In this case the court considered an appeal made by the Barngarla Determination Aboriginal Corporation RNTBC (BDAC). BDAC is the prescribed body corporate over a parcel of land adjacent to land intended for construction of a waste management plant pursuant to s 7 of the National Radioactive Waste Management Act 2012 (Cth). This appeal was against a decision that the District Council of Kimba did not contravene s 9(1) or 9(1A) of the Racial Discrimination Act 1975 (Cth) (RDA) in passing resolutions for the conduct of a non-binding poll to gauge community support for the construction of a radioactive waste management facility. The effect of the resolutions was that possession of native title rights would not qualify a person to participate in the poll.
The court made its decision on the basis of two issues. The first, whether the primary judge erred in concluding that the actions of the Council did not involve a distinction, exclusion, restriction or preference based on race within the meaning of s 9(1) of the RDA. The second, whether the primary judge erred in admitting and considering the evidence of Ms Larwood in respect of the council’s reasons for adopting the requirements for voting set out in s 14 of the Local Government (Elections) Act 1999 (SA) (LGE Act).
On the first issue, at [48] the court noted ‘that to prove a contravention of s 9(1) of the RDA it is not necessary to prove the existence of a subjective motivation to exclude the complainant based on his or her race. But that is not to say that the subjective motivations of the alleged contravener are irrelevant. Whilst the absence of a subjective motivation will not be determinative, proof of the existence of a subjective motivation to discriminate may point to a conclusion that the relevant act involved an exclusion based on race.’
In regard to the evidence of Ms Larwood, the court found that the primary judge did not err in admitting her evidence. At [50], their Honours state ‘there was no objection to that evidence at first instance, whether on the ground of relevance or on the ground that Ms Larwood could not depose to the reasoning process of the members of the Council who passed the resolutions complained of.’ And at [51], ‘as to the findings based on Ms Larwood’s evidence, BDAC faces the considerable difficulty that the evidence went unchallenged. In the circumstances, it was clearly open to the primary judge to conclude that the Council’s reasons for adopting the [requirements for voting] were as Ms Larwood had asserted them to be. However, that conclusion was not determinative.’
Their Honours based their conclusions on the following points:
Any person who fulfilled one or more of the s 14 criteria could participate in the ballot irrespective of the person’s race.
The classes of persons who were excluded from voting included persons who were Aboriginal and persons who were not.
There was preference afforded to persons having interests in land that was rateable over those having interests in land that was not. And non-rateable land in the council area did not comprise only that land falling within the determination area, but included all non-rateable land, irrespective of the race of the person having a recognisable interest in it.
Each of the matters advanced by the council to justify the resolutions were shown to be referrable to “sensible” concerns that were unrelated to race.
At [61], the court outlined hypothetical circumstances where an act might be found to have been in contravention of s 9(1) of the RDA, but ultimately concluded for the reasons above that that had not occurred in this case. They were satisfied that the passing of the resolution in relation to s 14 of the LGE Act was not based on race notwithstanding the special interests of the Barngarla people in the outcome of the ballot. The appeal was dismissed.