The Aboriginal Legal Rights Movement Inc v the State of South Australia and Iris Eliza Stevens (No.2) No. SCGRG 95/1399 Judgment No. 5225 Number of Pages 7 Discrimination Legislation Administrative Law (1995)

[1995] SASC 5225

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), BOLLEN(2) and DEBELLE(3) JJ

CWDS
Discrimination legislation - Commonwealth legislation - Aboriginal HeritageAct 1988 (SA) s35 - whether racially discriminatory - whether a special measure within Racial Discrimination Act 1975 (Cwlth) s8 - whether exercise of power to authorise disclosure invalid. Aboriginal Heritage Act 1988 (SA) ss 13, 35; Racial Discrimination Act 1975 (Cwlth) ss 9, 10, referred to. Gerhardy v Brown (1985) 159 CLR 70, applied.

Administrative law - judicial review on grounds of ultra vires or defective exercise of powers - Aboriginal Heritage Act 1988 (SA) - requirement of consultation before power of Minister exercised - invalid exercise of power. Aboriginal Heritage Act 1988 (SA); Racial Discrimination Act 1975 (Cwlth), referred to.

HRNG ADELAIDE, 16 August 1995 #DATE 25:8:1995 #ADD 20:9:1995

Counsel for plaintiff:     Ms R Layton QC with Mr A Collett
   and Mr R Bradshaw

Solicitors for plaintiff:    Johnston Withers

Counsel for defendants:     Mr B besanko QC with Mr M Johns

Solicitors for defendants: Crown Solicitor (SA)

ORDER
Judgment for plaintiff.

JUDGE1 DOYLE CJ In my opinion judgment should be entered in favour of the plaintiff in this action. I would declare that the authorisation given by the South Australian Minister for Aboriginal Affairs on 7 July 1995 pursuant to s35 of the Aboriginal Heritage Act 1988 is invalid and ineffective. I would declare further that the authorisation given by the Minister on 27 July 1995 pursuant to s35 of the Act is invalid and ineffective.

2. What follows is a summary of my reasons for reaching this decision. However, I reserve the right to publish further reasons at a later time.

3. I will refer to the authorisation of 7 July 1995 as the first authorisation, and to the authorisation of 27 July 1995 as the second authorisation.

4. The plaintiff challenged the validity of subs(2) of s35 of the AboriginalHeritage Act ("the Act"). It was argued that the subsection was invalid because it was inconsistent with s9 or s10 of the Racial Discrimination Act ("the RDA"). I would reject this argument.

5. In my opinion the Act and s35 are each special measures to which paragraph 4 of Article 1 of the International Convention On The Elimination Of All Forms Of Racial Discrimination applies. I am prepared to so find notwithstanding the limited material placed before the Court on this issue. In my opinion the Act and s35 are directed towards the preservation of Aboriginal heritage and, by that means, the preservation of the distinctive Aboriginal culture. In my opinion the preservation of the distinctive culture of the indigenous people of a country is a measure which ensures to such indigenous people equal enjoyment or exercise of human rights and fundamental freedoms. It does this by providing the means to protect and preserve their culture. On this point I refer to Gerhardy v Brown (1985) 159 CLR 70 at 104 Mason J, at 113 Wilson J, and at 136 Brennan J. I refer generally to the judgments in that case in relation to the nature of a special measure. Because in my opinion the Act and s35 are a special measure, neither s9 nor s10 of the RDA apply to the provisions of the Act.

6. If I am wrong in that I would nevertheless conclude that neither s10 nor s9 have the effect of invalidating either the first authorisation or the second authorisation.

7. In my opinion subs(2) of s35 is not invalidated by s10 of the RDA. I consider that s35 has to be considered as a whole, and that it is not appropriate to consider the power conferred by subs(2) disengaged from subs(1). In my opinion taken as a whole s35 is a measure which is directed to the protection, subject to a qualification, of Aboriginal heritage. The protection is not absolute, but qualified, but it remains as a whole a provision which is directed to the better enjoyment by the Aboriginal race of their culture. The attempt to invalidate subs(2) by considering it in isolation fails. Taken as a whole s35 does not impair the enjoyment of any right or freedom of Aboriginal people.

8. If s10 has any impact on s35 as a whole, it is to invalidate the whole provision. Section 35 of the Act provides to persons of the Aboriginal race a right possibly not enjoyed by persons of other races. This might be a source of conflict with s10 of the RDA. On this point I refer generally to the reasoning in Gerhardy v Brown. But the plaintiff did not argue that s35 was invalid as a whole, and clearly did not do so because that would be self-defeating. The plaintiff's object was to maintain the prohibition on the divulging of information established by subs(1) of s35.

9. I proceed on the basis that s35 as a whole is a valid enactment despite this last mentioned aspect of its operation. No argument to the contrary was addressed to the Court.

10. The plaintiff argued separately that the grant of the first authorisation and of the second authorisation by the Minister was an act invalidated by s9 of the RDA.

11. Common sense suggests a short answer to this submission. If s35 is valid then the performing of the very sort of act which s35 envisages could hardly be invalid. To conclude that such an act was invalid would be to render s35 meaningless.

12. In my opinion the common sense answer is correct. In Gerhardy v Brown there is support for the view that if a law which is valid provides for the doing of an act which necessarily involves a distinction based on race, then the doer of that act does not in fact do an act involving a distinction. To put it a little differently, if the statute confers a power which does not give a choice to the person exercising the power to discriminate in doing so, the exercise of the power is not rendered unlawful by s9. If the exercise of the statutory power necessarily involves a distinction based on race, the person who exercises the power cannot be said to make such a distinction. On this point I refer to Gerhardy v Brown at 82 Gibbs CJ, at 93 Mason J and at 122 Brennan J.

13. Quite apart from that I am not satisfied that the grant of an authorisation has the purpose or effect described by s9 of the RDA. Subsection (1) of s35 of the Act makes it a criminal offence to divulge information in contravention of Aboriginal tradition. By this provision the State gives special protection to Aboriginal heritage. The grant of an authorisation does no more than remove that special protection. The grant of the authorisation does not of itself oblige or permit any person to divulge information. If the relevant person was subject to a contractual obligation not to do so or to an obligation of confidentiality, it is my opinion that the grant of an authorisation would not remove that restriction or obligation. All that the authorisation does is to remove the criminal sanction. It leaves the question of disclosure where it would be but for the creation of the criminal offence. If the removal of the prohibition imposed by subs(1) through the grant of an authorisation under subs(2) was unlawful, then it would seem to follow that so would be the repeal of s35, assuming the repeal of a law could be regarded as a relevant act.

14. I therefore conclude that s9 does not invalidate the first authorisation or the second authorisation.

15. In my opinion the Minister did not carry out the process of consultation required by s13 of the Act before granting the authorisation. I have no doubt that an authorisation will be invalid if the required consultation does not take place.

16. In deciding whether the required consultation has taken place the function of the Court is not to impose its own view of what is appropriate by way of consultation in a particular case. The question for the Court is whether the process followed by the Minister amounts to compliance with the statutory requirements. In the present case it is my opinion that it does not, and this applies to both authorisations.

17. The first authorisation on which the Minister consulted, and which he proposed to make, was an authorisation in respect of any information of the kind referred to in s35 of the Act. It was not limited to information about the "women's business" the subject of the Royal Commission nor to information related to the area of Hindmarsh Island nor to information governed by Ngarrindjeri tradition. The authorisation was very wide. There is a wide range of Aboriginal people who might have an interest in such an authorisation, were they to understand its width. Nor does the authorisation suggest any differentiation in treatment of different types of information nor any differentiation in terms of who is authorised to make disclosure. By implication, all of these matters are left to the control of the Royal Commissioner. In my opinion leaving these matters to the decision of the Royal Commissioner is not fatal to validity, but it is relevant to the question of the time which should be allowed for consultation. In my opinion it was necessary for the Minister to allow adequate time for the persons consulted to consider the implications of the proposed very wide authorisation, to consult with other Aboriginal persons if they saw fit and to seek further information from the Minister. The fact that few if any showed an interest in obtaining further information is not in my opinion significant. The manner in which the consultation took place suggested that all that the Minister envisaged was a more or less immediate response expressing a view one way or the other on the issue of the authorisation. No time was allowed for consideration of or discussion about details. There was no suggestion that details of the proposed disclosure were a matter for consultation. No meetings took place with the Minister or his officers. Nor can it be said that a wide range or Aboriginal persons was consulted, when one bears in mind the width of the authorisation. Of the three Committees consulted only one responded, and the response of that Committee was after the deadline. The evidence before the Court suggests quite strongly that the time allowed for consultation was inadequate.

18. Although the second authorisation was in a sense consequential upon the first, it was equally wide in terms of the information with which it dealt and, significantly, it authorised disclosure to a wide range of people including, for example, any person permitted to be present at a hearing of the Royal Commission. Once again there was no real opportunity for persons consulted to consider the implications of this and to make a reasoned response differentiating between the categories of persons to whom authorisation was disclosed. On this point it is relevant to note that the Minister's letter of consultation provided very little explanation of the significance of the disclosure which was authorised. Nor did the Minister's letter explain the significance of leaving it to the Royal Commissioner to determine whether there should be any and what restrictions upon persons to whom disclosure was authorised. Clause 8 of the second authorisation indicated that the Royal Commissioner could exercise controls, but in my opinion it is likely that many readers of the consultation letter would have failed to appreciate that what was envisaged was an extremely wide disclosure subject only to such restrictions as the Commissioner might impose.

19. In the light of these matters I conclude that in relation to each authorisation the time allowed for consultation was inadequate and that it cannot be said that the Minister took all reasonable steps to consult with the relevant persons.

20. I reject the argument that the Minister exercised his power to grant an authorisation for an improper purpose. In my opinion an authorisation granted for the purposes of the Royal Commission is granted for a permissible purpose. In my opinion the permissible purposes under s35(2) are not restricted to the protection of Aboriginal heritage.

21. I reject the argument that the form of the authorisation was invalid because it did not specify each person to whom information might be divulged. In my opinion subs(2) of s35 envisages an authorisation in respect of information which is identified and not only in respect of identified persons. It follows that in my opinion there was no unlawful delegation by the Minister of his powers in respect of authorisations. In particular, an authorisation for disclosure to persons present at a hearing does not involve, in my opinion, an impermissible delegation of the Minister's power.

22. It was separately argued that the authorisations were invalid because they were an unreasonable exercise of the power. It is not clear if Australian law has adopted as a separate ground of invalidity the test of unreasonableness. The width of each authorisation is troubling. I have referred already to my opinion as to the scope of the authorisations.

23. Whether or not it can be said that the authorisations are unreasonable, it is my opinion that s35 does not provide for an authorisation of the type granted by the Minister. Neither the first authorisation nor the second authorisation identifies the information which may be divulged. It does not identify the information on the basis that it relates to an identified Aboriginal site, object or remains or on the basis that it relates to any identified aspect of Aboriginal tradition. It does not identify the information by reference to its source, such as a particular report or a particular collection of materials or a particular person or group of persons. It does not even identify the information by its relevance to a particular subject matter, except insofar as by implication one might conclude that the information must be relevant, or regarded by the Royal Commissioner, as relevant to the subject matter of her inquiry.

24. In my opinion s35 envisages an authorisation which identifies more clearly than this the information which may be disclosed. In my opinion it is not necessary for the identification to be particularly precise, but in my opinion the first and second authorisations are defective for lack of adequate identification of their subject matter.

25. I reject the other attacks upon the validity of the authorisations.

26. My conclusion is that both authorisations are invalid because the process of consultation required by s13 of the Act was not followed. They are also invalid because of a failure to identify adequately the information the disclosure of which is authorised.

JUDGE2 BOLLEN J I agree that both authorisations are invalid. I found on failure by the Minister to consult as required by s13 of the Aboriginal Heritage Act. On this issue I agree with the Chief Justice. I say nothing about identification of information which may be divulged. On each other issue I agree with the Chief Justice.

JUDGE3 DEBELLE J I agree with the substance of the reasons of the Chief Justice and with his conclusion that s35(2) of the Aboriginal Heritage Act 1988 is not rendered invalid by the Racial Discrimination Act 1975 (Cth) and that the authorisations granted by the Minister do not constitute an act of discrimination contrary to the Racial Discrimination Act. I agree too that both authorisations are invalid because the process followed by the Minister in making the authorisations did not satisfy the requirement for reasonable consultation provided in s13 of the Aboriginal Heritage Act. I reserve for further consideration the question whether the authorisations are invalid either because they are expressed in terms that are too wide or because they are defective for lack of adequate identification of their subject matter.

2. The requirement that the Minister take all reasonable steps to consult does not necessarily mean that the process of consultation should occupy a long period of time. What is an appropriate length of time for the consultation process will vary according to the circumstances of each particular case. Those circumstances may include the nature of the determination or authorisation which the Minister proposes to make or the urgency of the matter. However, even if there is a degree of urgency, the Minister is, nevertheless, under a statutory obligation to consult. The nature of the authorisation or determination and the urgency may, according to circumstances, require prompt consultation but the urgency does not relieve the Minister of the obligation to engage in reasonable consultation. While the imminence of the hearing of the Royal Commission and the necessity for the Royal Commissioner and the counsel assisting her to be able to get full instructions called for a relative degree of expedition, it did not justify the very limited time allowed by the Minister for consultation in respect of either authorisation.

3. It must be emphasised that s35 only prohibits the divulging of information in contravention of Aboriginal tradition. Speaking generally, the information which Aboriginal customary law and tradition prescribes should not be publicly disclosed falls under the heading of sacred or secret business. There is a good deal of Aboriginal customary law and tradition which is not sacred or secret business and which, with the knowledge and consent of Aboriginal people, is in the public domain. There is also a considerable amount of anthropological and other like material which can be examined without in any respect contravening Aboriginal law and tradition. In addition, there was a good deal of other information concerning facts pertaining to this inquiry which could have been examined by the Royal Commissioner and counsel assisting her without the necessity for an authorisation under s35. I refer, for example, to the evidence of allegations of fabrication and the evidence relating to the circumstances in which some allegations of fabrication were later withdrawn. There was in short a good deal of information and other material relevant to the inquiry which could have been examined by the Royal Commissioner and counsel assisting her without the necessity for an authorisation to be made under s35. Similarly, a number of witnesses could be spoken to without such an authorisation. The authorisation was required only for that information, material or other evidence which was secret and could not be disclosed without contravening Aboriginal law and tradition.

4. Given the equitable nature of the relief which the plaintiff seeks, the Court had a discretion whether to grant the declaration that the Minister had not complied with the terms of s13 of the Aboriginal Heritage Act. In this case, the Minister was faced with two competing interest groups within the Ngarrindjeri nation. Some agreed with the proposed authorisation. Others opposed it. Given the nature of the dispute, it was most unlikely that the process of consultation would have resolved that conflict. Those views which were expressed to the Minister were simply in favour of or in opposition to the proposed authorisation. When making the authorisations, the Minister was not bound to accept the advice he received in the process of consultation. He is required to accept the views expressed to him only in the circumstances provided in s13(2) of the Aboriginal Heritage Act. Those are factors which might have led the Court to exercise its discretion and refuse the declarations sought. However, notwithstanding the conflict of views which existed, a reasonable time for consultation might have enabled others to make suggestions as to the width of the proposed authorisations and as to the extent to which, if at all, there should be any limitations upon the persons to whom the information or some of the information should be disclosed. In my view, these latter factors are of such weight that I would exercise my discretion in favour of the conclusion that this Court should declare that both authorisations are invalid.

5. I reserve the right to supplement these reasons.