Case: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70
Outcome: followed
The operation of s 10 of the RD Act has been considered in some detail by the High Court in Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70, Mabo (No 1), the Native Title Act Case, and Ward (HC). The propositions set out below are derived from those cases. 662 1. The 'rights' referred to in s 10(1) of the RD Act are human rights, not necessarily legal rights enforceable under municipal law: Mabo (No 1) , at 217, per Brennan, Toohey and Gaudron JJ. The human rights protected by s 10(1) include those referred to in art 5 of the Convention, notably the right to own and inherit property. That right encompasses an immunity from arbitrary deprivation of property and for this purpose 'property' includes native title rights and interests: Ward (HC), at [116]. 663 In the Native Title Act Case the High Court pointed out (at 437) that s 10(1) of the RD Act , confers equality of enjoyment of the human right to own and inherit property on 'persons of a particular race'. Their Honours continued: 'The [RD Act] does not alter the characteristics of native title, but it confers on protected persons rights or immunities which, being recognised by "the tribunals and all other organs administering justice", allow protected persons security in the enjoyment of their title to property to the same extent as the holders of titles granted by the Crown are secure in the enjoyment of their titles. "Property" in the context of the human rights with which we are concerned includes land and chattels as well as interests therein. Where, under the general law, the indigenous "persons of a particular race" uniquely have a right to own or to inherit property within Australia arising from indigenous law and custom but the security of enjoyment of that property is more limited than the security enjoyed by others who have a right to own or to inherit other property, the persons of the particular race are given, by s 10(1), security in the enjoyment of their property "to the same extent" as persons generally have security in the enjoyment of their property. Security in the right to own property carries immunity from arbitrary deprivation of the property. Section 10(1) thus protects the enjoyment of traditional interests in land recognised by the common law'. (Emphasis added.) 664 2. Section 10(1) of the RD Act applies in two different situations, insofar as State laws are concerned. If a State law omits to make a right universal, for example, by failing to confer that right on a person of a particular race, s 10(1) operates to confer the right on a person of that race. In this situation, the right conferred by the RD Act (a Commonwealth law) complements the right created by the State law. Because the RD Act shows no intention to occupy the field for the purposes of s 109 of the Constitution , the provisions of the State law remain unaffected: Gerhardy v Brown, at 98; Ward (HC), at [106]. Thus if a State law provides for the extinguishment of land titles, but provides compensation only in respect of titles other than native title rights and interests, the extinguishment remains valid, but the right to compensation is extended by operation of s 10(1) of the RD Act to the native title holders: Ward (HC) at [108]. 665 The second situation is where the State imposes or authorises a discriminatory burden or prohibition, for example a law forbidding people of a particular race from enjoying a human right enjoyed by persons of another race. In this situation, as was pointed out by Mason J in Gerhardy v Brown, at 98-99: 's 10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race. This necessarily results in an inconsistency between s 10 and the prohibition contained in the State [or Territory] law'. If a State law, for example, extinguishes only native title rights and interests and leaves other titles intact, s 10(1) operates to remove the discriminatory burden of extinguishment. The reason is that the State law, to that extent, is inconsistent with s 10(1) of the RD Act and is rendered invalid by s 109 of the Constitution : Ward (HC), at [108]. 666 3. Section 10(1) of the RD Act is directed to the case where some people enjoy rights but others do not enjoy those rights, or do so to a more limited extent. Rights may be enjoyed unequally even if the laws concerned do not have a purpose that can be identified as discriminatory: Ward (HC), at [105]. It follows that s 10(1) does not require that the relevant law, or an act authorised by that law, be 'aimed at' native title rights and interests. Nor does it require the law to make an explicit distinction based on race. 667 Instead, s 10(1) of the RD Act is directed at 'the practical operation and effect' of the impugned legislation and is 'concerned not merely with matters of form but with matters of substance': Ward (HC) , at [115] citing Mabo (No 1), at 230, per Deane J and Gerhardy v Brown , at 99, per Mason J. Consequently, if a power is conferred by legislation which is non-discriminatory on its face and the power is exercised in a manner that is discriminatory as a matter of fact, s 10(1) is engaged: Ward (HC) , at [126]. 668 4. Because native title is held by members of a particular race, interference with the enjoyment of native title is capable of amounting to discrimination on the basis of race. In Ward (HC) , it was held (at [122]) that Mabo (No 1) and the Native Title Act Case should be taken as having rejected the proposition that native title can be treated differently from other forms of title simply because it has characteristics different from other property rights and derives from different sources. As was said in Ward (HC) , at [121]: 'the [RD Act] must be taken to proceed on the basis that different characteristics attaching to the ownership or inheritance of property by persons of a particular race are irrelevant to the question whether the right of person of that race to own or inherit property is a right of the same kind as the right to own or inherit property enjoyed by persons of another race. In this respect the [RD Act] operates in a manner not unlike most other anti-discrimination legislation which proceeds by reference to an unexpressed declaration that a particular characteristic is irrelevant for the purposes of that legislation.' 669 It follows that in considering whether the holders of native title do not enjoy the same rights, or enjoy them to a more limited extent, than the holders of other forms of title, s 10(1) of the RD Act does not require a comparison between the content of native title rights and interests and the content of non-native title rights to determine whether they are equivalent. The fact that native title has unique characteristics, including its vulnerability to extinguishment by legislative or executive action, is not a basis for denying the application of the RD Act to native title.