Gerhardy v Brown

Gerhardy v Brown - [1985] HCA 11 - HCA 1983 case summary — Zoe

[87]

Section 19 of the Pitjantjatjara Land Rights Act 1981 S.A. ("the State Act") prohibits any persons other than those of prescribed Aboriginal tribes from entering certain lands in South Australia except with permission. Section 10(1) of the Racial Discrimination Act (1975) ("the Racial Discrimination Act ") states that "If, by reason of a provision of, a law of a State , 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 persons of that other race, colour or national or ethnic origin". The effect of s. 8(1) of the Racial Discrimination Act, read with Art. 1, par. 4 of the Convention, is that Pt II of the Act (which includes s. 10) does not page page-number="107"/>apply to "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". The issue is whether s. 19 of the State Act is invalid because of inconsistency with the Racial Discrimination Act. The case is reduced to deciding whether s. 19 of the State Act would, except for s. 8 of the Racial Discrimination Act be inconsistent with s. 10 of that Act, and if so, whether it is saved by s. 8 as a "special measure".

[128]

At the core of the Pitjantjatjara demand for land rights is the desire on the part of individuals to strengthen clan life and for many this means leaving the missions and government settlements for their homelands to resume responsibility for their clan territory - a trend otherwise known as the "outstation movement". The fundamental implication of granting land rights is the freedom thus guaranteed to the Pitjantjatjara to take up, and in many cases rebuild, the whole gamut of rights and responsibilities associated with these centres, revered and desired for their place as the backbone of the relation of the people to their environment. The grant of title to the lands to Anangu Pitjantjatjaraku, pursuant to s. 15, guarantees Pitjantjatjaras' collective ability "to take up" or "rebuild" their traditional relationship with their country. The working party, having commented on the spiritual and cultural connexion between the Pitjantjatjaras and their country, saw "an indisputable need for the Pitjantjatjara not only to own their own land, but to be facilitated to be in full control of access to it". Effect is given to this view by s. 19. Control of access by non-Pitjantjatjaras to the lands is ancillary to the enjoyment by Pitjantjatjaras of the rights over or in respect of the lands which the other provisions of the Land Rights Act confer on them. The legal title to the lands is vested in Anangu Pitjantjatjaraku but the traditional owners and, subject to their wishes and opinions, all other Pitjantjatjaras may use any part of the lands without interference from non-Pitjantjatjaras except for the classes specified in sub-ss. (8) and (11) of s. 19. True it is that s. 19, in requiring a non-Pitjantjatjara to apply to Anangu Pitjantjatjaraku or its delegate for permission to enter and in requiring the permission to be written, precludes, perhaps harshly, an individual Pitjantjatjara from inviting a non-Pitjantjatjara onto the land. Individual convenience has given way to group protection. It is clear, however, that the purpose of s. 19 is to control the access by non-Pitjantjatjaras to the land in order to secure the uninterrupted enjoyment by Pitjantjatjaras of the use and management of the lands which the Land Rights Act permits. Section 19 came into force before and operates irrespective of the vesting of the legal title in Anangu Pitjantjatjaraku. Nevertheless, the vesting of legal title in a Pitjantjatjara corporation for the benefit of Pitjantjatjaras was the chief purpose of the Act and it is artificial to regard s. 19 as having a purpose or operation divorced from their use and management of the lands. The Land Rights Act does not purport to restore to the present generation of Pitjantjatjaras any legal rights which their forbears possessed; it is intended to provide the legal means by which present and future Pitjantjatjara generations may take up and rebuild their relationship with their country in accordance with tradition.

[130]

It was argued that the difference in treatment is not based on race but on the traditional ownership of the lands which par. (b) of the definition of "Pitjantjatjara" makes an essential criterion of membership of the benefited class. Traditional ownership is itself a criterion based on race. As a matter of fact as well as of statutory definition, all traditional owners must be Aborigines. If the benefited class were defined simply in terms of "traditional owners", the definition would nevertheless be based on race, for the attribute of "traditional owners" (in the sense in which the expression is used in the Land Rights Act) is specific to Aborigines, and the attribute of traditional ownership of particular land is specific to particular Aboriginal peoples. A definition of a class by reference to an attribute specific to a particular race identifies the members of that race as the members of the class as surely as if membership of the particular race was expressed in the definition. It can be said that the Pitjantjatjaras' traditional "social, economic and spiritual affiliations with, and responsibilities for, the lands or any part of them" is the reason why the Land Rights Act was enacted, but that traditional relationship is a badge of distinction between particular Aboriginal peoples and all others, and the reason for the legislation is the benefiting of those particular Aboriginal peoples. I suspect that par. (a) of the definition of "Pitjantjatjara" adds little, practically speaking, to identify the members of the class who are traditional owners. If all traditional owners of the lands or of any part of the lands are members of one or other of the peoples mentioned in par. (a), par. (a) adds nothing to the definition. Paragraph (a) merely excludes from the benefited class any traditional owners who are not members of one or other of those peoples. It serves to emphasize, however, the racial basis of classification. It is thus true to say that membership or non-membership of a racially-defined class determines the treatment of a particular person under the Land Rights Act.

[156]

In the present case, the law of South Australia accords differential treatment to Pitjantjatjaras and non-Pitjantjatjaras with respect to the right of access to approximately 10 per cent of the land area of South Australia and with respect to the acquisition of proprietary, occupational and usufructuary rights in or over Crown lands. When the land grant was issued, non-Pitjantjatjaras lost any opportunity to acquire, either by alienation from the Crown or by transfer after alienation, any estate or interest in the lands: Land Rights Act, s. 17. The right of non-Pitjantjatjaras to freedom of movement over a large area of South Australia - a right of the kind set out in Art. 5(1)(d)(i) of the Convention - is impaired. The impairment of the right of non-Pitjantjatjaras is not based on the ownership of the lands by Anangu Pitjantjatjaraku, but simply on racial classification. Though s. 19 confers, as we have seen, protection that supplements the proprietary rights of the owner, its operation is independent of the vesting of title. The difference in treatment is based not on common law proprietary rights but on race. The differential treatment of Pitjantjatjaras and non-Pitjantjatjaras achieves no legitimate object except to confer a privilege on Pitjantjatjaras. Assuming for the moment that the Land Rights Act is not a special measure, it is, in my opinion, clearly discriminatory. The inequality of treatment is produced by the law itself, not by any act done in exercise of a discretion created by the law. A discriminatory law or a discriminatory act done in due obedience to the law denies the human right of equality before the law, referred to in the third preamble to the Convention. The right to equality before the law without distinction as to race is guaranteed by the States Parties to the Convention: Art. 5. The claim to equality before the law is, as Sir Hersch Lauterpacht wrote (An International Bill of the Rights of Man (1945), p. 115), "in a substantial sense the most fundamental of the rights of man It is the starting point of all other liberties". A distinction etc. based on race that is required by law nullifies the enjoyment of the human right to equality before the law.

[168]

The seeming, formal equality that in a way may appear from equal treatment is replaced by an apparent inequality of treatment that is aimed at achieving "real", material equality - somewhere in the future. And this inequality of treatment is accorded precisely on the basis of the characteristics that made it necessary to grant it: race, religion, social origin, and so on. A legally required distinction, exclusion, restriction or preference based on race nullifies or impairs formal equality in the enjoyment of human rights and fundamental freedoms, but it may advance effective and genuine equality. In that event, it wears the aspect of a special measure calculated to eliminate inequality in fact. Some writers regard benign discrimination as falling outside the conception of discrimination in international law. Thus, McKean, op.cit., p. 288, expresses the view that the provision of special measures is not now regarded as constituting racial discrimination: It is now generally accepted that the provision of special measures of protection for socially, economically, or culturally deprived groups is not discrimination, so long as these special measures are not continued after the need for them has disappeared. Such measures must be strictly compensatory and not permanent or else they will become discriminatory. It is important that these measures should be optional and not against the will of the particular groups affected, and they must be frequently reconsidered to ensure that they do not degenerate into discrimination. The other type of protective measure which is permissible is the provision of special rights for minority groups to maintain their own languages, culture, and religious practices, and to establish schools, libraries, churches, and similar institutions. These measures are not discriminatory because they merely allow minorities to enjoy rights which are exercised by the rest of the population. Such measures produce "an equilibrium between different situations" and should be maintained as long as the groups concerned wish. A similar view is expressed by Mr. Partlett in his article "Benign Racial Discrimination: Equality and Aborigines", Federal Law Review, (1979), vol. 10, p. 238.

[182]

The purpose of the Land Rights Act can be collected from its terms, from the Report of the Pitjantjatjara Land Rights Working Party and from the speeches of the Ministers in charge of the Bill for the Act in the respective Chambers of the Parliament of South Australia. From those sources, its purpose appears to be the restoration to the Pitjantjatjaras of the use and management of the lands free from disturbance by others so that they may foster the traditional affiliations that Pitjantjatjaras have with the lands and discharge the traditional responsibilities to which they are subject in respect of the lands. The purpose is thus to restore to the Pitjantjatjaras the "hearth, home, the source and locus of life, and everlastingness of spirit" to which the late Professor Stanner referred in a passage which I quoted in Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd. [29] . The conferring of legal rights on the Pitjantjatjaras and their corporation and the exclusion of non-Pitjantjatjaras from the lands are the means by which it is intended that the Pitjantjatjaras should be able to foster their traditional affiliation with the lands, to discharge their traditional responsibilities, and to build or buttress a sense of spiritual, cultural and social identity. A racial minority which wishes to preserve its own identity may need particular supports to preserve that identity, and it may need to preserve that identity if its members are not to be disadvantaged in the society of which it is a part. If such a racial minority is denied those supports, its members may not only lose their own sense of identity but be unable to adopt the standards and customs of the majority or to cope with the pressures which assimilation with the majority entails. In Australia, the phenomenon of landless, rootless Aboriginal peoples is sadly familiar. Many of them are incapable of enjoying and exercising "on an equal footing" the human rights and fundamental freedoms that are the birthright of all Australian citizens. I would conclude that the purpose of the Land Rights Act is to provide the support - undisturbed and full access to the Pitjantjatjaras' traditional country - with the intention of advancing the Pitjantjatjaras in order to ensure their ability to enjoy and exercise, equally with others, their human rights and fundamental freedoms. That is a purpose of the kind prescribed by Art. 1(4).

[185]

In the first instance, of course, a political branch of government determines whether an occasion exists for taking a particular measure. An obligation to take a special measure "when the circumstances so warrant" is imposed by Art. 2(2) of the Convention. That is an obligation in international law, and no municipal court has jurisdiction to enforce that obligation, or to determine "when the circumstances so warrant". The obligation to take special measures falls to be performed by a political branch of government. If a political branch of government decides that a racial group is in need of advancement to ensure that they attain effective, genuine equality and that a particular measure is likely to secure the advancement needed and that the circumstances warrant the taking of the measure, a municipal court has no jurisdiction under international law to determine whether those decisions have been validly made and whether the measure therefore has the character of a special measure under the Convention. But when the legal rights and liabilities of individuals are in issue before a municipal court and those rights and liabilities turn on the character of the Land Rights Act as a special measure, the municipal court is bound to determine for the purposes of municipal law whether it bears that character. But the character of a special measure depends in part on a political assessment that advancement of a racial group is needed to ensure that the group attains effective, genuine equality and that the measure is likely to secure the advancement needed. When the character of a measure depends on such a political assessment, a municipal court must accept the assessment made by the political branch of government which takes the measure. It is the function of a political branch to make the assessment. It is not the function of a municipal court to decide, and there are no legal criteria available to decide, whether the political assessment is correct. The court can go no further than determining whether the political branch acted reasonably in making its assessment: cf. United States v. Sandoval [30] . In R. v. Poole; Ex parte Henry [No. 2] [31] where the validity of a rule made to carry out and to give effect to the convention for the Regulation of Air Navigation was in issue, Starke J. said [32] that "within reason it is or at least should be for the discretion of the rule-making authority to determine, in the particular case, what are the appropriate and effective means of carrying out and giving effect to the Convention". To go further than deciding whether the assessment could reasonably be made would be to assume a function that is necessarily committed to another branch of government. In some cases, it may not be open to a court to act upon a political assessment made by another branch of government, but where it is open to a court to do so, the court does not itself undertake the making of the assessment. The jurisprudential foundation for that approach may be found in one or other of the features of a political question to which the Supreme Court of the United States referred in Baker v. Carr [33] . Delivering the opinion of the court in that case, Brennan J. said [34] :

[190]

The second point is whether the provisos deny the character of a special measure to a measure that does not, from its inception, define the time when it is to cease. The point is relevant to the Land Rights Act because the Act does not contain a "sunset" clause automatically bringing it to an end at some future time. What the provisos are concerned to avoid, however, is the maintenance of separate rights after the objectives have been achieved and the continuation of special measures after that time. The provisos are satisfied if, when that time arrives, separate rights are repealed and special measures are discontinued. As it is impossible to determine in advance when the objectives of a special measure will be achieved, the better construction of the provisos is that they contemplate that a State Party will keep its special measure under review, and that the measure will lose the character of a special measure at the time when its objectives have been achieved. But the provisos do not require the time for the operation of the special measure to be defined before the objectives of the special measure have been achieved. With the passage of time, circumstances may no longer warrant the continuation of some or all of those provisions of the Land Rights Act which provide for formal discrimination. If that time comes, a provision which creates an unsustainable formal discrimination will fall because Pt II of the Racial Discrimination Act will then apply to it. As Dixon J. said in Australian Textiles Pty. Ltd. v. The Commonwealth [36] : "If a power applies to authorize measures only to meet facts, the measure cannot outlast the facts as an operative law." If it was reasonable to make the assessment that the Land Rights Act was necessary to ensure effective and genuine equality when it was enacted, the maintenance of separate rights up to the present time could not be held to be unreasonable. The vesting of title to the lands in Anangu Pitjantjatjaraku without more does not achieve the objectives of the Land Rights Act. The advancement which the legislature thought "adequate" went beyond the vesting of title. The inalienability of title, the ability of the Pitjantjatjaras to control the use and management of the land, the primacy of the wishes and opinions of the traditional owners and the exclusion of non-Pitjantjatjaras without the written permission of the Executive Board or its delegate are elements of the continuing protection intended for the Pitjantjatjaras.

[204]

Among the acts which s. 9 of the Commonwealth Act, where applicable, makes it unlawful for any person to do is an act involving a distinction, exclusion or restriction based on race, descent or ethnic origin which has the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom. In conflict with that prima facie operation of s. 9 of the Commonwealth Act, s. 19 of the State Act operates, as has been seen, to incorporate such a distinction, exclusion or restriction into the general law of South Australia. In other words, s. 19 of the State Act establishes as the legal justification for action, including action by courts (e.g., imposition of a penalty, issue of a writ of ejectment or grant of an injunction) and other law enforcement agencies (e.g., preventing a proscribed entry or removing an entrant), a distinction, exclusion or restriction which s. 9 of the Commonwealth Act, if applicable, expressly states will render any act of a person unlawful. The way in which the respective sets of provisions would, if s. 9(1) of the Commonwealth Act is applicable and s. 19 of the State Act is invalid, operate in a case such as the present provides a ready illustration: s. 19 would operate to make lawful, under State law, acts which were based upon or intended to enforce the restriction or exclusion from the lands by reference to the racial distinction that a person is not a Pitjantjatjara whereas s. 9(1) of the Commonwealth Act would render unlawful, under Commonwealth law, any such acts by reason of the very fact that such a restriction or exclusion by reference to such a racial distinction was involved in them. In my view, there is fundamental and pervading inconsistency between the two provisions unless, as is contended by those who would uphold the validity of the provisions of the State Act, the preclusive provisions of s. 8 of the Commonwealth Act operate to keep the relevant provisions of the State Act outside the field of application of s. 9 of the Commonwealth Act on the ground that they are "special measures to which paragraph 4 of Article 1 of the Convention applies".

[211]

It would seem that the Aboriginal people had inhabited this country for at least forty milleniums before the arrival of the first white settlers less than 200 years ago. To the extent that one can generalize, their society was not institutionalized and drew no clear distinction between the spiritual and the temporal. The core of existence was the relationship with and the responsibility for their homelands which neither individual nor clan "owned" in a European sense but which provided identity of both in a way which the European settlers did not trouble to comprehend and which the imposed law, based on an assertion of terrae nullius, failed completely to acknowledge, let alone protect. The almost two centuries that have elapsed since white settlement have seen the extinction of some Aboriginal clans and the dispersal, with consequent loss of identity and tradition, of others. Particularly where the clan has survived as a unit living on ancestral lands however, the relationship between the Aboriginal people and their land remains unobliterated. Yet, almost two centuries on, the generally accepted view remains that the common law is ignorant of any communal native title or other legal claim of the Aboriginal clans or peoples even to ancestral tribal lands on which they still live: see Milirrpum v. Nabalco Pty. Ltd. [39] . If that view of the law be correct, and I do not suggest that it is not, the common law of this land has still not reached the stage of retreat from injustice which the law of Illinois and Virginia had reached in 1823 when Marshall C.J., in Johnson v. McIntosh [40] , accepted that, subject to the assertion of ultimate dominion (including the power to convey title by grant) by the State, the "original inhabitants" should be recognized as having "a legal as well as just claim" to retain the occupancy of their traditional lands. It is in this context that one must approach the question whether the provisions of s. 19 of the State Act are, or are included in, "special measures" of the kind referred to in Art. 1(4) of the Convention.

[213]

The central provisions of the State Act include: (i) the establishment of the statutory corporation (Anangu Pitjantjatjaraku) of which all Pitjantjatjaras are members, and of its Executive Board; (ii) provisions for the vesting of the lands in the statutory corporation; (iii) identification of the functions of the statutory corporation as including the administration of the land vested in it and the protection of the interests of traditional owners in relation to the management, use and control of the lands; and (iv) provision that all Pitjantjatjaras shall have unrestricted rights of access to the lands. Those central provisions were, plainly enough, special measures taken for the purpose of adjusting the law of South Australia to grant legal recognition and protection of the claims of the Pitjantjatjaras to the traditional homelands on which they live. Until those special measures were enacted, the doctrine that this continent was terrae nullius at the times when British sovereignty was imposed had combined with the narrowness of the notions of ownership and occupation under the imported law to make the Pitjantjatjaras a disadvantaged racial or ethnic group as regards one of the "human rights" which the Convention specifically identifies, namely, the "right to own property alone as well as in association with others": Art. 5(d)(v). That "right to own property" extends to what Art. 11 of Convention No. 107 of the International Labour Organization identified as the "right of ownership, collective or individual, of the members of [indigenous and other tribal and semi-tribal populations] over the lands which [those] populations traditionally occupy". It embraces the right to preserve such lands as homelands upon which sacred sites may be safeguarded and traditional customs and ways of life may be pursued in accordance with the ordinary law. In my view, those central provisions are special measures of the kind referred to in Art. 1(4) in that they are, for the purposes of that paragraph, "special measures taken for the sole purpose of securing adequate advancement" of a racial or ethnic group "requiring such protection as may be necessary in order to ensure" that group "equal enjoyment or exercise of human rights and fundamental freedoms".

[216]

It is inevitable that the provisions of the State Act will effectively set aside approximately one-tenth of South Australia as a separate and distinct area within the State. The Pitjantjatjaras and other residents of that area will be free to leave it. Non-Pitjantjatjaras will be excluded from it unless they can show some particular entitlement or obtain permission to enter. To some extent, this position existed before the State Act was enacted. It is, in any event, a necessary consequence of the legal recognition and protection of the claims of the Pitjantjatjaras to their traditional lands and of their entitlement, within the law, to pursue and develop their traditional culture and way of life upon those lands. The problem with s. 19 is that the rigid formalities which it requires to be satisfied before a non-Pitjantjatjara can be given permission to enter the lands and the criminal sanctions which enforce them seem likely to create an over-isolated enclave within South Australia entrenched behind what amounts to a type of passport system. The evidence before the Court neither explains the need for those rigid formalities and criminal sanctions nor indicates the extent of separation of the Pitjantjatjaras which is likely to result in fact from the establishment or maintenance of such an enclave. Nor does the evidence provide a basis for anything more than speculation about the identity or resolution of possible problems involved in that establishment or maintenance. There is no information before the Court about the constitution or the proposed constitution of the statutory corporation. There is no information about the means by and extent to which it is proposed that the ordinary criminal law of South Australia will be enforced within the lands. Nor is there any information before the Court about the existence or extent of any conflict between traditional customs and the ordinary law of South Australia either on extreme matters such as enforcement of promised marriage and ritual killing and spearing or on more mundane matters such as marriage, maintenance and inheritance. There is no information about relationships, status and needs between and within particular groups of the Pitjantjatjaras: the young and the old, the female and the male, the weak and the strong, the sick and the healthy. There is no information about what exists or is proposed in the way of facilities for needs such as education and health. The facts in the present case illustrate that, under s. 19, not even a group of elders of the Pitjantjatjara people is entitled to invite a non-Pitjantjatjara, be he Aboriginal or not, upon the lands. One is left to speculate about the danger that, particularly for the female and the weak, the difference between separate development and segregation might become more theoretical than real.

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