Stewart & Ors v Wreck Bay Aboriginal Community Council & Ors  ACTSC 334 (18 December 2014)
The Supreme Court of the ACT has found that the Wreck Bay Aboriginal Community Council (WBACC) did not meet the definition of a public authority pursuant to s 40 of the Human Rights Act 2004 (ACT) (HRA) and therefore it did not need to take into account human rights considerations in its decision to evict the plaintiffs.
Mr and Mrs Stewart and a number of their extended family had been living on an area of Wreck Bay called Mary Bay Ridge since 1996. They claimed that they were traditional Aboriginal owners from the area and therefore had a right to live on the land. This area did not have access to amenities such as sewerage, electricity, or running water. The WBACC claimed that the Stewarts were living on Mary Bay Ridge unlawfully. It claimed that as the owner of the Aboriginal land in Wreck Bay vested in it by virtue of the Aboriginal Land Grant (Jarvis Bay Territory) Act 1986 (Cth)(the ALGA), it had the power to evict people who were unlawfully camping on this land.
The Stewarts argued that the WBACC had an obligation to consider human rights when making its decision to evict them as it was a public authority under s 40 of the HRA.
Justice Burns considered whether the council came within the definition of a public authority under s. 40 of the HRA, which provides:
(1) Each of the following is a public authority:
(a) an administrative unit;
(b) a territory authority;
(c) a territory instrumentality;
Justice Burns carefully considered each of these three categories. Relevant to his decision was the fact that the WBACC was established by a Commonwealth law, the ALGA. The ALGA provided for a grant of land to the Wreck Bay Aboriginal Community which included the Mary Bay Ridge, and for the establishment of the WBACC whose functions include holding title to, and exercising powers over, that land.
For the first two sub-sections to be applicable, the WBACC must have been established by the ACT Chief Minister or established for a public purpose under a Territory Act. A Territory Act includes a former Commonwealth enactment provided for in schedule 2 of the Australian Capital Territory (Self-Government) Act (Cth). The ALGA did not fit this definition. Justice Burns further found that for an organisation to be a territory instrumentality under the third sub-section, it must either be established by or under an ACT statutory instrument, or be comprised of people, a majority of whom are appointed by a Minister, or an agent or instrumentality of the Territory.
As this was not the case, the court found that the WBACC was not a public authority for the purposes of the HRA and as such, it was not required to take into account human rights in making its decision to evict the Stewarts.
This decision clarified the definition of public authority under ss 40(1)(a)-(c) of the HRA. However Justice Burns did not consider whether the WBACC came within the definition of s. 40(1)(g) of the HRA:
(g) an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority.
Section 40A states that a range of factors must be considered to determine if an entity is performing ‘functions of a public nature’, some of which were present for WBACC and some were not. Factors against such an assessment in this case include whether the function is conferred on the entity under a Territory law, or by an entity that is a company with the majority shares held by the Territory.
Nonetheless, s.40A(3) states that the provision of public housing is taken to be of a public nature. Justice Burns did find that WBACC was providing a housing service, which may have come within the area of ‘public housing’ for the purposes of the HRA. However, section 40A also lists as a relevant factor if the entity is publicly funded to perform the function. If the WBACC received funding from the ACT Government to provide functions relating to housing, it could have fallen within sub-section 40(1)(g). It is assumed, however, that this is not the case as his Honour did not discuss this in the decision.
The decision suggests that the ACT Supreme Court will take particular notice of the connection an entity has to the ACT Government or Territory Law in determining if it is an ACT Public Authority under the HRA.
The full decision can be found here.
Jane Thomson is a Human Rights Law and Policy Adviser at the ACT Human Rights Commission.