McIntyre, Greg --- "Aboriginal People and Government Responsibility and Accountability" [1990] AboriginalLawB 52; (1990) 1(47) Aboriginal Law Bulletin 6

• Bropho V State Of Western Australia &Amp; The Western Australian Development Corporation
• Shield Of The Crown-Presumption Of Statutory Interpretation That The Crown Is Not Bound-Intention Of The Legislature-Subject Matter Of The Statute-Purpose And Policy Of The Statute-Aboriginal Heritage Act 1972-1980 (Wa).

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Bropho v State of Western Australia & the Western Australian Development Corporation

Shield of the Crown - presumption of statutory interpretation that the Crown is not bound - intention of the legislature - subject matter of the statute - purpose and policy of the statute - Aboriginal Heritage Act 1972-1980 (WA).

Bropho v State of W.A. & the W.A. Development Corporation

High Court of Australia - June 1990

[1990] HCA 24; (1990) 171 CLR 1 F.C. 90/027 (20 June 1990)

Casenote by Greg McIntyre

The Plaintiff is a person of Aboriginal descent for whom Aboriginal sites alleged to be present at the Old Swan Brewery Site were said to be "sacred ritual and/or ceremonial sites of importance and special significance within the meaning given to those terms in the Aboriginal Heritage Act (WA)". The West Australian Development Corporation (WADC), which has by statute the immunity of the Crown, acting as agent of the Crown, was seeking to develop the site which is vested in the State of Western Australia. The Plaintiff sought declaratory and injunctive relief against the Defendants alleging a breach of Section 17 of the Aboriginal Heritage Act which makes it an offence to excavate, damage or alter an Aboriginal site without the authority of the Trustees of the Museum or the consent of the Minister for Aboriginal Affairs pursuant to the Act.

The Defendants were successful in an application before the Master of the Supreme Court to have the Statement of Claim of the Plaintiff struck out on the basis that the Aboriginal Heritage Act was not binding upon the Crown following the authority of the Privy Council in Province of Bombay v Municipal Corporation of Bombay (1947) A.G 58.

On the Plaintiff's appeal to the Full Court of the Supreme Court of Western Australia the decision of the Master was upheld by a majority. Malcolm CJ held that although the Aboriginal Heritage Act would be substantially frustrated and significantly impaired in its operation it would not be wholly frustrated if the Crown were not bound and thus the Crown was not bound in the instant case.

The High Court in a joint judgement of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ (with whom Brennan agreed) held that a legislative intent must be found in the provisions of the statute, including its subject matter, disclosed purpose and policy and if such a legislative intention does appear from the provisions of a statute, it must necessarily prevail over any judge-made rule. The Court held that there was no difficulty in discerning in the provisions of the Aboriginal Heritage Act a legislative intent that those provisions applied generally to Crown land and to objects on such land in a context where 93% of the Western Australian land is Crown land and approximately 50% of Western Australian land is what is described as `vacant Crown land' and the conclusion that it was the legislative intent that the general words of Section 17 of the Act should apply indifferently to natural persons in Western Australia including government employees is all but inevitable. Once the conclusion is reached that the provisions of Section 17 are applicable to employees of the Corporation in the course of their duties, it is apparent that the Corporation has no power to authorise its employees or others to carry out activities of the type proscribed by the Section. Nor has the Crown in right of the State of Western Australia any such power.

The appeal was allowed.