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Australian Indigenous Law Reporter |
Supreme Court of South Australia (Doyle CJ, Bollen and Debelle JJ)
25 August 1995
Aborigines -- Aboriginal Heritage Act 1988 (SA), s. 35 -- Ministerial authorisation to divulge information in contravention of Aboriginal tradition which would otherwise be a criminal offence -- Validity of the provision -- Racial Discrimination Act 1975 (Cth) -- Judicial review of the validity of particular authorisations -- Aboriginal Heritage Act 1988 (SA), s. 13 -- Requirement of consultation.
In the context of the proceedings of the Hindmarsh Island Bridge Royal Commission established by the Government of South Australia, the Minister for Aboriginal Affairs granted authorisations on 7 July 1995 and on 27 July 1995 under s. 35(2) of the Aboriginal Heritage Act 1988 (SA). The effect of such authorisation is to permit the divulging of information in contravention of Aboriginal tradition which would otherwise constitute a criminal offence under s. 35(1) of the Act.
The Aboriginal Legal Rights Movement Inc. sought declarations that s. 35(2) was invalid and/or that the authorisations were invalid.
The Full Court of the Supreme Court rejected arguments that s. 35(2) was invalid for inconsistency with s. 10 of the Racial Discrimination Act 1975 (Cth) (`RDA'), or that the authorisations were invalid for inconsistency with s. 9 of the RDA. Doyle CJ held that the Act and s. 35 were "special measures" within the meaning of Art. 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination, as specifically permitted by s. 8 of the RDA. Gerhardy v. Brown [1985] HCA 11; (1985) 159 CLR 70 was referred to. The Chief Justice said:
In my opinion taken as a whole s. 35 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.
As to the authorisations, His Honour said:
If s. 35 is valid then the performing of the very sort of act which s. 35 envisages could hardly be invalid.
He went on to point out that an authorisation does no more than remove the special protection of criminal sanction, and does not of itself oblige or permit any person to divulge information. Bollen J and Debelle J agreed with the Chief Justice.
But the authorisations were held invalid for failure of the Minister to take reasonable steps to consult as required by s. 13 of the Aboriginal Heritage Act 1988 (SA). Bollen J and Debelle J agreed.
Doyle CJ also held the authorisations invalid on the ground that they did not sufficiently identify the information which may be divulged. Bollen J and Debelle J both chose not to decide on that ground. Other grounds of administrative law challenge were rejected.
The Hindmarsh Island Bridge Royal Commission reported in December 1995. See Inquiries and Reports, page 315.
See also (1995) 3(76) Aboriginal Law Bulletin 23.