Bropho v State of Western Australia

the reserves act 15 Relevant sections of the Reserves Act are as follows: '3. Definitions In this Act - … "Authority" means The Aboriginal Affairs Planning Authority referred to in the Aboriginal Affairs Planning Authority Act 1972 section 8; "LAA" means Land Administration Act 1997; "LAA Minister" has the meaning given to that term in the LAA section 3(1); "management order no. I262262" means the management order by which, under the LAA section 46(1), the care, control and management of the reserve were placed with the Swan Valley Nyungah Community Aboriginal Corporation on 11 October 2002; … "the reserve" means class C reserve no. 43131 comprising 8.8767 ha of Crown land in the Swan Valley that is reserved under the LAA section 41 for the use and benefit of Aboriginal inhabitants. 4. Revocation of management order no. I262262 and effect (1) Management order no. I262262 is revoked by force of this Act. (2) The revocation, under section (1), of management order no. I262262 has effect as if it were a revocation of a management order under the LAA section 50(2). 5. Placing of care, control and management of the reserve and effect (1) The care, control and management of the reserve are, by force of this Act, placed with the Authority for the same purpose as that for which the relevant Crown land is reserved and for purposes ancillary or beneficial to that purpose. (2) The placing, under subsection (1), of the care, control and management of the reserve has effect as if it were done under the LAA section 46(1). (3) The LAA Minister may by order subject the care, control and management of the reserve to such conditions as the LAA Minister specifies and such an order has effect as if it were an order as defined in the LAA section 3(1). (4) A reference in the LAA to a management order is, in relation to the reserve during such time as the care, control and management of the reserve remained placed with the Authority (either solely or jointly), a reference to the effect of subsection (1) and any order under subsection (3). (5) To avoid doubt, nothing in this Act prevents - (a) the revocation, under the LAA section 50, of the effect of subsection (1); or (b) the taking of any other action under the LAA or any other written law in relation to the reserve, or the care, control and management of the reserve, without the need for a further Act. … 7. Additional powers in relation to care, control and management (1) In this section - "administrator" means - (a) a person engaged under subsection (2)(a); or (b) an officer nominated under subsection (2)(b), (2) The Authority may - (a) engage a person under a contract for services; or (b) nominate an officer referred to in the Aboriginal Affairs Planning Authority Act 1972 section 15(1), to enable the Authority to perform effectively its functions in relation to the reserve. (3) The administrator may - (a) direct a person not to enter the reserve during a period of time specified in the direction or until such time as the direction is revoked; (b) direct a person to leave the reserve; (c) with such assistants as the administrator thinks are necessary - (i) prevent a person from entering the reserve contrary to a direction under paragraph (a); (ii) remove a person from the reserve if the person does not comply with a direction under paragraph (a) or (b). (4) A direction under subsection (3)(a) or (b) may be oral or in writing and must be given to the person who is the subject of the direction before the exercise of a power under subsection (3)(c) or (7). (5) The LAA Minister, in an order under the LAA section 46(1) by which the care, control and management of the reserve is placed with a person other than the Authority, may authorise a person, or the holder of an office, specified in the order, to exercise any power set out in subsection (3). (6) If - (a) there is no administrator and a person has not been authorised under subsection (5); or (b) the land is the subject of the reserve at the commencement of this Act is no longer a reserve as defined in the LAA section 3(1), the LAA Minister may exercise, in relation to the land, any power set out in subsection (3). (7) A police officer may - (a) prevent a person from entering the reserve contrary to a direction under subsection (3)(a); (b) remove a person from the reserve if the person does not comply with a direction under subsection (3)(a) or (b). (8) The powers that a person may exercise under this section are in addition to, and do not derogate from, the powers that the person has under any other law. (9) A person who may exercise a power under subsection (3)(c) or (7) may use such reasonable force as is necessary for the purpose of exercising the power. (10) A power may be exercised under this section in relation to the land that is the subject of the reserve even though a person has a legal or equitable right or interest in the land and whether or not the land is a reserve as defined in the LAA section 3(1) at any particular time. 8. Exclusion of rules of natural justice The rules known as the rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to a direction under section 7(3)(a) or (b). 9. Nature of discretion (1) A discretion that a person has for the purposes of section 7(3) is absolute and the person is not required to give reasons for how the discretion is exercised. (2) A person is not entitled, because of anything in this Act or anything done by another person, to expect that a discretion referred to in subsection (1) will be exercised in a particular way. … 11. Immunity from judicial supervision No writ of certiorari, mandamus, or prohibition, or other prerogative writ, is to issue and no declaratory judgment or injunction is to be given or granted, in respect of - (a) any decision made or purporting to be made under section 7; or (b) anything else done or purporting to have been done under section 7.'

constitutional provision 16 The provision in the Constitution upon which the applicant relies reads: '109 Inconsistency of laws When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.' 17 It is common ground that notices of a constitutional matter were given to various Attorneys-General as required by s 78B of the Judiciary Act 1903 (Cth).

relevant remedial provisions 18 The following are the relevant provisions of the DiscriminationAct: '9 Racial Discrimination to be unlawful (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (1A) Where: (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and (b) the other person does not or cannot comply with the term, condition or requirement; and (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin. (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to Article 5 of the Convention. (3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australia ship or aircraft) if that person was engaged, or applied, for that employment outside Australia. (4) The succeeding provisions of this Part do not limit the generality of this section. 10 Rights to equality before the law (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as person of that other race, colour or national or ethnic origin. (2) A reference to subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention. (3) Where the law contains a provision that: (a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or (b) prevents or restricts an Aboriginal or Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander; not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person. … 12 Land, housing and other accommodation (1) It is unlawful for a person, whether as a principal or agent: (a) … (b) … (c) … (d) to refuse to permit a second person to occupy any land or any residential or business accommodation; or (e) … by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.' 19 Article 5 of the Convention relevantly provides: 'In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice; (b) … (c) … (d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State; (ii) … (iii) … (iv) … (v) The right to own property alone as well as in association with others; (vi) … (vii) … (viii) … (ix) … (e) Economic, social and cultural rights, in particular: … (f) …' 20 The Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act') provides in Pt IIB for redress for unlawful discrimination. Section 46P provides for the lodging of a complaint alleging unlawful discrimination and a process of conciliation by the President. Section 46PH provides that the President may terminate a complaint on a number of grounds. Section 46PH(2) provides that if the President decides to terminate a complaint, the President must notify the complainants in writing of that decision and of the reasons for that decision. By s 46PO(1) it is provided: '46POApplication to court if complaint is terminated (1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.'

Respondents' motion and grounds 21 The respondents' notice of motion claims that two aspects of the application and the re-amended statement of claim should be struck out. The first aspect is that claiming declarations based on inconsistency with s 9 of the Discrimination Act. These are the three limbs referred to above. The second is the aspect of the pleadings alleging a breach of s 12(1)(d) of the Discrimination Act. Consequential amendments are sought to the relief claimed. 22 The grounds on which these strike outs are sought are that these claims do not disclose a reasonable cause of action (Federal Court Rules ('FCR') O 20 r 2(a)) or that they are an abuse of process as being beyond the jurisdiction of the Court (FCR O 20 r 2(c)). 23 In addition it is also sought to strike out the paragraph 8 claim. The grounds on which that is sought are that it discloses no case appropriate to the nature of the pleading (FCR O 11 r 16(a)) or that it has a tendency to cause prejudice, embarrassment or delay (FCR O 11 r 16(b)). Additionally strike out is sought of the words 'manage and' in pars 29, 30 and 31 of the re-amended statement of claim or the same words in par 42 on the same grounds.

evidence 24 In support of their notice of motion, the respondents rely on the affidavit of Mr Wahl sworn on 5 July 2004.

contentions 25 The respondents submit that the authorities on s 9 of the Discrimination Act, referred to below, apply equally to s 12 of that Act.

NO JURISDICTION 26 The first submission for the respondents is that the application is in error when it seeks to have the Court declare an act in contravention of s 9 of the Discrimination Act as 'invalid'. It is contended the use of the word 'unlawful' in the section does not provide a foundation for the Court to declare invalidity. The argument is that a contravention of the section only gives rise to a right to invoke the procedures and to obtain the remedies provided in the HREOC Act. This contention commences in reliance on the principle that whether or not an enactment incorporating a convention into domestic law provides for private enforceable rights is a matter of statutory interpretation of the enactment: Golovcenco v Centrelink [2003] FCA 527 at [16] per Cooper J; cf Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 178, 234 - 235 and 260 - 261. The Parliament may choose to confer upon the courts a limited jurisdiction in respect of incorporated convention rights and obligations: Abebe v Commonwealth (1999) 197 CLR 510 at [28], [36] - [37]. 27 With regard to the extent of remedies available in respect of a contravention of s 9 of the Discrimination Act the respondents rely on the reasoning of the High Court in Re East; Ex parte Nguyen (1998) 196 CLR 354. There a convicted criminal sought a writ of certiorari and declaratory relief in the original jurisdiction of the High Court in respect of his conviction in the County Court of Victoria for armed robbery. He argued that by reason of his lack of ability in speaking and understanding English and the absence of an interpreter, he was a victim of racial discrimination of a kind rendered unlawful by s 9 of the Discrimination Act. The majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) dismissed the application on the grounds that there was no justiciable controversy arising under a treaty, which was necessary to attract the original jurisdiction of the High Court under s 75(i) of the Constitution. 28 In doing so the majority examined 'what (if any) private rights are conferred by the [Discrimination Act], either by its express terms or by necessary implication' (at [20]). Their Honours examined the scheme of the Discrimination Act (at [25]) and answered that question as follows: (i) 'The elaborate and special scheme of Pt III of the [Discrimination Act] was plainly intended by the Parliament to provide the means by which a person aggrieved by a contravention of s 9 of the [Discrimination Act] might obtain a remedy, and thus was regarded by Parliament as fulfilling Australia's treaty obligations, bearing always in mind the legal structure and system which formed the context in which the [Discrimination Act] was to operate' (at [26]); (ii) '…the scheme of the [Discrimination Act] demonstrates that, in cases where there is a remedy for a contravention of s 9, it is to be found in Pt III of the [Discrimination Act]. The procedures under Pt III have not been invoked by the applicant…' (at [31]); and (iii) 'The facts alleged by the applicant do not establish any right, duty or liability of any of the parties, and they cannot do so because the [Discrimination Act] provides its own, exclusive regime for remedying contraventions. The only right that the [Discrimination Act] creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right.' (at [32]) 29 Since the delivery of those reasons the Discrimination Act has been amended by removing the relevant provisions in Part III and inserting them into the HREOC Act. The respondents submit that this amendment does not materially change the scheme of the Discrimination Act with the consequence that Nguyen remains a binding authority in respect of that Act. Nguyen has been followed by the majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) in Western Australia v Ward (2002) 213 CLR 1 at [102]. 30 Therefore the respondents contend that the consequence of the insertion of the provisions in the HREOC Act is that a claim for unlawful discrimination under s 9 or s 12 of the Discrimination Act must be commenced by a complaint lodged with the Human Rights and Equal Opportunity Commission ('the Commission'): s 46P of the HREOC Act. The subject of the complaint can only come before the Court if the complaint is terminated: s 46PH, s 46PO and FCR O 81 r 5. Here there is evidence in the affidavit of Mr Wahl sworn on 2 April 2004 that the procedures under the HREOC Act and the FCR have not been followed. It is contended that this is not merely a formal defect; rather, it is said, the Court lacks jurisdiction to deal with any claim of unlawful discrimination under s 9 or s 12 of the Discrimination Act. Therefore the claims founded on those sections and the associated claims for relief should be struck out. 31 The applicant responds by saying that she is not seeking a remedy under the HREOC Act so that the respondents contentions based on that fall away. Rather the applicant says she is seeking a declaration of invalidity of the Reserves Act based on its inconsistency with s 9 and s 12 of the Discrimination Act and the operation of s 109 of the Constitution. This, she contends, is what distinguishes her case from that of Nguyen. Her argument is that she is not seeking to assert a private right to a remedy based on s 9 of the Discrimination Act. Rather she asks the Court to exercise its jurisdiction under the Judiciary Act 1903 (Cth) s 39B(1A)(b) and s 39B(1A)(c) to adjudicate upon the operation of s 109 of the Constitution in relation to conflicting laws of the Commonwealth and the State of Western Australia.

Enactment not an act 32 The respondents also submit that the enactment of legislation is not an 'act' for the purposes of s 9 of the Discrimination Act. This contention is supported by reference to Gerhardy v Brown (1985) 159 CLR 70 at 81 per Gibbs CJ; at 92 - 93 per Mason J; at 120 - 121 per Brennan J; and at 146 per Deane J and to Mabo v Queensland (1988) 166 CLR 186 at 197 per Mason CJ; at 203 per Wilson J; at 216 per Brennan, Toohey and Gaudron JJ; at 242 per Dawson J. 33 Based on that foundation the respondents contend that the claims in respect of the enactment of the Reserves Act together with associated relief cannot be made out, so that they should be struck out. 34 The applicant agrees with the respondents' submission that the authorities support the proposition that the enactment of legislation is not an 'act' for the purposes of s 9 of the Discrimination Act. What is, however, asserted for the applicant is that such proposition is not fatal to the cause of action based on s 9. Support for this is sought by examination of the passages in Gerhardy and Mabo relied upon by the respondents.

Inapplicability of section due to inconsistency 35 The respondents additionally submit that an act authorised under a State statute cannot be 'unlawful' under s 9 of the Discrimination Act. In support the respondents rely upon the statement by Gibbs CJ in Gerhardy at 81 - 82 to the effect that where a State Act empowers a person to act in a particular way then their doing so cannot give rise to a breach of s 9 of the Discrimination Act because it does not involve a distinction, preference, exclusion or restriction based on race. See also Mason J at 93 and Brennan J at 122. These dicta were cited and followed by the Full Court of the Supreme Court of South Australia in Aboriginal Legal Rights Movement Inc v State of South Australia (1995) 64 SASR 558. 36 In that case, the Full Court considered a submission that an authorisation to divulge information in contravention of Aboriginal tradition given by the Minister for Aboriginal Affairs under s 35 of the Aboriginal Heritage Act 1988 (SA) was invalid by reason of s 9 of the Discrimination Act. Doyle CJ (with whom Bollen and DeBelle JJ agreed) at 561 said: 'Common sense suggest a short answer to this submission. If s 35 is valid then the preforming of the very sort of act which s 35 envisages could hardly be invalid. To conclude that such an act was invalid would be to render s 35 meaningless. In my opinion the common sense answer is correct… if the statute confers a power which does not give a choice to the person exercising the power to discriminate in doing so, the exercise of the power is not rendered unlawful by s 9. If the exercise of the statutory power necessarily involves a distinction based on race, the person who exercises the power cannot be said to make such a distinction.' 37 The respondents' submission is also supported by Ward. Their Honours in Ward posed the question (at [102]) whether s 9 of the Discrimination Act operates in respect of an act authorised by a State or Territory statute which has a discriminatory effect on the enjoyment of native title. They concluded that, '[b]ecause legislative sanction is now necessary before anything can be done with Crown land which would extinguish or affect native title, s 9(1) [of the Discrimination Act] does not operate to invalidate discriminatory acts of that kind' (at [103]). 38 There are dicta in Gerhardy v Brown per Mason J at 92 - 93, Brennan J at 121, 131 and Deane J at 146 (cf Gibbs CJ at 82; Murphy J did not deal with s 9 of the Discrimination Act; Wilson and Dawson JJ did not decide (see at 112 and 162)), and in Mabo per Mason CJ at 197 (cf Wilson J at 203 - 204; Brennan, Toohey and Gaudron JJ at 216; Deane J did not deal with s 9 of the Discrimination Act at 242) that s 9 may apply to invalidate a State law which authorises the doing of an act which would be contrary to s 9. The respondents submit that those statements do not form the ratio of those cases, and in any event that view must now be considered to be incorrect in the light of the subsequent High Court authorities Nguyen and Ward. Any challenge to the validity of a State law can only be brought under s 10 of the Discrimination Act. 39 Furthermore, even following those dicta, a State law would only be invalid by reason of s 9 of the Discrimination Act if there was a necessary inconsistency. The State law would be invalid if: (a) inconsistency depended upon whether the power created by the State law was exercised in a discriminatory way within the meaning of s 9: Mabo per Wilson J at 203 - 204 (with whom Dawson J agreed at 242); or (b) the State law was declaratory: Mabo per Mason CJ at 197. 40 Based on these contentions, the respondents say that the claims founded on the acts of the third respondent together with associated relief should be struck out. This is because, they say, the third respondent acted under legislative sanction so that s 9 of the Discrimination Act did not operate to invalidate his acts. It is argued that this case is indistinguishable from Gerhardy and Ward. 41 By examining the dicta in those decisions the applicant arrives at submissions to the effect that the relief sought does not purport to prohibit or make unlawful the act of the Parliament in enacting the Reserves Act, but seeks a declaration that the State provision has no valid effect while an inconsistency exists with a Commonwealth statutory provision. That is, the contention is made that s 109 of the Constitution has the effect of prohibiting the valid enactment by a State of legislation which authorises the doing of an act in breach of s 9 of the Discrimination Act.

No necessary inconsistency 42 Based on the above arguments relating to inconsistency, the respondents submit that ss 7, 8, 9 and 11 of the Reserves Act are not invalid by reason of s 9 of the Discrimination Act because there is no necessary inconsistency between them. For example, it is said, even if the issuing of a direction under s 7 of the Reserves Act could contravene s 9 of the Discrimination Act, such a direction may be given to a non-Aboriginal person by reason of that person's unauthorised entry onto the Reserve. 43 The applicant says that such a possibility is irrelevant because it is the fact that the third respondent now has the power which, prior to the enactment of the Reserves Act was vested in the Corporation, which is the determinative feature.

Declaratory character 44 The respondents contend that s 5 of the Reserves Act is not invalid by reason of s 9 of the Discrimination Act because it is declaratory and does not authorise the doing of any act. 45 The applicant argues that it is at the heart of this cause of action that the Reserves Act is not merely declaratory of the current position but purports to alter property rights as between the applicant and the first respondent.

embarrassing pleadings 46 It is argued by the respondents that embarrassment in the context of FCR O 11 r 16: 'carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense. The list is not intended to be exhaustive.' (Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434 at 40,889) 47 Here it is said that there is an inconsistency between the pleading (in par 27 and par 28 of the claim) that the applicant and those whom she represents have and have exercised a 'right of ownership' of the Reserve and the pleading (in par 29 and par 31) that the Reserves Act deprives the applicant and those whom she represents of the right 'to manage and exercise ownership rights' where there is no pleading that the applicant has a right to manage the Reserve. It is said to be unclear whether the applicant claims to have had a right to manage as distinct from ownership. If not, it is said the references to the right to manage should be struck out. Alternatively the respondents invite an amendment to plead that the right to own includes a right to manage. If she seeks to rely on a separate right to manage, then it is said she must plead such a right and that it is a right to which s 10(1) of the Discrimination Act applies. The respondents seek that references to 'manage' should be struck out of pars 29, 30, 31 and 42. 48 The applicant says that the pleadings are intended to convey that the applicant has ownership rights which include the right to manage the Reserve. So far as this is not the case, the applicant seeks leave to amend the phrase 'the right to manage and exercise ownership rights' in pars 29, 30 and 42 to add the word 'otherwise' before the word 'exercise'. 49 The respondents also seek to have struck out par 8 and reference to it in par 22 of the claim. The former pleads that the applicant has managed the Reserve in a certain way. The latter pleads that the Corporation managed the Reserve in the manner set out in pars 8, 27 and 28. However, the respondents say that nowhere is it pleaded that the fact of management, or management in a particular way, is material to the causes of action relied upon. 50 The applicant contends that the unique capacity to manage the Reserve for the benefit of the Aboriginal inhabitants asserted in par 8 is material to the issue of change of management without consent pleaded in par 22; the grievance which has given rise to the cause of action; a determination of the loss and damage suffered and the appropriate remedy for that loss and damage.

paragraph 1 of the motion 51 I agree with the respondents' submission that the removal of the relevant provisions from Part III of the Discrimination Act and the insertion of them into the HREOC Act does not materially change the scheme of the Discrimination Act. 52 I therefore also accept that Nguyen remains a binding authority to the extent of its ratio. That is, relevantly it is an authority binding me to the principle that the Discrimination Act, if sought to be invoked, provides its own exclusive regime for remedying contraventions. 53 It is a question of fact whether the pleadings of the applicant seek to invoke the Discrimination Act or whether, as the applicant claims, they seek only to raise the issue of constitutional inconsistency. I consider that the following claims in the applicant's pleadings seek to invoke the Discrimination Act: (a) Paragraphs A.2, A.3(a) and (b) of the application; (b) Paragraphs 45 to 55 and pars (ii), (iii)(A) and (B) of the relief claimed in the re-amended claim. These pleadings raise issues beyond the jurisdiction of this Court because the remedies available in relation to them are those provided for in the HREOC Act and sanctioned in that respect by the authority of Nguyen. As they therefore lie beyond the jurisdiction of the Court, the respondents' motion for strike out should be allowed in relation to them. The pleadings in relation to claim (ii) concerning the enactment of the Reserves Act as constituting a contravention of s 9 of the Discrimination Act is in any event a matter conceded by the applicant in accepting that the enactment of legislation is not an 'act' for the purposes of s 9 of the latter Act. 54 The next question is whether the pleadings relating to constitutional inconsistency fall within the same principle. Those pleadings appear in par A.1(d) of the application, pars 41 to 44 of the re-amended statement of claim and par (i)(D) of the relief claimed. 55 In Gerhardy v Brown it was accepted by members of the High Court that it is open to argument whether any particular State enactment is or is not inconsistent with s 9 of the Discrimination Act. Mason J said at 92 - 93: 'The operation of s 9 is confined to making unlawful the acts which it describes…. This is not to say that s 9 of the [Discrimination Act] cannot operate as a source of invalidity of inconsistent State laws, by means of s 109 of the Constitution. Inconsistency may arise because a State Law is a law dealing with racial discrimination, the Commonwealth law being intended to occupy that field to the exclusion of any other law: Viskauskas v Niland (1983)153 CLR 280. Or it may arise because a State law makes lawful the doing of an act which s 9 forbids: see Clyde Engineering Co. Ltd. v Cowburn (1926) 37 CLR 466 at 490.' That possibility is also recognized by Brennan J at 121, 131 and Deane J at 146. See also Mabo at 203. 56 I do not accept the submission for the respondents that such a possibility must now be considered to be incorrect in the light of Nguyen and Ward. Those authorities address the principle of the exclusivity of the remedies in respect of contraventions of the Discrimination Act. As the dicta in Gerhardy makes apparent, the issue of constitutional validity precedes the application of any remedy to a contravention. 57 It is important to distinguish each of the following issues from each other: (1) whether there is a constitutional inconsistency between a State enactment and the provisions of s 9 of the Discrimination Act; (2) whether the enactment by a State of legislation is an 'act' for the purposes of s 9 of the Discrimination Act (it being common ground here that it cannot be); (3) whether an act done pursuant to an authorisation in a valid State enactment can give rise to a breach of s 9 of the Discrimination Act; (4) Whether acts allegedly in contravention of s 9 attract remedies other than those provided by the Discrimination Act (which, on the authority of Nguyen, they could not). The first of those questions precedes the others and is open to argument independently of them. 58 I do not consider that the dicta in Mabo,relied upon by the respondents, supports the proposition that the issue of constitutional inconsistency between s 9 of the Discrimination Act and a State enactment is not open to argument. When Mason CJ (at 197) stated that the State Act there in question was declaratory, he was addressing the issue of inconsistency and an argument why inconsistency should not be found in that case. Likewise when Wilson J (at 203 - 204), with whom Dawson J agreed (at 242), stated that the inconsistency depended upon whether the power was exercised in a discriminatory way, he was considering an argument on the issue of inconsistency. As the dicta of Gibbs CJ in Gerhardy at 81 makes apparent, the issue of inconsistency requires that both the Commonwealth and State enactments are in existence, the Commonwealth having no power to prohibit an inconsistent State enactment and s 109 being the means by which inconsistency is resolved. Necessarily, that issue potentially comes into being on the enactment of a State law being arguably inconsistent with a Commonwealth law and so the issue of inconsistency precedes any act under either laws. 59 On this application for strike out, it is not germane to consider whether any inconsistency could be made out between s 9 of the Discrimination Act and the Reserves Act. All that must here be determined is whether the issue is open for argument or whether the pleading to that effect should be struck out because of the decision of the High Court in Nguyen. In my view the latter is not the case and the motion should not lead to a strike out in that respect. It will be for subsequent argument to inform the issue of invalidity (or validity) of the Reserves Act on the basis of the inconsistency with s 9 of the Discrimination Act.

paragraph 2 of the motion 60 This relates to the paragraph 8 claim. In view of the applicant's submission on this issue I do not consider that the paragraph can be struck out pursuant to O 11 r 16(a) and O 11 r 16(b) of the FCR. However, I reach that view without prejudice to the right of the respondents to have the matter reconsidered in the light of how issues develop in the proceeding and, in particular, in the light of evidence that the paragraph has a tendency to cause delay in the proceeding.

paragraphs 3 and 4 of the motion 61 For the purpose of removing any doubt, I would grant leave to the applicant to amend pars 29, 30, 31 and 42 by adding in each case the word 'otherwise' before the word 'exercise' in the phrase 'the right to manage and exercise ownership rights'.

further complaint and applicant's motion 62 As reference to the affidavit of Mr Wahl of 5 July 2004 discloses, the applicant filed a complaint with the Commission on 13 June 2004. In that complaint she alleges that the enactment of the Reserves Act was an act which breached s 9 of the Discrimination Act and that the actions of the third respondent breached the same Act. On 14 June 2004 her solicitors wrote to the Commission requesting that the President terminate the complaint under s 46PH(1)(g) of the HREOC Act on the basis that it could more effectively and conveniently be dealt with by the Court. No argument is made by the applicant that this second complaint should be taken as curing any jurisdictional inadequacies in the first complaint. 63 There is also before the Court an amended notice of motion brought by the applicant to strike out portions of the defence of the first, second and third respondents on the grounds that no reasonable defence is disclosed or that they have a tendency to cause prejudice, embarrassment or delay in the proceeding. Extensive written submissions, supplemented by oral submissions, have been made available to the Court. 64 However, it does not seem to me appropriate to proceed to consider the applicant's motion until further clarification from the parties in two respects. The first is whether, in the light of these reasons, the applicant intends to modify her pleading in any way which makes inappropriate any of the submissions or whether the respondents intend to amend their defence in any way having the same effect. The second is whether the applicant intends to pursue the second complaint and, if so, whether such complaint is in whole or partial substitution for the first complaint and what consequent effects those changes may have on the pleadings in issue. Directions will therefore be given to enable the parties to clarify these matters and the extent to which, in these changed circumstances, the applicant's motion is still to be pursued. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate: Dated: 15 September 2004 Counsel for the Applicant: GMG McIntyre SC

Counsel for the Respondents: G Tannin SC and S Wright

Solicitor for the Respondents: State Solicitor for Western Australia