Bropho v State of Western Australia & Ors

[2009] HCATrans 170

[2009] HCATrans 170

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P28 of 2008

B e t w e e n -

BELLA BROPHO ON BEHALF OF THE MEMBERS OF THE SWAN VALLEY NYUNGAH COMMUNITY ABORIGINAL CORPORATION AND ABORIGINAL INHABITANTS OF RESERVE 43131

Applicant

and

STATE OF WESTERN AUSTRALIA

First Respondent

ABORIGINAL AFFAIRS PLANNING AUTHORITY

Second Respondent

BARRY CHARLES JAMESON

Third Respondent

WESTERN AUSTRALIAN PLANNING COMMISSION

Fourth Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 31 JULY 2009, AT 11.59 AM

Copyright in the High Court of Australia

__________________

MR G.M.G. McINTYRE, SC:   If it please the Court, I appear for the applicants.  (instructed by Corser & Corser Lawyers)

MR G.T.W. TANNIN, SC:   If it please the Court, I appear with MR S.J. WRIGHT for the respondents.  (instructed by State Solicitor for Western Australia)

FRENCH CJ:   Yes, thank you.

MR McINTYRE:   Your Honours, this is a matter which is deserving of special leave. Reasons which emerge in the applicant’s argument, particularly where reference is made to the submissions put to the Full Court of the Federal Court by the Human Rights and Equal Opportunity Commission at page 203 of the application book there summarised, and what the Human Rights and Equal Opportunity Commission put to the Full Court was that Justice Nicholson had erred in incorporating a proportionality test into the application of section 10(1) of the Racial Discrimination Act.

The Commission went on to support that by reference to this Court’s decision in Gerhardy v Brown where it said that the Court, and I think it is accurate to say that five out of six members of the Court in Gerhardy v Brown adopted a test relating to the operation of the Racial Discrimination Act which did not determine discrimination on the grounds of arbitrariness, invidiousness or lack of justification as the Solicitor‑General for South Australia had contended for in that case, but said that any form of distinction was sufficient to come within the terms of the Racial Discrimination Act. As the Commission put to the Full Court, that position has not been varied by the way in which this Court has applied either section 10 or section 9 of the Racial Discrimination Act.

The Commission then went on to say that if the Full Court did not accept that, that there was a proportionality test of international law which the court may consider.  Now, the Full Court appears to have not followed Gerhardy v Brown and to have gone on to adopt a form of proportionality test, but we say not the one which the Human Rights and Equal Opportunity Commission advocated, and indeed not one which is consistent with the international law as set out by the Human Rights and Equal Opportunity Commission.

That is best illustrated by taking your Honours to the applicant’s book of materials and the article of Dr Sadurski, which is quite a long article written shortly after the decision in Gerhardy v Brown on the topic, “Gerhardy v. Brown v. The Concept of Discrimination: Reflections on the Landmark Case that Wasn’t”.  Now, Dr Sadurski in some detail criticises the majority decision in Gerhardy v Brown for the approach it takes to the concept of discrimination, and in particular if I take your Honours to page 123 of the materials.  It says that in his view the appropriate:

test of the discriminatoriness of a regulation must, therefore, involve a question of whether typically it is likely to impair the dignity and self‑respect of the non‑beneficiaries of a proposed (or challenged) provision.

Then at the end of the first paragraph on that page he says:

What is wrong with Gerhardy is not that the Court has identified improperly the criteria of discrimination but that it has not even set about the task of searching for them.

Then in the middle of the next paragraph, about the third sentence he says:

The view that any classification based on race is inherently wrong, and a corresponding directive that law must use only race‑neutral classifications (which we have been referring to as “colour blindness theory”), underlies Gerhardy’s conclusion that the Land Rights Act –

and that which was the relevant legislation in that case –

is prima facie discriminatory.

That is his criticism of the Gerhardy Case.  As I suggest, that does seem to be the law in Australia, the Gerhardy Case, it was not followed by the Full Court in this case before the Court presently, and neither did they take up the suggestion of Dr Sadurski in relation to the proportionality test, the appropriate test.  If you go to page 128 of the book of materials where Dr Sadurski begins his discussion of the issue of proportionality, he says:

The second part of the test of the non‑discriminatory character of classification concerns the relation between the classification itself (which is seen as a means to an end) and the legitimate end to be attained.  The idea here is that not every classification which is somehow related to the purported end must be validated but that there must be a reasonable proportion between the aim and the means employed.  This part of the test calls for the evaluation of the purpose of the regulation and an assessment whether the regulation is reasonably designed to achieve this purpose.

That is consistent with the kind of tests which the Human Rights Commission advocated the Full Court to have taken, and we suggest that the Full Court did not do that.

FRENCH CJ:   The legislation in this case was directed to the correction of or implementation of measures to correct a situation which was viewed as one threatening the health and welfare of, inter alia, children on the reserve, is that right?

MR McINTYRE:   Yes, that is right, your Honour.

FRENCH CJ:   Obviously, the legislation itself had nothing to say about the racial category of the people on the reserve, and you are just looking really to a question of operational discrimination for the purposes of section 10, are you not?

MR McINTYRE:   Yes, what we are looking at ‑ ‑ ‑

FRENCH CJ:   The question then is, what is the relevant comparator when one looks particularly at paragraph 83 of the Full Court’s judgment at page 181?

MR McINTYRE:   Yes, well, we say that the Full Court really did not identify a comparator; we say that the comparator that ought to have been identified was that which would apply to the compulsory acquisition of lands or property from persons in the general population, and so that the provisions such as those under the Public Works Act in Western Australia and equivalent provisions in each of the States have a number of procedural fairness provisions in them.  For example, there must be notice, there is an opportunity to object to the compulsory acquisition, there is an opportunity to participate in a negotiation of the compensation, and that there is, of course, ultimately a compensation paid if there is an acquisition of property.  None of those things happened in this case.  It was a piece of legislation which operated ‑ ‑ ‑

KIEFEL J:   Is not the starting point the identification of the nature of the nature of the right in question?

MR McINTYRE:   Yes, it is.  We do not disagree with what the Full Court said in relation to that that it is a question of property and it is a question of the specific kind of property which the applicant was asserting in this case and it was a unique ‑ ‑ ‑

KIEFEL J:   The Full Court also held that it is a right conferred – it is a statutory right that has to be understood within that context.  It is a statutory right which, of its nature, is liable to be modified or removed.

MR McINTYRE:   I rather thought the Full Court did not make that decision.  Justice Nicholson, perhaps did, but ‑ ‑ ‑

FRENCH CJ:   Well, again, it’s 83 is it not:

a State has a right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest.

And, of course, here we are dealing with a reserve and management regimes.

MR McINTYRE:   Yes, but they go on at the end of the last sentence to say:

no property right, regardless of its source or genesis, is absolute in nature, and no invalid diminution of the property rights occurs where the State acts in order to achieve a legitimate and non‑discriminatory public goal.

KIEFEL J:   I think the passage I was thinking of was paragraph 82 about halfway down, “That is, the right to occupy” and the previous sentence that “the act . . . inform the content of the human right being asserted”.  To me that presents a difficulty for you.

MR McINTYRE:   Yes, we rather thought that the Full Court was not limiting the right, but recognising that it is a right of a unique nature, which was held by this particular applicant and the members of that corporation.  It was a right which they had, we asserted, before the Full Court to, as members of the corporation, exercise a degree of management over the reserve, which was taken away from them.  And it was taken away from them in a way which has not occurred in relation to persons of any other race and that is the essence of the point of racial discrimination.  The effect upon them of this particular legislation is an effect which has not been applied to persons of any other race in relation to any other form of property that is really the point.

FRENCH CJ:   But if you have, for example, let us suppose instead of a group of indigenous people there was some extreme cult occupying the area, apparently initially a legitimate group and they were occupying a reserve and they have got some sort of property rights associated with that.  And then in turns upon inquiry that there is widespread sexual and physical abuse occurring and appropriate authorities step in to do something about it. 

The situation is, in principle, indistinguishable, is it not, from the situation here? I mean, that is why I asked about the comparative in section 10. It is not the race. Race has no part to play in relation to the intervention that has occurred in this case. It is all to do with what is going on on the reserve in relation to children, is that not right? And then the question is would that be any different if the situation were occurring in the context of a non‑indigenous group?

MR McINTYRE: Yes, I mean that goes to the question of the purpose of the legislature enacting the legislation. What we say is that under section 10 of the Racial Discrimination Act one has to look not only at the purpose but also at the effect.  And the effect, we say, was a disproportionate effect in relation to the members of a racial group.  Now, it may well be that the purpose was a good one and the legislation was within the purpose.  The question then becomes if the purpose is to be put into place it must be done in the way which the Human Rights Commission suggests is proportionate, that is, it must be necessary.  There must be some inquiry as to whether that is the only way in which it can be done, therefore, it is necessary and it must be done in a way which is proportionate to the impact which it has upon the diminution of the rights.

What the legislation had the effect of doing was to remove all Aboriginal people, including the women and children whom it was purporting to protect, from the reserve in the exercise of that right which they previously had.  Now, it may well have been a laudable purpose and an appropriate intent, but it is the effect which we say is discriminatory on a racial basis, and that there was insufficient inquiry as to the proportionality of that effect.  There was effectively no inquiry as to whether there were others ways of achieving that objective than removing this ‑ ‑ ‑

FRENCH CJ:   Inquiry by whom?

MR McINTYRE:   Initially by the State itself, and then when the matter came before the Court, it was a matter which according to the authorities, the Court ought to conduct in order to determine ‑ ‑ ‑

FRENCH CJ:   The implication of section 10 does not depend upon the existence or non‑existence of an inquiry.

MR McINTYRE:   If one follows Gerhardy v Brown all one looks to for section 10 is whether there is an effect which is discriminatory in relation to the people of a particular race. We say that that was satisfied, there was an effect which was disproportionate in its effect upon people of a particular race; that is, it affected all the Aboriginal residents of that reserve, their rights of residency were removed by the operation of this legislation. So the effect was disproportionate, it fits within the primary applications of section 9 and section 10 as the High Court concluded in Gerhardy v Brown.

If this matter had been dealt with in accordance with Gerhardy v Brown that would have led the Full Court on to an inquiry as to whether it was a special measure, and then would have needed to consider the grounds of appeal relating to the way in which Justice Nicholson dealt with the question of special measure, but the Full Court never got to that because it seemed to have bypassed Gerhardy v Brown and gone onto the appropriate question of proportionality.  As I was going to take you to, Dr Sadurski points out that in international law there are effectively three types of levels of scrutiny when one comes to the question of proportionality.  At page 129 he says:

With respect to this test, there has been an important body of decisions and legal writings in the United States concerning the appropriate level of “scrutiny” to be applied to race‑conscious legislation (from the point of view of its conformity with the equal‑protection clause).  The doctrine, as it has developed recently, is that racial classification is “suspect” and is legitimate only if shown to be necessary to accomplish a “compelling” or an “overriding” state interest.  This suggests that “strict scrutiny” of such classifications entails:  (a) a requirement that the challenged classification be strictly relevant to the purpose, and that it be the least restrictive alternative available for the pursuit of that

purpose . . . and (b) a requirement that the purpose claimed by the state to justify the use of this classification be “compelling” or “overriding” and not just any legitimate state purpose –

Now, what the Court in this case has done is to look at “any legitimate state purpose”.  If you go to the bottom of that page he says that:

legal writers have argued –

for an intermediate level rather than the –

ordinary economic and social classification, when the courts ask only whether the classification is “rationally related” to a legitimate state purpose.

We say that in this case the Full Court adopted that third test, the rational relationship to a legitimate State purpose, which is level three of the three tests which Sadurski suggests are relevant.  And he is suggesting that if you are properly applying a law relating to discrimination you must apply one of the first two tests, either the strict scrutiny test or the intermediate scrutiny test and not the ordinary rational relationship to a legitimate State purpose test, which is the one which the Full Court applied in this case.  May it please the Court.

FRENCH CJ:   Thank you, Mr McIntyre.  We will not need to call on you, Mr Tannin. 

This case involves the application of sections 9 and 10 of the Racial Discrimination Act to a statutory intervention into the management of a reserve occupied by an Aboriginal community in the interests of children on the reserve.  In our opinion the decision of the Full Court of the Federal Court dismissing a challenge to that intervention is not attended by sufficient doubt to warrant the grant of special leave.

Special leave will be refused.

MR TANNIN:   May it please the Court, we seek costs.

FRENCH CJ:   Mr McIntyre, can you resist that order?

MR McINTYRE:   No, your Honour.

FRENCH CJ:   The applicant will pay the respondent’s costs of the application.

AT 12.20 PM THE MATTER WAS CONCLUDED