FEDERAL COURT OF AUSTRALIA

Bropho v State of Western Australia [2007] FCA 519

SUMMARY

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

WAD 204 of 2004

NICHOLSON J

13 APRIL 2007

PERTH

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the announcement of reasons. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.

The applicant in both claims, Bella Bropho, is an Aboriginal person of Nyungah origin. She has been at all relevant times a Governing Committee member, Vice-Chairperson, spokesperson and member of Swan Valley Nyungah Community Aboriginal Corporation (the SVC). As applicant, Ms Bropho claims to represent all persons who are Aboriginal persons of Nyungah origin and members of the SVC who were Aboriginal inhabitants of reserve 43131 (the Reserve) at any time during the period 14 May 2003 to 13 June 2003 (the applicants). She was such an inhabitant.

The claims in these cases are in respect of alleged racial discrimination. The claims are brought by the applicant on behalf of former Aboriginal inhabitants of the Reserve in respect of the enactment of the Reserves (Reserve 43131) Act 2003 (WA) (the Reserves Act) and actions taken under it. It is said the consequences of the Act and actions under it are that the Aboriginal inhabitants are no longer able to manage or reside at the Lockridge Camp of the SVC. It was claimed the Reserves Act and the actions were contrary to the Racial Discrimination Act 1975 (Cth) (the RDA).

Various public inquiries have been held relating to conduct on the Reserve, including a Coronial Report on the death of Susan Taylor in 2001; the Gordon Inquiry on 31 July 2002; and the Hooker Inquiry in 2003.

On 15 May 2003 the Reserves Bill was introduced into the Parliament of Western Australia where it was subsequently passed and became effective from 13 June 2003 as the Reserves Act.

Reserves Act

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.

Relevantly the Reserves Act purported to do the following:

(1) revoke the 2002 Management Order which placed the care, control and management of the Reserve with the SVC (s 4).

(2) place the care, control and management of the Reserve with the Aboriginal Affairs Planning Authority (the AAPA) (s 5).

(3) provide for an administrator to have powers in relation to care, control and management of the Reserve (s 7) (the Administrator). These included powers to direct a person to leave or not to enter the Reserve and to make such directions orally or in writing.

(4) exclude the rules of natural justice in relation to any direction by the Administrator under ss 7(3)(a) or (b) (s 8).

(5) grant immunity from judicial supervision by way of prerogative, declaratory or injunctive relief in respect of any decision made or purporting to be made by the Administrator under s 7 (s 11).

(6) provide protection from liability for acts done in performance of a function under the Reserves Act (s 12).

Purportedly pursuant to the power in s 7 of the Reserves Act, the Administrator made directions 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 Reserve is presently unoccupied and all the Aboriginal inhabitants formerly of the Reserve have moved elsewhere.

Racial Discrimination Act

The essential foundation of the case which Bella Bropho brings is that the Reserves Act is invalid as a consequence of its inconsistency with ss 9 and 10 of 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.

Section 9(1) of the RDA provides:

‘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. …’

Section 10(1) provides:

‘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 these section, enjoy that right to the same extent as person of that other race, colour or national or ethnic origin.’

Section 10(2) provides that a reference to a right includes a reference to a right of a kind referred to in Art 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention). The Convention was ratified by Australia in s 7 of the RDA.

An important exception to the application of these sections is in s 8 of the RDA. That provides that they do not apply to a ‘special measure’. This is defined by Art 1(4) of the Convention as a measure 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.

This exception does not apply in the circumstances referred to in s 10(3) of the RDA in respect of provisions in a law authorizing property owned by Aboriginal persons to be managed by another without their consent or preventing or restricting an Aboriginal from terminating such a management.

The relief sought by the applicant 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 and the Aboriginal inhabitants of the Reserve.

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 Act 1986 (Cth) to cover the eventuality that such a claim was a necessary precondition to the bringing of the claim in this Court.

Applicants did not have property rights to manage and exercise ownership rights

The applicant contended for four sources of property rights:

(1) The 1994 designation of the Reserve

The Reserve was first designated and then vested in the SVC on 22 July 1994 under the Land Act 1933 (WA) (the Land Act 1933). It is held that the designation of the Reserve for ‘The Use and Benefit of Aboriginal Inhabitants’ did not create any property rights in anybody.

(2) The 1995 Vesting

The 1994 vesting was revoked on 12 December 1995 to enable the Reserve to be enlarged. On the same date it was then revested in the SVC, again for the designated purpose of ‘Use and Benefit of Aboriginal Inhabitants’. The applicant’s case was that both she and those she represented derived their interest in the Reserve as beneficiaries under a charitable trust resulting from the vesting being placed in the SVC. In the reasons it is found this could not be the case because the relevant provisions of the Land Act 1933(unlike those at issue in the native title case of Western Australia v Ward (2002) 213 CLR 1) made no provision for such a trust. In the reasons it is found that, at best, the applicants had a bare licence or a public non-charitable trust. Also that the evidence did not make clear how the applicants derived any rights from the SVC.

(3) The 1998 Management Order

With effect from 30 March 1998 the Land Act 1933 was replaced by the Land Administration Act 1997 (WA) (the LAA).

In transitional provisions the LAA provided that a vesting order made under the Land Act1933 and continuing at the time of the LAA continued as if it were a management order made under the LAA. Consequently, the SVCno longer had the Reserve vested in it and in lieu held what has been described in the reasons as the 1998 Management Order. The Court has found that the provisions of the LAA changing the vesting of the Reserve in the SVC to the 1998 Management Order did not offend the RDA because those provisions were not racially directed as they applied to all reserves, whoever held them.

(4) The 2002 Management Order

Conduct was alleged as having occurred on the Reserve on 11 October 2002 affecting the safety of women and children. As a result, the 2002 Management Order was made in substitution for the 1998 Management Order. The Court found the making of the 2002 Management Order was not invalid under the LAA because the SVC had agreed to it and, in any event, it was in the public interest. The Court has also reached the view that the 2002 Management Order did not give to the applicants any rights of property or ownership.

Applicants did not have a human right of ownership over the Reserve pursuant to the RDA and the Convention

Accepting the applicant’s submission that the concept of a human right of property is to be read more widely than a reference to property in other domestic law, the Court has concluded that the applicant has not established any human right to such property, particularly as the applicants rights derive from a statutory source in relation to which they are unable to establish any element of ownership.

These conclusions are ones which affect the whole of the applicant’s case. Nevertheless, the reasons go on to consider what might have been the position if the rights of management and ownership had been made out. In particular, they conclude that for there to have been a lack of enjoyment by the applicants of the right to manage and otherwise exercise ownership rights ‘by reason of’ the applicants’ race on the grounds of the existence of indirect discrimination, they would have had to establish they had rights derivative from the SVC. This prima facie conclusion would then be required to be considered against the conclusions reached on justificatory contentions referred to below.

Applicants not deprived of freedom of movement and residence

Turning to the applicant’s right of freedom of movement and residence and s 10(1) of the RDA, the Court concluded that the enactment of the Reserves Act had not itself deprived the applicants of this right. Likewise that the exercise of the power by the Administrator to exclude persons from the Reserve and to require some of them to leave it had been exercised on a non-discriminatory basis so that no inconsistency with s 9(1) was created.

Applicants right of equal treatment before the courts affected but not materially

With regard to the right to equal treatment before the courts, the Court found that s 11 of the Reserves Act (providing immunity to the Administrator from judicial supervision) was prima facie indirectly discriminatory against the Aboriginal inhabitants. In relation to s 9 there was no ‘act’ in relation to this right to attract the application of the section.

Applicant’s case fails to make out deprivation of right to participate in public affairs.

The claim that a right to participate in public affairs was affected had not been made out on the applicant’s case.

Applicants unable to establish trespass

The applicant’s claim for deprivation of possession was not made out because she had failed to establish property rights of exclusive possession required to make out this tort. A contrary view of the law expressed in the Court of Appeal in England did not state the law in Australia.

Administrator’s actions in refusing to permit occupation

In relation to this alleged contravention of s 12(1)(d) of the RDA by the Administrator, these could not be made out because it was not ‘by reason of’ the race of the applicants in that all persons were excluded (unless approved for entry) and both non-Aboriginal and Aboriginal persons were ordered to leave the Reserve. There was no foundation in the wording of the section or decided authority to allow consideration of indirect discrimination on this paragraph.

justificatory considerations

In proceeding to consider other arguments put by the applicants the Court concluded that the applicant was unable to make out a case of arbitrary deprivation even if deprivation of human rights had been established. The Court found that the Reserves Act was reasonable, proportional and legitimate in the circumstances. The alternatives such as a memorandum of understanding or utilisation of the criminal law, had been proven to be impracticable. Further, it was not for the Court to remake the decision of Parliament and the Government where there was evidence providing a foundation for the policy choice which had been made. The Reserves Act was also found to be in the public interest.

Additionally, and importantly, the Court has reached the view that the Reserves Act was a special measure so no inconsistency with ss 9 or 10 of the RDA could be established. In reaching this view the Court found that the Reserves Act had been taken for the sole purpose of securing adequate advancement of Aboriginal individuals (women and children) requiring such protection as may be necessary to ensure their equal enjoyment or exercise of human rights and fundamental freedoms.

Accordingly, the Court dismissed each of the applicant’s claims.

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