Reynolds v Tasmanian Heritage Council
[2011] TASSC 6
•25 February 2011
[2011] TASSC 6
COURT: SUPREME COURT OF TASMANIA
CITATION: Reynolds v Tasmanian Heritage Council [2011] TASSC 6
PARTIES: REYNOLDS, Annie
DAVEY, Maureen
v
TASMANIAN HERITAGE COUNCIL
ATTORNEY-GENERAL FOR TASMANIA
FILE NO/S: 626/2010
DELIVERED ON: 25 February 2011
DELIVERED AT: Hobart
HEARING DATE: 23 September 2010
JUDGMENT OF: Tennent J
CATCHWORDS:
Administrative law – Judicial review – Standing to institute proceedings – Particular cases.
Judicial Review Act 2001 (Tas), ss4, 7, 17, 18.
Australian Conservation Foundation Incorporated v The Commonwealth of Australia and Others (1980) 146 CLR 493; Griffith University v Tang (2005) 221 CLR 99, referred to.
Aust Dig Administrative Law [1027]
Constitutional Law – Operation and effect of the Commonwealth Constitution – Inconsistency of laws (Constitution, s109) – Particular cases – Discrimination - Racial Discrimination Act 1975 (Cth), s10 and Historic Cultural Heritage Act 1995 (Tas), s98.
Commonwealth of Australia Constitution Act ("the Constitution"), s109.
Racial Discrimination Act 1975 (Cth), s10.
Historic Cultural Heritage Act 1995 (Tas), ss3, 15, 16, 17, 18, 21, 98.
Gerhardy v Brown (1985) 159 CLR 70; Aurukun SC v Liquor Gaming and Racing (2010) 237 FLR 369, referred to.
Aust Dig Constitutional Law [376]
Human Rights – Discrimination – Generally – Effect of Historic Cultural Heritage Act 1995 (Tas), s98.
Aust Dig Human Rights [1]
REPRESENTATION:
Counsel:
Applicant: P Tree SC and P Herzfeld
Respondent: L Sealy SC and P Turner
Solicitors:
Applicant: FitzGerald and Browne
Respondent: Director of Public Prosecutions
Judgment Number: [2011] TASSC 6
Number of paragraphs: 41
Serial No 6/2011
File No 626/2010
ANNIE REYNOLDS and MAUREEN DAVEY v TASMANIAN HERITAGE COUNCIL and ATTORNEY-GENERAL FOR TASMANIA
REASONS FOR JUDGMENT TENNENT J
25 February 2011
On 27 June 2010, Annie Reynolds and Maureen Davey ("the applicants") applied, pursuant to the Judicial Review Act 2001 ("the JR Act"), s17, to review a decision of the Tasmanian Heritage Council ("the first respondent") made on 17 June 2010 to the effect that it did not have jurisdiction to enter the Lower Jordan River levee area ("the site") on the Tasmanian Heritage Register ("the register"). The applicants also sought a declaration that the Historic Cultural Heritage Act 1995 ("the Act"), s98, was invalid. A notice was given by the applicants pursuant to the Judiciary Act 1903, s78B, to the attorneys-general of the Commonwealth and each of the States and Territories to the effect that these proceedings may involve a matter arising under the Constitution or involving its interpretation. A notice of appearance was filed on behalf of the Attorney-General for the State of Tasmania ("the Attorney"). No other attorney sought to be heard. The first respondent filed a notice of submission.
The matter was listed for hearing on 23 September 2010. On 20 September, an interlocutory application was filed by which the Tasmanian Aboriginal Centre Inc ("the Centre") sought to be joined as an applicant in the proceedings. The logic behind the application was that notice had been given of a challenge to the standing of the applicants to bring their application, and it seems to have been felt that the same sort of challenge would not succeed in relation to the Centre as an applicant. It was agreed both the substantive and interlocutory applications would be heard together.
Background to the application
On 26 May 2010, the applicants nominated the site for entry on the register pursuant to the Act. On 17 June 2010, the first respondent advised the applicants that by virtue of the Act, s98, it did not have any jurisdiction to enter the site on the register. By letter dated 15 July, the first respondent gave reasons for that decision. The relevant portion of that letter provided as follows:
"In the opinion of the Heritage Council, the application and supporting documentation did not reveal that the Lower Jordan River levy area held historic cultural heritage significance on grounds other than its association with Aboriginal history and tradition and Aboriginal traditional use. Rather, the Heritage Council found, on the basis of the application and supporting documentation, that the area's only historic cultural heritage significance lies in its connection with Aboriginal history, tradition and traditional use. For that reason it was resolved that, by virtue of s98 of the Act, the Act had no application and consequently, the Heritage Council did not have any jurisdiction to enter the place in the Heritage Register."
Grounds of review
The grounds of review were stated as follows:
"1The decision of the Respondent involved an error of law (s17(2)(f)). The error of law is that the Respondent, having accepted the Lower Jordan River Levee area was a place of historic cultural significance within the meaning of the Historic Cultural Heritage Act 1995, concluded it had no jurisdiction to enter the place on the Register.
2.That the conduct of the Respondent, for the purposes of making a decision under Part 4 of the Historic Cultural Heritage Act for entry in the Tasmanian Heritage Register of the Lower Jordan River levy area involved the commission of an error of law in the course of the conduct (Judicial Review Act, s18(2)(f)(i)). The error of law is that the Respondent, having accepted the Lower Jordan River Levee area was a place of historic cultural significance within the meaning of the Historic Cultural Heritage Act 1995, concluded it had no jurisdiction to enter the place on the Register.
Particulars of conduct:
(a)The Respondent on 26 May 2010 received a request from the applicants that the Respondent list the Lower Jordan River levy area in the Tasmanian Heritage Register.
(b)the request referred to above was accompanied by a range of reports, maps and assessments.
(c) on 16 June 2010 the Respondent met with and heard from the applicants.
(d)by letter of 17 June the Respondent informed the applicants it did not have jurisdiction to enter the Lower Jordan River levy on the register."
Relevant provisions and scheme of the Act
The Act creates a regime whereby the first respondent is to maintain a register, and enter upon it a number of details. One category of such details is "any place provisionally entered under section 18(2)". Another is "any place entered on a permanent basis under section 21(2)". The Act, s17, provides that the first respondent, either on its own initiative or on application by "any person", may decide to enter a place on the register on a provisional basis if, in its opinion, that place meets any one or more of the required criteria outlined in s16. Section 17(2) places an obligation on an applicant to provide any information the first respondent might require to enable it to deal with an application, and imposes a penalty for non-compliance.
Section 16 lists the criteria to be considered by the first respondent. They are that a place:
-is important in demonstrating the evolution or pattern of Tasmania's history,
-demonstrates rare, uncommon or endangered aspects of Tasmania's heritage,
-has potential to yield information that will contribute to an understanding of Tasmania's history,
-is important as a representative in demonstrating the characteristics of a broader cultural class,
-is important in demonstrating a high degree of creative or technical achievement,
-has strong or special meaning for any group or community because of social, cultural or spiritual associations, or
-has a special association with the life or work of a person, a group or an organisation that was important in Tasmania's history.
If a place is provisionally entered on the register, the first respondent is obliged to give notice to the owner and the relevant planning authority of the entry and to advertise. Any person may then object to a possible permanent entry. There is a process set out by which any objections are dealt with and by which a decision is then made by the first respondent. Once a place is entered permanently on the register, the Act, s32, applies. That section provides:
"A person must not carry out any works in relation to a registered place or a place within a heritage area which may affect the historic cultural heritage significance of the place unless the works are approved by the Heritage Council".
The provision which is central to the argument in this case is s98. It provides:
"This Act does not apply to a place that is of historic cultural heritage significance only on the ground of its association with-
(a) Aboriginal history or tradition; or
(b) Aboriginal traditional use."
The term "historic cultural heritage significance" in relation to a place is defined to mean "significance to any group or community in relation to the archaeological, architectural, cultural, historical, scientific, social or technical value of the place". The words "history", "tradition" and "traditional use" are not defined.
Standing
Counsel for the Attorney raised a preliminary issue, and that was whether the applicants had standing to make an application under the JR Act. The two bases upon which counsel submitted the applicants did not have standing were that the applicants were not persons aggrieved by a decision of the first respondent, and that the decision sought to be challenged was not one made "under an enactment".
The JR Act, s17(1), provides that:
"A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to a decision."
Section 18 relates to the review of conduct relating to a decision, and also provides for a person aggrieved to make any application to review conduct. Section 7 relevantly defines a "person aggrieved" by a decision as "a person whose interests are adversely affected by the decision". That section also provides that a "person aggrieved" by conduct is taken to be a reference to "a person whose interests are, or would be, adversely affected by conduct ...". Section 4 defines a "decision to which this Act applies" as "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)".
Counsel for the Attorney summarised what flowed from an application to have a place provisionally entered on the register. He described the limited options available to the first respondent when an application was made. The first respondent at that point may do only the following:
-consider the application but decide not to enter the place provisionally on the register (either because it does not meet one of the criteria or otherwise),
-consider the application and decide to enter the place on the register provisionally, or
-decide, as it did here, that it has no capacity to deal with the application by reference to s98.
Counsel for the Attorney submitted that nothing flowed from what the first respondent did in this case. The applicants' position was no different before the decision by the first respondent than it was after. The applicants, he submitted, had no more or less entitlement than anyone else to make an application. Counsel also submitted that, while the applicants may have an interest in the significance of the site which was greater than others and which might be greater than a mere intellectual or emotional concern (taking the words from the judgment of Gibbs J in Australian Conservation Foundation Incorporated v The Commonwealth of Australia and Others (1980) 146 CLR 493 at 530), this did not matter. It could only matter if the decision defeated or damaged the interest the applicants did have. The decision did not do that and, therefore, the applicants were not persons aggrieved by any decision made by the first respondent.
The interest of the applicants in the site is obviously to protect it from the potential adverse effects of road works. There is probably little doubt that they are not the only people to have that interest. If an application by anyone to have the site entered provisionally onto the register were successful, it would begin a process which might ultimately see the site have the level of protection afforded by the Act, s32. That might further the interest identified. The Act specifically provides that "any person" may make an application. It does not require an applicant to have any special qualification or interest in the site the subject of an application. Even though the first respondent may not exercise a discretion to enter a site on the register provisionally in favour of an applicant, the Act still permits any person to make that initial application and thus at least start the process which might result in some protection for the site.
The position of the applicants is different from that of the Australian Conservation Foundation in the case referred to in [13]. There, the Foundation was not a party to any process which resulted in the decision it sought to impugn, save to the extent of making comments in respect of the proposal from which it resulted. The Foundation was seeking to uphold a general principle and to further its objects. In the present case, the applicants exercised a right available to them under the Act to make a particular application. Had that application been considered by the first respondent by reference to the s16 criteria, the first respondent may have decided to place the site on the register. It may not have. However, the decision made by the first respondent has the effect of preventing even a consideration of the applicants' application by reference to the s16 criteria and potentially the applicants obtaining for the site the protection afforded by s32. In those circumstances, I am of the view that their interests have been adversely affected by the decision of the first respondent such that they are persons aggrieved by that decision.
The second aspect of the submission by counsel for the Attorney was to the effect that the decision of the first respondent was not a decision made "under an enactment". Reference was made to a passage from Griffith University v Tang (2005) 221 CLR 99 at [89]. Their Honours Gummow, Callinan and Heydon JJ said:
"The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice."
There was no serious argument that the decision sought to be impugned was not one authorised by an enactment. Counsel's argument was directed towards the second matter identified in Tang. Counsel for the Attorney submitted that it was plain in the present case that the relevant part of the Act giving rise to the decision did not relevantly affect any existing right; nor, he submitted, would a decision to accept the application have conferred any rights. With respect, I disagree. The decision sought to be impugned was made in reliance upon the Act, s98. At the point that decision was made, the applicants had made an application for provisional entry of the site on the register. They would have had a quite legitimate expectation, since they had been given the right to make the application, and the Act provided for criteria by reference to which such an application would be considered, that the application would at least be considered by the first respondent by reference to those criteria. The application may have been refused by reference to those criteria, in which case, that may very well have been the end of it. However, the decision made by the first respondent meant that process of consideration by reference to the criteria was never even embarked upon.
In that context, since the applicants were prevented from even getting to what I might describe as first base in the long process which could have resulted in permanent entry on the register and the protection then afforded by s32, they have lost the capacity to pursue their interest. In all the circumstances, I am satisfied the applicants are persons aggrieved by the decision of the first respondent (and as a consequence by the conduct of the first respondent) and have standing to bring this application.
The applicants' case
The applicants argued their case in two parts. The first related to what I would describe as the constitutional issue, that is the argument that the Act, s98, is invalid, by reference to the Commonwealth of Australia Constitution Act ("the Constitution"), s109, because of an inconsistency between s98 and the Racial Discrimination Act 1975 (Cth) ("the RD Act"), s10. The second related to the asserted errors of law occurring in the application by the first respondent of the Act, s98.
Errors of law arising from the construction of the Act, s98
The argument mounted by counsel for the applicants in relation to the interpretation of the Act, s98, was convoluted. As I understand it, it was that the first respondent misinterpreted the section, and in applying an incorrect interpretation of the section to the facts before it, it made an error of law. The error identified was that the first respondent took the view that the legal meaning of the term "aboriginal history" encompassed all of the grounds of historic cultural heritage significance which applied to the site, in particular, archaeological value. Counsel for the applicants went to some lengths to interpret the Act, s98, by reference to dictionary definitions of words used in order to support that contention.
With respect, I am of the view that he has produced a rather tortured interpretation of the section. When interpreting the words of any legislation, regard must be had to the ordinary meaning of the words used. Further, an interpretation that promotes the purpose or object of an act is to be preferred to one which does not: Acts Interpretation Act 1931, s8A.
A plain reading of the opening words of s98 makes it clear that the section will not even need to be considered unless it has first been determined that the place under consideration comes within the definition of a place which has historic cultural heritage significance. That is, the place has "significance" to a group or community "in relation to archaeological, architectural, cultural, historical, scientific, social or technical value". The section only comes into play if it is then determined that the only reason the place has such significance is if it is associated with aboriginal history or tradition or aboriginal traditional use. There is no definition in the Act to explain what is meant by "aboriginal history", "aboriginal tradition", or "aboriginal traditional use".
It is clear from the reasons for decision provided by the first respondent that that is how the first respondent approached the matter because in the letter from its chairperson dated 15 July 2010, it said "that the area's only cultural heritage significance lies in its connection with Aboriginal history, tradition and traditional use." It seems clear that the view of the first respondent was that the only significance this site had of any value, whether it be for example archaeological, cultural, historical or social, was because of the connection to matters aboriginal. I am not satisfied that the first respondent's decision was made by reference to an incorrect interpretation of the legislation. The first respondent has formed a view of the material placed before it. That material is quite obviously focused on matters associated with the aboriginal race. The heading, for example, of Mr Paton's interim report is "Brighton By-Pass Aboriginal Test Excavations of the Jordan River Levee, CHMA 2010".
Insofar therefore as the applicants assert an error of law on the part of the first respondent, their application should fail.
The Constitutional issue
The declaration sought by the applicants in relation to this issue is that "s98 of the Historic Cultural Heritage Act is invalid by virtue of either or both s109 of the Constitution, or s10 of the Racial Discrimination Act, as being inconsistent with s10(1) of the Racial Discrimination Act". This part of the application involves two approaches, that is, one by reference to the Constitution, s109, and another by reference to the impact of the RD Act, s10(1) itself. The submissions of counsel for the applicants were in effect that it was unlikely to matter which path the Court travelled upon because both rendered the Act, s98, ineffective.
Chapter V (headed "The States") of the Constitution contains a number of provisions relating to State laws and their interaction with the Constitution. One of those, namely s109, provides as follows:
"Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. "
The RD Act, s10, provides as follows:
"Rights to equality before the law
(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 this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
(2)A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.
(3) Where a law contains a provision that:
(a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;
not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person."
Article 5 of the International Convention on the elimination of all forms of racial discrimination referred to in the RD Act, s10(1), opens with the following words:
"In compliance with the fundamental obligations laid down in article 2 of this Convention, States parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: …"
A number of rights are then listed. It is accepted that the RD Act, s10(1), protects, not only the rights listed in Article 5, but also human rights and freedoms generally. See Gerhardy v Brown (1985) 159 CLR 70, at 101, per Mason J, and Aurukun Shire Council v Liquor Gaming and Racing (2010) 237 FLR 369 at 387 - 389 per McMurdo P.
The RD Act, s10
To deal with the submissions of the parties as to the role of s10 in this matter, it is firstly necessary to determine just what s10 does. As Mason J said in Gerhardy (supra) at 94:
"Section 10 is not aimed at striking down a law which is discriminatory or is inconsistent with the Convention. Instead it seeks to ensure a right to equality before the law by providing that persons of the race discriminated against by a discriminatory law shall enjoy the same rights under that law as other persons."
His Honour went on to say at 98:
" … If racial discrimination arises under or by virtue of State law because the relevant State law merely omits to make enjoyment of the right universal, ie by failing to confer it on persons of a particular race, then s10 operates to confer that right on persons of that particular race. In this situation the section proceeds on the footing that the right which it confers is complementary to the right created by the State law. Because it exhibits no intention to occupy the field occupied by the positive provisions of State law to the exclusion of that law the provisions of the State law remain unaffected. "
Gerhardy's case involved a very different factual situation to that in the present case. It involved the prosecution of an accused (Brown), who belonged to a particular aboriginal group, for having entered an area without permission, which area had been granted to another group (the Pitjantjatjaras) for their exclusive use. The exclusive use arrangement was said to be a "special measure" and as such one which could not be challenged under s10. Ultimately the court accepted that. His Honour went on, at 98, to say:
"However, the discrimination alleged here arises, not from a mere omission on the part of the State Act to confer rights on persons who are not Pitjantjatjaras, but from the presence of s.19 which positively prohibits non-Pitjantjatjaras from entering the lands without the written permission of the body corporate. When racial discrimination proceeds from a prohibition in a State law directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race, by virtue of that State law, s10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race. This necessarily results in an inconsistency between s.10 and the prohibition contained in the State law.
…
Section 10 makes no reference to racial discrimination; nor does it make any reference, as s9(1) does, to the elements of the definition of 'racial discrimination' in art.1.1 of the Convention. Instead s10 is expressed to operate where persons of a particular race, colour or origin do not enjoy a right that is enjoyed by persons of another race, colour or origin, or do not enjoy that right to the same extent. Some question as to the validity of s10 might be thought to arise because it fails to follow the language of art.2 of the Convention. The exclusion of persons of a race, colour or origin from the enjoyment of a relevant right by reason of a law does not necessarily involve 'racial discrimination' in that it may not amount to a distinction, exclusion, restriction or preference 'which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise' of the right 'on an equal footing'. Consequently, s10 should be read in the light of the Convention as a provision which is directed to lack of enjoyment of a right arising by reason of a law whose purpose or effect is to create racial discrimination."
Having discussed s10 in the above manner he concluded, at 99, that:
"To bring this matter within s10 the respondent must establish: (1) that the Pitjantjatjaras are persons of a race, colour or national or ethnic origin; (2) that persons other than the Pitjantjatjaras are persons who fall within the class 'persons of a particular race, colour or national or ethnic origin'; (3) that by reason of s19 of the State Act all such persons do not enjoy the right of access which is given by s18 to Pitjantjatjaras; (4) that the exclusion of all such persons from enjoyment of the right of access to the lands arises by reason of statutory provisions whose purpose or effect is to create racial discrimination; (5) that this exclusion amounts to an exclusion from enjoyment of a human right or fundamental freedom or a right of a kind referred to in art.5 of the Convention; and (6) that s18 of the State Act of which it forms part, is not a special measure within the meaning of art.1.4 of the Convention."
The conclusions of Mason J provide a useful checklist of how s10 operates in a practical sense.
The obvious problem faced by the applicants is that s98 does not, on its face, create a situation where one particular racial or ethnic group is being denied a right enjoyed by another such group. It operates to prevent anyone, whatever their colour, race or creed, from seeking to have a place entered on the register if that place's only claim to significance is particular identified characteristics, those characteristics being its association with aboriginal history or tradition or aboriginal traditional use. Counsel for the applicants has submitted that s10 is not however limited by its wording. He submitted that if the practical operation of the law nonetheless has the effect of discriminating against aboriginal people, then s10 has effect in the same way as if that discrimination was patent on the face of the statute itself. He relied on remarks of Deane J in Mabo v Queensland (1988) 166 CLR 186 where his Honour said at 230:
"The second point to be made about s10 is that the section is not to be given a legalistic or narrow interpretation. As its opening words (If, by reason of …) make clear, it is concerned with the operation and effect of laws. In the context of the nature of the rights which it protects and of the provisions of the International Convention which it exists to implement, the section is to be construed as concerned not merely with matters of form but with matters of substance, that is to say, with the practical operation and effect of an impugned law."
Counsel for the applicants submitted that s98 had the effect of discriminating against aboriginal people because the operational effect of the section was to deny to every aboriginal person the opportunity to preserve their heritage by utilising the provisions of the Act. In identifying what it was said was the discrimination effected by s98, it must be presumed that counsel for the applicants was identifying the human right or fundamental freedom it is asserted persons from the aboriginal community were prevented from enjoying. Counsel for the applicants described the asserted right as the opportunity to preserve heritage. The question must be asked whether that is a human right or fundamental freedom as envisaged by the RD Act, s10.
In Aurukun Shire Council v Liquor Gaming and Racing (supra) at [136], [137] and [139] Keane JA said:
"[136] In applying s10 of the RDA one must first determine whether the right said to engage s10 of the RDA is, by virtue of its content, a manifestation of a right referred to in CERD or of a right akin to that right. In Gerhardy v Brown, [136] Mason J said:
'In deciding whether the right [conferred by the State law there in question] is a human right or fundamental freedom we encounter the ever present problem of defining or describing the concept of human rights. The expression 'human rights' is commonly used to denote the claim of each and every person to the enjoyment of rights and freedoms generally acknowledged as fundamental to his or her existence as a human being and as a free individual in society. The expression includes claims of individuals as members of a racial or ethnic group to equal treatment of the members of that group in common with other persons and to the protection and preservation of the cultural and spiritual heritage of that group. As a concept, human rights and fundamental freedoms are fundamentally different from specific or special rights in our domestic law which are enforceable by action in the courts against other individuals or against the State, the content of which is more precisely defined and understood. The primary difficulty is that of ascertaining the precise content of the relevant right or freedom. This is not a matter with which the Convention concerns itself.'
[137] As Mason J said in giving effect to the RDA and CERD '[t]he primary difficulty is that of ascertaining the precise content of the relevant right or freedom."[137] While 'there may be no universal or even general agreement on the content of [a] right', it remains necessary for the court to come to grips with the 'precise content of the relevant right or freedom' in order to determine whether it is such as to engage s10 of the RDA.
…
[139] Secondly, as is clear from the decisions of the High Court in Gerhardy v Brown, [139] Mabo v Queensland[140] and Western Australia v Ward, [141] the application of s10 requires the identification of a right enumerated in Article 5 of CERD or a right of that kind as expressly contemplated by s10(2) of the RDA. Once such a right has been identified, s10 of the RDA operates to ensure that it is enjoyed equally by all persons regardless of race. In this way s10 of the RDA creates, as its heading suggests, 'Rights to equality before the law'. Section 10 of the RDA is thus the Australian legislative statement of 'The right to equal treatment before ... all ... organs administering justice' referred to in Article 5(a) of CERD, and the rights to be 'equal before the law' and to 'effective protection against discrimination on any ground such as race' referred to in Article 26 of the ICCPR. Section 10 of the RDA is the statement as to how under Australian law the right of equal protection before the law is to be vindicated. That vindication requires the identification of a right in respect of which equal enjoyment is denied 'by reason of ... a law'".
Is the right identified by counsel for the applicants a human right or fundamental freedom (given to some but denied to others by the operation of s98) sufficient to engage the operation of s10? I am not satisfied that it is. The purpose of the Act is to promote the identification, assessment, protection and conservation of certain places. It does not endow individuals with rights to protect their cultural heritage. The practical effect of the Act, s98, is to prevent any person from applying to nominate a place for inclusion on the register by virtue only of its aboriginal connection. It is not the situation that the section prevents persons of aboriginal descent from nominating such places but gives that capacity to others. No person has that capacity. It cannot therefore be said that, by reason of section 98, one person enjoys a right that others do not. The section also does not prevent aboriginal persons from protecting places which are archaeologically, culturally, historically or socially significant for aboriginal people. It only restricts any person nominating a place where its only significance is its association with aboriginal history, tradition or traditional use.
Both counsel made reference to the Aboriginal Relics Act 1975 in the context of how it might assist with the conservation of things aboriginal. It is of note that the effect of that act is to protect aboriginal relics virtually automatically provided they are aged prior to 1876. If the interim conclusions drawn by Mr Paton prove to be accurate, relics referred to will very likely fall within the compass of that Act. As such, protection for the relics identified by Mr Paton may be assured.
I am of the view that the RD Act, s10, is not engaged in this matter, such as to create a right complementary to any in the Act or render the Act, s98, invalid.
The Constitution, s109
It follows from the conclusions I have drawn that there is no inconsistency between the RD Act, s10 and the Act, s98, such as to engage the operation of s109 either.
Conclusion
Having regard to the findings made, while I am satisfied that the applicants, whether they be the applicants only or the applicants and the Centre, had standing to seek review, I am not satisfied that any of the grounds of review have been made out, or that the applicants have satisfied the Court they are entitled to the declaration as to validity in respect of s98. I have not formally determined the interlocutory application of the Centre because, in my view, it was unnecessary to do so.
The application to review filed 27 July 2010 is dismissed.
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