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Nettheim, Garth; Rees, Neil --- "Discrimination and Land Rights" [1983] AboriginalLawB 27; (1983) 1(9) Aboriginal Law Bulletin 2


Discrimination and Land Rights

by Garth Nettheim and Neil Rees

In December 1982 counsel appearing on behalf of Robert John Brown at the Oodnadatta Court of Summary Jurisdiction argued that the South Australian Pitjantjatjara Land Rights Act contravened provisions of the Commonwealth Racial Discrimination Act. Mr Brown, an Aboriginal man from NSW, had come before the court charged under section 19 of the Pitjantjatjara Land Rights Act with entering Pitjantjatjara lands without a permit.

The magistrate at Oodnadatta stated a case for the opinion of the South Australian Supreme Court. On 21 July 1983 Millhouse JJ decided that section 19 of the Pitjantjatjara Land Rights Act was inconsistent with section 9 of the Racial Discrimination Act and therefore invalid by reason of the operation of section 109 of the Constitution. The decision in this case, Gerhardy v Brown (1983) 9 AboriginalLB 8, may have extraordinary consequences, for whilst Millhouse J. restricted his decision to declaring that section 19 of the South Australian Act was invalid he concluded his judgment by stating that "it is easy to see how it may be argued that other sections of the Act are invalid too". The problems created by this decision are not confined to South Australia. If Millhouse J. is correct all State land rights legislation may be invalid.

Section 19(l) of the Pitjantjatjara Land Rights Act reads –

"A person (not being a Pitjantjatjara) who enters the lands without the permission of Anangu Pitjantjatjaraku is guilty of an offence and liable to a penalty not exceeding the maximum prescribed by subsection (2)"

Millhouse J. decided that this was a provision based on race which discriminated against any person who was not a Pitjantjatjara. Section 9 of the Racial Discrimination Act renders unlawful any restriction or preference based on race which impairs any human right or fundamental freedom. The section refers to the human rights and fundamental freedoms listed in the International Convention on the Elimination of all forms of Racial Discrimination. "The right to freedom of movement" is one of the rights included in Article 5 of the Convention. Millhouse J. concluded that as section 19 of the Pitjantjatjara Land Rights Act placed a restriction on movement in Pitjantjatjara lands on the basis of race, it contravened section 9 of the Racial Discrimination Act.

As another of the human rights listed in Article 5 of the Convention is "the right to own property alone as well as in association with others" it may be argued that any legislation which restricts the right to own certain lands to Aboriginal persons or organizations contravenes section 9 of the Commonwealth Act. Legislation restricting access to Aboriginal sacred sites may also be a restriction on freedom of movement which is based on race. At a time when Aborigines are starting to make some headway in the battle against 200 years of dispossession of their lands, it is the ultimate irony that an Act, designed to provide remedies for the victims of racial discrimination, establishes another legal hurdle to jump.

There are broad grounds for challenging the decision of the South Australian Supreme Court. Millhouse J. has taken a strict constructionist approach to the Racial Discrimination Act. However as Brennan J pointed out in Koowarta v Bjelke-Petersen[1], when an Australian court interprets legislation which is drawn from a treaty the language of the statute should be given the meaning attributed to it by international law. It appears that the definition accorded to the term discrimination has differed between international law and municipal law. In international legal usage discrimination "does not mean any distinction or differentiation but only arbitrary, insidious or unjustified distinctions, unwanted by those made subject to them"[2]. Accordingly distinctions which are made for rational, benign or justified purposes will simply not constitute "discrimination" as forbidden in the various international instruments. The notion of reconciling minority rights with prohibitions of discrimination is not new. When the UN Subcommission on the Prevention of Discrimination and Protection of Minorities was first established it set out to define its terms of reference. "Protection of minorities" was defined

as the protection of non-dominant groups which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve the basic characteristics which they possess and which distinguish themfrom the majority of the population. Differential treatment of groups or individuals was justifiable when exercised in the interests of their contentment and the welfare of the community as a whole.

In equal opportunity legislation, discrimination is defined more narrowly[3]. It means any distinction based on race or any practice which, without good reason, operates to restrict the opportunities of a particular race. It does not encompass positive or benign discrimination which may be permissible in international law.

It is not an arbitrary, invidious or unjustified distinction to grant land to Pitjantjatjara people and to make it an offence to enter that land without permission. The Anangu Pitjantjatjaraku have a clearly identifiable traditional association with the relevant land and it is a reasonable legislative distinction to grant such people ownership of this land. Such a legislative act does not invidiously impair the human rights or fundamental freedoms of others so long as it is a reasonable measure in response to the special needs and characteristics of the recipients of the grant of land.

There are stronger grounds for directly challenging the decision in Gerhardy v Brown. Articles 1.4 and 2.2 of the Convention permit `special measures' for the protection and advancement of certain racial groups. Section 8 of the Racial Discrimination Act excludes the `special measures', to which Article 1.4 refers, from the Act's prohibitions against racial discrimination. Both Articles 1.4 and 2.2 contain a qualification that 'special measures' should not lead to the maintenance of separate rights for different racial groups. Millhouse J. replied on this qualification when rejecting an argument that section 19 of the Pitjantjatjara Land Rights Act was a 'special measure' saved by the operation of Article 1.4 and section 8.

He argued that as the Pitjantjatjara Land Rights Act was intended to be permanent it must inevitably lead to the maintenance of separate rights for Pitjantjatjara people. This argument is not convincing for. the protection afforded by Article 1.4 can only be lost when separate rights for different racial groups are maintained after the `special measures' have achieved the purpose of securing protection and advancement of the particular racial groups for whose benefit they were formulated. It is incorrect to argue that because a `special measures' Act does not limit its own duration it will inevitably lead to the maintenance of separate rights for different racial groups. Once it is demonstrated that legislation qualifies as a 'special measure' within Article 1.4 it should be treated as outside the scope of the prohibitions contained in the Racial Discrimination Act until it is established that its objectives have been achieved. At that time alone would a failure to repeal or amend the legislation constitute a breach of the Act.

Millhouse J. rejected an argument that the right protected by section 19 of the Pitjantjatjara Land Rights Act to restrict access to Anangu Pitjantjatjaraku lands to the lawful owners, was no different from the right possessed by any citizen to restrict access to his/her lands and therefore did not amount to unlawful discrimination. He distinguished the rights of a private property owner from those of the Pitjantjatjaras by looking at the manner in which the Anangu Pitjantjatjaraku lands were acquired. This distinction is irrelevant to the question of whether section 19 is invalid. That section simply provides that it is an offence to enter the lands without the permission of the owners. It was alleged that section 19 was contrary to section 9 of the Racial Discrimination Act because it was a racially discriminatory impairment of "the right of freedom of movement and residence within the border of the state". This right is found in Article 5 of the Convention. So too is "the right to own property alone as well as in association with others". This latter right would be rendered meaningless if there could be no restrictions to the right to freedom of movement and residence in regard to private land. Indeed one of the hallmarks of "property" in our legal system is the right to exclude others. This principle was clearly enunciated in Milirrpum v Nabalco Pty Ltd and the Commonwealth[4]. Accordingly it is incorrect to suggest that section 19 is racially discriminatory when it does no more than protect the right of Anangu Pitjantjatjaraku to restrict access to property which it owns. Of course this does not mean that the actual grant of land to Anangu Pitjantjarjaraku escapes the scrutiny of the Act but it is a mistake to invalidate the power of exclusion when it is in fact the restriction on ownership which is being challenged. To confuse the arguments deprives both the South Australian government and the Anangu Pitjantjatjarjaku of the opportunity to argue that the grant of land and any consequential powers of exclusion are quite lawful.

Section 9 of the Racial Discrimination Act declares that it is unlawful to discriminate on the basis of "race, colour, descent or national or ethnic origin." These terms are not defined in the Act or the Convention. There is undoubtedly an Aboriginal race of people but it is strongly arguable that there is no Pitjantjatjara race. Yet it may be argued that section 9 prohibits a preference to a sub-group of a particular race. United States discrimination law supports this proposition.[5] However, if preference to a subgroup of a race is not prohibited by section 9 the only relevant ground of discrimination is "descent". This word does not appear in any other sections of the Act which render discrimination unlawful. It was recently described by Fox J. as an "entirely elliptical term".[6]

The arguments against the decision in Gerhardy v Brown are complex. It is possible that the appellate courts will adopt a narrow and literal approach to the Racial Discrimination Act. If the decision of Millhouse J. is upheld a welter of challenges to land rights and sacred sites legislation will follow. The circumstances of this case highlight the need for the Federal government to review the Racial Discrimination Act; in fact this case was one of the reasons for the establishment of a Task Force on Human Relations to advise the Attorney-General on the operations of the Act. The Racial Discrimination Act has not been a success.

It is based upon a Convention which is unclear. It may be argued that it is assimilationist in tone. The Convention does not clearly address the claims of indigenous populations for differential status on a long term basis. If the Convention does not permit separate development of indigenous peoples in accordance with their wishes it is contrary to federal policy of self-determination for Aboriginal people.

If the courts construe the term discrimination broadly and permit legislatures to make racial distinctions and differentiations which are not arbitrary, insidious or unjustified these concerns do not arise; but we are then confronted with a different problem. Sections 11 to 15 of the Racial Discrimination Act seek to promote equality of opportunity. These sections render it unlawful to discriminate on the grounds of race in areas such as employment and housing. If these provisions are to operate effectively discrimination must be defined narrowly. Any distinctions based on race or any practices which, without good reason, operate to restrict the opportunities of a particular race must be rendered unlawful. If discrimination is interpreted to have this meaning in sections 11 to 15 it is out of step with the meaning which it may have been intended to have in section 9. The fundamental problem is that the Racial Discrimination Act seeks to do two very different things. Section 9 is a 'Bill of Rights' type provision; it is a limited Australian version of the equal protection clauses in the 5th and 14th Amendments to the United States Constitution. Sections 11 to 15 are equality of opportunity provisions. As the United States Supreme Court has pointed out discrimination does not have the same meaning in each context.[7] Clarification is needed.


[1] (1982) 29 ALR 417, 491-2

[2] W.A. McKean, `The Meaning of Discrimination in International and Municipal Law' (1970) 44 BYIL 178, 185-6

[3] See eg L.Lustgarten, Legal Control of Racial Discrimination (1980 London) 3-37

[4] (1971) 17 FLR 141

[5] See eg Phillips v Martin Marietta [1971] USSC 14; (1971) 400 U.S. 542

[6] Lewis v Trebilco Unreported Supreme Court of Norfolk Island 30 August 1983. Judgement at p.14

[7] See eg Washington v Davis [1976] USSC 107; (1976) 426 U.S. 229


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