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)

In The Aboriginal Legal Rights Movement Inc v the State of South Australia and Iris Eliza Stevens, the Full Court of the Supreme Court of South Australia was tasked with determining the validity of authorisations issued by the South Australian Minister for Aboriginal Affairs under Section 35 of the Aboriginal Heritage Act 1988. These authorisations allowed the disclosure of information that was otherwise protected under the Act, due to its significance under Aboriginal tradition. The plaintiff argued that the authorisations were invalid on multiple grounds, including that they constituted racial discrimination in violation of the Racial Discrimination Act 1975 and were an invalid exercise of power under the Aboriginal Heritage Act.

The court first addressed whether Section 35 of the Aboriginal Heritage Act was itself racially discriminatory. The court held that the Act and Section 35 constituted special measures within the meaning of international law, aimed at preserving Aboriginal culture and heritage. Therefore, the Act was not invalid under the Racial Discrimination Act. The court further determined that the authorisations granted by the Minister were not acts of racial discrimination as they were permitted by a valid legislative provision.

However, the court found that the authorisations were invalid due to procedural defects. Specifically, the Minister failed to adequately consult with relevant Aboriginal groups as required by Section 13 of the Aboriginal Heritage Act. The court held that the consultation process must be reasonable and allow sufficient time for interested parties to provide input, which was not the case here. Additionally, the authorisations did not sufficiently identify the specific information that could be disclosed, which was another ground for invalidating the authorisations.

The Full Court unanimously agreed that the authorisations were invalid due to the failure to adequately consult and for the lack of adequate identification of the information to be disclosed. The court granted the declarations sought by the plaintiff, rendering the authorisations invalid and ineffective.