Bropho v State of Western Australia [2008] FCAFC 100 (6 June 2008)

Last Updated: 11 June 2008

FEDERAL COURT OF AUSTRALIA

Bropho v State of Western Australia [2008] FCAFC 100

RACIAL DISCRIMINATION – reserve for the use and benefit of aboriginal inhabitants – vested in aboriginal corporation – vesting revoked – land area of reserve increased and reserve re-vested in the same corporation –vesting transmitted to 1998 management order by legislation – alleged misconduct on the reserve – public inquiries into such conduct – 2002 management order replaces 1998 order – alleged continuance of misconduct on reserve – safety of women and children said to be at issue – enactment of Reserves Act purporting to revoke 2002 management order and place care, control and management of the reserve in the Aboriginal Affairs Planning Authority – whether property rights are absolute in nature – whether property rights can be modified or removed in the public interest - whether the primary judge erred in finding that there was no breach of s 9 or s 10 of the Racial Discrimination Act 1975 (Cth)


WORDS AND PHRASES – "based on", "by reason of", "on the ground of"

Federal Court of Australia Act 1976 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Racial Discrimination Act 1975 (Cth) ss 9, 10, 12
Land Act 1933 (WA) ss 29, 33, 34B, 37
Land Administration Act 1997 (WA) ss 3, 46, 50
Reserves (Reserve 43131) Act 2003 (WA) ss 4, 5, 7, 8, 9, 10, 11

Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 cited
Bropho v State of Western Australia [2007] FCA 519 cited
Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 cited
Mabo v Queensland [No 1] [1988] HCA 69; (1988) 166 CLR 186 cited
Ward v Western Australia [2002] HCA 28; (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 & ORS
WAD 90 OF 2007

RYAN, MOORE AND TAMBERLIN JJ
6 JUNE 2008
SYDNEY (HEARD IN PERTH)

THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 90 OF 2007

BETWEEN:	BELLA BROPHO ON BEHALF OF THE MEMBERS OF THE SWAN VALLEY NYUNGAH COMMUNITY ABORIGINAL CORPORATION AND ABORIGINAL INHABITANTS OF RESERVE 43131
AND:	STATE OF WESTERN AUSTRALIA First Respondent ABORIGINAL AFFAIRS PLANNING AUTHORITY Second Respondent BARRY CHARLES JAMESON Third Respondent WESTERN AUSTRALIAN PLANNING COMMISSION Fourth Respondent

JUDGE:	RYAN, MOORE AND TAMBERLIN JJ
DATE OF ORDER:	6 JUNE 2008
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.









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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 90 OF 2007

BETWEEN:	BELLA BROPHO ON BEHALF OF THE MEMBERS OF THE SWAN VALLEY NYUNGAH COMMUNITY ABORIGINAL CORPORATION AND ABORIGINAL INHABITANTS OF RESERVE 43131
AND:	STATE OF WESTERN AUSTRALIA First Respondent ABORIGINAL AFFAIRS PLANNING AUTHORITY Second Respondent BARRY CHARLES JAMESON Third Respondent WESTERN AUSTRALIAN PLANNING COMMISSION Fourth Respondent

JUDGE:	RYAN, MOORE AND TAMBERLIN JJ
DATE:	6 JUNE 2008
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of a single judge of this Court: Bropho v State of Western Australia [2007] FCA 519. On 13 April 2007, the primary judge dismissed the applications in each of two proceedings raising the same issues. The principal questions are whether the Reserves (Reserves 43131) Act 2003 (WA) ("Reserves Act") and action taken under that Act contravene or are inconsistent with the Racial Discrimination Act 1977 (Cth) ("RD Act").

2 The proceedings below were brought by Bella Bropho, a former resident of Reserve 43131 in Western Australia and member of the Swan Valley Nyungah Community Aboriginal Corporation ("SVC"). The reserve had been designated in 1994 for the use and benefit of Aboriginal persons, and had effectively been under the management of the SVC until recently. For some time there had been increasing concern for the safety of women and children on the reserve. The Western Australian Parliament enacted the Reserves Act, which commenced on 12 June 2003. By operation of the Act, the management order placing the care, control and management of the reserve with the SVC was revoked and management responsibility was placed instead with the Aboriginal Affairs Planning Authority. An administrator was appointed under the Reserves Act. The administrator made directions which effectively prevented entry to the reserve by its former inhabitants without the administrator's express authority.

3 Before the primary judge, the appellant challenged the Reserves Act and the actions taken by the administrator on a number of bases, relying on ss 9, 10 and 12 of the RD Act. The appellant also advanced claims in trespass and deprivation of possession which are not pursued in the appeal. Ms Bropho advanced the case on the basis that she represented all persons who were Aboriginal inhabitants of the reserve of Nyungah origin who were also members of the SVC. The capacity in which Ms Bropho represented other persons is not discussed in his Honour's reasons, and does not appear to have been addressed by the parties. Representative proceedings can be brought by either the procedure in O 6 r 13 of the Federal Court Rules or the procedure in Part IVA of the Federal Court of Australia Act 1976 (Cth). When the question of how the proceedings were constituted as representative proceedings was raised by the Full Court, counsel for Ms Bropho indicated that the appeal should be treated as being brought on Ms Bropho's behalf only. In the primary judge's reasons for judgment, he referred to both "applicant" and "applicants". In these reasons we will not draw this distinction and refer simply to the appellant even if, in his Honour's reasons, he spoke of the "applicants".

4 In the appeal, the Human Rights and Equal Opportunity Commission ("HREOC") was granted leave to intervene and make written and oral submissions about the interpretation of the RD Act and the International Convention on the Elimination of all forms of Racial Discrimination, 7 March 1966, New York ("CERD").
Background

5 The primary judge, in his reasons, sets out in detail the history of the reserve and the events surrounding the enactment of the Reserves Act, under the heading "General findings of fact". It is necessary to repeat some of that detail to appreciate the appellant's case before the primary judge and the grounds of appeal.

6 The reserve was set apart as a public reserve for the purpose of "Use and Benefit of Aboriginal Inhabitants" on 19 July 1994, pursuant to s 29 of the Land Act 1933 (WA). Pursuant to s 33(2) of the Land Act 1933, the care, control and management of the reserve was vested in the SVC. On 12 December 1995 the vesting of the reserve was revoked pursuant to s 34B(1) of the Land Act 1933. The reserve was amended (increased in size) pursuant to s 37 of that Act and then re-vested in the SVC for the same designated purpose as previously. On 30 March 1998, the Land Act 1933 was repealed by the Land Administration Act 1997 (WA) ("LAA"). Pursuant to the transitional provisions in the Second Schedule to the LAA, the vesting order was converted to a management order ("the 1998 management order").

7 In 2001, a coronial inquiry was held into the death of a young woman, Susan Taylor, who had hanged herself in February 1999 on the reserve. Evidence given at the inquest and the Coroner's report revealed high levels of substance abuse by, and sexual abuse of, young people at the reserve, and that service providers were experiencing difficulties accessing the reserve. In 2002, the "Inquiry into Responses by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities" was established. It was conducted by Magistrate Sue Gordon AM and others ("the Gordon Inquiry"). The Gordon Inquiry report was published on 31 July 2002 and made various findings and recommendations concerning government agencies in relation to aboriginal communities.

8 In October 2002, the Department of Land Administration took steps to revoke the 1998 management order and register a new management order ("2002 management order"). The steps were taken as part of the Government's response to the Gordon Inquiry report and were the result of negotiations between a number Government Departments and the SVC between August 2002 and October 2002. The 2002 management order placed the care, control and management of the reserve with the SVC for the same designated purpose as previously but attached conditions, such as requiring the installation of a pedestrian gate to facilitate access by government agencies and the preparation by the SVC of a management plan.

9 On 23 October 2002, an inquiry was established to review the way in which the Department of Community Development had handled a number of child abuse cases. The inquiry was conducted by a barrister, Richard Hooker ("the Hooker Inquiry"). Eight of the cases reviewed were associated with the SVC. In the months following the commencement of the 2002 management order, reports continued of substance abuse by, and physical and sexual abuse of, young people on the reserve. In March 2003, a consensus emerged amongst relevant government agencies that they were having limited success in improving conditions on and access to the reserve. 

10 On 30 March 2003, the SVC submitted a draft management plan. A number of government agencies provided negative feedback on the draft essentially in relation to the inadequate commitment to and provision for access to the reserve by Government service providers.

11 The Reserves (Reserve 43141) Bill 2003 (WA) ("Reserves Bill") was introduced into Parliament on 15 May 2003. The Second Reading Speech to Parliament by the Premier referred to the concerns for the safety of children and women on the reserve and the reports of government officers concerning difficulties in accessing the reserve. The Reserves Act came into effect on 12 June 2003. The provisions of that Act are set out in more detail below. On the same day, an administrator (the third respondent to the proceedings below and in the present appeal) was appointed pursuant to s 7 of the Reserves Act. 

12 On 13 June 2003, the 2002 management order was revoked by s 4 of the Reserves Act. The same day, the administrator made certain oral and written directions. First, a direction was made pursuant to s 7 of the Reserves Act that only certain people (being those listed as assisting the administrator with the performance of his duties) could enter the reserve without express authority. The direction was in the following terms:

I, Barry Charles Jameson... in accordance with the power vested in me under the Act hereby direct that the following people can enter and leave the reserve for the purpose of assisting in the performance of my obligations as the Administrator:

• Members of the Police Service;

• Chubb security personnel;

• Members, employers and contractors engaged by ATSIC (upon presentation of suitable identification);

• Employees and contractors engaged by Government departments or agencies, including but not limited to the Department of Community Development, Department of Housing and Works, Department of Indigenous Affairs, Western Power, and the Water Corporation (upon presentation of suitable identification);

• C & C Lockmiths;

• Mrs Mop – rubbish removal company.

A person not listed in this direction ("an excluded person"), is not permitted to enter the reserve without my express authority.

Should an excluded person enter the reserve without my express authority, he or she shall be removed from the reserve with the assistance of Chubb Security or the Police (as necessary).

A specific direction was also made, in writing, by the administrator, requiring two of the existing Aboriginal inhabitants of the reserve, Robert Bropho and Iva Hayward-Jackson, to leave the reserve. An oral direction was given on the same day directed to three non-Aboriginal non-residents to leave the reserve.

13 His Honour accepted the appellant's submission that by 13 June 2003, the majority of the inhabitants of the reserve, wishing to avoid media attention, had already left in the knowledge that the Reserves Bill had been introduced into the Parliament and in anticipation of being directed to leave. The knowledge and anticipation was based on the Premier's statement in Parliament on 14 May 2003 and on media reports (noted at [239] of the primary judge's reasons for judgment).

14 The administrator's appointment expired on 12 June 2004, and the Reserves Act expired a year later, on 12 June 2005. It is unnecessary to detail events after the expiration of the Reserves Act.

LEGISLATIVE CONTEXT

The Reserves Act

15 Section 4 of the Reserves Act concerned the revocation of the 2002 management order. It provided:

(1) Management order no 1262262 is revoked by force of this Act.

(2) The revocation, under subsection (1), of management order no 1262262 has effect as if it were a revocation of a management order under the LAA section 50(2).

16 Section 5 dealt with the role of the Aboriginal Affairs Planning Authority, which was the second respondent in both proceedings:

(1) The care, control and management of the reserve are, by force of this Act, placed with the Authority for the same purpose as that for which the relevant Crown land is reserved and for purposes ancillary or beneficial to that purpose.

(2) The placing, under subsection (1), of the care, control and management of the reserve has effect as if it were done under the LAA section 46(1).

(3) The LAA Minister may by order subject the care, control and management of the reserve to such conditions as the LAA Minister specifies and such an order has effect as if it were an order as defined in the LAA section 3(1).

(4) A reference in the LAA to a management order is, in relation to the reserve during such time as the care, control and management of the reserve remain placed with the Authority (either solely or jointly), a reference to the effect of subsection (1) and any order under subsection (3).

(5) To avoid doubt, nothing in this Act prevents --

(a) the revocation, under the LAA section 50, of the effect of subsection (1); or

(b) the taking of any other action under the LAA or any other written law in relation to the reserve, or the care, control and management of the reserve,

without the need for a further Act.

17 Section 7 concerned, inter alia, the appointment of an administrator and the administrator's powers. The section provided:

(1) In this section --

" administrator" means --

(a) a person engaged under subsection (2)(a); or

(b) an officer nominated under subsection (2)(b).

(2) The Authority may --

(a) engage a person under a contract for services; or

(b) nominate an officer referred to in the Aboriginal Affairs Planning Authority Act 1972 section 15(1),

to enable the Authority to perform effectively its functions in relation to the reserve.

(3) The administrator may --

(a) direct a person not to enter the reserve during a period of time specified in the direction or until such time as the direction is revoked;

(b) direct a person to leave the reserve;

(c) with such assistants as the administrator thinks are necessary --
(i) prevent a person from entering the reserve contrary to a direction under paragraph (a);
(ii) remove a person from the reserve if the person does not comply with a direction under paragraph (a) or (b).

(4) A direction under subsection (3)(a) or (b) may be oral or in writing and must be given to the person who is the subject of the direction before the exercise of a power under subsection (3)(c) or (7).

(5) The LAA Minister, in an order under the LAA section 46(1) by which the care, control and management of the reserve is placed with a person other than the Authority, may authorise a person, or the holder of an office, specified in the order, to exercise any power set out in subsection (3).

(6) If --

(a) there is no administrator and a person has not been authorised under subsection (5); or

(b) the land that is the subject of the reserve at the commencement of this Act is no longer a reserve as defined in the LAA section 3(1),

the LAA Minister may exercise, in relation to the land, any power set out in subsection (3).

(7) A police officer may --

(a) prevent a person from entering the reserve contrary to a direction under subsection (3)(a);

(b) remove a person from the reserve if the person does not comply with a direction under subsection (3)(a) or (b).

(8) The powers that a person may exercise under this section are in addition to, and do not derogate from, the powers that the person has under any other law.

(9) A person who may exercise a power under subsection (3)(c) or (7) may use such reasonable force as is necessary for the purpose of exercising the power.

(10) A power may be exercised under this section in relation to the land that is the subject of the reserve even though a person has a legal or equitable right or interest in the land and whether or not the land is a reserve as defined in the LAA section 3(1) at any particular time.

18 Sections 8, 9 and 10 dealt with natural justice and the provision of reasons by the administrator.

8 .

The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to a direction under section 7(3)(a) or (b).

9 .

(1) A discretion that a person has for the purposes of section 7(3) is absolute and the person is not required to give reasons for how the discretion is exercised.

(2) A person is not entitled, because of anything in this Act or anything done by another person, to expect that a discretion referred to in subsection (1) will be exercised in a particular way.

10.

A person who gives a direction under section 7(3)(a) or (b) is not required to give reasons in relation to the direction, but if the person thinks that it would be in the public interest to disclose any or all of the reasons, the person may do so.

19 Section 11 is a privative clause relating to action taken pursuant to s 7.

No writ of certiorari, mandamus, or prohibition, or other prerogative writ, is to issue and no declaratory judgment or injunction is to be given or granted, in respect of --

(a) any decision made or purporting to be made under section 7; or

(b) anything else done or purporting to have been done under section 7.

The Racial Discrimination Act

20 The appellant's claims at first instance were founded, primarily, on s 9 and s 10 of the RD Act. Section 9 prohibits acts constituting racial discrimination as defined. It provides:

(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A) Where:

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the person's race, colour, descent or national or ethnic origin.

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

(3) ...

(4) The succeeding provisions of this Part do not limit the generality of this section.

21 Section 10 concerns rights to equality before the law. It provides:

(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 that person.

22 The references to the "Convention" are to CERD. Article 5 of CERD is relevant to both s 9 and s 10 and provides:

Article 5

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) The right to equal treatment before the tribunals and all other organs administering justice;

(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;

(c) Political rights, in particular the rights to participate in elections--to vote and to stand for election--on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(d) Other civil rights, in particular:

(i) The right to freedom of movement and residence within the border of the State;

(ii) The right to leave any country, including one's own, and to return to one's country;

(iii) The right to nationality;

(iv) The right to marriage and choice of spouse;

(v) The right to own property alone as well as in association with others;

(vi) The right to inherit;

(vii) The right to freedom of thought, conscience and religion;

(viii) The right to freedom of opinion and expression;

(e) The right to freedom of peaceful assembly and association;

(f) Economic, social and cultural rights, in particular:

(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

(ii) The right to form and join trade unions;

(iii) The right to housing;

(iv) The right to public health, medical care, social security and social services;

(v) The right to education and training;

(vi) The right to equal participation in cultural activities;

(g) The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks.

23 Section 12 of the RD Act concerns racial discrimination in the area of land, housing and other accommodation.  It provides:

12.

(1) It is unlawful for a person, whether as a principal or agent:

(a) ...

(b) ...

(c) To treat a second person who is seeking to acquire or has acquired such an estate or interest or such accommodation less favourably than other persons in the same circumstances;

(d) To refuse to permit a second person to occupy any land or any residential or business accommodation; or

(e) To terminate any estate or interest in land of a second person or the right of a second person to occupy any land or any residential or business accommodation;

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

(2) It is unlawful for a person, whether as a principal or agent, to impose or seek to impose on another person any term or condition that limits, by reference to race, colour or national or ethnic origin, the persons or class of persons who may be the licensees or invitees of the occupier of any land or residential or business accommodation

...

24 Section 8(1) of the RD Act provides for an exception of "special measures" in relation to which the prohibition of racial discrimination in the RD Act does not apply. The subsection provides:

(1) This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).

25 Article 1(4) of CERD provides:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups of individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

THE PROCEEDINGS BELOW

26 There were two proceedings before the primary judge, the first of which was commenced on 22 July 2003 (WAD 157 of 2003). The other proceeding was filed on 25 August 2004 (WAD 204 of 2004), following a claim made under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) which was terminated by the President of HREOC. On 4 September 2006, the appellant filed an amended application in both matters and an amended statement of claim in WAD 157 of 2003.

27 In the proceedings below, the appellant sought to impugn the Reserves Act and the actions of the administrator, invoking ss 9, 10 and 12 of the RD Act. In relation to the Reserves Act, the appellant relied not only upon s 10 but also on s 9 of the RD Act. The case concerning the administrator's actions was based on ss 9 and 12 of the RD Act. The relief sought by the appellant included declarations of invalidity, a mandatory injunction directing the respondents to vacate the reserve, declarations that the administrator's acts had no lawful effect and damages.

28 The human rights relied on for the purposes of ss 9 and 10, in relation to both the Reserves Act and the administrator's actions, were:

• The right to manage and exercise other ownership rights in relation to property under Art 5(d)(v) of CERD;

• The right not to be arbitrarily deprived of one's property also under Art 5(d)(v), and Art 17 of the Universal Declaration of Human Rights ("UDHR");

• The right to freedom of movement and residence under Art 5(d)(i) of CERD;

• The right not to be arbitrarily deprived of the right to freedom of movement and residence;

• The right to equal treatment before tribunals administering justice under Art 5(a) of CERD; and

• The right to participate in public affairs under Art 5(b) of CERD.

29 The appellant's case based on the last of these rights was dealt with briefly by his Honour, who, in dismissing this aspect of the applications, noted that the right was not identified in the pleadings and had not been pressed in further submissions.

30 His Honour, at [280] to [303], considered the approach to be taken under s 9 and s 10(1). Comparing the two provisions, his Honour found, applying Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 99 per Mason J, that although s 10 did not appear to require that the law in question be racially discriminatory in the same way as s 9(1), it was nevertheless appropriate, in considering whether s 10 applied to a law, to consider whether the law's purpose or effect was to create racial discrimination (that is, whether it had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of a right on an equal footing). His Honour went on to contrast s 9(1) and s 9(1A), concluding that the authorities supported the view that the two were mutually exclusive. His Honour appeared to regard s 9(1) and s 9(1A) as corresponding to direct and indirect discrimination respectively. His Honour viewed the appellant's case on s 9 as relying only on s 9(1) and therefore only requiring consideration of direct discrimination, understood as contemplating only the direct effect of the act in question.

31 In relation to the Reserves Act, his Honour considered first whether the purpose or effect of the Act was discriminatory, which his Honour considered relevant to both s 9 and s 10(1) of the RD Act. His Honour found that "the overwhelming effect of the evidence is that the purpose of the Reserves Act was to address the human rights of the women and children on the [r]eserve irrespective of race" (at [300]). In relation to the effect of the Reserves Act, his Honour declined to consider whether the Act was discriminatory "in globo", preferring to adopt the approach of considering each of the rights relied upon by the appellant in relation to the Reserves Act and the administrator's acts, and considering in relation to each right, whether s 9 or s 10(1) was engaged.

32 His Honour considered first, in the context of the Reserves Act, whether the appellant had been deprived of rights of ownership and management of property. His Honour addressed the issue of whether the rights as claimed existed by considering both whether such rights were created by statute, and whether the appellant had any human rights of ownership in relation to the reserve. His Honour concluded that none of the possible statutory sources had given rise to a property right in domestic law, those sources being the original designation of the reserve, the 1995 vesting of the reserve in the SVC, the 1998 management order and the 2002 management order. In concluding that no relevant human right of ownership existed, his Honour said (at [375] – [380]):

The nature of the human right recognised by the RDA in relation to property is that – as Art 5(d)(v) requires – it must be 'property' which is 'owned'. The juxtaposition of these requirements of 'property' and ownership is emphasised by s 10(3) of the RDA, which operates only where management occurs in relation property owned by Aboriginal persons. Even if the dicta of the High Court to which attention has been directed can support a concept of 'property' which is wider than property recognised by domestic law (apart from the RDA), it nevertheless must be 'property' which is 'owned'.

This is not to deny that the word 'own' should itself receive a beneficial interpretation. However, in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 Gibbs CJ at 184, with whom Aickin and Wilson JJ agreed at 243 and 244 (in dissent in the result) said that: 'although the word 'own' in Art 5(d)(v) should no doubt be given a wide meaning, it seems to be going too far to hold that the right to 'own' property includes a right to mere possession under a licence to occupy'. Hence even if a mere right of occupation was encompassed within the claimed right to manage, a right to property under the Convention could not be made out. A fortiori where there is no right of occupation. On the other hand, Brennan J in Koowarta 153 CLR at 266 said that the enjoyment of a licence to use property is a civil right within the meaning of Art 5(d) of the Convention.

It is not the case that the Convention brings its own definition of 'own' into play or that the use of that word in s 10(3) of the RDA is required by that Act to be understood in any special way other than that indicated by the members of the High Court in Koowarta 153 CLR 168. Consequently it becomes necessary to consider whether whatever qualifies as property in the bundle of rights under consideration is capable of being 'owned'.

The question of what is 'owned' can only be resolved by looking to the effect of other domestic law determining issues of ownership, ownership being a private right recognised by the domestic law. For the reasons set out in the previous section, the applicants do not have an interest in the Reserve and so do not have any ownership interest in it. A right granted by statute must be interpreted in accordance with the domestic law which created it.

In Mabo [1988] HCA 69; 166 CLR 186 there were a different set of circumstances because the rights claimed there were rights outside domestic law. They became recognised by common law only after the Court had identified the legal relations that could be seen to exist from the evidence led. That is not the position here.

It is not that the grantee may not have 'property' in such a reserve within the wide Convention concepts; rather that such property simply cannot be one of 'ownership' because the right is a statutory one not encompassing ownership. Likewise it cannot be said that rights in the nature of a bare licence or a non-charitable public trust can qualify as property 'owned'. In the case of the 'property' here in issue, it cannot be the case that it can exist as an human right independently of its statutory origins.

33 His Honour went on to consider whether the other elements of s 10(1) could be made out. Of potentially particular relevance to the appeal is his Honour's conclusion that any lack of enjoyment of the right, if made out, was not "by reason of" the appellant's race. His Honour appeared to treat this element as being directed to both the purpose and effect of the law. His Honour found that the direct effect of the Reserves Act was to cause the rights of the SVC to cease, but that the appellant had not overcome a number of obstacles in establishing that the Reserves Act had the necessary effect on the appellant. Those obstacles were said to be that the appellant had left the reserve not as a result of the administrator's acts and that the administrator had a choice as to whether to exclude the appellant from the reserve. His Honour expressly rejected the appellant's contention that the effect of the Reserves Act on the appellant was so disproportionate as to be unreasonable, cross-referencing his later findings under the section entitled "Justificatory Contentions".

34 His Honour considered, assuming the relevant human rights in relation to property could be made out, whether the deprivation of such rights by the Reserves Act would be arbitrary. His Honour identified the issue as being whether the appellant had received notice and been accorded the right to be heard or other fair process regarding the enactment of the Reserves Act, and found that the appellant had not been denied procedural fairness because she had had actual notice, from various sources, of the revocation of the 2002 management order and the new management order.

35 In relation to the claim that the Reserves Act had deprived the appellant of the right of freedom of movement and residence, his Honour found that any such right held by the appellant derived from the fact of management being held by the SVC or alternatively, from the fact that the appellant was, at the time of the enactment of the Reserves Act, permitted by the SVC to reside on the reserve and to exercise freedom of movement on the reserve. That right had always been vulnerable to the exercise by the Minister of the power under s 50(2) of the LAA to revoke the appointment of the SVC as manager, which presented a limitation on the right. His Honour also concluded, agreeing with the respondents, that in any event, the Reserves Act itself did not limit or remove the right, but merely that s 7 of the Reserves Act raised the possibility that the administrator would act so as to interfere with the right. His Honour also considered that the revocation of the 2002 management order, which appeared to be the relevant link with the deprivation of the right as claimed, was a result of an act of the Minister pursuant to s 50(2) of the LAA, not the operation of the Reserves Act, and as such could not be considered under s 10 of the RD Act.

36 After considering the claims based on the Reserves Act and s 10 of the RD Act, his Honour went on to address the case based on inconsistency between the Reserves Act and s 9 of the RD Act. Although his Honour noted in a number of places that it was unlikely that the Reserves Act was "an act" to which s 9 of the RD Act applied, his Honour proceeded to consider each of the rights as claimed on the assumption that s 9 was capable of so applying. The approach taken by his Honour in considering whether the Reserves Act was inconsistent with s 9 is somewhat unclear. His Honour's analysis seems to have in mind, at various points, the enactment of the Act, the Act as a whole or merely certain provisions of it, or action actually taken under the Act, as the relevant "act".

37 In dealing with property rights as claimed and the arbitrary deprivation of those rights for the purposes of s 9 of the RD Act, his Honour for the most part adopted the earlier analysis. In considering whether the Reserves Act was inconsistent with s 9 in relation to the right to freedom of movement and residence, his Honour treated the issue as being concerned with the acts of the administrator. His Honour later adopted this analysis in the section dealing with whether there was inconsistency between the administrator's acts and s 9. His Honour concluded that the written and oral directions given by the administrator did not contravene s 9 of the RD Act. His Honour considered that the section could not be enlivened in relation to the large number of Aboriginal inhabitants who had left the reserve otherwise than as a result of the act of the administrator (at [454]). His Honour concluded that the written direction which permitted only certain categories of persons to enter the reserve other than with express authority applied in respect of any person of any race who was outside the reserve, was neutral in its terms and applied to any persons in the listed categories both Aboriginal and non-Aboriginal. Although his Honour accepted that the act of excluding persons from the reserve disproportionately affected Aboriginal inhabitants, indirect discrimination could not be considered in relation to s 9(1).

38 In considering the appellant's case based on s 12(1)(d) of the RD Act, his Honour accepted that the effect of the administrator's direction of 13 June 2003 excluding all persons other than those listed amounted to a refusal to permit a person to occupy land or residential accommodation because it excluded Aboriginal inhabitants. However, his Honour found that the direction was not "by reason of" the appellant's race, and that the patent reason was to exclude from the reserve the community represented by the SVC, to address the circumstances which the second respondent and the Parliament considered placed women and children at risk. His Honour considered that the issue of whether the acts had an unreasonable or disproportionate impact could not be considered, since there was no authority to suggest that the words "by reason of" in s 12(1)(d) encompassed indirect discrimination. However, his Honour did not consider that unreasonableness and disproportionality could be made out.

39 Under the section entitled "Justificatory Contentions", his Honour considered whether the Reserves Act and the actions of the administrator were reasonable and proportionate and whether the enactment of the Reserves Act was in the public interest. These issues were raised by the respondents in the context of their defence to the contention that the deprivation of certain rights was arbitrary. However, it is clear that his Honour also regarded the issues as relevant generally to the operation of s 9 and s 10. After setting out in detail the submissions of the parties, and the evidence relied upon, in relation to issues of reasonableness and proportionality, his Honour said (at [544]):

I consider it beyond contention that in the determination of issues relating to discrimination, including alleged racial discrimination, regard may be had to the reasonableness of the enactment or action in question. This in turn includes, particularly in cases of alleged indirect discrimination, regard being had to the proportionality of the matter in question.

40 His Honour went on to conclude that both the enactment and actions taken under it were reasonable and proportionate (at [551]). In reaching this conclusion, his Honour considered that the issue was to be considered objectively in all the circumstances (at [545]) and attached considerable significance to the finding that no adequate alternatives to the enactment of the Reserves Act were available. His Honour also acknowledged that the course adopted by the Parliament was far-reaching and would not necessarily be adopted in other circumstances (at [550]), while at the same time noting that "it is not for the Court to rework or remake the decisions of Parliament and Government" (at [552]).

41 His Honour also concluded that the Reserves Act was in the public interest, on the same evidentiary basis as for the finding of reasonableness and proportionality.

42 Although it was unnecessary to do so in disposing of the applications, his Honour went on to consider whether the Reserves Act was a special measure. His Honour concluded that the Act was correctly characterised as a special measure. His Honour considered the dicta of Brennan J in Gerhardy to the effect that the wishes of the intended beneficiaries are of great importance in determining whether a measure is to be characterised as a special measure. His Honour noted that the beneficiaries of the Reserves Act included a large number of adult women who disagreed with the measure. However, his Honour declined at [570] to place any weight on the dicta of Brennan J in Gerhardy, as it had no apparent judicial support and was not supported by the other judgments in that case or the general principles expressed in the case.

43 Finally, his Honour considered the appellant's case based on s 10(3) of the RD Act, to which the special measures exception does not apply. The parties had agreed that the Reserves Act authorised a person other than the appellant (through the SVC) to manage the reserve, and that it prevented or restricted the appellant from terminating the second respondent's management of the reserve. However, his Honour held that s 10(3) of the RD Act clearly related to the situation where the property in question was "owned" by an Aboriginal or Torres Strait Islander, so that the appellant could not succeed.

GROUNDS OF APPEAL

44 The notice of appeal contains numerous grounds, most of which challenge a specific conclusion reached by his Honour. Before the hearing of the appeal, the appellant was requested to file a short summary of the grounds of appeal, which identified certain matters in relation to each ground, including the relevant facts and the order sought as a result of the alleged error. It is convenient to set out the grounds of appeal pressed by the appellant.

Ground 2

45 This ground of appeal relates to a claim made below by the appellant concerning the validity of the revocation of the 1998 management order (in favour of the SVC) on 11 October 2002. The precise way in which this issue was said to relate to the appellant's claims concerning the RD Act is not clear, although in the appeal, the appellant submitted that if the 1998 management order (in favour of the SVC) was not validly revoked, it would remain in force. The appellant's position appears to be that if the issue had have been resolved by his Honour in the appellant's favour, the conclusion would have been sufficient to dispose of the proceedings.

46 Subsections 50(1) and (2) of the LAA related to the Minister's power to revoke a management order and provided:

(1) When a management body --

(a) agrees that its management order should be revoked; or

(b) does not comply with its management order or with a management plan which applies to its managed reserve or does not submit a management plan in compliance with a request made under section 49(2),

the Minister may by order revoke that management order.

(2) If, in the absence of agreement or non-compliance referred to in subsection (1), the Minister considers that it is in the public interest to revoke a management order, the Minister may by order revoke the management order.

       

47 The appellant contended that the SVC did not give consent to the 2002 management order as required by s 50(1)(a), nor was there any demonstrated public interest reason for the 2002 management order within the meaning of s 50(2). There appears to have been no issue that s 50(1)(b) did not apply. His Honour rejected both contentions. The appellant appeals on the ground that the primary judge erred in fact in concluding that the management body (the SVC) had agreed, within the terms of s 50(1)(a) of the LAA, that the management order made on 11 October 2002 should be revoked. In terms, the notice of appeal does not challenge his Honour's conclusion that the revocation was authorised by s 50(2).

48 It is convenient to address now this ground of appeal, as it may be dealt with briefly.

49 The appellant contends that his Honour erred in fact in concluding that the SVC agreed that the 1998 management order should be revoked. The relevant facts are set out at [255] to [261] in the primary judge's reasons. It does not appear that the appellant disputed the existence of those facts, but rather disputed that an inference could be drawn from those facts that the SVC had agreed the order should be revoked.

50 Two letters dated 11 October 2002 were sent by or on behalf of the SVC to the Minister for Planning and Infrastructure. One of those letters contained a statement "you have put into writing all the changes that we want to the management order" and that the SVC would make no claim for compensation, and the other, the statement "if this is the final version of the management order, let's get on with it". His Honour found that by those letters the SVC had expressly consented to the 2002 management order and raised a presumption that the SVC had in fact consented to the revocation. His Honour went on to consider the context in which those letters had been sent. Before the letters were sent, the following had taken place:

• a meeting had been held between SVC representatives and the Minister on 20 August 2002, at which the Minister had explained both the concerns regarding access by government agencies to the reserve and the conditions proposed for the new management order;

• a letter had been received from the Minister requesting the SVC's agreement to revoke the 1998 management order and including copies of the proposed revocation, and the new order and conditions. It stated that the Minister proposed to make the orders "subject to any reasonable objections from the Corporation". The letter also stated that the orders were to be made on the basis that there would be no claim for compensation for improvements required;

• a meeting held by the SVC on 21 September 2002 to discuss the Minister's letter; and

• a letter from the SVC dated 21 September 2002 requesting certain additions, subject to which the new order was acceptable to it.

51 The evidence relied upon by the appellant comprised the Minister's letter and an affidavit of a member of the SVC, Margaret Jeffrey, regarding the meeting held on 21 September 2002. His Honour considered that the Minister's letter (as well as the three letters to the Minister) was entirely supportive of the inference that consent was freely given. The substance of the affidavit relied upon by the appellant was that it was felt at the meeting that the SVC could not refuse to consent since the new management order would not involve the loss of any rights to use, care for, control or manage the reserve. Ms Jeffrey testified that the SVC read the letter as one with which it had to agree. His Honour concluded that Ms Jeffrey's evidence did not provide a basis for concluding that the SVC's consent was not voluntary or legally effective. Ultimately, the way in which the appellant's argument was expressed below, which is maintained on appeal, was that what was required was proof of the fact that the SVC had agreed that the management order "should" be revoked. Informed consent or acquiescence, it was argued, was not sufficient to satisfy s 50(1)(a).

52 There is no basis in the statutory language or in policy to attribute to s 50(1)(a) an overly technical meaning. His Honour's conclusion that "should" as it appeared in s 50(1)(a) could only mean that the management body agreed to the Minister's proposal to revoke the management order was correct. It must also be remembered, as his Honour noted, that the appellant had not pleaded duress or fraud so could not deny legally effective consent on those bases (O 11 r 10 of the Federal Court Rules).

53 These conclusions are sufficient to dispose of this ground of appeal, as they would have been sufficient below to dispose of the issue of validity of the 2002 management order. It is unnecessary to consider whether the Minister also had an alternative basis upon which to exercise the power which existed under s 50(2). However, since the issue was addressed by his Honour, it should be noted that nothing has been raised in the appeal to suggest his Honour erred in construing the subsection or concluding there had been compliance by the Minister.

Ground 3

54 The appellant appeals against his Honour's conclusion that the right to own property for the purposes of s 10 of the RD Act was limited to ownership defined by domestic law and property limited by its domestic law origins. On the basis of this alleged error, the appellant sought either that the matter be remitted for further consideration in accordance with law or a declaration that the Reserves Act is invalid within the meaning of s 109 of the Constitution.

Ground 5 and 9

55 The appellant contended that the primary judge was in error in concluding that the Reserves Act did not affect the applicants "by reason of" their race because the Act was not disproportionate or unreasonable. This conclusion was said by the appellant to be relevant to the appellant's claims under both s 9 and s 10(1).

Grounds 6, 10 and 11

56 These grounds concerned his Honour's conclusion that the Reserves Act and revocation of the 1998 management order did not result in an arbitrary deprivation of property. The specific conclusions which were said to be in error were the conclusion that the appellant had been afforded procedural fairness by the State, and the conclusion that deprivation of property was not arbitrary where it was a proportional response or done in the public interest as determined by Parliament or senior public servants. The appellant contended that his Honour should have found that the deprivation of property was arbitrary because it was done without prior notice, an opportunity to be heard, or a fair process comprising pre-existing criteria which were general in their application and provided an opportunity for compliance, or a right to fair compensation.

Ground 7

57 This ground concerned his Honour's conclusion that the applicants were not arbitrarily deprived of the right of freedom of movement within the reserve.

Ground 8

58 This ground concerned his Honour's conclusion that the acts of the administrator did not disproportionately affect the applicants' rights to freedom of movement and residence, and therefore did not contravene s 9 of the RD Act.

Ground 12

59 The appellant contended that the primary judge was in error in concluding that the Reserves Act was a special measure. The appellant contended that his Honour should have found that the Act did not satisfy the objective test of being a special measure in accordance with Art 1(4) of CERD because it did not confer a benefit upon, and did not provide protection which was necessary for the enjoyment of human rights and fundamental freedoms by a large number of Aboriginal women who lived on the reserve. The women had not agreed with the enactment of the Reserves Act and the Act deprived them of the right to equal treatment before tribunals, in addition to the other deprivations of rights claimed by the appellant.

60 In terms of relief, the appellant sought a declaration that the Reserves Act is invalid, an injunction directing the respondents to vacate the reserve and remittal of the applications to a single judge to be dealt with according to law. In relation to the declaration of invalidity, the appellant's position was that, if this argument succeeded, the whole Act must fail because the sections which themselves are not inconsistent with the RD Act rely upon the sections which are inconsistent. The appellant contended that the consequence of such a declaration would be that the management order in favour of the SVC would remain in force.

HREOC'S SUBMISSIONS ON SECTIONS 9 AND 10

61 In its helpful submissions, HREOC addressed the proper approach to be taken in the application of s 9 and s 10 of the RD Act, which revealed, HREOC submitted, a number of errors in the approach of the primary judge. They may be summarised as follows:

• Although his Honour thought it was "unlikely" that s 9 applied to Acts of Parliament, his view was not unequivocal and he considered the applicant's case on the basis that it did apply. There is clear binding authority which supports the view that s 9 does not apply to Acts of Parliament.

• His Honour construed s 9(1) and s 9(1A) as, in effect, mutually exclusive provisions. HREOC submitted that this is an erroneous approach.

• HREOC submitted that his Honour's approach to s 10 was erroneous in several respects. It was submitted that his Honour seemed to think that s 10 required the effect of a law on the appellant to be "by reason of" race (and therefore that Parliament's intention in introducing the law was relevant), whereas the language of the section clearly requires that the effect on the appellant be "by reason of" the law. Race is only relevant when considering whether the person, because of the law, does not enjoy the right to the same extent as others not of that race. Race has a different role to play when considering the operation of s 10 compared to s 9 and ss 11 to 15.

• His Honour erroneously imported concepts of proportionality and reasonableness into s 10. It was submitted that none of the authorities support this approach. HREOC submitted that if proportionality has any role then it is in the identification of the right, that is, human rights are not absolute and can be the subject of limitations or qualifications.

• His Honour's approach to the concept of property for the purpose of giving content to the human right to own property was too narrow. His Honour erroneously limited himself to consideration of domestic law concepts of ownership and did not look at international legal concepts.

62 There is considerable force in many of these submissions. However, we think it is appropriate to restrict consideration to those issues which are necessary to dispose of the appeal and leave, for another case, the determination of those issues which remain unresolved in this appeal. However, we thought it desirable to note the contentions of HREOC in case his Honour's reasons for judgment are later thought to correctly state the law in an uncontroversial way.

CONSIDERATION

63 One of the difficulties in dealing with the grounds as articulated by the appellant is that they make certain erroneous assumptions about the operation of the RD Act and the legal content of various sections. The learned trial judge may also have misapprehended aspects of the operation of the RD Act (in the way contended by HREOC and just discussed), although not necessarily in the same way as the appellant. In these circumstances, it is desirable to step back from the specific issues raised by the appellant in the grounds of appeal challenging the learned trial judge's findings or conclusions, and assess whether the broad propositions advanced in support of the relief sought accord with the true operation of the RD Act.

64 The first point is that any act of the administrator is impeachable, for present purposes, on the basis that it contravened s 9 or s 12. On the other hand, if there was a contravention of s 10 it involved the operation of a law, in this case the Reserves Act, and then only if the law denied the appellant and other indigenous persons the enjoyment of rights of the type broadly described earlier concerning their occupation of the reserve or limited those rights, in circumstances where those rights were enjoyed by persons of another race or colour.

The operation of s 9(1) of the RD Act

65 The terms of section 9(1) are set out earlier (at [20]). Section 9 proscribes a discriminatory act which is an act with one or a number of specified consequences and which is "based on", amongst other things, race or colour. The learned primary judge most fully discussed this issue in the context of considering the operation of s 12 and the expression "by reason of". His Honour said (at [466] – [468]):

The effect of the Administrators' direction of 13 June 2003 in excluding all persons from the Reserve amounted to a refusal to permit a person to occupy land or residential accommodation because it excluded the Aboriginal inhabitants. Was it 'by reason of the race' of the Aboriginal inhabitants?

The weight of the evidence is heavily against a finding that the Administrator did so 'by reason of' the race of the applicants. His patent reason was to bring about the exclusion of the entire community represented by the SVC from the circumstances considered by [the second respondent] and Parliament to have been and to be inducive to the loss of human rights of certain women and children resident on the Reserve.

The question remains whether the applicants can make out that the acts of the Administrator were 'by reason of' their race because they impacted unreasonably and disproportionately upon them as the Aboriginal inhabitants of the Reserve. Aside from the words 'by reason of', there are no words in s 12(1)(d) inviting examination of a comparison in that respect, such as appear in s 10 of the RDA. The focus of s 12(1)(d) is upon the relevant act of 'refusal' as such. In the absence of any authority, such as the obiter remarks of Tamberlin J in Nguyen 74 FCR 311 in relation to the application of indirect discrimination under s 10 of the RDA, I do not consider it has application to s 12(1)(d).

66 We apprehend that his Honour may have proceeded on the basis, at least on the facts of this case, that there was no material distinction between the expression "by reason of" in ss 10 and 12 and "based on" in s 9. In his concluding observations his Honour said (at [588]):

... I do not think that the applicant has made out a case that the Reserves Act or actions taken under it were 'by reason of' race or involved a distinction, exclusion, restriction or preference 'based on race'.

67 The leading authority on the meaning of the expression "based on" is Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 at 26. We will return to consider that judgment shortly. But for completeness, we should note the following observations made by the learned primary judge (at [447] and following) which includes a reference to that authority. The observations were made in the context of dealing with a submission of the appellant that the Reserves Act involved a distinction, exclusion, restriction or preference based on race, or authorised a person to do an act which involved a distinction, exclusion, restriction or preference based on race in respect of the right of the appellant to enter and remain on the Reserve. His Honour was responding to a submission of the appellant which apparently erroneously assumed, in part, that s 9 operated directly on the Reserves Act. His Honour said (at [447] – [449]):

... It is contended this was a right peculiar to them because of their racial status as Aboriginal persons. The Reserve was declared to be for the use and benefit of Aboriginal inhabitants. The causal connection is established between race and not enjoying a right, if the effect of the Reserves Act upon a racial group is that the racial group does not enjoy a right and the Reserves Act does not have that effect upon other racial groups: see Mabo [1988] HCA 69; 166 CLR 186 and Ward 213 CLR at [105]. In that way it is said s 9 operates in the same way as s 10. The discriminatory result may arise under s 9 from either the 'purpose or effect' of the act. Regardless of the motive or intent of the act, if the effect is to nullify or impair the recognition, enjoyment or exercise on an equal footing of a human right, then s 9 is infringed. The 'intention, motive or purpose...do not carry the matter far [if the act is] inherently or essentially discriminatory': per Lockhart J in Commonwealth of Australia v Human Rights and Equal Opportunity Commission [1993] FCA 547; (1993) 46 FCR 191 at 204; Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 at 26.

I regard it as unlikely that the Reserves Act is an 'act' to which s 9 is applicable. This is because s 10 expressly addresses the effect of a law or a provision of a law. Construing s 9 in that context shows that s 9 is directed to actions of persons, in contrast to enactments.

In any event from the reasoning earlier set out in relation to this right and s 10, it is apparent that I do not consider the applicant can make out this aspect of her claims. That is because I have earlier concluded that the rights in relation to management and ownership of property which the applicants claim and which the SVC had (namely, the care, control and management of the Reserve) do not have the status of human rights or fundamental freedoms. Specifically they are not human rights in relation to the ownership of property, even understanding those terms in the Convention context.

In the event the Reserves Act was an 'act' within s 9 of the RDA and the applicants had rights of management and ownership, the apparently disproportionate impact on them would not have given rise to relevant indirect discrimination because it is only in the circumstances of s 9(1A) of the RDA that it can arise and that section is not relied upon by the applicants.

It can be seen that in this passage his Honour expressed the view, correctly, that s 9 had no direct application to the Reserves Act though his Honour nonetheless considered its application on the assumption that it did.

68 In Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission, Weinberg J reviewed a number of relevant authorities and concluded (at 29 – 30) :

There appears to me to be no authority which binds me to hold that the phrase "based on" in s 9(1) of the Act is to be understood as synonymous with the other expressions typically used in anti-discrimination legislation such as, "by reason of", or "on the ground of".

What is established by the authorities is that anti-discrimination legislation should be regarded as beneficial and remedial legislation. It should, therefore, be given a liberal construction. I am conscious of the fact that "the task remains one of statutory construction" and a court "is not at liberty" to give such legislation "a construction that is unreasonable or unnatural" – see IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J. See also Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 88 per Davies J. There is, however, nothing "unreasonable or unnatural", in my view, in treating as encompassed within the phrase "based on" the meaning of "by reference to", rather than the more limited meaning of "by reason of".

69 We have no reason to doubt the correctness of his Honour's conclusion about the meaning of the expression "based on" in s 9, although it is not a matter that has been the focus of detailed submissions by the parties in this appeal.

70 The alleged contravention of s 9 must focus attention on the acts of the administrator. That section has no immediate application to the Reserves Act and its direct legal effect. The section does have work to do if anything was done by the administrator under that Act which was discriminatory and based on race, colour, descent or ethnic origin. As discussed earlier, the administrator gave directions to certain persons to leave the reserve, and a direction preventing certain persons from re-entering the reserve. The appellant and those she claims to represent, along with all other persons (Aboriginal and non-Aboriginal), have not been permitted to enter the reserve if there was not a particular reason for their doing so.

71 The specific finding in the passage quoted earlier commencing at [466] of the primary judge's reasons (set out at [65] above) was not challenged in the appeal although, it, may have been challenged, indirectly, by ground 5 or ground 9 or both. However what is important is that his Honour rejected the contention that the administrator acted to exclude the appellant (and others) from the reserve 'by reason of' her race. It is not a large step to say that, even on the broader meaning of the expression "based on" discussed by Weinberg J in Macedonian Teachers' Association, the act of the administrator of excluding the appellant was not taken by reference to the appellant's race. It was taken by reference to her (and others) as a member of a dysfunctional community in which the young had been, and continued to be, at risk of serious harm.

72 But, for present purposes, the significance of this finding by his Honour is that, in our opinion, it is correct and provides a complete answer to the appellant's case founded on s 9 and, for that matter, founded on s 12.

The operation of section 10(1) of the RD Act

73 In general terms, s 10(1) of the RD Act is engaged where there is unequal enjoyment of rights between racial or ethnic groups: see Ward v Western Australia [2002] HCA 28; (2002) 213 CLR 1. Section 10(1) does not require the Court to ascertain whether the cessation of rights is by reason of race, with the clear words of s 10 demonstrating that the inquiry is whether the cessation of rights is 'by reason of' of the legislation under challenge. Further, s 10 operates, not merely on the intention, purpose or form of legislation but also on the practical operation and effect of legislation (Gerhardy v Brown, at 99; Mabo v Queensland [No 1] [1988] HCA 69; (1988) 166 CLR 186 at 230-231; Western Australia v Ward at 103).

74 Where property rights are concerned, s 10(1) does not require the Court to undertake a comparison between the contents of different species of property rights in order to ascertain whether they are equivalent. As the High Court stated in Ward v Western Australia (at 104):

In Mabo [No 1] the Court, by majority, rejected the argument that, as native title has different characteristics from other forms of title and derives from a different source, it can legitimately be treated differently from those other forms of title.

It was said that:

"s 10(1) of the [RDA] clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community."

In the joint judgment in the Native Title Act Case, it was said, to the same effect, that

[t]he [RDA] does not alter the characteristics of native title, but it confers on protected persons rights or immunities which, being recognised by 'the tribunals and all other organs administering justice', allow protected persons security in the enjoyment of their title to property to the same extent as the holders of titles granted by the Crown are secure in the enjoyment of their titles.

Only if there were some basis for distinguishing between different types of ownership of property or different types of inheritance might it be correct to say, in the context of s 10(1) of the RDA, that to deprive the people of a particular race of a particular species of property or a particular form of inheritance not enjoyed by persons of another race is not to deprive them of a right enjoyed by persons of that other race. No basis for such a distinction is apparent in the text of the Convention. Nor is any suggested by the provisions of the RDA.

(Footnotes omitted.)

75 On the basis of Ward v Western Australia (and other authorities which preceded it), it follows that it is not decisive that the putative property rights in issue in these proceedings are derived from a mix of statutory sources and are rights that are not widely enjoyed by members of the Australian community.

76 A convenient starting point in considering whether there was a contravention of s 10(1) is to ask whether the appellant together with the others on the reserve had a right or rights protected by this section. The learned primary judge analysed the existence and content of rights asserted by the appellant for the purposes of considering the operation of s 10(1) of the RD Act. Various rights were identified by the appellant. They included a right of ownership over the land constituted by the reserve and a right to manage the land. As discussed earlier (at [32]), his Honour accepted that the content of rights (at least for the purposes of s 10) is not determined by identifying a right enforceable under the general law. However, in the context of considering Article 5 of CERD which concerns "the right to own property alone as well as in association with others", his Honour noted the reference to a "right to own property" and concluded that the question of what was "owned" could only be resolved by looking to the effect of other domestic law determining issues of ownership. His Honour ultimately concluded that a right granted by statute must be interpreted in accordance with the domestic law which created it.

77 Article 5(d)(v) of CERD is aimed at the prohibition, in all its forms, of discrimination based on race, colour, or national or ethnic origin in relation to the rights of individuals to own property alone or in association with others. With respect to article 17 of UDHR (which provides that (1) everyone has the right to own property alone as well as in association with others; and (2) that no one shall be arbitrarily deprived of his property), the International Law Association (an international body comprised of international law academics and practitioners) noted that according to the United Nations:

the [UDHR's] standards became customary rules of international law and which as such were regarded as mandatory in the doctrine and practice of international law. One must assume that the right to own property would be included as one of these "mandatory" rules ... [It] would be difficult to maintain that a state's power to expropriate or seize individual property is wholly unlimited. (International Law Association, Committee on the Enforcement of Human Rights Law, "Final Report on the Status of the UDHR in National and International Law", Report of the Sixty Sixth Conference, 525 at 547-548)

78 In our view there is no textual foundation in either the RD Act or CERD for concluding that rights to property must be understood as ownership of a kind analogous to forms of property which have been inherited and adapted from the English system of property law or conferred by statute. As the High Court stated in Ward v Western Australia (at 105):

The rights upon which s 10 of the RDA operates are defined in s 10(2) to include "a right of a kind referred to in Article 5 of the [International] Convention [on the Elimination of all Forms of Racial Discrimination]". Relevant to the decision in Mabo [No 1], Art 5 includes "[t]he right to own property alone as well as in association with others" and "[t]he right to inherit"- rights which are identified in terms of complete generality. (Footnotes omitted)

79 Decisions which support the proposition that the right to own property in CERD encompasses indigenous forms of property holdings can be found in the jurisprudence of the Inter-American Court of Human Rights, where that Court has recognised the proprietary nature of communal rights (akin to native title rights as that term is used in the context of the common law of Australia) in several Latin American indigenous communities. As the Inter-American Court of Human Rights held in The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001) at [144], [148]–[149], a case which concerned indigenous land rights in Nicaragua :

"Property" can be defined as those material things which can be possessed, as well as any right which may be part of a person's patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value.

...

Through an evolutionary interpretation of international instruments for the protection of human rights, taking into account applicable norms of interpretation and pursuant to article 29(b) of the Convention -which precludes a restrictive interpretation of rights-, it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua.

Given the characteristics of the instant case, some specifications are required on the concept of property in indigenous communities. Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.

(See also Case of Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March 2006 at [128]; Case of the Yakye Axa Indigenous Community v. Paraguay Judgment of June 17, 2006.)

80 As noted above at [32], the learned primary judge considered the issue of whether the appellant possessed property rights for the purposes of Article 5 of CERD by considering whether such rights were created by statute, and whether the appellant had any human rights of ownership in relation to the reserve. However, although the right to own property alone or in association with others is a customary rule of international law, the right to own property, like all rights, is not absolute in nature. As was observed in a report by Luis Valencia Rodriguez, ("The right to own property alone as well as in association with others", final report submitted to the Economic and Social Council of the United Nations Commission on Human Rights, E/CN4/1993/15, 1993 at [461]):

[i]t is generally recognized that a State has a right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contribution or penalties. It is important that those regulatory powers of the State should not result in seizure of property without compensation and in "arbitrary" or "illegal" seizure.

81 It has long been recognised in human rights jurisprudence that all rights in a democratic society must be balanced against other competing rights and values, and the precise content of the relevant right or freedom must accommodate legitimate laws of, and rights recognized by, the society in which the human right is said to arise. As Mason J stated in Gerhardy v Brown (at 102):

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.

The concept of human rights as it is expressed in the Convention and in the United Nations Universal Declaration of Human Rights evokes universal values, i.e. values common to all societies. This involves a paradox because the rights which are accorded to individuals in particular societies are the subject of infinite variation throughout the world with the result that it is not possible, as it is in the case of a particular society, or in the case of homogeneous societies which are grouped together, e.g. the European Economic Community, to distil common values readily or perhaps at all. Although there may be universal agreement that a right is a universal right, there may be no universal or even general agreement on the content of that right.

82 The overwhelming evidence of the Gordon Inquiry and the Hooker Inquiry was that sexual and other forms of violence were pervasive at Reserve 43131 (findings to this effect were made by the primary judge) and, it is plain that the revocation of the 2002 management order was effected to obviate the risks to the safety and welfare of (particularly) women and children residing at Reserve 43131. On that basis, the act of the Western Australian Parliament revoking the 2002 management order would inform the content of the human right being asserted by the appellant. That is, the right to occupy and manage the land conferred by statute was subject to the contingency that the right would be removed or modified if its removal or modification was necessary to protect vulnerable members of the community enjoying the right of occupation and management. We accept that it will always be a question of degree in determining the extent to which the content of a universal human right is modified or limited by legitimate laws and rights recognized in Australia. We also emphasise that these observations are not intended to imply that basic human rights protected by the RD Act can be compromised by laws which have an ostensible public purpose but which are, in truth, discriminatory. However, we doubt very much that this is such a case.

83 In the present case it is undesirable to explore, to the point of conclusion, what might be the content of the rights or freedoms asserted by the appellant concerning the occupation and management of the reserve land having regard to legitimate laws and rights recognized in Australia. To the extent that the rights in question (which were derived from a mix of statutory instruments) were property rights, such rights were not absolute in nature given the general recognition that a State has a right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest. It follows that any interference with the enjoyment of the right, provided that such interference is effected in accordance with the legitimate public interest (in this case to protect the safety and welfare of inhabitants at Reserve 43131), will not be inconsistent with s 10 of the RD Act. Indeed, although the authorities on s 10 of the RD Act recognise that there is no basis for distinguishing between different species of ownership of property, no property right, regardless of its source or genesis, is absolute in nature, and no invalid diminution of property rights occurs where the State acts in order to achieve a legitimate and non-discriminatory public goal.

84 The appeal should be dismissed with costs.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Moore and Tamberlin.

Associate:

Dated: 6 June 2008

Counsel for the Appellant:	G McIntyre SC
Solicitor for the Appellant:	Corser & Corser
Counsel for the Respondents:	G Tannin SC with S Wright
Solicitor for the Respondents:	State Solicitor for Western Australia
Counsel for the Intervener:	K Eastman
Solicitor for the Intervener:	Human Rights and Equal Opportunity Commission
Dates of Hearing:	14 and 15 November 2007
Date of Judgment:	6 June 2008