedural fairness in relation to the exercise of the power.
501 The applicant therefore submits that, in all the circumstances, the enactment of the Reserves Act was not a reasonable response to the identified problem. They claim that while the goal of protection of women and children was undoubtedly a reasonable goal to adopt, the judgment as to the means to be adopted for achieving that goal can be seen, for the reasons expressed above, to be ‘manifestly without reasonable foundation’: James 8 EHRR at 142. There must be a ‘reasonable relationship of proportionality between the means employed and the aim pursued’: Mellacher 12 EHRR 391; Coleman v Powers (2004) 220 CLR 1 per McHugh J at [100].
Respondents’ contentions
502 The respondents submit that the protection of children and other vulnerable members of the community from violence, sexual abuse and neglect is manifestly a legitimate end. Given the concerns, for which the evidence shows there was a foundation, that the SVC was itself an obstacle to the provision of the requisite protection, and given the viability of the alternatives proposed by the applicant, the respondents submit it cannot be concluded that the Reserves Act was disproportionate or unreasonable.
Appropriateness of defence of reasonable justification
503 The respondents contend that any deprivation of the right to manage and otherwise exercise ownership rights cannot be arbitrary if it is a reasonable response to reasonable concerns.
504 The respondents plead in their defence and submit that the identification of the true or actual basis for the operation of a law may be ascertained by the application of the test of reasonable proportionality. That is, if the reason for the treatment of persons of a particular race differently from other persons of other races (if that were found to be the case) is reasonably appropriate and adapted (or proportional) to a legitimate end (i.e. one which is not racially discriminatory) then the difference in treatment cannot be said to be by reason of race and does not itself constitute discrimination.
505 In Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 472 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ analysed the question of indirect or incidental discrimination for the purposes of s 92 of the Constitution as follows:
‘In determining what is relevantly discriminatory in the context of s 92, we must take account of the fundamental consideration that, subject to the Constitution, the legislature of a State has power to enact legislation for the well-being of the people of that State. In that context, the freedom from discriminatory burdens of a protectionist kind postulated by s 92 does not deny to the legislature of a State power to enact legislation for the well-being of the people of that State unless the legislation is relevantly discriminatory. Accordingly, interstate trade, as well as intrastate trade, must submit to such regulation as may be necessary or appropriate and adapted either to the protection of the community from a real danger or threat to its welfare or to the enhancement of its welfare.’
506 The respondents contend that the competing considerations identified in Castlemaine 169 CLR 436 are applicable in formulating the correct approach to indirect discrimination for the purposes of s 10 of the RDA. Similarly, they say that for the purposes of s 117 of the Constitution, a law that discriminates between residents of a State would not be unconstitutional provided that it served a legitimate purpose and was ‘appropriate and adapted’ to that purpose: Leeth v Commonwealth (1992) 174 CLR 455 at 489 (per Deane and Toohey JJ).
507 Where, as here, the underlying legal inquiry is to identify the actual purpose of a particular law or measure, the ‘appropriate and adapted test’ is employed to assess the ‘faithful pursuit of the purpose’: Cunliffe v Commonwealth (1994) 182 CLR 272 at 296 (per Mason CJ).
508 Where it is alleged that a law or measure interfered with a human right said to be protected by the Constitution itself (such as freedom of movement or association), the courts have applied a test of whether the law or measure is ‘appropriate and adapted to achieving’ another legitimate purpose: Kruger v Commonwealth (1997) 146 ALR 126 at 205 and
211-212 per Gaudron J.
509 In dealing with questions of discrimination generally, the respondents say it is therefore necessary to assess the ‘relevance, appropriateness or permissibility’ of the basis on which the law operates; but ‘questions of degree may be involved’ and the particular context in which it arises may also be relevant: Bayside 216 CLR at [40] (per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
510 The requirements of this test therefore afford significant discretion to the legislature. There must be a ‘reasonable relationship’ between the measure and the purpose, but a measure will not be invalid simply because it could be characterised as ‘unfair’: Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 575.
511 See also: Gerhardy 159 CLR at 127 per Brennan J; Sportodds Systems Pty Ltd v New South Wales (2003) 202 ALR 98 at [29]-[36] in relation to ‘discrimination’ as used in s 92 of the Constitution; Lithgow 8 EHRR at [116] and [176]-[177]; Simpson v United Kingdom DR 274 at [7]; and R Dubler, ‘Direct discrimination and a defence of reasonable justification’ (2003) 77 ALJ 514 in particular at 526 – 529.
Reasonableness and proportionality in relation to property rights
512 The respondents also submit that if there was property in the Reserve, ss 9 and 10 of the RDA have no operation because the Reserves Act did not cause a deprivation of that property (i.e. it did not affect the human rights to own and inherit property, if there were such). They argue that if anyone had property in the Reserve by reason of it being a reserve for the ‘Use and Benefit of Aboriginal Inhabitants’, that property is not owned by the applicants but by all the Aboriginal inhabitants of the State. If the relationship had been one of trust, that beneficial ownership was not affected by a change in the management body (i.e. the trustee).
513 Likewise, the respondents say that even if the applicants were the only persons who came within the class of Aboriginal inhabitants, the change in management body still did not affect their beneficial ownership.
514 Further the respondents contend that if the applicants claim property by reason of their membership of the management body for the Reserve (the SVC), the nature of that property was such that it was inherently susceptible to removal in the public interest so that its removal in the public interest does not constitute a deprivation of property. Thus in Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 the Full Court held that an amendment to the Northern Prawn Fishery Plan (NPF Plan) which reduced the amount fishing licence holders could catch, was not an acquisition of property. At 165 Black CJ and Gummow J said:
‘… [the units] confer only a defeasible interest, subject to valid amendments to the NPF Plan under which they are issued. The making of such amendments is not a dealing with the property; it is the exercise of powers inherent at the time of its creation and integral to the property itself.’
515 See similarly Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 581-585; Peverill 179 CLR at 237 and 263; Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 per Brennan CJ at [15]-[17], Gaudron J at [78], McHugh J at [145]-[146] and Gummow J at [195]-[198].
516 The respondents contend that in all the circumstances the Reserves Act was a reasonably appropriate and adapted response to the respondent’s reasonable concerns in that:
(a) the 2002 Management Order did not result in the applicants managing the Reserve for the benefit of Aboriginal people as anticipated by the first respondent. The applicants continued to fail to address the concerns of the first respondent regarding the management of the Reserve;
(b) revocation of the 2002 Management Order otherwise than by the Reserves Act could have resulted in a person challenging the validity of the revocation under the LAA and seeking an interlocutory injunction preventing a change in the management of the Reserve, thus leaving at risk the safety of women and children on the Reserve;
(c) the Reserves Act removed any uncertainty concerning the power of the management body to remove persons from the Reserve who posed a risk to the safety of women and children on the Reserve.
Evidence of reasonableness
517 The respondents’ submissions direct attention to other evidence of how it was that the Reserves Act came to be enacted.
518 Caroline Brazier stated that her advice to Government during March to June 2003 was that action needed to be taken to change the management of the Reserve, in order to better protect the safety of women and children associated with the Reserve. In giving that advice, she was aware that child abuse, violence and intimidation were not restricted to the SVC. However Ms Brazier believed that what made complaints about the SVC different from other Aboriginal or non-Aboriginal communities was the hindering of departmental officers exercising their statutory responsibilities. The SVC was not readily accessible to officers from the DCD and in Ms Brazier’s belief this did not change after the Government registered the 2002 Management Order over the Reserve.
519 Ms Brazier gave evidence that her advice to the Government to take action to change the management of the Reserve, and her support within the government for the Reserves Bill, was motivated solely by her concerns for the welfare of women and children associated with the Reserve. It had nothing to do with the Aboriginality of members of the SVC. Ms Brazier stated that her actions and advice would have been exactly the same if the persons concerned were non-Aboriginal.
520 Ms Brazier’s concerns and those of the Directors General of DOH and DIA were recorded at the time in a draft media release. It was put to Ms Brazier in cross-examination that the media release was drafted with a political motive, but Ms Brazier denied this and said that ‘its not often I think that Directors General actually join in one voice about an issue and this was an issue we believed of sufficient import to do that in relation to, that was our motive’. Her compelling evidence and demeanour in re-examination spoke eloquently of her sincerity in this regard.
521 In his oral evidence Grahame Searle stated that the Reserves Act was enacted because the Premier and the Government were concerned that they were unable to guarantee the safety of the people residing on the Reserve and the actions available to them under the LAA to revoke the Management Order held by the SVC would result in unnecessary delay. In Mr Searle’s view the decision to enact the Reserves Act ‘was made in the public interest and was the right decision … [t]he Parliament of the day made a decision that that was an appropriate thing to do’.
522 Lynsey Warbey gave evidence that the focus in Government was always, and only, on protecting the women and children associated with the Reserve from intimidation, physical violence and sexual and emotional abuse and the need for the Government to take firm action consistent with its commitment that it would act against family violence and child abuse, including in Aboriginal communities. In Ms Warbey’s view the outcome of the Reserves Act met her expectations and achieved what she understood to be its purpose, namely to protect the women and children associated with the Reserve from physical abuse and to enable government service providers to work with them.
523 In his evidence David Pedler stated that throughout his involvement in the events leading up to 13 June 2003, and subsequently, he had never seen or heard anything from anyone in Government that suggested the Reserves Act was passed for any reason other than because of concerns for the safety of the women and children associated with the SVC.
524 In Mr Pedler’s view whilst other urban Aboriginal communities have similar problems to the SVC, compared to the SVC the residents of other Aboriginal communities generally have open access to government services and do not experience the same degree of domination and intimidation by management as appeared to be the case with the SVC. Consequently it was necessary for the Government to treat the SVC as a special case and no decision has been made by the Government that any other urban Aboriginal community should be closed.
525 The Reserves Bill was also supported by ATSIC who issued a press release supporting the Government’s intention to ‘close’ the SVC, stating that ATSIC did not wish to see claims of racism cloud a very serious issue. The press release also stated that the Reserves Bill was ‘about basic human rights and the safety of young Indigenous Australians’. ATSIC believed that the leaders of the SVC had not sought to engage with the Government responsibly to address the issues and had demonstrated that they lacked the necessary leadership to provide a safe living environment for community members.
526 The respondents submit that in all the circumstances the Reserves Act was a reasonable response to those reasonable concerns. They say firstly that the 2002 Management Order had not resulted in the applicants managing the Reserve for the benefit of Aboriginal people. That is, there was evidence that the applicants continued to fail to address the concerns of the first respondent regarding that management. Secondly, revocation of the 2002 Management Order otherwise than by the Reserves Act could have resulted in a person challenging the validity of the revocation under the LAA and obtaining an interlocutory injunction preventing a change in the management of the Reserve, thereby leaving at risk the safety of the women and children on the Reserve. Thirdly, the Reserves Act removed any uncertainty concerning the power of the management body to remove persons from the Reserve who posed a risk to the safety of the women and children on the Reserve.
527 The respondents also submit that the fact that they could have reasonably responded in other ways does not mean that the approach adopted was not reasonable.
528 The reasonableness of the first respondent’s response is also said to be demonstrated by the evidence in relation to the provision of alternative housing. It was generally, and in the respondents’ submission, reasonably, agreed within Government that leaving the families to live on the Reserve following the enactment of the Reserves Act was not a viable option because of the risk that the same social problems (including those arising from ‘bungeemen’ coming onto the Reserve) would continue.
529 However it was also agreed within Government that families would not be moved from the Reserve straight away but that there would be a period of transition after the enactment of the Reserves Act during which time the families’ needs and aspirations would be ascertained and they would be relocated to other suitable accommodation.
530 Immediately following the discovery on 4 June 2003 that the women and children had left the Reserve, officers within Government established protocols with the service providing government agencies so that they could keep track of any assistance provided to former residents of the Reserve and so that they could be given priority assistance.
531 In the respondents’ submission the relevant government agencies went to great lengths to provide the residents of the Reserve with alternative accommodation in a timely and efficient manner. Between July and September 2003 the first respondent provided emergency accommodation and/or public housing to a number of Aboriginal inhabitants of the Reserve.
The availability of alternative measures
532 The respondent submits that the State, in addressing such a serious and urgent problem, fundamental to its duty to the community, is afforded particular discretion. It is said that the availability of other measures to address the problem is only material to the question of whether a measure is appropriate and adapted where those alternatives are shown to be as efficacious as the impugned measure (Castlemaine 169 CLR at 476-477 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ). In the present case, although the applicants have proposed alternative measures that the State could have adopted, those measures were not efficacious for reasons which now follow.
533 The respondents submit that utilisation of the criminal law would have been an entirely inappropriate and inadequate response in light of the concerns held by the first respondent.
534 Firstly, the criminal law can only address problems after they have occurred and it may take many years to secure a conviction. In such a circumstance the safety and security of those residing on the Reserve could not be guaranteed. The respondents, in acting responsibly in their duty to protect children and other vulnerable people on the Reserve, could not ignore the substantial body of information addressed above and leave the matter to the workings of the criminal law.
535 Secondly, the applicants, in their affidavit evidence and their oral testimony before this Court, have clearly demonstrated an unwillingness to accept that incidents of violence and abuse have occurred on the Reserve (even when verified by lawful convictions). For example:
(a) even though Robert Bropho has been convicted of child abuse in a criminal court of competent jurisdiction and the matter has been appealed and reviewed in the Court of Criminal Appeal, Bella Bropho, Margaret Jeffery and Robert Bropho himself maintained that Mr Bropho was innocent of those charges and would not accept that the incident occurred;
(b) Denise Sambo, de-facto partner of Harvey Bropho, gave evidence that despite knowing Harvey had an extensive criminal record for violence, to Ms Sambo’s knowledge, Harvey had never assaulted or threatened anyone and she had never seen him commit any of these acts on the Reserve, or elsewhere;
(c) the Coroner in his report into the death of Susan Taylor accepted that after Susan Taylor had been indecently and physically assaulted by her uncle Richard Bropho on the Reserve she had gone to Robert Bropho’s place where he did little or nothing to investigate her concerns. The applicants believe that Susan Taylor was being abused elsewhere than at the Reserve; and
(d) there were also an overwhelming number of events of domestic violence, assault and sexual abuse recorded by government officials to which the applicants have simply denied any knowledge.
536 Thirdly, those who did make complaints of abuse and violence on the Reserve were often intimidated and threatened, leading to any criminal charges that were pressed being withdrawn. Alternatively, the fear of being threatened or intimidated often made it difficult for government officials to pursue their inquiries or provide assistance to those who required it. For example:
(a) following a complaint made by Lena Spratt that she had been sexually assaulted by Robert Bropho, the DCD officers were advised that substantial pressure was put on the Spratt family to withdraw the charge, including drivebys by Bropho family members, telephone threats and family members were threatened with weapons;
(b) Herbert Bropho was not convicted of an assault on Natasha Bropho because Natasha went to South Australia and did not appear to give evidence. Bella Bropho, Natasha’s mother, denied that was because she was scared to give evidence against Herbert, but the respondents say her evidence in that regard was unconvincing;
(c) Robert Bropho threatened a Crown Prosecutor, Patti Chong, that he would sue her for racial discrimination and defamation for her handling of the prosecution of Timothy Bropho for the sexual assault of a two year child whilst on the Reserve. Robert Bropho was also antagonistic during Ms Chong’s preparation for the trial; and
(d) when Clinton Pickett was interviewed regarding allegations of sexual abuse that he had made he refused to repeat the allegation or speak about anything happening on the Reserve. Officers involved in conducting the interview considered that Clinton was afraid to speak out.
537 Fourthly, the respondents say the evidence demonstrates that access to the Reserve by Government was problematic because of the intimidating and obstructionist attitude of the SVC management. The applicants disputed that access to, and residency on, the Reserve was controlled solely by Robert Bropho. Regardless of that dispute, it is clear that the SVC management, including Robert Bropho and his sons Herbert and Harvey, Iva Hayward-Jackson, and other non-Aboriginal supporters including Margaret Jeffery, regulated the conditions of access by government officers to the Reserve and to persons on the Reserve, and that they showed no genuine intention of working with the Government to improve conditions on the Reserve.
538 For example:
(a) from approximately 1995 the Service had been banned by Robert Bropho from entering the Reserve;
(b) in 1996 Robert Bropho denied the DCD access to the Reserve to discuss a program aimed at keeping children safe from abuse;
(c) in mid 1997 Robert Bropho again ordered the DCD off the Reserve during an investigation into claims of sexual abuse made by a child on the Reserve. Subsequent to this, officers from the DCD Midland office did not seek to access the Reserve;
(d) in October 1997 Robert Bropho ordered the teacher appointed to the school on the Reserve off the premises. The DOE later withdrew the teachers from the Reserve’s school due to concerns about violence on the Reserve;
(e) since 1995, following an incident in which a police vehicle was damaged in an incident on the Reserve, it became police procedure to call ahead to Robert Bropho before entering the Reserve and as a general rule two vehicles would enter the campsite together;
(f) the draft management plan developed by the SVC contained statements that new and unannounced visitors were to come to the office to visit where they would be directed to those they needed to see and that as a common courtesy, visitors should ring ahead. It was the view of Government that officials needed to be able to make unannounced visits and have unimpeded contact with individual families and children at the Reserve; and
(g) efforts by government officials to improve local service provision to the Reserve was consistently met with obstruction on the part of the SVC. The management of the SVC often refused to meet with the officials or, when they did, wished only to discuss broader political or governance issues and not the improvement of local service provision.
539 In the respondents’ submission conduct of the applicants reasonably gave rise to a belief on the part of the State that the Reserve had become a closed community. The fact that the applicants may have allowed some particular agencies, or some particular government officials, access to the Reserve does not detract from the veracity of that overall assessment. In the respondents’ submission access to the Reserve by government officials was dependent upon whether the SVC viewed the service being provided by the official as a beneficial one. Consequently, whilst DIA had regular contact and access with people on the Reserve for heritage and cultural issues, those departments such as the police or the DCD who were involved in the investigation of violence and abuse on the Reserve were met with obstruction by members of the SVC. Services, such as those concerned with child protection which most people would see as positive services, were not necessarily viewed as such by the community at the time.
540 In circumstances where criminal allegations had been made in relation to certain people in authority on the Reserve it was entirely inappropriate for those same people to control access to the Reserve, or to decide the time, place and manner in which the Government would investigate its concerns or provide services to the most vulnerable members of the Reserve.
541 In such an environment the powers given to government officers to enter the Reserve under the existing laws of the State proved to be ineffective. For example, Caroline Brazier explained that the power to enter private property under the Child Welfare Act was not an appropriate mechanism for accessing the Reserve because the power related to a specific child and the DCD wished to be able to have free access to women and children on the Reserve to form relationships with them. Ms Brazier also explained that children and young people will provide information in certain environments in which they feel safe and in other environments they will retract or not be prepared to talk about those matters.
542 Accordingly, reliance upon the provision of the current criminal law was an inadequate response in light of the reasonable concerns held by the respondents.
543 The respondents say that in circumstances, such as those detailed above, where the Government held grave concerns for the safety of women and children resident on the Reserve and where the SVC was unwilling to engage with local service providers and allow them access to residents of the Reserve, there is no reason to believe that a MOU would have proved effective. The issue of a MOU detracted the attention of the SVC away from the provision of basic local services to members of the Reserve, which was the State Government’s priority. The broad policy and governance issues sought to be raised by the applicants for inclusion in a MOU did not adequately address the more pressing concerns of the Government in relation to the safety of women and children on the Reserve.
Reasoning
544 I consider it beyond contention that in the determination of issues relating to discrimination, including alleged racial discrimination, regard may be had to the reasonableness of the enactment or action in question. This in turn includes, particularly in cases of alleged indirect discrimination, regard being had to the proportionality of the matter in question. The authorities cited in the submissions of the respondent on the present issue along with those considered in the consideration earlier in these reasons of the nature of discrimination provide the necessary support for this view.
545 It must be accepted, as the applicant submits, that the measures provided for in the Reserves Act and the implementation of them were far-reaching and beyond what may have been the usual response to issues involving the legal and human rights of women and children. The question whether they were disproportionate and thus unreasonable must be considered objectively in all the circumstances.
546 The starting point in the evidence is the availability of alternative measures. It is quite clear that the alternative of a memorandum of understanding had not worked in the circumstances. It was a principal objective of the 2002 Management Order, which had been introduced with a view to advancing the recommendation of the Gordon Inquiry to that end. It had not elicited a response from the SVC addressing the matters requiring attention in such a memorandum so that no understanding had been reached.
547 As to the criminal law, the respondents’ submissions are powerful and are supported in the evidence. The submission answers the applicant’s submission that the criminal law was a reasonable alternative.
548 Additionally, it is not the case that the existence of a judicial discretion to grant or refuse an application for injunctive relief is a reason why that remedy may not have been an obstacle to the introduction of measures of reform to the Reserve. It was the fact that the remedy could have led to the grant of an injunction in circumstances where the condition of some women or children required immediate assistance that presented an obstacle in the circumstances.
549 There were two further factors of considerable significance. The Aboriginal inhabitants were not resident on private land owned by them. They were resident on a public reserve for which the Minister under the LAA had responsibility to see was well managed by the appointment of an appropriate manager. In the absence of a negotiated solution being found and/or of the criminal law to provide the protection required for vulnerable women and children, there were no other available remedies to provide that protection.
550 Additionally, the vulnerable women and children were among Aboriginal inhabitants of a community charged with the management of the Reserve, in relation to which the view had been reasonably (that is, based on evidence) formed was a dysfunctional community unable to provide the necessary protection either immediately or in the longer term. The evidence showed that the view had been formed that the SVC through some of its members had become the leader of a closed community, impervious to any of the measures taken to alleviate the position of women and children on the Reserve who alleged their human and other rights were in jeopardy. It is only in that context that the choice of the remedy of closing the community at Lockridge can be understood. Such closure would not necessarily be a course to be embarked upon in other circumstances. The choice of that course is a measure of the sense of despair by those in authority at their inability to address and alleviate the occurrence of conduct gravely affecting women and children on the Reserve.
551 It is in these circumstances that the objective finding of the reasonableness and proportionality of the Reserves Act must be made. What else could a responsible government have done in the circumstances? In my view, despite the unusual and far-reaching character of the measure, the enactment of the Reserves Act and the actions taken under it must be found to have been both reasonable and proportionate.
552 In reaching that view it should be stated, as has been stated in other sections of these reasons, it is not for the Court to rework or remake the decisions of Parliament and Government. The function of the Court is confined to whether, in all the circumstances, it was objectively reasonable for certain actions to have been taken. That requires the Court being satisfied that there was a foundation in fact for the decisions made, not that those decisions were, in the view of the Court, the best ones to have been taken at the time. If there was a foundation so that the decisions were reasonable, it is for Government to decide the course of action. I consider there clearly was such a foundation. It is not to the point that there may have been other views to have been taken of the evidence if in fact the evidence at the time provided a foundation for the action which was taken.
WAS any deprivation not arbitrary because THE ENACTMENT OF THE RESERVES ACT was IN THE PUBLIC INTEREST? [ISSUE 24]
553 The respondents raise this issue in defence to the applicant’s claim of arbitrary deprivation. They say that a deprivation of property in the public interest cannot be characterised as arbitrary.
554 The applicant argues that there was no reasonably identified public interest in enacting the Reserves Act. She accepts the Second Reading Speech in relation to the Reserves Bill identified the public interest in and the ‘fundamental responsibility of the Western Australian Government to provide a safe and secure environment for all its citizens, particularly its children’. While that is a reasonable objective, it is submitted the Reserves Act did not contribute to the provision of such an environment. It is said by the applicant that the action taken was not reasonably connected to the stated public interest. Rather it had the opposite effect of dislocating citizens from their homes. It did not provide any safer environment.
555 The evidentiary base on which this issue arises is that already set out in relation to proportionality, reasonableness and legitimacy.
556 Weighing the evidence upon which the applicant relies in the context of the evidence on which the respondents rely, it is apparent that the applicant’s contentions that there was no public interest involved in the enactment of the Reserves Act cannot be upheld. The purpose of the leading players in the enactment was entirely one of public interest, namely, the safety of women and children. It is not for the Court, by reference to the evidence upon which the applicant relies on this issue, to rework the exercise of discretions made by the witnesses as parliamentarians or senior public servants in determining where the public interest lay. Not only did they think that the Reserves Act was in the public interest, but there was evidence upon which they were entitled to rely to reach that view.
557 In reaching this view I take into account the authorities previously set out in relation to whether the 2002 Management Order was in the public interest concerning the scope at law of the phrase ‘in the public interest’.
WAS THE RESERVES ACT A SPECIAL MEASURE [ISSUE 19]
558 The respondents also rely on the ‘special measure’ defence. As has earlier been set out, a special measure is one ‘taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms’ (Convention, Art 1(4)). The Convention provides that such a measure shall not be deemed racial discrimination provided that it does not, as a consequence, ‘lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’ Section 8(1) provides that Pt II does not apply to, or in relation to the application of, special measures other than measures to which s 10(3) applies.
559 In Gerhardy 159 CLR at 133 Brennan J said:
‘A special measure (1) confers a benefit on some or all members of a class, (2) the membership of which is based on race, colour, descent, or national or ethnic origin, (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms.’
In Pareroultja v Tickner (1993) 42 FCR 32 at 47 Lockhart J, with whom O’Loughlin and Whitlam JJ agreed, accepted that a special measure must have the sole purpose of securing advancement and that the need for the measure to be taken must match the purpose.
560 It is to be noted that a special measure may be for the advancement not only of racial or ethnic groups but also of racial or ethnic individuals.
The advancement and human rights claimed to be protected
561 The respondents contend that the evidence outlined above as general and specific findings of fact clearly establishes that the Reserves Act was enacted for the sole purpose of securing adequate advancement of certain individuals (i.e. Aboriginal women and children inhabiting the Reserve) requiring such protection as may be necessary in order to ensure those individuals’ equal enjoyment or exercise of human rights and fundamental freedoms i.e. the human right in Art 5(b) of the Convention - the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution.
562 The respondents submit that in all of the circumstances detailed above the respondents held, and were justified in holding, concerns regarding the safety of women and children residing on the Reserve, including concerns that:
(a) the applicants were not managing the Reserve for the benefit of Aboriginal people by reason that access to and residence on the Reserve was restricted to Robert Bropho and members of his family and persons associated with them and that attempts by government officers to improve the provision of government services to the Aboriginal inhabitants of the Reserve were frustrated by the management of the SVC;
(b) unlawful conduct was occurring on the Reserve including substance abuse, that persons residing or visiting the Reserve, especially women and children, may be assaulted, including indecently assaulted and sexually assaulted and may attempt suicide; and
(c) the human rights of Aboriginal inhabitants of the Reserve may be interfered with, including that some Aboriginal inhabitants, especially women and children may be subjected to physical and sexual abuse and intimidation, contrary to their human right to security of person and denied assistance by government service providers, contrary to their human right to protection by the State against violence or bodily harm.
The curial approach to the provision
563 In Gerhardy 159 CLR 70 members of the High Court addressed the proper curial approach to the issues raised by the special measure defence. Drawing from the jurisprudence concerning constitutional facts, Gibbs CJ held that ‘the fact must be ascertained by the court as best it can, when the court is called upon to pronounce upon validity’ and that in doing so the Court may have regard to material before it and to facts that are notorious (at 87-88).
564 Mason J gave weight to the expressed views of the Government in introducing the legislation (at 104):
‘The substantial question raised by Art. 1.4 is whether it embraces a legislative measure such as the State Act, the object of which is to vest in a body corporate for the benefit of the people of a particular race or races, title to land with which they have been traditionally associated, the title being inalienable and access to others being restricted. In considering this question we need to recall that the object of legislation of this kind is not merely to restore to an Aboriginal people the lands which they occupied traditionally, but also to provide that people with the means to protect and preserve their culture. So much is made clear in the case of the State Act by the Minister's Second Reading Speech on the introduction of the Bill in the South Australian House of Assembly: Hansard, House of Assembly, 23 October 1980, p 1387.’ (Emphasis added.)
565 Wilson J also gave weight to the attitude of the Government (at 113):
‘The emphasis upon traditional ownership and the functions of Anangu Pitjantjatjaraku set out in s 6(1) are plainly directed to enabling the Pitjantjatjaras to protect and preserve their culture, a culture which, as the Premier observed in the House of Assembly in the course of the Second Reading Speech (see Hansard, House of Assembly, 23 October 1980, p 1387) ‘is still largely intact’. In his speech, the Premier refers to the extensive discussions and negotiations with the Aboriginal leaders of the relevant tribes that preceded the preparation of the Bill. The result is a measure directed to securing for the Pitjantjatjaras such advancement as will enhance their capacity to experience the full and equal enjoyment of human rights and fundamental freedoms.’
566 Deane J held that so long as a measure is ‘reasonably considered to be appropriate and adapted to achieving’ the purpose of the advancement of a disadvantaged racial group, it will be characterised as a special measure (at 149, also at 153).
567 Dawson J held that (at 161-162):
‘The question whether the Pitjantjatjaras are a racial or ethnic group requiring protection must ultimately be a matter for the legislature and, provided that they are capable of being so regarded, then it is not for this Court to inquire further. From the terms of the Act and those facts which, upon the evidence or otherwise, the Court is entitled to take into account, I am of the view that it is a conclusion which the legislature might properly have reached.’ (Emphasis added.)
568 Brennan J in Gerhardy 159 CLR 70 noted that the characterisation of a measure as a ‘special measure’ was largely a matter for the other branches of government (at 138):
‘… the character of a special measure depends in part on a political assessment that advancement of a racial group is needed to ensure that the group attains effective, genuine equality and that the measure is likely to secure the advancement needed. When the character of a measure depends on such a political assessment, a municipal court must accept the assessment made by the political branch of government which takes the measure. It is the function of a political branch to make the assessment. It is not the function of a municipal court to decide, and there are no legal criteria available to decide, whether the political assessment is correct. The court can go no further than determining whether the political branch acted reasonably in making its assessment.’
569 Brennan J also noted, however, that ‘the wishes of the beneficiaries of the measure are also of great importance in satisfying the element of advancement’. That dicta was not supported by the other justices and is not consistent with the general principles expressed in the case.
570 The respondents say that in the present case, the beneficiaries of the measure are, in particular, the children who lived in the Reserve. Ascertaining the wishes of these children was problematic, in significant part due to the difficulties in obtaining access to those children. In such circumstances, they argue it would defeat the purpose of the RDA and the ‘special measure’ provisions were the wishes of the adult members of the SVC, including those responsible for the violence and abuse that occurred on the Reserve, to be determinative. This submission does not address the fact that the beneficiaries of the measure were also expressly stated to be the women who lived on the Reserve, who were subjected to physical and domestic abuse. A large number of these women did not agree with the enactment of the Reserves Act and indeed presented a open letter to the Premier to that effect, stating that they were ‘completely free’ to act as they wished. If the above dicta by Brennan J was to be given weight, a consideration of the wishes of the women might suggest that the measure was not to be taken for the purpose of securing their advancement. However, as the dicta of Brennan J in this respect has no apparent judicial support, I cannot place weight on that aspect of his reasoning.
571 The views expressed in Gerhardy 159 CLR70 as to the significant weight that is to be given to the judgment of the elected government as to questions of policy are consistent with general legal and constitutional principle and with the position under international conventions: James 8 EHRR at [46] the European Court of Human Rights considered the meaning of the sentence: ‘No one shall be deprived of his possessions except in the public interest’, in Art 1 of Protocol No. 1 to the European Convention on Human Rights. At [46] the Court said:
‘…the notion of 'public interest' is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve considerations of political, economic and social issues on which opinion within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is 'in the public interest' unless that judgment be manifestly without reasonable foundation.’
This was followed in Mellacher 12 EHRR at [45].
572 Against the background of this authority, it is apparent the Court must objectively determine whether the Reserves Act was solely a protective measure of the required type when it was made. The applicant accepts the first respondent’s enactment of the Reserves Act on the basis of a concern in relation to possible breaches of human rights is a matter which the Court is entitled to determine as a constitutional fact ‘as best it can’ from the evidence, including Ministerial statements in the Parliament and the Court’s knowledge recognised judicially of the circumstances in which Aboriginal people find themselves generally living on Reserves: Gerhardy 159 CLR at 143.
573 However, she argues an expression of government as to the reasons for introducing legislation into the Parliament does not prevent an objective analysis of the words of the statute so as to determine whether they go beyond a particular purpose: cf R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 187-188. I accept that although the Court will ordinarily accept the view of the government that a particular measure is taken for the advancement of a disadvantaged group or individuals, that will not be the case where the Court is not objectively satisfied that it was reasonable for the government or legislature to have reached the view which it did. That is, that there is evidence of a proper foundation for the view which government has adopted. It is not for the Court to determine whether the political assessment was correct when made or whether the assessment of disadvantage was in fact fulfilled by the measure adopted. It has already been determined above that the Reserves Act was, in the particular circumstances, objectively to be seen as reasonable and proportionate and hence legitimate.
The sole purpose of the government view
574 There is no dispute on what the government view was in this matter. The Premier’s Second Reading Speech to the Reserves Bill stated ‘there is only one course of action that will secure for the children and women of the Swan Valley Nyungah Community the protection and safety they deserve and halt the cycle of abuse and violence; that is, the current management order must be revoked, and the Swan Valley reserved be vested in the Aboriginal Affairs Planning Authority…’. He referred to ‘systemic sexual and physical abuse, substance abuse, family violence and intimidation that has occurred’ and the fact that ‘grave concerns continue to be held about the safety of children and women living in the Swan Valley Community’. The evidence on this has been set out more fully under general findings of fact.
575 The applicant submits that no objective analysis of the Reserves Act could reach the conclusion that it constituted a ‘special measure’ of the kind contemplated by Art 1(4) of the Convention. It is contended by the applicant that the Court might find that, although the first respondent’s concern about the human rights of Aboriginal inhabitants of the Reserve to be secure in their person was genuine, it was not a reasonable response to enact the Reserves Act, revoking the 2002 Management Order which was in favour of the SVC.
576 The respondents argue that it is notorious that Aboriginal people are a disadvantaged group and that one of the ways in which this disadvantage manifests is violence and substance abuse, with a particular effect on children. They say the Government acted for the advancement of this community in this respect and the Court should accept the Government’s determination that this was an appropriate policy measure.
577 Close attention must be given to the evidence considered under the headings ‘was any deprivation not arbitrary because it was reasonable?’ and ‘was any deprivation not arbitrary because the enactment of the Reserves Act was in the public interest?’ appearing above. That examination makes apparent that there was evidence upon which the Government could rely as a foundation for the view which it formed. As has there been found, it cannot in those circumstances be concluded that the view of Government and then of Parliament was unreasonably held. It follows in accordance with authority that I should accept the view of Government that the Reserves Act was enacted for the sole purpose of the advancement of a number of disadvantaged individuals, namely some Aboriginal inhabitants of the Reserve who were women and children.
Absence of separate rights for different racial groups and discontinuance
578 The Reserves Act did not lead to the maintenance of separate rights for different racial groups and it only applied for a period of 2 years from its enactment (which was a sufficient time to achieve the objectives for which it was enacted): s 13 of the Reserves Act. Consequently the proviso in Art 1(4) of the Convention does not have any application.
The Act as a special measure
579 Returning to the list of elements in Art 1(4) set out by Brennan J in Gerhardy 159 CLR at 133, I consider the position to be as follows:
(1) the Act conferred a benefit upon some of the Aboriginal inhabitants who were women and children by removing the manager being the community believed by Government to be the source of failure to protect them and by empowering an Administrator to take steps to remove the threatening environment. The benefit conferred upon them was to establish a system which would enable them to access such protection as they may require in common with the access enjoyed by Aboriginal or non-Aboriginal persons living outside the Reserve. The advancement conferred was the removal of what was reasonably perceived by Government to be the impediment to their equal enjoyment of their human rights and fundamental freedoms.
(2) the class from which the individuals the subject of the measure came was based on race, namely the Aboriginality of the inhabitants of the Reserve. (This is a different question to whether the Reserves Act contains provisions addressed to both Aboriginal and non-Aboriginal persons or to whether the effect of the Act is disproportional in its impact on Aboriginal persons so as to give rise to indirect discrimination).
(3) the sole purpose of the Act was to secure adequate advancement of the beneficiaries in order that they could enjoy and exercise equally with others their human rights and fundamental freedoms.
(4) the enactment occurred in circumstances where the protection given to the beneficiaries by the special measure was necessary in order that they may enjoy and exercise equally with others their human rights and fundamental freedoms.
580 I therefore conclude the Reserves Act is correctly characterised as a special measure. This has the consequence that even if I were to conclude that the Reserves Act was in some way racially discriminatory because of an inconsistency with ss 9 or 10 of the RDA, the Reserves Act would be upheld as valid in the inconsistent respect because it qualifies as a special measure.
581 For reasons which now follow, the exception in s 10(3) is not applicable.
the exception to special measure: s 10(3) OF THE RDA [ISSUE 19]
582 It is agreed that the Reserves Act authorised the Reserve to be managed by another person (the AAPA) without the consent of the applicants (s 10(3)(a) of the RDA).
583 It is agreed that the Reserves Act prevented or restricted the applicants from terminating the AAPA’s management of the Reserve (s 10(3)(b) of the RDA).
584 The applicant argues that the Reserves Act is invalid by reason of inconsistency with ss 10(3)(a) and (b) of the RDA. It is said the public interest which the respondents assert in revoking the 2002 Management Order in favour of the SVC does not eliminate the effect of the Reserves Act in denying or limiting the enjoyment by the applicants of their human rights on an equal footing with persons of another race, taking into account the effect which the Reserves Act had on the exercise of those.
585 As I have already determined, the applicants had no right of ownership over the Reserve nor did they have a human right to that effect. As s 10(3) clearly relates to a situation whereby the property in question is owned by an Aboriginal or Torres Strait Islanders, then it is plain that the claims of the applicant in this regard cannot succeed.
586 Were this not the case the respondents would contend that s 10(3) of the RDA does not apply where the provisions in question (being the provision in ss 4 and 5 of the Reserves Act which authorises property owned by an Aboriginal to be managed by another person without their consent) applies to persons generally without regard to their race, colour or national or ethnic origin. I have already determined that if the applicants had property in the Reserve as Aboriginal inhabitants of the Reserve then ss 46 and 50 of the LAA inherently provided for that property to be managed by a management body chosen by the Minister, and that applied generally to all reserves (and therefore to persons generally, without regard to race). Hence it is argued s 10(3) has no application. If the applicants had property in the Reserve as members of the SVC the respondents would contend s 10(3) of the RDA can have no application because, on their own case, the Reserves Act did not result in that property being managed by other persons; rather they say the removal of the SVC as management body deprived them of the property altogether. As I consider the sub-section cannot apply, consideration of these additional arguments is unnecessary.
587 The applicant’s claim has raised many issues and I have endeavoured in these reasons to address them all. However the fundamental difficulty with the claim as I apprehend it is that it does not have a foundation of a right to property in domestic law or a human right to the ownership of property. What the applicants had in relation to the Reserve was the care, control and management under the 2002 Management Order. In my view examination of the nature of that right discloses that it is not enough to sustain the claims which have been brought.
588 Even if that seminal difficulty could be overcome, I do not think that the applicant has made out a case that the Reserves Act or actions taken under it were ‘by reason of’ race or involved a distinction, exclusion, restriction or preference ‘based on race’. Additionally I have found that in the circumstances where there were no viable alternatives, the measures adopted were, although unusual, reasonable and proportionate. Further it has been established that the Reserves Act and the actions were taken for the sole purpose of securing adequate advancement of individuals requiring such protection to ensure equal enjoyment of human rights and fundamental freedoms and so was a special measure to which ss 9 and 10 of the RDA do not have application.
589 Accordingly, for the above reasons I consider the claims should be dismissed.
| I certify that the preceding five hundred and eighty-nine (589) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson. |
Associate:
Dated: 13 April 2007
| Counsel for the Applicant: | GMG McIntyre SC |
|
|
|
| Solicitor for the Applicant: | Atlas Legal |
|
|
|
| Counsel for the Respondents: | G Tannin SC, S Wright and A Warren |
|
|
|
| Solicitor for the Respondents: | State Solicitor’s Office |
|
|
|
| Date of Hearing: | 4, 5, 6 and 7 September 2006 |
|
|
|
| Date of Judgment: | 13 April 2007 |
