Free Speech and the Hindmarsh Island Bridge Bill

Extract from Hansard

Legislative Council
16 November 1999

Sandra Kanck
Deputy Leader Australian Democrats
Member of the Legislative Council

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The Hon. SANDRA KANCK: The Democrats' opposition to the construction of the Hindmarsh Island bridge is well known. It is longstanding and consistent: unlike some of our political opponents we have not tacked in the winds of public opinion searching for an electoral advantage. The principles of reconciliation and environmental sustainability have informed our stance on this issue from the beginning. The Bannon government's decision to guarantee the building of a bridge to Hindmarsh Island (known to the Ngarrindjeri people as Kumarangk) has proved an expensive folly. To date, $20 million of taxpayers' money has been wasted on this divisive proposal of dubious economic value.

This Bill has the effect of enshrining the 1993 tripartite agreement between the then Minister of Transport Development, the district council of Port Elliot and Goolwa and Binalong Pty Limited to construct a bridge between Goolwa and Hindmarsh Island. It imposes a financial liability on owners of allotments that have been subdivided or created since 28 September 1993, thereby returning a modest sum to the South Australian Treasury.

An application by Binalong Pty Ltd in 1980 to the Department of Housing and Urban Affairs for the development of a boating and recreational complex on Hindmarsh Island marks the beginning of the chain of events that leads us here today. Approval for stage 1 was granted on 21 December 1982 and the first boats were arriving by April 1985. By 1988 plans were afoot to extend the marina and suggestions of a bridge had been floated in the local press.

In October 1991 the Bannon government announced that the bridge would be built. I can remember sitting back and watching it on TV that night, wondering what on earth had got into John Bannon's head. In July 1993 Binalong was advised by the Office of Planning and Urban Development that any extension of the marina was conditional on the building of a bridge providing access between Goolwa and Hindmarsh Island. By this time, local opposition to the bridge had already emerged with the Friends of Hindmarsh Island, which later became the Friends of Goolwa and Kumarangk. Aboriginal opposition to the bridge publicly manifested itself as a protest on 8 October 1993. On Saturday 11 December 1993, the Arnold Labor government was decimated at the so-called `State Bank' election. On 23 December 1993 the Aboriginal Legal Rights Movement simultaneously applied to the state Minister for Aboriginal Affairs for a direction prohibiting the construction of the bridge under the Aboriginal Heritage Act 1988 and to the federal Minister for Aboriginal Affairs for a similar direction under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

The newly elected Brown government, which had opposed the construction of the bridge when in opposition, appointed Samuel Jacobs QC to assess the government's legal obligations regarding the construction of the bridge. Jacobs concluded that the government was legally obligated to build the bridge. This set the state government on a collision course with opponents of the bridge and eventually the federal government. On 3 May 1994 the Minister for Aboriginal Affairs at that time, the Hon. Michael Armitage, announced a disgraceful decision-that he was using section 23 of the Aboriginal Heritage Act to authorise the damage or destruction of Aboriginal sites in the course of the construction of that bridge. My colleague the Hon. Mike Elliott, in an earlier time having the position of the Democrats' spokesman on Aboriginal affairs, had ensured that a provision was included in the Aboriginal Heritage Act, but he assures me that this provision in section 23 that the Minister for Aboriginal Affairs used then was certainly not what was envisaged at the time.

In response to the application from the Aboriginal Legal Rights Movement, the federal Minister for Aboriginal and Torres Strait Islander Affairs, the Hon. Robert Tickner, appointed Professor Cheryl Saunders to investigate Aboriginal heritage considerations relating to the construction of the bridge. Professor Saunders identified the existence of significant spiritual and cultural matters in relation to Hindmarsh and Mundoo Islands, the waters of the Goolwa channel, Lake Alexandrina and the Murray mouth. In particular, she found within the Ngarrindjeri the traditional belief that the area is crucial for the reproduction of the Ngarrindjeri people and the cosmos which supports their existence. This tradition of women's business became known in a derogatory way as `secret women's business'. It was secret to the extent that all Aboriginal people in Australia have men's and women's business, and women do not partake of the ceremonies around the men's business and vice versa.

On 10 July 1994, Robert Tickner acted upon the Saunders report and banned the construction of the bridge for 25 years. It should be put on the record that the Saunders report remains the only inquiry to have complete access to the information relating to women's business. All subsequent investigations have been denied the opportunity to properly assess the belief. The federal ban on the construction of the bridge was later overturned in the federal court on the basis that the minister failed personally to read the evidence relating to women's business. The minister's culturally responsible decision to have a female member of staff read and relay the findings to him conflicted with his legal duty under the act to personally consider all representations. I was at a meeting recently at Goolwa and at that meeting the member for Finniss, the Hon. Dean Brown, proclaimed the fact that back in 1993 he was an opponent of the building of the bridge, yet when I go back and look in the Hansard record at his various remarks as Premier, I see in fact a member, a minister and a Premier who was antagonistic to the concerns of the Aboriginal people.

At any rate, in response to media reports of a drunken man claiming that women's business was fabricated, on 19 July 1995 the South Australian royal commission set up by the Hon. Dean Brown began hearing evidence. That royal commission was conducted by retired Supreme Court judge Iris Stevens, who found that women's business had been fabricated to obtain a declaration under the federal act to prevent construction of the bridge. But the commissioner based her findings almost exclusively on evidence from a small minority of Ngarrindjeri women and a number of male academics. Most Ngarrindjeri people viewed the royal commission as an inquisition into their spiritual beliefs and almost all Ngarrindjeri people chose not to give evidence. They decided to wait for a second federal inquiry, where they anticipated a fairer hearing. The report of the royal commission shows itself to be appallingly inaccurate. It assigns roles to people that they never had, it asserts that conversations took place that never occurred, and it even gets the genealogy of the Ngarrindjeri people wrong.

The second federal inquiry was commissioned by the Keating federal Labor government, which appointed Justice Jane Matthews to conduct it. The fall of the Keating government saw the appointment of John Herron as the federal Minister for Aboriginal Affairs, and Herron fatally compromised the findings of the second report by failing to appoint a female minister to read the final report. As a result, the evidence of women's business was again not considered, rendering the exercise, like the royal commission, redundant. As it transpired, Justice Matthews' inquiry could not be used by John Herron, due to a breach of the doctrine of the separation of powers. Despite being hamstrung, Justice Matthews conducted a revealing inquiry and made a number of telling observations that cast serious doubts on the findings of the royal commission. The royal commissioner concluded:

. . . the Seven Sisters Dreaming Story was never part of the Dreaming of Ngarrindjeri people. It was part of western desert mythology and is likely to have been introduced by Doreen Kartinyeri.

But she failed to explain why the Seven Sisters Dreaming, which is common to Aboriginal women of all tribal groupings across the country, is isolated from the knowledge of just one small group in Australia. Justice Matthews found:

There is considerable material, much of it unearthed for the purpose of this report, which directly refutes the royal commissioner's findings on this matter. References to the Seven Sisters Dreaming Story in Ngarrindjeri culture can be found in several sources, some of which go back a long time.

There are undoubtedly gaps in what is known of the Seven Sisters Dreaming Story and the sacredness of the waters of the Goolwa channel. But I nevertheless think that Betty Fisher's version of the story reveals enough to enable the connection to be made between the story and the significance of the area.

While the evidence of Betty Fisher was dismissed out of hand by the royal commissioner, Justice Matthews found that some of the paper on which Betty Fisher wrote her notes relating to the issue of women's business was around 30 years old, thus bolstering the validity of her evidence. The royal commission's finding that women's business is a recent fabrication is unsustainable in the light of that evidence.

I also want to take issue with a number of other points stressed by the royal commissioner. She made much of subjecting the few known facts concerning women's business to a rigorous logical examination. This is an intolerant and I would suggest racist path to tread. It is the belief in the Virgin Mary's immaculate conception that is sacred, not its logical proof. Furthermore, the commissioner's own logic is found wanting. She stressed that the late public appearance of women's business was evidence of its fabrication. Yet she failed to explain why people who allegedly had no interest in the matter would suddenly, belatedly, concoct a story to prevent the construction of the bridge.

Aside from the Saunders report, the Ngarrindjeri women have not had a fair hearing; nor have many others. There has been a series of legal manoeuvres to prevent the open and thorough discussion of beliefs and concerns throughout the saga.

The marina developers-Tom, Wendy and Andrew Chapman-have launched a raft of defamation actions against people involved in the anti-bridge campaign.

The Hon. SANDRA KANCK: It includes the Australian Democrats, most certainly.

-and I have already acknowledged to the Hon. Terry Cameron that the Democrats are amongst those-are also Dean Whittaker, Margaret Allen, Neil Draper who, to my delight, recently had the award against him overturned, former Democrats Senator John Coulter, the Conservation Council of South Australia, the Friends of Goolwa and Kumarangk, the Kumarangk Coalition, Gregory and Chris Lundstrom, Margaret Bolster, David Shearman, Richard Owen and numerous media organisations. I understand that at one stage even our transport minister was subject to legal action by the Chapmans, but I do not know what the position of that is.

The Hon. SANDRA KANCK: Yes. I wonder whether they are after that. It is very hard to retain mateship under some of those circumstances.

The Hon. SANDRA KANCK: In August 1997, the Kumarangk Coalition organised a forum on understanding defamation law and invited four Adelaide lawyers to offer their perspective on the role of the law in matters of protest and free speech. While most of the audience was made up of people opposed to the construction of the bridge, at least one person there had a contrary view, and this person took particular offence to the contribution of Mark Parnell, a Flinders University law lecturer, long-time conservation campaigner and part-time solicitor with the Environmental Defenders Office.

Two complaints were lodged against Mark Parnell as a consequence of his contribution to that conference. The first was with the Commonwealth Attorney-General, who provided some of the EDO's funding, and secondly with the South Australian Legal Practitioners Conduct Board. The first complaint related to an alleged breach of the restriction on EDOs using commonwealth funds for litigation-related activity. The second complaint identified the heinous crime of `inciting known troublemakers to break the law', and advising protest organisers to encourage large crowds at demonstrations. Both complaints were dismissed as being without foundation, but they provide another example of attempts to silence critics of this bridge.

I refer to a letter that was written to me in response to the government's announcement that it was going to meet some of the legal costs of the Chapmans. The letter states:

A small printing business here is suffering costly litigation at the hands of the Chapmans because it entered a normal commercial undertaking to print a community explanation leaflet for a heritage and environmentally concerned organisation in response to an unsigned, unauthorised racist leaflet previously distributed. Will their legal expenses be paid by the government? How many other developers anywhere in this state could expect such privileges?

The Goolwa District Ratepayers and Residents Association held a public meeting a fortnight ago, and at that meeting there were representatives from Transport SA and Built Environs, who are constructing the bridge. A question was asked about whether there would be disruptions to the ferry service during construction. The answer given was that the builders were getting around that problem by including a curve in the bridge. That sounds as if they have answered the problem, but there was also a later question about wind shear. Anyone who has been down to Goolwa would know that the area very often experiences extremely strong winds. Some of the locals had concerns about the ability of a campervan, for instance, being able to traverse that bridge. The engineers told us that they had taken the wind shear into account in designing the bridge, but I was told afterwards by an engineer-not one of the engineers of this company but an engineer who had a quick look at the plans and who knows a little bit about design-that that curve is there to deal with the wind shear.

I have also been told about a study done at Adelaide University back in 1993 or 1994 that indicated that, for 28 days of the year, the bridge would be closed to traffic because of the danger of the high wind speed on top of that bridge. If that is the truth, when the ferry is removed for roughly one month out of 12 each year, the people who choose to live on that island will find themselves cut off from the mainland.

All members would have received an email from Geoffrey Johnstone about his catamaran and how he has discovered that it will be unable to pass under the bridge. He says in his email that his catamaran has a 16.5 metre mast. I do not know much about boats, but he states that there are at least 30 local residents who will have a similar problem. Today I received in my mail a copy of a letter that the transport minister has sent to this man indicating that the bridge height of 14 metres will stay, so it is just tough luck. I just wonder how much proper planning has gone into this bridge when it has been known for so long that there are boats with this height mast-

The Hon. SANDRA KANCK: I will respond to that interjection, because Mr Johnstone says in his letter that, at the time he purchased the boat, it was his understanding that, even when a bridge was constructed, he would still be able to navigate under it. So he obviously purchased that boat in good faith.

The Hon. SANDRA KANCK: Further to the discussion at the meeting that I attended, the builders of the bridge, in answer to a question, revealed that, in the first 30 metres of drilling into the mud, no bedrock was detected-but they said that they designed the bridge in that knowledge. I suddenly had a picture of a bridge that had no strong footings, with a mast on the top of it to catch the breeze and, when these extraordinarily strong winds blow, the whole bridge sailing out to sea. I guess, if it did, some people would not be particularly sad. In relation to that, one of the Ngarrindjeri elders, Maggie Jacobs, spoke at the meeting and said that, although construction of the bridge might begin, it will never be completed. I hope she is right.

Turning to the bill, I note that the government plans to recoup at least some of the construction costs. At the meeting we were told that a maximum of $4 million would be paid by Hindmarsh Island residents. Given that the government says that it will cost $10 million to construct the bridge-and that is the cost before any predictable blow-outs occur-that means that the rest of the money will be paid by the taxpayers of South Australia. I think that, if the majority of South Australian taxpayers knew that they were up for another $6 million or more, they would be very outraged.

Another question that was asked was, `How much land will need to be subdivided in order for the government to get back that first $4 million?' The representatives from Built Environs, at the public meeting, said that they did not know. I find that an absolutely nonsense response. I would like the Attorney-General to respond to this when he sums up at the end of the second reading stage, because there is a very easy way to calculate it if you put a simple program into the computer. Firstly, you need to know how many allotments have been subdivided since 28 September 1993; then you make assumptions, and you can have a series of different models, about how many people will pay the up front, one-off cost of $4 500 and how many will pay the annual payment of $ 325; and then you will be able to work out your shortfall. It is very simple.

If the government cannot provide that information, I ask the Attorney-General to provide the Council with that information-that is, how many allotments have already been subdivided since 28 September 1993-and I will provide the information back to the parliament about how many subdivisions will be required to recoup the $4 million.

The Hon. SANDRA KANCK: Yes, how many blocks there will need to be. The real fear is that we will have almost a city on Hindmarsh Island. The ratepayers association, in a letter it sent to most MPs, raised issues about the tripartite deed, stating:

The Goolwa District Ratepayers and Residents Association is concerned that the Hindmarsh Island Bridge Bill 1999 is in effect designed to enact by operation of law the tripartite deed which is attached to the bill. The tripartite deed was entered into between the Minister for Transport of the South Australian government, the District Council of Port Elliot and Goolwa (now the Alexandrina council) and Binalong Pty Ltd (now in liquidation) in 1993.

The tripartite deed was agreed to by the parties to enable the building of a bridge to Hindmarsh Island and for the collection of contributions towards the cost of the bridge from newly developed properties. Binalong (now in liquidation) was to provide certain moneys towards payment. Binalong was subsequently placed in receivership.

The deed did not allow for such an event. Our advice is that the deed is now voidable, that is, that the government and council are no longer bound by the deed unless they want to be. The deed did not allow for Binalong to assign or transfer its obligations or benefits under the deed.

The Hon. SANDRA KANCK: At the time Sam Jacobs gave his report, Binalong was not in receivership. It continues:

Our association is of the view that our council is not obliged to proceed should it not wish to. It is our belief that the bill is being introduced in this way as a means of seeing to it that the bridge is built without any further challenges being possible by seeking to have the parliament of South Australia embrace the tripartite deed as though it were enforceable at law.

This we believe would be intolerable and a true example of government by stealth. Should the bill be passed, the rights of the people and community would again be cast to the wind. Our plea therefore to you is to be aware of the true purpose of the bill. If the bill fails in parliament then the tripartite deed itself must be relied upon in its own right, without the statutory authority of a bill of parliament. This then will allow the people to be heard should they not be happy with the deed.

The Democrats are absolutely opposed to the tripartite deed being included in this legislation. It leads me to conclude that the government and the Chapmans must be on very shaky ground: it would not need to be incorporated otherwise.

The Hon. SANDRA KANCK: For exactly the reasons that the Goolwa District Ratepayers and Residents Association states-that the deed that was entered into was entered into with a company that is in liquidation, and that deed did not have any provision for that to occur. The minister's media release of 11 August announcing that the Hindmarsh Island bridge was to go ahead indicates that the bill makes a variation to the tripartite deed. I do not have access to the original tripartite deed, so-

The Hon. SANDRA KANCK: There is a tripartite deed annexed to the bill: absolutely. But the Attorney-General's media release states that the bill also makes variation to the tripartite deed. So I want to know-

The Hon. SANDRA KANCK: I want the Attorney-General to state clearly, when he sums up, what those variations are. I cannot see, just as the Goolwa District Ratepayers and Residents Association cannot see, how any variation can occur, given that Binalong is in liquidation and the council is not in agreement. I turn now to the issue of the Chapmans' costs, which again the Attorney- General referred to in his media release.

The Hon. SANDRA KANCK: The Attorney-General's media release of 11 August states:

The government has agreed to contribute up to $2.37 million for infrastructure work on Hindmarsh Island including roadworks, street lighting, water and sewerage. This work will be carried out by the Chapmans but will be overseen by the government. The government is also paying $22 000 towards the Chapmans' legal costs in relation to litigation connected with the former State Bank subsidiary, Beneficial Finance Corporation.

I am bemused by that. What has Beneficial Finance Corporation to do with any litigation over the building of this bridge? I would like the Attorney-General to explain that to the chamber when he sums up.

Also, the Attorney-General's media release had an attachment-the Hindmarsh Island Bridge Summary of Settlement. As an example, the first point states that `Binalong Pty Ltd, Kebaro Pty Ltd and the Chapmans agree not to make or bring any claim against the state in relation to the failure or delay in constructing the bridge up to the present time.' I would like the Attorney-General to explain what Kebaro is: who are the principals and the shareholders of that company, and why is it involved in this. Similarly, I note that one of the dot points is that:

Beneficial agrees to sell the former home of the Chapmans on Hindmarsh Island, which it is in possession of as mortgagee, to Kebaro.

Again, I would like to know how much this will be sold for and how much of that the government will recoup into its coffers, or is this going to be another gift to the Chapmans?

The Hon. SANDRA KANCK: I have hardly touched on the issue of environment, apart from the issue of subdivisions, but there is great concern about the impact that all these subdivisions ultimately will have on the Ramsar-listed wetlands in that area. If this bridge goes ahead it will destroy the character of Goolwa, and particularly Hindmarsh Island. Many of the residents in that area are very angry about it, and I can assure the Council that the meeting I attended a fortnight ago was a very good exhibition of that anger. Most of the people who were there did not want that bridge built.

The Hon. SANDRA KANCK: The people who have chosen to live down there, the people who have chosen to retire there, have done so because of the quiet and gentle character of that region. They do not want a bridge that is going to bring more and more people into the area, both as tourists and as residents. I express my outrage that the Bannon government ever entered into this, and I express my outrage that the Brown and then the Olsen governments have perpetuated it. The Democrats believe that we would have been better off, back in 1994, cutting our losses and paying the Chapmans out. Unfortunately, I think other agendas predominated and we now are in a position where we have to consider this bill. I indicate that the Democrats will not be supporting it.

Extract from Hansard

Legislative Council
18 November 1999

The Hon. K.T. GRIFFIN (Attorney-General): I thank members for their indications of support for the bill. I refute-

The Hon. K.T. GRIFFIN: Or lack of; I am not quite sure what, sometimes. The Hon. Ron Roberts has made some pleas to the government, suggesting that we are not concerned about the Ngarrindjeri Aboriginal people. Let us face it: who got us into this mess? It was the Labor government in 1989. If we are to start throwing stones, let us throw them at the right target. I will not get into mud slinging and a debate about the sorts of issues the honourable member raised. The response has been on the record for a long period of time.

I will deal with the substantive issues which have been raised by members. The Hon. Sandra Kanck raised a number of questions. The first is: how much land will need to be subdivided in order for the government to get back that first $4 million? The answer is that the current government has not caused any economic analysis to be done. I do not know what economic analysis was done by the previous government. All the bill seeks to do is to give statutory force to the Alexandrina council's contractual liability by shifting the liability directly to the relevant allotment holders.

Any questions as to what might be recouped are better directed to the opposition, as it was the former government that put these arrangements in place. In any event, it is impossible to know how many allotments will be created over the next 20 years. This will depend in part upon decisions the local council may make in relation to land division on Hindmarsh Island. Stage 2 of the marina development will involve the creation of some 205 allotments, and no doubt there will be other development on Hindmarsh Island. It is impossible for me to predict how many allotments will be created, without using a crystal ball.

The Hon. Sandra Kanck asked for detail of the variations to the tripartite deed. These are contained in the bill itself. There are no other changes to the tripartite deed; it is in fact a schedule to the bill. The Hon. Sandra Kanck asked: what has Beneficial Finance Corporation to do with any litigation over the building of this bridge? Beneficial Finance Corporation and the Chapmans were involved in litigation over an unrelated matter. That litigation was related to finance arrangements for a development at Wellington. It was a condition of the Chapmans agreeing to release the government from any liability in relation to the bridge that this litigation was settled and limited legal costs of the Chapmans paid.

The Hon. Sandra Kanck asked: what is Kebaro; who are the principals and the shareholders of that company; and why is it involved in this? Kebaro Pty Ltd is a company of which Tom Chapman is the sole director. I do not have details of who the shareholders are. The relationship with Kebaro and the building of the bridge is that the liquidator of Binalong Pty Ltd assigned certain rights, including Binalong's rights to sue the state government, to Kebaro. It was necessary, therefore, for the government to secure releases from Kebaro.

The Hon. Sandra Kanck asked: how much is the former home of the Chapmans to be sold for and how much of that will the government recoup into its coffers? The former home of the Chapmans was transferred to the Chapmans for the sum of $152 000 by the Beneficial Finance Corporation. This was linked to the settlement of the action involving the Beneficial Financial Corporation. The state provided the whole of this amount to the Chapmans with the money being directly recouped by Beneficial Finance. Effectively, it was a cost neutral transaction for the government and again a condition of the Chapmans' agreeing to release the state from liability.

The Hon. Terry Cameron asked questions about the number of allotments similar to the first question asked by the Hon. Sandra Kanck, and the same answer obviously applies, but he also asked whether the $4 500 lump sum, which owners can elect to pay, is the same in quantum no matter the value of the block. The answer to this question is `Yes'. This was the arrangement which was entered into by the former Labor Government.

See also Mike Elliott's speech on this Bill - 16 November 1999
and debate in Committee when the Bill was passed: 18 November 1999