Aboriginal Law Bulletin --- "Hindmarsh Island Bridge -- The Latest Developments -- Aboriginal Legal Rights Movement v State of SA & Stevens" [1995] AboriginalLawB 56; (1995) 3(77) Aboriginal Law Bulletin 23

• Hindmarsh Island Bridge The Latest Developments Aboriginal Legal Rights Movement V State Of Sa &Amp; Stevens

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Hindmarsh Island Bridge
The Latest Developments

Aboriginal Legal Rights Movement v State of SA & Stevens

Aboriginal Legal Rights Movement v State of SA & Stevens

Supreme Court of South Australia

Doyle CJ, Bollen and Debelle JJ (Full Court)

Unreported, 28 Ausgust 1995

The Aboriginal Legal Rights Movement challenged two authorisations by the South Australian Minister for Aboriginal Affairs, Mr Michael Armitage, for certain information to be disclosed to the South Australian Hindmarsh Island Bridge Royal Commission as evidence in its proceedings. The Commissioner, Ms Iris Stevens, was joined as a second party in the proceedings. The authorisations were made on the 7 July and 27 July 1995. The ALRM sought a declaration by the Supreme Court that the authorisations were invalid.

The main challenge consisted of a two-pronged attack. The first argument was that s35(2) of the Aboriginal Heritage Act 1988 (SA), which authorises the Minister to divulge information held by the Department for Aboriginal Affairs which is considered by Aboriginal tradition to be secret or sacred, is rendered invalid by either s9 or s10 of the Racial Discrimination Act 1975 (Cth). Sections 9 and 10 make racial discrimination unlawful, and promote the principle of equality of all races before the law. The Full Bench held that s35(2) must be read in the context of s35, and that s35 (and indeed the entire Act) is a 'special measure' as described by the High Court in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70. Thus, s35(2) does not violate ss9 and 10 of the RDA. Accordingly, this argument was rejected.

The second argument had two limbs. The first was that the Minister had not satisfied the test of 'reasonable consultation' with the relevant Aboriginal people, as required under s13 of the Aboriginal Heritage Act, upon deciding to authorise disclosure of secret or sacred Aboriginal business to the Royal Commission. The second was that the authorisations were invalid because the Minister failed to identify adequately to the Aboriginal people concerned specifically which information he sought to disclose to the Royal Commission. On this second point only the Chief justice made a finding, which was favourable to the ALRM; both Debelle and Bollen JJ reserved their judgements. On the first point, the Full Bench held that the authorisations were invalid for want of adequate consultation between the Minister and the Aboriginal people concerned.

The Court found that the Minister was faced with two opposing Aboriginal groups from the Ngarrindjeri nation. Some of the Ngarrindjeri agreed with the proposed authorisations, others did not. It is doubtful whether consultation would have resolved their disparate views. The Minister was not bound to accept advice received in the process of consultation. Yet, the consultation may have enabled others to snake suggestions as to the width of the proposed authorisations and the extent to which limitations should be placed upon the persons to whom the information would be disclosed (such as limitations in terms of gender).

The decision meant that the Minister had to return to the Ngarrindjeri to adequately consult with them about whether their sacred information should be divulged to the Royal Commission as evidence. This consultation has now been carried out, and the Royal Commission hearings continue.

Prior to the Supreme Court challenge, the Royal Commission had requested a month's extension to 1 October 1995 to complete its inquiry. The Supreme Court challenge extended the Royal Commission's expected completion date to 1 November 1995. At the time of going to press, the Royal Commission had asked the government for yet another extension of time. The government has not yet responded.

The appeal by Mr Robert Tickner, Federal Minister for Aboriginal and Torres Strait Islander Affairs, to the Full Bench of the Federal Court from the decision of O'Loughlin J in Chapman v Tickner (15 February 1995, unreported) is expected any day. This decision overturned Mr Ticknei s decision to place a 25 year ban on the development of the Hindmarsh Island Bridge.

Once the Federal Court appeal is handed down, it is expected that Justice Jane Mathews will commence an Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) sl0 investigation into the significance of the Hindmarsh Island area.