Editors --- "Bropho v State of Western Australia - Case Summary" [2005] AUIndigLawRpr 6; (2005) 9(1) Australian Indigenous Law Reporter 37

• Bropho V State Of Western Australia
• Facts:
• Held, Directing The Parties To Confer On Draft Orders:
• Case Extract:

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Court and Tribunal Decisions - Australia

Bropho v State of Western Australia

Federal Court of Australia (Nicholson J)

15 September 2004

[2004] FCA 1209

Discrimination — racial discrimination — motion to strike out aspects of application and claim — motion brought on grounds of no jurisdiction or no reasonable cause of action — allegations that enactment of State legislation contrary to Commonwealth legislation — absence of compliance with complaint procedure — whether allegation of inconsistency of State enactment should be struck out — whether allegations of discrimination arising from enactment or actions of authorised party should be struck out — whether other aspects of pleadings embarrassing

Constitutional law — inconsistency — claim that State enactment invalid because of inconsistency with Commonwealth legislation — whether claim on ground of inconsistency open — claim relating to s 9 of the Racial Discrimination Act 1975 (Cth) and the Reserves (Reserve 43131) Act 2003 (WA) — whether such claim precluded by decision of the High Court in Re East; ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354

Facts:

On 19 July 1994, Reserve 43131 (‘the Reserve’) was vested in its inhabitants, the members of the Swan Valley Nuyngah Community Aboriginal Corporation (‘the Corporation’), for the express ‘Use and Benefit of Aboriginal Inhabitants’, pursuant to s 33 of the Land Act 1933 (WA). On 11 October 2002, the responsible Minister revoked the vesting order and placed the ‘care, control and management’ of the Reserve with the Corporation, again for the ‘use and benefit of Aboriginal inhabitants’, pursuant to s 46 of the Land Administration Act 1997 (WA).

The Corporation managed the Reserve for the benefit of Aboriginal inhabitants in accordance with the traditional laws and customs of the Nyungah people. This included according proper respect to the significance of the Reserve as the resting place of the ancestors of Aboriginal people of Nyungah origin, as an area of religious significance, and as a traditional camping ground.

On 14 May 2003, the Premier of Western Australia announced that the Government intended to close down the Nyungah camp because of allegations of abuse and violence perpetrated at the camping ground. On 12 June 2003, the Governor of Western Australia assented to the Reserves (Reserve 43131) Act 2003 (WA) (‘the Reserves Act’), which removed the Reserve from the care, control and management of the Corporation and placed care, control and management with the Aboriginal Affairs Planning Authority (‘the Authority’).

On 13 June 2003, an employee of the Authority directed all persons present on the Reserve to leave, and on 14 June 2003 directed that Aboriginal persons of Nyungah origin, members of the Corporation, Aboriginal inhabitants of the Reserve, and persons associated with them, may not enter the Reserve.

The Applicant, acting on behalf of the Corporation, sought a number of forms of relief. She argued that the Reserves Act was invalid because it was in contravention of, and inconsistent with, the Racial Discrimination Act 1975 (Cth). The Applicant also sought damages, and an injunction to remove the respondents from the Reserve.

Held, directing the parties to confer on draft orders:

1. If the Racial Discrimination Act 1975 (Cth) is invoked, it provides its own exclusive regime for remedying contraventions: [52]. Re East; ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 applied.

2. Those of the Applicant’s claims that seek to invoke the Racial Discrimination Act 1975 (Cth) are therefore beyond the jurisdiction of the Court because the remedies available in relation to those claims are provided for in the Human Rights and Equal Opportunity Commission Act 1986 (Cth): [53]. Re East; ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 applied.

3. The issue of constitutional inconsistency between s 9 of the Racial Discrimination Act 1975 (Cth) and a State enactment is open to argument. The issue of inconsistency precedes any act under either State or Commonwealth law: [58]. Mabo v Queensland (1998) 166 CLR 186 considered; Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 applied.

4. Subsequent argument will inform the issue of the validity or invalidity of the Reserves Act on the basis of inconsistency with s 9 of the Racial Discrimination Act 1975 (Cth): [59].

Case Extract:

51. I agree with the respondents’ submission that the removal of the relevant provisions from Part III of the Discrimination Act [Racial Discrimination Act 1975 (Cth)] and the insertion of them into the HREOC Act [Human Rights and Equal Opportunity Commission Act 1986 (Cth)] does not materially change the scheme of the Discrimination Act.

52. I therefore also accept that Nguyen [Re East; ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354] remains a binding authority to the extent of its ratio. That is, relevantly it is an authority binding me to the principle that the Discrimination Act, if sought to be invoked, provides its own exclusive regime for remedying contraventions.

53. It is a question of fact whether the pleadings of the applicant seek to invoke the Discrimination Act or whether, as the applicant claims, they seek only to raise the issue of constitutional inconsistency. I consider that the following claims in the applicant’s pleadings seek to invoke the Discrimination Act: [paras A.2, A.3(a) and (b) of the application; paras 45–55 and paras (ii), (iii)(A) and (B) of the relief claimed in the re-amended claim] ...These pleadings raise issues beyond the jurisdiction of this Court because the remedies available in relation to them are those provided for in the HREOC Act and sanctioned in that respect by the authority of Nguyen. As they therefore lie beyond the jurisdiction of the Court, the respondents’ motion for strike out should be allowed in relation to them. The pleadings in relation to claim (ii) concerning the enactment of the Reserves Act [Reserves (Reserve 43131) Act 2003 (WA)] as constituting a contravention of s 9 of the Discrimination Act is in any event a matter conceded by the applicant in accepting that the enactment of legislation is not an ‘act’ for the purposes of s 9 of the latter Act.

54. The next question is whether the pleadings relating to constitutional inconsistency fall within the same principle. Those pleadings appear in par A.1(d) of the application, pars 41 to 44 of the re-amended statement of claim and par (i)(D) of the relief claimed.

55. In Gerhardy v Brown [(1985) [1985] HCA 11; 159 CLR 70] it was accepted by members of the High Court that it is open to argument whether any particular State enactment is or is not inconsistent with s 9 of the Discrimination Act. Mason J said at 92–93:

The operation of s 9 is confined to making unlawful the acts which it describes.... This is not to say that s 9 of the [Discrimination Act] cannot operate as a source of invalidity of inconsistent State laws, by means of s 109 of the Constitution. Inconsistency may arise because a State Law is a law dealing with racial discrimination, the Commonwealth law being intended to occupy that field to the exclusion of any other law: Viskauskas v Niland (1983)153 CLR 280. Or it may arise because a State law makes lawful the doing of an act which s 9 forbids: see Clyde Engineering Co Ltd v Cowburn [1926] HCA 6; (1926) 37 CLR 466 at 490.

That possibility is also recognized by Brennan J at 121, 131 and Deane J at 146. See also Mabo at 203.

56. I do not accept the submission for the respondents that such a possibility must now be considered to be incorrect in the light of Nguyen and Ward [Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1]. Those authorities address the principle of the exclusivity of the remedies in respect of contraventions of the Discrimination Act. As the dicta in Gerhardy makes apparent, the issue of constitutional validity precedes the application of any remedy to a contravention.

57. It is important to distinguish each of the following issues from each other:

(1) whether there is a constitutional inconsistency between a State enactment and the provisions of s 9 of the Discrimination Act;

(2) whether the enactment by a State of legislation is an ‘act’ for the purposes of s 9 of the Discrimination Act (it being common ground here that it cannot be);

(3) whether an act done pursuant to an authorisation in a valid State enactment can give rise to a breach of s 9 of the Discrimination Act;

(4) Whether acts allegedly in contravention of s 9 attract remedies other than those provided by the Discrimination Act (which, on the authority of Nguyen, they could not).

The first of those questions precedes the others and is open to argument independently of them.

58. I do not consider that the dicta in Mabo [Mabo v Queensland (1988) 166 CLR 186], relied upon by the respondents, supports the proposition that the issue of constitutional inconsistency between s 9 of the Discrimination Act and a State enactment is not open to argument. When Mason CJ (at 197) stated that the State Act there in question was declaratory, he was addressing the issue of inconsistency and an argument why inconsistency should not be found in that case. Likewise when Wilson J (at 203–204), with whom Dawson J agreed (at 242), stated that the inconsistency depended upon whether the power was exercised in a discriminatory way, he was considering an argument on the issue of inconsistency. As the dicta of Gibbs CJ in Gerhardy at 81 makes apparent, the issue of inconsistency requires that both the Commonwealth and State enactments are in existence, the Commonwealth having no power to prohibit an inconsistent State enactment and s 109 being the means by which inconsistency is resolved. Necessarily, that issue potentially comes into being on the enactment of a State law being arguably inconsistent with a Commonwealth law and so the issue of inconsistency precedes any act under either laws.

59. On this application for strike out, it is not germane to consider whether any inconsistency could be made out between s 9 of the Discrimination Act and the Reserves Act. All that must here be determined is whether the issue is open for argument or whether the pleading to that effect should be struck out because of the decision of the High Court in Nguyen. In my view the latter is not the case and the motion should not lead to a strike out in that respect. It will be for subsequent argument to inform the issue of invalidity (or validity) of the Reserves Act on the basis of the inconsistency with s 9 of the Discrimination Act.

...

62. As reference to the affidavit of Mr Wahl of 5 July 2004 discloses, the applicant filed a complaint with the Commission on 13 June 2004. In that complaint she alleges that the enactment of the Reserves Act was an act which breached s 9 of the Discrimination Act and that the actions of the third respondent breached the same Act. On 14 June 2004 her solicitors wrote to the Commission requesting that the President terminate the complaint under s 46PH(1)(g) of the HREOC Act on the basis that it could more effectively and conveniently be dealt with by the Court. No argument is made by the applicant that this second complaint should be taken as curing any jurisdictional inadequacies in the first complaint.

63. There is also before the Court an amended notice of motion brought by the applicant to strike out portions of the defence of the first, second and third respondents on the grounds that no reasonable defence is disclosed or that they have a tendency to cause prejudice, embarrassment or delay in the proceeding. Extensive written submissions, supplemented by oral submissions, have been made available to the Court.

64. However, it does not seem to me appropriate to proceed to consider the applicant’s motion until further clarification from the parties in two respects. The first is whether, in the light of these reasons, the applicant intends to modify her pleading in any way which makes inappropriate any of the submissions or whether the respondents intend to amend their defence in any way having the same effect. The second is whether the applicant intends to pursue the second complaint and, if so, whether such complaint is in whole or partial substitution for the first complaint and what consequent effects those changes may have on the pleadings in issue. Directions will therefore be given to enable the parties to clarify these matters and the extent to which, in these changed circumstances, the applicant’s motion is still to be pursued.