Gerhardy v Brown [1985] HCA 11

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. Gerhardy v Brown [1985] HCA 11

ORDER Appeal allowed. Set aside the judgment of Mr. Justice Millhouse dated 21 July 1983 and in lieu thereof answer the questions in the special case stated, as amended by this Court, as follows:

1. Is s. 19 of the Pitjantjatjara Land Rights Act 1981 S.A. invalid or restricted in its operation by reason of the Racial Discrimination Act 1975 Cth?

Answer: No.

2. If the answer to Question 1 is that the Pitjantjatjara Land Rights Act is restricted in its operation, does the complaint herein fall within the area of valid operation of the Act?

Answer: Unnecessary to answer.

Order by consent that the appellant pay the respondent's costs of the appeal. Remit the proceedings to the Supreme Court of South Australia.

Cur. adv. vult.

The following written judgments were delivered:—

1985, Feb. 28 Gibbs C.J.

The question for decision in this case is whether s. 19 of the Pitjantjatjara Land Rights Act 1981 S.A. ("the Act") is rendered invalid or otherwise affected by the Racial Discrimination Act 1975 Cth, as amended ("the Racial Discrimination Act "). The main purpose of the Act was to vest the title to a large tract of land in the north-west of South Australia in the Aboriginal peoples who are said to be its traditional owners. The area in question is called in the Act "the lands", an expression which is defined by s. 4 to mean the lands described in the first schedule. Those lands, we are told, comprise an area of 102,630 square kilometres — i.e., more than one-tenth of the total land area of South Australia which is 984,377 square kilometres. The area is sparsely populated. According to the report made by the Pitjantjatjara Land Rights Working Party of South Australia in June 1978, the Aboriginal people who live in the area, about 2,000 in number, fall into three main groups, apparently distinguished by language or dialect. Those groups, the Ngaanatjara, the Pitjantjatjara and the Yungkutatjara, are associated with different areas within the lands but tend to see themselves as broadly related. The Act embraces all three groups under one name, for by s. 4 "Pitjantjatjara" means: