This Digest is prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments.
This Digest was available from 4 November 1996.
Hindmarsh Island Bridge Bill 1996
Date Introduced: 17 October 1996
House: House of Representatives
Portfolio: Minister for Aboriginal and Torres
Strait Islander Affairs
Commencement: On Royal Assent
To prevent a declaration being made under the Aboriginal and
Torres Strait Heritage Protection Act 1984 in relation to the
Hindmarsh Island Bridge site.
Aboriginal and Torres Strait Island Heritage Protection Act
The aim of the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984 is to protect areas and objects
that are of particular significance to Aboriginal and Torres Strait
Islander people. It was described in 1984 as 'beneficial
legislation, remedying social disadvantage of Aboriginals and
Islanders, and of having the effect, by preserving and protecting
an ancient culture from destructive processes and of enriching the
heritage of all Australians ...(1).'
The Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 enables the Minister to make a declaration
protecting Aboriginal sites or objects from desecration or threat
of injury. Two types of declarations are provided for in relation
to Aboriginal sites. The Minister may make an emergency declaration
under section 9 which has effect for 30 days and which can be
renewed for a further 30 days. A 'permanent' declaration may be
made by the Minister under section 10 of the Act but only after
certain statutory requirements are followed.
Under section 10 of the Act when an application for permanent
preservation or protection of an area is received, the
- obtains a report from a person nominated by him or her;
- considers that report and any representations attached to the
- considers any other relevant matters.
If the Minister is then satisfied that:
- the area is a significant Aboriginal area; and
- it is under threat of injury or desecration
then the Minister may make a declaration in respect of that
The Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 provides that section 9 and section 10
declarations are reviewable by Parliament under certain provisions
of the Acts Interpretation Act 1901 (Cwlth).(2) The effect
of this is that declarations must be placed before both Houses of
Parliament. The Senate and the House of Representatives then have a
certain time in which to move a motion of disallowance. If either
House passes a motion of disallowance, then the declaration has no
effect. In addition, subsections 13(5) and 6 enable the Minister to
revoke or vary declarations.
The Hindmarsh Island Bridge
What appears below is a brief description of some of the events
in the Hindmarsh Island Bridge saga. Detailed chronologies appear
in both the Saunders' and Mathews' Reports (see below).
Hindmarsh (Kumarangk) Island is situated near the mouth of the
Murray River in South Australia, across from the township of Goolwa
on the mainland. There is evidence that the Ngarrindjeri people
occupied the area for tens of thousands of years before white
settlement. Some time after white settlement, Aboriginal people
moved away or were forced to move from the island. Today, there are
few Aboriginal people on Hindmarsh Island although they do live in
nearby areas such as Point McLeay, Murray Bridge and Meningie.
In 1980, an application was made by Binalong Pty Ltd (3)for
approval to build a marina on the island. In 1982, Stage 1 of the
marina development was approved by the State Planning Commission.
Digging of the marina basin began in 1984. In the years that
followed, problems arose with ferry access due to an increase in
visitor numbers to Hindmarsh Island and the possibility of a bridge
appears to have been raised in 1987.
In 1988, Binalong Pty Ltd sought approval for further stages in
the development of the marina. By 1989, the total development
proposed encompassed a bridge to Hindmarsh Island, marina
extensions and the subdivision of land for private housing.
In the period 1988 to 1990, archaeological and anthropological
surveys were conducted in relation to areas likely to be affected
by Binalong's development proposals. These surveys identified a
number of sites including burial and camp sites and recommended
consultation between the developers and relevant Aboriginal bodies.
In 1989 a draft Environmental Impact Statement (EIS) was released
for public comment and a supplement to the draft was released in
1990. The EIS and supplement were assessed by the Major Projects
and Assessment Branch of the South Australian Department of
Environment and Planning (DEP). The DEP's report was released in
May 1990 and recommended Cabinet approval of the project on
conditions that included consultation by Binalong Pty Ltd with
relevant Aboriginal bodies and notification and consultation with
those bodies if skeletal material was found during survey or
development of the site.(4)
In 1990, the South Australian Cabinet approved the development
proposed by Binalong Pty Ltd, including the construction of a
bridge. This approval also confirmed that, as a result of financial
difficulties being experienced by Binalong Pty Ltd, the South
Australian Government would pay Binalong Pty Ltd half the total
construction costs of the bridge or $3 million - whichever was the
Construction of the marina basin and extensions to Stage 1
commenced in 1991.
Organised opposition to the Hindmarsh Island Bridge proposals
seems to have emerged about 1993 and appears to have involved a
group of resident property owners on the Island and at Goolwa. In
March 1993, a deed of agreement was entered into between the South
Australian Government, Binalong Pty Ltd and the Port Elliott and
Goolwa Council. Under this deed, the State Government formalised
its agreement to assume responsibility for financing the bridge.(5)
Work on the bridge commenced in October 1993 but was later
suspended due to protest action.
In December 1993, the Aboriginal Legal Rights Movement asked the
South Australian Minister for Aboriginal Affairs and the then
Commonwealth Minister for Aboriginal and Torres Strait Islander
Affairs, Robert Tickner, to halt the construction of the
There was a change of Government in South Australia as a result
of a State election held in December 1993. In March 1994, the new
South Australian Government which had previously opposed
construction of the bridge announced that after conducting a review
it had decided that the bridge would be built. The South Australian
Government had obtained a report from Mr Samuel Jacobs QC on the
bridge proposal, its financial consequences for the State and the
'options open to the Government for the resolution of the present
impasse in the broad interests of the people of South Australia and
the financial implications of such options.'(7)
In about March or April 1994, the issue of 'secret women's
business' emerged in relation to Hindmarsh and Mundoo Islands and
the mouth of the Murray River in general.(8)
Protest action led by the Friends of Goolwa and Kumarangk and
the Construction, Forestry, Mining and Energy Union led in April
1994 to the Federal Court granting an injunction preventing the
protesters from hindering the construction of the bridge. In May
1994, there were five arrests when protesters and police clashed at
the Goolwa construction site. On 11 May 1994, construction of the
On 12 May 1994, Minister Tickner issued an emergency declaration
protecting the site for 30 days under section 9 of the
Aboriginal and Torres Strait Islander Heritage Protection Act
1984. At the same time, the Minister announced that he would
commission a report under section 10 of the Act in order to
determine whether a permanent heritage protection declaration
should be made.
The Saunders' Report
On 23 May 1994, Minister Tickner appointed Professor Cheryl
Saunders(9) to prepare a report into the matters listed in section
10(4) of the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984.
Professor Saunders considered over 400 written submissions and
also visited South Australia and spoke with Ngarrindjeri women and
other interested persons. Among other things, Professor Saunders
- the Ngarrindjeri women regarded the mouth of the Murray River,
Hindmarsh and Mundoo Islands and the surrounding waters as 'crucial
for the reproduction of the Ngarrindjeri people and their continued
- the area contained areas of archaeological and anthropological
significance. Professor Saunders' report referred to evidence of an
Aboriginal presence in the area 'unusual because of its size,
semi-permanent nature and, perhaps, ... the purposes for which it
was used.'(11) The report also mentioned ancestral remains in the
area and the extreme anxiety likely to be experienced by
Ngarrindjeri people if these were disturbed. The report noted,
however, that the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984 appears not to have been used
previously to protect areas 'of largely archaeological
- it would be open to the Minister to find that the area was
under threat of injury or desecration from the construction of the
Due to the secret nature of the 'women's business' that had been
imparted by Ngarrindjeri women, Professor Saunders' report did not
contain a detailed account of the 'women's business.' However, an
account prepared by the anthropologist, Dr Deane Fergie, was
contained in a confidential attachment to the report. Professor
This attachment is confidential
and should be read by women only
. Even without it, however, it
is in my view open to the Minister to conclude that the area has
particular significance for Aboriginal people within the meaning of
the Act.(13) </ ul>
The permanent heritage protection declaration
Professor Saunders' report was provided to Minister Tickner on 8
July 1994. On 9 July 1994, Minister Tickner issued a declaration
for a period of 25 years under section 10 of the Act. Mr Tickner
said that representations and Professor Saunders' report had
convinced him that the area was a particular significance to the
Ngarrindjeri people and that it was under threat of injury or
desecration from the construction of the bridge. The declaration
prohibited bulldozing, grading, drilling, excavating or any act
done for the purpose of constructing a bridge in any part of the
area, except with the Commonwealth Minister's consent.
Both Professor Saunders' report and the Minister emphasised the
significance of 'secret women's business' in relation to the
Judicial review of the heritage protection declaration
On 22 July 1994, Tom and Wendy Chapman and their son, Andrew
Chapman, sought a review under the Administrative Decisions
(Judicial Review) Act 1977 (Cwlth) of Minister Tickner's
decision to make a section 10 declaration.
On 15 February 1995, O'Loughlin J, sitting in the Federal Court
overturned the Minister's section 10 declaration. His Honour found
that two errors of law had been made by the Minister:
- procedural fairness had been denied because of defects in the
advertising of the application for a section 10 declaration.
Because of these defect, the Court held that the Minister had
lacked jurisdiction to make the declaration;
- the Minister had failed to 'consider' the representations
attached to the Saunders' report, as required by paragraph 10(1)(d)
of the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984. In particular, O'Loughlin J held that the
Minister had erred by relying so heavily on the issue of 'secret
women's business' but denying himself access to envelopes appended
to Professor Saunders' report which contained details of the
'secret women's business'.
The Minister appealed this decision to the Full Court of the
The Hindmarsh Island Royal Commission
In May 1995, the South Australian media carried reports that the
'secret women's business' had been fabricated. Five Ngarrindjeri
women reportedly said that they did not believe in or had never
heard of the 'secret women's business' until it had been raised by
Doreen Kartinyeri.(14) In June 1995 there were further allegations
that two prominent members of the Ngarrindjeri community - Doug and
Sarah Milera - had confirmed the allegations of fabrication.
In response, the South Australian Government established a Royal
Commission on 16 June 1995. A former South Australian District
Court judge, Mrs Iris Stevens, was appointed as Royal Commissioner.
In brief, the Royal Commissioner was appointed to inquire into and
report on whether any aspect of the 'women's business' was a
fabrication and, if so, how the fabrication occurred, its extent
Controversy plagued the work of the Royal Commission. The
'proponent women' refused to give evidence to the Commission;
'dissident' Ngarrindjeri women claimed threats and intimidation;
Ngarrindjeri elder, Doug Milera reportedly withdrew his allegations
that the 'secret women's business' had been fabricated; amateur
historian, Betty Fisher, told the Commission she had first been
told of the 'secret women's business' in 1960; and white male
anthropologists from the South Australian Museum disputed the
existence of the 'secret women's business'.
The Royal Commission's report was published in December 1995.
Its major findings were:
- the '... 'women's business' emerged in response to a need of
the anti-bridge lobby to provide something of sufficient cultural
significance to warrant the making of a declaration by the Federal
- the 'women's business' was unknown to the twelve dissident
Ngarrindjeri women who gave evidence before the Commission and who
were described by the Royal Commissioner as 'credible
- looking at 'the whole of the evidence, including the history of
events, the anthropological evidence and the evidence of the
dissident women, ... the whole claim of the "women's business" from
its inception was a fabrication;'(18)
- the purpose of the fabrication was obtain a declaration
prohibiting the construction of the Hindmarsh Island Bridge under
the Commonwealth's Aboriginal and Torres Strait Islander
Heritage Protection Act 1984.
The Hindmarsh Island Royal Commission report could be taken into
account by the Minister for Aboriginal and Torres Strait Islander
Affairs in considering a relevant application for a declaration
under the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984. However, it could not substitute for the
commissioning of a report under the Act or for the exercise of the
Minister's discretion in relation to the making of a
The Minister's appeal against the decision in Chapman v.
Minister Tickner appealed the decision in Chapman v.
Tickner. On 7 December 1995, the Full Court of the Federal
Court unanimously dismissed the appeal. It concluded that there
were fatal flaws in the section 10 process. These were that:
- the notice of the application for a section 10 published in the
Commonwealth Gazette and the Adelaide Advertiser
declaration was deficient;
- the Minister had failed to consider personally the
representations attached to Professor Saunders' report despite
being obliged to do so under the Act. Consideration of the
representations was a precondition of the Minister exercising his
power under section 10.
The Full Court emphasised that it was not making a finding in
relation to the merits of the application for the section 10
declaration. What it was concerned about were the procedures used
by Minister Tickner in reaching his decision.(19)
A new inquiry under the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984
On 22 December 1995, Minister Tickner announced that the Prime
Minister had appointed Senator Rosemary Crowley to assess the most
recent application for heritage protection lodged by the
Ngarrindjeri people. This application was lodged in December
On 16 January 1996, Senator Crowley nominated Judge Jane Mathews
to prepare a report on the heritage protection application lodged
on 19 December 1995. Senator Crowley said that the application
related to matters including burial sites, middens and cultural
beliefs and that the application had requested that a female
Minister deal with the application.(20)
Following the General Election in March 1996, Senator John
Herron became Minister for Aboriginal and Torres Strait Islander
Affairs in the new Coalition Government.
Some confidential material was made available to Judge Mathews
by the Ngarrindjeri women who support the existence of 'secret
women's business' but was withdrawn by them when Judge Mathews
advised that she could no longer honour the condition of
confidentiality upon which she had accepted the material.(21)
The challenge to the appointment of Judge Mathews
The appointment of Judge Jane Mathews(22) as reporter under the
Aboriginal and Torres Strait Islander Heritage Protection Act
1984 was challenged in the High Court of Australia. The
plaintiffs in the case sought a declaration that her appointment
was incompatible with her position as a Judge of the Federal Court
of Australia. In other words, the plaintiffs alleged that the
appointment breached the constitutional doctrine of the separation
On 6 September 1996 the High Court handed down its decision in
Wilson v. Minister for Aboriginal and Torres Strait Islander
Affairs. By a majority of 6:1, the High Court held that the
Minister could not properly nominate Judge Mathews to be a reporter
under the Act and that Judge Mathews was unable to accept the
The Mathews Report
Judge Mathews report, dated 27 June 1996, was tabled in
Parliament on 17 September 1996. Her Honour stated that the
applicant women had not been prepared to reveal the content of
restricted women's knowledge because a female Minister had not been
appointed to consider the matter and for other reasons.(24) Judge
Mathews' report continued:
In the absence of restricted women's
knowledge, other issues assumed much greater significance under the
application than had initially been anticipated. In particular, the
applicants relied strongly on the fact that the Hindmarsh
Island/Goolwa area was once an important Ngarrindjeri living,
trading and ceremonial centre, with many remaining archaeological
signs of its early days. The applicants have claimed that there are
significant archaeological sites in the area, including burials,
which would be desecrated by the building of a bridge to Hindmarsh
Island. They have also relied upon the significance of the waters
surrounding Hindmarsh Island. In particular, they have identified
three traditions from which these waters are said to derive their
significance. One relates to "the Meeting of the Waters", one
derives from a story about the "Mulyewongk", and one is associated
with the "Seven Sisters Dreaming Story." The construction of the
bridge, they said, would adversely affect the channel between
Goolwa and Hindmarsh Island which is significant in accordance with
these traditions. ...
... I have concluded that they [these matters] may well make the
area a "significant Aboriginal area", there is insufficient
material from which the Minister could be satisfied that the
building of the Hindmarsh Island Bridge would desecrate this area
according to these traditions.(25) </ ul>
Judge Mathews also said:
... the Minister is not obliged to
accept the recommendations contained in this Report. Nor is the
information upon which he makes his decision necessarily restricted
to the contents of the report and its accompanying documentation.
He can rely on any other matters which he regards as relevant. It
thus remains open to the Minister to make a declaration in this
matter, notwithstanding the recommendations in this Report.(26)
As a result of the High Court's decision in Wilson v.
Minister for Aboriginal and Torres Strait Islander Affairs,
the Mathews Report cannot be used to decide a heritage protection
Clause 4(1) of the Hindmarsh Island Bridge Bill
1996 provides that the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984 does not enable declaration to be
made preserving or protecting an area or object from bridge
construction and other specified activities in the 'Hindmarsh
Island bridge area' or 'pit area.'
Clause 4(2) of the Bill provides that the
Minister cannot take action under the Aboriginal and Torres
Strait Islander Heritage Protection Act 1984 in relation to an
application (whether made before or after the commencement of the
Hindmarsh Island Bridge Act 1996) that relates to an
activity covered by clause 4(1)(a),(b),(c),(d) or
Item 1 of Schedule 1 of the Bill defines the
'Hindmarsh Island bridge area.'
Item 2 of Schedule 1 of the Bill defines the
Is the Hindmarsh Island Bridge Bill 1996 consistent with the
Racial Discrimination Act 1975 (Cwlth)?
The Racial Discrimination Act 1975 (RDA) implements
Australia's obligations under the International Covenant on the
Elimination of All Forms of Racial Discrimination (CERD). 'Racial
discrimination' is defined in CERD as any distinction, exclusion,
restriction or preference based on race, colour, descent, national
or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise on an equal
footing of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life.
Part II of the RDA prohibits racial discrimination. Section 8(1)
of the RDA provides that 'This Part does not apply to, or in
relation to the application of special measures to which paragraph
4 of article 1 of the Convention applies.' On one view, the RDA
requires equal (that is, identical) treatment of racial and ethnic
groups.(28) As a result it could be said that the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 is in
the nature of a 'special measure.' On this argument, the Hindmarsh
Island Bridge Bill 1996, which removes 'special measures'
protection in relation to the Hindmarsh Island bridge area cannot
be discriminatory and can be enacted without offending the
principles underlying the Racial Discrimination Act
It might also be argued that the Aboriginal and Torres
Strait Islander Heritage Protection Act 1984 is not so much a
'special measure' but a instrument providing substantive equality
for indigenous people.(29) On this basis, it might be argued that
removing the application of the Act to the Hindmarsh Island Bridge
area constitutes a failure to provide substantive equality and is
thus inconsistent with the Racial Discrimination Act
What is the result if the Hindmarsh Island Bridge Bill 1996 is
inconsistent with the Racial Discrimination Act 1975?
The general view is that the Commonwealth Parliament is a
sovereign Parliament and thus may enact later legislation which
derogates from or repeals an earlier statute.
There have been some suggestions that the Hindmarsh Island
Bridge Bill 1996 could have a retrospective effect. The Bill is
worded to act prospectively. In other words, it can be argued that
the Bill does not retrospectively affect any application that has
already been made under the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984, it only affects what
action the Minister can take in the future in relation to such an
application. In any event, even if the Bill had a retrospective
effect, there appears to be no bar on the Commonwealth making
- Tickner v. Bropho (1993) 114 ALR 409 at 419 per Black
CJ. His Honour was referring to the legislation's Second Reading
- Section 15.
- Tom and Wendy Chapman, and Ruth Galle Chapman are the
shareholders in Binalong Pty Ltd.
- Mathews, op.cit, pp.101-102.
- Professor Cheryl Saunders' report estimated that, on publicly
available information, damages payable by the South Australian
Government could amount to at least $12.5 million if the bridge is
not built and Binalong Pty Ltd successfully sues for breach of
contract. Professor Saunders' report also raised the issue of the
effect on the State's liability if there is a heritage protection
declaration under section 10 of the Aboriginal and Torres
Strait Islander Heritage Protection Act 1984.
- The application made to the South Australian Minister was made
under the Aboriginal Heritage Act 1988 (SA). The
application to the Commonwealth Minister was made under the
Aboriginal and Torres Strait Islander Heritage Protection Act
- Quoted in Stevens, IE Report of the Hindmarsh Island Bridge
Royal Commission, December 1995, pp.98-9.
- The late emergence of the 'secret women's business' was
commented on both in Professor Saunders' report and in the South
Australian Royal Commission Report. On the one hand, it can be
argued that the Ngarrindjeri women were not involved in the bridge
consultation process until late in the day; that they were
reluctant to speak about secret matters; that the secret knowledge
was restricted to a small number of Ngarrindjeri women and that the
dispersal of the Ngarrindjeri people after white settlement meant
that those senior women were scattered around South Australia and
some were unaware of the bridge proposal for some time. On the
other hand, it was argued that the developers consulted extensively
with Aboriginal people without these concerns being raised and that
the issue of 'secret women's business' was a fabrication concocted
at the instigation of white conservationists and unionists who were
opposed to the construction of the bridge.
- Professor Saunders is Professor of Law at the University of
Melbourne and Director of the Centre for Comparative Constitutional
Studies, and Deputy Chair of the Constitutional Centenary
- Saunders, op.cit, p.28.
- Ibid, p.34.
- Ibid, p.35.
- Dr Kartinyeri is a Ngarrindjeri elder who has worked in the
Aboriginal Family History Unit at the South Australian Museum.
- Stevens, op.cit, p.3.
- Ibid, p.297.
- Ibid, p.298.
- See Federal Court of Australia, Hindmarsh Island (Kumarangk)
Bridge Litigation: Federal Court Appeal, Explanatory
Statement, Adelaide, 7 December 1995.
- Press Release (Minister for Family Services), Hindmarsh Island,
16 January 1996.
- Mathews, J Commonwealth Hindmarsh Island Report, 27
June 1996, pp.44-45. Judge Mathews advice to the proponent women
came after the Full Court of the Federal Court delivered its
judgment in Minister for Aboriginal and Torres Strait Islander
Affairs v. Western Australia, 28 May 1996.
- Judge Jane Mathews is a Judge of the Federal Court of
Australia, President of the Administrative Appeals Tribunal and
Deputy President of the National Native Title Tribunal.
- Wilson v. Minister for Aboriginal and Torres Strait
Islander Affairs, High Court of Australia, unreported, 6
- See Mathews, op.cit, p.2 and Chapter 4.
- Ibid, pp.2-3.
- Ibid, p.4.
- See Second Reading Speech, Hindmarsh Island Bridge Bill 1996,
House of Representatives, 17 October 1996, p.5527.
- For example, see Gerhardy v. Brown (1985) 159 CLR
- Western Australia v. Commonwealth (1995) 128 ALR 1
indicates that a view may be emerging from the High Court that a
law can make racial distinctions but not be racially
Jennifer Norberry Ph. 06 277 2476
31 October 1996
Bills Digest Service
Parliamentary Research Service
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
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© Commonwealth of Australia 1996
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