Churches, Steven --- "Aboriginal People and Government Responsibility and Accountability" [1990] AboriginalLawB 51; (1990) 1(47) Aboriginal Law Bulletin 6

• Aboriginal People And Government Responsibility And Accountability
• The Police And Crown Vicarious Liability
• Conclusion

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Aboriginal People and Government Responsibility and Accountability

by Steven Churches

Robert Bropho is a spokesperson for the Aboriginal people at Lockridge camp in the Upper Swan Valley, the outer north-eastern suburbs of Perth. Mr Bropho has had a long term interest and active involvement in identifying and preserving significant sites in the Swan Valley which ought to attract the provisions of the Aboriginal Heritage Act 1972 of Western Australia.

Of particular significance is section 5 of that Act which provides, among other things, that the Act applies to:

"any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent...".

Section 17 of the Act then provides:-

"A person who excavates, destroys, damages, conceals or in any way alters any Aboriginal site ... commits an offence unless he is acting with the authorisation of the Minister under section 18".

Mount Eliza looks down on the city of Perth, but below the Mount, down river away from the city, sits a huddle of derelict old buildings on a block of land known popularly as the Old Swan Brewery Site. After the Swan Brewery moved its operations from this site, the ownership of this land passed through various corporations and entities, including the State Government. Some of the manoeuvring in the first half of the 1980's involved activity on the fringe of `WA Inc.' dealings.

The State Government then decided to develop the site by renovating the derelict buildings and creating an Aboriginal cultural centre. However, Robert Bropho and a number of other prominent local Aboriginal leaders had identified the site as a sacred site of importance and significance in particular to the Aboriginal people of the Swan Valley, and in general to the Nyungah people of the south-west of Western Australia. The consensus amongst these people was that the site should be levelled and turned into a public park.

The basis of importance was the association of the Brewery Site with the Waugyl, the name by which the Nyungah people refer to the dreamtime Rainbow Serpent. The Waugyl has strong associations with the entire Swan Valley, but the particular relevance of the land that was to become the Brewery Site to the Waugyl, and to Aboriginal cultural expression regarding the Waugyl, can be evidenced in the written records of white settlement.

In the face of Government preparations to renovate the Brewery Site, Mr Bropho insisted that the provisions of the Aboriginal Heritage Act be applied. After much preliminary legal skirmishing, including the obtaining of an injunction to stop development by the Government and its contractor, and a very prolonged occupation of land adjacent to the Brewery Site, Mr Bropho instituted fresh proceedings in the Supreme Court. He sought a declaration against both the State of Western Australia and a statutory corporation with all the legal advantages of the State, the Western Australian Development Corporation, that the Brewery Site was an Aboriginal site to which section 5 of the Act applied, and he sought a further injunction against the development of the site.

The Government took action to strike out the claim on the basis of an old common law presumption that the Government was not bound by Acts of Parliament unless they expressly or by clear implication referred to the Government (usually called the Crown). Master White in the Supreme Court upheld the Government's claim, and Bropho appealed to the full bench of the Supreme Court which also upheld the Government's submission. The High Court granted special leave to appeal against this decision. (See case note p8 of this issue [1990] AboriginalLB 52; 2(47)pg8). The heart of the appeal centred on the question of whether the Crown was automatically immune from ordinary statutes unless they referred to the Crown by express words or by implication. The test for Crown immunity was very high; in reality the presumption of Crown immunity was a rigid rule.

A glaring example of the operation of this part of the law was reported nearly twenty years ago in in the High Court decision of Downs v Williams [1971] HCA 45; (1971) 126 CLR 61. In that case, a student in a New South Wales Government institution injured his thumb in an unfenced machine, and the High Court held that the Government was not required to adhere to the terms of a statute requiring the safe fencing of machinery. There had been a number of other High Court decisions since Downs entrenching the concept of Governmental immunity from the operation of statutes. The highest British Court, the House of Lords, had affirmed the principle in November 1989 in Lord Advocate v Dumbarton District Council [1989] 3 WLR 1346.

On 20 June 1990, the High Court overturned earlier precedent and any notion of adhering to recent British decisions. Mr Bropho's stand was vindicated by the High Court's finding that, while the presumption of Crown immunity from ordinary statutes still existed, that presumption would be varied according to the content of the statute itself. As 93% of the land in Western Australia is Crown land the Court found:

"The Act would be extraordinarily ineffective to achieve its stated purpose of preserving Western Australia's Aboriginal sites and objects if it applied only in respect of the comparatively small proportion of the State which is not Crown land."
Bropho v WA [1990] HCA 24; 1990 93 ALR 207, 219 w 220

The particular effect of the High Court decision was that the State Government was bound to adhere to the terms of the Aboriginal Heritage Act, including the process for the identification of sacred sites, and the protection afforded to such sites.

It was appropriate that Robert Bropho, an Aborigine, should lend his name to a decision which marks a very clear divergence between British and Australian attitudes to the position of governments' relationship to the law. Bropho's case provides a common standard for all Australian courts to look to the general legislative intent when determining whether governments and their statutory corporations should obey statutes or not. This decision will make it more difficult for governments to slip away from obligations which, on any common sense analysis, members of the public would expect them to comply with.

It is noteworthy, that the Western Australian Government moved within three weeks of the decision in Bropho to amend the Interpretation Act to entrench the old common law protection for the Crown against the operation of general statutes. The proposed bill has been the subject of critical scrutiny, and the Government has to date not pursued the matter. The Government has continued to make public statements of intent to amend the Aboriginal Heritage Act to destroy its utility in urban areas.

The Police and Crown Vicarious Liability

Edna Bropho is Robert Bropho's wife, and in events unrelated to those recounted above, she and seventeen other Aboriginal people living at Lockridge Camp were allegedly paid a special visit by an elite group of the Western Australian Police on Human Rights Day, December 10, 1989. Put more bluntly, at 7.00 pm on that day, eighteen or more members of the Tactical Response Group (TRG) allegedly arrived in seven vehicles, surrounded the camp and, wearing flak jackets and wielding shot guns, rounded up all the residents of the camp and detained them, with various threats of violence and physical abuse, for an hour.

Those detained could not identify the police involved in this matter. However Mrs Bropho set about suing the employer of the police, the State of Western Australia, for assault and false imprisonment. The Crown Law Department immediately retaliated by moving to have the Statement of Claim struck out in a manoeuvre reminiscent of that performed on Robert Bropho's action referred to above. The defence against the Strike Out was heard in the Supreme Court of Western Australia before Master White on the 20th August 1990. (Edna Bropho v WA 31 August 1990, No. 1988 of 1990). The Government's argument in the Strike Out was that the common law does not provide for the Government to be vicariously liable for the tortious actions of police, in the way that employers are ordinarily liable for the acts of their employees. Master White referred in his decision to the alleged facts in Edna Bropho's case, where a considerable number of police officers were involved who presumably required co-ordination, supervision and command from above. The Master compared these facts with the situation in previous reported decisions on this Crown immunity from ordinary vicarious liability, where a single police officer, apparently acting on his own volition, was found liable in tort. The defence against the Strike Out was successful, with the result that Edna Bropho's claim against the State will proceed to trial.

Conclusion

Both Bropho cases have centred around the issue of the Government expressing its intention to use outmoded common law rules to remain beyond the ordinary operation of the law. Both decisions have been in a sense preliminary to main issues. It still remains to be determined whether the Brewery Site will be treated as sacred and turned over to a public park, similarly the allegations against unidentified police officers have yet to go to trial.

The Brophos have remained resolute in pursuing remedies through the courts. While the pursuit of dignity and fairness through the courts is important for Aborigines, the issues being tested are of importance to the whole Australian community. The decision in Bropho's case tempers what was previously a strict and outmoded standard for testing crown immunity from the operation of ordinary statutes. As Robert Bropho said on the steps of the Supreme Court after hearing the Crown's argument in Edna Bropho's case - that the Crown could not be liable for the tortious actions of police - "God help all Australians, black and white, if that is the case".