| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : DOEPGEN and MUGARINYA COMMUNITY ASSOCIATION INC [No 2] [2013] WASAT 67 MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : 29 AND 30 APRIL 2013 DELIVERED : 14 MAY 2013 FILE NO/S : EOA 34 of 2012 BETWEEN : MONIKA DOEPGEN Applicant
AND
MUGARINYA COMMUNITY ASSOCIATION INC [No 2]
Respondent
Catchwords: Equal opportunity - Race discrimination - Access to land reserved for use and benefits of Aboriginal people - Requirement to pay for access imposed on nonAboriginal people but not Aboriginal people - Whether condition of access unlawful discrimination - Whether condition rendered lawful by s 51 of the Equal Opportunity Act 1984 (WA) Legislation: Aboriginal Affairs Planning Authority Act 1972 (WA), s 13(1), s 23(b), s 24, s 27, s 31
(Page 2)
Aboriginal Affairs Planning Authority Act Regulations 1972 (WA), reg 8
Aboriginal Communities Act 1979 (WA)
Equal Opportunity Act 1984 (WA), s 36, s 45, s 51
Land Act 1933 (WA), s 29 Result: Application dismissed
Summary of Tribunal's decision: The applicant sought access to an Aboriginal reserve for the purpose of prospecting. The reserve was controlled by the respondent whose bylaws permitted it to impose conditions on access to the reserve on nonAboriginal people but not on Aboriginal people. The respondent proposed that the applicant could have access to the land on condition that she paid an annual fee of $25,000.
The applicant complained that the imposition of the fee constituted unlawful discrimination on the ground of race. The respondent contended that, although discriminatory, the condition was not unlawful by reason of s 51 of the Equal Opportunity Act 1984 (WA) which renders lawful acts a purpose of which is to achieve equal opportunities for persons of a particular race, or to meet the special needs of persons of a particular race.
The Tribunal examined the statutory context in which the condition came to be imposed, and the purpose to which the fee for access would be applied. It concluded that the imposition of the fee fell within s 51 and accordingly determined that the applicant's complaint should be dismissed.
Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr AJ Power
Solicitors:
Applicant : N/A
Respondent : Hammond Legal
(Page 3)
Case(s) referred to in decision(s):
Gerhardy v Brown (1985) 159 CLR 70
(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The applicant, Ms Monika Doepgen, is a prospector. She wants to prospect on Reserve 31427 (the Reserved land). The Reserved land is known as the 'Yandeyarra Reserve' and is situated 140 kilometres south east of Port Headland. It is Crown land reserved for the use and benefit of Aboriginal inhabitants, and is leased to the respondent, the Mugarinya Community Association Inc (MCA). MCA is an incorporated Aboriginal community under the Aboriginal Communities Act 1979 (WA) (AC Act). Under the AC Act, the council of MCA is empowered to make bylaws, and has done so. One of those bylaws prohibits entry on to the Reserved land by persons who are not recognised as of Aboriginal descent, but empowers MCA to permit access to nonAboriginal people subject to 'such terms or conditions as the council sees fit'. 2 When Ms Doepgen sought permission to enter the Reserved land, she was told that she could do so on condition that she pay a fee of $25,000. Noting that the condition requiring payment was sought to be imposed because she is not a person of Aboriginal descent, she complained that the requirement to pay an access fee was unlawful discrimination by reason of s 45 of the Equal Opportunity Act 1984 (WA) (EO Act) when read with s 36 of the EO Act. 3 There is no issue in this case that the requirement for a nonAboriginal person to pay a fee for entry to the land, which MCA does not, and indeed cannot, impose on a person of Aboriginal descent, is discriminatory in the sense identified by s 36 of the EO Act. That section provides that a person discriminates against another if, on the ground of the race of the aggrieved person, the discriminator treats the aggrieved person less favourably than in the same circumstances, the discriminator would treat a person of a different race. 4 Section 45 of the EO Act makes discrimination on the ground of race unlawful where the discriminator discriminates in the terms upon which it is prepared to allow the aggrieved person access to any place. 5 Notwithstanding those provisions, MCA contends that, by reason of s 51 of the EO Act, its action is not unlawful. That section provides: (Page 5)
(a) to ensure that persons of a particular race have equal opportunities with other persons in circumstances in relation to which provision is made by this Act; or (b) to afford persons of a particular race access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare, or any ancillary benefits. 6 The issue for determination in this case is whether the conduct of MCA, in imposing upon Ms Doepgen the requirement to pay $25,000 in order to access the Reserved land, is not unlawful because it comes within s 51 of the EO Act. 7 To determine that issue, it is necessary to understand the legislative context in which the condition comes to be imposed.
Legislative background 8 The Reserved land was reserved for the use and benefit of Aboriginal inhabitants under s 29 of the Land Act 1933 (WA) in 1972. By force of s 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) (AAPA Act), the land is vested in the Aboriginal Planning Affairs Authority, a body established by the AAPA Act (Authority). 9 The long title to the AAPA Act reads as follows: An Act to make provision for the establishment of an Aboriginal Affairs Planning Authority and an Aboriginal Advisory Council for the purpose of providing consultative and other services and for the economic, social and cultural advancement of persons of Aboriginal descent in Western Australia, to repeal the Native Welfare Act 1963, and for incidental and other purposes. 10 The AAPA Act establishes a body corporate known as the Aboriginal Lands Trust (ALT). Amongst the functions of the ALT is 'to acquire and hold land, whether in fee simple or otherwise, and to use and manage that land for the benefit of persons of Aboriginal descent' (AAPA Act s 23(b)). By a proclamation published in the Government Gazette on 23 March 1973, pursuant to s 24 of the AAPA Act, the AAPA placed the Reserved land under the care and control of the ALT. 11 Section 31 of the AAPA Act makes it an offence for a person to enter or remain on Reserved land unless they are a person of Aboriginal descent or one of certain other officials specifically mentioned. (Page 6)
12 The statutory functions of the Authority are found in s 13(1) of the AAPA Act, which provides as follows: (1) The functions of the Authority are to - (a) provide for consultation with persons of Aboriginal descent; (b) recognise and support as may be necessary the traditional Aboriginal culture; (c) promote opportunity for the involvement of persons of Aboriginal descent in the affairs of the community, and promote the involvement of all sectors of the community in the advancement of Aboriginal affairs; (d) foster the involvement of persons of Aboriginal descent in their own enterprises in all aspects of commerce, industry and production, including agriculture; (e) provide consultative, planning and advisory services in relation to the economic, social and cultural activities of persons of Aboriginal descent, and advise on the adequacy, implementation and co-ordination of services provided or to be provided from other sources; (f) make available such services as may be necessary to promote the effective control and management of land held in trust by or for persons of Aboriginal descent; and (g) generally to take, instigate or support such action as is necessary to promote the economic, social and cultural advancement of persons of Aboriginal descent in Western Australia, and to that end to apportion, apply or distribute the moneys available to it. 13 By a lease dated 1 March 1988 the ALT leased the Reserved land to MCA. The lease contained a covenant by MCA to use and manage the land in accord with the wishes of the Aboriginal inhabitants of the land and the traditional custodians of the land for the benefit of persons of Aboriginal descent. 14 Regulation 8 of the Aboriginal Affairs Planning Authority Act Regulations 1972 (WA) requires an application to the Minister for (Page 7)
permission to enter or remain within the boundaries of a reserve. The regulation requires the Minister to consult with the ALT before granting permission to a person to enter or remain within the boundaries of a reserve. 15 The constitution and rules of MCA provide that the objects for which Mugarinya is formed are as follows: The objects for which the Association is formed are: - To provide direct relief from poverty, sickness, suffering, destitution, misfortune, distress and helplessness to all Aboriginals in the Community without discrimination and to include but without limiting the generality of the above, the following: - (a) To provide adequate education, vocational training, health services, employment and housing for the Community. (b) To achieve the total self support of the Community by the development of viable economic projects and industries. (c) To promote the overall community development of the Community. (d) To assist and encourage the Community to develop an effective system of self government upon its own lands. (e) To assist and encourage the individual members of the Community to preserve and renew their traditional culture. (f) To foster mutual trust and friendly relationships between the Community and the community at large. 16 Under the AC Act, the council of the MCA is empowered to make bylaws relating to its community lands with respect to the prohibition or regulation of the admission of persons, vehicles, and animals to the community lands or a part of the community lands. 17 As mentioned above, bylaws have been made which empower the MCA to grant permission to enter the Reserved land subject to such conditions as it thinks fit.
Does s 51 of the EO Act apply? 18 The Tribunal heard evidence from Mr Sai Lim, the Chief Executive Officer of MCA, and Mr Graham Coppin, MCA's current Chairman. They gave evidence as to the state of housing, health and recreational facilities on the Reserved land. They explained that the annual access fee (Page 8)
of $25,000 imposed on nonAboriginal persons is designed to be paid into the general funds of MCA which are necessarily expended in accordance with the objects of MCA. They explained particular needs in relation to housing, education and health to which funds might be applied. It is clear that funds raised by the imposition of a fee for access are not specifically earmarked for, or traceable to, a particular use. They are simply merged with the general operating funds of the community. Expenditure of the funds is, however, restricted to use only for the achievement of the objects of MCA. 19 In my view, the imposition of a condition requiring payment of a fee for access to the reserve land is not unlawful by reason of s 51 of the EO Act, for the reasons which follow. 20 The imposition of the condition must be seen in its context. It is part of a regime which gives effective control over the Reserved land to MCA. The reserving and leasing of land to Aboriginal communities is clearly designed to enhance the economic, social and cultural advancement of Aboriginal persons. It undoubtedly recognises the significance of country to Aboriginal persons. Giving control of land, including the right to control access to land, is part and parcel of that objective. 21 It can be accepted that the fee of $25,000 asked for as a condition of access is a very significant impost on Ms Doepgen, who is apparently dependent for her modest income, on prospecting. I am prepared to assume that, in practical terms, it effectively prohibits her from entering the land, since it would not be viable for her to pay that amount for access merely for the purpose of assessing whether or not she wished to peg land for the purpose of obtaining a mining tenement. For present purposes, it is not, however, the amount sought to be raised, that is of importance. Any condition of entry which might be imposed upon a nonAboriginal person, but not on an Aboriginal person, would amount to discrimination as defined in s 36 of the EO Act, and (but for s 51) would be unlawful by reason of s 45. The question is, therefore, whether any condition requiring payment of a fee imposed upon nonAboriginal persons, but not upon Aboriginal persons, is justified by s 51 of the EO Act. 22 Section 51(a) of the EO Act renders lawful an act, a purpose of which is to ensure that persons of a particular race have equal opportunities with other persons in circumstances in relation to which provision is made by the EO Act. The circumstances in which provision is made by the act include employment, education, and access to places - see s 37, s 44, s 45, s 49A, and s 49B of the EO Act. (Page 9)
23 Section 51(b) of the EO Act renders lawful an act a purpose of which is to afford persons of a particular race access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare, or an ancillary benefits. 24 It can be noted that, in order for s 51 to apply, the act in question requires only that 'a purpose' of the act is that described in para (a) or para (b) of the section. That purpose does not need to be the only purpose. 25 In assessing whether s 51 applies, it is not the function of the Tribunal to enquire whether or not the purpose is likely to be achieved by the act in question. It is the intention of the person doing the act which is to be examined. 26 Where s 51(a) speaks of ensuring persons of a particular race have equal opportunities with other persons, it is referring to equal opportunities in fact, and not in form. That distinction was discussed by Brennan J in Gerhardy v Brown (1985) 159 CLR 70 at 128 where his Honour said: But it has long been recognized that formal equality before the law is insufficient to eliminate all forms of racial discrimination. In its Advisory Opinion on Minority Schools in Albania (34), the Permanent Court of International Justice noted the need for equality in fact as well as in law, saying: 27 His Honour continued (at 130): A legally required distinction, exclusion, restriction or preference based on race nullifies or impairs formal equality in the enjoyment of human rights and fundamental freedoms, but it may advance effective and genuine equality. In that event, it wears the aspect of a special measure calculated to eliminate inequality infact. 28 MCA tendered in evidence a series of documents designed to support a conclusion that remote Aboriginal communities in Australia, and the Mugarinya community in particular, enjoy a position of relative (Page 10)
disadvantage in the areas of employment, education, training and health compared to the wider Australian community. That is a proposition so notorious that it hardly needs evidence. I am satisfied, from those documents, and from the evidence of Mr Coppin and Mr Lim, that the Mugarinya community at the Yanderyarra Reserve does have special needs in relation to employment, education, training and welfare. 29 I am also satisfied that the mechanism of giving control of the Reserved land to MCA through its lease from the ALT, against the background of the nature and purpose of the reservation, and the enactment of bylaws permitting different treatment between Aboriginal and nonAboriginal people in respect to access to the land, are all steps designed to achieve equal opportunities in fact for Aboriginal people in relation to employment, education and access to their traditional lands, and to enable Aboriginal people access to opportunities to meet their special needs in relation to employment, education, training and welfare. 30 The applicant sought to argue that the Mugarinya community was no longer in a state of relative disadvantage as against the balance of the Australian population. She called for production of the accounts of MCA which were produced at the hearing by MCA's auditor, Mr Jesper Sentow, and its accountant, Mr Sebastiano Galati. Apart from some crossexamination to the effect that, if depreciation were not taken into account, MCA would have had a cash surplus in each of the years from 2007 to 2012 (being the years for which accounts were produced) and some questions directed to the significant assets of MCA, the applicant put forward no arguments to develop the proposition that the accounts demonstrated an absence of disadvantage to the community. 31 It may be that the applicant's case was based upon the proposition that, because of the extent of government funding for different specific purposes, the imposition of an access fee is not necessary to enable MCA to address its various needs in the relevant areas. If that was the conclusion which the applicant sought to have the Tribunal draw, it is not a conclusion open to the Tribunal. There is no basis to reject the evidence of Mr Lim and Mr Coppin, supported as it was by the evidence of Mr Galati, to the effect that there remain real needs to be addressed within the community, and that there are insufficient funds to address all of those needs in the way which MCA would like. The copies of various pages from MCA's website which paint a positive picture of some of the activities and facilities at Yandeyarra do not provide a basis to reject the evidence of Mr Coppin or Mr Lim as to the current needs of the community. (Page 11)
32 Some of the questions put to witnesses in crossexamination appeared to be designed to have the Tribunal reach a conclusion that the assets and affairs of the community could have been managed in a different way, and resources used differently, so as to alleviate some of the problems which had been identified by the witnesses. As I indicated to the applicant at the hearing, that suggestion is not to the point. The relevant question for the Tribunal is whether the imposition of the access fee was undertaken for a purpose of the type described in s 51 of the EO Act. Whether or not, if things had been done differently by MCA, there would have been a need to seek to achieve that purpose does not inform the answer to the relevant question. 33 It was asserted by MCA that the condition requiring an access fee of $25,000 was applied to any nonAboriginal person or organisation seeking access to the land for mining related purposes. The evidence as to the number of times, and by whom, that fee had been paid was, at best, confusing. Whilst Mr Lim gave evidence that the imposition of the fee was 'a standardised approach' which had been utilised since approximately 2005, he gave only one specific example of an agreement to pay the fee in February 2012. The impression conveyed by his witness statement that the access fee had been imposed regularly and routinely was not borne out by his oral evidence. The unconvincing nature of that evidence does not, however, bear on the conclusion which I have reached. It does not, in the end, matter how often the fee may have been imposed. The question is whether the requirement, as it was imposed on Ms Doepgen, was imposed for a purpose of the type described in s 51 of the EO Act. I am satisfied that it was.
Conclusion 34 For the foregoing reasons, I am of the view that the requirement imposed upon Ms Doepgen to pay an access fee of $25,000 per annum did not amount to unlawful discrimination for the purposes of the EO Act, but rather was rendered lawful by virtue of s 51 of the EO Act.
Orders 35 The application is dismissed. I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal. (Page 12)
|