Kartinyeri & Anor v The Commonwealth of Australia [1997] HCATrans 443 (3 September 1997)

Last Updated: 7 June 2010

[1997] HCATrans 443

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A29 of 1997

B e t w e e n -

DOREEN KARTINYERI and NEVILLE GOLLAN

Plaintiffs

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 3 SEPTEMBER 1997, AT 9.32 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC: May it please your Honour, I appear with my learned friend, MR S.J. KENNY, for Mrs Kartinyeri and Mr Gollan, the plaintiffs in this matter. (instructed by Camatta Lempens Pty Ltd)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: I appear with MS M.A. PERRY for the Commonwealth. (instructed by the Australian Government Solicitor)

MR D.J. MEYER: I am instructed by.....and Wendy Chapman and Sally Chapman, who is currently with Thomas Chapman, the director of a company called Binalong, a party who may seek leave to intervene in these proceedings in due course. (of Lynch & Meyer) The current state of affairs is that we do not have the necessary funding to seek leave at this time, but I merely rise to express our intentions, in case it is relevant to the matter.

HIS HONOUR: Thank you. Yes, Mr Tilmouth.

MR TILMOUTH: May it please your Honour, this claim seeks a declaration of invalidity of the Hindmarsh Island Bridge Act, as your Honour would know from the pleadings. In the end result, our submission is that this raises an important issue relating to the proper construction and ambit of the races power under the Constitution and your Honour can see by the pleadings as they are currently on the file that the races power is clearly set up as the central issue in the matter by dint of the amended statement of claim and the defence.

Your Honour, we did give notice, I think, yesterday or the day before that we were seeking leave to further amend the statement of claim, I understand by consent of the respondent, simply to delete the references in the amended statement of claim to the Racial Discrimination Act. So that the net result would be that the challenge is focused upon the races power and the lack of any other power to sustain the legislation. So I would seek leave to make that amendment, your Honour. Does your Honour have those?

HIS HONOUR: I do have them. What is the attitude of the Commonwealth, Mr Solicitor?

MR GRIFFITH: We consent to that, your Honour.

HIS HONOUR: Very well. I grant you leave, Mr Tilmouth, to amend the statement of claim and to amend the amended statement of claim by a further amendment in accordance with the copy filed in the Court yesterday.

MR GRIFFITH: Your Honour, may we amend our defence?

HIS HONOUR: Yes, Mr Solicitor. It is necessary, is it, to amend your defence consequentially?

MR GRIFFITH: We plead to a paragraph that no longer exists. That is the basic difference. We are happy just to substitute one, your Honour, and will do that in the day.

HIS HONOUR: You have leave.

MR GRIFFITH: Thank you.

HIS HONOUR: The problem, however, is to indicate to me, if you would, Mr Tilmouth, what the operation of the challenged Act is. Is it possible for the Court to be put in possession of that?

MR TILMOUTH: Yes. If the Court pleases, in our submission, the operation of the Act has nothing to do with the races power, is not properly characterised as a special law with respect to the Aboriginal race. Our submission is the operation of the Hindmarsh Island Bridge Act is simply to stop an application currently in train in its tracks. Your Honour, in our submission, when one looks at both the operation and purpose, the purpose as well is clearly, in our submission, quite devoid of any question of the races power; it is simply to facilitate the building of the bridge.

Your Honour, in our submission, very briefly, of course, an application like this, when one looks at the Act on its face, both that operation and purpose are apparent. The Act itself is called the Hindmarsh Island Bridge Act. The long title is called “An Act to facilitate the construction of the Hindmarsh Island bridge”. The Act itself does not in any way purport to amend the Heritage Protection Act, to use the short title, in the definition or interpretation section, section 3, and it is important, in our submission, to bear that in mind, that it is not purporting to amend an Act which might otherwise be said to be a special measure, that is to say the Heritage Protection Act. The machinery provisions, your Honour - - -

HIS HONOUR: Why do you say it does not purport to amend it, when one looks section 4?

MR TILMOUTH: All it purports to do in section 4, which is the operative section, is that under subsection (1) it

does not authorise the making of a declaration -

I ignore immaterial words for the moment, related to -

(a) the construction of a bridge.....in the Hindmarsh Island bridge area;

And all of the other subparagraphs (a) through (c) are plainly related to the Hindmarsh Island bridge area as defined in the interpretation section, section 3.

So the operation of the Act, may it please your Honour, is simply fastened upon the subject matter of the Hindmarsh Island bridge and associated things with its building, such as maintenance subsection (c), preparatory work (b), (d) use and (e) removal.

HIS HONOUR: Perhaps I should outline to you what my concern is and you can deal with it accordingly. The grounds on which the challenge to the validity of the Hindmarsh Island Bridge Act are based are those set out in paragraph 14. That is correct, is it not?

MR TILMOUTH: Yes, it is, your Honour.

HIS HONOUR: Paragraph (a) speaks of “a law with respect to the people of any race” and denies that it has that quality.

MR TILMOUTH: Yes.

HIS HONOUR: Then there is an alternative plea with respect to “benefit and/or advancement of any race” or in (c) “the Aboriginal Race”. Now how does one determine whether the operation of the Hindmarsh Island Bridge Act is or is not “for the benefit and/or advancement”?

MR TILMOUTH: One looks initially at the Act itself as a separate piece of legislation.

HIS HONOUR: Yes.

MR TILMOUTH: I am not denying that one might look at the Heritage Protection Act for background but, in our submission, your Honour, the Act must stand alone as either within power or not. In our submission, on any view, what the Act does is to withdraw a statutory benefit, which is for the benefit of the Aboriginal race, in relation to the Hindmarsh Island bridge area. In that sense, on any view, this Act could only be regarded as one which is detrimental and certainly not one which is for the benefit of anybody, still less the Aboriginal race or the Ngarrindjeri Aboriginal race.

HIS HONOUR: What your argument will be, then, is that the operation of the Hindmarsh Island Bridge Act is a withdrawal of a protection which is there for the advancement or benefit of the Aboriginal people?

MR TILMOUTH: Yes, your Honour. Apart from not coming in within 51(xxvi), of course, because the Act itself cannot be regarded as a special measure. Because it operates universally as well, your Honour, it cannot be with respect to the Aboriginal race. There is no confinement to any particular applicant or applicants. Under the Heritage Protection Act anybody can bring an application for a declaration. In the end result it must be related to Aboriginals or a group of Aboriginals.

HIS HONOUR: But the foundation for the allegation that it is not for the benefit is simply that it eliminates the protection, if that is the right word to use, which is created by the Heritage Protection Act.

MR TILMOUTH: My only hesitation, your Honour, is that is certainly one of our arguments, but it is not our sole argument.

HIS HONOUR: If it is not, are there facts yet to be determined? That is what I am trying to ascertain.

MR TILMOUTH: Not, in our submission, your Honour.

HIS HONOUR: Then what else, apart from that, will found your submission in relation to “benefit and/or advancement”?

MR TILMOUTH: Only the Act itself, the Heritage Protection Act, and the materials which we would propose be annexed to any question, if your Honour saw fit, to reserve to the Full Court, which I mention - - -

HIS HONOUR: Take those one by one.

MR TILMOUTH: Yes.

HIS HONOUR: The Aboriginal and Torres Strait Islander Heritage Protection Act, other than the application which is eliminated by section 4. Now, am I right in thinking that so long as the two Acts are before the Court there would be no other material on which you would depend in order to make out the argument under paragraphs (b) and (c) of 14?

MR TILMOUTH: There would be other material, your Honour, but not of an evidential kind.

HIS HONOUR: What is the other material?

MR TILMOUTH: First of all, that identified in the draft order, paragraph 2(c), which is merely the original application of 19 December; and the two letters of 4 and 11 January, which explain that material, and also Senator Crowley’s letter - she was then the acting female Minister - of 3 January. And I understand the respondent consents to those because they show the application and what it was about.

HIS HONOUR: They establish the subject matter of the application?

MR TILMOUTH: Yes, they. And those correspondences are admitted by the respondent in the pleadings, your Honour. So, in my submission, there is no difficulty with those.

HIS HONOUR: Do they show that the application that is thus made is one which is designed to be for the advancement and/or benefit of Aboriginal people.

MR TILMOUTH: Certainly, in our submission, yes. The only purpose of seeking the declaration could have been for that purpose.

HIS HONOUR: It is a question of whether or not that is admitted. Let me ask Mr Solicitor whether that is admitted.

MR GRIFFITH: Your Honour, we do not admit it for that purpose. These materials were before the court in the Mathews’ Case as part of the material before the court and we understood it was pleaded more or less to give the standing of the plaintiffs, your Honour. But it is not admitted from the point of view of the truth of the statements that are in those letters, merely that an application has been made in these terms and responded to by the Minister in the terms stated, and then the Act subsequently passed, which made the whole application then redundant because the Act would terminate any possible application of the Act. So that we do not admit these documents for the purpose of characterisations of any beneficial nature but, your Honour, we would say four square that the Aboriginal and Torres Strait Islander Heritage and Protection Act is supported by the races power and section 4 of that Act makes it clear. I do not think that is in dispute with our learned friend.

In a way, your Honour, he seeks to raise out of that an issue as to whether or not the races power must be beneficial in its operation. We flatly assert that that is not so, your Honour.

HIS HONOUR: I understand that, but I mean the question is whether there is a foundation laid sufficiently in the pleadings to allow a question now to go to the Full Court which raises that precise point or whether the question of advancement or benefit is itself a question of fact that must first be determined.

MR GRIFFITH: Your Honour, it might be a similar case - I hesitate to suggest it - as Kruger, your Honour, that it is a clear issue on my learned friend’s claim, because without that view of the races power it gets nowhere, I think he would concede, your Honour. So that - - -

HIS HONOUR: That may be so, but if so, this is not the form in which the proceedings should go forward.

MR GRIFFITH: That is really my learned friend’s problem, your Honour. We are happy to be as obliging as we can to suit what is appropriate for the Court. We do not mind the issue coming up, as it were, on one of my learned friend’s claim as predicated on that view of the races power. If the Court is able to consider that issue, your Honour, we are happy to meet it. But if the Court would prefer the issue of characterisation to be determined on a remitter or reference, your Honour, then of course we would go along with that as well.

HIS HONOUR: It may depend upon the operation of the Act in the circumstances of the particular case. That is something which a Full Court could not determine on a mere reference of a question of law.

MR GRIFFITH: That could well be so, your Honour. But it might be a question of, is there this basic issue of a limitation upon the races power.

HIS HONOUR: Yes, I am not against the notion that that should go forward if it is in a satisfactory form, Mr Solicitor.

MR GRIFFITH: Yes, but whether it could go forward on a basis there may still be outstanding issues to be tried, were my friend to get a favourable answer on that issue, is a matter for your Honour to order.

HIS HONOUR: I would prefer not to be the one to settle the form of the proceeding, if the parties themselves can identify a satisfactory form of proceeding in which to raise precisely that question. It may be done by a stated case.

MR GRIFFITH: Yes. This is perhaps my learned friend’s problem. We are prepared to be helpful, but if my learned friend was to assert, I suppose, that this law, he would say, could only be valid if the power was limited to beneficial, it might get him to a point that he could do that.

HIS HONOUR: The argument must be twofold, must it not: first, that the power is limited to the enactment of legislation which is of benefit to the Aboriginal people; secondly, that the Hindmarsh Island Bridge Act is not such an Act. It is that second step that causes the difficulty.

MR GRIFFITH: Your Honour, my learned friend has great conceptual difficulties because his argument would then be that one can only go one way down the races power.

HIS HONOUR: That is right. That is the argument which he seeks to raise.

MR GRIFFITH: It would be difficult then for him to go the extra step to say, if you pass an Act giving a benefit, you can never amend or repeal it.

HIS HONOUR: That may be an argument that you would wish to raise, but that is one that is open for consideration by the Full Court. It is that second step, namely the characterisation of the Act in the circumstances of a particular case that seems to me to raise questions that are not appropriate at this stage for determination by the Full Court.

MR GRIFFITH: My learned friend is probably not going to get our agreement, your Honour, to have this Act characterised as non-beneficial.

HIS HONOUR: Yes. Very well, I will see what Mr Tilmouth has to say. Do you see the problem that I am drawing your attention to, Mr Tilmouth?

MR TILMOUTH: I do, your Honour. There are two things to say. This Court, of course, determined in the Native Title Case and in Kruger matters based essentially on the pleadings and the purpose and effect of the Act. The second is that it is difficult to see what validly other material could be put before the Court, apart from, say, convention debates, parliamentary debates and we would also seek to put some material in relation to the 1967 referendum which, in our submission, was put to the people on the basis that the amendment would enable - - -

HIS HONOUR: That would indicate the nature of the power.

MR TILMOUTH: That is true.

HIS HONOUR: My problem is not the question of the nature of the power. That is open to argument. The question is the characterisation of the Act which you impugn as being not for benefit but for detriment of Aboriginal people. Now, that is something which the Court cannot assume without some foundation. If you were content to rest upon the proposition that the Act has the effect of eliminating the application that was made under the Heritage Protection Act, then one could see, now, if that is the argument, one can deal with it. But if there is something further and beyond the operation of one Act upon the terms and effect of the other, then we run into difficulties of proof.

MR TILMOUTH: Yes. I was about to add, your Honour, it is difficult to see what other material could be put before the Court. For example, one matter that comes to mind is the Mathews report but, of course, that was probably deprived of any legal status because of the decision of this Court in Wilson. That obviously, however, refers to the application in much fuller detail.

HIS HONOUR: Clearly enough, the allegations in your paragraph 6 would be relevant to identify the character of the Act, because if you were able to make out the facts in paragraph 6, then it would be open to say the Act then has the effect of desecrating Ngarrindjeri traditions, beliefs and culture. But that is a question of fact that is not determined, of course, on this statement of claim.

MR TILMOUTH: No. It is admitted, of course, that the application was not made for that purpose, but the underlying factual basis, I agree, is denied. In my submission, your Honour, it would not be necessary, with respect, to go that far because, on any view, the Hindmarsh Island Bridge Act itself could not have been for the benefit of the Aboriginal race.

HIS HONOUR: You may argue that. All I am endeavouring to do is to identify, before any further order is made, the basis on which you seek to characterise the impugned Act and to see whether that basis is now in such a shape that I can state a question for the Full Court’s consideration that will not involve a determination of issues of fact.

MR TILMOUTH: Your Honour, in our submission, it does not require the determination of any other issues of fact.

HIS HONOUR: Then what is the foundation that you wish to rely on, apart from the making of the application, the operation of the Act upon the application as made and the provisions of the Heritage Protection Act.

MR TILMOUTH: Yes. And that the Hindmarsh Island Bridge Act does not meet the qualifications on the races power in the Constitution. Quite apart from the argument about being for the benefit being limited to laws for the benefit of, the argument clearly is as well that it is not for the people of any race, it is not a special law in the requisite sense - - -

HIS HONOUR: You mean by looking at the terms of the Act itself?

MR TILMOUTH: Yes.

HIS HONOUR: That is fine, there is no problem about that.

MR TILMOUTH: And to pick up the words from the Native Title Case, it has no differential operation from any other law.

HIS HONOUR: Now, what I need to know is whether or not you are content to rely solely upon what might be regarded as the statutory material or the fact of the making of the application as sufficient to raise the questions that you wish to argue.

MR TILMOUTH: Yes, we are, may it please your Honour, provided, with respect, the material which I identified earlier is annexed to the - - -

HIS HONOUR: But do you wish to use it in order to identify the application as being one for the benefit of the Aboriginal people?

MR TILMOUTH: Yes, we do.

HIS HONOUR: Then how on earth is that to be determined?

MR TILMOUTH: With respect, because the letters of application speak for themselves, that an application was clearly being made with respect to an important area, at least to the Ngarrindjeri people. In our submission, whether that is true, as an underlying fact, is not necessary for the proper characterisation of this legislation.

HIS HONOUR: Then I think the best idea at the moment would be this, Mr Tilmouth: you formulate as best you can, from the material that you wish to annex, the ultimate fact upon which you seek to rely and if you and the Solicitor-General can agree upon that fact, it can be incorporated in a stated case. If you cannot, then you will have to determine one of two courses: one is to proceed without that fact but to let the matter go forward on a more limited bases; the second is to seek a determination of that fact as a preliminary to the raising of the question before the Full Court. There is, I suppose, a third course and that is what might be regarded as the Kruger course, a determination of an academic question before issues of fact are determined.

I think I should leave it to you and the Solicitor-General to consider precisely what the fact is that you wish to identify out of that correspondence and then you can let me know what course you propose to adopt.

MR TILMOUTH: May it please your Honour. Would it be possible to have leave, as it were, to bring the matter on in Adelaide if we can - - -

HIS HONOUR: I would think that perhaps we can bring it on within half an hour, if you like, any time before quarter past 10.

MR TILMOUTH: Thank you.

HIS HONOUR: If not, perhaps it might be better, having regard to the time, to stand the matter over until, say, 2 o’clock this afternoon. Would that be suitable to you, Mr Solicitor?

MR GRIFFITH: Yes, your Honour. I just wonder if I had a minute with my friend, I might be able to get an agreement.

HIS HONOUR: By all means. Unless I hear to the contrary, I will sit again at 2 o’clock this afternoon. But if you are able to reach quick agreement before the Full Court is due to sit at quarter past 10, then I will come back.

AT 9.50 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.05 AM:

HIS HONOUR: Yes, Mr Tilmouth.

MR TILMOUTH: May it please your Honour, on the basis that on the pleadings the application itself under the Heritage Protection Act in paragraph 5 is admitted and that it is also admitted, paragraph 13 is admitted that the effect of the Hindmarsh Island Bridge Act:

(a) would prevent the Minister from taking any action .....and

(b) would prevent the making of a declaration -

we are content to proceed on the basis indicated and seeking to remove therefore from the draft order the reference to the documents discussed arguendo, which are paragraph 2(c); in other words 2(c) would go, if that were accepted, and the matter would simply be dealt with on the basis of the further amended statement of claim in (a), and 2(b), the defendant’s defence. We would rest on those materials.

HIS HONOUR: In other words, the facts are as pleaded and admitted?

MR TILMOUTH: Yes.

HIS HONOUR: Then the form of the order should be this, should it not:

On the facts pleaded in the Further Amended Statement of Claim and admitted by the Amended Defence -

is that correct?

MR TILMOUTH: Yes, your Honour.

HIS HONOUR:

annexed hereto there be reserved for the consideration of the Full Court the following question:

And then state the question as in the draft order.

MR TILMOUTH: May it please your Honour, we would be content with that.

HIS HONOUR: Are you content with that, Mr Solicitor?

MR GRIFFITH: Yes, your Honour, on the basis, of course, our defence does not admit the truth of paragraph 6, but we admit the allegation that has been made.

HIS HONOUR: No. Let me make it quite clear what I am suggesting, and that is that the order should read as follows:

On the facts pleaded in the Further Amended Statement of Claim and admitted by the Amended Defence annexed hereto there be reserved for the consideration of the Full Court - - -

MR GRIFFITH: Precisely, your Honour. I should indicate our amended defence will be just as filed with the deletion of “and 15” in paragraph 5, because that is deleted - - -

HIS HONOUR: Yes, that is understood that that will be the terms on which you will amend your defence.

MR GRIFFITH: So we have a purity of issue now, your Honour.

HIS HONOUR: Yes. Mr Tilmouth, will you undertake then to draft the order in accordance with what I have indicated and take out the order accordingly.

MR TILMOUTH: Yes, we do, your Honour.

HIS HONOUR: There is one further question and that is the preparation of the notes of argument. It would be helpful, obviously, if this could be done some considerable time in advance of the hearing of the matter. Have you any timetable which you would suggest, Mr Tilmouth?

MR TILMOUTH: No, your Honour, except we are anxious - and I understand the respondent is anxious to have the matter dealt with as soon as can be.

HIS HONOUR: Yes. You would understand that because of the constitution of the Court at present, it is not possible to have a seven Judge Court constituted in 1997. The earliest at which that would be possible would be the February sittings of 1998.

MR TILMOUTH: We can only opt for the earliest time that the Court can make available. Obviously we cannot quarrel with the fully constituted Full Court, of course. There have been press statements, your Honour, that the State government has been preparing to start construction of the bridge and we are concerned to get the matter on, if we can, any earlier than that. But I acknowledge the problem with respect to Judges available. All I can say, your Honour, is we could file a written outline probably within three or four weeks.

HIS HONOUR: Then why should it not be desirable to have a direction that you do that within four weeks and you, Mr Solicitor, reply within some further time.

MR GRIFFITH: Can we have four weeks after that, your Honour. Perhaps the end of September for my friend and the end of October for us.

HIS HONOUR: Is that satisfactory, Mr Tilmouth?

MR TILMOUTH: Yes, it is, your Honour.

HIS HONOUR: Very well. I will give a direction that the outline of argument for the plaintiff be filed by the end of September and for the respondent by the end of October.

MR GRIFFITH: Your Honour, I would take that direction would include any of these extrinsic materials my learned friend seeks to rely upon on the constitutional issue, that they should be filed with this outline.

HIS HONOUR: Yes. There is no difficulty about that, Mr Tilmouth?

MR TILMOUTH: No; either filed or certainly identifying them, your Honour. Unless they were unavailable because of some archival problem, we would have no difficulty with that expectation.

HIS HONOUR: Thank you, gentlemen.

MR GRIFFITH: Thank you, your Honour.

HIS HONOUR: The Court will adjourn.

AT 10.11 AM THE MATTER WAS CONCLUDED