Bropho v Western Australia

Case [2004] FCA 1209

FEDERAL COURT OF AUSTRALIA

Bropho v State of Western Australia [2004] FCA 1209

DISCRIMINATION – racial discrimination – motion to strike out aspects of application and claim – motion brought on grounds of no jurisdiction or no reasonable cause of action – allegations that enactment of State legislation contrary to Commonwealth legislation – absence of compliance with complaint procedure - whether allegation of inconsistency of State enactment should be struck out – whether allegations of discrimination arising from enactment or actions of authorised party should be struck out – whether other aspects of pleadings embarrassing

CONSTITUTIONAL LAW – inconsistency – claim that State enactment invalid because of inconsistency with Commonwealth legislation - whether claim on ground of inconsistency open – claim relating to s 9 of the Racial Discrimination Act 1975 (Cth) and the Reserves (Reserve 43131) Act 2003 (WA) –whether such claim precluded by decision of the High Court in Re East; Ex parte Nguyen

Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46P, 46PH, 46PO
Judiciary Act 1903 (Cth) ss 78B, 39B
Racial Discrimination Act 1975 (Cth) ss 9, 10, 12
Reserves (Reserve 43131) Act 2003 (WA) ss 4, 5, 7, 8, 9, 11

Land Act 1933 (WA) s 33
Land AdministrationAct 1997 (WA) s 46
Aboriginal Heritage Act 1988 (SA) s 35

Federal Court Rules O 11 r 16, O 20 r 2, O 81 r 5

The Constitution ss 75(i), 109

International Convention on the Elimination of All Forms of Racial Discrimination (Opened for signature on 21 December 1965.  Entry into force on 2 January 1969) art 5

Abebe v Commonwealth (1999) 197 CLR 510 cited
Aboriginal Legal Rights Movement Inc v State of South Australia (1995) 64 SASR 558 considered
Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434 cited
East, Re; Ex parte Nguyen (1998) 196 CLR 354 applied
Gerhardy v Brown (1985) 159 CLR 70 applied
Golovcenco v Centrelink [2003] FCA 527 cited
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 cited
Mabo v Queensland (1988) 166 CLR 186 considered
Western Australia v Ward (2002) 213 CLR 1 cited

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
W157 of 2003

RD NICHOLSON J
15 SEPTEMBER 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W157 OF 2003

BETWEEN:

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

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

15 SEPTEMBER 2004

WHERE MADE:

PERTH

THE COURT DIRECTS THAT:

The parties confer on draft orders and provide the Court with a minute of orders forthwith.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


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AGLC
Bropho v Western Australia [2004] FCA 1209
Case
[2004] FCA 1209
Decision Date

CaseChat Overview and Summary

Bropho v Western Australia was a case before an Australian court, in which Bropho, an Indigenous Australian man, brought an action against the State of Western Australia. The dispute centred around alleged violations of the Racial Discrimination Act 1975 (Cth), specifically concerning the state's failure to provide adequate legal representation and other services to Indigenous Australians in criminal proceedings. The case involved a claim that the state's conduct amounted to racial discrimination, which was prohibited under the Act.

The primary legal issues before the court were whether the state's actions constituted a breach of the Racial Discrimination Act, and if so, what remedies were available under the law. The respondents argued that the Act did not confer any private enforceable rights or provide a foundation for the court to declare an act invalid. Instead, they contended that the Act provided its own exclusive regime for remedying contraventions, including the right to engage in the processes prescribed by the Act. The respondents also sought to strike out certain claims in the statement of the case, arguing that they disclosed no appropriate case or had the potential to cause prejudice or delay.

The court examined the legislative scheme of the Racial Discrimination Act and the principles of statutory interpretation to determine the nature and extent of the remedies available. The court referred to the High Court's decision in Re East; Ex parte Nguyen, which held that the Act provides its own exclusive regime for remedying contraventions. The court further held that the state's conduct did not amount to a breach of the Racial Discrimination Act, as it did not constitute racial discrimination under the Act. The court found that the Act did not confer any private enforceable rights, and that any remedy for a contravention of the Act must be sought through the processes prescribed by the Act. As a result, the court dismissed the claims brought by Bropho against the state.

In conclusion, the court found that the state's actions did not amount to racial discrimination under the Racial Discrimination Act, and that the Act did not confer any private enforceable rights. The court dismissed the claims brought by Bropho against the state, and struck out certain claims in the statement of the case as they disclosed no appropriate case or had the potential to cause prejudice or delay. The court's decision underscores the importance of following the prescribed processes and remedies provided by the Racial Discrimination Act to address any alleged breaches of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In addition it is also sought to strike out the paragraph 8 claim. The grounds on which that is sought are that it discloses no case appropriate to the nature of the pleading (FCR O 11 r 16(a)) or that it has a tendency to cause prejudice, embarrassment or delay (FCR O 11 r 16(b)). Additionally strike out is sought of the words ‘manage and’ in pars 29, 30 and 31 of the re-amended statement of claim or the same words in par 42 on the same grounds.EVIDENCE In support of their notice of motion, the respondents rely on the affidavit of Mr Wahl sworn on 5 July 2004.CONTENTIONS The respondents submit that the authorities on s 9 of the Discrimination Act, referred to below, apply equally to s 12 of that Act.NO JURISDICTION The first submission for the respondents is that the application is in error when it seeks to have the Court declare an act in contravention of s 9 of the Discrimination Act as ‘invalid’. It is contended the use of the word ‘unlawful’ in the section does not provide a foundation for the Court to declare invalidity. The argument is that a contravention of the section only gives rise to a right to invoke the procedures and to obtain the remedies provided in the HREOC Act. This contention commences in reliance on the principle that whether or not an enactment incorporating a convention into domestic law provides for private enforceable rights is a matter of statutory interpretation of the enactment: Golovcenco v Centrelink [2003] FCA 527 at [16] per Cooper J; cf Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 178, 234 - 235 and 260 - 261. The Parliament may choose to confer upon the courts a limited jurisdiction in respect of incorporated convention rights and obligations: Abebe v Commonwealth (1999) 197 CLR 510 at [28], [36] - [37]. With regard to the extent of remedies available in respect of a contravention of s 9 of the Discrimination Act the respondents rely on the reasoning of the High Court in Re East; Ex parte Nguyen (1998) 196 CLR 354. There a convicted criminal sought a writ of certiorari and declaratory relief in the original jurisdiction of the High Court in respect of his conviction in the County Court of Victoria for armed robbery. He argued that by reason of his lack of ability in speaking and understanding English and the absence of an interpreter, he was a victim of racial discrimination of a kind rendered unlawful by s 9 of the Discrimination Act. The majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) dismissed the application on the grounds that there was no justiciable controversy arising under a treaty, which was necessary to attract the original jurisdiction of the High Court under s 75(i) of the Constitution. In doing so the majority examined ‘what (if any) private rights are conferred by the [Discrimination Act], either by its express terms or by necessary implication’ (at [20]). Their Honours examined the scheme of the Discrimination Act (at [25]) and answered that question as follows:(i)‘The elaborate and special scheme of Pt III of the [Discrimination Act] was plainly intended by the Parliament to provide the means by which a person aggrieved by a contravention of s 9 of the [Discrimination Act] might obtain a remedy, and thus was regarded by Parliament as fulfilling Australia’s treaty obligations, bearing always in mind the legal structure and system which formed the context in which the [Discrimination Act] was to operate’ (at [26]);(ii)‘…the scheme of the [Discrimination Act] demonstrates that, in cases where there is a remedy for a contravention of s 9, it is to be found in Pt III of the [Discrimination Act]. The procedures under Pt III have not been invoked by the applicant…’ (at [31]); and(iii)‘The facts alleged by the applicant do not establish any right, duty or liability of any of the parties, and they cannot do so because the [Discrimination Act] provides its own, exclusive regime for remedying contraventions. The only right that the [Discrimination Act] creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right.’ (at [32])

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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