Rees, Neil --- "Gerhardy v Brown" [1983] AboriginalLawB 33; (1983) 1(9) Aboriginal Law Bulletin 8

• Gerhardy V Brown

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Gerhardy v Brown

Gerhardy v Brown

Supreme Court of South Australia at Adelaide (Millhouse J.)

21 July, 1983

Casenote by Neil Rees

This matter came before the South Australian Supreme Court by way of case stated from the Magistrate sitting at the Oodnadatta Court of Summary Jurisdiction.

The defendant was charged under 19 (1) of the Pitjantjatjara Land Rights Act with entering Pitjantjatjara lands on 27 February, 1982 without the permission of Anangu Pitjantjatjaraku.

Under the Pitjantjatjara Land Rights Act certain lands in the north-west of South Australia were granted in fee simple to the Anangu Pitjantjatjaraku people. The Act establishes a body corporate known as Anangu Pitjantjatjaraku. No persons other than Pitjantjatjaras (and those excepted in 19 (8) of the Act) may enter the lands without the permission of Anangu Pitjantjatjaraku.

The charge against the defendant was heard at the Oodnadatta Court of Summary Jurisdiction in December 1982. The findings of fact made by the Magistrate may be summarised as follows.

The defendant is an Aboriginal man of N.S.W. origin. He entered the lands with two other Aboriginal persons, one of whom was a Pitjantjatjara man. The defendant did not have a written permit to enter the lands. He entered the lands for the purposes of applying the Anangu Pitjantjatjaraku for a permit to put forward proposals concerning his mining company Mama Garumpa and to attend a religious meeting.

During the hearing at Oodnadatta Court of Summary Jurisdiction the defendant raised questions of law, including questions of constitutional law. Notices were served upon the Commonwealth and State Attorneys-General pursuant to s. 78B of the Judiciary Act. Neither Attorney-General intervened in the proceedings at Oodnadatta but the South Australian Attorney-General appeared in the proceedings before the Supreme Court. The Magistrate sought the opinion of the Supreme Court on a number of questions of law. The questions upon which the case ultimately turned were –

1. Is the Pitjantjatjara Land Rights Act 1981 hereinafter referred to as "the Act" and in particular section 19 and any other section thereof relevant to these proceedings, invalid or restricted in its operation by reason of a law of the Commonwealth, and in particular, the Racial Discrimination Act 1975?

2. If the answer to Question 1 is that the Act is restricted in its operation, does the complaint herein fall within the area of valid operation of the Act?

In the course of his judgment Millhouse J. summarised the arguments presented by Mr. Gray, counsel for the defendant –

Mr. Gray's argument is that section 19 of the Act, if not the whole of the Act, is in conflict with the Commonwealth Racial Discrimination Act 1975 ("The Commonwealth Act"): Section 19 discriminates against any person who is not a Pitjantjatjara (and in some respects against those who are): it is discrimination based on race: the Commonwealth Act covers the field of racial discrimination and prohibits it: therefore pursuant to section 109 of the Commonwealth Constitution the Act (or at least section 19 and any other sections which go with it) is invalid.

Millhouse J. then discussed the asserted inconsistency between the Racial Discrimination Act and the Pitjantjatjara Land Rights Act. He stated –

The Commonwealth Act itself has been the subject of scrutiny in the High Court. In Koowarta v Bjelke-Petersen and Others [1982] HCA 27; (39 ALR 417) a majority of the members of the Court held that sections 9 and 12 are valid laws with respect to external affairs within section 51 (XXIX) of the Commonwealth Constitution. Quite recently the Commonwealth Act itself and Koowarta have been considered again in the Commonwealth and Another v The State of Tasmania and Others (The Tasmanian Dam case). Judgement was given on the 1st July 1983. the references in the official pamphlet are @ 81, per Mason J, @ 153 et seq per Wilson J, @ 190 and 220 per Brennan J, @ 239 per Deane J and @ 285 et seq 291 and @ 306 per Dawson J. Nothing said by the members of the High Court has thrown any doubt on the validity of the Act nor on the decision in Koowarta - rather to the contrary.

Mr Gray cited to me the decision of the High Court (judgment was given on the 19th May) in Viskauskas & Another v Niland. In that case the question was whether the New South Wales Anti-Discrimination Act (or parts of it) could stand because of the Commonwealth Racial Discrimination Act. The High Court decided that parts of it cannot. The judgement is a joint one of Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ. In the course of the judgment Their Honours say (@ 11 and 12 of the official pamphlet - it is not yet otherwise reported so far as I know):[1]

Sometimes it may be difficult to ascertain the precise limits of the field which the Commonwealth legislation reveals an intention to cover, but that is not so in the present case. The Commonwealth Act deals with the subject of racial discrimination. It is true that it does so for the purpose of giving effect to the Convention, but the parties to the Convention "undertake to prohibit and to eliminate racial discrimination in all its forms": Article 5; see also Article 2. Parties to the Convention are to "assure to everyone within their jurisdiction effective protection and remedies": Article 6. The Commonwealth Parliament has chosen the course of itself legislating to prohibit racial discrimination, and having done so it can only fulfil the obligation cast upon it by the Convention if its enactment operates equally and without discrimination in all the States of the Commonwealth. It could not, for example, admit the possibility that a State law might allow exceptions to the prohibition of racial discrimination or might otherwise detract form the efficacy of the Commonwealth law. The subject matter of the Commonwealth Act suggest that it is intended to be exhaustive and exclusive, and this conclusion is supported by the fact that the provisions of Part II ( and especially those of section 9) are expressed with complete generality, and by the further fact that section 6 reveals an intention to bind the Crown in right of each State as will as the Crown in right of the Commonwealth. It appears from both the terms and the subject matter of the Commonwealth Act that it is intended as a complete statement of the law for Australia relating to racial discrimination.

I draw attention particularly to the passage I have underlined.

Being bound by what the High Court has said I have to consider section 19 (1) of the State Act in the light of the Commonwealth Act and of Article 5(d) (i) of the Convention which is ratified by it. To me the conclusion is inexcapable. Section 19 is in confict with 5(d) (i) of the Convention: section 19 interferes with "the right to freedom of movement" on the basis of race: it prohibits anyone who is not a Pitjantjatjara from entering freely a very large part of the State: anyone who is not a Pitjantjatjara is kept out (subject to exceptions) unless with permission. That is directly contrary to section 9 of the Commonwealth Act and Article 5 of the Convention which requires the right "to freedom of movement": section 19 of the Act and section 9 of the Commonwealth Act (and Article 5 of the Convention) are inconsistent within the meaning of section 109 of the Commonwealth constitution.

In fairness to the arguments of Mr Selway I should make clear why I reject them. The core of his case is to be found in the definition of "Pitjantjatjara;; in section 4 of the Act:

"Pitjantjatjara" means a person who is

(a) a member of the Pitjantjatjara, Yungkutatjura or Ngaanatfara people;
and
(b) a traditional owner of the lands, or a part of them:"

Mr Selway argued vigorously that this was a definition based on traditional ownership and not on race. I simply cannot accept that: it is based on both-race in (a) and traditional ownership in (b): they are linked by the conjunctive "and". That the definition is at least partly a racial one is enough, I put if that way as it may well be that the only "traditional owner(s) of the lands" are Pitjantjatjaras anyway and therefore the second part of the definition is based on race too but that is a matter of evidence.

Every person but a Pitjantjara is discriminated against and an essential ingredient in the discrimination is race, viz., the first, part (a), of the definition of "Pitjantjatjara".

Incidentally it is convenient to deal here with an argument of Mr Gray that in this definition the word "and" between (a) and (b) in the definition of "Pitjantjatjara" is disjunctive and not conjunctive. I can see no reason to read the definition in that way. I refer to Braham v Bannigan [1913] SALawRp 13; (1913 SALR 132, especially @ 135 per Gordon J and (P 138 per Murray I (as he then was) ). I also refer to the judgment of another distinguished South Australian, the Honourable Sir Richard Blackburn in Re The Licensing Ordinance (13 FLR 143 @ 146 and 147).

Finally I refer to Pearce ("Statutory Interpretation in Australia" 2nd edition) @ 28 and 29. Having read the definition of "Pitjantjatjara" in the light of these cases and the discussion in Pearce I do not believe that the Legislature has made a mistake nor that the result of using the conjunctive "and" is extraordinary and this does not come into the second category mentioned by Sir Richard Blackburn. The word "and" is used in this definition with its usual, conjunctive meaning.

I refer to two other of Mr Selway's arguments.

The first of them he used to get over the difficulty created for him by Article 1 clause 4 of the Convention. He said that the Act comes within the proviso to that clause 4 because the South Australian Parliament may at any time amend or repeal it: there may be either amendment or repeal in due course. I cannot accept that argument either. The Pitjantjatjara Land Rights Act has all the characteristics of an Act intended to be permanent.

For the other argument Mr Selway likened "the lands" to his own private house. He said that just as his house is his own private property and he is entitled to keep people out of it, so "the lands" are to be the private property of the Pitjantjatjaras. At first I was puzzled at the distinction between the two even though I was sure there was a distinction. The distinction is this: Mr Selway owns his house and its land - and may do so - because as a citizen, not distinguished in this regard on the basis of race, religion or anything else, he bought it: what the Act does, in contrast, is to provide that a group of people, on the basis of their race, shall own a tract of land: furthermore people do not need a permit to go on to Mr Selway's land - he may order them off and they may then become trespassers but at first they are entitled to enter it - whereas everyone who is not a Pitjantjatjara (with some exceptions) needs written permission to go on to "the lands" at all.

On the authority of Viskauskas v Niland section 19 of the State Act is invalid. Therefore the prosecution of the defendant must fail.

Are there other sections of the Act which are so linked with section 19 as to fall with it? Is it severable from the rest of the Act thus allowing the remainder to stand? Sections 18 and 19 are grouped together in Part III Division 11. Section 18 merely says:

"All Pitjantjatjaras have unrestricted rights of access to the lands."

There is nothing discriminatory in that for it is not exclusive. Further I cannot see any other section which is consequential on section 19 or which requires the support of section 19 to be effective; nor is the scheme of the Act destroyed because section 19 is excised.

I refer again to Viskauskas v Niland (@ 15):-

"Although, as we have indicated, we consider that Pt.II of the State Act is inconsistent with the Commonwealth Act, it is sufficient for present purposes to hold that the provisons of s.19 and to complaints for a breach of that section, are inconsistent with the Commonwealth Act and to that extent to which they relate to s.19 and to complaints for a breach of that section, are inconsistent with the Commonwealth Act and to that extent are rendered invalid by s.109."

Upon that authority I am content to decide only that section 19 of the Act is invalid. That is sufficient to answer questions I and 2 of the Case. However by reference to the Commonwealth Act and the Convention it is easy to see how it may be argued that other sections of the Act are invalid too, but I need not decide now any more than I have.

Mr. B.M. Selway instructed by the Crown Solicitor for the State of South Australia appeared for the complainant.

Mr. T.A. Gray instructed by Genders, Wilson & Partner, Solicitors appeared for the defendant.

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[1] [Eds. Note. This case is now reported at [1983] HCA 15; (1983) 57 ALJR 414]