Bropho v State of Western Australia

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a single judge of this Court: Bropho v State of Western Australia [2007] FCA 519. On 13 April 2007, the primary judge dismissed the applications in each of two proceedings raising the same issues. The principal questions are whether the Reserves (Reserves 43131) Act 2003 (WA) ("Reserves Act") and action taken under that Act contravene or are inconsistent with the Racial Discrimination Act 1977 (Cth) ("RD Act"). 2 The proceedings below were brought by Bella Bropho, a former resident of Reserve 43131 in Western Australia and member of the Swan Valley Nyungah Community Aboriginal Corporation ("SVC"). The reserve had been designated in 1994 for the use and benefit of Aboriginal persons, and had effectively been under the management of the SVC until recently. For some time there had been increasing concern for the safety of women and children on the reserve. The Western Australian Parliament enacted the Reserves Act, which commenced on 12 June 2003. By operation of the Act, the management order placing the care, control and management of the reserve with the SVC was revoked and management responsibility was placed instead with the Aboriginal Affairs Planning Authority. An administrator was appointed under the Reserves Act. The administrator made directions which effectively prevented entry to the reserve by its former inhabitants without the administrator's express authority. 3 Before the primary judge, the appellant challenged the Reserves Act and the actions taken by the administrator on a number of bases, relying on ss 9, 10 and 12 of the RD Act. The appellant also advanced claims in trespass and deprivation of possession which are not pursued in the appeal. Ms Bropho advanced the case on the basis that she represented all persons who were Aboriginal inhabitants of the reserve of Nyungah origin who were also members of the SVC. The capacity in which Ms Bropho represented other persons is not discussed in his Honour's reasons, and does not appear to have been addressed by the parties. Representative proceedings can be brought by either the procedure in O 6 r 13 of the Federal Court Rules or the procedure in Part IVA of the Federal Court of Australia Act 1976 (Cth). When the question of how the proceedings were constituted as representative proceedings was raised by the Full Court, counsel for Ms Bropho indicated that the appeal should be treated as being brought on Ms Bropho's behalf only. In the primary judge's reasons for judgment, he referred to both "applicant" and "applicants". In these reasons we will not draw this distinction and refer simply to the appellant even if, in his Honour's reasons, he spoke of the "applicants". 4 In the appeal, the Human Rights and Equal Opportunity Commission ("HREOC") was granted leave to intervene and make written and oral submissions about the interpretation of the RD Act and the International Convention on the Elimination of all forms of Racial Discrimination, 7 March 1966, New York ("CERD"). Background 5 The primary judge, in his reasons, sets out in detail the history of the reserve and the events surrounding the enactment of the Reserves Act, under the heading "General findings of fact". It is necessary to repeat some of that detail to appreciate the appellant's case before the primary judge and the grounds of appeal. 6 The reserve was set apart as a public reserve for the purpose of "Use and Benefit of Aboriginal Inhabitants" on 19 July 1994, pursuant to s 29 of the Land Act 1933 (WA). Pursuant to s 33(2) of the Land Act 1933, the care, control and management of the reserve was vested in the SVC. On 12 December 1995 the vesting of the reserve was revoked pursuant to s 34B(1) of the Land Act 1933. The reserve was amended (increased in size) pursuant to s 37 of that Act and then re-vested in the SVC for the same designated purpose as previously. On 30 March 1998, the Land Act 1933 was repealed by the Land Administration Act 1997 (WA) ("LAA"). Pursuant to the transitional provisions in the Second Schedule to the LAA, the vesting order was converted to a management order ("the 1998 management order"). 7 In 2001, a coronial inquiry was held into the death of a young woman, Susan Taylor, who had hanged herself in February 1999 on the reserve. Evidence given at the inquest and the Coroner's report revealed high levels of substance abuse by, and sexual abuse of, young people at the reserve, and that service providers were experiencing difficulties accessing the reserve. In 2002, the "Inquiry into Responses by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities" was established. It was conducted by Magistrate Sue Gordon AM and others ("the Gordon Inquiry"). The Gordon Inquiry report was published on 31 July 2002 and made various findings and recommendations concerning government agencies in relation to aboriginal communities. 8 In October 2002, the Department of Land Administration took steps to revoke the 1998 management order and register a new management order ("2002 management order"). The steps were taken as part of the Government's response to the Gordon Inquiry report and were the result of negotiations between a number Government Departments and the SVC between August 2002 and October 2002. The 2002 management order placed the care, control and management of the reserve with the SVC for the same designated purpose as previously but attached conditions, such as requiring the installation of a pedestrian gate to facilitate access by government agencies and the preparation by the SVC of a management plan. 9 On 23 October 2002, an inquiry was established to review the way in which the Department of Community Development had handled a number of child abuse cases. The inquiry was conducted by a barrister, Richard Hooker ("the Hooker Inquiry"). Eight of the cases reviewed were associated with the SVC. In the months following the commencement of the 2002 management order, reports continued of substance abuse by, and physical and sexual abuse of, young people on the reserve. In March 2003, a consensus emerged amongst relevant government agencies that they were having limited success in improving conditions on and access to the reserve. 10 On 30 March 2003, the SVC submitted a draft management plan. A number of government agencies provided negative feedback on the draft essentially in relation to the inadequate commitment to and provision for access to the reserve by Government service providers. 11 The Reserves (Reserve 43141) Bill 2003 (WA) ("Reserves Bill") was introduced into Parliament on 15 May 2003. The Second Reading Speech to Parliament by the Premier referred to the concerns for the safety of children and women on the reserve and the reports of government officers concerning difficulties in accessing the reserve. The Reserves Act came into effect on 12 June 2003. The provisions of that Act are set out in more detail below. On the same day, an administrator (the third respondent to the proceedings below and in the present appeal) was appointed pursuant to s 7 of the Reserves Act. 12 On 13 June 2003, the 2002 management order was revoked by s 4 of the Reserves Act. The same day, the administrator made certain oral and written directions. First, a direction was made pursuant to s 7 of the Reserves Act that only certain people (being those listed as assisting the administrator with the performance of his duties) could enter the reserve without express authority. The direction was in the following terms: I, Barry Charles Jameson… in accordance with the power vested in me under the Act hereby direct that the following people can enter and leave the reserve for the purpose of assisting in the performance of my obligations as the Administrator: · Members of the Police Service; · Chubb security personnel; · Members, employers and contractors engaged by ATSIC (upon presentation of suitable identification); · Employees and contractors engaged by Government departments or agencies, including but not limited to the Department of Community Development, Department of Housing and Works, Department of Indigenous Affairs, Western Power, and the Water Corporation (upon presentation of suitable identification); · C & C Lockmiths; · Mrs Mop - rubbish removal company. A person not listed in this direction ("an excluded person"), is not permitted to enter the reserve without my express authority. Should an excluded person enter the reserve without my express authority, he or she shall be removed from the reserve with the assistance of Chubb Security or the Police (as necessary).