Clarke, Jenny --- "Should Parliament Enact the Hindmarsh Island Bill 1996?" [1997] AboriginalLawB 15; (1997) 3(89) Aboriginal Law Bulletin 15

Should Parliament Enact the Hindmarsh Island Bill 1996?

By Jennifer Clarke

The Hindmarsh Island Bill 1996 is currently before the Senate.[1]If enacted, it will remove the need for any further inquiry under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (`the Heritage Protection Act') into the significance of Kumarangk (Hindmarsh Island).[2]

The Kumarangk area may or may not be of gender-restricted traditional significance. However, the Bill provides a model for resolution of other Indigenous heritage conflicts. I argue below that legislation of this kind is undesirable in the Indigenous heritage context.

The Bill will prevent a declaration under sections 9, 10 or 18 of the Aboriginal and Torres Strait Islander Heritage Protection Act[3] being made over the bridge area. It will make any existing applications for the area's protection ineffective[4] and prevent the area being protected on the application of other Aboriginal people on different grounds.[5]

Commonwealth power to enact the Bill

The Bill seems to fall within the Commonwealth Parliament's power to make laws with respect to the people of any race for whom it is deemed necessary to make special laws. A `special' law is one which operates differentially upon the people of a particular race.[6] A law can be `special' if it confers a benefit or imposes a disadvantage on those people.[7] Whether a special law is `necessary' is for Parliament to judge, although the High Court might find unconstitutional a law which is a `manifest abuse of the power'.[8]

The `races' power extends to `any identifiable sub-group among Australian Aboriginals', Indigenous cultural heritage (even if it is of general significance to other Australians), and Indigenous land entitlements (native title).[9] The Aboriginal and Torres Strait Islander Heritage Protection Act is within the power. As an amendment to it, the Bill also seems to be within the power. Parliament's motives (avoiding a `further' inquiry), and the Bill's `purposes' (allowing the bridge to proceed), are irrelevant to its constitutionality. The fact that the Bill affects non-Aborigines and their activities (for example the bridge and its developers) is also not relevant if it has a `special' operation on Indigenous people,[10] in this case, Ngarrindjeri people.

Is the Bill necessary?

The Bill is not necessary to ensure that the bridge may be built. Under section 10(1) of the Heritage Protection Act, the Minister has a discretion as to whether s/he makes a declaration for the area's protection. There are some steps that the Minister must take before exercising this discretion (the most significant being obtaining a report--see below). But the discretion is an open one, confined only by the scope of the Act and the rules of administrative law. If the Minister decides that the bridge should proceed, s/he may refuse to make a declaration.

Under section 10(1)(c) of the Heritage Protection Act, the Minister must commission a report where there is a live, proper application for an area's protection. This requirement may apply even when a prior report has been obtained.[11] However, French J in Tickner v Bropho suggested that, in some cases, it might be enough for the Minister to consider aspects of a prior report. The Minister need not commission a report if the application is frivolous or vexatious. Applications must meet a standard of precision--for example by specifying the area sought to be protected--before the Minister is required to obtain a report.[12]

A report clearly must be obtained where there has been no previous report. There has never been a valid section 10 report about Kumarangk/Hindmarsh Island. Two reports have been commissioned, but for reasons of administrative law (the Saunders report)[13] or constitutional law (the Mathews report),[14] neither has any legal status. This outcome is unfortunate (not least from the taxpayers' point of view). But the principles applied by the courts in overturning the two reports are unrelated to the substance of the heritage dispute itself. There is a public policy argument that Parliament should overturn such outcomes only with legislation of general application. General amendment of the Heritage Protection Act would be preferable amendment specific to this dispute.

If the application on which Justice Mathews' report was based has not been withdrawn,[15] the Minister must commission another section 10 report (by someone other than a judge). Preparation of a new report should not be as costly and time-consuming as preparation of the two earlier reports. The reporter is required to provide affected persons with procedural fairness, but need not conduct a full hearing.[16] The parties likely to make representations are identified and their submissions prepared. A new reporter could take into account material collected by earlier reporters, provided s/he accords affected persons procedural fairness regarding that material (including a chance to rebut it), and then makes up his or her own mind about its weight. The earlier reports do not contain irrelevant information to which the reporter should not have regard.

Kumarangk and religion

Aboriginal land-related traditions are religious traditions.[17] In other contexts, the term `religion' has been broadly defined by the courts so as to encompass Aboriginal tradition.[18]

The three reports on Kumarangk's/Hindmarsh Island's traditional significance and the threat to that significance posed by the bridge proposal point to no clear conclusion. The Saunders report found that the area was of traditional significance to Ngarrindjeri women and that the bridge threatened that significance. In the light of subsequent public statements by some Ngarrindjeri people and evidence before the Stevens Royal Commission, this conclusion is not reliable. However, Justice Stevens' report was based on evidence from only some Ngarrindjeri women and also cannot be regarded as conclusive.

Justice Mathews' report is the most reliable, but its conclusions are ambivalent. Her Honour said it was open to the Minister to find that Hindmarsh Island was a `significant Aboriginal area' within the Heritage Protection Act, but found insufficient evidence of the threat of injury or desecration posed by the bridge. The report suggests that Ngarrindjeri women may have been more forthcoming with information about both issues had the present Commonwealth Minister appointed a female Minister to consider the Mathews report in his stead. It seems unfortunate that he did not agree to this request.[19]

These findings leave open the possibility that the area is of religious significance, and that its significance is threatened for reasons which Ngarrindjeri women do not wish to discuss publicly or with a male Minister. If the area is significant, and if that significance is threatened, these details may emerge in a different forum--for example, in a complaint to a United Nations committee (see below).

The Racial Discrimination Act 1975 (Cth) and international standards

The Racial Discrimination Act 1975 (Cth) (`the RDA') embodies international standards of non-discrimination (section 9) and equality before the law (section 10) in relation to freedom of religion; standards found in the International Convention on the Elimination of All Forms of Racial Discrimination. The RDA and the Convention do not protect freedom of religion absolutely--they protect it against discriminatory interference, including by governments (State, Territory and Commonwealth), or unequal enjoyment under legislation (State, Territory and existing Commonwealth). However, the RDA does not limit the Commonwealth Parliament's power to enact discriminatory laws[20] Nor does the Constitution stop the Commonwealth Parliament from enacting such laws,[21] although the States are prevented from doing so by the combined operation of the RDA and section 109 of the Constitution, the `inconsistency of laws' provision.

But racial non-discrimination standards are an issue for the Commonwealth internationally. Australia allows complaints to the United Nations Committee on the Elimination of Racial Discrimination (CERD). Arguably, the Bill would place Australia in breach of our obligations under the Convention, prompting a Ngarrindjeri complaint. The decisions of international human rights bodies are not binding on Australia but, as the Tasmanian gay laws case[22] demonstrated, complaints to these bodies can embarrass Australia.

The CERD serves two functions: it receives both periodic reports from nation states about their implementation of the Convention, and individual complaints about states' breaches of it. In considering Australia's most recent report, the CERD accepted uncritically the government's explanation of the operation of Australian law.[23] However, the Committee might engage in a more critical evaluation of Australian law if faced with an individual complaint about it. If Ngarrindjeri complained to the CERD, they must first take reasonable steps to exhaust domestic remedies.

`Racial discrimination' is defined in the Convention[24] as including (the making of) distinctions based on race which have the purpose or effect of interfering with the equal enjoyment of freedom of religion. States parties undertake to take measures to prohibit and eliminate such racial discrimination.[25] There has been some Australian litigation about racial discrimination and Kumarangk/Hindmarsh Island. The South Australian Supreme Court[26] ruled that establishment of the Stevens Royal Commission would not infringe section 9 of the RDA (which outlaws discriminatory acts as defined in the Convention), partly because the `basis' of the decision to establish the Commission was not the race of the Ngarrindjeri people, but the allegations of fabrication of Ngarrindjeri tradition.

However, it is not clear that the obligation to refrain from racial discrimination should be interpreted so narrowly. If the South Australian Supreme Court is right, section 9 is ineffective to protect Indigenous people from interference of a kind which would not be visited on Christian religions, even where it is justified on public interest grounds. Would an Australian government establish an inquiry into whether Christian religious beliefs were fabricated? Would the Commonwealth Parliament legislate so as to remove protection for the free exercise of religion by members of a church? Parliament sometimes does curtail religious freedom in the name of morality, national security or public order[27] (none of which provides a justification for this Bill). But it usually does so with laws of general application (for example laws preventing bigamy), not laws explicitly focused on a particular area or racial group.

The question of whether Parliament would treat other religions similarly is not easy to answer because of the difficulty of comparing Aboriginal religion with Christian religion. Christian religion is essentially `private' and individualistic: it seldom impinges on the `public' issue of land development. But land is the essence of Aboriginal religion, even when Aboriginal beliefs about it are `secret' (in other words, gender-restricted). Anglo-Australians, accustomed to dichotomous thinking, find it easy to separate religious `belief' from `action'. But this dichotomy is itself a cultural construct. If we are to take minority religious beliefs seriously, we should not insist that they divide the mind from the body in the way that Anglo-Australians do.

The fact that Aboriginal religion is different from more familiar religions does not justify its discriminatory treatment, although it may necessitate different treatment (such as special heritage protection) in order that all religions are treated equally. In this context, the government's attitude to the Bill and the Heritage Protection Act is rather alarming. The Commonwealth's position (a position it also takes on the Native Title Act) is that the Heritage Protection Act is a `special measure'. `Special measures' are permitted[28] (indeed mandated)[29] by the Convention and section 8 of the RDA. A `special measure' is one taken for the sole purpose of securing the adequate advancement of a disadvantaged racial group to ensure its members' equal enjoyment of human rights. Such measures must not lead to the maintenance of separate rights for different racial groups after the objectives for which they were taken have been achieved. Thus, special measures have a temporary, `catch-up' character; they are directed to disadvantage in the enjoyment of human rights. Some involve what would otherwise be racial discrimination, because they interfere with the equal enjoyment of human rights in the short term in order to bring about equal enjoyment of those rights in the longer term. However, other special measures will not have this character--they will merely bring about equality in the short term in order to ensure equality in the longer term.

Unfortunately, the High Court has ruled that permanent measures which respond to Aboriginal cultural difference (for example land rights, and probably heritage protection laws) are included in the category of `special measures'.[30] This decision depends on an interpretation of `racial discrimination' which includes all kinds of racial distinctions, benign and invidious. However, arguably measures which respond appropriately to cultural difference are not racially discriminatory. Rather, they are equality measures. Therefore, such measures would fall outside of the definitions of `racial discrimination' and `special measures'.[31]

Thus, I would take issue with the government's view that the Heritage Protection Act is a special measure which can be repealed or amended at whim without Australia suffering international criticism.[32] Australia is obliged, under the Convention, to guarantee racial equality before the law in the enjoyment of freedom of religion.[33] One of the ways in which we might meet this obligation is by enacting laws which treat Indigenous religion equally by treating it differently, such as by according it the protection given by the Heritage Protection Act. The Bill's removal of such an equality measure from an Aboriginal group may breach this general obligation. It may not be necessary to demonstrate that race is the basis of the different treatment of Ngarrindjeri people, only that the impact of the Bill on Ngarrindjeri people is harsher than its impact on other Australians. The mere fact that the religion of other Australians is not protected by the Heritage Protection Act may be irrelevant if that religion is protected by some other means.

In any complaint to an international body regarding the Bill, presumably it will become necessary for Ngarrindjeri people to disclose some details of their religion. This could be a crucial issue, since CERD members include men.

The International Covenant on Civil and Political Rights

The Covenant requires the general protection of specified rights--freedom of religion[34] and rights of minorities to their own culture and religion[35]--as well as non-discrimination in the protection and enjoyment of those rights.[36] Complaints to the United Nations Human Rights Committee (HRC) about breaches of the Covenant can only be made after Ngarrindjeri people have taken reasonable steps to exhaust domestic remedies.

The `minority rights' article has been the subject of several complaints by Indigenous people.[37] Expropriation of Indigenous land for resource development can violate cultural rights, as could quarrying, were its impact serious. Cultural rights can be interfered with even where Indigenous land ownership is not recognised. `Culture' includes a particular way of life associated with the use of land resources.[38] Laws interfering with minority culture must bear some proportionality to protection of the culture itself.[39] Arguably, the present Bill is not proportionate to the protection of Ngarrindjeri culture--on the contrary, it denies Ngarrindjeri people an opportunity to protect their culture.

The `minority rights' article requires states parties to take affirmative measures to protect minority cultures--not merely refrain from interfering with those cultures.[40] But the Bill removes such a positive measure from one group of Indigenous people. Measures to ensure the effective participation of members of minority communities in decisions which affect them may also be required.[41] But the Bill denies this participation in the case of the Ngarrindjeri.

Constitutional freedom of religion

Section 116 Constitution provides in part: `The Commonwealth shall not make any law ... for prohibiting the free exercise of any religion ... '. `Religion' has traditionally been given a broad meaning. However, `for prohibiting the free exercise of any religion' has been read narrowly. In the Stolen Generations litigation,[42] the High Court has been asked to expand its view of how a law may `[prohibit] the free exercise of any religion'.[43] The traditional view is that section 116 will only be infringed by a law which has as its purpose or object the prohibition of the free exercise of religion[44]--a law explicitly designed to prohibit religious freedom, not one which does so indirectly or one which merely interferes with religion.[45] Other constitutional limitations have recently been found to be infringed by laws which transgress them in substance.[46] But difficult questions about cultural difference arise in assessing a law's operation or effect on different religions. A law which authorises development on a particular site may have no impact at all on non-Aboriginal religious beliefs, but considerable impact on local Aboriginal religious beliefs.

The same kinds of arguments might be made before the High Court in a constitutional challenge to the Bill as could be made before the CERD or the HRC. But the constitutional guarantee is more difficult to infringe than international human rights standards, because what it outlaws are laws prohibiting freedom of religion, not laws interfering with freedom of religion. It is not clear that the Bill prohibits the free exercise of Ngarrindjeri religion. A law with that purpose or effect may need to do more that simply cut off from protection under Commonwealth law an area of religious significance.

Conclusions

The Bill probably is constitutional. However, it adds nothing to the `security' of the bridge proposal. It will be unnecessary if Ngarrindjeri `proponents' of the area's traditional significance do not seek to press their claims. Even if they do, the Minister already has a broad discretion to refuse to make a declaration. The Ngarrindjeri claims have never been the subject of a properly constituted inquiry under the Heritage Protection Act. Since material collected by the two earlier reporters could be taken into account by a reporter appointed now, the proper approach would be to appoint another reporter.

If the area is of religious or cultural significance to Ngarrindjeri people, the Bill may place Australia in breach of its international obligations. Complaints by Ngarrindjeri people to UN bodies are to be expected, and some could be successful.

Even if the area is of no traditional significance to Ngarrindjeri people, the Bill provides a bad precedent. Dispute-specific legislation seems to be a favoured technique of the present government for dealing with unwanted outcomes in Indigenous affairs. For example, ad hoc legislation to remove the right to negotiate of the Waanyi people was proposed in relation to the Century Zinc mine last year. There is no place for such ad hoc legislation in a nation which respects the rule of law and human rights.

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[1] On 9 January 1997, the Bill was in its second reading.

[2] For a history of the controversial Kumarangk heritage dispute, see J Clarke, `Chronology of the Kumarangk/Hindmarsh Island Affair', Vol 3, 84 Aboriginal Law Bulletin 22.

[3] Section 9 allows for the making of an interim (up to 60 days) protection declaration, and section 10 for the making of a permanent protection declaration (for a specified period). These declarations are made by the Commonwealth Minister. Section 18 allows for the making of a temporary (48 hours) protection declaration by an authorised officer.

[4] In the past, these applications have been made by Ngarrindjeri women who claim the area is of gender- restricted traditional significance.

[5] Although it can affect the present status of applications made in the past, the Bill doesn't operate retrospectively. It doesn't operate to knock out those applications, it just prevents the Minister acting on them.

[6] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373.

[7] This view of the power as authorising both benign and invidious discrimination is supported by a strong line of authority, including Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, the Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 and Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373.

[8] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373. It is not clear what kind of a law would amount to such an abuse.

[9] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 and Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1.

[10] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373.

[11] Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409.

[12] Norvill v Chapman [1995] FCAFC 1726; (1995) 133 ALR 226.

[13] In Norvill v Chapman [1995] FCAFC 1726; (1995) 133 ALR 226, the Full Federal Court held that Professor Saunders had failed to comply with a prescribed statutory procedure in publicising her inquiry.

[14] In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, unreported, High Court, September 1996, the High Court held that the Minister's appointment of Justice Jane Mathews as a reporter under the Act was contrary to the constitutional doctrine of separation of judicial power, and therefore invalid.

[15] Since the applicants told Justice Mathews that they were reluctant to disclose gender-restricted information to her after they were informed that a male Minister would consider her report, it may be that they do not now wish to press the application and are willing to withdraw it. This would mean that the bridge could proceed immediately.

[16] Minister for Aboriginal and Torres Strait Islander Affairs v WA and Douglas, unreported, Full Federal Court, 28 May 1996, and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, unreported, High Court, September 1996.

[17] There is ample anthropological opinion in support of this view. For example, see R Berndt and C Berndt, The world of the first Australians: Aboriginal traditional life, past and present (5th edition), Aboriginal Studies Press, Canberra, 1992.

[18] See, for example, the views of the High Court in Church of the New Faith v Commissioner for Payroll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120, and those of Latham CJ in Adelaide Company of Jehovah's Witnesses v Commonwealth [1943] HCA 12; (1943) 67 CLR 116.

[19] This option was suggested by Burchett J in Norvill v Chapman.

[20] Pareroultja v Tickner [1993] FCA 465; (1993) 117 ALR 206.

[21] As discussed above, the Constitution authorises such laws. A constitutional limitation on racially discriminatory laws would require a constitutional amendment or a change in the High Court's view of the `races' power.

[22] Toonen

[23] Considering Australia's ninth periodic report in 1993, the CERD accepted the Australian government's argument that the Native Title Act was a `special measure', when at least some of the Act's provisions discriminate against native title holders.

[24] Article 1.1.

[25] Articles 2 and 5.

[26] ALRM v SA and Stevens (No 1) [1995] SASC 5224; (1994) 64 SASR 551.

[27] Adelaide Company of Jehovah's Witnesses v Commonwealth [1943] HCA 12; (1943) 67 CLR 116.

[28] Article 1.4.

[29] Article 2.2.

[30] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70.

[31] Political history could present difficulties for this argument. For example, apartheid was justified on the basis of difference. However, the difference between apartheid and Aboriginal heritage protection lies in their impact on genuine equality. As Brennan J said in Gerhardy, `the difference between land rights and apartheid is the difference between home and a prison'.

[32] Even if the Act is a special measure, the form which such measures take may not be entirely within the government's discretion. Complaints relating to a state party's failure to provide `special measures' might be made to the CERD: see the comments of de Zayas quoted by Sarah Pritchard, `Special measures' in Race Discrimination Commissioner, Racial Discrimination Act 1975: a review, AGPS, p 192.

[33] Article 5.

[34] Article 18.

[35] Article 27.

[36] Articles 2 and 26.

[37] Lubicon Lake Band v Canada UN Doc CCPR/C/38/D/167/1984, March 28, 1990; Lansmann v Finland UN Doc CCPR/C/52/D/511/192, Lovelace v Canada Communication 24/1977, UN Doc CCPR/C/OP/ 1(1988), 86-90; Kitok v Sweden UN Doc CCPR/C/33/D/197/1985. My discussion of this jurisprudence is taken from Sarah Pritchard, `Special measures' in Race Discrimination Commissioner, Racial Discrimination Act 1975: a review, AGPS, p 192.

[38] General Comment on Article 27, 1994, paragraph 7.

[39] Lovelace v Canada and Kitok v Sweden, noted above.

[40] HRC General Comment on Article 27, 1994, paragraph 6.2.

[41] HRC General Comment on Article 27, 1994, paragraph 7.

[42] Kruger v Commonwealth No M21/95 and Bray v Commonwealth No D5/95, heard February 1996.

[43] In that case, Aboriginal people have argued that the Norther Territory `protection' laws infringed their freedom of religion by removing them (or their children) altogether from Aboriginal culture.

[44] See Krygger v Williams [1912] HCA 65; (1912) 15 CLR 366 and the views of Barwick CJ on the `establishment clause' of section 116 in the DOGS Case (1981) 146 CLR 559 at 579.

[45] See Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 71 ALR 578, in which the Full Federal Court determined that the deportation of an Imam, while it may have interfered with the free exercise of the Islamic religion, did not prohibit that religion's free exercise. Other judges have expressed the view that section 116 may be infringed by a law which has the purpose, or perhaps direct effect, of infringing religion in the manner proscribed. See Mason J in the DOGS Case (1981) 146 CLR 559 at 615-6.

[46] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360; Castlemaine Tooheys v South Australia (1990) 169 CLR 436; Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461.