Bropho v State of Western Australia
[2007] FCA 519
•13 April 2007
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 2003BELLA 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 2004NICHOLSON J
13 APRIL 2007
PERTHSUMMARY
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 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 Act 1933 and continuing at the time of the LAA continued as if it were a management order made under the LAA. Consequently, the SVC no 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.
FEDERAL COURT OF AUSTRALIA
Bropho v State of Western Australia [2007] FCA 519
CORRIGENDUM
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, BARRY CHARLES JAMESON and WESTERN AUSTRALIAN PLANNING COMMISSION
WAD 157 of 2003BELLA 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, BARRY CHARLES JAMESON and WESTERN AUSTRALIAN PLANNING COMMISSION
WAD 204 of 2004
NICHOLSON J
13 APRIL 2007 (CORRIGENDUM 4 JULY 2007)
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 157 OF 2003
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
ApplicantAND:
STATE OF WESTERN AUSTRALIA
First RespondentABORIGINAL AFFAIRS PLANNING AUTHORITY
Second RespondentBARRY CHARLES JAMESON
Third RespondentWESTERN AUSTRALIAN PLANNING COMMISSION
Fourth RespondentJUDGE:
NICHOLSON J
DATE OF ORDER:
13 APRIL 2007 (CORRIGENDUM 4 JULY 2007)
WHERE MADE:
PERTH
CORRIGENDUM
1.In accordance with the Order made by Justice Nicholson on 1 September 2006 adding the Western Australian Planning Commission as the fourth respondent to both proceedings:
(a)the covering page of the Reasons for Judgment is amended to include ‘Western Australian Planning Commission’ to each description of the parties involved in proceedings WAD 157 of 2003 and WAD 204 of 2004.
(b)each of the following ‘Orders’ pages and page 1 of the Reasons for Judgment to include ‘Western Australian Planning Commission’ as the fourth respondent.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Nicholson. Associate:
Dated: 4 July 2007
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 Act1895 (WA) s 8
Public Sector Management Act 1994 (WA) s 11(1)
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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), 30Reserves (Reserve 43131) Bill 2003 (WA)
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Yanner v Eaton (1999) 201 CLR 351BELLA 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 2003BELLA 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 2004NICHOLSON 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
ApplicantAND:
STATE OF WESTERN AUSTRALIA
First RespondentABORIGINAL AFFAIRS PLANNING AUTHORITY
Second RespondentBARRY CHARLES JAMESON
Third RespondentJUDGE:
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
ApplicantAND:
STATE OF WESTERN AUSTRALIA
First RespondentABORIGINAL AFFAIRS PLANNING AUTHORITY
Second RespondentBARRY CHARLES JAMESON
Third RespondentJUDGE:
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 A: INTRODUCTION EVIDENCE OBJECTIONS TO DOCUMENTS CONFIDENTIALITY PART B: GENERAL FINDINGS OF FACT BACKGROUND CIRCUMSTANCES OF THE SVC AND THE RESERVE PRIOR TO THE RESERVES ACT ORIGINS CONDUCT ON THE RESERVE 1993 – 2002 CORONIAL REPORT ON THE DEATH OF SUSAN TAYLOR THE GORDON INQUIRY CONDUCT ON AND CONCERNING THE RESERVE FEBRUARY - JULY 2002 NEGOTIATION OF 2002 MANAGEMENT ORDER (AUGUST - OCTOBER) THE HOOKER INQUIRY 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 PART C: STATUTORY PROVISIONS THE RESERVES ACT THE RACIAL DISCRIMINATION ACT PART D: CLAIMS AND ISSUES THE ELEMENTS OF THE CLAIMS 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 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 THE CLAIM UNDER S 10(1) OF THE RDA THAT THERE WAS A DEPRIVATION OF THE RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE THE CLAIM UNDER S 10(1) OF THE RDA THAT THE APPLICANTS EXPERIENCED ARBITRARY DEPRIVATION OF THEIR RIGHT OF FREEDOM OF MOVEMENT AND RESIDENCE THE CLAIM UNDER S 10(1) OF THE RDA FOR THE RIGHT TO EQUAL TREATMENT BEFORE TRIBUNALS ADMINISTERING JUSTICE 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 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 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 FOR ARBITRARY DEPRIVATION OF 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 NATURE OF DISCRIMINATION THE CONTENT OF SS 9 AND 10 OF THE RDA EFFECT INDIRECT DISCRIMINATION JUSTIFICATORY MEASURES 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 THE RESERVES ACT IN ISOLATION REASONING PART H: INCONSISTENCY OF RESERVES ACT AND RDA S 10 SUBPART 1: DEPRIVATION OF RIGHTS OF OWNERSHIP AND MANAGEMENT OF PROPERTY THE NATURE OF PROPERTY 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] 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 WAS THERE AN INCONSISTENCY INVOLVING SS 46 AND 50 OF THE LAA AND TRANSITIONAL PROVISION 16(1) WITH S 10 OF THE RDA DID THE APPLICANTS HAVE A HUMAN RIGHT OF OWNERSHIP OVER THE RESERVE RECOGNISED BY THE RDA? [ISSUE 12] APPLICANT’S SUBMISSIONS RESPONDENTS’ SUBMISSIONS REASONING IN RELATION TO HUMAN RIGHT OF MANAGEMENT AND EXERCISE OF OWNERSHIP RIGHTS AS PART OF THE HUMAN RIGHT TO OWN PROPERTY OTHER REASONS WHY RIGHT TO MANAGE IS NOT ‘PROPERTY’ 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] 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] 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 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 DID THE RESERVES ACT DEPRIVE THE APPLICANTS OF THE RIGHT TO EQUAL TREATMENT BEFORE TRIBUNALS ADMINISTERING JUSTICE [COMPARE ISSUES 14, 15 AND 19] 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 DEPRIVATION OF RIGHT TO MANAGE AND OTHERWISE EXERCISE OWNERSHIP RIGHTS IN RELATION TO THE RESERVE [ISSUES 11, 12, 14, 15 AND 19] RIGHT NOT TO BE ARBITRARILY DEPRIVED OF THE RIGHT TO MANAGE AND OTHERWISE EXERCISE OWNERSHIP RIGHTS IN RELATION TO THE RESERVE [ISSUES 20-24] 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] THE ACTS OF THE ADMINISTRATOR 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] PART K: TRESPASS DEPRIVATION OF POSSESSION [ISSUES 35-38] PART L: JUSTIFICATORY CONTENTIONS WAS ANY DEPRIVATION NOT ARBITRARY BECAUSE IT WAS REASONABLE, PROPORTIONAL [ISSUE 23] AND LEGITIMATE [ISSUES 17 AND 18]? APPLICANT’S CONTENTIONS WHETHER DEFENCE OF REASONABLE JUSTIFICATION EVIDENCE OF LACK OF REASONABLENESS OF RESPONDENTS IN FORMING OPINION ON CONCERNS ALTERNATIVE SOLUTIONS ABSENCE OF COMPARATORS ISSUE CONCERNING POSSIBILITY OF INJUNCTIONS REASONABLENESS AND PROPORTIONALITY OF THE SOLUTION RESPONDENTS’ CONTENTIONS APPROPRIATENESS OF DEFENCE OF REASONABLE JUSTIFICATION REASONABLENESS AND PROPORTIONALITY IN RELATION TO PROPERTY RIGHTS EVIDENCE OF REASONABLENESS THE AVAILABILITY OF ALTERNATIVE MEASURES REASONING WAS ANY DEPRIVATION NOT ARBITRARY BECAUSE THE ENACTMENT OF THE RESERVES ACT WAS IN THE PUBLIC INTEREST? [ISSUE 24] 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 ACT AS A SPECIAL MEASURE THE EXCEPTION TO SPECIAL MEASURE: S 10(3) OF THE RDA [ISSUE 19] CONCLUSION
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
ApplicantAND:
STATE OF WESTERN AUSTRALIA
First RespondentABORIGINAL AFFAIRS PLANNING AUTHORITY
Second RespondentBARRY 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
ApplicantAND:
STATE OF WESTERN AUSTRALIA
First RespondentABORIGINAL AFFAIRS PLANNING AUTHORITY
Second RespondentBARRY CHARLES JAMESON
Third RespondentJUDGE:
NICHOLSON J
DATE:
13 APRIL 2007
PLACE:
PERTH
REASONS FOR JUDGMENT
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.
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’.
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.
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.
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.
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.
PART A: INTRODUCTION
EVIDENCE
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
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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
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).
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’.
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.
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.
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.
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’.
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.
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.
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.
On 12 July 1996 Nicole Bropho (aged 13) was found deceased at the Reserve, having hanged herself on the perimeter fence.
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.
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.
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.
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.
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.
On 23 January 1998 police observed Susan Taylor (aged 15) attempting to hang herself from the front perimeter fence of the Reserve.
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.
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.
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.
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’.
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.
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.
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.
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.
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.
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’.
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.
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.
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.
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.
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.
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’.
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.
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.
In August 2001 Clinton Pickett made allegations about physical and sexual abuse of himself and other youths on the Reserve.
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.
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.
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
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
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’.
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.
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.
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.’
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.
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.’
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.
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.
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.
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
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’.
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.
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.’
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.
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.
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.
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.
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.
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.
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.
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)
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’.
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 proposed order for agreement.
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).
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.
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.
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.
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.
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.
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]
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.
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.
The evidentiary base on which this issue arises is that already set out in relation to proportionality, reasonableness and legitimacy.
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.
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]
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.
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.
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
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.
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
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).
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.)
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.’
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).
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.)
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.’
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.
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.
The views expressed in Gerhardy 159 CLR 70 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].
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.
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
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.
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.
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.
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
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
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.
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.
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]
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).
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).
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.
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.
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.
CONCLUSION
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.
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.
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
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