Site navigation

Change font size: SmallerLargerReload

Legal Research & Resources navigation

Morton v Queensland Police Service D75/08

 

DISTRICT COURT OF QUEENSLAND

REGISTRY: Townsville

NUMBER: D75/08


Appellant FLORENCE MAREE MORTON

AND

Respondent QUEENSLAND POLICE SERVICE


SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

 

1 Introduction

  1. The Human Rights and Equal Opportunity Commission (‘the Commission’)[1] has been granted leave to appear as an amicus curiae in the hearing of this appeal.

  2. These submissions address the following issues:

    • Background;

    • The Racial Discrimination Act 1975 (Cth) (‘RDA’) and International Convention on the Elimination of all Forms of Racial Discrimination (‘ICERD’), including[2]

      • Overview of the RDA and

      • Interpreting the RDA;

    • The principles of interpretation relevant to the RDA;

    • The proper approach to s 10 of the RDA, including

      • Identifying the ‘right’ protected by s 10 in the present case

      • Assessing whether there is differential enjoyment of that right and

      • Determining whether any limitation upon the right is a legitimate one;

    • Special measures; and

    • The evidence that the Court may consider.

  3. The Commission has sought to avoid repeating in its submissions matters that have been adequately covered in the submissions of the parties.

  4. Consistent with its role as amicus curiae, the Commission does not argue for a particular outcome in these proceedings, but rather seeks to identify the relevant principles of law as they apply to this case for the assistance of the Court.

2 Background

  1. This matter concerns the provisions of the Liquor Act 1992 (Qld) (‘Liquor Act’) and the Liquor Regulation 2002 (Qld) (‘Liquor Regulation’) that operate to restrict the possession of alcohol on Palm Island, an Indigenous community.

  2. The relevant effects of the Liquor Act and Liquor Regulation are to make it an offence for a person to possess on Palm Island more than one case of mid-strength or light beer and to prohibit the possession of any other form of alcohol.[3]

  3. The Liquor Regulations also declare 17 other Indigenous communities to be restricted areas.[4]

  4. The appellant, who is an Aboriginal woman, was convicted of an offence under s 168B(1) of the Liquor Act, having been found possessing two bottles of whiskey on Palm Island.

  5. Relevant to these submissions, the appellant argues that the relevant provisions of the Liquor Act and Liquor Regulations are invalid by operation of s 10 of the RDA which provides for equality before the law. The appellant also argues that the relevant provisions of the Liquor Act, Liquor Regulations and the ‘Alcohol Management Plan’ for Palm Island are inconsistent with s 9 of the RDA.

  6. The respondent argues that s 10 has no operation in this matter. It also argues that the Liquor Act and Liquor Regulations are a ‘special measure’ for the purpose of s 8(1) of the RDA.

3 The RDA and ICERD

  1. The RDA gives effect to ICERD and the text of ICERD is set out in the schedule of the RDA.

  2. ICERD aims to eliminate racial discrimination in all its forms and manifestations. Its objects reflect the longstanding and widely-recognised international human rights of non-discrimination and equality.

3.1 Overview of the RDA

  1. Section 9 of the RDA provides for a broad prohibition on acts of racial discrimination.[5] It adopts the language used in art 1(1) of ICERD which defines racial discrimination.[6] Relevant to this matter, it provides:

    9 Racial discrimination to be unlawful


    (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

    ....

    (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

    ....

    (4) The succeeding provisions of this Part do not limit the generality of this section.


  1. Section 10 of the RDA creates a general right to equality before the law. Section 10 does not prohibit discrimination per se but is concerned with ensuring the equal enjoyment of rights of all persons under law.[7] It provides, relevantly:

    10 Rights to equality before the law


    (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

    (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.


  1. It can be seen that ss 9 and 10 protect a wide range of human rights and freedoms, which are not limited to the human rights described in art 5 of ICERD.[8] This is an issue discussed further at 4.1 below.

  2. Sections 11 to 15 of the RDA proscribe acts of race discrimination in specific areas of public life, including access to places and facilities[9] and the provision of goods and services.[10] Those sections do not limit the generality of s 9[11] and have been described as ‘amplifying and applying to particular cases the provisions of s 9’.[12]

  3. Section 8(1) provides for one of the very few exemptions to the RDA. It provides, relevantly, for special measures to which para 4 of art 1 of ICERD applies. Article 1(4) of ICERD states:

    Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

  4. The issue of special measures is discussed further at section 5 below.

  5. The Commission regards the central issue in this matter as the application of s 10 of the RDA, which is ‘directed to the operation of laws’.[13] It therefore does not seek to make specific submissions on the operation of s 9(1) as a basis for potential constitutional invalidity, unless the Court would be assisted by submissions on this issue.

3.2 Interpreting the RDA

  1. Fundamental to this appeal is the proper construction of the RDA based on the text of ICERD and underlying principles of international human rights law. The following general principles of interpretation are relevant to this matter:
  1. It has also been noted that ‘broad and elastic terminology’ is required to achieve the broad purposes of ICERD and the RDA.[22]

4 Applying s 10

  1. In applying s 10 of the RDA it is necessary to ask:

    • What is the relevant ‘right’ or ‘rights’ that are affected by the impugned law?

    • Do persons of a particular race not enjoy that right or enjoy it to a more limited extent than persons of another race by reason of the impugned law? This requires asking:

      • Is there a limitation upon the enjoyment of a right by people of a particular race by reason of law; and

      • Is any limitation upon the right a legitimate one, intended to achieve a non-discriminatory purpose?[23]

4.1 What is the relevant ‘right’ or ‘rights’ that are affected?

  1. Courts applying s 10 have sought to identify a particular right that persons of a particular race either do not enjoy or enjoy to a more limited extent than persons of another race.

  2. It is necessary, however, to approach the meaning of ‘rights’ in a broad way to avoid undermining the purpose of s 10(1). As its title makes clear, s 10 is intended to guarantee equality before the law. Such purpose is also clear from the second reading speech of the Racial Discrimination Bill 1975: ‘The Bill will guarantee equality before the law without distinction as to race.’[24]

(a) Equality before the law
  1. The principles of equality and non-discrimination are well-recognised parts of international customary law.[25] Importantly, equality is a free-standing or independent right that is additional to other specific rights.[26] Article 26 of the ICCPR provides:

    All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

  2. The Human Rights Committee has stated in General Comment 18:

    1. Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights...

    ....

    12. While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations. That is to say, article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof... In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.[27]

  3. It is therefore not necessary at international law for a separate ‘right’ to be identified when considering whether the right to equality before the law has been breached. Where a field is regulated or protected by public authorities, discrimination ‘in law or in fact’ is prohibited. The same approach should be taken to the protection afforded by s 10 of the RDA.
(b) A broad approach to ‘rights’ under s 10

  1. Deane J stated in Mabo v Queensland:

    The word ‘right’ is used in s 10(1) in the same broad sense in which it is used in [ICERD], that is to say, as a moral entitlement to be treated in accordance with standards dictated by the fundamental notions of human dignity and essential equality which underlie the international recognition of human rights: cf. the preamble to [ICERD].[28]

  2. The ‘rights’ protected by s 10(1) are not limited to the rights set out in ICERD. It is also clear that the term ‘right’ as used in s 10(1) does not necessarily refer to a legal right recognised in domestic law.[29]

  3. As Brennan J observed of the expression ‘human rights and fundamental freedoms’ in ss 8(1) and 9(1) of the RDA:

    The conception of human rights and fundamental freedoms in the Convention definition of racial discrimination describes that complex of rights and freedoms the enjoyment of which permits each member of a society equally with all other members of that society to live in full dignity, to engage freely in any public activity and to enjoy the public benefits of that society.[30]

  4. Where a law regulates the behaviour of individuals, as in the present case, it will invariably impact upon ‘rights’ so as to engage the operation of s 10(1). Such laws will necessarily directly affect the ability of individuals to ‘engage freely in any public activity and to enjoy the public benefits of that society’.

  5. When understood in this context, the Commission submits that at least two distinct ‘rights’ under s 10(1) can be identified in this case: the right of access to goods or, alternatively, the right to engage freely in public activity.

(c) The right of access to goods

  1. The Commission submits that the Liquor Act and Regulations engage the right of access to goods. That right includes the terms and conditions upon which a person may access those goods – including limitations on the ability to possess them.

  2. The right to access goods is explicitly recognised by the RDA in s 13 which makes it unlawful to refuse to supply goods or services or to refuse to supply goods or services except on less favourable terms or conditions, by reason of the race of a person.

  3. The explicit prohibition on discrimination in the provision of goods and services in s 13 recognises that this is a right to which the general prohibition against non-discrimination in s 9(1) applies. As noted above, s 13 is to be understood as ‘amplifying and applying to particular cases the provisions of s 9’[31] which applies generally to ‘human rights and fundamental freedoms’.

(d) The right to engage freely in public activity
  1. It is alternatively open to the Court to find that the Liquor Act and Regulations engage the rights of residents of Palm Island to ‘engage freely in public activity’, namely the possession and consumption of alcohol on Palm Island. This is consistent with broad approach that the High Court has held is appropriate to the rights protected by s 10(1).
(e) The decisions in Ebber and P’s case

  1. The respondent’s submissions note the decisions of Drummond J in Ebber v Human Rights and Equal Opportunity Commission(‘Ebber’)[32] and Secretary, Department of Veterans Affairs v P (‘P’s case’)[33] to the effect that a right must be ‘fundamental to an individual’s existence as a human being’.[34] The respondent argues that ‘a right to possess liquor is not a right of the kind with which s 10 is concerned’.[35] The Commission submits that this submission should be rejected.

  2. First, as identified above, the laws engage the right of access to goods. This is a fundamental right, recognised explicitly in the RDA. The central issue is the right of access, rather than the type of good in question – it is not open to a shopkeeper, for example, to decide not to sell certain products to people of a particular race on the basis that there is no right to those particular goods.

  3. Second, the approach of the respondent takes an inappropriately narrow view of the rights at issue in the present case. Laws regulating behaviour do impact upon rights that are fundamental to an individual’s existence as a human being. In Hagan v Trustees of the Toowoomba Sports Ground Trust,[36] Drummond J held:

    It can be accepted that s 9(1) protects the basic human right of every person who is a member of a particular racial group to go about his recreational and other ordinary activities without being treated by others less favourably than persons who do not belong to that racial group...[37]

  4. Similarly, in Gerhardy, Mason J observed:

    The expression ‘human rights’ is commonly used to denote the claim of each and every person to the enjoyment of rights and freedoms generally acknowledged as fundamental to his or her existence as a human being and as a free individual in society. The expression includes claims of individuals as members of a racial or ethnic group to equal treatment of the members of that group in common with other persons.[38]

  5. It can be recalled that laws regulating ‘ordinary activities’ were features of the notorious policies of both segregation and apartheid. If laws regulating behaviour are found to discriminate against people of a particular race, they offend the fundamental principles of equality and non-discrimination. They deny ‘equal treatment of the members of that group in common with other persons’. Laws that make arbitrary racial distinctions deny the right of the people affected by those laws to live ‘in full dignity’.

  6. The decisions in Ebber and P’s case can also be clearly distinguished from the present case.[39] Neither Ebber nor P’s case concerned laws regulating behaviour of the type at issue here. Ebber concerned the recognition of international architectural qualifications, while P’s case concerned government-subsidised housing loans.

4.2 Is there a limitation on the enjoyment of the right by Indigenous people?

  1. The Full Federal Court in Bropho v Western Australia (‘Brohpo’)[40] described the operation of s 10(1) in the following way:

    [Section] 10(1) of the [RDA] is engaged where there is unequal enjoyment of rights between racial or ethnic groups: see Ward v Western Australia (2002) 213 CLR 1. Section 10(1) does not require the Court to ascertain whether the cessation of rights is by reason of race, with the clear words of s 10 demonstrating that the inquiry is whether the cessation of rights is 'by reason of' the legislation under challenge. Further, s 10 operates, not merely on the intention, purpose or form of legislation but also on the practical operation and effect of legislation (Gerhardy v Brown, at 99; Mabo v Queensland [No 1] (1988) 166 CLR 186 at 230-231; Western Australia v Ward at 103).[41]

  2. The practical operation and effect of declaring Palm Island and other Indigenous communities to be restricted areas is to limit the ability of Indigenous people to possess alcohol. This impacts disproportionately upon their rights (outlined above) in comparison to the rights of non-Indigenous people. The burden of the law does not fall equally on all racial groups.[42]

  3. While it is not necessary to show that the laws were intended to have a disproportionate impact, the Commission observes that the relevant laws are explicitly aimed at Indigenous communities. They are intended to reduce the consumption of alcohol by Indigenous people living in those communities. The relevant offence under s 168B was introduced by the Indigenous Communities Liquor Licenses Act 2002 (Qld). The stated purpose of the Act is ‘to prevent harm in community areas caused by alcohol abuse and misuse and associated violence’. The Explanatory Notes to the Indigenous Communities Liquor Licences Bill make explicit what is apparent from the legislation’s title – namely that its objective is to ‘prevent harm in Indigenous communities’ (emphasis added) by, amongst other things, providing for the declaration of restricted areas and prescribing limits on the quantity of liquor that a person can have in their possession.[43]

  4. In the second reading speech, the Minister for Families and Minister for Aboriginal and Torres Strait Islander Policy noted that one of the key elements of the bill was ‘the ability to control the amount of alcohol brought into indigenous communities’.[44]

  5. The explanatory notes to the Indigenous Communities Liquor Licenses Bill 2002 state:

    The Bill is part of the Government’s response to the Cape York Justice Study report, which was submitted to the Government by Justice Tony Fitzgerald in November 2001. The Bill is part of a package of reforms to address the prevalence of alcohol abuse and violence in Indigenous communities in Cape York and other parts of Queensland. It complements the Community Services Legislation Amendment Bill 2002.

    ....

    The Cape York Justice Study report highlighted the seriousness of the alcohol problem in Indigenous communities in clear and unequivocal terms:

    Alcohol abuse and associated violence are so prevalent and damaging that they threaten the communities’ existence and obstruct their development.

    Justice Fitzgerald recommended immediate Government intervention and pointed out that unless the epidemic of alcohol abuse in Indigenous communities is addressed, reforms in social and economic development and education will not be sustainable. It was recommended that Government should first seek to work with and empower Indigenous communities to take action to address alcohol, but that if this community-based approach did not result in improvements within 3 years, the Government should consider prohibiting alcohol altogether.[45]

  6. The focus of the laws on ‘Indigenous communities’ rather than ‘Indigenous people’ is a matter of form, not substance. That the laws are intended to reduce the consumption of alcohol by Indigenous people is clear from the Cape York Justice Study Report which opens the section on Alcohol with the following:

    There is overwhelming evidence that harmful levels of alcohol consumption by Aboriginal people in the Cape York region are the chief precursor to violence, crime, injury and ill-health in these populations.[46]

4.3 Is the limitation a ‘legitimate’ one?

(a) The decision in Bropho

  1. The Full Federal Court in Bropho held that:

    [A]ll rights in a democratic society must be balanced against other competing rights and values, and the precise content of the relevant right or freedom must accommodate legitimate laws of, and rights recognised by, the society in which the human right is said to arise.[47]

  2. That case concerned the closure of the Swan Valley Nyungah Community. The Full Court was required to consider whether the Western Australian law that effected its closure contravened s 10(1) of the RDA. The Full Court considered what permissible limitations could be imposed upon the rights of the inhabitants of that community to occupy and manage land (as part of a broadly understood ‘right to property’).

  3. The Full Court first identified what permissible limits could be placed upon the right to property at international law[48] and held that ‘a State has a right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest’.[49]

  4. The Full Court concluded:

    [T]he right to occupy and manage the land conferred by statute was subject to the contingency that the right would be removed or modified if its removal or modification was necessary to protect vulnerable members of the community enjoying the right of occupation and management. We accept that it will always be a question of degree in determining the extent to which the content of a universal human right is modified or limited by legitimate laws and rights recognised in Australia. We also emphasise that these observations are not intended to imply that basic human rights protected by the [RDA] can be compromised by laws which have an ostensible public purpose but which are, in truth, discriminatory.[50]

  5. The Full Court held that ‘no invalid diminution of property rights occurs where the State acts in order to achieve a legitimate and non-discriminatory public goal’.[51] The Court found that the laws in that case interfered with the rights of the Indigenous residents, but did so to protect the safety and welfare of the residents, particularly women and children. They were therefore not invalidated by s 10(1) of the RDA.

(b) Applying Bropho

  1. A number of important points should be noted in applying the decision in Bropho in the present case and determining what will constitute a ‘legitimate’ interference with rights.[52]

  2. First, when determining the legitimacy of a limitation of a right, the assessment is an objective one – it is not sufficient, for example, that the parliament lacked a discriminatory motive or intention.[53]

  3. Second, proportionality will be a vital factor in making assessments of what is ‘legitimate’, ‘reasonable’ or ‘justifiable’ – a measure will not be legitimate if its impact upon rights is disproportionate to the claimed purpose or benefit of the measure. In considering proportionality it is appropriate to consider the following:

    • Is the measure applied only for a specific purpose and directly related to a specific need?

    • Is the regime the least restrictive one available to achieve the lawful objectives pursued? The court should consider whether the measure can reasonably be said to involve the least possible interference with the right to be free from race discrimination.

  4. Third, the legitimacy of any limitation upon a right must be assessed in the context of the right in question: not all rights can necessarily be limited in the same ways.[54]

  5. Fourth, because the ‘balancing’ of rights is taking place in the context of the right to racial equality before the law and non-discrimination, legitimacy should be judged against the objectives and purposes of ICERD and the ICCPR. The CERD Committee has observed of the right to non-discrimination under ICERD that

    a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the Convention. In considering the criteria that may have been employed, the Committee will acknowledge that particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.[55]

  6. Similarly, the Human Rights Committee has observed of the right to equality before the law and non-discrimination in art 26

    that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.[56]

  7. As noted above, in determining what is ‘justifiable’ and ‘reasonable’, the touchstone is proportionality.

(c) Legitimate limitations upon rights in the present case
  1. The Commission submits that the following factors need to be balanced in determining whether the limitations upon rights in the present case are legitimate.
(i) Proportionality

  1. The Court should consider whether the Liquor Act and Regulations can be reasonably considered to involve the least possible interference with the right to be free from race discrimination to achieve their stated purpose.

  2. Relevant to this question is what other measures have been or could have been implemented on Palm Island to deal with issues surrounding the abuse/misuse of alcohol and/or the prevention of alcohol-related disturbances and violence.

(ii) Self-determination

  1. Indigenous people have the right to self-determination. This is a fundamental human right protected by art 1(1) of the ICCPR, which provides:

    All peoples have the right of self-determination. By virtue of that rights they freely determine their political status and freely pursue their economic, social and cultural development.[57]

  2. The wishes of Indigenous people in relation to measures affecting them will therefore be relevant to determining the legitimacy of such measures. They are also relevant to determining whether a measure is a ‘special measure’, discussed below.

  3. Section 173I of the Liquor Act provides for consultation with the community justice group for a particular community area. In particular, it requires that the Minister consult with the community justice group and consider any recommendation made by the community justice group (s 173I(2)). A failure to do so does not, however, affect the validity of a regulation made (see s 173I(4)).

(iii) Concrete measures to guarantee enjoyment of rights

  1. Article 2(2) of ICERD imposes an obligation upon parties to the convention to, when the circumstances so warrant, take ‘special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.’

  2. The applicability of this provision in the present case is discussed below in the context of the related exemption for ‘special measures’ set out in art 1(4) of ICERD.

(iv) Right to security of the person

  1. All people have the right to security of the person.[58] This right imposes upon governments the obligation to take positive action to protect its citizens from violence, including violence from private persons.[59]

  2. Governments have a particular obligation under art 3(2) of the Convention on the Rights of the Child to protect and care for the wellbeing of children.[60]

(v) Right to health and development

  1. All people have a right to enjoy the ‘highest attainable standard of physical and mental health’.[61]

  2. Children, in particular, have the right to development. Article 6(2) of the CRC imposes upon parties the obligation ‘to ensure to the maximum extent possible the survival and development of the child’.

5 Special measures

  1. If the Court finds that the operation of the Liquor Act and Regulations is altered by s 10, it is necessary to consider whether the Act and Regulations are ‘special measures’ for the purposes of s 8(1) of the RDA.

  2. The concept of special measures is generally understood to apply to positive measures taken to redress historical disadvantage and create more favourable conditions or confer benefits on a particular racial group. The exemption applies to defeat any claim by a different group that it has been discriminated against. The expression ‘special measures’ is often used interchangeably with the expressions such as ‘affirmative action’.[62]

  3. Brennan J identified five characteristics to be satisfied in order for a measure to come within s 8(1):

    1. the special measure must confer a benefit on some or all members
      of a class;

    2. membership of this class must be based on race, colour, descent, or national or ethnic origin;

    3. the special measure must be for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms;

    4. the protection given to the beneficiaries by the special measure must be necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms; and

    5. the special measure must not have achieved its objectives.[63]

  4. While it is appropriate to consider the effect of legislation as a whole when determining whether it is a ‘special measure’, it is still necessary for its parts to be ‘appropriate and adapted’ to this purpose.[64] In the present case, it is necessary for the Court to consider whether the declaration of Palm Island as a restricted area satisfies the test for a special measure, as opposed to the introduction of the general provisions of the Liquor Act and Liquor Regulations and their application to Indigenous communities generally.

  5. In Vanstone v Clark,[65] Weinberg J noted:

    The Minister submitted that once it is conceded that s31(1) [of the ATSIC Act] is a ‘special measure’, any limits inherent in or attached to the office designated by that section are part of the special measure, and can not be separately attacked as racially discriminatory... In my view, this submission can not be accepted. It involves, a strained, if not perverse, reading of s 8 of the RDA, and would thwart rather than promote the intention of the legislature. If the submission were correct, any provision of an ancillary nature that inflicted disadvantage upon the group protected under a ‘special measure’ would itself be immune from the operation of the RDA simply by reason of it being attached to that special measure.

5.1 ‘Advancement’ and the need for consultation and consent

  1. Brennan J in Gerhardy considered how to determine whether a measure was for the ‘advancement’ of the beneficiaries. His Honour stated:

    ‘Advancement’ is not necessarily what the person who takes the measure regards as a benefit for the beneficiaries. The purpose of securing advancement for a racial group is not established by showing that the branch of government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group does not seek or wish to have the benefit. The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement. The dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them.[66]

  2. The Magistrate at first instance was, with respect, correct to find that ‘[s]upport of the community for the introduction of a special measure... is critical to its legitimacy’.[67]

  3. This approach is consistent with relevant principles of international law. Consulting with, and seeking the consent of, the group that is to be the subject of the special measure is consistent with the protection of the rights of minorities[68] and the right of Indigenous peoples to self-determination.

  4. The CERD Committee, in its General Recommendation on the rights of Indigenous peoples, has also stressed the need to:

    Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent...[69]

  5. The Commission notes, however, that a different approach was taken at first instance by Nicholson J in Bropho. While it is unclear whether the reasoning formed part of the ratio of the case or was obiter, as Nicholson J decided the case on other grounds, his Honour declined to follow the approach of Brennan J in Gerhardy, stating that Brennan J’s view had no ‘apparent judicial support’ and was ‘not consistent with the general principles expressed in the case.’[70] While his Honour’s approach to other aspects of the RDA was questioned by the Full Federal Court,[71] and the Full Court found that his Honour had erred on the correct identification of the ‘right’ for the purposes of s 10,[72] it was not necessary for the Full Court to consider the issue of special measures.

  6. The Commission submits that the approach of Brennan J in Gerhardy is the correct one and that the conclusion of Nicholson J in Bropho cannot be supported by reference to Gerhardy and relevant international law principles (discussed above).

  7. In particular, the Commission notes first that the other justices in Gerhardy neither supported nor disagreed with Brennan J’s observation.[73]

  8. Second, it is necessary for a measure to be ‘appropriate and adapted’ to the relevant purpose of advancing the particular group.[74] The Commission submits that it is not possible to reach that conclusion without considering the wishes of the particular group concerned. To the extent that the impact of the measures upon group members may differ, the specific wishes of those persons who are the intended beneficiaries of the measure must be considered closely.

  9. The Commission accepts that, on the approach of Brennan J, the wishes of the beneficiaries may not always be determinative of whether the measure in question is a special measure. The extent of consultation required and the need for consent must be considered in the context of each particular case. To suggest, however, that consultation and consent are not of great importance contemplates a paternalism that considers irrelevant the views of a group as to their wellbeing and decisions materially affecting them. Such an approach should not be followed.

5.2 ‘Political questions’ in the test for special measures

  1. Brennan J in Gerhady recognised that

    [w]hether a special measure is needed and is likely to alter the circumstances affecting a disadvantaged racial group in such a way that they will be able to live in full dignity, to engage freely in any public activity and to enjoy the public benefits of society equally with others if they wish to do so is, at least in some respects, a political question. A court is ill-equipped to answer a political question.[75]

  2. It is nevertheless necessary for a court to determine ‘whether the political branch acted reasonably in making its assessment’.[76] This requires a court to ‘decide the limits within which a political assessment might reasonably be made’.[77] This includes being satisfied that:

6 The evidence that the Court may consider

  1. It is unclear, at the time of preparing these submissions, what evidence will be before the Court in this matter. The Commission submits that the Court may be assisted by evidence on a range of issues raised above and is not limited to that put before it by the parties.

  2. Brennan J in Gerhardy stated:

    There is a distinction between a judicial finding of a fact in issue between parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact. When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants. When the validity of a State law is attacked under s.109 of the Constitution and the scope of the Commonwealth law with which it is thought to be inconsistent depends on matters of fact (which I shall call the statutory facts) the function of a court is analogous to its function in determining the constitutional validity of a law whose validity depends on matters of fact...

    ....

    The Court may, of course, invite and receive assistance from the parties to ascertain the statutory facts, but it is free also to inform itself from other sources. Perhaps those sources should be public or authoritative, and perhaps the parties should be at liberty to supplement or controvert any factual material on which the Court may propose to rely, but these matters of procedure can await consideration on another day. The Court must ascertain the statutory facts ‘as best it can’ and it is difficult and undesirable to impose an a priori restraint on the performance of that duty.[81]

  3. It can be noted that, similar to the present matter, Gerhardy also involved a challenge to the validity of a law under which an individual, Brown, had been charged.

  4. While conscious of the limited evidentiary role typically played by an amicus curiae, should the Court seek assistance in ascertaining the statutory facts in this matter, the Commission will endeavour to provide that assistance.

........................
Jonathon Hunyor
Solicitor for the Human Rights and Equal Opportunity Commission
3 October 2008


[1] The Human Rights and Equal Opportunity Commission is the legal name for the Australian Human Rights Commission.
[2] Opened for signature 21 December 1965 (entered into force 4 January 1969 except for art 14 which came into force 4 December 1982). ICERD entered into force for Australia on 30 October 1975 and art 14 with effect from 28 January 1993.
[3] Section 168B of the Liquor Act makes it an offence to possess more than a prescribed quantity of a type of liquor in a restricted area. Restricted areas are declared by regulation pursuant to s 173G and 173H. Schedule 1R of the Liquor Regulations declares Palm Island to be a restricted area. Paragraph 2 of sch 1R provides that the prescribed quantity of alcohol is 11.25 litres of beer less than 4% alcohol and for any other liquor zero.

[4] See Schedules 1A-R of the Liquor Regulations.
[5] The term ‘race’ is used throughout these submissions as a shorthand for the expression ‘race, colour or national or ethnic origin’ that appears in the RDA.

[6] Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 264-265 (Brennan J).
[7] Gerhardy v Brown (1985) 159 CLR 70 (‘Gerhardy’), 99 (Mason J); Western Australia v Ward (2002) 213 CLR 1 (‘Ward’), [105] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[8] Gerhardy, above n 7, 101-2 (Mason J), 125-6 (Brennan J).

[9] RDA s 11.

[10] RDA s 13.

[11] RDA s 9(4).

[12] Gerhardy, above n 7, 85 (Gibbs CJ).

[13] Ibid, 196 (Mason J); Ward, above n 7, 97 [101] (Gleeson CJ, Gummow and Hayne JJ).

[14] Kartinyeri v Commonwealth (1998) 195 CLR 337, 385 [97] (Gummow and Hayne JJ).
[15] Waters v Public Transport Corporation (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J, Deane J agreeing), 372 (Brennan J), 394 (Dawson and Toohey JJ), 406-7 (McHugh J).

[16] X v Commonwealth (1999) 200 CLR 177, 223 (Kirby J).
[17] Koowarta v Bjelke-Petersen above n 6, 264-5 (Brennan J); Gerhardy above n 7, 124 (Brennan J).
[18] Pilkington (Australia) Ltd v Minister of State for Justice & Customs (2002) 127 FCR 92, 100 [26].
[19] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 392 (Mason CJ), 396-397 and 399-400 (Dawson J), 405 (Toohey J), 416 (Gaudron J), 430 (McHugh J).
[20] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976, except art 41 which came into force 28 March 1979).
[21] Pilkington (Australia) Ltd, above n 18, 100 [26] and authorities cited therein.

[22] Baird v Queensland (2006) 156 FCR 541, 468 [62] (Allsop J, Spender and Edmonds JJ agreeing).

[23] Bropho v State of Western Australia [2008] FCAFC 100, [81]-[83].
[24] Commonwealth, Parliamentary Debates, Senate, 15 April 1975, 999 (James McClelland, Minister for Manufacturing Industry).
[25] See B.G. Ramcharan ‘Equality and Nondiscrimination’ in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (1981) 246, 249; Warwick McKean Equality and Discrimination under International Law (1983) 283; Ian Brownlie Principles of Public International Law (6th ed 2003) 546.

[26] Ramcharan ibid 253.
[27] Human Rights Committee General Comment 18: Non-discrimination (Thirty-seventh session), U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994) (emphasis added).

[28] Ibid 229.

[29] Mabo v Queensland (1988) 166 CLR 186 (‘Mabo No 1’), 217 (Brennan, Toohey and Gaudron JJ).

[30] Gerhardy, above n 7, 126 (emphasis added).

[31] Gerhardy, above n 7, 85 (Gibbs CJ).

[32] (1995) 129 ALR 455.

[33] (1998) 79 FCR 594.

[34] See [23]-[26] of the respondent’s outline of argument dated 15 September 2008.

[35] Respondent’s outline of argument dated 15 September 2008, [27].

[36] [2000] FCA 1615.

[37] [2000] FCA 1615, [38].

[38] Above n 7, 101 (emphasis added).
[39] The Commission notes further that it does not concede the correctness of either decision, but it is not necessary to argue that point here.

[40] [2008] FCAFC 100.

[41] Ibid [73].

[42] Ward, above n 7, 100 [108] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[43] Explanatory Notes, Indigenous Communities Liquor Licences Bill 2002 (Qld), 1.
[44] Queensland, Parliamentary Debates, 6 August 2002, 2632 (Judy Spence, Minister for Families and Minister for Aboriginal and Torres Strait Islander Policy and Minister for Disability Services and Minister for Seniors).

[45] Above n 43, 1-2.

[46] Tony Fitzgerald, Cape York Justice Study (2001), 40.
[47] Above n 23, [81]. Mason J took a similar approach to the right to freedom of movement in Gerhardy: above n 7, 102-4.

[48] Ibid [80].

[49] Ibid [83].

[50] Ibid [82].

[51] Ibid [83].
[52] Note that where a right is one that is expressly protected by a convention it will be necessary to consider what limitations are permitted under that convention and/or what, if any, limitations are recognised for that specific right: see, for example, art 29 of the Universal Declaration of Human Rights, GA Res 217A(III), UN Doc A/810 at 71 (1948); United Nations Economic and Social Council Siracusa Principles on the Limitation and Derogation Provisions in the International Convenant on Civil and Political Rights, UN Doc E/CN4/1985/4, Annex (1985) (‘Siracusa Principles’).

[53] This follows from the approach to s 10 generally – see para 43 of these submissions.

[54] Siracusa principles, above n 52, [4].
[55] Committee on the Elimination of Racial Discrimination, General Recommendation 14: Definition of Racial Discrimination (Forty-second session), UN Doc A/48/18 at 114 (1994), [2] (emphasis added).
[56] Human Rights Committee General Comment 18: Non-discrimination, above n 27, [13] (emphasis added).
[57] See also the right in the same terms in art 1(1) of the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).

[58] Article 9 ICCPR.
[59] Delgado Paez v Colombia, Communication No 195/85, UN Doc CCPR/C/39/D/195/1985 (1990) [5.5]; Jayawardene v Sri Lanka, Communication No 916/00, UN Doc A/57/40 at 234 (2002).
[60] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[61] Article 12(1) ICESCR.
[62] See, for example, Theodor Meron, ‘The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination’ (1985) 79 Am J. Int’l Law 283 at 305; Natan Lerner, The UN Convention on the Elimination of All Forms of Racial Discrimination (1980), 32; UN Human Rights Committee, General Comment 18: Non-discrimination, above n 27, [10].

[63] Gerhardy, above n 7, 133. See also Bruch v Commonwealth [2002] FMCA 29.

[64] Ibid 105 (Mason J), 149 (Deane J).
[65] (2005) 147 FCR 299, 354 [209], Black CJ agreeing.

[66] Ibid, 135.

[67] Record Book 24.10.
[68] See art 27 of the ICCPR.
[69] Committee on the Elimination of Racial Discrimination, General Recommendation 23: Rights of indigenous peoples (Fifty-first session), U.N. Doc. A/52/18, annex V at 122 (1997), [4(d)].

[70] Bropho v Western Australia [2007] FCA 519, [569].

[71] Bropho, above n 23, [61]-[62]

[72] Ibid [78].
[73] See, for example, Wilson J at 113 who refers to the consultation with the beneficiaries of the measure.
[74] Gerhardy, above n 7, 105 (Mason J), 149 (Deane J).

[75] Ibid, 137-8 (Brennan J).

[76] Ibid, 138 (Brennan J).

[77] Ibid, 139 (Brennan J).

[78] Ibid.

[79] Ibid.

[80] Ibid, 149 (Deane J), 139 (Brennan J).

[81] Ibid 141-2 (Brennan J) (emphasis added).