Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2)

The Barngarla Determination Aboriginal Corporation RNTBC, an incorporated body representing Aboriginal people, sought relief in relation to alleged contraventions of the Racial Discrimination Act 1975 (Cth) by the District Council of Kimba, a local council. The corporation argued that the Council's determination of the franchise for a ballot, which aimed to assess community views on the construction of a radioactive waste management facility in the Council's area of responsibility, contravened the Racial Discrimination Act. The land proposed for the radioactive waste management facility neighbours land in respect of which Aboriginal persons have recognised native title rights and interests. The Council passed resolutions having the effect that the possession of native title rights and interests would not qualify a person to participate in the ballot. The Aboriginal Corporation argued that the Council's actions were based on race and thus contravened the Racial Discrimination Act.

The legal issues before the court were whether the Council's act of passing the resolutions constituted a distinction, exclusion, restriction, or preference based on race and, if so, whether the primary judge erred in concluding that the act did not involve such a distinction. The court examined the phrase "based on" in the context of the Racial Discrimination Act, emphasising that a sufficient connection between the designated characteristic and the impugned conduct was required. The court also considered the subjective motivations of the Council and whether they were relevant in determining whether the act was based on race. The court held that while subjective motivations were not determinative, proof of such motivations could support a contention that the act was based on race. In cases where the act complained of was in the nature of a decision, the court held that it was permissible to consider the matters upon which the decision turned.

The court found that the primary judge did not err in admitting the evidence of Ms Larwood, who provided evidence regarding the Council's reasons for adopting the franchise. The court held that it was open to the primary judge to conclude that the Council's reasons for adopting the franchise were as Ms Larwood had asserted them to be. However, the court held that this conclusion was not determinative. The court dismissed the appeal and upheld the primary judge's decision that the Council's act did not involve a distinction, exclusion, restriction, or preference based on race. The court ordered that the appeal be dismissed.