Bropho v State of Western Australia
Encyclopedia
Bropho v State of Western Australia was a decision of the High Court of Australia
, which ruled on 20 June 1990 that Section 17 of the Aboriginal Heritage Act 1972 of Western Australia bound the Crown in right of Western Australia.
The Western Australian Development Corporation, a statutory corporation of the Western Australian government, undertook works to redevelop the prominent Swan Brewery
site in Perth. The site was owned by the State of Western Australia. Robert Bropho
, an Indigenous Australian
activistbe, applied to the Supreme Court of Western Australia
for an injunction against the development, claiming it was sacred Aboriginal land. Although Section 17 of the Aboriginal Heritage Act 1972 established a criminal offence, Bropho sought the civil remedy of an injunction. The Supreme Court refused to grant an injunction, holding that the Aboriginal Heritage Act 1972 did not bind the Crown in right of Western Australia. An appeal to the full bench of the Supreme Court failed, following which Bropho instituted a further appeal to the High Court of Australia
.
. The Privy Council held that there was a presumption that a statute did not bind the Crown. The presumption was only rebuttable by express words or "necessarily implication". The Privy Council narrowed the necessary implication ground to circumstances where the purpose of the statute would be "wholly frustrated" if the statute did not bind the Crown.
, Dawson
, Toohey, Gaudron
and McHugh
delivered a joint judgment. Justice Brennan
delivered his own judgment that concurred with the joint judgment.
gave her consent to the redevelopment, overriding the prohibition in Section 17 of the Aboriginal Heritage Act 1972. Bropho successfully challenged Lawrence's decision in the Supreme Court of Western Australia, but the Western Australian government won on appeal to the Court of Appeal.
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, which ruled on 20 June 1990 that Section 17 of the Aboriginal Heritage Act 1972 of Western Australia bound the Crown in right of Western Australia.
Legislation
Section 17 of the Aboriginal Heritage Act 1972 of Western Australia prohibited the destruction or damage of aboriginal sites except with the consent of the responsible State Minister. The Act did not expressly say whether it bound the Crown, although the Act provided that it applied to "all places" in Western Australia.Facts
Swan Brewery
The Swan Brewery is a brewery located in Perth, Western Australia. It was founded in central Perth in 1837. From 1879, it occupied riverside premises below Mount Eliza, displacing an official "Aboriginal institution" which recognised traditional use of the land by indigenous people.The brewery...
site in Perth. The site was owned by the State of Western Australia. Robert Bropho
Robert Bropho
Robert Charles Bropho was an Australian Aboriginal rights activist and convicted serial child sex offender from Perth, Western Australia. He was convicted of multiple cases of child sexual abuse...
, an Indigenous Australian
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
activistbe, applied to the Supreme Court of Western Australia
Supreme Court of Western Australia
The Supreme Court of Western Australia is the highest state court in the Australian State of Western Australia. It has unlimited jurisdiction within the state in civil matters , and hears the most serious criminal matters.The Supreme Court consists of a General Division The Supreme Court of Western...
for an injunction against the development, claiming it was sacred Aboriginal land. Although Section 17 of the Aboriginal Heritage Act 1972 established a criminal offence, Bropho sought the civil remedy of an injunction. The Supreme Court refused to grant an injunction, holding that the Aboriginal Heritage Act 1972 did not bind the Crown in right of Western Australia. An appeal to the full bench of the Supreme Court failed, following which Bropho instituted a further appeal to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
.
Crown immunity before Bropho
Before Bropho, the law of Crown immunity in Australia was governed by Province of Bombay v Municipal Council of Bombay, a 1946 judgment of the Privy Council of the United KingdomJudicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
. The Privy Council held that there was a presumption that a statute did not bind the Crown. The presumption was only rebuttable by express words or "necessarily implication". The Privy Council narrowed the necessary implication ground to circumstances where the purpose of the statute would be "wholly frustrated" if the statute did not bind the Crown.
Judgment
The High Court unanimously upheld Bropho's appeal, holding that Section 17 of the Aboriginal Heritage Act 1972 bound the Crown in right of Western Australia. Chief Justice Mason and Justices DeaneWilliam Deane
Sir William Patrick Deane, AC, KBE, QC , Australian judge and the 22nd Governor-General of Australia.-Early life:William Deane was born in Melbourne, Victoria. He was educated at Catholic schools including St. Joseph's College, Hunters Hill and at the University of Sydney, where he graduated in...
, Dawson
Daryl Dawson
Sir Daryl Michael Dawson, AC, KBE, CB Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997.-Education:...
, Toohey, Gaudron
Mary Gaudron
Mary Genevieve Gaudron, AC, QC , Australian lawyer and judge, was the first female Justice of the High Court of Australia.-Youth:...
and McHugh
Michael McHugh
Michael Hudson McHugh, AC, QC is a former justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Judicial Activity:...
delivered a joint judgment. Justice Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
delivered his own judgment that concurred with the joint judgment.
Joint judgment
The joint judgment affirmed the presumption against a statute binding the Crown. However, the judgment overturned the Bombay requirement that the presumption could only be rebutted by express words or necessary implication, criticising it as an "inflexible rule". According to the joint judgment, the relevant question was whether Parliament intended for the statute to bind the Crown. The intention of Parliament could be ascertained by reference to the content and objectives of the statute.Justice Brennan
Justice Brennan concurred with the joint judgment, noting his view that employees and agents of the Crown should not be exempt from criminal laws.Subsequent action
Bropho's successful appeal did not prevent the redevelopment of the Swan Brewery. Later in 1990, Minister Carmen LawrenceCarmen Lawrence
Carmen Mary Lawrence is a retired Australian politician; a former Premier of Western Australia and the first woman to become Premier of a State of the Commonwealth of Australia....
gave her consent to the redevelopment, overriding the prohibition in Section 17 of the Aboriginal Heritage Act 1972. Bropho successfully challenged Lawrence's decision in the Supreme Court of Western Australia, but the Western Australian government won on appeal to the Court of Appeal.
Cited texts
- Bropho v State of Western Australia (1990), Australian Law Reports 93: 207-209 (case note).