Aurukun Shire Council v CEO Office of Liquor Gaming and Racing in the Department of Treasury
[2010] QCA 37
•1 March 2010
SUPREME COURT OF QUEENSLAND
CITATION:
Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37
PARTIES:
AURUKUN SHIRE COUNCIL
(applicant/appellant)
v
CHIEF EXECUTIVE, OFFICE OF LIQUOR GAMING AND RACING IN THE DEPARTMENT OF TREASURY
(respondent/respondent)KOWANYAMA ABORIGINAL SHIRE COUNCIL
(applicant/appellant)
v
CHIEF EXECUTIVE, OFFICE OF LIQUOR GAMING AND RACING IN THE DEPARTMENT OF TREASURY
(respondent/respondent)FILE NO/S:
Appeal No 13499 of 2008
Appeal No 13501 of 2008
SC No 516 of 2008
SC No 528 of 2008DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeals
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
1 March 2010
DELIVERED AT:
Brisbane
HEARING DATE:
4 August 2009
JUDGES:
McMurdo P, Keane JA and Philippides J
Separate reasons for judgment of each member of the Court, each agreeing to the order dismissing the appealsORDERS:
In each appeal:
1. Application to adduce further evidence refused
2. Appeals dismissed
CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – RACIAL DISCRIMINATION – where the appellants are local government authorities constituted under the Local Government Act 1993 (Qld) – where the appellants held general liquor licences under the Liquor Act 1992 (Qld) – where the appellants’ licences were revoked under the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Act 2008 (Qld) – where the appellants were the only licence holders affected by the Act – where the populations governed by the appellants are almost entirely Indigenous – where the appellants are entirely comprised of Indigenous members – whether the Act offends s 10 of the Racial Discrimination Act 1975 (Cth) – whether the Act limits the enjoyment of Aboriginal people of the right to equal protection of laws without discrimination – whether the Act limits the enjoyment of Aboriginal people of the right to equal participation in cultural activities – whether the Act limits the enjoyment of Aboriginal people of the right to access places and services used or intended for use by the general public – whether the Act limits the enjoyment of Aboriginal people of the right to not be arbitrarily be deprived of property
Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Act 2008 (Qld)
Aboriginal Communities (Justice and Land Matters) Act 1984 (Qld)
Acts Interpretation Act 1901 (Cth), s 22(1)(a)
Acts Interpretation Act 1954 (Qld), s 36
Commonwealth Constitution, s 109
Community Services Legislation Amendment Act 2002 (Qld)
Indigenous Communities Liquor Licences Act 2002 (Qld)
Liquor Act 1992 (Qld), s 3(a), s 3(b), s 3(e), s 3(A)(4), s 106(4), s 278, s 278(1), s 278(2), s 279
Local Government (Aboriginal Lands) Act 1978 (Qld), s 3, s 5, s 6, s 9, s 10, s 12, s 19
Local Government (Community Government Areas) Act 2004 (Qld), s 11(1), s 70
Local Government Act 1993 (Qld), s 3, s 36(1), s 146
Racial Discrimination Act 1975 (Cth), s 6, s 6A, s 8, s 8(1), s 9, s 10, s 10(1), s 10(2), s 12, s 13, s 14, s 15, s 18
United Nations Universal Declaration of Human Rights, Art 1, Art 2, Art 7, Art 17, Art 17(2), Art 29(2)
United Nations International Covenant on Civil and Political Rights, [1980] ATS 23, Art 1, Art 26, Art 28
United Nations International Convention on the Elimination of All Forms of Racial Discrimination, [1975] ATS 40, Art 1, Art 1(1), Art 1(4), Art 2, Art 2(1), Art 2(2), Art 2(d)(v), Art 2(d)(ix), Art 2(e)(vi), Art 2(f), Art 5, Art 5(a), Art 5(b), Art 5(d)(v), Art 5(d)(ix), Art 5(e)(vi), Art 5(f)Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313; [2007] FCA 615, cited
Attorney-General (WA) v Marquet (2003) 217 CLR 545; [2003] HCA 67, cited
Aurukun Shire Council v CEO Office of Liquor Gaming and Racing in the Department of Treasury (2008) 222 FLR 122; [2008] QSC 305, considered
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; [1992] HCA 45, applied
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, applied
Bropho v Western Australia [2009] HCATrans 170, cited
Bropho v Western Australia and Others (2008) 169 FCR 59; [2008] FCAFC 100, applied
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; [1990] HCA 1, cited
Clunies-Ross v The Commonwealth (1984) 155 CLR 193; [1984] HCA 65, cited
Dilworth v Commissioner of Stamps [1899] AC 99, cited
Ebber and Another v Human Rights and Equal Opportunity Commission and Others (1995) 129 ALR 455, cited
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, applied
Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11, applied
Hewlett v Min of Finance & Anor (1982) (1) SA 490 (ZS) 490, cited
Jango v Northern Territory (2006) 152 FCR 150; [2006] FCA 318, cited
Kartinyeri v The Commonwealth of Australia (1998) 195 CLR 337; [1998] HCA 22, applied
Koowarta v Bjelke-Petersen (1982) 153 CLR 168; [1982] HCA 27, applied
Mabo v Queensland (1988) 166 CLR 186; [1988] HCA 69, applied
Mathieson v Burton (1971) 124 CLR 1; [1971] HCA 4, cited
Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, cited
Muslimin v The Queen [2009] HCA Trans 240, cited
National Provincial Bank Ltd v Ainsworth [1965] AC 1175; [1965] UKHL 1, cited
Nationwide News Ltd v Wills (1992) 177 CLR 1; [1992] HCA 46, cited
Neutral Bay P/L v DCT; MA Howard Racing P/L v DCT; Broadbeach Properties P/L v DCT [2007] QCA 312, applied
Pilkington (Australia) Ltd v Minister of State for Justice and Customs (2002) 127 FCR 92; [2002] FCAFC 423, considered
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, applied
R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154, cited
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; [1982] HCA 69, applied
Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73, cited
Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373; [2007] QCA 73, applied
State of Tasmania v The Commonwealth of Australia and State of Victoria (1904) 1 CLR 329; [1904] HCA 11, cited
St Vincent de Paul Society Qld v Ozcare Ltd & Ors [2009] QCA 335, applied
Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189, cited
Western Australia v The Commonwealth (1995) 183 CLR 373; [1995] HCA 47, cited
Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, applied
Woomera Aboriginal Corporation v Edwards (1993) HREOCA 24; (1994) EOC 92-653, cited
York v The Queen (2005) 225 CLR 466; [2005] HCA 60, cited
YZ Finance Co Pty Ltd v Cummings (1963) 109 CLR 395; [1964] HCA 12, citedCOUNSEL:
D Campbell SC, with G Del Villar, for the appellants
M Hinson SC, with M Plunkett, for the respondent
K Eastman for the Australian Human Rights CommissionSOLICITORS:
Bottoms English for the appellants
Crown Law for the respondents
No appearance for the Australian Human Rights Commission
TABLE OF CONTENTS
Reasons of McMurdo P 7
The relevant explanatory notes and related background material
The relevant provisions of the Liquor Act, including the impugned provisions
The relevant provisions of the Racial Discrimination Act
Do the impugned provisions offend s 10 of the Racial Discrimination Act?
(a) Police officer Alexander's evidence
(b) The applicable principles in identifying whether a right is within the scope of s 10
(c) Can s 10 apply to the appellants which are local governments, not individuals?
(d) Do the impugned provisions compromise the enjoyment of a s 10 right or rights?
(i) The right to equal treatment before the law
(ii) The right to own property
(iii) The right to freedom of peaceful assembly and association
(iv) The right to equal participation in cultural activities
(v) The right of access to a service intended for use by the general public, such as hotels
(e) The construction of s 10 taken in Bropho
(f) The application of Bropho to s 10 in this case
(i) The enjoyment of the right to own property
(ii) The enjoyment of the right to equal treatment before the law and of access to a service intended for use by the general public, such as hotels
(g) Conclusion on s 10
Are the impugned provisions special measures under s 8 of the Racial Discrimination Act?
(a) Do the impugned provisions confer a concrete benefit on the appellants' Indigenous constituents?
(b) Is it necessary for the appellants' communities to give informed consent to the impugned provisions?
(c) Are the impugned provisions appropriate and reasonably adapted to their purpose?
(d)Conclusion on s 8
Summary
Costs
Orders
Reasons of Keane JA 42
The proceedings at first instance
The decision of the learned primary judge
Section 10 of the Racial Discrimination Act
Convention on the Elimination of All Forms of Racial Discrimination
The arguments of the parties
The learned primary judge's comparison
What "rights" are affected?
Bropho v Western Australia and Article 5(b) of the Convention on the Elimination of All Forms of Racial Discrimination
The comparison required by s 10 of the Racial Discrimination Act
The appellants' licences as property rights
A special measure?
The need for consultation
The process of consultation
Reasonably proportionate?
Conclusions and orders
Reasons of Philippides J 82
CERD
Principles applicable to the construction of s 10 of the Racial Discrimination Act
The special measures exception in s 8 of the Racial Discrimination Act
The construction of s 10 of the Racial Discrimination Act in Bropho
Do the impugned provisions offend s 10 of the Racial Discrimination Act?
(a) The right to equal protection of the laws without discrimination
(b) The right not to be arbitrarily deprived of property
(c) The right to equal participation in cultural activities
(d) The right to access places and services
Conclusion and orders
McMURDO P: These two appeals turn on similar facts and raise related, complex and divisive human rights issues. The appellants are, respectively, the Aurukun Shire Council[1] and the Kowanyama Shire Council.[2] The Aurukun Shire Council is the lessee of all the land in the Aurukun Shire.[3] The Aurukun Shire Council holds its interest in this land on trust for the benefit of residents of its shire.[4] Residency rights in Aurukun Shire are largely restricted to those Aborigines entitled to reside there on 5 April 1978, their descendants, and partners.[5] The Kowanyama Shire Council, once an "Aboriginal council"[6] became Kowanyama Shire Council under the Local Government (Community Government Areas) Act 2004 (Qld).[7] The respondent in both appeals is Queensland's Chief Executive, Office of Liquor, Gaming And Racing in The Department of Treasury. Before 1 July 2008, each appellant held a general liquor licence under the Liquor Act 1992 (Qld) for licensed premises, the only liquor licence in each shire. It is common ground that both the Aurukun Shire[8] and the Kowanyama Shire[9] are remote Queensland Indigenous communities and that all the appellants' councillors and most of their constituents are Indigenous.
[1]Appeal No 13499 of 2009.
[2]Appeal No 13501 of 2009.
[3]Local Government (Aboriginal Lands) Act 1978 (Qld), s 3(1)(a).
[4]Local Government (Aboriginal Lands) Act 1978 (Qld), s 5.
[5]Local Government (Aboriginal Lands) Act 1978 (Qld), s 19.
[6]See Aboriginal Communities (Justice and Land Matters) Act 1984 (Qld).
[7]See Local Government (Community Government Areas) Act 2004 (Qld), ss 69 – 83 and Sch 3.
[8]The Quarterly Report on Key Indicators in Queensland's Discrete Indigenous Communities April-June 2009 describes Aurukun as located in western Cape York, 900 kilometres northwest of Cairns and 200 kilometres south of Weipa with a population of about 1,200 people as at 30 June 2008. It is peopled by the "Wik and Wik Waya peoples comprised of five spiritual clan groups: Apalech, Winchanam, Wanam, Chara, and Puutch. The five spiritual clan groups are comprised of 17 families or tribes. These families and tribes are linked to culturally significant areas of land through totemic ownership and distribution." (p 8).
[9]The Quarterly Report on Key Indicators in Queensland's Discrete Indigenous Communities April-June 2009 describes Kowanyama as located in western Cape York, 620 kilometres northwest of Cairns with a population of about 1140 as at 30 June 2008. It is peopled by the "Koko Berra, Yir Yorant (or Kokomnjen), Kunjen, Olkol, and other regional Aboriginal people. Its inhabitants are defined by their relationship to the Mitchell River, the main language groups are Yir Yorant, Yik Thangalkl (together comprising Kikomenjen group), Uw Oykangand and Olgol (together comprising the Kunjen group), and Kokobera." (p 32)
On 21 May 2008, the Queensland legislature amended the Liquor Act[10] to provide that local governments like the appellants may not apply for or hold a general liquor licence.[11] I will refer to these amendments as "the impugned provisions". The primary judge refused the appellants' application to declare the impugned provisions invalid. The appellants submit that the impugned provisions are inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) ("the RDA") in that they compromise the enjoyment of Indigenous persons' rights to equal treatment before the law; to own property; to freedom of peaceful assembly and association; to equal participation in cultural activities; and of access to a service intended for use by the general public, such as hotels. They further contend that the impugned provisions are not within the special measures exceptions in s 8 of the RDA and therefore should be struck down under s 109 of the Commonwealth Constitution.[12]
[10]Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Act 2008 (Qld).
[11]Liquor Act 1992 (Qld), s 106(4); s 278(1) and s 279.
[12]"109. Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."
The respondent's primary position is that the impugned provisions do not offend s 10 as they do not compromise Indigenous people's enjoyment of a human right enjoyed by non-Indigenous people. The respondent's secondary position is that, if they do, they are within the exceptions referred to in s 8 and not unlawful.
Consistent with the approach taken to amicus curiae in Levy v Victoria,[13] this Court gave leave to the Commonwealth Human Rights and Equal Opportunity Commission (HREOC) to make written and oral submissions in these appeals. HREOC, in attempting to assist the Court, did not contend for a particular outcome. It encouraged this Court, however, to adopt a broad approach in construing the rights to which s 10 refers.
[13](1997) 189 CLR 579.
I have reached the following conclusions. The impugned provisions compromise the enjoyment of Indigenous people's rights to equal treatment before the law and of access to a service intended for use by the general public, such as hotels. The appellants have failed to establish in this case that the impugned provisions compromise the enjoyment of Indigenous people's rights to own property; to freedom of peaceful assembly and association; or to equal participation in cultural activities. Despite the fact that the impugned provisions compromise the enjoyment of s 10 human rights, they are special measures under s 8 of the RDA and so are exempt from the application of the RDA. They are therefore not inconsistent with the RDA, and s 109 of the Commonwealth Constitution has no application. These are my reasons for reaching those conclusions and for dismissing both appeals.
The relevant explanatory notes and related background material
I consider it critical in these appeals to understand the legislative intent behind the impugned provisions, in order to determine both whether they compromise a s 10 right and whether they are special measures exceptions to the RDA under s 8. The following extracts from the explanatory notes to the relevant amending Bill[14] and from other related material are pertinent to that discussion.
[14]Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Bill 2008 (Qld).
The explanatory notes include the following pertinent statements:
"The main objectives of the Bill are to amend relevant legislation to:
(a)ensure that the full policy intent of the alcohol restrictions in discrete Indigenous communities, namely the reduction of alcohol-related harms, can be more effectively and consistently realised …
Policy rationale
Amendments relating to alcohol
Background
In December 1998 the then Minister for Women's Policy established the Aboriginal and Torres Strait Islander Women's Task Force on Violence. In July 2001 Justice Tony Fitzgerald, at the request of the Queensland Government, undertook the Cape York Justice Study in relation to Indigenous communities on the Cape. Both concluded that harmful levels of alcohol consumption in remote Indigenous communities were the chief precursor to violence, crime, injury and ill-health in these populations.
The Meeting Challenges, Making Choices (MCMC) strategy was the Queensland Government's response to the Study in 2002 and aimed to improve the health and well-being of those people living in the 19 discrete Indigenous communities (the MCMC communities) with an immediate focus on addressing the level of alcohol use and related violence.
(The MCMC communties are: Aurukun, … Kowanyama … .)
Alcohol management under the MCMC strategy had three interdependent elements:
(a) separation of the management of canteens from councils:
while legislation was passed to support the divestment of canteen licences, implementation proved to be problematic and divestment has not occurred to date.
(b) restriction of supply and availability of alcohol: broadly, the alcohol restrictions regime is implemented through legislation: the Liquor Regulation 2002 has a schedule for each community which details the restricted area and the restrictions and the Liquor Act 1992 provides that it is an offence to have more than the prescribed amount of liquor in a restricted area (section 168B).
In determining the restrictions on the type and amount of alcohol in individual communities, the Government considered the level of harm occurring in the community and the recommendations of the local community justice group. The outcome has become known as the alcohol restrictions for the community.
Aurukun was the first community to have alcohol restrictions put in place in December 2002. Palm Island was the last in June 2006.
(c)demand reduction initiatives: the Alcohol Demand Reduction Program, which commenced distribution of grants in 2006, has provided funding for projects, programs and services which assist a community to:
· provide appropriate activities and supports for young people and families to enhance culture, education and recreation; and
· develop strategies with government and non-government agencies for alcohol and other substances treatment services.
Recent developments
In early 2007 the Office for Aboriginal and Torres Strait Islander Partnership, Department of Communities, commenced a whole-of-government review of alcohol and other substances policy, programs and service settings in the MCMC communities (the review).
The review findings indicated that, to date, there has not been a sufficient or sustained improvement in the level of harms which are alcohol-related and a more concerted, intensive and sustained program of action is needed across four key themes: strengthening supply restrictions; strengthening demand reduction; strengthening individual, family and community; and strengthening service delivery.
The government response has been to commit to: an incentive package to encourage communities to be as alcohol-free as they can be; enhancement of acute alcohol rehabilitation and treatment services; diversionary services and programs; as well as the legislative and enforcement measures contained in this Bill. The State Government has committed $66 million and the Commonwealth Government $36 million to service and program enhancement.
Policy rationale
The alcohol restrictions, and the measures to enforce them, are therefore only part of the broader plan to address alcohol-related harm, in particular to reduce alcohol-related violence, and thereby improve the health and well-being of all community members, especially children.
However, the review found that there are currently gaps in the legislative response which means that the policy intent of the restrictions, namely limiting access to, or availability of, alcohol in order to reduce alcohol-related harms, cannot be fully realised. For example, the restrictions currently only apply to public places in the communities. The result is that, if people are able to get illicit alcohol through the community and into a house, the ability of the police to act is limited.
It is anticipated that, if in due course there is a sufficient decline in alcohol-related harms, restrictions can change, with an eventual goal of no restrictions, although it is acknowledged that this may take years rather than months.
…
How objectives are achieved
The objective of ensuring that the full policy intent of the alcohol restrictions in discrete Indigenous communities is achieved by amending the appropriate legislation to ensure that all parts of the restricted area are subject to the restrictions; the police have appropriate powers to enforce the restrictions; drinking in public places in the MCMC communities is prohibited in the same way as the rest of Queensland; home-brew is automatically banned where there is a zero carriage limit; and councils are finally divested of their general liquor licences.…
Alternative method of achieving the policy objectives
There is no alternative method of achieving the policy objectives as all require amendment of existing legislation.
...
Appeal and compensationThe Bill does not provide for an appeal, and specifically provides that compensation will not be payable, as a result of councils no longer being able to hold general liquor licences or a transfer application lapsing.
The divestment of canteens from local governments is a policy decision based on the inappropriateness of local government social services being reliant on the level of profit from a business whose purpose is to sell alcohol, particularly when alcohol-related harm is driving the need for those services. An appeal is not relevant in this situation as there is no discretion in relation to the cancellation. It is possible for the chief executive of Queensland Treasury, as the department which currently has responsibility for the Liquor Act 1992, to continue the licence for a limited period to enable the coordination of health and other services and diversionary activities at the time the licence is cancelled. Again, an appeal is not relevant in these circumstances.
As part of the alcohol reforms, the Government has committed $14 million as revenue replacement over the next 4 years for canteen profits to the extent they have been used to provide social services. This is not direct compensation, but is to ensure that there is no loss in services as a result of councils no longer having canteens as a source of revenue.
With respect to licence transfer applications, following the introduction of this Bill, councils will be provided with information on the Government’s intentions in relation to transfers of canteens. This will ensure that anyone who lodges an application for transfer is aware of the relevant provisions."
It is clear from these extracts that the legislature intended the impugned provisions to reduce "alcohol-related violence, and thereby improve the health and well-being of all [Indigenous] community members, especially children",[15] by imposing alcohol restrictions in the relevant Indigenous communities, restrictions which did not exist in the broader Queensland community. In explaining that legislative intent, the explanatory notes cite and rely upon the 1999 Aboriginal and Torres Strait Islander Women's Task Force on Violence Report[16] (which I shall call the Task Force Report) and the 2001 Cape York Justice Study[17] (which I shall call the Study). To fully comprehend the legislative intent behind the impugned provisions, it is therefore sensible to next set out relevant extracts from the Task Force Report and the Study.
[15]Explanatory notes, 3.
[16]Queensland Department of the Premier and Cabinet & Tony Fitzgerald, 2001, Cape York Justice Study.
[17]Aboriginal and Torres Strait Islander Women's Task Force on Violence & Queensland Department of Aboriginal and Torres Strait Islander Policy and Development, 2000, The Aboriginal and Torres Strait Islander Women's Task Force on Violence Report.
The membership of the Task Force which compiled the Report included Aurukun woman Elder, Ms Edwina Toikalkan and Kowanyama woman Elder, Mrs Evelyn Josiah. The Task Force Report emphasised the need to include Indigenous people in all collaborations with service agencies involved in strategies aimed at terminating the illicit alcohol trade.[18] The Task Force Report noted that, although there were many responsible Indigenous social drinkers:
[18]Task Force Report at 146.
"… both the consultations and the submissions generally focussed on alcohol as featuring prominently in violence and its use therefore must be addressed as a priority.[19]
… During the consultative process in Indigenous Communities informants indicated the extent of the damage being caused through the abuse of alcohol.[20] …
Submissions in the consultations forc[efully] stated that if the issue of alcohol were addressed, violence would decrease.[21] … The summary of the report on alcohol-related violence in Aboriginal and Torres Strait Islander Communities found:[19]Task Force Report at 64-65.
[20]Task Force Report at 67.
[21]Task Force Report at 68.
·violence is pervasive;
·women are more likely to be victims and men perpetrators;
·violent episodes are often associated with drinking.
The relationship between drinking and violence is not directly causal, but alcohol may facilitate or incite violence by providing a socially acceptable excuse for the negative behaviour. Indigenous women associate violence with alcohol, often seeing it as a contributing factor or a cause, or listing it as one of the reasons for increased violence.[22]
Noel Pearson has written that: '… surely the fact that the per capita consumption of alcohol in Cape York is the highest in the world says something about our dysfunction.' In every document or study on violence within Aboriginal and Torres Strait Islander situations, the issue of alcohol and its effects are raised. In fact, most of the women in Cape York say alcohol causes violence. Canteens on Communities are a continuing source of contention. There are calls to 'close the canteens'. While this opinion was expressed through the consultations, a more powerful call was for the canteens to be properly run. It is important to recognise that not all canteens were put into place by the will of the Community.
For years the people of Aurukun said no to a canteen at public meetings and in a referendum. However, after Aurukun received Local Government status, the then Local Government Minister, Mr Russ Hinze, decided it was discriminatory for the Aurukun Community not to have a canteen like other Queenslanders. A canteen was built in the middle of Centenary Park, in the midst of the children's playground equipment! Great role modelling for the children as they play around the canteen at night.
I've seen children in school holidays hanging around outside the canteen … in the middle of the day drinking glasses of beer. Some children roam around until the early hours of the morning. Neglect is the real problem … and this lack of supervision leaves opportunities for children to be sexually abused.[23]
[22]Task Force Report at 71.
[23]Task Force Report at 71-72.
Later, the Task Force Report relevantly continued:
"Throughout the consultations informants constantly raised both the human and the social costs of alcohol. They were also concerned about the level of revenue being generated by both Councils and the Government from the sale of alcohol, with few, if any, benefits being given back to the Communities.[24] …
[24]Task Force Report at 135.
Many Community Councils must rely on the income derived from the canteens that they operate for the delivery of essential services.
…
… the strongest voice for banning alcohol completely came from women at Kowanyama. They spoke too of their fear that, if the canteen was closed, the sly grog trade would increase. The problem would not go away. Kowanyama has a population of approximately 1200 people. Of this population, it was estimated that about 600 people drink 'seriously'.
…In 1988, the Report of the Queensland Domestic Violence Task Force recommended:
… that the sly grog trade be brought to the attention of the Ministers responsible for Police, Justice and Community Services with a view to developing strategies including legal remedies to eliminate the practice of the supply of sly grog.
Eleven years on and the sly grog continues to be a major problem within the DOGIT Communities. It is being brought in by plane and road, and local Aboriginal people and white service workers/contractors have been identified as the main offenders.[25]
…The Task Force was advised of Community concerns about the benefits obtained by both the Community Councils and Government from the sale of alcohol. A large number of Community representatives felt that the human costs resulting from the sale of alcohol are of little concern to the sly grog distributors, canteen operators or the external world.
Some responsible Councils channel funds back into Community services. For example, Kowanyama Council returns all its canteen profits to the Community to fund facilities for childcare, aged care, the women's shelter and the mother-child program. In other Communities, however, there was little evidence that funds from liquor sales were being used for the direct benefit of community welfare agencies. Ironically, these agencies are left to deal with the problems caused by alcohol consumption."
[25]Task Force Report at 138-139.
The Study reported into issues including the causes, nature and extent of alcohol and substance abuse in the Cape York Indigenous communities and reached the following relevant conclusions:
"Aboriginal children are over-represented in child protection cases. Child abuse, including sexual abuse and neglect, is linked to heavy drinking …"[26] …
Perhaps the worst instance of rigid adherence to theory in the face of proven failure concerns the supply of alcohol. … alcohol is their common curse. In practice, the 'right' to drink and, indeed, to drink to excess, dominates all other considerations. A right to drink is effectively treated as paramount to the right of other people to safety, the right of families to food and shelter, the right of children to nutrition, sleep, education and innocence and the right of a community to peace and order.[27][26]Cape York Justice Study at 50-51.
[27]Cape York Justice Study at 53.
The Study's recommendations included the following damning statements about the adverse impact of alcohol in communities like the appellants':
"There are considerable practical difficulties, much increased if, as some suggest, … as a result of section 109 of the Commonwealth Constitution, the State cannot enact valid legislation which is inconsistent with the Commonwealth legislation, including social welfare legislation and the Racial Discrimination Act, 1975. State laws which sought to prohibit or restrict the supply or use of alcohol in the Cape York communities (because of their problems with alcohol abuse and violence) … might be invalid. The Human Rights and Equal Opportunities Commission report 'Race Discrimination, Human Rights and Distribution of Alcohol' discusses these issues. Subject to those considerations, these recommendations proceed on the basis that the Queensland Parliament will enact any necessary legislation.[28] …
Alcohol abuse and alcohol-related violence and other offences are central to the problems in the communities. There is an urgent need for a simple community action plan on alcohol management in each community which is immediately implemented. That should be the first priority.
A significant number of people in the communities drink alcohol to harmful and even hazardous levels. Life for those who don't drink to excess, including children, is spoiled by those who do. Alcohol abuse and associated violence are so prevalent and damaging that they threaten the communities' existence and obstruct their development.
The point has been reached at which the reasons for the crisis in the communities are of limited significance except in so far as knowledge of the causes helps to identify possible changes.
The position is so serious that, despite constitutional obstacles, unless significant improvement is reported within three years consideration should be given to a prohibition on the supply and consumption of alcohol. However, for the moment, it is preferable for the Government to work with the communities to achieve local solutions. Nonetheless, if any community is uncooperative or is obviously failing to curb alcohol abuse and violence at any time during the three-year period indicated, the Coordination Unit should immediately report that to the Deputy Director-General for the Government to adopt a more drastic approach."[29]'
[28]Cape York Justice Study at 56.
[29]Cape York Justice Study at 60.
In terms of structural changes and interventions the Study recognised that:
"Alcohol consumption and its consequences have severely compromised the capacity of Cape York communities to exercise self-management and self-determination.
·Councils and council officials should not be associated with, or profit from, the supply of alcohol. The present arrangements with respect to community canteens place an intolerable burden on councils and council officials in those communities. Those councils and officials are subject to financial as well as social pressures not to discourage the excessive consumption of alcohol. The Coordination Unit should assume responsibility for the supply of alcohol in the community canteens. Proper compensation must be paid to the communities. The Coordination Unit should be required to enter into suitable arrangements concerning the supply of alcohol at the canteens and to suspend or cancel those arrangements in appropriate circumstances. The Executive Director of the Coordination Unit should also be given power to terminate contractual arrangements which are considered unsatisfactory and pay fair compensation.[30]
… Strong leadership and example are needed to set expectations. Women have been speaking out about violence for some time. The men of the communities, both elders and the younger adult males, need to be asked and encouraged in their leadership roles to speak out against alcohol and violence, and to advocate a positive future for their children."[31]
[30]Cape York Justice Study at 61.
[31]Cape York Justice Study at 63.
The relevant explanatory notes and related background material make clear that the legislature intended the impugned provisions to help combat endemic alcohol-related violence within Queensland Indigenous communities, including the appellants'. The legislature intended that the impugned provisions achieve this by taking away all liquor licences in specified Indigenous communities, like the appellants', thereby stopping the sale of all liquor in those communities for an indefinite period. If and when liquor licences were re-issued in the communities like the appellants', the appellants as local governments would be ineligible to hold a liquor licence. This was because the legislature intended, consistent with the recommendations of the Task Force Report and the Study, to remove the conflict between on the one hand local governments profiting from the sale of alcohol which contributes to alcohol-related violence and, on the other, the duty of local governments to provide sound governance of their communities.
The relevant provisions of the Liquor Act, including the impugned provisions
Under s 3 of the Liquor Act, the Act's objects relevantly provide:
(a) to regulate the liquor industry in a way compatible with minimising harm caused by alcohol abuse and misuse; and
Examples of harm—
• adverse effects on a person's health
• personal injury
• property damage
• violent or anti-social behaviour
(b) to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change; and
(c) to provide for the jurisdiction of the tribunal to hear and decide appeals authorised by this Act; and
(d) to provide for a flexible, practical system for regulation of the liquor industry of the State with minimal formality, technicality or intervention consistent with the proper and efficient administration of this Act; and
(e) to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence; and
… ; and
(g) to provide revenue for the State to enable the attainment of this Act's objects and for other purposes of government.
3A Principle underlying this Act for facilitating and regulating the liquor industry
(1) The underlying principle of this Act in relation to the sale and supply of liquor is—
(a) a person may obtain a licence to sell or supply liquor as part of conducting a business on premises; and
(b) liquor may only be sold or supplied on the licensed premises as part of the person conducting a business, on the licensed premises, that is the principal activity under the licence.
(2) This Act states the principal activity of a business that may be conducted under each type of licence.
(3) This Act must be administered in accordance with the underlying principle of this Act.
(4) This section applies subject to this Act's object mentioned in section 3(a)."
The impugned provisions are contained in s 106(4) and the transitional provisions, s 278 and s 279, of the Liquor Act. Section 106(4) is in Pt 5 (Grant, variation and transfer of licences and permits), Div 1 headed (Applications) and relevantly provides:
106 Who may apply for licence or permit
…(4) Also, a local government, corporatised corporation or relevant public sector entity may not apply for or hold a commercial hotel licence."
Section 278 and s 279 are contained in Div 7 (Transitional provisions for Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Act 2008), subdiv 1 (General licence held by a local government, corporatised corporation or relevant public sector entity, other than the Torres Strait Island Regional Council). The transitional provisions provide for a general licence held by local governments like the appellants to lapse from 1 July 2008 but allow the respondent to continue the licence in force no later than 31 December 2008.
Despite the impugned provisions, it presently remains possible under the Liquor Act for a liquor licence to be issued to an entity or entities within the appellants' shires, as long as the entity is not a "local government, corporatised corporation or relevant public sector entity". The appellants are, of course, local government authorities. The passages I have set out from the explanatory notes to the Bill introducing the impugned provisions make clear the legislative intent. Consistent with the recommendations of the Task Force Report and the Study, it was to permanently stop the sale of liquor by councils like the appellants which provide local governance in Indigenous communities. This was to remove the conflict between a local government's responsibility to provide sound governance on the one hand, and a local government profiting from the sale of alcohol which often caused or fuelled community violence on the other. The legislature also intended to stop completely and for an indefinite period the sale of all liquor within specific Indigenous communities, including the appellants'. The legislature did this by removing the right of all Queensland local governments, not just Indigenous local governments like the appellants, from applying for or holding a commercial hotel licence or permit.[32] But prior to the enactment of the impugned provisions, in Indigenous communities like the appellants', the local government held the only liquor licence in the community. This meant that the practical and true effect of the impugned provisions has been and is as follows. At least for the time being, in taking away the appellants' liquor licences, the overwhelmingly Indigenous residents of the appellants' shires cannot purchase alcohol from and consume alcohol in licensed premises located within their shires.
[32]Liquor Act, s 106(4).
The relevant provisions of the Racial Discrimination Act
The preamble to the RDA relevantly states:
"WHEREAS a Convention entitled the 'International Convention on the Elimination of all Forms of Racial Discrimination' (being the Convention a copy of the English text of which is set out in the Schedule) was opened for signature on 21 December 1965:
AND WHEREAS the Convention entered into force on 2 January 1969:
AND WHEREAS it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention:".
That preamble makes clear that the RDA is Australia's legislative response to the adoption of the International Convention on the Elimination of All Forms of Racial Discrimination which I shall refer to as the Convention.[33] The Convention is contained in the RDA's schedule. The preamble to the Convention relevantly provides:
[33]The Convention entered into force in Australia on 30 October 1975.
"The States Parties to this Convention,
Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, … ,
Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, … ,
Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination … ,
Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, … ,
Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person,
Convinced … that there is no justification for racial discrimination, in theory or in practice, anywhere,
Reaffirming that discrimination between human beings on the grounds of race, … is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,
Convinced that the existence of racial barriers is repugnant to the ideals of any human society,
Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation,
Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination,
…
Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end,
Have agreed as follows:
…"
The RDA binds the Crown in right of the Commonwealth and of each of the States.[34] It does not "exclude or limit the operation of a law of a State … that furthers the objects of the Convention and is capable of operating concurrently with this Act".[35] The provisions directly pertinent to these appeals are contained in Part II of the Act, headed "Prohibition of Racial Discrimination", and contains s 8 to s 18A. Section 8 is directly concerned in these appeals and relevantly provides:
"8 Exceptions
(1)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 subsection 10(1) applies by virtue of subsection 10(3).
…
[34]Racial Discrimination Act 1975 (Cth), s 6.
[35]Racial Discrimination Act 1975 (Cth), s 6A.
The RDA does not discretely define "special measures". But, Art 1 of the Convention relevantly provides that:
"1. In this Convention, the term 'racial discrimination' shall mean any 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 human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
…
4.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."
Also relevant in the context of understanding the parties' contentions as to "special measures" is Art 2 of the Convention which relevantly provides:
1.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:
(a) 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;
…
(c) 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;
…
2.States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, 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. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved."
Section 9 of the RDA 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 … 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.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race … as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race … .
(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.
(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4) The succeeding provisions of this Part do not limit the generality of this section.
Section 10 of the RDA is central to these appeals and relevantly provides:
"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 … do not enjoy a right that is enjoyed by persons of another race …, or enjoy a right to a more limited extent than persons of another race …, then, notwithstanding anything in that law, persons of the first-mentioned race … shall, by force of this section, enjoy that right to the same extent as persons of that other race … .
(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.
…"
Article 5 of the Convention relevantly provides:
"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:
(a) The right to equal treatment before the tribunals and all other organs administering justice;
(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;
…
(d) Other civil rights, in particular:
…
(v) The right to own property alone as well as in association with others;
…
(ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
…
(vi) The right to equal participation in cultural activities;
…(f)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."
Sections 11-15 of the RDA make racial discrimination unlawful in various specified 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); A right to join trade unions (s 14); Employment (s 15) and Advertisements (s 16). It is unlawful to incite the doing of acts which are unlawful (s 17). If an act is done for two or more reasons, one of which is based on racial discrimination, then the act is taken to be done for the reason of racial discrimination (s 18). A person is vicariously liable for the acts of their employee or agent unless they take all reasonable steps to prevent the employee or agent from doing the act (s 18A).
Do the impugned provisions offend s 10 of the Racial Discrimination Act?
(a) Police officer Alexander's evidence
Before turning to the question whether the impugned provisions offend s 10, it is necessary to briefly refer to the evidence of police officer Ross Alexander upon which the appellants place considerable emphasis. His evidence was contained in a submission to the respondent in support of the appellant, the Aurukun Shire Council, maintaining its liquor licence. Police officer Alexander's evidence was to the following effect. The cancellation of the liquor licence would invoke a real risk to that appellant's community through "sly-grogging".[36] Since the Aurukun Alcohol Management Plan came into effect on 1 January 2003, the only area where alcohol could be legally consumed within the Aurukun Shire was at the tavern in respect of which the appellant, the Aurukun Shire Council, held the licence. The tavern ordinarily served only beer with an alcohol content of less than four per cent. Pre-mixed spirits were available only with meals. Take-away alcohol was prohibited. Anti-social behaviour and "sly-grogging" had decreased since the implementation of the alcohol management plan. The Queensland Police Service supported the appellant, the Aurukun Shire Council, in maintaining its liquor licence for the tavern because of the potential for community backlash and violence were the tavern to close. The tavern was no longer a direct contributor to community disturbances. The extension of tavern trading hours in Aurukun may actually assist in the reduction of "sly-grogging". If the tavern were closed, "sly grogging" would adversely increase with a related increase in anti-social behaviour. Police officer Alexander noted that:
"members of the community have stated that they believe that they have the right to drink and are unhappy with the pending decision to remove the license."
(b)The applicable principles in identifying whether a right is within the scope of s 10
[36]The sale of liquor illegally, The Macquarie Dictionary Online.
Section 10 does not replicate any specific provision of the Convention. It should be construed in accordance with its clear terms, in its context within Pt II of the RDA in juxtaposition with the relevant provisions of the Convention, and consistent with binding case law.
Unlike s 9, s 10 creates a general personal right, regardless of race, to enjoy all rights enjoyed by persons of another race. As Mason J (as he then was) explained in Gerhardy v Brown,[37] s 10:
"… is expressed to operate where persons of a particular race, colour or origin do not enjoy a right that is enjoyed by persons of another race, colour or origin, or do not enjoy that right to the same extent. Some question as to the validity of s. 10 might be thought to arise because it fails to follow the language of Art. 2 of the Convention. The exclusion of persons of a race, colour or origin from the enjoyment of a relevant right by reason of a law does not necessarily involve 'racial discrimination' in that it may not amount to a distinction, exclusion, restriction or preference 'which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise' of the right 'on an equal footing'. Consequently, s. 10 should be read in the light of the Convention as a provision which is directed to lack of enjoyment of a right arising by reason of a law whose purpose or effect is to create racial discrimination." (original emphasis)
[37](1985) 159 CLR 70, Mason J at 99.
More recently, in Western Australia v Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ cited with approval some of Mason J's observations set out in the preceding paragraph and noted:
"In determining whether a law is in breach of s 10(1), it is necessary to bear in mind that the sub-section is directed at the enjoyment of a right; it does not require that the relevant law … makes a distinction based on race. Section 10(1) is directed at 'the practical operation and effect' of the impugned legislation and is 'concerned not merely with matters of form but with matters of substance'." (footnotes omitted).[38]
[38](2002) 213 CLR 1 at 103. See also Jango v Northern Territory (2006) 152 FCR 150, Sackville J at 324.
Section 10(2) in its terms states that the reference in s 10(1) to "a right" includes those rights set out in Art 5 of the Convention. But, importantly, s 10(2) does not limit the operation of s 10(1) to those rights. Section 10 also includes the enjoyment of human rights such as those expressed in the United Nations Universal Declaration of Human Rights (which I shall call the Declaration): see Gerhardy v Brown.[39] This conclusion is consistent with the broad terms of the preamble to the Convention which specifically refer to the Declaration. It is also consistent with General Recommendation number 20: Non-Discriminatory Implementation of Rights and Freedoms of the Office of the High Commissioner for Human Rights 48th session 1996,[40] para 1 of which notes that:
"1.Article 5 of the Convention contains the obligations of State Parties to guarantee the enjoyment of civil, political, economic, social and cultural rights and freedoms without racial discrimination. Note should be taken that the rights and freedoms mentioned in article 5 do not constitute an exhaustive list. At the head of these rights and freedoms are those deriving from the Charter of the United Nations and the Universal Declaration of Human Rights, as recalled in the preamble to the Convention. Most of these rights have been elaborated in the international covenants on human rights."
[39](1985) 159 CLR 70, Mason J at 101.
[40]Art 8 of the Convention provides for the establishment of a committee on the elimination of racial discrimination consisting of 18 experts elected by States Parties. The committee is required to report annually to the United Nations on its activities and may make suggestions and general recommendations: Art 9(2). Such general recommendations or comments have been cited in Australian case law, for example, Attorney-General (WA) v Marquet (2003) 217 CLR 545, Kirby J at 603-605.
The rights to be enjoyed under s 10 are not limited, however, to those in the Convention or the Declaration. In my view, they are capable of including those human rights set out in other international conventions to which Australia is a party, such as, but not limited to, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Declaration of the Rights of Indigenous People. Relevantly, Art 26 of 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 … ."
The Human Rights Committee, an expert committee established under Art 28 of ICCPR, has confirmed the breadth of the international human right to be free of discriminatory provisions in stating that Art 26's guarantee of equal protection requires that laws not be discriminatory in purpose or effect; Art 26 exists as a free standing right against discriminatory laws in "any field regulated and protected by public authorities".
Australian courts have recognised the need to construe international obligations more liberally than domestic statutes, unconstrained by technical local rules or precedent: Pilkington (Australia) Ltd v Minister for Justice and Customs.[41] A human right is not necessarily a legal right enforceable under local or national law: Mabo v Queensland.[42] Courts should favour a construction of legislation enacted in accordance with international obligations consistent with those international obligations: Plaintiff S157/2002 v Commonwealth.[43] Courts should not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clear from unmistakeable and unambiguous language: Plaintiff S157/2002 v Commonwealth.[44] Mason J in Gerhardy v Brown[45] stated that s 10 requires courts to look to the purpose and effect of the impugned legislation rather than to concentrate on its provisions in isolation. The legislative intention stated in the second reading speech of the Racial Discrimination Bill[46] and the terms of the preambles to the RDA and to the Convention are in the widest of terms. For all these reasons, I accept HREOC's contention that this Court should take a broad approach in identifying whether a right is within the terms of s 10.
(c)Can s 10 apply to the appellants which are local governments, not individuals?
[41](2002) 127 FCR 92 at 100 [26].
[42](1988) 166 CLR 186, Brennan, Toohey and Gaudron JJ at 217.
[43](2003) 211 CLR 476, Gleeson CJ at 492, [29].
[44](2003) 211 CLR 476 at 492 [30].
[45](1985) 159 CLR 70 at 101-103.
[46]"The Bill will guarantee equality before the law without distinction as to race." Commonwealth, Parliamentary Debates, Senate, 15 April 1975, 999 (the Hon Mr J J McClelland, Minister for Manufacturing Industry).
A preliminary issue in construing s 10 is whether the appellants as local governments can rely on and invoke s 10. The respondent contends they cannot.
It is true that s 10(1) in its terms refers to a right belonging to "persons of a particular race" and the appellants as local governments are not persons in the ordinary sense of that word. Under s 36(1) of the Local Government Act 1993 (Qld), however, the appellants as local governments have "all the powers of an individual" and can sue in their own names. Further, under s 22(1)(a) of the Acts Interpretation Act 1901 (Cth):
"… unless the contrary intention appears:-
(a) expressions used to denote persons generally (such as 'person' …), include a body politic or corporate as well as an individual."
Each appellant as a local government is plainly a "body politic". I do not accept the respondent's contention that the "contrary intention" referred to in the opening words of s 22(1)(a) of the Acts Interpretation Act is manifest in s 10(1). Such a conclusion is contrary to the broad approach that courts must take in construing s 10. Although the appellants may not be "persons of a particular race" in the ordinary sense of those words, they are the bodies politic for communities overwhelmingly comprising Indigenous people. Non-Indigenous people are restricted from residing in the appellants' shires. The elected councillors of the appellants are all Indigenous. The Indigenous nature of the appellants has an historical basis.[47] The appellants are local government councils with all Indigenous councillors representing almost entirely Indigenous constituents. Adopting the appropriately broad approach based on substance rather than form when interpreting international obligations and provisions like s 10 enacted in pursuance of them, I can see no reason to deny standing to the appellants to apply for declarations that the impugned provisions are invalid as offending s 10. This approach is consistent with Koowarta v Bjelke-Petersen:[48]
"[Whilst] generally speaking, human rights are accorded to individuals, not to corporations, 'person' [need not] be confined to individuals. … the object of the Convention being to eliminate all forms of racial discrimination and the purpose of s 12 being to prohibit acts involving racial discrimination, there is a strong reason for giving the word its statutory sense so that the section applies to discrimination against a corporation by reason of the race … of any associate of that corporation."[49]
[47]See [1] of these reasons.
[48](1982) 153 CLR 168.
[49](1982) 153 CLR 168, Mason J at 236.
It is also consistent with the approach taken in Woomera Aboriginal Corporation v Edwards[50] and in Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council.[51] It is consistent with the broadly stated purpose of the RD Act articulated in the preambles to both the RDA and the Convention, namely, to eliminate all forms of racial discrimination, not merely racial discrimination against individuals.
[50][1994] EOC 92-653.
[51](2007) 162 FCR 313 at 329-330 [46].
The appellants have standing to apply for the declarations they seek on two bases. The first is on the basis that they do not enjoy, in their own capacity, a s 10 right to the same extent as the non-Indigenous. The second is on a representative basis: that their Indigenous constituents do not enjoy a right to the same extent as the non-Indigenous. The appellants are entitled as bodies politic to take a public interest role on behalf of their Indigenous constituents and to apply to the court to declare invalid, laws infringing s 10 of the RDA. Their representative role in pursuing the rights of their constituents appears especially prudent in light of a recent survey on racial discrimination which showed that 28 per cent of all Indigenous people had recently experienced some form of racial discrimination, but only 17 per cent of that 28 per cent made a complaint or sought legal advice or redress.[52]
(d)Do the impugned provisions compromise the enjoyment of a s 10 right or rights?
[52]Chris Cuneen, "Criminology, Criminal Justice and Indigenous People: A Dysfunctional Relationship?" The John Barry Memorial Lecture, University of Melbourne, 25 November 2008 at 329.
The next step in determining these appeals is to identify any human right or human rights which arise under s 10 in the present circumstances. In undertaking this task, courts must focus on the impugned provisions and the impact they will have on "persons of a particular race". The appellants identify these rights as the rights to equal treatment before the law;[53] to own property;[54] to peaceful assembly and association;[55] to equal participation in cultural activities;[56] and of access to any place or service intended for use by the general public such as hotels.[57]
(i) The right to equal treatment before the law
[53]International Convention on the Elimination of All Forms of Racial Discrimination, Art 2(a).
[54]International Convention on the Elimination of All Forms of Racial Discrimination, Art 2(d)(v).
[55]International Convention on the Elimination of All Forms of Racial Discrimination, Art 2(d)(ix).
[56]International Convention on the Elimination of All Forms of Racial Discrimination, Art 2(e)(vi).
[57]International Convention on the Elimination of All Forms of Racial Discrimination, Art 2(f).
True it is that s 106(4) of the Liquor Act applies equally to all Queensland local governments, not just Indigenous local governments like the appellants. Nor do the impugned provisions stop the appellants' Indigenous constituents from leaving their communities to drink alcohol in licensed premises outside the appellants' shires in the same way as other Queenslanders. But in construing whether s 10 has application to the impugned provisions, I consider that courts must adopt a liberal construction of s 10 and look to the purpose and effect of the impugned legislation rather than taking a narrow legalistic approach by focusing on the impugned provisions in isolation. Otherwise, a cynical legislature through clever legal drafting might evade its obligations under the RDA to the detriment of unpopular racial minorities. This approach seems consistent with the legislative intent of the RDA discernible from its preamble and its scheme. It is clear from the explanatory notes to the amending Act introducing the impugned provisions that their purpose and effect is to impose a regime of alcohol regulation on Indigenous people residing in the appellants' shires, different from the regime of alcohol regulation applying to non-Indigenous Queenslanders residing outside the appellants' communities. As HREOC set out in its written submissions:
"The practical operation and effect of the [impugned provisions] is that that limitation [on licensed premises within the appellants' communities] exists until such time as a new licence is granted. The limitation is a complete one and for an uncertain period of time."
I consider that this racially discriminatory regime of alcohol regulation remains racially discriminatory even though it also has a socio-economic or geographical basis: cf s 18 of the RDA. It is not contended in these appeals that there is a human right or fundamental freedom to drink alcohol. As Keane JA demonstrates in his reasons, there are difficulties with such a proposition. But it is contended, rightly in my view, that there is a human right and fundamental freedom to enjoy equal treatment before the law, regardless of race. This right encompasses equal treatment before the law regulating the availability and service of alcohol in public. Indigenous Queenslanders residing in the appellants' shires are entitled under s 10 to enjoy the same treatment under the laws relating to the regulation of alcohol as non-Indigenous Queenslanders. The heading to and terms of s 10 state as much. The impugned provisions interfere with that right.
In terms of Art 1(1) of the Convention which discusses the meaning of racial discrimination,[58] the impugned provisions make a "distinction [or] restriction based on race which has the … purpose and effect of … impairing the … enjoyment or exercise, on an equal footing, of" the human right of the appellants' constituents to the same regime of alcohol regulation as applies to non-Indigenous Queenslanders. Queensland's liquor licensing laws are part of Queensland's "organs administering justice" under the Convention, Art 5(a).[59] In terms of Art 26 ICCPR,[60] the impugned provisions stop the appellants' almost entirely Indigenous constituents from "being equal before the law" and from enjoying "effective protection against discrimination on any ground such as race".
[58]See these reasons at [22].
[59]Set out in these reasons at [26].
[60]Set out in these reasons at [33].
As HREOC submitted in its written submissions, this Court should:
"consider the effect of the prohibition on the rights of the predominantly Indigenous residents of these communities in comparison to the rights of non-Indigenous people in other parts of … Queensland rather than in comparison to the rights of visitors, such as workers employed at a nearby mine site."
It follows that the primary judge was wrong in considering that, because the few non-Indigenous people visiting or residing within the appellants' shires would be subject to the same alcohol regulation as the appellants' Indigenous constituents, the impugned provisions were not racial discrimination. In my view, subject to the application of Bropho v Western Australia[61] which I shall discuss shortly,[62] the impugned provisions infringe s 10 in that the appellants' Indigenous constituents do not enjoy "the right to equal treatment before … all … organs administering justice",[63] and the right to be "equal before the law"[64] and to "effective protection against discrimination on any ground such as race"[65] to the same extent as non-Indigenous Queenslanders.
(ii) The right to own property
[61](2008) 169 FCR 59.
[62]See these reasons [59]-[65] and [70].
[63]International Convention on the Elimination of All Forms of Racial Discrimination, Art 5(a).
[64]International Covenant on Civil and Political Rights, Art 26.
[65]International Covenant on Civil and Political Rights, Art 26.
Another right identified in the Convention is the "right to own property alone as well as in association with others".[66] The Declaration also provides that: "No one shall be arbitrarily deprived of his property."[67] In identifying whether in these appeals this human right is within s 10, courts should adopt a broad approach, looking at the real effect of the impugned provisions. It is true that both non-Indigenous local governments, as well as Indigenous local governments like the appellants, cannot hold liquor licences under the Liquor Act. In this respect, the appellants are no different from other Queensland local governments. But the practical impact of the impugned provisions is to take away each appellant's liquor licence without direct compensation, not because either appellant had infringed the terms or conditions of the licence, but to prevent, at least for the time being, each appellant's Indigenous constituents from lawfully drinking alcohol in public within their communities. At the same time, appropriately qualified entities with a liquor licence in non-Indigenous communities who complied with the terms of their licence did not have it taken away without compensation.
[66]International Convention on the Elimination of All Forms of Racial Discrimination, Art 5(d)(v).
[67]United Nations Universal Declaration of Human Rights, Art 17(2).
But is a liquor licence "property" within the terms of Art 5(d)(v) of the Convention? The term "property" is defined in s 36 of the Acts Interpretation Act 1954 (Qld) as meaning:
"any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action."
At common law there are competing arguments as to whether an interest, such as a liquor licence of the kind enjoyed by the appellants before the impugned provisions were enacted, is property. The common law concept of property is broad. It includes every type of right or claim recognised by law including any interest which is legally capable of ownership and which has a value. Interests that are less than ownership may be property. Lord Wilberforce in National Provincial Bank Ltd v Ainsworth[68] noted:
"… Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability."
[68][1965] AC 1175 at 1247-1248.
In determining whether an interest is property, there is no absolute or unqualified test capable of application in all circumstances: Australian Capital Television Pty Ltd v The Commonwealth;[69] R v Toohey; Ex parte Meneling Station Pty Ltd;[70] St Vincent de Paul Society Qld v Ozcare Limited.[71] The learned authors of Principles of the Law of Trusts[72] considered that a licence may be transferable (for the purpose of assisting its characterisation as property as discussed by Lord Wilberforce) if there is no prohibition on creating an equitable interest in it, even if there is a prohibition on the transfer of the legal title. This Court in Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads,[73] held that car parking rights arising from a contractual licence amounted to an interest in land entitling a compensation claim under the Acquisition of Land Act 1967 (Qld). In Hewlett v Minister of Finance,[74] in happier times when the independence of the Zimbabwean Supreme Court was not questioned, that court held that a liquor licence was "a valuable asset and may be regarded as property" which should not be taken by the government without compensation.
[69](1992) 177 CLR 106, Brennan J at 165-166.
[70](1982) 158 CLR 327, Mason J at 343.
[71][2009] QCA 335 at [36]-[38].
[72]Ford & Lee, 3rd ed, 1995 at [4020]; cited with approval in St Vincent de Paul Society Qld v Ozcare Limited [2009] QCA 335 at [38].
[73][2007] 2 Qd R 373. The High Court refused an application for special leave to appeal.
[74](1982) (1) SA 490 (ZS) 490 at 502.
It is common ground that the appellants did not receive any compensation for the withdrawal of their liquor licences. The explanatory notes recorded, however, that:
"As part of the alcohol reforms, the Government has committed $14 million as revenue replacement over the next 4 years for canteen profits to the extent they have been used to provide social services. This is not direct compensation, but it is to ensure that there is no loss in services as a result of councils no longer having canteens as a source of revenue."[75]
[75]Set out in these reasons at [7].
Adopting the broad approach appropriate in construing a provision like s 10, I consider that the appellants' liquor licences are property for the purposes of the Convention, the Declaration and s 10. The impugned provisions have deprived the appellants of that property without direct compensation. In my view, it follows that, but for the application of Bropho which I discuss later in these reasons,[76] the impugned provisions stop the appellants, as Indigenous bodies politic holders of liquor licences, from enjoying a right enjoyed by non-Indigenous holders of liquor licences not to be arbitrarily deprived of their property (their liquor licences) without compensation.
(iii) The right to freedom of peaceful assembly and association
[76]Bropho v Western Australia (2008) 169 FCR 59 at 76-79 [59]-[68].
The appellants contend that the effect of the impugned provisions is to interfere with the right referred to in Art 5(d)(ix) of the Convention (the right to freedom of peaceful assembly and association).
No matter how broad an approach is taken in construing that right, I am simply unable to see how, in the present circumstances, the effect of the impugned provisions is to interfere with the right of the appellants or their constituents to freedom of peaceful assembly and association. The impugned provisions do not stop any person or group of people from assembling and associating with another or others. This aspect of the appellants' contentions fails.
(iv) The right to equal participation in cultural activities
The appellants contend that the impugned provisions interfere with the right of their Indigenous constituents to equal participation in cultural activities under Art 5(e)(vi) of the Convention. As I apprehend their submission, it is that their constituents have been deprived of the Australian custom of "going to the pub" and, by inference, the right to equal participation in cultural activities enjoyed by non-Indigenous Queenslanders.
The term "culture" is relevantly defined in the Macquarie Dictionary as "1. sociology the sum total ways of living built by a group of human beings, which is transmitted from one generation to another". Judicial notice could be taken of the fact that the convivial and moderate consumption of alcohol in public, especially at times of celebration, has a centuries-long history in the Judeo-Christian and European social tradition. Many Queenslanders, whether or not Indigenous, presently share that tradition. But the appellants have called no evidence to establish that the right to drink alcohol in a licensed public place is an Australian, a Queensland or an Indigenous cultural activity. The paucity of evidence in the present appeals means that the appellants have not made out their contention that the impugned provisions deprive their Indigenous constituents from enjoying equal participation in cultural activities.
(v) The right of access to a service intended for use by the general public, such as hotels
The appellants also contend that the effect of the impugned provisions is to interfere with their Indigenous constituents' right under Art 5(f) of the Convention of access to a service intended for use by the general public, such as hotels.
The practical effect of the impugned provisions is to deny the appellants' constituents access to the service of liquor in licensed premises within their communities. This is a right ordinarily enjoyed by non-Indigenous Queenslanders. But for the impugned provisions, the appellants would have provided that service to their Indigenous constituents under their general liquor licence. It is clear from the explanatory notes and background material to the impugned provisions that the legislature enacted them intending them to affect only constituents of Indigenous communities like the appellants'. Dysfunctional, non-Indigenous communities with problems of alcohol-related violence were not included in this scheme of which the impugned provisions were part. It follows that the impugned provisions stopped the appellants' Indigenous constituents from enjoying a right enjoyed by non-Indigenous Queenslanders, namely, the right to the service of liquor in a public place within their communities.
Subject to the application of Bropho, the appellants' contention that the impugned provisions stop their Indigenous constituents from enjoying the right described in Art 5(f) of the Convention when that right is enjoyed by non-Indigenous Queenslanders, is made out.
(e) The construction of s 10 taken in Bropho
The construction of s 10 has been considered recently by the Full Federal Court in Bropho, a case with some features in common with the present appeals. Bella Bropho, an Indigenous woman resident and member of the Swan Valley Nyungah community, contended that the Reserves (Reserve 43131) Act 2003 (WA) interfered with the enjoyment and exercise of her human rights and fundamental freedoms under s 10, including the right to own property. Under the Reserves Act the appointed administrator could both prohibit the entry of Ms Bropho and others to the community where they had previously lived and also order residents to leave. The Reserves Act was the Western Australian legislature's response to concerns about sexual and other abuse of women and children on the reserve. The primary judge held that the Reserves Act did not breach s 9, s 10 or s 12 of the RDA. On appeal, the Full Federal Court[77] took a broad view of the right to own property under the Convention, Art 5(d)(v), and the Declaration, Art 17. The court held that, in context, the right to property should not be construed as analogous to forms of property inherited and adapted from the English system of property law or conferred by statute: Western Australia v Ward.[78] Property encompasses Indigenous forms of property holdings.[79] Their Honours continued:
"… However, although the right to own property alone or in association with others is a customary rule of international law, the right to own property, like all rights, is not absolute in nature.
…
It has long been recognised in human rights jurisprudence that all 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. …
The overwhelming evidence of the Gordon Inquiry and the Hooker Inquiry was that sexual and other forms of violence were pervasive at Reserve 43131 (findings to this effect were made by the primary judge) and, it is plain that the revocation of the 2002 management order was effected to obviate the risks to the safety and welfare of (particularly) women and children residing at Reserve 43131. On that basis, the act of the Western Australian Parliament revoking the 2002 management order would inform the content of the human right being asserted by [Ms Bropho]. That is, the 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 RD Act can be compromised by laws which have an ostensible public purpose but which are, in truth, discriminatory. …… To the extent that the rights in question (which were derived from a mix of statutory instruments) were property rights, such rights were not absolute in nature given the general recognition 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. It follows that any interference with the enjoyment of the right, provided that such interference is effected in accordance with the legitimate public interest (in this case to protect the safety and welfare of inhabitants at Reserve 43131), will not be inconsistent with s 10 of the RD Act. Indeed, although the authorities on s 10 of the RD Act recognise that there is no basis for distinguishing between different species of ownership of property, no property right, regardless of its source or genesis, is absolute in nature, and no invalid diminution of property rights occurs where the State acts in order to achieve a legitimate and non-discriminatory public goal."[80][77]Ryan, Moore and Tamberlin JJ.
[78](2002) 213 CLR 1 at 105.
[79]Bropho v Western Australia (2008) 169 FCR 59 at 82-82 [77]-[79].
[80]Bropho v Western Australia (2008) 169 FCR 59 at 82-84 [80]-[83].
As the obligation to take special measures falls to be performed by a political branch of government, the character of a special measure depends in part on a "political assessment" that advancement of a racial group is needed to ensure genuine equality and that the measure is required to secure that advancement. Such questions the courts are "ill-equipped to answer". [199] In those circumstances, the issue which arises for determination by the court is of narrow compass. It was identified by Brennan J in Gerhardy [200] as follows:
"It is enough that the court determines no more than this: could the political assessment inherent in the measure reasonably be made? If the political assessment could not have been made reasonably, the measure does not bear the character of a special measure and the court must so hold."
[199]Gerhardy (1985) 159 CLR 70 at 137 – 138, per Brennan J; at 161 – 162 per Dawson J.
[200](1985) 159 CLR 70 at 139.
Deane J similarly observed:[201]
"What is necessary for characterization of legislative provisions as having been 'taken' for a 'sole purpose' is that they can be seen, in the factual context, to be really and not colourably or fancifully referable to and explicable by the sole purpose which is said to provide their character. They will not be properly so characterized unless their provisions are capable of being reasonably considered to be appropriate and adapted to achieving that purpose. Beyond that, the Court is not concerned to determine whether the provisions are the appropriate ones to achieve, or whether they will in fact achieve, the particular purpose."
[201]Gerhardy (1985) 159 CLR 70, 149; at 105, per Mason J; at 113, per Wilson J; at 162, per Dawson J.
In ascertaining whether a legislative measure is a special measure within Art 1(4) the purpose of the legislative measure must be identified.[202] As to whether a measure can be said to be taken for the purpose of advancement, Brennan J observed in Gerhardy[203] that "advancement" is not necessarily what the person who takes the measure regards as a benefit for the beneficiaries, stating:
"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."
[202]Gerhardy (1985) 159 CLR 70 at 135, per Brennan J.
[203](1985) 159 CLR 70 at 135, 139.
In Bropho v Western Australia,[204] the Full Federal Court noted that the primary judge had declined to place any weight on the dicta of Brennan J, considering that it had no apparent judicial support and was not supported in the other judgments in Gerhardy. Because the Full Federal Court in that case held that s 10 RDA was not engaged, it did not proceed to consider the requirements of s 8 RDA and the correctness of the trial judge's approach.
[204](2008) 169 FCR 59 at 72 – 73.
Counsel for the Commonwealth Human Rights and Equal Opportunity Commission ("HREOC"), who was given leave to appear, cited support for the view that the dicta of Brennan J is consistent with principles of international law.[205] In Gerhardy Brennan J provided an illustration of how the dignity of the intended beneficiaries is impaired and their position not advanced by having an unwanted material benefit foisted on them:[206]
"An Aboriginal community without a home is advanced by granting them title to the land they wish to have as 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. Such a grant would be a step towards apartheid. Even if the promoters of the measure had the purpose of promoting the interests of the residents of that land, the measure would deny the residents' human rights and fundamental freedoms: see pars 128-131 of the Namibia (S.W. Africa) Advisory Opinion of the International Court of Justice ([1971] ICJ R 16, at pp. 56-57). The difference between land rights and apartheid is the difference between a home and a prison."
[205]In this respect HREOC referred to the CERD Committee, General Recommendation XXIII concerning Indigenous Peoples, (Fifty-first session) UN Doc A/52/18 (1997), [(4d)]; CERD Committee, General Recommendation XXI on the right to self-determination, (Forty-eighth session), UN DOC A/51/18 (1996), [2]. See also the European Union's Racial Equality Directive 2000/43/EC which provides for special measures (article 5) and the concept of social dialogue (article 11). See also W McKean, "Equality and Discrimination Under International Law", Oxford, Clarendon, 1983, pp 258 - 263.
[206](1985) 159 CLR 70 at 135 – 136.
I note however that Brennan J stopped short of holding that the consent of the intended beneficiaries was either essential or determinative in all cases. Clearly, the extent of consultation with the intended beneficiaries and the degree of consideration and accommodation of their views may reflect on whether a measure can be said to be appropriate and adapted to securing their advancement.
The construction of s 10 of the Racial Discrimination Act in Bropho
As Mason J noted in Gerhardy,[207] "{a}lthough there may be universal agreement that a right is a universal right, there may be no universal or even general agreement on the content of that right"; that is not a matter with which CERD concerns itself. Thus, while the RDA seeks to eliminate racial discrimination and promote equality before the law, as was stated in Bropho v Western Australia,[208] it has "long been recognised in human rights jurisprudence, that all 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". That proposition accords with the position enunciated in Art 29(2) of the Universal Declaration, which provides:[209]
"In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."
[207](1985) 159 CLR 70 at 102.
[208](2008) 169 FCR 59 at 83.
[209]See also the CCPR General Comment No 18: Non-discrimination: 10/11/89, para 13.
Thus, in Gerhardy,[210] Mason J observed, in respect of the concept of freedom of movement which was central to the respondents' argument in that case, that while it embraced a claim to immunity from and protection by law from unnecessary restrictions on the freedom, it nevertheless was "subject to compliance with regulations legitimately made in the public interest … and subject to the private and property rights of others".
[210](1985) 159 CLR 70 at 102.
Similarly, in Bropho a right to occupy and manage land conferred on Aboriginal people by statute was held to be subject to the contingency that the right would be removed or modified if that was necessary to protect vulnerable members of the community enjoying the right of occupation and management. The court determined that the challenged legislation was effected to obviate the risks to the safety and welfare of (particularly) women and children residing at the reserve in question. It was found that, to the extent that there was an interference with property rights, this occurred in order to achieve a legitimate and non-discriminatory public goal and did not infringe s 10 RDA.
It is critical to observe that the principle recognised in Bropho only permits a modification of the content of a human right in the pursuit of non-discriminatory laws. The Court was at pains to stress this aspect, stating:[211]
"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 recognized in Australia. We also emphasise that these observations are not intended to imply that basic human rights protected by the RD Act can be compromised by laws which have an ostensible public purpose but which are, in truth, discriminatory."
[211]Bropho v Western Australia (2008) 169 FCR 59 at 83.
Thus, the principle recognised in Bropho sits outside the concerns of s 8 RDA which is directed at legislative measures effecting racially different treatment.[212]
[212]See Gerhardy (1985) 159 CLR 70, per Brennan J at 130: "A special measure is, ex hypothesis, discriminatory in character; it denies formal equality before the law in order to achieve effective and genuine equality." Cf Gerhardy (1985) 159 CLR 70 at 104, per Mason J; at 132 – 133 per Brennan J.
Do the impugned provisions offend s 10 of the Racial Discrimination Act?
Prior to 1 July 2008, the appellants held general liquor licences in their respective shires, enabling them to store and sell liquor at their premises. In respect of each of the communities, an alcohol management plan had been adopted, with the consequence that the appellants' premises were the only place where it was legal to store and sell alcohol.[213]
[213]Appeal Record, pp 1-9, 1-10.
As the impugned provisions exclude local governments from being entitled to hold a liquor licence, and, as the appellants held the only liquor licences in their respective communities, presently, upon the lapsing of the appellants' licences, liquor is not available at licensed premises in communities in question. However, the amendments do not exclude others from holding a liquor licence and therefore do not preclude alcohol being made available from licensed premises in the communities in question. Indeed, one of the arguments raised by the appellants against the application of the special measures exception was precisely that a third party may still apply for a liquor licence in the appellants’ shires.
Furthermore, limitations on the availability of alcohol within the communities in question, beyond that arising from the present lack of licensed premises, do not result from the operation and effect of the impugned provisions, but from the operation and effect of other measures, including the alcohol management plan in place in the communities in question.
The issue then that arises for determination centres on whether, as counsel for the appellants expressed in oral argument, by revoking the licences of the appellants, with the consequence that those in the predominantly indigenous communities in question are unable to acquire alcohol from licensed premises operated by their local government, a right protected by s 10(1) RDA is compromised. In their written submissions, the appellants contended that the impugned provisions have the purpose or effect of limiting the enjoyment of a least four rights of indigenous people:
(a) the right to equal protection of the laws without discrimination;
(b) the right to equal participation in cultural activities;
(c) the right to access places and services used or intended for use by the general public;
(d) the right not to be arbitrarily deprived of property.
(a) The right to equal protection of the laws without discrimination
As is already apparent, I accept the appellants' submissions that s 10(1) RDA encompasses a right to equal protection of the law in relation to any particular field regulated by public authorities, and that it includes a right to equal treatment before the law in respect of the legislative scheme for liquor licensing within Queensland. However, in the present case, the right to equal legislative treatment in that regard has not been compromised. Rather, the impugned provisions provide that the same licensing provisions apply to all local governments in Queensland.
This formal equality, however, is said, nevertheless, to have the practical consequence of effecting a racially discriminatory regulatory regime. In this regard, the appellants submitted that the impugned provisions impose a discriminatory burden on the right of indigenous persons to equal protection of the laws. In particular, the appellants argued that, while all local governments are precluded from applying for or holding general licences, in practice only councils in certain indigenous communities are affected. It is contended that the results of "singling out" those councils are that a different regime of alcohol regulation applies in the predominantly indigenous communities governed by the appellants because no licensed premises are available. In this regard it is said that:
"The reason for divesting local governments of their liquor licences was inextricably linked to race or ethnicity: the government claimed it was addressing alcohol-related harms in specific indigenous communities. Officials also foresaw that the effect of the legislation might well be to deprive persons in indigenous communities of any place in which alcohol could be consumed under supervision."
In a similar vein, it was submitted on behalf of HREOC, that the impugned provisions "have the effect of making a distinction between indigenous and non-indigenous peoples in Queensland", because although the impugned provisions do not prevent third parties obtaining a licence in the communities in question, "the practical operation and effect of the section is that the limitation exists until such time as a new licence is granted. The limitation is a complete one and for an uncertain period of time."
As I have stated, it can be accepted that the right of indigenous people to equal protection of the law entails a right to be free of discriminatory legislation in respect of the regulation of liquor licences in Queensland. However, the impugned provisions do not in substance or practical effect impose a different liquor licensing regime in indigenous communities as claimed. The prohibition they impose is solely in relation to the appellants' entitlement to obtain a licence; a prohibition which applies to all local governments in Queensland. In the absence of any provision which precludes third parties from being entitled to obtain liquor licences in the relevant communities, the impugned provisions do not as a matter of practical operation result in a different licensing regime for those communities. True it is, that upon the appellants being divested of their licences (and until a further licence is applied for and granted in the relevant communities) alcohol is not available at licensed premises in the communities. But the alcohol limitations which thereby follow do not arise because a liquor licence cannot by law be obtained in those communities but because such a licence has not yet been obtained under the Liquor Act by those who may apply for one.
In my view, this is not a case therefore where it has been shown that the amendments to the Liquor Act, either by its terms or manner of implementation, imposes a regime for the licensing of alcohol in indigenous communities which is racially discriminatory. If such a racially discriminatory regime had been effected by the impugned provisions, the principle enunciated in Bropho would have no relevance; rather a consideration of s 8 RDA would be required. But that is not the situation that arises for consideration here.
(b) The right not to be arbitrarily deprived of property
One of the rights specified in Art 5 CERD is the right to own property alone, as well as in association with others (Art 5(d)(v)). The appellants rely on that provision, in conjunction with Art 17(2) of the Universal Declaration which provides that: "No one shall be arbitrarily deprived of his property", to claim that a s 10(1) RDA right is compromised.
As to whether the divesting of the appellants' licences compromises a right not to be arbitrarily deprived of property so as to attract the protection of s 10 RDA, I accept that a broad interpretation of the term "property" should be adopted. That accords with the approach taken in Mabo, which was confirmed in Ward;[214] see also Bropho.[215] However, even accepting for present purposes that the appellants' licences may properly be characterised as "property" for the purposes of Art 5, and that the cancellation of the licences constitutes a deprivation of property, and further, that in the circumstances of this case, the appellants ought to be regarded as a "person" within s 10 RDA, the matter does not rest there.
[214]Western Australia v Ward (2002) 213 CLR 1 at 103 – 105, per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
[215](2008) 169 FCR 59 at 81.
To the extent that the appellants' rights, derived from statute, may be seen as property rights protected by s 10 RDA, the protection afforded is not an absolute one. As was recognised in Bropho, the content of a human right, such as the right to own property, may be modified to achieve a legitimate and non-discriminatory public purpose.
The Explanatory Notes to the Bill[216] for the amending Act are set out in the judgments of McMurdo P and Keane JA, and there is no need to repeat them, except to observe that the clearly stated purpose of the impugned provisions is expressed as follows:[217]
"The divestment of canteens from local governments is a policy decision based on the inappropriateness of local government social services being reliant on the level of profit from a business whose purpose is to sell alcohol, particularly when alcohol-related harm is driving the need for those services.
…As part of the alcohol reforms, the Government has committed $14 million as revenue replacement over the next 4 years for canteen profits to the extent they have been used to provide social services. This is not direct compensation, but is to ensure that there is no loss in services as a result of councils no longer having canteens as a source of revenue."[216]Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Bill 2008 (Qld).
[217]Explanatory Notes p 9.
The impugned provisions are thus expressly directed to remedying the "inappropriateness" of a local government being placed in a position where the funding of social services it provides is reliant on the level of profit from sales of alcohol, especially in the context of alcohol-related harm driving the need for those services. This legislative intent is apparent not only from the Explanatory Notes but also the 1999 Aboriginal and Torres Strait Islander Women's Task Force on Violence Report ("the Task Force Report")[218] and the 2001 Cape York Justice Study ("the Cape York Justice Study"),[219] referred to in the Explanatory Notes, extensive extracts of which are also recorded in the judgments of McMurdo P and Keane JA.
[218]Aboriginal and Torres Strait Islander Women's Task Force on Violence & Queensland Department of Aboriginal and Torres Strait Islander Policy and Development, 2000, The Aboriginal and Torres Strait Islander Women's Task Force on Violence Report.
[219]Queensland Dept of the Premier and Cabinet & Tony Fitzgerald, 2001, Cape York Justice Study.
The impugned provisions pursue a policy of divesting local governments of liquor licences as part of a suite of measures aimed at reducing alcohol-related violence. These measures include the provision of an alternate source of revenue for local governments divested of a liquor licence. The impugned provisions are the outcome of a political judgment in respect of the balancing of the appellants' statutory rights against other competing rights, such as the right "to security of person and protection of State against violence or bodily harm" recognised in Art 5 (b) CERD, with primacy being accorded to the latter.
In Mabo it was observed that the word "arbitrary" has been interpreted to mean not only "illegally" but also "unjustly."[220] To the extent that the divestiture of the appellants' licences amounts to a deprivation of a property right for the purposes of Art 5, I do not consider that it can be said to be arbitrary where, as is the case here, it is effected in order to achieve a legitimate and non-discriminatory public purpose. Nor, in the circumstances of this case, does the legitimate public purpose behind the impugned provisions assume the character of an arbitrary or racially discriminatory measure because the only local governments in fact divested of their licences are those which have predominantly indigenous constituents, such as the appellants – that is a reflection of the position historically held by the appellants in their respective communities in relation to the selling of alcohol under a liquor licence.
[220](1988) 166 CLR 186 at 217.
Accordingly, I do not find that the appellants have shown that a right not to be arbitrarily deprived of property has been compromised so as to engage s 10 RDA.
(c) The right to equal participation in cultural activities
(d) The right to access places and services
The appellants also contended that the practical operation and effect of the impugned provisions is to curtail the right of indigenous Australians to participate in cultural activities on an equal footing with other Australians, thus compromising the right set out in Art 5 (e)(vi) CERD. The cultural activity in question was articulated as one of "social drinking in a controlled, safe environment", and one of participating "in the very Australian custom of going to the pub", because "alternative licensees in the isolated Aboriginal communities are not readily available, at least in the short term".
Counsel on behalf of HREOC put the matter somewhat differently by submitting that it was open to the Court to find that the impugned provisions engaged "the rights of members of the [relevant] communities to 'engage freely in public activity', namely access to alcohol".
Relying on Art 5(f) CERD, the appellants also contended that the impugned provisions infringe the right of access to any place or service for use by the general public.
The answer to these submissions is that the impugned provisions do not, in form or substance, preclude indigenous Australians from accessing alcohol from licensed premises, such as a pub. While the appellants are now precluded from selling liquor, others may hold a licence to sell liquor in the relevant communities. The impugned provisions therefore do not themselves entrench inequalities in a social, cultural or any other field of public life.[221] Furthermore, to the extent that alcohol limitations (other than those relating to alcohol licensing) are in place in the relevant communities, such as restrictions which preclude alcohol from being brought into or stored in the relevant communities, they do not stem from the impugned provisions but from the management plan adopted in place in the communities.
[221]Cf Gerhardy v Brown (1985) 159 CLR 70 at 129.
The inability of indigenous persons in the relevant communities to access liquor from premises operated by the appellants pursuant to licences held by them does not result in a compromise of the rights of indigenous "members of the [relevant] communities to 'engage freely in public activity', namely access to alcohol". Nor has it been shown that there is a compromise in the enjoyment of a relevant right arising by reason of a legislative provision whose purpose or effect is to create racial discrimination. No one in Queensland is able to obtain liquor from premises licensed by a local government. The removal of a previously existing ability to access alcohol from the appellants' licensed premises, by legislation applying to all local councils in Queensland, does not amount to an exclusion from enjoyment of a human right or fundamental freedom or a right of a kind referred to in Art 5 CERD.
Conclusion and orders
I agree for the reasons stated by McMurdo P that the application to adduce further evidence should be refused.
In my view, the revocation of the appellants' licences, with the consequence that alcohol is not available from licensed premises operated by the appellants in the respective shires, does not compromise a right protected by s 10(1) RDA. Because of the view I have reached that s 10 RDA is not engaged, there is no call to consider the application of s 8 RDA.
As the impugned provisions do not infringe the provisions of the RDA, the appeals must be dismissed.
As to the question of costs, the appellants have raised significant issues of public interest which they as representative bodies are well placed to ventilate and which touch on principles that have relevance beyond the commercial interests sought to be maintained by the appellants. In those circumstances, I consider the costs order proposed by McMurdo P to be appropriate.
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 473 – 474; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 50, 76 – 77, 88 – 89 and 94 – 95; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 575 – 578; Vanstone v Clark (2005) 147 FCR 299 at
340 – 343 [158].
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