Bropho v State of Western Australia 1

Bropho v State of Western Australia

Bropho v State of Western Australia

Court High Court of Australia

Full case name Bropho v State of Western Australia and Another

Date decided 20 June 1990

Citation(s) [1990] HCA 24 [1]

Judge(s) sitting Mason CJ, Deane, Dawson, Toohey, Gaudron, McHugh and Brennan JJ

Bropho v State of Western Australia was a decision of the High Court of Australia, which ruled on 20 June 1990that Section 17 of the Aboriginal Heritage Act 1972 of Western Australia bound the Crown in right of WesternAustralia.

Background

LegislationSection 17 of the Aboriginal Heritage Act 1972 of Western Australia prohibited the destruction or damage ofaboriginal sites except with the consent of the responsible State Minister. The Act did not expressly say whether itbound the Crown,[2] although the Act provided that it applied to "all places" in Western Australia.[3]

Facts

The redeveloped Swan Brewery

The Western Australian Development Corporation, astatutory corporation of the Western Australiangovernment, undertook works to redevelop the prominentSwan Brewery site in Perth. The site was owned by theState of Western Australia.[4] [5] Robert Bropho, anIndigenous Australian activistbe, applied to the SupremeCourt of Western Australia for an injunction against thedevelopment, claiming it was sacred Aboriginal land.Although Section 17 of the Aboriginal Heritage Act 1972established a criminal offence, Bropho sought the civil remedy of an injunction.[6] The Supreme Court refused togrant an injunction, holding that the Aboriginal Heritage Act 1972 did not bind the Crown in right of WesternAustralia. An appeal to the full bench of the Supreme Court failed, following which Bropho instituted a furtherappeal to the High Court of Australia.[7]

Bropho v State of Western Australia 2

Crown immunity before Bropho

Before Bropho, the law of Crown immunity in Australia was governed by Province of Bombay v Municipal Councilof Bombay, a 1946 judgment of the Privy Council of the United Kingdom. The Privy Council held that there was apresumption that a statute did not bind the Crown. The presumption was only rebuttable by express words or"necessarily implication".[8] The Privy Council narrowed the necessary implication ground to circumstances wherethe purpose of the statute would be "wholly frustrated" if the statute did not bind the Crown.[9]

JudgmentThe High Court unanimously upheld Bropho's appeal, holding that Section 17 of the Aboriginal Heritage Act 1972bound the Crown in right of Western Australia. Chief Justice Mason and Justices Deane, Dawson, Toohey, Gaudronand McHugh delivered a joint judgment. Justice Brennan delivered his own judgment that concurred with the jointjudgment.[10]

Joint judgmentThe joint judgment affirmed the presumption against a statute binding the Crown. However, the judgment overturnedthe 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 Parliamentintended for the statute to bind the Crown. The intention of Parliament could be ascertained by reference to thecontent and objectives of the statute.[11]

Justice BrennanJustice Brennan concurred with the joint judgment, noting his view that employees and agents of the Crown shouldnot be exempt from criminal laws.[12]

Subsequent actionBropho's successful appeal did not prevent the redevelopment of the Swan Brewery. Later in 1990, Minister CarmenLawrence gave her consent to the redevelopment, overriding the prohibition in Section 17 of the Aboriginal HeritageAct 1972. Bropho successfully challenged Lawrence's decision in the Supreme Court of Western Australia, but theWestern Australian government won on appeal to the Court of Appeal.[13]

References

Footnotes[1] http:/ / www. austlii. edu. au/ au/ cases/ cth/ HCA/ 1990/ 24. html[2] Katz 1994, p. 223[3] Taylor 2000, p. 107[4] Starke 1990, p. 527[5] Churches 1990, p. 690[6] Barrett 2002, p. 59[7] Australian Law Reports 1990, p. 207[8] Katz 1994, pp. 222–223[9] Gray 2009, p. 201[10] Churches 1990, p. 690[11] Taylor 2000, pp. 107–108[12] Taylor 2000, p. 109[13] Churches, Steven (1992). "Aboriginal Heritage in the Wild West – Robert Bropho and the Swan Brewery Site" (http:/ / www. austlii. edu.

au/ au/ journals/ AboriginalLB/ 1992/ 27. html). Aboriginal Law Bulletin (Kensington, NSW: Aboriginal Law Research Unit) 27.ISSN 0728-5671. .

Bropho v State of Western Australia 3

Cited texts• Bropho v State of Western Australia (1990), Australian Law Reports 93: 207-209 (case note).• Barrett, Malcolm (2002), "Prosecuting the Crown", University of Notre Dame Australia Law Review (Fremantle,

WA: University of Notre Dame Australia) 4: 39–75, ISSN 1441-9769• Churches, S C (1990), "The Trouble with Humphrey in Western Australia: Icons of the Crown or impediments to

the public?", University of Western Australia Law Review (Nedlands, WA: Faculty of Law, University of WesternAustralia) 20: 688–709, ISSN 0042-0328

• Corones, Stephen (2007), "Negotiating to supply government entities: when does the Trade Practices Act apply?",Australian Business Law Review (Sydney: Thomson LBC) 35: 374–378, ISSN 0310-1053

• Gray, Anthony (2009), "Options for the doctrine of Crown immunity in 21st century Australia", AustralianJournal of Administrative Law (North Ryde, NSW: Law Book Co.) 16: 200–210, ISSN 1320-7105

• Katz, Leslie (1994), "The test for Determining the Applicability to the States of Federal Statutes Which Do NotExpressly Bind Them", Australian Bar Review (Sydney: Butterworths) 11: 222–228, ISSN 0814-8589

• Starke, J G (1990), "Current Topics: The High Court's new approach to the question whether the Crown is boundby a statute", Australian Law Journal (Sydney: Law Book Co.) 64: 527–530, ISSN 0004-9611

• Taylor, Greg (2000), "Commonwealth v Western Australia and the Operation in Federal Systems of thePresumption that Statutes do not Apply to the Crown", Melbourne University Law Review (Melbourne:Melbourne University Law Review Association) 24: 77–123, ISSN 0025-8938

• Thomson, James A (1990), "Beyond superficialities: Crown immunity and Constitutional law", University ofWestern Australia Law Review (Nedlands, WA: Faculty of Law, University of Western Australia) 20: 710–725,ISSN 0042-0328

Article Sources and Contributors 4

Article Sources and ContributorsBropho v State of Western Australia  Source: http://en.wikipedia.org/w/index.php?oldid=434687585  Contributors: Mkativerata, Savidan, Tassedethe, 2 anonymous edits

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