Aboriginal & Torres Strait Islander Peoples' Rights — Human Rights Case Summaries

Landmark recognition of human rights and environmental impacts as grounds for a recommendation against the grant of a mining lease

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21 (25 November 2022) involved the Land Court of Queensland making recommendations to the [Queensland] Minister for Resources (Minister) and the Chief Executive of the Department of Environment and Science (Chief Executive) on Waratah Coal Pty Ltd's (Waratah) applications for a mining lease and environmental authority to mine thermal coal in the Galilee Basin.

Migration, detention and lawfulness: High Court holds detention of Brendan Craig Thoms was not unlawful due to ‘reasonable suspicion’ of the officer

Thoms v Commonwealth of Australia [2022] HCA 20

In the present case, Thoms pursued a claim of damages against the Commonwealth for unlawful imprisonment and the High Court, dismissing his claim, determined his detention was not unlawful.

Inquest into the death of Raymond Noel

COR 2017/3012, Findings, Coroner Olle, 20 September 2021

Raymond Noel, a Gunnai, Gunditjmara and Wiradjuri man, died in a car accident following a police pursuit on 25 June 2017.

Guest User20 September 2021Aboriginal & Torres Strait Islander Peoples' Rights

Summary of interlocutory hearing judgment in Mark Rowson v Department of Justice, Corrections Victoria and the State of Victoria [2020] VSC 236

Mark Rowson v Department of Justice, Corrections Victoria and the State of Victoria [2020] VSC 236

A case was brought in the Supreme Court of Victoria seeking orders to temporarily release a 52-year-old man from Port Phillip Prison in light of the serious risk of harm or death that COVID-19 would pose to him if a case of the virus arose in prison.

Tanya Day inquest – summary of findings

Inquest into the death of Tanya Louise Day (COR 2017/6424), Findings, Coroner English, 9 April 2020

On 5 December 2017, during her train journey, Ms Day was approached by a V/Line train conductor. He called the police, Ms Day was ejected from the train and arrested for being drunk in a public place. Ms Day was taken to Castlemaine police station and detained in a police cell. Despite the requirement that she be physically checked every 30 minutes, this did not happen. The CCTV footage shows that at around 5:00pm Ms Day fell and hit her head on a concrete wall of the police cell.

Aboriginal Australians cannot be deported as 'aliens', High Court holds

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3

The High Court of Australia, by majority of 4-3, has held that Aboriginal people are not “aliens” and therefore cannot be deported under laws passed under the “aliens power” conferred on the Commonwealth Parliament by s 51(xix) of the Constitution.

High Court Recognises Significance of Cultural and Spiritual Loss in Native Title Decision

Northern Territory of Australia v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples & Anor; Commonwealth of Australia v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples & Anor; Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory of Australia & Anor [2019] HCA 7

The High Court in hearing its first ever native title compensation case, ultimately reduced the amount of native title awarded to the Ngaliwurru and Nungali Peoples of Timber Creek (Claimants). However, significantly, the Court rejected the appellants’ arguments against the cultural loss amount, upholding the trial judge’s original determination of $1.3 million.

NT Civil and Administrative Tribunal awards compensation to Aboriginal tenants for uninhabitable housing

Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7

The Northern Territory Civil and Administrative Tribunal (the Tribunal) has awarded compensation to Aboriginal tenants in the remote community of Santa Teresa over the Northern Territory government's failure to provide habitable public housing. Residents of 70 households in Santa Teresa brought the action against the Northern Territory government. In this decision, the first four of these cases proceeded to hearing, and the Tribunal awarded compensation in each case.

NT Supreme Court case establishes right to humane housing for residents of Santa Teresa community

Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59

The Northern Territory Civil and Administrative Tribunal (the Tribunal) initially examined the cases of Jasmine Cavanagh, Enid Young, Robert Conway and Clayton Smith in Various Applications from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7. The case involved Aboriginal residents of the remote community of Ltyentye Apurte (also known as Santa Teresa) challenging the poor housing conditions they were subjected to. A summary of that case is available here.

Two of the people involved in that case – Enid Young and Robert Conway (the appellants) – appealed that decision to the Northern Territory Supreme Court. The respondent was the Chief Executive Officer (Housing), a body corporate created under the Housing Act 1982 (NT) for the purpose of entering into public housing tenancy agreements.

The Northern Territory Supreme Court ruled in favour of Ms Young and the late Mr Conway on two grounds in their appeal and established a precedent that remote community tenants must be provided with housing that meets contemporary standards of ‘humaneness, suitability and reasonable comfort’.

AnnaFordyce27 February 2019Housing, Aboriginal & Torres Strait Islander Peoples' Rights

Supreme Court of Canada rules use of psychological risk assessment tools on Indigenous offenders illegal

Case Notes 19- IndigenousGuest User13 June 2018Aboriginal & Torres Strait Islander Peoples' Rights

New Zealand High Court finds insulting cartoons did not breach hate speech legislation

Wall v Fairfax New Zealand Limited [2018] NZHC 104

The New Zealand High Court held that two cartoons published in New Zealand newspapers featuring negative depictions of Māori and Pasifika did not breach hate speech provisions in the Human Rights Act 1993 (NZ). The Court balanced the publisher’s right to freedom of speech under the New Zealand Bill of Rights Act 1990 (NZ) against the government’s interest in protecting individuals from harmful speech and discrimination.

WA Court of Appeal quashes manslaughter conviction in spite of guilty plea

Gibson v State of WA [2017] WASCA 141 (28 July 2017)

The Western Australian Court of Appeal has set aside an Aboriginal man's guilty plea after finding that the absence of a qualified interpreter that spoke his language was a miscarriage of justice.

HRLC Admin28 July 2017Aboriginal & Torres Strait Islander Peoples' Rights

Police response to Palm Island Aboriginal death in custody ruled racially discriminatory

Wotton v State of Queensland (No 5) [2016] FCA 1457 (5 December 2016)

The Federal Court has ruled that the State of Queensland engaged in unlawful discrimination under section 9(1) of the Racial Discrimination Act as a result of Queensland Police Service officers' actions on Palm Island between 19 and 28 November 2004, following the death in custody of Aboriginal man Mulrunji after his arrest and confrontation with Senior Sergeant Christopher Hurley.

Representatives of the Aboriginal community on Palm Island brought the action and Justice Mortimer ruled that the following actions were racially discriminatory:

QPS’ failure to independently and impartially investigate Mulrunji’s death by not treating Hurley as a suspect, or removing him from duty, and ignoring Aboriginal witnesses implicating Hurley;
QPS’ failure to communicate timely and accurate information on the cause of Mulrunji's death and the investigation with the Palm Island Aboriginal community to defuse tensions;
the excessive and disproportionate declaration of an emergency situation; and
the unnecessary and disproportionate actions of officers of the Special Emergency Response Team for arrest, entries and searches on Palm Island as a show of force against the Aboriginal people.

Justice Mortimer granted declaratory relief, ordered compensation to be paid and has requested further submissions on the potential for a public apology.

HRLC Admin5 December 2016Prisoner Rights, Aboriginal & Torres Strait Islander Peoples' Rights

Colombian Constitutional Court invalidates mining policy for violating fundamental rights of Indigenous and Afrocolombian peoples

Sentence T-766 of 2015 (Constitutional Court of Columbia)

The Colombian Constitutional Court recently invalidated ‘strategic mining areas’ (SMA) which would have made mining concessions over almost 20% of the country available by tender, because they violated the rights of Indigenous and Afrocolombian peoples to prior consultation.

Flawed funding found to be discrimination against First Nations children and families

First Nations Child and Family Caring Society of Canada et al. v Attorney General of Canada [2016] CHRT 2 (26 January 2016)

In a significant decision handed down by the Canadian Human Rights Tribunal, it was found that the Canadian Government discriminated against First Nations children and families living on reserve and in the Yukon Territory by failing to provide them with equitable child welfare services.

‘Paperless Arrest’ police powers of detention validated but constrained

North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41 (11 November 2015)

The High Court of Australia has upheld the validity of laws granting police in the Northern Territory new powers of post-arrest detention for infringement notice offences. However, it adopted an interpretation of the legislation which confines their exercise.

ACT Aboriginal Community Council not bound by ACT Human Rights Act

Stewart & Ors v Wreck Bay Aboriginal Community Council & Ors [2014] 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.

MichelleBennett18 December 2014Housing, Aboriginal & Torres Strait Islander Peoples' Rights

High Court provides greater clarity regarding “inconsistency” and native title rights

Western Australia v Brown [2014] HCA 8 (12 March 2014)

The High Court has upheld a native title claim by the Ngarla People, in a case that involved consideration of common law extinguishment. The Court unanimously found that the rights under the two mineral leases were not inconsistent with the claimed native title rights and interests. Importantly, the case clarifies the concept of “inconsistency” in the context of native title rights.

MichelleBennett15 March 2014Aboriginal & Torres Strait Islander Peoples' Rights

Aboriginal customary adoptions given the same legal status as legal adoptions in Canada

Beattie v Aboriginal Affairs and Northern Development Canada [2014] CHRT 1 (10 January 2014)

The Canadian Human Rights Tribunal has held that in determining lineage for Indian status entitlements, customary adoptions should be recognised. In coming to this conclusion, the Tribunal provided much needed guidance on what amounts to a “service” under anti-discrimination law, reversing its previous views that registration of status was not a service.

Aboriginality, disadvantage and sentencing

Bugmy v The Queen [2013] HCA 27 (2 October 2013)

After considering the impact of Aboriginality on sentencing for the first time in 30 years, the High Court found that the fact that Aboriginal Australians “as a group are subject to social and economic disadvantage measured across a range of indices” says “nothing about a particular Aboriginal offender” but held that a background of social deprivation remains a relevant consideration for repeat offenders.

Canadian Court strikes down minimum education requirement in voting legislation

Taypotat v Taypotat 2013 FCA 192 (13 August 2013)

The Canadian Federal Court of Appeal determined that a minimum education requirement under voting legislation breached the Canadian Charter of Rights and Freedoms by discriminating against the elderly and aboriginal peoples.

Palm Island alcohol restrictions are “special measures”

Maloney v The Queen [2013] HCA 28 (19 June 2013)

The High Court has provided insight into the scope and operation of “special measures” under the Racial Discrimination Act 1975 (Cth) (RDA), holding that laws and regulations restricting the possession of alcohol on Palm Island were for the benefit of Aboriginal peoples. Contrary to statements of leading UN bodies such as the Committee on the Elimination of Racial Discrimination (UN Committee) and the UN Expert Mechanism on the Rights of Indigenous Peoples, the Court has found that special measures do not require either consultation with or the informed consent of an affected community.

Failure to take reasonable steps to promote representative jury a breach of the right to a fair hearing

R v Kokopenace, 2013 ONCA 389 (14 June 2013) (Ontario Court of Appeal)

The Ontario Court of Appeal has held that the government of Ontario's failure to take adequate steps to promote the inclusion of Aboriginal on-reserve residents in a pool of potential jurors amounted to a violation of the right to a representative jury owed to a defendant in a criminal trial, a right protected by the Canadian Charter of Rights and Freedoms.

Failure to prevent loss of ownership of property a violation of CEDAW

Cecilia Kell v Canada, UN Doc CEDAW/C/51/D/19/2008 (26 April 2012)

The UN Committee on the Elimination of Discrimination against Women has found that Canada violated the rights of an Aboriginal woman by failing to prevent her eviction or dispossession of a house.

Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act

Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011)Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011)

On 28 November 2011, the Victorian Civil and Administrative Tribunal delivered judgments in three matters, each dealing with applications for exemption from the Equal Opportunity Act 2010 (Vic) (EOA) to enable the limiting of employment in specified roles to Indigenous persons.

Federal Court upholds the right to be free from racial discrimination

Eatock v Bolt [2011] FCA 1103 (28 September 2011)

Federal Court judge Bromberg J recently held that Herald Sun opinion columnist Andrew Bolt and the Herald & Weekly Times had contravened the racial vilification provisions of the Racial Discrimination Act 1975 (Cth) in two articles published in 2009. Bromberg J highlighted that “[a]t the heart of any attempt to secure freedom from racial prejudice and intolerance is the protection of equality and the inherent dignity of all human beings.”

Aboriginal Children Returned to Care of Maternal Grandmother as Court Finds Charter Applies to Child Welfare Proceedings

Secretary to the Department of Human Services v Sanding [2011] VSC 42 (22 February 2011)

The Supreme Court of Victoria has ruled that the Children’s Court of Victoria (‘Court’) had the discretion to make orders returning four Aboriginal children to the care of their maternal grandmother at a submissions contest hearing in which no formal evidence was given. The Supreme Court further held that a child welfare proceeding is a ‘civil proceeding’ to which the Charter of Human Rights applies.

MichelleBennett22 February 2011Child Rights, Aboriginal & Torres Strait Islander Peoples' Rights

Right to Equality and Anti-Discrimination Exemptions: Special Measures to Reduce Disadvantage

Department of Human Services & Department of Health (Anti-Discrimination Exemption) [2010] VCAT 1116 (29 June 2010)

In this decision, McKenzie DP granted an exemption on the basis that it constitutes an appropriate special measure to reduce disadvantage caused by discrimination, as permitted by s 8(4) of the Charter.

Right to Equality may Require Special Measures to Address Disadvantage

R v Kapp, 2008 SCC 41 (27 June 2008)

In a significant recent decision, the Supreme Court of Canada held that proactive schemes which seek to ameliorate the conditions of disadvantaged groups do not contravene the guarantee of equality in the Canadian Charter of Rights and Freedoms. In doing so, the Court re-emphasised the Canadian Charter’s concern with substantive equality.

UN Human Rights Committee Rules that Australian Prison Conditions Violate Human Rights of Indigenous Prisoner

Brough v Australia, HRC, Communication No 1184/2003 (17 March 2006)

In March this year, the UN Human Rights Committee (‘HRC’) published a landmark finding concerning alleged breaches of articles 2(3) (right to an effective remedy), 7 (right to freedom from cruel, inhuman or degrading treatment or punishment), 10 (rights of persons deprived of their liberty) and 24 (right to adequate protection for children) of the International Covenant on Civil and Political Rights (‘ICCPR’) in a New South Wales prison.

Human Rights Case Summaries

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21

Thoms v Commonwealth of Australia [2022] HCA 20

COR 2017/3012, Findings, Coroner Olle, 20 September 2021

Mark Rowson v Department of Justice, Corrections Victoria and the State of Victoria [2020] VSC 236

Inquest into the death of Tanya Louise Day (COR 2017/6424), Findings, Coroner English, 9 April 2020

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3

Various Applicants from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7

Young & Conway v Chief Executive Officer, Housing [2020] NTSC 59

Wall v Fairfax New Zealand Limited [2018] NZHC 104

Gibson v State of WA [2017] WASCA 141 (28 July 2017)

Wotton v State of Queensland (No 5) [2016] FCA 1457 (5 December 2016)

Sentence T-766 of 2015 (Constitutional Court of Columbia)

First Nations Child and Family Caring Society of Canada et al. v Attorney General of Canada [2016] CHRT 2 (26 January 2016)

North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41 (11 November 2015)

Stewart & Ors v Wreck Bay Aboriginal Community Council & Ors [2014] ACTSC 334 (18 December 2014)

Western Australia v Brown [2014] HCA 8 (12 March 2014)

Beattie v Aboriginal Affairs and Northern Development Canada [2014] CHRT 1 (10 January 2014)

Brough v Australia, HRC, Communication No 1184/2003 (17 March 2006)

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