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Social Justice Report 2004 : Appendix 2: How the Racial Discrimination Act 1975 applies to Shared Responsibility Agreements

Social Justice Report 2004

Appendix 2: How the Racial Discrimination Act 1975 applies to Shared Responsibility Agreements

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  • The Racial Discrimination Act 1975 (Cth) (RDA) makes it unlawful to discriminate on the basis of race, colour, descent or national or ethnic origin. The proscriptions of unlawful discrimination in the RDA potentially apply to Shared Responsibility Agreements (SRAs), including:

    • the negotiation stage of SRAs;
    • the terms and conditions imposed upon Indigenous communities, or parts of Indigenous communities, by SRAs; and
    • any other effects of SRAs on Indigenous communities or individuals.

    It is not possible to determine in the abstract, or on the basis of the information currently available, whether SRAs are likely to raise issues under the RDA. That will depend upon the terms and circumstances of each SRA.

    The relevant factors that need to be considered to establish whether a particular SRA complies with the RDA are set out below.(1)

    Unlawful discrimination under the RDA

    Section 9(1) of the RDA prohibits 'direct' discrimination on the basis of race. It provides:

    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)

    Section 9(1A) of the RDA provides for what is generally known as 'indirect' discrimination.(3) Section 8 of the RDA contains an exception to unlawful discrimination for 'special measures'.

    Each of the following elements must be established for 'direct' discrimination to be found.

    An act involving a distinction based on race

    The first element of s.9(1) of the RDA is that it is unlawful to do any act involving a distinction based on race.(4) There must be a sufficient connection between the race of the complainant and the alleged discriminatory conduct.(5)

    Set out below are hypothetical examples of how this issue might arise in the context of SRAs.

    • The government's acts in negotiating the provision of services to an Indigenous community via an SRA may be found to be acts involving a relevant distinction in circumstances where non-Indigenous communities in the same or similar localities are provided with the same or similar services in the absence of an SRA. In determining whether the distinction was 'based on' race, a Court would consider whether race was a 'real reason' or 'true basis' for that distinction.(6)

    • Once an SRA has been negotiated with an Indigenous community, a refusal by the government or some other person to provide services to that community or to a member of that community unless they comply with the requirements of the agreement may be an act involving a relevant distinction. This distinction might be said to be particularly evident if there were non-Indigenous members of the community who were not required to comply with the SRA to access the services. However, again, a court would need to be satisfied that the distinction was 'based on race', requiring consideration of the 'real reason' or 'true basis' for that distinction.

    The act impairs the enjoyment of a right 'on an equal footing'

    The second element of s.9(1) of the RDA is that the 'act' is only unlawful if it has the purpose or effect of impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom.

    The phrase on an equal footing contemplates a comparison of some kind. The comparison must involve the group, defined by reference to race, to which the complainant belongs. In determining the group with whom the comparison should be made, s.9(1) has been held to allow a broad comparison 'that involves looking at the footing upon which rights are enjoyed by those sections of the community at large who do not suffer from the racial discrimination...that the Act aims to eliminate'.(7)

    The appropriate comparator will therefore depend on the circumstances and nature of a particular complaint. For example, the appropriate comparison for an Indigenous community that is subject to the terms of an SRA that provides services to promote economic development in return for the maintenance of health and hygiene standards in the community might be to:

    • any other remote non-Indigenous communities that receive government services to assist with the economic development of the region but are not required to enter into SRAs; or
    • any non-Indigenous people within the proximity of the Indigenous community that benefit from the economic development of that community, but are not subject to the terms of the SRA.

    A human right or fundamental freedom is impaired

    The third element of s.9(1) is that an act involving a distinction based on race is only unlawful if it has the purpose or effect of nullifying or impairing the enjoyment of a person's human rights and fundamental freedoms on an equal footing with persons of other races.

    The terms 'human rights' and 'fundamental freedoms' in s.9(1) of the RDA describe those rights and freedoms the enjoyment of which permits each member of a society equally with all other members of that society to live in 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;
    • engage in a public activity as freely as others 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;

    then there is a prima facie nullification or impairment of human rights and fundamental freedoms.(8)

    The reference to a human right or fundamental freedom includes, but is not limited to, any right of a kind referred to in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).(9) Article 5 includes political rights, civil rights, and economic, social and cultural rights, including:

    • 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;
    • the right to housing;
    • the right to public health, medical care, social security and social services;
    • the right to education and training;
    • the right to equal participation in cultural activities;
    • the right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks.

    It is relevant to note that human rights and fundamental freedoms do not encompass every right which a person has under a particular legal system.(10) For example, not all forms of welfare can be characterised as a human right or as falling within the right to social security and social services mentioned in Article 5 of CERD.

    In Secretary, Department of Veteran's Affairs v P,(11) the Court held that the right to a war veteran's benefit fell outside the rights referred to in s.9(1). This was because the benefit, being 'confined to those persons who have served the interests of one nation against the interests of other nations, stands outside the range of universal human rights, that is, rights to which all persons are entitled equally with everyone else irrespective of their national origins'.(12) Further, the benefit was held to fall outside the right to social security and social services (as mentioned in Article 5 above). This was because Article 5 'deals only with State-provided assistance to alleviate need in the general community and with benefits provided to advance the well-being of the entire community'.(13) His Honour concluded, citing his earlier decision in Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 476-477;

    ... the rights and freedoms protected by ss 9(1) and 10(1) [of the RDA] do not encompass every right which a person has under the municipal law of the country that has authority over him or every other right which he may claim; rather are those sections limited to protecting those particular rights and freedoms with which the Convention is concerned and those other rights and freedoms which, like those specifically referred to in the Convention, are fundamental to the individual's existence as a human being.(14)

    An assessment of whether an SRA has the effect of nullifying or impairing the enjoyment of a person's human rights and freedoms on an equal footing with persons of other races will be a central issue in the determination of whether a particular agreement is unlawful under the RDA.

    Relevant to this assessment is the nature of the services provided to Indigenous communities by SRAs. Significant debate has arisen in relation to whether the services provided via SRAs may indeed be 'essential services'.(15) That is, however, not the question. The question is whether there is a relevant human right or fundamental freedom. Article 5 of CERD refers to rights including:

    • the right to public health, medical care and social services;
    • the right to education and training; and
    • the right of access to any place or service intended for use by the general community.

    If an SRA clearly deals with those matters it is more likely to potentially involve the nullification or impairment of relevant human rights. Many SRAs are, however, likely to raise more difficult questions. For example, it might be argued that the provision of public money for social services to a particular Indigenous community falls outside the right to social services in Article 5 of CERD, by reason of its targeted nature. That is, it might be argued that the benefit is conferred on too narrow a section of the community and it is not provided to advance the well being of the entire community.(16)

    Could an SRA be considered a 'special measure' under the RDA?

    Section 8(1) of the RDA contains an exception to unlawful discrimination for special measures. It provides that:

    This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which sub-section 10(1) applies by virtue of sub-section 10(3).

    Article 1(4) of CERD, with which s 8(1) is concerned, provides as follows:

    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.

    There are four elements of a special measure, as follows. A special measure:

    • confers a benefit on some or all members of a class;
    • the membership of which is based on race, colour, descent, or national or ethnic origin;
    • 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 freedoms; and
    • in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and freedoms. (17)

    A special measure must not be continued after the objectives for which it was taken have been achieved.(18) The determination of whether a particular SRA could be considered a special measure within the meaning of the RDA will depend upon the facts and circumstances of the agreement. The issues to be considered in making this determination are set out below.

    Does the measure confer a benefit on a class?

    The first question to be considered is: does the measure confer a benefit on some or all members of a class. The class to be benefited must be a racial group or individuals belonging to the group. In making this assessment, courts have looked to both the benefits of a measure and any costs or disadvantages borne by the beneficiaries of the measure.(19)

    SRAs provide for the delivery of government funded services to Indigenous communities on the condition that the communities contribute in return for the government assistance. The assessment of whether a particular agreement confers a benefit on an Indigenous community will turn on the terms of the agreement. In conducting this assessment, a court is likely to consider both the services provided to the community and the impact of the conditions imposed by the agreement.

    One issue that may arise is whether any conditions imposed by a particular SRA require the Court to conclude that there is in fact no benefit conferred, meaning that it is inconsistent with the character of a special measure.(20) Difficult issues of fact would arise here and close scrutiny of the particular SRA would be required to consider such an argument.

    The purpose of the measure

    A special measure must have the sole purpose of securing adequate advancement of the beneficiaries. There are a number of sources from which the purpose of a special measure can be discerned. The purpose of a measure is discerned from its terms and from the operation which it has in the circumstances to which it applies. Any fact which shows what the persons who took the measure intended it to achieve casts light upon the purpose for which it was taken provided the measure is not incapable of achieving what is intended.(21)

    However, the purpose of securing adequate advancement for a racial group is not necessarily established by showing that the person who takes the measure does so for the purpose of conferring a benefit, if the group does not seek or wish to have the benefit. In Gerhardy v Brown,(22) Brennan J stated that 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'. (23) Brennan J went on to state:

    The dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them. An Aboriginal community without a home is advanced by granting them title to the land they wish to have as a home. Such a grant may satisfy a demand for land rights. But an Aboriginal community would not be advanced by granting them title to land to which they would be confined against their wishes.(24)

    Importantly, the terms and conditions upon which the benefit is conferred will be relevant to the court's assessment of the purpose of the agreement. The wishes of the Indigenous community with whom the agreement was made may also be relevant. We note, however, that difficult issues may arise for a court's consideration where the wishes or views of the Indigenous community are not uniform.

    The need for the measure

    The next question: is there a need to take the measure and does the measure secure no more than adequate advancement? The need must match the purpose.

    To determine whether the measure in question is necessary to remove inequality in fact, the circumstances affecting the lives of the Indigenous community must be known and an opinion must be formed as to whether the measure is necessary and likely to be effective to improve those circumstances. The objective circumstances affecting the disadvantaged group are matters of fact that are capable of ascertainment albeit with difficulty.(25)

    Once the objective circumstances have been ascertained, an assessment must be made about a number of matters: What is 'adequate advancement' of the beneficiaries in the circumstances? Do they require the protection given by the measure in order to enjoy human rights and freedoms equally with others? The High Court has held that this is, at least in some respects, a political question that a court is ill equipped to answer. Accordingly, a court can go no further than determining whether the political branch of government that employed the measure acted reasonably in making its assessment. The question becomes: could the political assessment inherent in the measure reasonably be made? (26)

    The measure must not be continued once its objectives have been achieved

    Article 1(4) of CERD provides that measures must not 'lead to the maintenance of separate rights for different racial groups' nor 'be continued after the objectives for which [they were] taken have been achieved'.

    The High Court has held that this does not deny the character of a special measure to a measure that does not, from its inception, define the time when it is to cease. The indicium is satisfied if, when the time arrives, separate rights are repealed and special measures are discontinued. Brennan J stated as follows in Gerhardy v Brown:

    As it is impossible to determine in advance when the objectives of a special measure will be achieved, the better construction of the provisos is that they contemplate that a State Party will keep its special measures under review, and that the measure will lose its character of a special measure at the time when its objectives have been achieved. But the provisos do not require the time for the operation of the special measure to be defined before the objectives of the special measure have been achieved.(27)

    In the event that SRAs do not provide for the review of the provision of services to Indigenous communities or define a time when the provision of the services is to cease, this would not be fatal to the characterisation of the agreement as a special measure. It is, however, contemplated that the government would keep the agreements under review in order to monitor whether the stated objectives have being achieved.

    Summary

    SRAs and the circumstances surrounding their negotiation and application are subject to the operation of the RDA. Complaints of racial discrimination under s.9(1) of the RDA may be brought to the Human Rights and Equal Opportunity Commission (the Commission) for investigation and conciliation.(28) If conciliation is unable to resolve the complaint, then it is terminated by the Commission(29) and the complainant may make an application to the Federal Magistrates Court or the Federal Court.(30)

    It is not possible to determine in the abstract (and on the basis of the information currently available) whether SRAs will breach the RDA. Accordingly, we have set out above the elements of 'direct' race discrimination under the RDA and the issues that might arise from the negotiation and implementation of SRAs, as well as the elements that would need to be satisfied for an SRA to constitute a special measure.

    Endnote

    1. Please note: (1) This material is provided for information only. It should not be relied upon for legal advice. (2) It has been assumed that the development of SRAs will be an exercise of the executive power of the Commonwealth under s.61 of the Constitution. We are not aware of any new legislation that has been introduced to provide a statutory basis for SRAs. If an agreement is authorised by legislation, other issues may arise (see s10(1) of the RDA).
    2. The RDA also includes specific prohibitions on direct discrimination in certain areas of public life: access to places and facilities (s.11); land, housing and other accommodation (s.12); provision of goods and services (s.13); right to join trade unions (s.14); and employment (s.15).
    3. This appendix focuses on direct discrimination and does not consider the necessary elements for establishing indirect discrimination under the RDA. For information about the necessary elements for establishing indirect discrimination see: Aboriginal and Torres Strait islander Social Justice Commissioner, 'Implications of the Racial Discrimination Act 1975 with reference to state and territory liquor licensing legislation', Speech - 34th Australasian Liquor Licensing Authorities' Conference, 26-29 October 2004, Hobart, Tasmania, online at: http://www.humanrights.gov.au/speeches/race/LiquorLicensingAuthoritiesConference.html.
    4. We use the expression 'based on race' to mean 'based on race, colour, descent or national or ethnic origin'.
    5. Macedonian Teachers' Association of Victoria Inc v HREOC (1998) 91 FCR 8 at 33.
    6. Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133, 138 [14] (Gleeson CJ), 171-2 [166] (McHugh and Kirby JJ), 187 [236] (Gummow, Hayne and Heydon JJ). Section 18 of the RDA provides that where an act is done for two or more reasons, and one of the reasons is race (or other ground), the act will be taken to be done by reason of race (or other ground), whether or not this is the dominant or even a substantial reason for doing the act. It is sufficient if race or another ground is simply one of the reasons for doing an unlawful act.
    7. Australian Medical Council v Wilson (1996) 68 FCR 46 at 48.
    8. Gerhardy v Brown (1985) 159 CLR 70 at 126-127. There are some limited exceptions to this proposition. See for example the discussion on special measures below.
    9. Section 9(2) of the RDA.
    10. Gerhardy v Brown (1985) 159 CLR 70 at 126.
    11. (1998) 79 FCR 594.
    12. Ibid 600.
    13. Ibid 601.
    14. Ibid 599-600.
    15. Carr, K, 'Government indigenous deals one-sided', Media release, 8 December 2004; Ridgeway, A, 'Mutual obligation: The door swings both ways', Media Release, 9 December 2004.
    16. See analogous reasoning in Secretary, Department of Veteran's Affairs v P (1998) 79 FCR 594.
    17. Gerhardy v Brown (1985) 159 CLR 70 at 133.
    18. Ibid 139.
    19. Ibid 133.
    20. Ibid 133-134. See Brennan J's consideration of whether the Land Rights Act conferred a benefit on Pitjantjatjaras.
    21. Ibid 135.
    22. (1985) 159 CLR 70 .
    23. Ibid at 135 .
    24. Ibid.
    25. Ibid 137.
    26. Ibid 137-139.
    27. Ibid 140.
    28. Section 46P of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
    29. Section 46PH(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
    30. Section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).