Constitutional law - States - common law rights and freedoms - freedom does not limit power of executive to hold inquiry.

HRNG ADELAIDE, 15-16 August 1995 #DATE 25:8:1995 #ADD 20:9:1995 Counsel for plaintiff: Ms R Layton QC with Mr A Collett and Mr R Bradshaw

Counsel for defendants: Mr B Besanko QC with Mr M Johns

JUDGE1 DOYLE CJ In my opinion judgment should be entered in favour of the defendants in this action. I would dismiss each claim for a declaration and the claim for an injunction. What follows is no more than a summary of my reasons for reaching this decision. However, I reserve the right to publish more complete reasons at a later time.

I accept that freedom of religion is one of the fundamental freedoms which entitles Australians to call our society a free society. I accept that statutes are presumed not to intend to affect this freedom, although in the end the question is one of Parliamentary intention. But in my opinion it cannot be said that conduct of the sort in question here (the institution and conduct of a mere inquiry), to the extent that it affects freedom of religion is, as such, unlawful at common law. Nor, in my opinion, does this freedom so limit the powers of the executive government that this inquiry, which it considers appropriate in the public interest, is beyond the power of the executive government if or to the extent that it affects freedom of religion.

It follows that the decision by the executive government to conduct an inquiry, the decision being made and manifested by the issue of a Commission of Inquiry to Mrs Stevens, is in my opinion neither unlawful at common law nor is it beyond the power of the executive government. Whether the powers available to the Royal Commissioner under the Royal Commissions Act enable the Royal Commissioner to compel a person to answer questions when to do so would affect the freedom of religion of that person is a matter which I need not decide.

For the purpose of these reasons I have assumed, without deciding, that the "women's business" the possible fabrication of which is the subject of inquiry, is an aspect of Aboriginal culture which is protected by the fundamental principle of freedom of religion. I likewise assume, without deciding, that the inquiry will in fact intrude upon the freedom of certain Ngarrindjeri people to hold and practise their religion, because of the practical compulsion to submit to scrutiny the substance of their beliefs and to disclose matters which they regard as secret. I stress that I have not decided either of these matters.

On the basis of the same assumptions I am of the opinion that the appointment of the Royal Commissioner is not made unlawful by s9 of the Racial Discrimination Act. In my opinion that section is not attracted unless an act (the relevant act being the appointment of the Royal Commissioner) is done which in fact produces a distinction on the base of race (which has occurred here because the inquiry is into and affects Aboriginal beliefs only) and the existence of that racial distinction is the basis of the relevant act in the sense that the act occurred by reason of or by reference to the racial distinction. This does not mean that the inquiry is one as to motive. The inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act.

In my opinion, on the available evidence, primarily comprising the Commission of Her Excellency the Governor, the decision to appoint a Commissioner to inquire was made because the "women's business" was believed to have been a significant factor in the decision by the Commonwealth Minister to make a declaration under s10 of the Aboriginal and Torres Strait Islander Protection Act 1984 (Cth) and because subsequently there has been disagreement about the existence and genuineness of the "women's business" and because the Government has an interest for various reasons in the existence and genuineness of the "women's business". The evidence before the Court has provided further background material but in my opinion there is nothing in that evidence which caused me to conclude that the recitals in the letters patent should be rejected as not being genuine. It may be that in some respects the recitals are mistaken, but that is another matter.

In my opinion, on the available evidence, the basis of the decision to appoint an inquiry is not the race of the persons asserting the existence of "women's business" but, in brief, the making of the assertion, the result of that having being done and the subsequent controversy about the matter asserted.

I have considered in particular the fact that the beliefs inquired into are beliefs characteristic of and apparently confined to Aboriginal belief, the fact that the declaration by the Commonwealth Minister was made under legislation which relates to the protection of Aboriginal heritage and the other links to the Aboriginal race. In other words, the subject matter of the inquiry has a distinctive association with the Aboriginal race, and perhaps a unique association.

But in my opinion that does not expose race as the true basis of the decision. It does not disclose that the basis of the decision is a characteristic that appertains generally or uniquely to a particular race. In my opinion the basis of a decision remains in particular the asserted fact (be it correct or not) that a declaration was made under Commonwealth legislation in reliance upon assertions which are now disputed.

For those reasons in my opinion the claim under s9 of the Racial Discrimination Act fails.

There is nothing in the evidence to indicate that the actual conduct of the inquiry will involve the infringement of freedom of religion in a manner which is unlawful at common law or is beyond the power given to the Royal Commissioner. I mention without repeating my observation about the power to ask questions. In my opinion there is nothing to indicate that the actual conduct of the inquiry will involve an act contrary to the Racial Discrimination Act. I must stress in this respect that I am confining myself to the evidence presently before the Court. It is possible that it might emerge in the course of the Royal Commission that in some respect the Racial Discrimination Act is contravened. I refer in particular to the provisions of s9(1A) merely to make the point that facts might arise which attract the operation of the section. Inconvenient as it is it is necessary to wait until particular matters are identified which are said to involve a contravention of the section.

I have not found it necessary, in the context of the Racial Discrimination Act, to consider whether anything about the institution of the inquiry or the conduct of the inquiry has or might have the purpose or effect of impairing the enjoyment of freedom of religion on an equal footing. That is a serious and difficult question upon which I express no view because, in light of my conclusions, it has been unnecessary to do so.

JUDGE2 BOLLEN J I agree with the reasons of the Chief Justice and with the orders which he proposes.

JUDGE3 DEBELLE J The plaintiff's application for declaration proceeds on the footing: 1. That at common law there is a fundamental freedom to exercise a religious belief and that freedom gives rise to certain rights;

That the establishment and holding of the Royal Commission involved an impairment of the right of members of the Ngarrindjeri nation to exercise their religion; and

That the establishment and holding of the Royal Commission involved an unlawful act of discrimination in breach of the Racial Discrimination Act.

2. The nature of the rights which flow from the asserted freedom of religion were not defined.

3. For the purposes of this action only, I am prepared to assume that the freedom of religion is a fundamental freedom in our society. Freedom of religion, the paradigm freedom of conscience, is the essence of a free society: Church of the New Faith v The Commission of Payroll Tax (Victoria) [1983] HCA 40; (1983) 154 CLR 120, per Mason ACJ and Brennan J at 130. But the freedom of religion like a number of other fundamental freedoms is not absolute. The freedom is not inalienable and may be regulated by statute: Grace Bible Church v Reedman (1984) 36 SASR 376. The extent to which this fundamental freedom renders other conduct unlawful at common law is open to serious question. Even if the holding of the Royal Commission constitutes an impairment of the freedom of religion, it is not clear whether as a matter of law it has the consequence that the impairment is unlawful or otherwise gives rise to any right which avails the plaintiff. But in the circumstances of this case it is, I think, unnecessary to determine that issue.

A significant part of Aboriginal customary law and tradition includes religious beliefs. The fundamental freedom of religion protects the exercise of Aboriginal religious beliefs and, to the extent that the religious beliefs of the members of the Ngarrindjeri nation form part of Aboriginal customary law and tradition, members of the Ngarrindjeri nation are entitled freely to exercise those beliefs.

I consider first whether the establishment or the holding of the Royal Commission would impair the freedom of members of the Ngarrindjeri people to hold and practise their religion. The mere establishment of the Royal Commission does not impair the freedom of religion. A hypothetical example will illustrate the proposition. If the Government had immediately decided to reverse its decision and had terminated the Commission and recalled the appointment of the Royal Commissioner, it could not be held that there was any impairment of the freedom. It is not the mere establishment of the Royal Commission but the holding of the Royal Commission which has any potential to impair the freedom of religion. However, for the reasons which follow, I do not think that the holding of this Royal Commission involves an impairment of the freedom of religion.

The terms of reference require the Royal Commissioner to do no more that undertake an inquiry and report. As para 6 of the terms of reference disclose, the Government perceives that the inquiry is necessary in order that it may provide a factual basis for the resolution of disagreement concerning the allegations of secret women's business within the South Australian Aboriginal communities; to enable the Government to determine, as a matter of policy, whether it would be unreasonable and inappropriate, having regard to Aboriginal tradition, for the construction of the bridge to proceed; and will enable the Government to determine whether it should make any further submissions to the inquiry to be undertaken by the Commonwealth Government relating to the declaration made by the Minister for Aboriginal and Torres Strait Islander Affairs on 9 July 1994.

An inquiry of this nature into a religion does not, standing alone, impinge upon the fundamental freedom of a person to practise that religion. Having made her inquiry, the Commissioner will report. One possibility is that she might conclude that there is no fabrication. In that event, it is difficult to understand how it could be said that there has been any impairment of the freedom of religion. If she reports that the asserted women's business is a fabrication, those Aborigines who have that belief are, nevertheless, entitled to continue to profess that belief. The report will not in any respect proscribe or impair the freedom of those who wish to believe in the asserted women's business. Mrs Doreen Kartinyeri has sworn that she is extremely upset about the holding of the Royal Commission. I understand that view. But distress or concern with the holding of such an inquiry falls short of an impairment to the free exercise of religion. If Government decides to act on the report, it will then be necessary to examine whether the step taken amounts to an impairment of the free exercise of religion. In short, there will be no impairment unless and until a further step is taken which in some way impairs that freedom.

The Royal Commissioner has the power to coerce witnesses: see s11 of the Royal Commissions Act 1917. It may be a grave insult or at least an affront to a person who professes a particular belief to be required under pain of some penalty to attend and answer questions in respect of that belief. Compulsion to attend before a commission of inquiry and answer questions as to one's belief leads to justifiable concerns of a potential to interfere with the freedom to adopt and practise a religion of one's choice. The line between a mere inquiry and a step which impairs freedom of religion may be very fine and at times be very difficult to draw. But that is the kind of task which the courts are not uncommonly called upon to undertake. Having regard to the nature of the inquiry, I do not think there is any impairment of the free exercise of religion.

The inquiry stems from allegations that the women's business is a fabrication. Included in those who allege that the women's business is a fabrication are persons who say they are members of the Ngarrindjeri nation. The inquiry may, therefore, involve an examination of the beliefs of Ngarrindjeri women to determine the content of their belief. That inquiry does not require an examination of the truth or falsity of the belief. It is not concerned to establish whether the beliefs are consistent with that part of Aboriginal customary law and tradition which constitutes the religious beliefs of the Ngarrindjeri nation. It is not concerned to establish whether the belief is a rank heresy. Instead, it is concerned with determining whether the asserted women's business has been recently manufactured by a group of Ngarrindjeri women. One of the reasons for the inquiry is that a group of Ngarrindjeri women deny that the asserted women's business ever formed part of the religious beliefs of the Ngarrindjeri. The inquiry whether the asserted women's business forms part of the beliefs of Ngarrindjeri women will involve, among other things, an examination of the allegations as to fabrication, an examination of how long the belief as to the asserted women's business has existed and, if it is a recent held belief, when and how it came into existence. There may be difficulties in proving these matters, difficulties which are compounded because Aboriginal law and tradition is an oral tradition. But these are matters which are capable of being established by evidence of extrinsic facts. It is the limited nature of this inquiry which prevents it from being an impairment of the freedom of the Ngarrindjeri women to exercise their religious belief.

It is necessary to maintain a balance between the legitimate interests of those who seek to pursue a course of conduct and those who have a religious belief which seeks to prevent the desired course of conduct. If it is not possible to inquire whether the tenets of the asserted religious belief require that the conduct cease or to inquire whether the person who proclaims the belief genuinely believes it or to inquire whether it has been fabricated, those who are prevented from pursuing their legitimate interests are adversely affected without a proper opportunity of examining the case against them. As already mentioned, the freedom of religion is the paradigm freedom of conscience. No civilised society would seek to impose an improper restraint upon that freedom. Equally, no civilised society would wish to permit the freedom to be unfairly or improperly used as a means of preventing others from pursuing their legitimate interests. If an inquiry is constituted on the ground that the asserted belief is a fabrication, great care must be undertaken to ensure that there are proper grounds for the inquiry and that allegations of fabrication are not used as a cloak to hide the fact that the intention is to circumscribe the free exercise of that religion. The secret aspects of Aboriginal law and tradition deserve proper respect and care must be taken to ensure that there is no unlawful impairment of the freedom of Aboriginal people to practise their religion. But the nature of this particular inquiry and the manner in which it is being conducted do not impair the freedom of the Ngarrindjeri women to exercise their religious beliefs.

In reaching this conclusion I have had regard to the decisions of the Supreme Court of the United States of America in United States v Ballard [1944] USSC 72; 322 US 78 (1944); United States v Seeger [1965] USSC 49; 380 US 163 (1964); Welsh v United States [1970] USSC 147; 398 US 333 (1970); Thomas v Review Board of the Indiana Employment Security Division [1981] USSC 66; 450 US 707 (1981); and Frazee v Illinios Department of Employment Security [1989] USSC 56; 489 US 829 (1989). In none of those decisions did the Court have to consider whether an inquiry whether a religion was a fabrication and which had no consequence other than a report infringed the constitutional guarantee of the free exercise of religion provided in the Constitution of the United States.

I agree with the substance of the reasons of the Chief Justice to the effect that the decision to appoint the Royal Commissioner is not made unlawful by s9 of the Racial Discrimination Act and that the actual conduct of the inquiry will not involve the impairment of the fundamental freedom of religion or in any other respect be contrary to the terms of the Racial Discrimination Act.

For these reasons I agree with the orders proposed by the Chief Justice. I reserve the right to publish more complete reasons.