IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
No QUD377 of 2005
JAMES STANLEY BAIRD & Others
STATE OF QUEENSLAND
OUTLINE OF SUBMISSIONS OF THE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION INTERVENING
1. The Human Rights and Equal Opportunity Commission (‘the Commission’) has been granted leave to intervene in the hearing of this matter, in the exercise of its function under s 20(1)(e) of the Racial Discrimination Act 1975 (Cth) (‘the RDA’).
2. The Commission’s submissions address the following topics:
- The Racial Discrimination Act 1975: Background and Context
- Interpretation of s 9(1) of the Racial Discrimination Act 1975.
- Identification of the relevant ‘act’.
- Was the relevant act one ‘involving a distinction, exclusion, restriction or preference’?
- Based on race’.
- Identification of the ‘purpose or effect’ of the relevant act.
- Ancillary liability of the respondent.
(a) THE RACIAL DISCRIMINATION ACT 1975: BACKGROUND AND CONTEXT
3. As a general principle, remedial legislation which is designed to prevent discrimination and protect human rights - such as the RDA - should be construed beneficially and not narrowly.1 The courts have a special responsibility to take account of and give effect to the objects and purposes of such legislation.2
4. The preamble to the RDA makes clear that its purpose is to give effect to the International Convention on the Elimination of all Forms of Racial Discrimination3 (‘ICERD’) and the terms of the Act mirror those of ICERD in a number of significant respects.
5. The meaning of provisions in a statute implementing a convention or conventions is to be ascertained by reference to the relevant provisions of that convention or those conventions.4 In interpreting the meaning of relevant convention provisions, it is necessary to refer to the rules applicable to the interpretation of treaties, particularly the Vienna Convention on the Law of Treaties.5 Article 31 of that Convention provides:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
6. The broad prohibition on discrimination in section 9(1) of the RDA is based on the definition of ‘racial discrimination’ contained in article 1(1) of ICERD. Section 9(1) is accordingly to be construed in accordance with the general rule of statutory construction set out in the Vienna Convention.6 In applying this principle, Brennan J in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 said, at 265:
The recognition, enjoyment and exercise of human rights and fundamental freedoms by all persons on an equal footing irrespective of race, colour, descent or national or ethnic origin is the purpose of the Convention to which Art. 1, cl. 1, in conjunction with other Articles (especially Arts. 2 and 5), gives effect.
7. The breadth of the prohibition intended by s 9(1) may also be ascertained by reference to articles 2 and 5 of ICERD and their object and purpose. Article 2 provides (emphasis added):
- States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
- Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
- Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;
- Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
- Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;
8. Article 2(1)(d) has been described as being ‘the most important and most far-reaching of all substantive provisions of the Convention’7 and goes beyond existing international human rights instruments such as the Universal Declaration of Human Rights8 and the International Covenant on Civil and Political Rights.9
9. Article 5 of ICERD also imposes very broad obligations on Australia. It relevantly provides (emphasis added):
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(e) Economic, social and cultural rights, in particular:
(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;
10. The breadth of the substantive provisions of ICERD have led to it being described as a ‘maximalist’ instrument.10
(b) INTERPRETATION OF s 9(1) OF THE RACIAL DISCRIMINATION ACT 1975
11. The Commission seeks to address the four key elements to the prohibition of racial discrimination in s 9(1) of the RDA as follows:
- Identification of the relevant ‘act’.
- Was the relevant act one ‘involving a distinction, exclusion, restriction or preference’?
- ‘Based on race’.
- Identification of the ‘purpose or effect’ of the relevant act.
(i) Identification of the relevant ‘act’
12. The prohibition in s 9(1) refers to ‘any act’. This broad formulation reflects, and should be understood in the context of, the breadth of the language in ICERD which requires that States Parties take action to eliminate discrimination ‘in all its forms’ (see articles 2 and 5).
13. In the present case, in para 8A of their consolidated statement of claim dated 15 February 2005 (AB 6), the appellants defined the ‘act’ of discrimination of the respondent as:
the payment by the respondent to the Church of grants that were based on race and resulted in the [appellants] receiving wages which were at a rate less than that paid (i) by the respondent to its non-Aboriginal employees doing similar work and/or (ii) pursuant to the Award applicable to each of the [appellants].
14. Essentially, the focus of the appellants’ definition of ‘act’ was the positive act of the respondent based on the payment of grants to the Lutheran Church (‘the Church’). An essential feature of this ‘act’ was the payment of a particular amount of money by the respondent; an amount that was not enough to enable the Church to pay the appellants award wages.
15. The learned trial judge was in error in stating, at  (AB 1870), that ‘there is nothing in [the] RDA to support’ an argument that the word ‘act’ in s 9 includes an omission to act. Section 3(3) of the RDA provides:
For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure.
16. Section 3 of the RDA was not expressly referred to by his Honour, although there was a passing reference, at  (AB 1864-1865), to the definition of ‘unlawful discrimination’ in s 3 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOCA’) which includes ‘any acts, omissions or practices that are unlawful under…Part II or IIA of [the RDA]’ (emphasis added). The jurisdiction of this Court is of course conferred by s 46PO of the HREOCA where there is a terminated complaint of ‘unlawful discrimination’.
17. In determining the ‘act’ of discrimination for the purposes of s 9(1) of the RDA, it was open to the leaned trial judge on the evidence to consider the following possibilities:
- That in making the various grants to the Church the respondent failed to calculate the level of payment in such a way as to ensure that the Church would have sufficient funds to pay award wages to the appellants. There was evidence before the Court that the respondent was aware that subsidies were required to remove ‘anomalies’ caused by the low wages paid to Aboriginal workers on missions operated by the Church: see, for example, the relevant Minister’s Cabinet submission of 12 January 1962 referred to by his Honour at - (AB 1854-1855).11 There was also evidence that the respondent was able to make specific allocations of funds to enable the Church to pay for increased wages. At - (AB 1857) his Honour referred to several Cabinet submissions between 1971-1973 which provided for various wage increases to Aboriginal persons employed on Church communities. His Honour appears to have accepted this evidence, finding as a fact, at  (AB 1863) ‘…it seems that the Government was aware that wages were paid on the missions at rates below award rates and that there was pressure to remedy the position. At some stage, the Government seems to have accepted that churches would pay increased wages to indigenous employees on missions only to the extent that it increased their grants.’
- That in making the various grants to the Church the respondent failed to require the Church to pay award wages to the appellants. There was evidence before the Court that in a similar context the respondent had considered the imposition of conditions on the payment of grants to a religious body. His Honour referred at - (AB 1857-1858) to evidence that in November 1969 the relevant Minister had recommended that a condition be imposed on the payment of a subsidy to another Church-sponsored community that the Church conform to the Department’s policy of assimilation.12 This was, however, described by his Honour at  (AB 1857) as being of ‘marginal relevance’ to the appellants’ case. His Honour also found, at  (AB 1864), that ‘[I]t may have been competent for the Government, by regulation, to fix wage levels and levels of employment on missions, subject only to any limitation upon such power imposed by relevant industrial legislation. However it did not do so’.
18. His Honour also considered that the failure of the appellants to identify each particular ‘act’ of discrimination constituted by each of the discriminatory grants over a period of eleven years was ‘probably fatal’ to the appellants’ claims under s 9 of the RDA: see  and  (AB 1868-1869). It was, however, open to his Honour to find that the conduct of the respondent could be properly viewed, not just as a series of discrete acts, but as a continuing state of affairs, or a course of conduct amounting to an ‘act’ of unlawful discrimination. This would not require the identification and consideration of each individual ‘act’ of discrimination.
19. In Paramasivam v Wheeler  FCA 231, Hill J observed (at ) that ‘…there will be many cases... where the discrimination will not be able to be proved directly by reference to oral or written statements. There may well be cases where the discrimination may be able to be inferred from a course of conduct…’ Similarly, in Rabel v Swinburne University of Technology  VADT 56 , the Victorian Anti-Discrimination Tribunal considered that a series of allegations of victimisation, about which it had been difficult individually to infer discriminatory conduct, was really one complaint of a discriminatory course of conduct (see section 7.1 of that decision).
(ii) Was the relevant act one ‘involving a distinction, exclusion, restriction or preference’?
20. The Commission submits that the relevant distinction in this matter was between the amount that the appellants were paid and the award wage . The relevant question for the purposes of this element of the test for discrimination under s 9(1) was whether or not the payment of grants by the respondent was and act ‘involving’ that distinction.
21. In determining whether an act is one ‘involving’ a distinction, exclusion, restriction or preference for the purposes of s 9(1), it is necessary to consider more than the impugned physical ‘act’ (such as the mere payment of a grant). Rather, it is appropriate to look at the broader circumstances of the undertaking of that act. In the present case, this should have included a consideration of the manner in which the amount of the grant was calculated and the manner in which it was expected that it would be spent.
22. The Commission submits that it was open to the Court to conclude that the payment of grants by the respondent to the Church ‘involved’ a distinction, namely that the appellants would be paid at below-award rates, because the payment by the respondent contemplated, acknowledged, supported and/or facilitated the making of that distinction (at  AB1864).
23. It might also be observed here that article 2(1)(b) of ICERD imposes a specific obligation upon State Parties ‘not to sponsor, defend or support racial discrimination by any persons or organizations’. This provision has been described as one which:
intends to prevent persons or organizations engaged in racial discrimination from getting the official support of the State. Thus, for instance, an official publishing house that prints a racist book, or a local government that gives financial support to a school engaging in racial discrimination, would be violating sub-paragraph (b).13
24. The learned trial judge considered, at  (AB 1865-1866), that each of the words ‘distinction’, ‘exclusion’, ‘restriction’ and ‘preference’ ‘implies differential treatment of at least one person as compared to the treatment of at least one other’. His Honour considered that ‘the only differential treatment pleaded by the applicants is in connection with their alleged employment by the Government’, and that as employment by the respondent had not been established there was no basis for alleging discrimination.
25. The Commission submits that s 9(1) of the RDA does not require an applicant to prove an employment relationship (or any other particular relationship) with the respondent. The relevant question is whether the ‘act’ ‘involves’ a distinction etc.
26. The learned trial judge at para  (AB 1869) also appeared to require what might be described as an ‘actual comparator’, to be satisfied that there was a ‘distinction’ based on race. Such approach is neither necessary nor appropriate under s 9(1) of the RDA.14 Thus, it was not necessary for the appellants to show that ‘grants were made at higher rates to facilitate higher payments to non-indigenous workers’ (at , AB 1869). It was similarly not necessary for the appellants to show that ‘the Government calculated payments to other organizations using higher wage rates’ (ibid).
27. The relevant distinction in this matter was between the amount the appellants were paid and the award. The questions that follow from this are whether the impugned act was one ‘involving’ that distinction (as discussed above), whether the making of such distinction was ‘based on race’, and whether it had the ‘purpose or effect’ identified in s 9(1).
(iii) ‘Based on race’
28. Section 9(1) of the RDA does not require an intention or motive to engage in discriminatory conduct.15 It is therefore not an answer to the allegation of discrimination that the respondent may have intended or believed that their payments were for the benefit of Aboriginal people (at  AB 1869). The payments were not, and were not claimed to be, a ‘special measure’ within the meaning of s 8 of the RDA.16
29. It is also not, with respect, relevant whether or not the Government was under an obligation to make payments to the Church for use on missions (at , AB 1869). The obligation upon the respondent was not to discriminate upon the basis of race in the payment of such grants as it chose to make.
30. As suggested above, s 9(1) does not require an ‘actual comparator’ to prove that discrimination has occurred. The grants were for expenditure on the missions of Hopevale and Wujal Wujal. A feature of those grants was that they were intended to allow for the employment of people living on those missions. Those people were ‘almost inevitably indigenous’ (at , AB1870). The grants contemplated and anticipated that those people employed would be employed at below-award rates.
31. In these circumstances, the Commission submits that the Court failed to adequately consider the following hypothetical comparisons:
- If the respondent were to have paid grants to an organization for the employment of non-Indigenous people, would it have calculated those grants on the basis of the payment by the organization of award rates?
- If the respondent were to have paid grants to an organization for the employment of non-Indigenous people would it have required the organization, in the expenditure of such grants, to pay people at award rates?
32. If the answer to either or these questions was ‘yes’, the Commission submits that the Court should have found that the respondent did an act involving a distinction ‘based on race’. The learned trial judge was correct to note that the expression ‘based on’ does not require a causal connection: at  (AB 1870).17
33. The findings of the learned trial judge at  (AB 1874) suggest, in fact, that had these questions been asked, they would have been answered in the affirmative. His Honour found that:
- it is of ‘grave concern that the Government should have chosen to ignore breaches’ of Queensland legislation,18 namely the relevant award;
- this was ‘at the expense of vulnerable citizens’, namely Indigenous people;
- ‘this attitude was the culmination of a long history of neglect of indigenous people’ ; and
- ‘the Government treated its obligations to meet the basic entitlements and needs of these people as a matter of relatively low priority’ (emphasis added).
34. Also relevant to these questions were the findings by his Honour that the respondent was paying below-award wages to Indigenous workers on the reserves which it administered but was otherwise paying award rates to employees not on reserves (at -, AB 1868).
(iv) Identification of the ‘purpose or effect’ of the relevant act
35. The learned trial judge appears to have accepted that there is a recognized ‘right to equal pay’ (at , AB 1870). This is a right explicitly recognized in article 5 of ICERD (the right to ‘equal pay for equal work’) and is accordingly a human right for the purposes of s 9(1) of the RDA: see s 9(2) RDA.
36. It is also well established that s 9(1) of the RDA protects a very broad range of rights and freedoms, beyond those contained in article 5 of ICERD.19 In Gerhardy v Brown (1985) 159 CLR 70, Brennan J stated (at 126):
The conception of the 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. If it appears that a racially classified group or one of its members is unable to live in the same dignity as other people who are not members of the group, or to engage in a public activity as freely as other can engage in such an activity in similar circumstances, or to enjoy the public benefits of that society to the same extent as others may do, and that the disability exists because of the racial classification, there is a prima facie nullification or impairment of human rights and fundamental freedoms.20
37. Consistent with the broad approach that is required in the interpretation of the RDA, the Commission submits that the expression ‘effect’ must be understood broadly. While the word ‘effect’ clearly contemplates a causal connection, the section does not require a direct causal connection: an indirect effect may be sufficient.
38. The Commission submits that it was open to the Court to find that there was a sufficient causal nexus between the amount of the grants paid by the respondents and the wages paid to the appellants, based on the following findings (at , AB 1864):
- the respondent knew that below-award wages were paid on the missions on which the appellants resided and were employed;
- it was not financially feasible for the Church to pay substantially more ‘across the board’ than the amount allowed as wages in each grant;
- the respondent ‘probably knew this’; and
- at some stage, the Government accepted that churches would pay increased wages to indigenous employees on missions only to the extent that it increased their grants.
(c) ANCILLARY LIABILITY OF THE RESPONDENT
39. The learned trial judge considered, at  (AB 1870), that there seemed to be ‘no statutory basis’ for any claim that the respondent was liable as a party to any conduct by the Church.
40. The Commission submits that his Honour should have considered s 17 of the RDA, which provides that it is unlawful for a person ‘to assist or promote, whether by financial assistance or otherwise’ the doing of an act that is unlawful by reason of Part II of the RDA. This was particularly relevant given his Honour’s views (at  AB 1874) that :
- the respondent was aware that the RDA ‘might require that indigenous workers by paid at equivalent rates to non-indigenous workers’; and
- ‘it is of grave concern that the Government should have chosen to ignore breaches’ of the RDA;
41. In addition to s 17, the Commission submits that the terms of s 9(1) extend to prohibit acts by way of assistance and promotion of acts of discrimination. There is no reason to exclude such acts from the scope of s 9(1), particularly given that s 9(4) provides that the generality of s 9 is not limited by the succeeding provisions of Part II.
- Waters v Public Transport Corporation (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J with whom Deane J agreed), 372 (Brennan J), 394 (Dawson and Toohey JJ), 406-407 (McHugh J); Australian Iron and Steel v Banovic (1989) 168 CLR 165, 196-7 (McHugh J); Qantas Airways Ltd v Christie (1998) 193 CLR 280, 331 (Kirby J).
- Waters v Public Transport Corporation (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J); IW v City of Perth (1997) 191 CLR 1, 14 (Brennan CJ and McHugh J), 22-23 (Gaudron J), 27 (Toohey), 39 and 41-42 (Gummow J) 58 (Kirby J); X v Commonwealth (1999) 200 CLR 177, 223 (Kirby J). See also s 15AA of the Acts Interpretation Act 1901 (Cth).
- Opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969 except for article 14 which came into force 4 December 1982).
- Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 264-265 (Brennan J); Gerhardy v Brown (1985) 159 CLR 70, 124 (Brennan J); Qantas Airways Limited v Christie (1998) 193 CLR 280, 303 (McHugh J), 332-3 (Kirby J). It has been held that approach is not confined in its application to ambiguous statutory provisions: X v Commonwealth (1999) 200 CLR 177, 223 (Kirby J); Qantas Airways Limited v Christie (1998) 193 CLR 280, 333 and footnotes 168-169 (Kirby J).
- Opened for signature 10 May 1969, 1155 UNTS 331(entered into force 27 January 1980). See Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 264-265 (Brennan J); Pearce and Geddes, Statutory Interpretation in Australia (5 th ed, 2001), [2.16] and the cases cited therein.
- Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 265.5 (Brennan J).
- Egon Schwelb, ‘The International Convention on the Elimination of All Forms of Racial Discrimination’, (1996) 15 Int and Comp Law Q 996, 1017.3 and generally 1017-1020.
- Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976, except Article 41 which came into force 28 March 1979).
- GA Res 217A(III), UN Doc A/810 at 71 (1948).
- Schwelb, above n 7, 1057.6.
- The source document is at AB 415ff.
- The source document is at AB 476ff.
- Nathan Lerner, The UN Convention on the Elimination of all Forms of Racial Discrimination, (2 nd ed, 1980), 37.5 (emphasis added).
- See, for example, i n the context of the Sex Discrimination Act 1984 (Cth), Thomson v Orica Australia Pty Ltd  FCA 939, -; in the context of the Disability Discrimination Act 1992 (Cth), Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, 100-1  (Gleeson CJ), 136  (McHugh and Kirby JJ), 160-1 - (Gummow, Hayne and Heydon JJ).
-  Australian Medical Council v Wilson (1996) 68 FCR 46, 74 (Sackville J); Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8, 39.
- The test for a ‘special measure’ is set out in Gerhardy v Brown (1985) 159 CLR 70, 133 and 140 (Brennan J).
- See Victoria v Macedonian Teachers’ Association of Victoria Inc (1999) 91 FCR 47; Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8, 33.
- His Honour also notes that the respondent ‘chose to ignore breaches’ of the RDA – this point is considered below.
- See Gerhardy v Brown (1985) 159 CLR 70, 101-2 (Mason J), 125-6 (Brennan J); Mabo v Queensland (No.1) (1988) 166 CLR 186, 229 (Deane J); Secretary, Department of Veteran’s Affairs v P (1998) 79 FCR 594, 599-600.
- His Honour went on to note some exceptions to this general proposition, none of which are relevant to the present appeal.
updated 1 May 2006.