In February 2009 the Arts Law Centre of Australia approached Freehills to provide legal advice, on a pro bono basis, concerning the application of certain provisions of Aboriginal Affairs Planning Authority Act 1972 (WA) (Act) to Indigenous persons.
By way of background:
- the Act governs the distribution of the estate of an Aboriginal person who dies without a valid will;
- the Act provides that the deceased’s property vests immediately in the Public Trustee under and subject to the provisions of the Public Trustee Act 1941 (WA); and
- such a scheme is inconsistent with the Racial Discrimination Act 1975 (Cth), as it discriminates against Aboriginal person because of the automatic vesting of an estate in the Public Trustee may deny the right of families to administer the estate of a deceased Aboriginal relative.
The discriminatory operation of the Act was referred to by the Western Australian Law Reform Commission (WALRC) in its final report on Aboriginal Customary Law (Project 94, 2006) (see pages 233-242).
Despite the WALRC’s recommendations and support for legislative change amongst members of the government of the day, the law remain unchanged at the time of our involvement in 2009.
In the circumstances, Freehills wrote to the Western Australian Attorney-General, the Honourable Christian Porter MLA:
- advising him that a potential test case that may be brought in relation to the validity of s.35 of the Act; and
- enquiring whether the Western Australian government would be minded to procure the necessary legislative change to avoid the need to bring a test case.
The Attorney-General referred the letter to the Honourable Kim Hames MLA, the Deputy Premier, Minister for Indigenous Affairs and undertook to reply as soon as possible to inform of the Western Australian State Government’s position on the proposed legislative change to the Act.
Following some further correspondence in relation to the issues raised in the original letter, in November 2009 the Attorney-General and the Deputy Premier advised that they strongly supported our and Arts Law’s contention that the intestacy provisions of the Act require legislative amendment. In that regard, as the Act is within Dr Hames’ portfolio responsibility, he advised of his instructions to his Department to liaise with the State Solicitor’s Office and Attorney-General’s office in relation to the review of the Act and drafting of the necessary amendments.
The positive response of the Deputy Premier and Attorney-General suggests that there will be a positive outcome for the Arts Law Centre and their clients in relation to this matter. Further, the timely and supportive response of the relevant government Ministers, is a perfect example of why engaging with government in relation to such issues should be considered before embarking on a “test case” scenario.
Ante Golem is a solicitor at Freehills