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[2009] NSWLEC 38
respondent. Summons dismissed. Costs reserved (any application for costs to be made within seven days); exhibits may be returned (see [54]).
The applicant, an Aboriginal traditional owner, challenged a Ministerial approval for a highway bypass and the statutory exemption (s 75U(1)(d) EPA Act) that removes the need for National Parks and Wildlife Act permits/consents for approved projects. The Court held that s 75U(1)(d) and the approval conditions did not contravene ss 9 or 10 of the Racial Discrimination Act and were not invalid under s 109 of the Constitution. The summons was dismissed.
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On 9 July 2007 the NSW Minister for Planning granted conditional approval under s 75J of the Environmental Planning and Assessment Act 1979 (EPA Act) for the Bulahdelah bypass project, declared a Part 3A project (see [1], [14]). The approval included heritage conditions (clauses 2.9–2.14) addressing Aboriginal cultural heritage: protection of scarred trees, salvage and subsurface testing of artefacts, salvaging the 'Guardian Tree', design measures for the 'Healing Stream' and signage (see [7]–[11]). Section 75U(1)(d) of the EPA Act provides that an approved project does not require a permit under s 87 or consent under s 90 of the National Parks and Wildlife Act 1974 (NPW Act), which otherwise regulate disturbance, movement, destruction, defacement or damage of Aboriginal objects (see [3], [15], [17]–[20]).
4 cited instruments linked from this judgment.
Worimi Dates, an Aboriginal member of the Worimi Nation and a traditional owner, challenged both s 75U(1)(d) and the approval conditions. He alleged inconsistency with ss 9 and 10 of the Racial Discrimination Act 1975 (Cth) (RD Act), invoking s 109 of the Constitution, and sought declarations and injunctive relief restraining works affecting Aboriginal objects (see [2], [4], [5], [12]). The respondents admitted the approvals and that the project may affect Aboriginal objects and that s 75U(1)(d) excludes the need for NPW Act permits/consents (see [12]–[13]).
After hearing submissions, Biscoe J dismissed the summons on 6 April 2009, concluding there was no inconsistency between s 75U(1)(d) and ss 9 or 10 of the RD Act and that the approval conditions did not breach s 9 (see [48], [53]–[54]).
The decision turns on the legal operation and interaction of s 75U(1)(d), the NPW Act provisions, and ss 9 and 10 of the RD Act, as applied through s 109 of the Constitution.
The Court framed s 75U(1)(d) as removing the requirement for NPW Act permits/consents for approved projects; that statutory removal gives the Minister the discretion to approve impacts on Aboriginal objects otherwise governed by ss 87 and 90 (see [3], [15], [33]). The NPW Act permits and consent regimes carry statutory objects and constraints, including conservation of Aboriginal places and ecologically sustainable development principles (s 2A NPW Act) which do not operate where s 75U applies (see [18], [22], [33]).
The Court reviewed the distinct roles of ss 9 and 10 of the RD Act. Section 9 proscribes discriminatory acts by persons; s 10 operates upon laws which produce unequal enjoyment of rights, and often operates to confer rights where State law discriminates, rather than to displace State law in every case (see [24]–[26], [36]–[41]). Gerhardy v Brown and related authorities informed this distinction (see [37]–[41]).
On s 9, the Court concluded s 75U(1)(d) is not a State law that makes lawful an act proscribed by s 9 in a way that would create s 109 invalidity. Mason J’s analysis in Gerhardy was applied to show s 9’s limited role in invalidating State laws (see [36]–[40]).
On s 10, the Court asked whether s 75U(1)(d) produced unequal enjoyment of a right to consultation or cultural participation. The applicant’s asserted right was either statutory under ss 87–90 (there is none) or derived from DEC consultation guidelines and thus at best a legitimate expectation. Accepting, for argument, that a legitimate expectation existed and was not fulfilled, the Court held s 75U(1)(d) still did not come within s 10 because it does not create a racially directed prohibition denying rights to Aboriginal persons compared with non‑Aboriginal persons; it instead removed a protection, and Parliament may remove rights previously granted (see [43]–[46]).
Regarding the approval conditions, the Court found they did not authorise racially discriminatory conduct; rather they provided measures that protect Aboriginal heritage and required consultation with Aboriginal bodies (see [50]–[53]). The imposition of protective conditions cannot be characterised as an unlawful racial distinction under s 9.
For completeness, the Court rejected reliance on Article 2(1)(d) of the Convention as irrelevant to the constitutional question of state law inconsistency because that Article imposes obligations on States Parties to the Convention rather than directly on an Australian State (see [27], [49]).
Overall, the Court applied established principles about s 109 inconsistency, the scope of the RD Act, and the distinction between statutory rights and non‑statutory legitimate expectations to conclude there was no invalidity.
Before this decision the legal landscape included:
After Dates v NSW Minister for Planning:
Paragraph 3 (statutory effect of s 75U(1)(d)):
Paragraph 33 (characterisation of discretion):
Paragraphs 36–41 (difference between ss 9 and 10):
Paragraph 45 (central holding on s 10):
Paragraph 53–54 (conclusion and dismissal):
Dates will be most directly relevant where:
In such patterns, Dates provides a blueprint: the Court will examine whether the State law actually creates a racially directed prohibition or unequal enjoyment of rights; mere removal of a protection or reliance on legitimate expectations is unlikely to be enough under ss 9 or 10 unless the statutory structure effectuates inequality in enjoyment of rights.
Dates is a state Land and Environment Court judgment. It applies established High Court principles (Gerhardy, Mabo, Western Australia v Ward) and NSW Court of Appeal and Land and Environment authorities (Country Energy, Broad Henry, Anderson). Its reasoning aligns with the orthodox view that s 10 primarily addresses discriminatory state laws and that s 9 is limited in its capacity to invalidate state statutory provisions under s 109 (see [36]–[41]). Later courts considering similar statutory exemptions or interactions between state heritage regimes and the RD Act would likely apply the same framework: (1) determine whether the State provision makes lawful conduct proscribed by s 9 or otherwise occupies the field; (2) assess whether the law results in unequal enjoyment of rights under s 10; and (3) treat non‑statutory legitimate expectations as different in character from statutory rights (see [31], [36]–[46]).
Practitioners should expect Dates to be cited for the proposition that removal of statutory processes (permits/consents) under an approvals regime does not, without more, constitute racial discrimination under s 10, especially where the legislative power is general and not expressly racially targeted.
The status of legitimate expectations in s 10 analysis:
Scope of 'right' in s 10:
Interaction with customary law or native title:
Comparative treatment of protective conditions:
International obligations and state legislation:
Practitioners advising on planning approvals and Aboriginal cultural heritage should take from Dates that s 75U(1)(d)‑style exemptions are not per se invalid under the RD Act; challenge strategies should focus on demonstrating concrete inequality in enjoyment of rights, statutory entitlements to consultation, or clear evidence that approval conditions or processes operate to nullify cultural rights in a way that s 10 is designed to remedy (see [45], [52]).
CITATION : Dates v NSW Minister for Planning [2009] NSWLEC 38
PARTIES : FIRST RESPONDENT: NSW Minister for Planning
SECOND RESPONDENT: NSW Roads and Traffic Authority
KEY ISSUES: JUDICIAL REVIEW :- Constitutional law - whether s 75U(1)(d) of Environmental Planning and Assessment Act (1979) (NSW) and conditions of approval of a project under Part 3A breach or fail to comply with ss 9 and 10 of Racial Discrimination Act 1975 (Cth) and are consequently invalid under s 109 of Commonwealth Constitution.
Commonwealth of Australia Constitution Act 1900, s 109 Environmental Planning and Assessment Act 1979, ss 75H, 75J, 75U(1), Pt 3A LEGISLATION CITED: Heritage Act 1977, s 139 National Parks and Wildlife Act 1974, ss 5, 87 and 90 Racial Discrimination Act 1975 (Cth), ss 6A(1), 7, 9, 8 and 10, schedule
Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, (2006) 144 LGERA 43 Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426, (2005) 63 NSWLR 699 Gerhardy v Brown (1984-1985) 159 CLR 70 CASES CITED: Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337 Mabo v Queensland (1988) 166 CLR 186 R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 Telstra Corporation v Worthing [1999] HCA 12, (1999) 197 CLR 61 Victoria v Commonwealth (1937) 58 CLR 618 Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1
APPLICANT: Mr A Oshlack, agent SOLICITORS N/A
FIRST RESPONDENT: Mr J G Renwick LEGAL REPRESENTATIVES: SOLICITORS Crown Solicitor's Office
SECOND RESPONDENT: Mr A Galasso SC SOLICITORS Blake Dawson
JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
JUDGMENT 1 HIS HONOUR: On 9 July 2007 the NSW Minister for Planning (the first respondent) granted conditional Approval to the Roads and Traffic Authority (RTA) (the second respondent) under s 75J of the Environmental Planning and Assessment Act 1979 (EPA Act) for the construction of a dual carriage highway bypass to the east of Bulahdelah. Earlier, the development had been declared to be a project to which Part 3A (ss 75A to 75ZA) of the EPA Act applied. 2 The applicant claims that s 75U(1)(d) of the EPA Act, and conditions 2.9 to 2.14 of the Approval breach or are inconsistent with ss 9 and 10 of the Racial Discrimination Act 1975 (Cth) (RD Act) and, consequently, are invalid by operation of s 109 of the Commonwealth Constitution. 3 By s 75U(1)(d), a s 75J approved project does not require a permit or a consent under ss 87 and 90 of the National Parks and Wildlife Act 1974 (NPW Act) to (among other things) disturb or move, or knowingly destroy, deface or damage Aboriginal objects. Approval conditions 2.9 to 2.14 deal with, and seek to minimise, "heritage impacts" on aboriginal heritage.
(i) a declaration that the Approval is in breach of ss 9 and 10 of the RD Act and is invalid to the extent it purports to allow the destruction, damage and/or movement of Aboriginal cultural heritage objects under 2.9 to 2.14 of the conditions of approval, by virtue of s 109 of the Constitution. (ii) further or in the alternative, a declaration that the application of s 75U(1)(d) to the Approval is invalidated by virtue of s 109 of the Constitution to the extent that it fails to comply with the provisions of ss 9 and 10 of the RD Act insofar as it allows the destruction, damage and/or movement of Aboriginal objects without a permit or consent pursuant to ss 87 and 90 of the NPW Act. (iii) an order restraining the second respondent from carrying out any work or activity which seeks reliance upon the authority of the conditions of Approval 2.9 to 2.14 that involves excavation, clearance of vegetation removal which may disturb, damage, move or destroy an Aboriginal object. Applicant's underlying concern 5 The applicant's underlying concern is that the project will impact on or destroy:
(a) a number of identified and unidentified Aboriginal cultural heritage Items including scarred trees, ceremonial areas, burial sites and artefact scatters in what is said to be a sacred area of great significance to the Aboriginal Worimi Nation; and (b) a sacred healing stream and the Guardian Tree, both of which are said to be places of particular significance to the Aboriginal Worimi Nation. 6 The applicant is a member of the Aboriginal Worimi Nation and describes himself as a traditional owner of the land the subject of these proceedings. The bypass will be constructed along the western slope of Alum Mountain. The applicant says this place is very sacred to the Worimi and other Aboriginal nations on the east coast. He was taught things about the mountain by his father. He says there are many secret matters concerning the mountain that he is obligated not to reveal. On the mountain there are many significant sites created in the dreamtime, including the Guardian Tree and the Healing Stream. In January 2009 he inspected the route of the proposed bypass and observed a number of scarred trees made by Aboriginal Old People. He says he is trying to protect the place for future generations of the Worimi. The Approval
7 Clauses 2.9 to 2.14 of the Approval seek to protect Aboriginal heritage by providing that:
a) shall not destroy, modify or otherwise physically affect scarred tree B13; and
b) shall investigate possible design and construction methodology to avoid impacts on potential scarred tree B2.
2.10 Unless otherwise agreed with the DECC and KLALC, the Proponent shall salvage any detected artefacts from sites B1, B8, B10, B11, B14, B15 and B16 in consultation with the DECC and KLALC and prior to the commencement of construction works that may impact on those sites.
2.11 Unless otherwise agreed with the DECC and KLALC, the Proponent shall undertake subsurface testing for sites BPAD1 to 8 inclusive, and salvage any artefacts of significance identified at those sites in the same manner required under conditions 2.10 of this approval. The approach to salvage shall be detailed as per condition 6.4b of this approval.
2.12 Under the guidance of a specialist in Aboriginal scarred trees and using methodology determined in consultation with the DECC and the KLALC, the tree referred to as the `Guardian Tree' shall be salvaged with all potential culturally significant markings, including the relevant burl and scars. The care and control of the tree, including identification of an appropriate location for preservation shall be finalised in consultation with the DECC and KLALC before the tree is impacted by the Proponent. Should such a location not exist at the time the tree is salvaged by the Proponent, the Proponent shall bear the reasonable costs of establishing an appropriate location.
2.13 The Proponent shall design and construct the crossing of the `Healing Stream' in consultation with the DECC and KLALC, and with the aims of: a) maintaining water quality in the Stream;
b) minimising impacts on flow dynamics in the Stream;
c) minimising changes to the stream bed and riparian vegetation; and
d) maintaining appropriate access points for visitation of the Stream.
2.14 The Proponent shall install signage at the `Healing Stream' and at other locations in and around the Mountain Park area as agreed in consultation with the DPI, the DECC and KLALC. This signage may include but not be limited to highlighting the Aboriginal cultural tradition of healing associated with the Bulahdelah Mountain and its waters, and the Aboriginal significance of Bulahdelah Mountain." 8 Close consultation with the Karuah Local Aboriginal Land Council and the Department of Environment and Climate Change is required by those conditions. In some cases their effect can be altered with the agreement of both the Department and the Land Council. 9 Clauses 2.15 and 2.16 deal with protection of non-Aboriginal heritage.
10 Clause 2.11 refers to cl 6.4(b), which requires the proponent to prepare and implement a Construction Heritage Management Plan that must detail, "how construction impacts on Aboriginal and non-Aboriginal heritage will be minimised and managed". That Plan shall be developed in consultation with the Heritage Office, the Department of Conservation and Climate Change and the Karuah Local Aboriginal Land Council. The Plan shall include, but not necessarily be limited to: i) results and recommendations arising from investigations into Potential Archaeological Deposits;
ii) a strategy for the salvage and curation of salvaged Aboriginal objects;
iii) specific measures to be applied to works undertaken in close proximity to Bulahdelah Mountain to minimise impacts on heritage items;
iv) an education program for construction and project supervision personnel on their obligations for Aboriginal cultural materials;
v) procedures to be implemented if previously unidentified Aboriginal objects and/or Non-Indigenous heritage items are discovered during construction; and
vi) a program for construction work practices to ensure that there is no impact on heritage items additional to that already permitted. 11 That Plan, as part of the Construction Environmental Management Plan, requires the approval of the Director-General of Planning and construction works cannot commence until written approval has been received (cl 6.3). Admissions 12 Apart from the terms of the Approval, the respondents admit the following matters in their pleadings, which they concede are sufficient for determination of the constitutional challenge:
(a) the Minister has granted a s 75J Approval in relation to the Bulahdelah Upgrade project;
(b) under conditions 2.9 to 2.13 of the Approval the project may affect Aboriginal cultural heritage objects;
(c) by operation of s 75U(1)(d), the project did not require a permit under s 87 or a consent under s 90 of the NPW Act . 13 The respondents concede that a possible effect on a single Aboriginal cultural object suffices to determine the constitutional argument, and that it is therefore unnecessary to make findings as to the number or particular location of Aboriginal cultural heritage objects. Environmental Planning and Assessment Act 1979 (NSW) 14 In 2005 the EPA Act was amended by the inclusion of Part 3A (ss 75A - 75ZA) to facilitate Ministerial determinations for major projects and critical infrastructure. A project may be approved under Part 3A with such modifications of the project or on such conditions as the Minister may determine: s 75J(4). 15 At the heart of the case is s 75U(1)(d) which states:
" 75U Approvals etc legislation that does not apply
(1) The following authorisations are not required for an approved project (and accordingly the provisions of any Act that prohibit an activity without such an authority do not apply):
(d) a permit under section 87 or a consent under section 90 of the National Parks and Wildlife Act 1974," 16 There is a statutory public consultation process required by s 75H of the EPA Act before a project can be approved under s 75J. The proponent for approval has to submit an environmental assessment which must be made publicly available for at least 30 days. During that time any person can make a submission. The proponent may be required to respond to the submissions. National Parks and Wildlife Act 1974 (NSW) 17 "Aboriginal object" is broadly defined in s 5 of the NPW Act as follows: " Aboriginal object means any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains." 18 Section 87 of the NPW Act provides:
(1) Subject to section 88, the Director-General may, upon such terms and conditions as the Director-General thinks fit, issue a permit to do any act or thing referred to in section 86 (a), (b), (c), (d) or (e). (2) Terms and conditions imposed by the Director-General under subsection (1) may include terms and conditions relating to the proper restoration of land disturbed or excavated. (3) A failure to comply with a term or condition authorised by subsection (2) shall be deemed to be a contravention of section 86. (4) The Director-General may, at any time: (a) revoke a permit issued under this section, or (b) vary the terms and conditions of such a permit." 19 Section 86(a), (b), (c), (d) and (e) of the NPW Act forbids action by any unauthorised person which:
"(a) disturbs or excavates any land, or causes any land to be disturbed or excavated, for the purpose of discovering an Aboriginal object,
(b) disturbs or moves on any land an Aboriginal object that is the property of the Crown, other than an Aboriginal object that is in the custody or under the control of the Australian Museum Trust,
(c) takes possession of an Aboriginal object that is in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area,
(d) removes an Aboriginal object from a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, or
(e) erects or maintains, in a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area, a building or structure for the safe custody, storage or exhibition of any Aboriginal object…" 20 Section 90 of the NPW Act provides:
"(1) A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, an Aboriginal object or Aboriginal place is guilty of an offence against this Act.
(2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein." 21 Sections 87 and 90 have been considered in a number of cases, which have established the following propositions:
(a) "Whilst the National Parks and Wildlife Act does give a high level of protection to known Aboriginal objects, the conferral of an express power on the Director-General to consent to them being damaged, defaced or destroyed, in circumstances which are not explicitly restricted, should not be understood as subject to an implied restriction, which would prevent the power being exercised in relation to development of private land": Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426, (2005) 63 NSWLR 699 at [67] per Basten JA (Spigelman CJ and Giles JA agreeing).
(b) "all persons, and not just persons of the Aboriginal race, have no statutory right to be consulted in the process of considering and determining an application under s 90": Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172 at [147] per Preston CJ; similarly, see Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426 at 449 [75] (not reproduced in the report in 63 NSWLR 699);
(c) s 90 of the NPW Act is not inconsistent with s 10 of the RD Act : Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, (2006) 144 LGERA 43 at [89] (Pain J). 22 Section 2A of the NPW Act provides:
(a) the conservation of nature, including, but not limited to, the conservation of:
(i) habitat, ecosystems and ecosystem processes, and
(ii) biological diversity at the community, species and genetic levels, and
(iii) landforms of significance, including geological features and processes, and
(iv) landscapes and natural features of significance including wilderness and wild rivers,
(b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to:
(i) places, objects and features of significance to Aboriginal people, and
(ii) places of social value to the people of New South Wales, and
(iii) places of historic, architectural or scientific significance,
(c) fostering public appreciation, understanding and enjoyment of nature and cultural heritage and their conservation,
(d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation.
(2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development.
(3) In carrying out functions under this Act, the Minister, the Director-General and the Service are to give effect to the following:
(b) the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands." 23 There is no statutory process of public consultation under ss 87 and 90. To that extent, it does not compare favourably with the public consultation process required by s 75H of the EPA Act: see [16] above. Racial Discrimination Act 1975 (Cth)
24 Sections 9 and 10 of the RD Act relevantly provide:
9(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race…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.
(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 in Article 5 of the Convention…
Rights to equality before the law 10 (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…do not enjoy a right that is enjoyed by persons of another race…or enjoy a right to a more limited extent than persons of another race…then, notwithstanding anything in that law, persons of the first mentioned race…shall, by force of this section, enjoy that right to the same extent as persons of that other race… (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention." 25 The "Convention" referred to in ss 9(2) and 10(2) is the International Convention on the Elimination of All Forms of Racial Discrimination, the text of which is set out in the Schedule to the RD Act. By s 7 the Convention is ratified. A "human right or fundamental freedom etc" in s 9 and a "right" in s 10 include, by incorporation of Article 5(e)(vi) of the Convention, the right to equal participation in cultural activities, on which the applicant relies. Article 5(e)(vi) of the Convention 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…to equality before the law, notably in the enjoyment of the following rights:
(e) Economic, social and cultural rights, in particular: …
(vi) The right to equal participation in cultural activities;" 26 The definition of a right in ss 9(2) and 10(2) is not exhaustive and therefore appears to allow for the possibility of inclusion of a right that is not found in Article 5 of the Convention.
27 The applicant also alleges that the state of New South Wales has breached Article 2 cl 1(d) of the Convention, which provides that:
"Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation". 28 There is no intention that the RD Act is to cover the field because s 6A(1) says that it is not intended to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently.
29 Section 8 permits special racially discriminatory measures designed to deal with historical injustices. Part II of the Act (ss 8 to 18A) does not apply to the application of special measures to which paragraph 4 of Article 1 of the Convention applies (with limited exceptions): s 8. Paragraph 4 of Article 1 provides:
"Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved." Section 109 Commonwealth Constitution
"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." 31 Inconsistency under s 109 may arise from one or more of the following circumstances, only the third of which might conceivably arise in this case. First, the rare case of a direct collision between statutes where two laws make contradictory provisions upon the same topic, such as a Commonwealth statute commanding something and a State statute forbidding the same thing, making it impossible to comply simultaneously with both: eg R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23 at 29. Secondly, indirect inconsistency, where the Commonwealth law validly covers the field leaving no room for the State law to operate: Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 489. Thirdly, where one law "alters, impairs or detracts from the operation of a law of the Commonwealth Parliament": Victoria v Commonwealth (1937) 58 CLR 618 at 630; Telstra Corporation v Worthing [1999] HCA 12, (1999) 197 CLR 61 at 76. DEC consultation guidelines
32 The applicant's claim that he and other relevant Aboriginal persons had a right to be consulted in relation to the process under ss 87 and 90 of the NPW Act is based upon the process described in guidelines published by the Department of Environment and Conservation (NSW) entitled "Interim Community Consultation Requirement for Applicants". Although published in January 2005, the guidelines reaffirm the intent of the Department's existing policies regarding the requirements for consultation by proponents with members and representatives of Aboriginal communities. The guidelines state that, when administering its approval functions under the NPW Act, the Department requires applicants to consult with the Aboriginal community about the Aboriginal cultural heritage values (cultural significance) of Aboriginal objects and places within the area being considered for development. The guidelines also say that the proponent must actively seek to identify stakeholder groups or people wishing to be consulted about the project and invite them to register their interest. To this end, the guidelines say, it is sufficient for the proponent to provide written notification to the Local Aboriginal Land Council, the Registrar of Aboriginal Owners, Native Title Services, the local council and the Department, and via an advertisement in the local print media. There is a requirement that proponents undertake a cultural assessment which must consider the following factors: notifying Aboriginal people in sufficient detail about activities which may impact on Aboriginal heritage, so that their concerns can be identified; providing the opportunity for Aboriginal people who hold knowledge to contribute to the assessment process; identifying objects and places of significance to the Aboriginal community that may be impacted by the proposal so that these impacts can be avoided wherever possible; and identifying whether there are culturally acceptable mitigation measures when impacts are considered to be unavoidable by the proponent. Validity of s 75U(1)(d) EPA Act
33 Section 75U(1)(d) of the EPA Act gives the Minister an unfettered discretion to approve the destruction of Aboriginal objects, which are not subject to the statutory constraints in the NPW Act on the discretion to grant a permit and a consent under ss 87 and 90. Those statutory constraints are, first, that the Minister, Director-General and the Service must give consideration to the objects of the NPW Act, which include conservation of places, objects and features of significance to the Aboriginal people, and, secondly, that those objects are to be achieved by applying the principles of ecologically sustainable development (which include the principle of intergenerational equity): s 2A NPW Act; Country Energy v Williams [2005] NSWCA 318, 141 LGERA 426, (2005) 63 NSWLR 699 at [52]; Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172 at [90] (Preston J); Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, (2006) 144 LGERA 43 at [200] (Pain J). 34 Against that background, the applicant submits that s 75U(1)(d) breached or is inconsistent with s 10 of the EPA Act because it removed the right of consultation that he and other Aboriginal people enjoyed in relation to the process of granting consents and permits under ss 87 and 90 of the NPW Act, thus facilitating the destruction of Aboriginal objects and leading to invalidity under s 109 of the Constitution. The applicant contends that he and other Aboriginal people had a right of consultation by reason of the process of consultation with Aboriginal persons required by the Department of Environment and Conservation in relation to ss 87 and 90 applications, as recorded in its guidelines referred to at [32] above. Notwithstanding that there is no statutory right for anyone to be consulted in relation to an application for a consent or permit under ss 87 or 90, the applicant says that he and other Aboriginal people had a right in the nature of a legitimate expectation to be consulted under the process described in the guidelines. As I understand it, the applicant also says that this right constituted "The right to equal participation in cultural activities" referred to in Article 5(e)(vi) of the Convention, which is incorporated by reference in s 10: see [25] above. 35 The applicant also submits that s 75U(1)(d) breached s 9 of the RD Act, because it "effectively nullified and impaired the recognition of his fundamental freedom and human rights, on an equal footing to any other race, in relation to the protection of his most sacred spiritual and cultural items". The applicant says that this right was in the nature of a legitimate expectation to which I have referred. Again, as I understand it, he also says that this right constitutes a right to equal participation in cultural activities referred to in Article 5(e)(vi) of the Convention.
36 Section 9 applies to discriminatory acts of persons; s 10 applies to statutes. A convenient statement of the effect of, and difference between, ss 9 and 10 appears in Federal Discrimination Law (a publication of the Human Rights and Equal Opportunity Commission of Australia, 2008), at 3.1.1(c) (some citations omitted):
"Section 9(1) applies to allegations that an act or conduct of a person is discriminatory.
Section 10 applies to a law that is alleged to be discriminatory in its terms or its practical effect. To make a successful claim under s 10 of the RDA, the complainant must be able to show that the discrimination complained of arises by reason of a statutory provision. The making of laws by the Commonwealth and State and Territory legislatures or delegated lawmakers cannot be challenged as an act under s 9. Instead, the resulting law or delegated law can only be challenged under s 10: Gerhardy v Brown (1985) 159 CLR 70, 92-3, 120; Mabo v Queensland (1988) 166 CLR 186, 197, 203, 216; Western Australia v Ward (2002) 213 CLR 1 at 102…" 37 Gerhardy v Brown (1984-1985) 159 CLR 70 was concerned with special measures under s 8 of the RD Act. Mason J explained the circumstances in which there will be invalidity under s 109 of the Constitution in relation to ss 9 and 10 of the RD Act, at 92-93:
"The operation of s 9 is confined to making unlawful the acts which it describes. It is s 10 that is directed to the operation of laws, whether Commonwealth, State or Territory laws, which discriminate by reference to race, colour or national or ethnic origin. Accordingly, we must look to s 10, rather than to s 9, of the Commonwealth Act, in order to determine the impact which that Act has on s 19 of the State Act. This is not to say that s 9 of the Commonwealth 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 p 490. But, neither the State Act, nor s 19, is a law dealing with racial discrimination; nor does either make lawful the doing of an act proscribed by s 9. And s 10 of the Commonwealth Act, by making specific provision in the case of State laws which discriminate in the manner already described, makes it clear that s 9 is not intended to apply to such a situation." 38 In Mabo v Queensland (1988) 166 CLR 186 at 216-217 Brennan, Toohey and Gaudron JJ said:
"Section 9 proscribes the doing of an act of the character therein mentioned. It does not prohibit the enactment of a law creating, extinguishing or otherwise affecting legal rights in or over land: Gerhardy v. Brown (71)…
Section 10 relates to the enjoyment of a right, not the doing of an act. The "right" referred to in s. 10(1) is not, or is not necessarily, a legal right. Sub-section (2) directs attention to rights 'of a kind referred to in Article 5 of the Convention', each of which may be a 'right' for the purposes of s. 10(1)… … Section 10 of the Racial Discrimination Act is enacted to implement Art. 5 of the Convention and the 'right' to which s. 10 refers is, like the rights mentioned in Art. 5, a human right - not necessarily a legal right enforceable under the municipal law." 39 As Mason J explained in Gerhardy v Brown, s 109 of the Constitution has only limited work to do in relation to s 9 of the RD Act. His Honour recognised that s 9 may occasionally render a State law invalid by reason of s 109 inconsistency but only where the State law is a law dealing with racial discrimination and the Commonwealth law intends to occupy that field of operation exclusively, or a State law makes lawful the doing of an act which s 9 forbids. Neither of those circumstances arises here. It follows that the s 9 challenge to the validity of s 75U(1)(d) falls away. 40 In relation to s 10, usually there will be no need to resort to s 109 of the Constitution. If a State law merely omits to confer universal enjoyment of a relevant right on persons of a particular race, s 10, of its own force, complements the State law and confers the right, thus achieving racial equality. As Mason J said in Gerhardy v Brown at 98:
"Section 10 is expressed to operate 'upon Commonwealth, State and Territory laws'. Here we are concerned with the operation of the section in relation to a State law. If racial discrimination arises under or by virtue of State law because the relevant State law merely omits to make enjoyment of the universal, i.e. by failing to confer it on persons of a particular race, then s. 10 operates to confer that right on persons of that particular race. In this situation the section proceeds on the footing that the right which it confers is complementary to the right created by the State law. Because it exhibits no intention to occupy the field occupied by the positive provisions of State law to the exclusion of that law the provisions of the State law remain unaffected." 41 His Honour went on to indicate that it was possible to imagine a s 109 issue, at 98-99:
"When racial discrimination proceeds from a prohibition in a State law directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race, by virtue of that State law, s 10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race. This necessarily results in an inconsistency between s 10 and the prohibition contained in the State law."
42 "The same is true of a State law that deprives persons of a particular race of a right or freedom previously enjoyed by all regardless of race": Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1 at [107] per the majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ). The majority said in relation to s 10(1) of the RD Act, at [105]:
"…That to which the sub-section in terms is directed is the enjoyment of rights by some but not by others or to a more limited extent by others; there is an unequal enjoyment of rights that are or should be conferred irrespective of race, colour or national or ethnic origin. `Enjoyment' of rights directs attention to much more than what might be thought to be the purpose of the law in question. Given the terms of the Convention which the RDA implements (the International Convention on the Elimination of all Forms of Racial Discrimination) that is not surprising. The Convention's definition of racial discrimination refers to any distinction, exclusion, restriction or preference based (among other things) on race which has the purpose or effect of nullifying or impairing (again among other things) the enjoyment of certain rights. Further, the basic obligations undertaken by States party to the Convention include taking effective measures to nullify laws which have the effect of creating or perpetuating racial discrimination (Art 2, s 1(c)). It is therefore wrong to confine the relevant operation of the RDA to laws whose purpose can be identified as discriminatory." 43 There may be a legitimate expectation of consultation based upon a public statement or practice adopted by the decision-maker: Country Energy at [74]. Whether a legitimate expectation existed in the present case would require the kind of analysis that was conducted in Country Energy at [86] - [100]. Assuming that there was such a legitimate expectation, the question would arise as to whether the expectation was met in the circumstances of this case. The documentary evidence indicates that there was extensive direct consultation with members of the indigenous community, including the Karuah Local Aboriginal Land Council and the Foster Local Aboriginal Land Council and the Worimi Elders Group, which informed the identification and assessment of Aboriginal objects and other items of cultural significance prior to exhibition of the environmental impact statement (24 November 2004 - 28 January 2005) and the project approval (9 July 2007), as well as prior to approval of the Construction Heritage Management Plan (still to be approved). This consultation included the attendance of the applicant at meetings since December 2007.
44 Let it be assumed (contrary to the respondents' submissions) that: (a) the process of consultation with Aboriginal persons set out in the publication referred to at [32] above gave rise to a legitimate expectation by the applicant and relevant Aboriginal persons to be consulted as part of the application process under ss 87 and 90 of the NPW Act (a process swept away by s 75U(1)(d) of the EPA Act); (b) the expectation was not in fact met in this case; and (c) the discrimination referred to in s 10 of the RD Act can include the revocation of a right based on a legitimate expectation, as distinct from a statutory right. 45 Even on those assumptions, in my opinion, s 75U(1)(d) did not breach s 10 of the RD Act because s 75U(1)(d) is not a racially directed prohibition resulting in unequal enjoyment of rights. In order for s 10 to apply, it has to be shown that by reason of s 75U(1)(d), Aboriginal persons do not enjoy a right of consultation that is enjoyed by non-Aboriginal persons, or enjoy a right of consultation to a more limited extent than non- Aboriginal persons. If that were to be shown, then s 10 provides its own remedy because it says that the Aboriginal person shall enjoy that right of consultation to the same extent as non-Aboriginal persons. This has no application to the facts of this case.
46 Section 75U(1)(d) has removed a measure of protection for Aboriginal objects that was previously provided under ss 87 and 90 of the NPW Act: see [18] to [20] above. However, even if ss 87 and 90 had provided for consultation with Aboriginal persons, s 75U(1)(d) would not come within s 10 of the RD Act because, by introducing s 75U(1)(d), what Parliament has done is to take away a right which it had previously granted to Aboriginal persons. Section 10 is not concerned with that situation. Nor is s 10 concerned with the present situation, where the alleged right of Aboriginal persons to consultation is weaker because it is based not on a statutory right but instead relies on a legitimate expectation based upon conduct. If Aboriginal persons had such a right, which non-Aboriginal persons did not have, it would be racially discriminatory in favour of the former but permissible as a special measure under s 8 of the RD Act. Such a right, even if enshrined in a statute, could be taken away by statute. "The power to make laws includes the power to unmake them": Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337 at [13]. 47 It is unnecessary to consider the respondent's alternative submission that s 75U(1)(c) is a strong indication of the non-discriminatory purpose of s 75U(1)(d). The argument is that it similarly takes away requirements that would otherwise apply under the Heritage Act 1977 (NSW) in circumstances which are evidently not discriminatory. Section 75U(1)(c) provides that an approved project does not require an approval under Part 4, or an excavation permit under s 139 of the Heritage Act 1977. According to the submission, any burden relating to Aboriginal objects imposed by s 75U(1)(d) is equivalent to that imposed relating to non-Aboriginal objects of historical or cultural significance by s 75U(1)(c). 48 For these reasons, in my opinion, there is no inconsistency between s 75U(1)(d) of the EPA Act and ss 9 or 10 of the RD Act and no invalidity of the former under s 109 of the Constitution. 49 The applicant also contends, although I think it falls outside his pleaded case, that the State of NSW, in enacting s 75U(1)(d), failed to comply with its (alleged) obligation under Article 2(1)(d) of the Convention because s 75U(1)(d) (set out at [27] above), removed his right, and the right of relevant Aboriginal persons, to participate in the protection of cultural rights provided through ss 87 and 90 of the NPW Act. In my opinion, Article 2(1)(d) is irrelevant. That is because it imposes obligations on the Commonwealth and other nation states that are parties to the Convention, not on the Australian States. It is unnecessary to consider the respondents' submission that, in any event, Article 2 has not been adopted into the RD Act.
50 The applicant contends that conditions 2.9 to 2.14 and (where it applied) 6.4 of the Approval breached s 9 of the RD Act because they "had the effect of discriminating against the applicant as an Aboriginal Traditional Owner impairing his human rights to enjoy the sacred mountain and the spiritual and cultural objects therein". Although the applicant also prays that those conditions breach s 10, no submission was made in support of that proposition and, in any event, it must be rejected since s 10 is concerned with statutes.
51 Ironically, the challenged conditions provide a measure of protection for Aboriginal objects where there would not necessarily be any such protective conditions imposed in circumstances where the discretionary processes of ss 87 and 90 of the NPW Act operate.
52 In order to demonstrate a breach of s 9 of the RD Act by operation of the Approval conditions, the applicant would need to show that the conditions authorise conduct which involves a distinction based on race; and have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a human right or fundamental freedom, namely, the right to equal participation in cultural activities. The applicant makes no submission as to the manner in which they do so beyond the arguments concerning ss 87 and 90 of the NPW Act, which have been dealt with above. None of the challenged conditions complained of could fall within the terms of the conduct prohibited by s 9 of the RD Act. Their imposition does not involve a distinction based on race. Even if it did, the distinction based on race does not have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the right to equal participation in cultural activities.
53 In my opinion, the imposition of the conditions did not breach and are not inconsistent with s 9 and no question of invalidity arises under s 109 of the Constitution.
54 For these reasons, the summons is dismissed. Costs are reserved. Any application for costs is to be made within seven days, otherwise there will be no costs order. The exhibits may be returned.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Dates
NSW Minister for Planning
[1999] HCA 12
(2006) 144 LGERA 43
(2007) 159 LGERA 172
(1926) 37 CLR 466
(2005) 141 LGERA 426
(2005) 63 NSWLR 699
(1998) 195 CLR 337
(1988) 166 CLR 186
(1920) 28 CLR 23
(1999) 197 CLR 61
(1937) 58 CLR 618
(2002) 213 CLR 1
(1985) 159 CLR 70
(1983) 153 CLR 280
[2002] HCA 28
Summons dismissed. Costs reserved (any application for costs to be made within seven days); exhibits may be returned (see [54]).