Bropho v State of Western Australia

The case of Bropho v State of Western Australia involved the applicants, who were Aboriginal inhabitants and members of the South Verdent Community (SVC), contesting the constitutionality of certain provisions in the Reserves Act, which allowed property owned by Aboriginals to be managed by another person without their consent. The applicants argued that these provisions violated their rights under the Racial Discrimination Act (RDA) and the Land Act (LAA). The Federal Court was tasked with determining the validity of these claims.

The court had to decide several key legal issues. First, whether the provisions in question applied to persons generally without regard to race, colour or national or ethnic origin, which would potentially exclude the application of s 10(3) of the RDA. Second, if the applicants had property in the Reserve as Aboriginal inhabitants or members of the SVC, whether the provisions were 'by reason of' race or involved a distinction, exclusion, restriction or preference 'based on race'. Third, whether the measures adopted were reasonable and proportionate given the circumstances, and finally, whether the provisions were a special measure under the RDA.

The court found that the provisions in the Reserves Act applied generally to all reserves, and therefore to persons generally, without regard to race. It was determined that s 10(3) of the RDA did not apply in this context. The court also found that the applicants did not have a right to property in domestic law or a human right to the ownership of property, which was a fundamental difficulty with their claim. The court concluded that the Reserves Act and the actions taken under it were not 'by reason of' race or based on race. Additionally, it was established that the measures adopted were reasonable and proportionate given the circumstances, and they were a special measure to secure adequate advancement for individuals requiring such protection.

In light of the above findings, the court dismissed the application. The court ordered that the application be dismissed and reserved the decision on costs.