AustLII Home | Databases | WorldLII | Search | Feedback

Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
You are here:  AustLII >> Databases >> Aboriginal Law Bulletin >> 1985 >> [1985] AboriginalLawB 20

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Rees, Neil --- "Gerhard v Brown" [1985] AboriginalLawB 20; (1985) 1(13) Aboriginal Law Bulletin 7


Gerhard v Brown

Aboriginal Land Rights legislation - Pitjantjatjara Land Rights Act (SA) - operation of ss.8, 9 and 10 Racial Discrimination Act (C'wealth).

'Special measures' not subject to prohibition against racial discrimination - Constitutional law - s.109 inconsistency - no inconsistency between Commonwealth racial discrimination legislation and state Land Rights Act.

Gerhardy v Brown

High Court of Australia (Gibbs CJ, Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ).

28 February 1985

Casenote by Neil Rees

The respondent Robert John Brown had been charged under section 19 of the Pitjantjatjara Land Rights Act 1981 (SA) (PLRA) with entering upon Pitjantjatjara lands without the permission of the Anangu Pitjantjatjara, which was the body established under the PLRA to hold title to and to administer the lands. The complaint came on for hearing before a special magistrate at Oodnadatta, South Australia, who, at the request of the respondent, stated a case for the opinion of the South Australia Supreme Court. On 21 July 1983, Millhouse J held s.19 of the PLRA was a law which led to a restriction or preference on the basis of race which impaired the right to freedom of movement of all persons who were not Pitjantjatjaras. The South Australian position therefore contravened s.9 of the Racial Discrimination Act 1975 (0th) (RDA) and was invalid by reason of the operation of s.109 of the Constitution..

The appellant, Sergeant David Gerhardy of the South Australian Police, lodged a notice of appeal in the full Court of the Supreme Court of South Australia. On the application of the South Australian Attorney-General and the appellant the matter was removed into the High Court pursuant to s.40 of the Judiciary Act (Cth). The South Australian Attorney-General, the Commonwealth Attorney-General and the Anangu Pitjantjatjara intervened in the proceedings.

During argument in the High Court, the questions for the Court's determination were. amended to read as follows:

1. Is s.19 of the Pitjantjatjara Land Rights Act 1981 (SA) Invalid or restricted in operation by reason of the Racial Discrimination Act 1975 (Cth)?

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

All seven Justices held that the answer to the first question was 'No' and accordingly all found it unnecessary to answer the second question.

Each justice delivered separate reasons. All seven members of the Court found that s.19 of the PLRA was a 'special measure' within the meaning of s.8 of the RDA and therefore not subject to the prohibitions against racial discrimination contained in Part II of the RDA.

Five Justices (Gibbs CJ, Mason, Murphy. Brennan and Deane JJ) found that s.19 of the PLRA would contravene the RDA if it was not a 'special measure'. and thereby saved by the operation of s.8 of the RDA. Wilson and Dawson JJ found that it was unnecessary to determine whether the South Australian provision would contravene the RDA unless it was a special measure.

There was not complete uniformityof reasoning amongst the five judges who found that s.19 of the PLRA did contravene the RDA unless saved by s.8 of the Act. Gibbs CJ, Mason and MurphyJJ found that absent classification as a special measure, s.19 of the PLRA contravened s.10 of the RDA. These Justices found that s.9 of the RDA was not applicable because that section was not addressed to racially discriminatory legislative provisions. Brennan J. held that both ss.9 and 10 of the RDA could operate to invalidate s.19 of the PLRA. If it was not a special measure. Deane J. held that s.9 of the RDA could invalidate s.19 of the PLRA if it was not a special measure and found it unnecessary to determine whether s.10 of the RDA could also operate.

In order to determine whether s.19 of the PLRA infringed either ss.9 or 10 of the RDA (unless it was a 'special measure') Gibbs CJ, Mason, Murphy and Brennan JJ considered whether the right denied to non-Pitjantjatjara persons by the operation of ss.1 8 and 19 of the PLRA was a human right or fundamental freedom countenanced by the RDA. (Section 18of the PLRA gave all Pitjantjatjaras unrestricted rights of access to the lands). The terms.'human right' and'fundamental freedom' are not defined In the RDA; s.9(2) and 10(2) of that Act provide that the 'human rights' and 'fundamental freedom' referred to include those matters set out in Art 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (the ‘Convention’).

Gibbs CJ stated that whilst the Convention is concerned with rights in some field of public life, the grant of land in this case was so large (approximately 10% of the state of South Australia) the the provisions of ss.18 and 19 of the PLRA operated to deny non Pitjantjatjara persons a public right whether that right be 'the right to freedom of movement' set out in Art. 5 (d)(I) of the Convention or some other right not specifically mentioned in Art 5. Mason, Murphy and .Brennan JJ were satisfied that the relevant provisions of the PLRA interfered with the right to freedom of movement of non- Pitjantjatjaras. Like Gibbs CJ, these three justices were much influenced by the size of the land grant' when determining whether a 'human right' or 'fundamental freedom' recognised by the Convention had been infringed by the criminal power of exclusion of non-Pitjantjatjara peoples. Deane J found it unnecessary to consider this issue because he was of the view that there was fundamental and pervading inconsistency between s.9 of the RDA and s.19 of the PLRA.

Whilst all seven justices found that s.19 of the PLRA was a special measure saved by s.8 of the RDA, all justices did not answer the question of how a court determines what is a 'special measure' in the same manner. (Section 8 of the RDA is based upon the provision of Ar. 1(4) and Art.2(2) of the Convention. Art 2(2) obliges parties to the Convention to undertake, when warranted, special measures to ensure the adequate development and protection of certain racial groups or indivlduals belonging to them for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedom'. It is further provided that the special measures should not bring about the maintenance of separate rights for different racial groups after the objectives of the measures have been achieved. Art.1(4), which is cast in slightly different language, effectively provides that 'special measures' are an exception to the Convention's definition of 'racial discrimination').

All seven justices either explicitly or by implication, found that the question of whether s.19 of the PLRA was a 'special measure' was not a fact in issue between the parties to be tried in the normal manner: it was held by Gibbs CJ. Mason and Brennan JJ that the Court could take into account extraneous materials such as government reports, and particularly debates and that there would be reliance upon Judicial notice. Recourse to such materials was permissable because it was necessary to determine whether the sole purpose of the legislation was to secure the adequate advancement of the Pitjantjatjara peoples so that those peoples could enjoy on equal footing with others, the human rights and fundamental freedoms recognised by the Convention. Deane J. stated that he would have preferred to remit the matter to the special magistrate for the purpose 'of obtaining further factual material but on the basis of the material before him held that s.19 of the PLRA was a 'special measure' because it could not be held that the section was not a reasonably appropriate measure to secure the advancement of the Pitjantjatjara peoples. Murphy, Wilson and Dawson JJ did not discuss the criteria for determining whether a law was a 'special measure'. These three Justices found that s.19 was on its face such a law and did not find it necessary to detail the reasoning which led to that conclusion.

Mason and Brennan JJ found that both legislative and executive action can constitute a 'special measure'. There is nothing in the reasoning of the other justices who did not specifically address this issue to suggest that only legislative action could be classified as a 'special measure'. Brennan J in a lengthy judgement stated that a law (or executive action) must satisfy four criteria before it could be classified as a special measure - first it must confer a benefit on some or all members of a class, secondly the membership of the class must be based on race, colour, descent; national or ethnic origin, thirdly the sole purpose of the measure must be to secure the adequate advancement of the beneficiaries so that they may enjoy and exercise equally with others human rights and fundamental freedoms and fourthly the protection granted by the measure must be necessary to ensure that the beneficiaries may enjoy and exercise equally with others human rights and fundamental freedoms. BrennanJ alone considered whether the response of the beneficiaries was relevant in determining whether a law could be classified as a special measure. He was of the view that the wishes of the beneficiaries were of vital importance for otherwise it may not be possible to conclude that his third criterion was satisfied. A measure could not secure the advancement of its beneficiaries if it was not desired by them.

The operation of the provisos in Art.2(1) and Art.1 (4) of the Convention was considered by all justices other than Dawson J. Whilst the language of Art.2(1) and Art.1(4) differs all justices who considered the issue held that the provisions of both Articles should be viewed as complementary and that the proviso to each Article should recieve the same interpretation. Gibbs CJ, Mason, Wilson, Brennan and DeaneJJ held that both limbs to the proviso In Art.1(4) should be read together. They held, contrary to the contention of the respondent, that the proviso does permit the existence of separate rights for different racial groups, so long as they may be classified as a'special measure' but such rights cannot be indefinitely maintained or continued after the special measures have achieved their objective. All five justices found that the proviso in Art.1(4) was not triggered by the apparent indefiffe nature of s.19of the PLRA. Legislation did not have to contain a 'sunset clause' in order to be classified as a 'special measure'. These justices were satisfied that the 'special measure' had not yet achieved its purpose.

Gibbs CJ, Murphy. Wilson and Brennan expressed concern that permanent operation of the PLRA may infringe the proviso and thereby cause the Act to lose its status as a 'special measure'. Mason J, on the other hand, stated that indefinite operation of the PLRA was not a matter for concern because discontinuance at any time could bring about the failure of the objects which justified the introduction of the 'special measure'.

The Court allowed the appeal and set asidethe judgement of Millhouse J. dated 21 July 1983. The answer to the first question asked was 'No' and it was therefore unnecessary to answer the second question. The proceedings were remitted to theSupreme Court of South Australia. By consent, the appellant was ordered to pay the respondent's costs of the appeal.

M. F. Gray QC and B. M. Solway instructed by C. M. Branson (The Crown Solicitor for South Australia) appeared forthe appellant and the intervenor,the Attorney-General for South Australia

K. D. Gray and W. J. N. Wells instructed by Genders Wilson and partners appeared for the respondent.

G. Griffith QC and J. R. Mansfield instructed by the Australian Government Solicitor appeared for the intervenor, the Attomey-General for the Commonwealth.

R. Merkel QC and H. Reicher instructed by Richard Bradshaw (Pitjantjatjara Council) appeared for the intervenor, the Anangu Piyantjatjars.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1985/20.html