Brennan, Frank --- "Building a Bridge on a Constitutional Sea Change" [1997] IndigLawB 55; (1997) 4(3) Indigenous Law Bulletin 6

• Building A Bridge On A Constitutional Sea Change

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Building a Bridge on a Constitutional Sea Change

by Frank Brennan

The non-existent Hindmarsh Island Bridge is back under the spotlight. The Labor Party rolled over when the Government presented its Hindmarsh Island Bridge Bill ('the Bill') to the Senate for the third time on 12 May 1997. The 10 senators on the cross benches sat firm, heralding their opposition to any legislation adverse to Aboriginal interests which is not guaranteed to be subject to the Racial Discrimination Act 1975 (Cth) (the 'RDA'). The Labor Party now holds the key to the amendments to the Native Title Act 1993 (Cth) (the 'NTA') in the Senate, Aborigines being guaranteed support from the cross benches in their opposition to discriminatory, adverse amendments. The Howard Government has been anxious to demonstrate a sea change in the Commonwealth's approach to Aboriginal issues.

It is over three years since a group of Ngarindjeri women first sought a Commonwealth declaration banning the construction of the bridge. The Federal Court found that the original report on the proposed development by Professor Cheryl Saunders and Minister Robert Tickner’s consideration of it were procedurally defective. A new report was commissioned from Federal Court judge Jane Mathews. The High Court then ruled that Federal judges could not be used for such functions. So the women's valid application is still on foot. None of these delays or mistakes have been their fault.

Because the women's application related to restricted women's knowledge, the previous Government appointed Senator Rosemary Crowley as the Minister to review the Mathews report, but the new Coalition Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, refused to make a similar appointment. Mathews J submitted a comprehensive and sympathetic report. But the women withdrew their evidence of the restricted knowledge when told that they would be obliged to make the material available to people (including men) whose interests would be affected by the making of a declaration. Jane Mathews thought access to the restricted women's knowledge essential if there were to be any prospect of a report providing grounds for the Minister to make a declaration. She reported that there was insufficient material for the Minister to be satisfied that the building of the bridge would desecrate the area according to the traditions. If the High Court had not ruled the report invalid because of constitutional limits on the use of federal judges, the applicant women would have had no further recourse.

Given that the women's valid application is still on the books, what ought the Government do in the interests of certainty for all parties? The representations received by Mathews J could form the basis for a valid report in the future. The simplest course would have been for the present Minister to appoint as reporter Ms Lindy Powell QC, who assisted justice Mathews. The High Court has said that the reporter can have regard to ministerial instructions, advice and wishes, and that the reporter 'is not expressly required to hold a hearing.[1] She could be provided with copies of all representations received by Mathews J. The Minister could direct her to advertise that representations already received by Justice Mathews' inquiry would form the basis of her report, together with any additional written representations which would be circulated to interested parties. People could be given 14 days to provide any additional comments in writing. The Minister could insist on delivery of the report within a month.

Even in the unlikely event that the applicant women were to contemplate revealing the secret information, they would still face the hurdle that, as Mathews J found, 'their major concern relates to the protection of Hindmarsh Island itself from injury or desecration. Yet their application does not accommodate this concern, for it has dearly confined the area for which protection is sought to the small rectangle which is described as the bridge corridor.[2] The Chapman family, who are the developers on the island, could simply rely on the key items in previous representations which were adopted by Mathews J in her report.

There is no need for special Commonwealth legislation. If the High Court had not ruled the Mathews report invalid, it would have formed the basis for Minister Herron declining to issue a declaration, and any further application by the women would have been vexatious. Rather than commissioning a report from Ms Powell' QC, receiving only written submissions within 14 days, the Government had twice introduced the Hindmarsh Island Bridge Bill, which prohibits the Minister from taking any action on a valid application for heritage protection of Hindmarsh Island. Clause 4(2) of the Bill provides: 'The Heritage Protection Act does not authorise the Minister to take any action after the commencement of this Act in relation to an application (whether made before or after the commencement of this Act) that relates (wholly or partly)' to the construction, maintenance or use of a bridge at Hindmarsh Island. The Bill has run into trouble in the Senate each time because of its potential overriding of the RDA. The Government believes that the heritage protection legislation 'has proved to be unworkable in this instance, and there is no guarantee that a further reporting process would finally settle the matter.'[3] On this reasoning, the Government would have to pass a special Act every time Aborigines brought a valid application for heritage protection.

In November 1996, the Senate Legal and Constitutional Legislation Committee heard evidence from Senator Herron and officers of the Attorney-General's Department ('A-G's') on the Hindmarsh Island Bridge Bill. Half the Senate Committee were convinced that the Bill is not consistent with the RDA, except in the sense that it is a later Commonwealth Act and therefore able to prevail over the RDA to the extent of any inconsistency. The Minister informed the committee on 29 November 1996:

'I am advised that, as a later enactment, the Bill would not be subject to the Racial Discrimination Act and, therefore, could not breach the provisions of that Act. I am further advised that s8 of the Racial Discrimination Act provides that the substantive provisions of Part 2 of the Act do not apply to special measures giving particular benefit to groups on the basis of race in order to remedy present inequality'.

The Coalition's election commitment was to respect the RDA, and the Prime Minister is on record that he would amend the NTA 'in a manner that completely respects the provisions of the Racial Discrimination Act' .[4] So the Hindmarsh Island debate has in part been a parliamentary test of the parameters within which the Howard Government may roll back the Aboriginal gains in the NTA, which are politically underpinned by the bipartisan commitment to date to respect the RDA. The Government could have introduced an amendment to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the Heritage Protection Act') which was non-discriminatory, providing:

'10(5) Where a court has found defects in the reporting process after the Minister or any previous Minister:
'(a) has previously received an application,
'(b) has previously commissioned a report, and
'(c) has received representations in connection with
a report;
'the Minister need commission a new report only where he, in his discretion, thinks there is some prospect of his making a declaration in relation to the area.
'10(6) In exercising his discretion pursuant to s10(5), the Minister may have regard to any previously received representations and the findings of any Commonwealth, Territory or State Commission of Inquiry or Royal Commission'.

The Attorney-General's Department conceded 'A Bill along these lines could be enacted. It is a matter of policy whether such an approach is preferred.'[5] But they claimed such an amendment would not give sufficient certainty.

The Hindmarsh Island Bridge Bill is inconsistent with the RDA in that it is not a special measure, and it does discriminate against the Ngarindjerri when compared with all other indigenous groups in Australia in that their heritage in the Hindmarsh Island bridge corridor cannot be protected by a valid application for protection considered by the Minister. The heritage of all other indigenous persons can be so protected.

Yet A-G's argues that the Hindmarsh Island Bridge Bill is consistent with the RDA in that it is part of a special measure. Even if it were not a special measure, A-G's sees the relevant comparison being between those who can bring applications for protection, rather than between those whose heritage is being protected. In theory, all Aborigines and Torres Strait Islanders can bring applications for heritage protection over the whole of Australia (except the Hindmarsh Island bridge corridor) even though the area in question might not be the heritage of the applicant.

Though the Government has accepted the advice of A-G's, it was not sufficiently confident to insert the Opposition's amendment ensuring the legislation's consistency with the RDA. The Opposition's amendment was modelled on amendments proposed by the Democrats and the Aboriginal negotiators during debate on the Native Title Bill in 1993. It was tabled in the House of Representatives on 5 November 1996 and provided:[6]

'2A Racial Discrimination Act to prevail
'(1) For the avoidance of doubt, it is expressly declared to be the intention of the parliament that the terms of the Racial Discrimination Act shall prevail over the provisions of this Act.
'(2) Nothing in this Act shall be taken to authorise any conduct, whether legislative, executive or judicial, that is inconsistent with the operation of the Racial Discrimination Act'.

The Government was prepared to insert an identical amendment in the Social Security amendments cutting back the availability of welfare benefits to lately arrived migrants. Agreeing to the amendment in the Senate on 26 November 1996, Senator Grant Tambling, Parliamentary Secretary to the Minister for Social Security said, 'The Government will not oppose this amendment. In doing so, however, I want to note very particularly that the Government does not consider that the amending Act ever was, or is, in conflict with the Racial Discrimination Act.'[7] So there is a precedent. But Aborigines are not to enjoy the benefit of it.

In any event, A-G's argues that the Bill is a special measure for the benefit of Aborigines, which can then be rolled back at the discretion of Government. For the purposes of argument, let us concede that the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) can be classed as a special measure. That does not serve to characterise the Hindmarsh Island Bridge Bill as a special measure nor as part of a special measure. According to para 4, Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, a special measure is '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 of individuals equal enjoyment or exercise of human rights and fundamental freedoms'.

The A-G's argument runs that a law is a special measure if it brings the disadvantaged group up to the same level as the general community. But A-G's then postulate that the Parliament can discriminate in a racially adverse discriminatory way between members of the disadvantaged group. Provided no member of the disadvantaged group is worse off than the general community, all is said .to be well.

So the A-G's argument runs this way. Members of the general community in Australia do not enjoy heritage protection of their land and objects. Until now, all Aborigines and Torres Strait Islanders do enjoy that protection. This protection is a special measure. Under the Hindmarsh Bill, the Ngarindjerri will not enjoy that protection, or will enjoy it to a more limited extent. Though on the face of it, this is discrimination against the Ngarindjerri when compared with other Aborigines and Torres Strait Islanders, it is not discrimination because the Ngarindjerri are not worse off than the community generally. Or alternatively, the protection is available to all Aboriginal and Torres Strait Islander applicants whether or not they are Ngarindjerri. They just cannot claim full protection of Ngarindjerri heritage.

But heritage protection for indigenous people is not a special measure. It is not a matter of giving temporary special assistance to a disadvantaged group, but rather of according substantive equality by treating unlike cases differently, just as respecting the religious affiliations of citizens is not a case of giving special treatment to religious persons and discriminating against atheists. It is simply a matter of according respect to the religious affiliations of any citizen, whoever they may be.

Even if heritage protection be classed as a special measure, there is a need to design the measure such that it ensures such groups of individuals equal enjoyment or exercise of human rights and fundamental freedoms. The Heritage Protection Act (Cth) could be so classed. But if at the outset, the Heritage Protection Act (Cth) discriminated against one group of heritage owners on the basis of their race by singling out their heritage area for adverse treatment, while extending special protection to all other heritage areas, the Act could not be classed as a special measure, as it would be entrenching unequal enjoyment or exercise of human rights and fundamental freedoms, and it would have to pass s10 scrutiny under the Racial Discrimination Act. Under the guise of being a special measure the Act would be a racially discriminatory enactment. So too with the Hindmarsh Island Bridge Bill. Not even A-G's claims it can stand alone as a special measure. A-G's argument at its highest is that the Bill is part of a special measure drawing its characterisation from the Heritage Protection Act (Cth). Conceding that Parliament can roll back a special measure at any time, that can only be done by Parliament either demonstrating the achievement of equal enjoyment or exercise of rights for the individuals who will no longer enjoy the benefit of the special measure, or by Parliament rolling back the special measure so as not to discriminate adversely between the beneficiaries of the special measure on the basis of their race. But that is precisely what the Hindmarsh Island Bridge Bill purports to do. It will wind back the special measure protection for Ngarindjerri heritage while leaving unaffected all other indigenous heritage, and with no demonstration that Ngarindjerri heritage enjoys adequate protection. The Bill is contrary to the Racial Discrimination Act.

On 26 March 1997, the Government informed the House of Representatives that the Bill, even if discriminatory against Aborigines, could be supported under the race power. Dr Michael Wooldridge told the House, 'Further, as to the issue about the race power, the Attorney-General has given us advice that it falls within the race power and we have to operate on that advice, as honourable members would know, having been in Government themselves.' While A-G's concede that Justices Murphy and Brennan indicated in The Tasmanian Dam Case (The Commonwealth v Tasmania) ((1983) [1983] HCA 21; 158 CLR 1) that the Commonwealth power was to be exercised only for the benefit of Aborigines, even if it could be exercised to the detriment of people of other races, the Department's lawyers represent justice Deane as having stated the contrary view when he said, 'The power conferred by s5l(xxvi) [of the Constitution] remains a general power to pass laws discriminating against or benefiting the people of any race.' This overlooks the next sentence of Deane J's judgment which reads, 'Since 1967, that power has included a power to make laws benefiting the people of the Aboriginal race.' These two sentences appear in the same paragraph as the sentence which conveys His Honour's interpretation of the high Constitutional purpose of the 1967 referendum: 'As it became increasingly clear that Australia, as a nation, must be diminished until acceptable laws be enacted to mitigate the effects of past barbarism, the exclusion of the people of the Aboriginal race from the provisions of s51(xxvi) came to be seen as a fetter upon the legislative competence of the Commonwealth Parliament to pass necessary laws for their benefit.'[8]

A-G's then makes the bold claim, 'The issue was resolved in the Native Title Act case [State of Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373], where the majority, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ adopted the view of Deane J.'[9] A-G's relies on the sentence in the joint judgment, 'A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race.'[10] It is a long bow to construe their Honours as supporting the assertion that the race power may be exercised to impose a disadvantage on Aborigines or on a particular group of Aborigines. Their Honours were simply considering how in s51(xxvi), the word 'special' qualifies 'law', and it does not relate to necessity. Their Honours observe, 'Therefore the special quality of a law must be ascertained by reference to its differential operation upon the people of a particular race.[11]' There is no indication that Brennan J has retreated from his observations in The Commonwealth v Tasmania:

'No doubt para (xxvi) in its original form was thought to authorise the making of laws discriminating adversely against particular racial groups. The approval of the proposed law for the amendment of para (xxvi) by deleting the words "other than the aboriginal race" was an affirmation of the will of the Australian people that the odious policies of oppression and neglect were to be at an end, and that the primary object of the power is beneficial'.[12]

Presumably Caudron J has retreated from her observation in Chu Kheng Lim v Minister for Immigration, but arguably only to the extent that adverse laws could be passed against people of a race other than Aborigines:

'In Koowarta v Bjelke-Petersen [(1982) [1982] HCA 27; 39 ALR 417] Murphy J expressed the view-which in my opinion has much to commend it - that s51(xxvi) only authorises laws for the benefit of the race concerned, because in the context, "for" means "for the benefit of" and not "with respect to" '.[13]

It was the intention neither of the Parliament, which drew up the 'Case For' in 1967, nor of the voters that the Commonwealth Parliament would thereafter have power to make laws discriminating adversely against Aborigines and Torres Strait Islanders. The Parliament stated that the purpose of the 1967 amendment was:

'[T]o make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Commonwealth Parliament considers this desirable or necessary ... This would not mean that the States would automatically lose their existing powers. What is intended is that the National Parliament could make laws, if it thought fit, relating to Aboriginals - as it can about many other matters on which the States also have the power to legislate. The Commonwealth's object will be to cooperate with the States to ensure that together we act in the best interests of the Aboriginal people of Australia'.

The 'Yes' Case circulated to voters, 'authorised by the majority of those Members of both Houses of the Parliament who voted for the proposed law and was prepared by the Prime Minister, the Rt Hon Harold Holt, Leader of the Federal Parliamentary Liberal Party; by the Deputy Prime Minister, the Rt Hon John McEwan, Leader of the Australian Country Party; and by the Leader of the Opposition, Mr Gough Whitlam, Leader of the Australian Labor Party, stated, 'The Commonwealth's object will be to co-operate with the States to ensure that together we can act in the best interests of the Aboriginal people of Australia.' The proposal to amend s51(xxvi) was a change from Sir Robert Menzies' position of 1965, when he argued that the words of exception relating to Aborigines were 'a protection against discrimination by the Commonwealth Parliament in respect of Aborigines'.[14] In 1967, his successor Harold Holt, when launching the 'Yes' campaign, said s51(xxvi) was proposed for amendment because unamended it was 'widely believed to discriminate against Aborigines'.[15] The Government changed its position from 1965 because, according to Harold Holt, it was 'influenced by the widespread impression which exists' that the words of exception were discriminatory. The Government was joined by the Opposition. Gough Whitlam said, 'The welfare of Australian Aboriginals requires that this referendum be carried'. In his opinion, the unamended s51(xxvi) prevented 'the National Parliament from making laws for the welfare of those Aboriginals who live in the States'.[16]

Given that the NTA contained provisions for the benefit of Aborigines, as well as some provisions which were adverse, there is nothing in the joint judgment in the Native Title Act case which warrants the conclusion that the Commonwealth Parliament has power to legislate adverse to the interests of Aborigines. To be true to the intention of the Founding Fathers and of the Parliament and voters in 1967, there are only two possible reading of s5l(xxvi). Either it should now be read as having an exclusively benign application no matter what the race in question, and this would require a revision of the majority's view in the Native Title Act case. Or, it should be viewed as a power to make laws conferring only advantages on Aborigines and Torres Strait Islanders and a power to make laws conferring advantages or disadvantages on people of other races. Should this not be the case, and should the Hindmarsh Bill stand as a valid exercise of the race power, the 30th anniversary of the 1967 referendum will be the right time to scrap what was thought to be a real advance for indigenous Australians, replacing it with a provision which places beyond doubt what was thought to be its exclusively benign effect.

The Senators on the cross benches were right to hold firm against the Hindmarsh Bill without the assurance that the Bill be subject to the RDA. The Bill, having passed unamended, will provide a test case for the ambit of the race power. The Bill unamended will not finally settle the matter of the proposed bridge development at Hindmarsh Island. That could have been done months ago at the Federal level without any legislation. This Bill in its stark simplicity will now serve a purpose similar to the Queensland Coast Islands Declaratory Act 1985 (Qld) which catapulted the Mabo litigation straight into the High Court without need for a determination of facts. It will pose only one question for the High Court: can the race power be exercised other than for the benefit of Aborigines? As Aboriginal leaders prepare for the Australian Reconciliation Convention to mark the 30th anniversary of the 1967 referendum and as they negotiate changes to the NTA, they will be aided by a confirmed restriction on Commonwealth power or by a belated judicial revelation that their passport to constitutional equality was a double edged sword. If the latter, their case for constitutional reform at the forthcoming Constitutional Convention will be unassailable.

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[1] Wilson v Minister for Aboriginal Affairs, FC96/026 at 18 (Brennan CJ, Dawson, Toohey, McHugh & Gummow JJ).

[2] J Mathews, Commonwealth Hindmarsh Island Report, 27 June 1996, p 187.

[3] C Miles for M Wooldridge, Second Reading Speech, Hansard (House of Representatives), 17 October 1997, p 5803.

[4] Hansard (House of Representatives), 8 October 1996, p 4859, an answer to a question without notice from B Wakelin (Lib, SA).

[5] H Burmester, Opinion, Re: Hindmarsh Island Bridge Bill, 27 November 1996, p 5.

[6] D Melham, Hansard (House of Representatives), 5 November 1996, p 6553.

[7] Hansard (Senate), 26 November 1996, p 5988

[8]. [1983] HCA 21; (1983) 158 CLR 1 at 273.

[9] Western Australia v Commonwealth (Native Title Act case), Attorney-General's Advice on Constitutional Validity of Hindmarsh Island Bridge Bill 1996,5 February 1997, p 2.

[10] . [1995] HCA 47; (1995) 183 CLR 373 at 461.

[11] [1995] HCA 47; (1995) 183 CLR 373 at 460-1.

[12] [1983] HCA 21; (1983) 158 CLR 1 at 242.

[13] (1992) 176 CLR 1 at 56.

[14] (1965) Commonwealth Parliamentary Debates (House of Representatives), p 2638.

[15] The Age, 16 May 1967.

[16] Smoke Signals, Vol. 6, No. 2,1967, p. 7