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Hindmarsh Island Bridge Bill 1996
House: House of Representatives
Portfolio: Minister for Aboriginal and Torres Strait Islander Affairs
Commencement: On Royal Assent
To prevent a declaration being made under the Aboriginal and Torres Strait Heritage Protection Act 1984 in relation to the Hindmarsh Island Bridge site.
Aboriginal and Torres Strait Island Heritage Protection Act 1984
The aim of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is to protect areas and objects that are of particular significance to Aboriginal and Torres Strait Islander people. It was described in 1984 as 'beneficial legislation, remedying social disadvantage of Aboriginals and Islanders, and of having the effect, by preserving and protecting an ancient culture from destructive processes and of enriching the heritage of all Australians ... 1 .'
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 enables the Minister to make a declaration protecting Aboriginal sites or objects from desecration or threat of injury. Two types of declarations are provided for in relation to Aboriginal sites. The Minister may make an emergency declaration under section 9 which has effect for 30 days and which can be renewed for a further 30 days. A 'permanent' declaration may be made by the Minister under section 10 of the Act but only after certain statutory requirements are followed.
Under section 10 of the Act when an application for permanent preservation or protection of an area is received, the Minister:
. obtains a report from a person nominated by him or her; and
. considers that report and any representations attached to the report; and
. considers any other relevant matters.
If the Minister is then satisfied that:
. the area is a significant Aboriginal area; and
. it is under threat of injury or desecration
then the Minister may make a declaration in respect of that area.
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 provides that section 9 and section 10 declarations are reviewable by Parliament under certain provisions of the Acts Interpretation Act 1901 (Cwlth). 2 The effect of this is that declarations must be placed before both Houses of Parliament. The Senate and the House of Representatives then have a certain time in which to move a motion of disallowance. If either House passes a motion of disallowance, then the declaration has no effect. In addition, subsections 13(5) and 6 enable the Minister to revoke or vary declarations.
The Hindmarsh Island Bridge
What appears below is a brief description of some of the events in the Hindmarsh Island Bridge saga. Detailed chronologies appear in both the Saunders' and Mathews' Reports (see below).
Hindmarsh (Kumarangk) Island is situated near the mouth of the Murray River in South Australia, across from the township of Goolwa on the mainland. There is evidence that the Ngarrindjeri people occupied the area for tens of thousands of years before white settlement. Some time after white settlement, Aboriginal people moved away or were forced to move from the island. Today, there are few Aboriginal people on Hindmarsh Island although they do live in nearby areas such as Point McLeay, Murray Bridge and Meningie.
In 1980, an application was made by Binalong Pty Ltd 3 for approval to build a marina on the island. In 1982, Stage 1 of the marina development was approved by the State Planning Commission. Digging of the marina basin began in 1984. In the years that followed, problems arose with ferry access due to an increase in visitor numbers to Hindmarsh Island and the possibility of a bridge appears to have been raised in 1987.
In 1988, Binalong Pty Ltd sought approval for further stages in the development of the marina. By 1989, the total development proposed encompassed a bridge to Hindmarsh Island, marina extensions and the subdivision of land for private housing.
In the period 1988 to 1990, archaeological and anthropological surveys were conducted in relation to areas likely to be affected by Binalong's development proposals. These surveys identified a number of sites including burial and camp sites and recommended consultation between the developers and relevant Aboriginal bodies. In 1989 a draft Environmental Impact Statement (EIS) was released for public comment and a supplement to the draft was released in 1990. The EIS and supplement were assessed by the Major Projects and Assessment Branch of the South Australian Department of Environment and Planning (DEP). The DEP's report was released in May 1990 and recommended Cabinet approval of the project on conditions that included consultation by Binalong Pty Ltd with relevant Aboriginal bodies and notification and consultation with those bodies if skeletal material was found during survey or development of the site. 4
In 1990, the South Australian Cabinet approved the development proposed by Binalong Pty Ltd, including the construction of a bridge. This approval also confirmed that, as a result of financial difficulties being experienced by Binalong Pty Ltd, the South Australian Government would pay Binalong Pty Ltd half the total construction costs of the bridge or $3 million - whichever was the smaller amount.
Construction of the marina basin and extensions to Stage 1 commenced in 1991.
Organised opposition to the Hindmarsh Island Bridge proposals seems to have emerged about 1993 and appears to have involved a group of resident property owners on the Island and at Goolwa. In March 1993, a deed of agreement was entered into between the South Australian Government, Binalong Pty Ltd and the Port Elliott and Goolwa Council. Under this deed, the State Government formalised its agreement to assume responsibility for financing the bridge. 5 Work on the bridge commenced in October 1993 but was later suspended due to protest action.
In December 1993, the Aboriginal Legal Rights Movement asked the South Australian Minister for Aboriginal Affairs and the then Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, to halt the construction of the bridge. 6
There was a change of Government in South Australia as a result of a State election held in December 1993. In March 1994, the new South Australian Government which had previously opposed construction of the bridge announced that after conducting a review it had decided that the bridge would be built. The South Australian Government had obtained a report from Mr Samuel Jacobs QC on the bridge proposal, its financial consequences for the State and the 'options open to the Government for the resolution of the present impasse in the broad interests of the people of South Australia and the financial implications of such options.' 7
In about March or April 1994, the issue of 'secret women's business' emerged in relation to Hindmarsh and Mundoo Islands and the mouth of the Murray River in general. 8
Protest action led by the Friends of Goolwa and Kumarangk and the Construction, Forestry, Mining and Energy Union led in April 1994 to the Federal Court granting an injunction preventing the protesters from hindering the construction of the bridge. In May 1994, there were five arrests when protesters and police clashed at the Goolwa construction site. On 11 May 1994, construction of the bridge recommenced.
On 12 May 1994, Minister Tickner issued an emergency declaration protecting the site for 30 days under section 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. At the same time, the Minister announced that he would commission a report under section 10 of the Act in order to determine whether a permanent heritage protection declaration should be made.
The Saunders' Report
On 23 May 1994, Minister Tickner appointed Professor Cheryl Saunders 9 to prepare a report into the matters listed in section 10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
Professor Saunders considered over 400 written submissions and also visited South Australia and spoke with Ngarrindjeri women and other interested persons. Among other things, Professor Saunders found that:
. the Ngarrindjeri women regarded the mouth of the Murray River, Hindmarsh and Mundoo Islands and the surrounding waters as 'crucial for the reproduction of the Ngarrindjeri people and their continued existence' 10
. the area contained areas of archaeological and anthropological significance. Professor Saunders' report referred to evidence of an Aboriginal presence in the area 'unusual because of its size, semi-permanent nature and, perhaps, ... the purposes for which it was used.' 11 The report also mentioned ancestral remains in the area and the extreme anxiety likely to be experienced by Ngarrindjeri people if these were disturbed. The report noted, however, that the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 appears not to have been used previously to protect areas 'of largely archaeological significance.' 12
. it would be open to the Minister to find that the area was under threat of injury or desecration from the construction of the bridge.
Due to the secret nature of the 'women's business' that had been imparted by Ngarrindjeri women, Professor Saunders' report did not contain a detailed account of the 'women's business.' However, an account prepared by the anthropologist, Dr Deane Fergie, was contained in a confidential attachment to the report. Professor Saunders wrote:
This attachment is confidential and should be read by women only. Even without it, however, it is in my view open to the Minister to conclude that the area has particular significance for Aboriginal people within the meaning of the Act. 13
The permanent heritage protection declaration
Professor Saunders' report was provided to Minister Tickner on 8 July 1994. On 9 July 1994, Minister Tickner issued a declaration for a period of 25 years under section 10 of the Act. Mr Tickner said that representations and Professor Saunders' report had convinced him that the area was a particular significance to the Ngarrindjeri people and that it was under threat of injury or desecration from the construction of the bridge. The declaration prohibited bulldozing, grading, drilling, excavating or any act done for the purpose of constructing a bridge in any part of the area, except with the Commonwealth Minister's consent.
Both Professor Saunders' report and the Minister emphasised the significance of 'secret women's business' in relation to the area.
Judicial review of the heritage protection declaration
On 22 July 1994, Tom and Wendy Chapman and their son, Andrew Chapman, sought a review under the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) of Minister Tickner's decision to make a section 10 declaration.
On 15 February 1995, O'Loughlin J, sitting in the Federal Court overturned the Minister's section 10 declaration. His Honour found that two errors of law had been made by the Minister:
. procedural fairness had been denied because of defects in the advertising of the application for a section 10 declaration. Because of these defect, the Court held that the Minister had lacked jurisdiction to make the declaration;
. the Minister had failed to 'consider' the representations attached to the Saunders' report, as required by paragraph 10(1)(d) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. In particular, O'Loughlin J held that the Minister had erred by relying so heavily on the issue of 'secret women's business' but denying himself access to envelopes appended to Professor Saunders' report which contained details of the 'secret women's business'.
The Minister appealed this decision to the Full Court of the Federal Court.
The Hindmarsh Island Royal Commission
In May 1995, the South Australian media carried reports that the 'secret women's business' had been fabricated. Five Ngarrindjeri women reportedly said that they did not believe in or had never heard of the 'secret women's business' until it had been raised by Doreen Kartinyeri. 14 In June 1995 there were further allegations that two prominent members of the Ngarrindjeri community - Doug and Sarah Milera - had confirmed the allegations of fabrication.
In response, the South Australian Government established a Royal Commission on 16 June 1995. A former South Australian District Court judge, Mrs Iris Stevens, was appointed as Royal Commissioner. In brief, the Royal Commissioner was appointed to inquire into and report on whether any aspect of the 'women's business' was a fabrication and, if so, how the fabrication occurred, its extent and purpose. 15
Controversy plagued the work of the Royal Commission. The 'proponent women' refused to give evidence to the Commission; 'dissident' Ngarrindjeri women claimed threats and intimidation; Ngarrindjeri elder, Doug Milera reportedly withdrew his allegations that the 'secret women's business' had been fabricated; amateur historian, Betty Fisher, told the Commission she had first been told of the 'secret women's business' in 1960; and white male anthropologists from the South Australian Museum disputed the existence of the 'secret women's business'.
The Royal Commission's report was published in December 1995. Its major findings were:
. the '... 'women's business' emerged in response to a need of the anti-bridge lobby to provide something of sufficient cultural significance to warrant the making of a declaration by the Federal Minister'; 16
. the 'women's business' was unknown to the twelve dissident Ngarrindjeri women who gave evidence before the Commission and who were described by the Royal Commissioner as 'credible witnesses'; 17
I.looking at 'the whole of the evidence, including the history of events, the anthropological evidence and the evidence of the dissident women, ... the whole claim of the "women's business" from its inception was a fabrication;' 18
. the purpose of the fabrication was obtain a declaration prohibiting the construction of the Hindmarsh Island Bridge under the Commonwealth's Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
The Hindmarsh Island Royal Commission report could be taken into account by the Minister for Aboriginal and Torres Strait Islander Affairs in considering a relevant application for a declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. However, it could not substitute for the commissioning of a report under the Act or for the exercise of the Minister's discretion in relation to the making of a declaration.
The Minister's appeal against the decision in Chapman v. Tickner
Minister Tickner appealed the decision in Chapman v. Tickner. On 7 December 1995, the Full Court of the Federal Court unanimously dismissed the appeal. It concluded that there were fatal flaws in the section 10 process. These were that:
. the notice of the application for a section 10 published in the Commonwealth Gazette and the Adelaide Advertiser declaration was deficient;
. the Minister had failed to consider personally the representations attached to Professor Saunders' report despite being obliged to do so under the Act. Consideration of the representations was a precondition of the Minister exercising his power under section 10.
The Full Court emphasised that it was not making a finding in relation to the merits of the application for the section 10 declaration. What it was concerned about were the procedures used by Minister Tickner in reaching his decision. 19
A new inquiry under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
On 22 December 1995, Minister Tickner announced that the Prime Minister had appointed Senator Rosemary Crowley to assess the most recent application for heritage protection lodged by the Ngarrindjeri people. This application was lodged in December 1995.
On 16 January 1996, Senator Crowley nominated Judge Jane Mathews to prepare a report on the heritage protection application lodged on 19 December 1995. Senator Crowley said that the application related to matters including burial sites, middens and cultural beliefs and that the application had requested that a female Minister deal with the application. 20
Following the General Election in March 1996, Senator John Herron became Minister for Aboriginal and Torres Strait Islander Affairs in the new Coalition Government.
Some confidential material was made available to Judge Mathews by the Ngarrindjeri women who support the existence of 'secret women's business' but was withdrawn by them when Judge Mathews advised that she could no longer honour the condition of confidentiality upon which she had accepted the material. 21
The challenge to the appointment of Judge Mathews
The appointment of Judge Jane Mathews 22 as reporter under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was challenged in the High Court of Australia. The plaintiffs in the case sought a declaration that her appointment was incompatible with her position as a Judge of the Federal Court of Australia. In other words, the plaintiffs alleged that the appointment breached the constitutional doctrine of the separation of powers.
On 6 September 1996 the High Court handed down its decision in Wilson v. Minister for Aboriginal and Torres Strait Islander Affairs. By a majority of 6:1, the High Court held that the Minister could not properly nominate Judge Mathews to be a reporter under the Act and that Judge Mathews was unable to accept the appointment. 23
The Mathews Report
Judge Mathews report, dated 27 June 1996, was tabled in Parliament on 17 September 1996. Her Honour stated that the applicant women had not been prepared to reveal the content of restricted women's knowledge because a female Minister had not been appointed to consider the matter and for other reasons. 24 Judge Mathews' report continued:
In the absence of restricted women's knowledge, other issues assumed much greater significance under the application than had initially been anticipated. In particular, the applicants relied strongly on the fact that the Hindmarsh Island/Goolwa area was once an important Ngarrindjeri living, trading and ceremonial centre, with many remaining archaeological signs of its early days. The applicants have claimed that there are significant archaeological sites in the area, including burials, which would be desecrated by the building of a bridge to Hindmarsh Island. They have also relied upon the significance of the waters surrounding Hindmarsh Island. In particular, they have identified three traditions from which these waters are said to derive their significance. One relates to "the Meeting of the Waters", one derives from a story about the "Mulyewongk", and one is associated with the "Seven Sisters Dreaming Story." The construction of the bridge, they said, would adversely affect the channel between Goolwa and Hindmarsh Island which is significant in accordance with these traditions. ...
... I have concluded that they [these matters] may well make the area a "significant Aboriginal area", there is insufficient material from which the Minister could be satisfied that the building of the Hindmarsh Island Bridge would desecrate this area according to these traditions. 25
Judge Mathews also said:
... the Minister is not obliged to accept the recommendations contained in this Report. Nor is the information upon which he makes his decision necessarily restricted to the contents of the report and its accompanying documentation. He can rely on any other matters which he regards as relevant. It thus remains open to the Minister to make a declaration in this matter, notwithstanding the recommendations in this Report. 26
As a result of the High Court's decision in Wilson v. Minister for Aboriginal and Torres Strait Islander Affairs, the Mathews Report cannot be used to decide a heritage protection application. 27
Clause 4(1) of the Hindmarsh Island Bridge Bill 1996 provides that the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 does not enable declaration to be made preserving or protecting an area or object from bridge construction and other specified activities in the 'Hindmarsh Island bridge area' or 'pit area.'
Clause 4(2) of the Bill provides that the Minister cannot take action under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in relation to an application (whether made before or after the commencement of the Hindmarsh Island Bridge Act 1996) that relates to an activity covered by clause 4(1)(a),(b),(c),(d) or (e).
Item 1 of Schedule 1 of the Bill defines the 'Hindmarsh Island bridge area.'
Item 2 of Schedule 1 of the Bill defines the 'pit area.'
Is the Hindmarsh Island Bridge Bill 1996 consistent with the Racial Discrimination Act 1975 (Cwlth)?
The Racial Discrimination Act 1975 (RDA) implements Australia's obligations under the International Covenant on the Elimination of All Forms of Racial Discrimination (CERD). 'Racial discrimination' is defined in CERD as any distinction, exclusion, restriction or preference based on race, colour, descent, national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Part II of the RDA prohibits racial discrimination. Section 8(1) of the RDA provides that 'This Part does not apply to, or in relation to the application of special measures to which paragraph 4 of article 1 of the Convention applies.' On one view, the RDA requires equal (that is, identical) treatment of racial and ethnic groups. 28 As a result it could be said that the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is in the nature of a 'special measure.' On this argument, the Hindmarsh Island Bridge Bill 1996, which removes 'special measures' protection in relation to the Hindmarsh Island bridge area cannot be discriminatory and can be enacted without offending the principles underlying the Racial Discrimination Act 1975.
It might also be argued that the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is not so much a 'special measure' but a instrument providing substantive equality for indigenous people. 29 On this basis, it might be argued that removing the application of the Act to the Hindmarsh Island Bridge area constitutes a failure to provide substantive equality and is thus inconsistent with the Racial Discrimination Act 1975.
What is the result if the Hindmarsh Island Bridge Bill 1996 is inconsistent with the Racial Discrimination Act 1975?
The general view is that the Commonwealth Parliament is a sovereign Parliament and thus may enact later legislation which derogates from or repeals an earlier statute.
There have been some suggestions that the Hindmarsh Island Bridge Bill 1996 could have a retrospective effect. The Bill is worded to act prospectively. In other words, it can be argued that the Bill does not retrospectively affect any application that has already been made under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, it only affects what action the Minister can take in the future in relation to such an application. In any event, even if the Bill had a retrospective effect, there appears to be no bar on the Commonwealth making retrospective legislation.
1 Tickner v. Bropho (1993) 114 ALR 409 at 419 per Black CJ. His Honour was referring to the legislation's Second Reading Speech.
2 Section 15.
3 Tom and Wendy Chapman, and Ruth Galle Chapman are the shareholders in Binalong Pty Ltd.
4 Mathews, op.cit, pp.101-102.
5 Professor Cheryl Saunders' report estimated that, on publicly available information, damages payable by the South Australian Government could amount to at least $12.5 million if the bridge is not built and Binalong Pty Ltd successfully sues for breach of contract. Professor Saunders' report also raised the issue of the effect on the State's liability if there is a heritage protection declaration under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
6 The application made to the South Australian Minister was made under the Aboriginal Heritage Act 1988 (SA). The application to the Commonwealth Minister was made under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cwlth).
7 Quoted in Stevens, IE Report of the Hindmarsh Island Bridge Royal Commission, December 1995, pp.98-9.
8 The late emergence of the 'secret women's business' was commented on both in Professor Saunders' report and in the South Australian Royal Commission Report. On the one hand, it can be argued that the Ngarrindjeri women were not involved in the bridge consultation process until late in the day; that they were reluctant to speak about secret matters; that the secret knowledge was restricted to a small number of Ngarrindjeri women and that the dispersal of the Ngarrindjeri people after white settlement meant that those senior women were scattered around South Australia and some were unaware of the bridge proposal for some time. On the other hand, it was argued that the developers consulted extensively with Aboriginal people without these concerns being raised and that the issue of 'secret women's business' was a fabrication concocted at the instigation of white conservationists and unionists who were opposed to the construction of the bridge.
9 Professor Saunders is Professor of Law at the University of Melbourne and Director of the Centre for Comparative Constitutional Studies, and Deputy Chair of the Constitutional Centenary Foundation.
10 Saunders, op.cit, p.28.
11 Ibid, p.34.
12 Ibid, p.35.
14 Dr Kartinyeri is a Ngarrindjeri elder who has worked in the Aboriginal Family History Unit at the South Australian Museum.
15 Stevens, op.cit, p.3.
16 Ibid, p.297.
18 Ibid, p.298.
19 See Federal Court of Australia, Hindmarsh Island (Kumarangk) Bridge Litigation: Federal Court Appeal, Explanatory Statement, Adelaide, 7 December 1995.
20 Press Release (Minister for Family Services), Hindmarsh Island, 16 January 1996.
21 Mathews, J Commonwealth Hindmarsh Island Report, 27 June 1996, pp.44-45. Judge Mathews advice to the proponent women came after the Full Court of the Federal Court delivered its judgment in Minister for Aboriginal and Torres Strait Islander Affairs v. Western Australia, 28 May 1996.
22 Judge Jane Mathews is a Judge of the Federal Court of Australia, President of the Administrative Appeals Tribunal and Deputy President of the National Native Title Tribunal.
23 Wilson v. Minister for Aboriginal and Torres Strait Islander Affairs, High Court of Australia, unreported, 6 September 1996.
24 See Mathews, op.cit, p.2 and Chapter 4.
25 Ibid, pp.2-3.
26 Ibid, p.4.
27 See Second Reading Speech, Hindmarsh Island Bridge Bill 1996, House of Representatives, 17 October 1996, p.5527.
28 For example, see Gerhardy v. Brown (1985) 159 CLR 70.
29 Western Australia v. Commonwealth (1995) 128 ALR 1 indicates that a view may be emerging from the High Court that a law can make racial distinctions but not be racially discriminatory.
Jennifer Norberry Ph. 06 277 2476
Bills Digest Service
Parliamentary Research Service
31 October 1996
This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
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Published by the Department of the Parliamentary Library, 1996.