Gerhardy v Brown

[1985] HCA 11

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.

DAVID ALAN GERHARDY v. ROBERT JOHN BROWN

(1985) 159 CLR 70

28 February 1985

Constitutional Law (Cth)

Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—Commonwealth Act prohibiting racial discrimination—Special measures for securing adequate advancement of certain racial groups deemed not racial discrimination—State Act granting tract of land to people of particular Aboriginal group—Prohibition of entry by other persons—Whether inconsistency—Whether State Act a "special measure"—The Constitution (63 &64 Vict. c. 12), s. 109—Racial Discrimination Act 1975 (Cth), ss. 9, 10—Pitjantjatjara Land Rights Act 1981 (S.A.), ss. 18, 19.

Decisions

GIBBS C.J. The question for decision in this case is whether s.19 of the Pitjantjatjara Land Rights Act 1981 (S.A.) ("the Act") is rendered invalid or otherwise affected by the Racial Discrimination Act 1975 (Cth) as amended ("the Racial Discrimination Act"). The main purpose of the Act was to vest the title to a large tract of land in the north west of South Australia in the Aboriginal peoples who are said to be its traditional owners. The area in question is called in the Act "the lands", an expression which is defined by s.4 to mean the lands described in the first schedule. Those lands, we are told, comprise an area of 102,630 square kilometres - i.e., more than one-tenth of the total land area of South Australia which is 984,377 square kilometres. The area is sparsely populated. According to the report made by the Pitjantjatjara Land Rights Working Party of South Australia in June 1978, the Aboriginal people who live in the area, about 2,000 in number, fall into three main groups, apparently distinguished by language or dialect. Those groups, the Ngaanatjara, the Pitjantjatjara and the Yungkutatjara, are associated with different areas within the lands but tend to see themselves as broadly related. The Act embraces all three groups under one name, for by s.4 "Pitjantjatjara" means:

"a person who is -

(a) a member of the Pitjantjatjara, Yungkutatjara or Ngaanatjara people;

and

(b) a traditional owner of the lands, or a part of them".

With regard to the concluding words of this definition, it is strongly suggested by the report that none of the "Pitjantjatjara", as defined, were the traditional owners of all the lands; in other words, some were the traditional owners of some areas and others of other areas, although the areas with which the various groups were associated are not capable of being precisely defined. There is, however, no evidence or clear agreed statement before us in relation to these matters. The lands comprised a declared Aboriginal reserve (the North West Reserve) and a number of pastoral leases, some at least of which related to a property known as Granite Downs Station. The material before us does not make it clear whether any person other than Pitjantjatjaras resided on the lands besides those who may have lived on Granite Downs and a precious stones field at Mintabie. There were at least two dedicated roads through the area, the Stuart Highway and the Oodnadatta to Granite Downs Road.

2. The Act constituted a body corporate, called "Anangu Pitjantjatjaraku" (which means the Pitjantjatjara peoples), of which all Pitjantjatjaras are members: s.5. There is constituted an Executive Board which consists of eleven elected members, all Pitjantjatjaras (s.9), and which is required to carry out, and act in conformity with, the resolutions of Anangu Pitjantjatjaraku: s.11. Subject to the Act, the proceedings of Anangu Pitjantjatjaraku and the administration of its affairs are to be governed by a Constitution: s.14.

3. By s.15 the Governor may issue a land grant in fee simple of the whole or any part of the lands to Anangu Pitjantjatjaraku: s.15(1). We are told (although it was not in evidence) that a grant of the whole of the lands was made on 30 October 1981.

4. Section 18 provides that "All Pitjantjatjaras have unrestricted right of access to the lands". It is necessary to set out the provisions of s.19 in full. That section reads:

"19. (1) A person (not being a Pitjantjatjara) who enters the lands without the permission of Anangu Pitjantjatjaraku is guilty of an offence and liable to a penalty not exceeding the maximum prescribed by subsection (2).

(2) The maximum penalty for an offence against subsection (1) is -

(a) where the offence was committed intentionally - a fine of two thousand dollars plus five hundred dollars for each day during which the convicted person remained on the land after the unlawful entry;

or

(b) in any other case - a fine of two hundred dollars.

(3) An application for permission to enter the

lands -

(a) must be in writing, and lodged with the Executive Board;

and

(b) must set out -

(i) the purpose for which the applicant seeks to enter the lands;

(ii) the period for which the applicant seeks to be upon the lands;

and

(iii) the time at which the applicant seeks to enter the lands, and the place at which he intends to make his entry.

(4) The applicant shall, at the request of

Anangu Pitjantjatjaraku, furnish such further information as it may reasonably require to determine the application.

(5) Upon an application under this section,

Anangu Pitjantjatjaraku may, by instrument in writing -

(a) grant permission to enter the lands unconditionally;

(b) grant permission to enter the lands subject to such conditions as it thinks fit;

or

(c) refuse permission to enter the lands.

(6) Anangu Pitjantjatjaraku may, upon such

conditions as it thinks fit, delegate any of its powers under subsection (5) to any group of Pitjantjatjaras.

(7) A delegation under subsection (6) is

revocable at will and does not derogate from the power of Anangu Pitjantjatjaraku to act itself in any matter.

(8) This section does not apply to -

(a) a police officer acting in the course of carrying out his official duties;

(b) any other officer appointed pursuant to statute acting in the course of carrying out his official duties;

(c) a person acting upon the written authority of the Minister of Aboriginal Affairs, who enters the lands for the purpose of carrying out functions that have been assigned to a Minister or instrumentality of the Crown or a department of government;

(d) a member of the Parliament of the State or the Commonwealth, a person who is genuinely a candidate for election as a member of the Parliament of the State or the Commonwealth, or a person who is accompanying and genuinely assisting any such member or candidate;

(e) entry upon the lands in case of emergency;

or

(f) entry upon the lands in pursuance of Division III, Division IV or Division VI of this Part (Part III).

(9) Where a person proposes to enter the lands

in pursuance of subsection (8) (b), (c) or (d) reasonable notice of the time, place and purpose of the proposed entry must be given to Anangu Pitjantjatjaraku.

(10) If Anangu Pitjantjatjaraku, by notice in

writing to the Minister of Aboriginal Affairs, objects to an authorized person entering or remaining upon the lands, the Minister shall revoke or modify the authorization in order to give effect to the objection unless he is satisfied that there are sufficient reasons why the authorization should continue notwithstanding the objection.

(11) Where a pastoral lease remains in force

in relation to any part of the lands, the holder of the lease, any member of his family, any employee or member of an employee's family, and any other person authorized in writing by the lessee, may, without the permission of Anangu Pitjantjatjaraku, enter land comprised in the lease.

(12) Where an authorization is granted by a

lessee under subsection (11), notice in writing of the authorization shall be given by the lessee to Anangu Pitjantjatjaraku within one month after the authorization was granted."

Division III provides a procedure under which permission may be obtained to carry out mining operations on the lands and, if such permission is granted, the permittee and his agents, contractors and employees may enter the lands accordingly. Division IV entitles certain classes of persons, without permission under the Act, to enter the Mintabie precious stones field. Division VI entitles any member of the public to free and unrestricted access to either of the roads already mentioned and to land comprised in a road reserve.

5. The respondent, Robert John Brown, was charged on the complaint of David Alan Gerhardy that on or about 27 February 1982 he committed a breach of s.19(1) of the Act. The complaint was heard by a special magistrate who, after making certain findings, stated a case which raised a number of questions of law for the opinion of the Supreme Court of South Australia. For present purposes, it is unnecessary to refer to the facts as found by the magistrate other than to say that the defendant, who is an Aboriginal but not a Pitjantjatjara, was on 27 February 1982 on a place within the lands although he had no written permission from the Anangu Pitjantjatjaraku or from the Executive Board or any delegate of either body to enter the lands. The matter came before Millhouse J., who decided to deal first with the constitutional question whether the Act was wholly or partly invalid. He held that s.19 was invalid because it is in conflict with s.9 of the Racial Discrimination Act and Article 5(d)(i) of the International Convention on the Elimination of All Forms of Racial Discrimination ("the Convention") set out in the schedule to the Racial Discrimination Act. He did not deal with the other arguments raised on behalf of the defendant and they do not concern us. From his decision the complainant gave a notice of appeal to the Full Court of the Supreme Court. On the application of the Attorney-General for South Australia and the complainant that part of the action that is comprised in the notice of appeal has been removed into this Court under s.40 of the Judiciary Act.

6. The provisions of the Racial Discrimination Act were fully discussed in Koowarta v. Bjelke-Petersen (1982) 56 ALJR 625; 39 ALR 417 and again in Viskauskas v. Niland (1983) 57 ALJR 414; 47 ALR 32. For the purposes of this judgment it is necessary to refer in particular to the following provisions. Section 8(1) provides as follows:

"8. (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 sub-section 10(1) applies by virtue of sub-section 10(3)."

By par.4 of Art. 1 of the Convention it is provided:

"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."

Sub-sections (1) and (2) of s.9 provide as follows:

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

(2) The reference in sub-section (1) to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes a reference to any right of a kind referred to in Article 5 of the Convention."

Article 5 provides, inter alia, as follows:

"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:

...

(d) Other civil rights, in particular:

(i) The right to freedom of movement and residence within the border of the State".

Section 10(1) and (2) provide as follows:

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

(2) A reference in sub-section (1) to a right

includes a reference to a right of a kind referred to in Article 5 of the Convention."

7. Three arguments were advanced in support of the defendant's case. The first argument takes as its starting point the decision in Viskauskas v. Niland that the Racial Discrimination Act is intended to be exhaustive and exclusive - i.e., that it is intended to be a complete statement of the law of Australia relating to racial discrimination: see at p.418 of A.L.J.R.; pp.40-41 of A.L.R. It is then submitted that the State Act allows an exception to the prohibition of racial discrimination which is made by s.9 of the Racial Discrimination Act or otherwise detracts from the efficacy of the latter Act. If this is intended to mean that there is a direct inconsistency between the two statutes, it is simply another way of stating the second argument to which I shall shortly turn. If, however (as the reference to Viskauskas v. Niland suggests), it is intended to mean that the State Act enters a field which the Commonwealth has intended wholly to cover, the argument cannot be accepted. The Racial Discrimination Act is intended to be a complete statement of the law relating to racial discrimination. The State Act is not a law relating to racial discrimination. It deals not with that subject, but with the ownership and use of certain lands in South Australia. If its provisions result in racial discrimination the question is whether, in doing so, they directly conflict with any provision of the Racial Discrimination Act.

8. The second argument is that there is a direct inconsistency between s.19 of the Act and s.9 of the Racial Discrimination Act. This argument was accepted by Millhouse J., who expressed his conclusion succinctly as follows:

"Section 19 is in conflict with Article 5(d)(i) of the Convention: section 19 interferes with 'the right to freedom of movement' on the basis of race: it prohibits anyone who is not a Pitjantjatjara from entering freely a very large part of the State: anyone who is not a Pitjantjatjara is kept out (subject to exceptions) unless with permission. That is directly contrary to section 9 of the Commonwealth Act and Article 5 of the Convention which requires the right to 'freedom of movement' ... "

A consideration of the true meaning and effect of s.9(1) of the Racial Discrimination Act raises some questions of great importance, but they need not be considered, since in my opinion the submission that s.19 of the Act is in conflict with s.9(1) of the Racial Discrimination Act fails at the outset. Section 9(1) makes it unlawful for a person to do any act of the kind which the sub-section describes. The sub-section does not make it unlawful for a State to make a law. It is true that by s.6 of the Racial Discrimination Act that Act binds the Crown in right of the Commonwealth and of each State and that by s.22(a) of the Acts Interpretation Act 1901 (Cth) as amended unless the contrary intention appears "person" in any Act shall include a body politic or corporate as well as an individual. However, the words "it is unlawful for a person to do any act" do not naturally describe the steps taken by the legislature and the Governor of a State to pass a Bill into law. Indeed it would be not only surprising, but of very doubtful constitutional validity, for the Commonwealth Parliament to make it unlawful for a State Parliament to pass a law of a particular kind. Section 109 of the Constitution, which provides for the consequences of inconsistency between State and Commonwealth laws, operates only when both laws are in existence and s.107 preserves the powers of the Parliaments of the States unless exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State. However, even if it were possible for the Commonwealth Parliament to forbid a State Parliament to exercise its legislative power, the words of s.9(1) are not apt to achieve such a result. That is made clear by the provisions of s.10 which expressly indicates the manner in which the Parliament intended that State laws should be directly affected by the Racial Discrimination Act. The argument that there is a direct inconsistency between s.19 of the Act and s.9 of the Racial Discrimination Act cannot be accepted.

9. It is necessary to advert to some further matters in relation to the scope of s.9(1) of the Racial Discrimination Act. First, in my opinion, the act of the Governor of South Australia in issuing a land grant under s.15 of the Act was not itself made unlawful by s.9(1). Speaking broadly, that sub-section deals with acts of racial discrimination, i.e., with acts which make a distinction on racial grounds. As the words of the sub-section themselves show, what is made unlawful is an act which involves a distinction, exclusion, restriction or preference between one person or group or class of persons and others, when that distinction, exclusion, restriction or preference is based on race, colour, descent or national or ethnic origin and 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 of the kind mentioned in the sub-section. If a statute which confers a power does not leave it open to the person exercising the power to discriminate in doing so, the exercise of the power is not rendered unlawful by s.9(1). Under s.15(1) of the Act, the Governor had no power to discriminate between persons or groups or classes of persons in the exercise of his power. He could issue or refrain from issuing the land grant, and he could grant the whole or part of the lands, but he had no discretion to decide who should be the grantee. He could make the grant to Anangu Pitjantjatjaraku but to no one else. His grant therefore did not involve a distinction, preference, exclusion or restriction of any kind. The case is comparable to that in which special legislation empowers the Governor to vest a particular piece of land in, say, an agricultural company or a mining company all the members of which are white, or in an ecclesiastical corporation all the members of which are of the same ethnic origin. No discrimination is involved in the act of the Governor in exercising his power in such a case.

10. Similarly, the argument that the prosecution of the defendant for an offence against s.19(1) was an act of discrimination is quite untenable. No distinction or preference was involved in laying a complaint against the defendant for an offence which he was alleged to have committed; no other person could properly be charged as the principal offender in such a case.

11. The final matter that may be mentioned in relation to s.9(1) is that s.19(5) of the Act does not require or allow Anangu Pitjantjatjaraku to make any distinction on the ground of race, colour, descent or national or ethnic origin in deciding to grant or refuse permission to enter the lands. It is not necessary further to discuss that question in the present case, for it appears from the findings of the special magistrate that the defendant did not lodge an application in writing for permission to enter the lands so that no occasion arose for the exercise of the power to grant or refuse any such application.

12. The third and final argument submitted on behalf of the defendant raises what is in my opinion the critical question in the case. That argument is that the Act is a State law to which the provisions of s.10(1) of the Racial Discrimination Act apply. Of course, if s.10(1) applies it will not render s.19 void; its effect will be to confer on persons who are not Pitjantjatjaras the same rights as persons who are Pitjantjatjaras. The defendant's submission is that the consequence would be that all persons would then have unrestricted rights of access to the lands.

13. In reply to this argument, counsel for the Attorney-General for South Australia and the complainant, and counsel for the interveners, made submissions which may be shortly stated as follows, although not all counsel supported every submission: (1) s.19 of the Act is not a law by reason of which "persons of a particular race" do not enjoy the right which under s.18 of the Act is enjoyed by the Pitjantjatjaras; (2) if s.10(1) applies it will confer on a person who is not a Pitjantjatjara a right of access to the lands only if that person is a traditional owner of them; (3) the right of unrestricted access given to the Pitjantjatjaras is not a right of the kind to which s.10(1) refers; and (4) in any case s.19 is a special measure to which Art.1(4) of the Convention applies and is therefore protected by s.8(1) of the Racial Discrimination Act.

14. The submission that s.19 of the Act does not disadvantage or treat unequally "persons of a particular race", requires a narrow and literal meaning to be given to s.10(1) of the Racial Discrimination Act. Section 19, it is said, at most has the effect that all persons other than the Pitjantjatjaras are prevented from enjoying the unrestricted right of access that is enjoyed by Pitjantjatjaras; since persons of all races other than Pitjantjatjaras are prevented from enjoying that right, s.10(1), which speaks of a law by reason of which "persons of a particular race ..." do not enjoy a right that is enjoyed by persons of another race, does not apply. To give s.10(1) this meaning would be to deprive it of much of its intended efficacy and would permit its provisions to be easily evaded. On this suggested construction, it would be possible, for example, for the law of a State effectively to provide that only persons of the white races might use certain public facilities, for such a law would disadvantage, not persons of a particular race, but persons of many races. It is absurd to think that this result was intended and the suggested construction is plainly incorrect.

15. The next submission takes as its starting point the incontrovertible fact that the right given by s.18 of the Act is enjoyed by a person who is a member of one or other of the three groups of peoples mentioned in par.(a) of the definition of "Pitjantjatjara" only if that person is also a traditional owner of the lands or a part of them. It is then submitted that s.10(1) of the Racial Discrimination Act (if it applied) would do no more than enable a person who is not a member of any one of those three groups to enjoy the right of access to the lands to the same extent as a person who is a member of one of those groups, i.e., only if he is himself a traditional owner of the lands or a part of them. As I have said, there is a lack of evidence regarding the traditional ownership of the lands. It does not appear whether there are other peoples than Pitjantjatjara, Yungkutatjara and Ngaanatjara who are the traditional owners of any parts of the lands, or whether there are any members of any of those three groups of peoples who are not traditional owners of any part of the lands. If all the members of those groups are traditional owners, par.(b) of the definition of "Pitjantjatjara" adds nothing to it. If there are persons who are not members of those groups but who are traditional owners of a part of the lands, those persons must be Aboriginals, for "traditional owner" is defined in s.4 of the Act as follows:

"'traditional owner' in relation to the lands means an Aboriginal person who has, in accordance with Aboriginal tradition, social, economic and spiritual affiliations with, and responsibilities for, the lands or any part of them".

On any view the right given by s.18 of the Act is enjoyed by persons of the Aboriginal race, and not by persons of any other race. It is equally true that no person can enjoy that right unless he or she is a traditional owner of a part of the lands. It is therefore understandable that it should be argued that the right is enjoyed by a person who is a member of the Pitjantjatjara, Yungkutatjara or Ngaanatjara people only to the extent to which that person is a traditional owner, and that s.10(1) enables that right to be enjoyed by a person who is not a member of one of those groups of peoples only if he or she is a traditional owner. In the present case the magistrate found that there was no evidence before him as to whether or not the defendant is a traditional owner of any part of the lands.

16. The question is a difficult one, but there are, in my opinion, good reasons for rejecting the argument which I have been discussing. The words in s.10(1), "to the same extent", refer rather to the scope of the right than to the qualifications for enjoying it. A person who enjoys a right under s.18 of the Act enjoys it without any restriction - that is to say, of course, any restriction imposed by the Act itself; other laws may limit the right. Moreover, the qualification for enjoying the right - traditional ownership - is itself based on racial origin. Recourse to the notion of traditional ownership may readily be had to effect the most obnoxious discrimination. On the one hand, members of a particular race may be confined to one area, not, it may be said, because of their race, but because it is their traditional homeland; on the other hand, the right to own land may be conferred only on members of a favoured race, not, it may be said, because they belong to that race, but because they are the traditional owners. I see no distinction between the effect of ss.18 and 19 of the Act, and that of a law which provided as follows: white men and women who are the traditional owners of land in a particular town have unrestricted rights of access to that town; no-one else may enter it without their permission. It would not be right to give s.10(1) a construction which fails to give its words their natural meaning and at the same time renders it ineffective to mitigate the effect of legislation which attempts to disguise the fact that it effects a discrimination based on race, colour or national or ethnic origin by attaching to the criteria of entitlement to the right in question some additional characteristic which persons of the disadvantaged race, colour or national or ethnic origin would be unable to satisfy. It is true that the added criterion introduced by the definition of "Pitjantjatjara" is not merely colourable or adventitious. The object of the Act is to give rights to the lands to a group of associated peoples who traditionally own various parts of them. The importance attached to protecting the interests of the traditional owners, and preserving Pitjantjatjara traditions and culture, is shown by a number of sections of the Act: see ss.7, 20(15)(a), 24(2), 36(4). The limitation of the definition of "Pitjantjatjara" to traditional owners genuinely reflects the true purpose of the Act, which is to restore the lands to their traditional Aboriginal owners. However, for the reasons I have given I cannot accept the argument that if s.10(1) applies it has the effect that a person who is not of the Pitjantjatjara peoples has a right of access to the lands only if he is a traditional owner of part of them.

17. I come then to the question whether the right of unrestricted access to the lands under s.18 of the Act is a right of a kind referred to in s.10(1) of the Racial Discrimination Act.

18. The provisions of s.10 of the Racial Discrimination Act were not considered in Koowarta v. Bjelke-Petersen. The provisions of Part II of the Racial Discrimination Act other than ss.8 and 10 may be regarded as amplifying and applying to particular cases the provisions of s.9 which prohibit acts of discrimination by persons (including the Crown). Section 10 has a different purpose. It is the only provision of the Racial Discrimination Act which deals with the effect of legislation which brings about discrimination. The words of s.10(1) are wide; they refer to laws by reason of which persons of (inter alia) one race do not enjoy "a right" that is enjoyed by persons of another race. By s.10(2), a reference to a right includes, but is not expressly limited to, a reference to a right of a kind referred to in Art.5 of the Convention. Although the validity of s.10(1) was not argued before us, there can be no doubt that its provisions will be valid only if they conform to, and carry into effect, the provisions of the Convention. Under Art.5 States Parties to the Convention undertake to prohibit and eliminate racial discrimination "in all its forms". If s.10(1) and (2) have the effect of prohibiting and eliminating racial discrimination they will be valid notwithstanding that they comprehend rights other than those specifically mentioned in Art.5. It is therefore unnecessary to consider the meaning of the words "the right to freedom of movement" in Art.5(d)(i). However, the term "racial discrimination" is defined in Art.1(1) of the Convention to 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". The conclusion seems to be inescapable that the word "right" in s.10(1) must be intended to refer only to a human right "in the political, economic, social, cultural or any other field of public life". The question is whether the right conferred by s.18 is a right of that description. In other words, is it a right in some "field of public life"?

19. Notwithstanding the reference in Art.1(1) to "social" life, the words "any other field of public life" indicate that the Convention is not concerned with rights that are purely private, such as the right of a landowner to decide for himself what persons he will allow on his lands when they are not open to use by the public. It is tempting to draw an analogy between the situation brought about by ss.18 and 19 of the Act and the position of any land owner who has an unrestricted right of access to his own lands and the right to grant or refuse permission to others to enter them, particularly when the landowner is a corporation. However, the vast area of the lands is enough in itself to falsify the analogy. If the vesting of the ownership of lands in a corporation were enough to justify the exclusion of persons from those lands on the ground of race, it would be easy indeed to introduce a system of apartheid without contravening the Convention or the Racial Discrimination Act. Moreover the corporation Anangu Pitjantjatjaraku is created for convenience, by a public statute, so that the lands, traditionally owned by peoples of the various groups that the Act calls Pitjantjatjaras, may be vested in it. The words of the Convention, and those of the Racial Discrimination Act which are taken from the Convention, are vague and elastic and in applying them one is likely to get more assistance from the realities of life than from books of jurisprudence. The right, given by statute, of access to an area so large that it constitutes more than one-tenth of the State, seems to me to be a right in a field of public life. It is true to say, on the one hand, that the pre-existing right of a person other than a Pitjantjatjara of access to the lands was not unfettered and, on the other, that s.19 admits (rather meagrely) some exceptions to the prohibition which it imposes on entry without consent. Nevertheless, s.18 does confer a right which can in my opinion properly be regarded as a human right in some field of public life, and the effect of s.19 is that persons who are not Pitjantjatjaras do not enjoy that right. Unless s.8(1) renders s.10(1) inapplicable, the latter subsection will apply and will give persons who are not Pitjantjatjaras an unrestricted right of access to the lands, subject, of course, to such restrictions as are validly imposed by other laws.

20. The question then is whether s.19 may be justified as a special measure to which Art.1(4) of the Convention applies. If so, s.10(1) does not apply, for it was not suggested that the measures in question are measures to which s.10(1) is applied by virtue of s.10(3). The legislature has no doubt acted on the view that to enable the Pitjantjatjaras to live on the land in accordance with their traditions and customs and to maintain their relationship to the land, which is a relationship quite different from that to which persons of European descent are accustomed, it is necessary not only that they should own the land but also that they should have full control of access to it. There can be little doubt that the provisions of s.19 of the Act were intended to be a protective measure, enacted in the interests of racial or ethnic groups thought to require that protection. There was no evidence put before the Court to show that the facts either did or did not satisfy the words of Art.1(4). The case is not one in which the constitutional validity of a statute depends upon facts, but it is closely analogous to such a case, since the combined effect of s.109 of the Constitution and ss.8 and 10 of the Racial Discrimination Act is that the extent to which the Act can operate depends on whether the Act is a special measure to which Art.1(4) applies. In Breen v. Sneddon (1961) 106 CLR 406, at pp 411-412, Dixon C.J. pointed out the distinction between ordinary questions of fact which arise between parties because one asserts and the other denies that events have occurred bringing one of them within some criterion of liability or excuse set up by the law and, on the other hand, matters of fact upon which the constitutional validity of some general law may depend. He said that matters of the latter description cannot and do not form issues between parties to be tried like the former questions but simply involve information which the Court should have in order to judge properly of the validity of the statute. He went on to cite a passage from Commonwealth Freighters Pty. Ltd. v. Sneddon (1959) 102 CLR 280, at p 292, where he had said that "if a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon to pronounce upon validity". That statement is in my opinion applicable to the present case and we must determine as best we can the facts which will enable us to answer the question whether the Act is a special measure within Art.1(4). We may take judicial notice of facts that are notorious and may rely on the material placed before us, particularly that contained in the report to which I have already referred. In the light of that material it can hardly be doubted that the three ethnic groups do require special protection within the meaning of Art.1(4). Further, there is no reason to conclude that the protection afforded by the Act is more than is necessary, having regard to the nature of the lands, the uses to which they have been put, the preservation of the rights of existing users and the special provisions designed to ensure justice to the most likely potential users, viz. miners, as well as the needs of the protected groups. It was submitted for the defendant that "the sole purpose" of the Act was not that described in Art.1(4), since, it was submitted, the Act discloses at least three purposes - to make a land grant (s.15), to grant a power to control access to the lands (s.19) and to restrict alienation of the lands granted (s.17). This is too narrow a view; the Act obviously adopts a number of measures to achieve its purpose, but nevertheless has the sole purpose of securing the advancement of the ethnic groups in question.

21. It was further submitted on behalf of the defendant that the measures taken by the Act lead to the maintenance of separate rights for different racial groups contrary to the proviso to Art.1(4). It is obvious enough that measures within the introductory words of Art.1(4) may involve some special rights for the members of the protected group. The proviso that such measures should not lead to the maintenance of separate rights for different racial groups cannot be intended to prevent special rights being conferred for the purpose mentioned in the Article; it must be intended to prevent such rights from being maintained, i.e., kept in force. In my opinion the words of both limbs of the proviso should be read together. The proviso as a whole appears to be designed to prevent such special rights as are granted from being indefinitely maintained or continued after the special measures have achieved their objective. It cannot be said that the present case falls within the proviso. The special measures were taken only in 1981 and it is obvious from the nature of things that a considerable time may elapse before it can be hoped that the special measures will be effective. It is, however, a matter of concern that the Act has an obvious air of permanency. It does seem to be intended to set up permanently a separate regime for the Pitjantjatjaras. I doubt whether it would be allowable under the Convention, which by the proviso to Art.1(4) recognizes that protection may degenerate into discrimination, to keep s.19 permanently in force. That however is a matter for the future. The situation to which the proviso is directed has not yet been reached. The Act as a whole may be upheld as a special measure within s.8(1) of the Racial Discrimination Act.

22. For these reasons I would allow the appeal and would answer in the negative the question whether s.19 of the Act is invalid or restricted in its operation by reason of the Racial Discrimination Act.

MASON J. This appeal against an order made by Millhouse J. in the Supreme Court of South Australia answering questions in a special case was removed into this Court by order made under s.40 of the Judiciary Act 1903 (Cth), as amended. The special case was stated by Mr Chivell, a special magistrate sitting in the Court of Summary Jurisdiction at Oodnadatta, pursuant to s.162 of the Justices Act 1921-1982 (S.A.). The substantial question raised by the special case is whether s.19 of the Pitjantjatjara Land Rights Act 1981 (S.A.) ("the State Act") is invalid or restricted in its operation by reason of the Racial Discrimination Act 1975 (Cth), as amended ("the Commonwealth Act"), which gives effect in Australia to the International Convention on the Elimination of All Forms of Racial Discrimination ("the Convention"), on the ground that s.19 of the State Act discriminates against persons who are not members of the Pitjantjatjara peoples.

2. The State Act, which is designed to protect the Pitjantjatjara peoples, provides for the vesting of title to extensive lands described in the first schedule to the Act ("the lands"), amounting in all to one tenth approximately of the area of the State, in Anangu Pitjantjatjaraku (s.15), this being a composite name given to the body corporate established by the State Act (s.5(1)), of which all Pitjantjatjaras are members (s.5(2)).

3. The name "Pitjantjatjara" is defined by s.4 to mean a person who is both (a) a member of the Pitjantjatjara, Yungkutatjara and Ngaanatjara people; and (b) a traditional owner of the lands, or a part of them. The expression "traditional owner" in relation to the lands is also defined by s.4 to mean:

"... an Aboriginal person who has, in accordance with Aboriginal tradition, social, economic and spiritual affiliations with, and responsibilities for, the lands or any part of them."

4. Section 18 of the State Act provides that "All Pitjantjatjaras have unrestricted rights of access to the lands." In contradistinction, s.19(1) and (2) provides:

"(1) A person (not being a Pitjantjatjara) who enters the lands without the permission of Anangu Pitjantjatjaraku is guilty of an offence and liable to a penalty not exceeding the maximum prescribed by subsection (2).

(2) The maximum penalty for an offence against subsection (1) is -

(a) where the offence was committed intentionally - a fine of two thousand dollars plus five hundred dollars for each day during which the convicted person remained on the land after the unlawful entry;

or

(b) in any other case - a fine of two hundred dollars."

An application for permission to enter the lands under s.19 must be in writing and lodged with the Executive Board of the body corporate (s.19(3)(a)). It must set out-

"(i) the purpose for which the applicant seeks to enter the lands;

(ii) the period for which the applicant seeks to be upon the lands;

and

(iii) the time at which the applicant seeks to enter the lands, and the place at which he intends to make his entry." (s.19(3)(b)).

The applicant, at the request of the body corporate, is bound to furnish such information as it may reasonably require to determine the application (s.19(4)). The body corporate may by instrument in writing grant permission to enter unconditionally, grant permission to enter subject to conditions or refuse permission (s.19(5)). Notwithstanding the general prohibition in s.19(1), certain categories of persons performing public duties or functions are permitted to enter the lands (s.19(8)(a)-(d)). In addition, entry in case of emergency and entry for certain specific purposes is authorized (s.19(8)(e) and (f)).

5. The respondent, Robert John Brown, was charged with an offence against s.19(1) in that he entered the lands on 27 February 1982 without the permission of the body corporate. According to the facts recited in the special case, the respondent entered the lands on that day and did so without having the permission of the body corporate. Questions 1 and 2 in the special case, as stated by the magistrate, are in these terms:

"1. Is the Pitjantjatjara Land Rights Act 1981, hereinafter referred to as 'the Act' and in particular, section 19 and any other section thereof relevant to these proceedings, invalid or restricted in its operation by reason of a law of the Commonwealth, and in particular, the Racial Discrimination Act 1975?

2. If the answer to Question 1 is that the Act is restricted in its operation, does the complaint herein fall within the area of valid operation of the Act?"

6. Millhouse J. concluded that s.19(1) of the State Act is inconsistent with art.5(d)(i) of the Convention which recognizes "The right to freedom of movement and residence within the border of the State" and with s.9 of the Commonwealth Act. He answered questions 1 and 2 as follows:

"1. .....

Answer: Section 19 of the Pitjantjatjara Land Rights Act 1981 is invalid by reason of the Racial Discrimination Act 1975. No other section relevant to these proceedings is invalid.

2. .....

Answer: In the light of my answer to question 1, this question is not applicable."

7. Before this Court it was agreed that question 1 should be amended so as to read:

"Is s.19 of the Pitjantjatjara Land Rights Act 1981 invalid or restricted in its operation by reason of the Racial Discrimination Act 1975?"

8. Section 15(1) of the State Act authorizes the issue by the Governor of a land grant in fee simple of the whole or any part of the lands to the body corporate. There are certain restrictions (see s.15(2) and (3)) on the exercise by the Governor of his powers under s.15(1) in relation to land in which other persons have an estate or interest, but these restrictions may be disregarded for the purposes of this case. We were informed that the Governor has issued a land grant to the body corporate pursuant to s.15(1).

9. We were further informed that two public roads only traverse the lands. These public roads are the Stuart Highway and the Oodnadatta to Granite Downs Road which are referred to in the second schedule to the State Act. The area comprised within one hundred metres to each side of the centre line of these roads is constituted a road reserve (s.33(1)). A member of the public is entitled to free and unrestricted access to the roads and to land comprised in a road reserve (s.33(3)).

10. The State Act defines the functions of the body corporate in these terms:

"(a) to ascertain the wishes and opinions of traditional owners in relation to the management, use and control of the lands and to seek, where practicable, to give effect to those wishes and opinions;

(b) to protect the interests of traditional owners in relation to the management, use and control of the lands;

(c) to negotiate with persons desiring to use, occupy or gain access to any part of the lands;

and

(d) to administer land vested in Anangu Pitjantjatjaraku." (s.6(1)).

Provision is made for the election and functions of the Executive Board with powers to act on behalf of the body corporate (see ss.9, 10 and 11).

11. The Commonwealth Act makes provision for giving effect to the Convention. It approves ratification by Australia of the Convention (s.7). Part II of the Commonwealth Act contains a number of provisions prohibiting racial discrimination. The Part commences with s.8, which by subsection (1) provides:

"(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 sub-section 10(1) applies by virtue of sub-section 10(3)."

12. The prohibitions which are relevant to the present case are those contained in ss.9 and 10. Section 9 provides:

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

(2) The reference in sub-section (1) to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes a reference to any right of a kind referred to in Article 5 of the Convention.

(3) Sub-section (1) 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 sub-section (1)."

13. The operation of s.9 is confined to making unlawful the acts which it describes. It is s.10 that is directed to the operation of laws, whether Commonwealth, State or Territory laws, which discriminate by reference to race, colour or national or ethnic origin. Accordingly, we must look to s.10, rather than to s.9, of the Commonwealth Act, in order to determine the impact which that Act has on s.19 of the State Act. This is not to say that s.9 of the Commonwealth Act cannot operate as a source of invalidity of inconsistent State laws, by means of s.109 of the Constitution. Inconsistency may arise because a State law is a law dealing with racial discrimination, the Commonwealth law being intended to occupy that field to the exclusion of any other law (Viskauskas v. Niland (1983) 57 ALJR 414; 47 ALR 32). Or it may arise because a State law makes lawful the doing of an act which s.9 forbids (see Clyde Engineering Co. Ltd. v. Cowburn (1926) 37 CLR 466, at p 490). But, neither the State Act, nor s.19, is a law dealing with racial discrimination; nor does either make lawful the doing of an act proscribed by s.9. And s.10 of the Commonwealth Act, by making specific provision in the case of State laws which discriminate in the manner already described, makes it clear that s.9 is not intended to apply to such a situation.

14. One important aspect of s.9 of the Commonwealth Act, which the respondent's argument raises for consideration, however, is the effect of the section in relation to an act done pursuant to a statute which authorizes the conferring of a benefit, or the imposition of a burden or liability, on persons of a race or races, but not on persons of another race or races. This question arises because the respondent submits that the issue by the Governor of a land grant under s.15 of the State Act and the prosecution of the respondent for an offence under s.19 of that Act fell foul of s.9(1) of the Commonwealth Act. Because s.9(1) creates a criminal offence and because the subsection is aimed at an act whose purpose or effect is to nullify or impair the recognition, enjoyment or exercise on an equal footing of a relevant human right or fundamental freedom, the operation of the subsection does not extend to circumstances in which the actor, having statutory authority to confer a benefit or to impose a burden or liability only in a particular way, acts in accordance with that authority.

15. The argument against this interpretation is that so to construe s.9(1) may weaken the operation of the Commonwealth Act as a measure for the elimination of racial discrimination. If this be the true interpretation of the subsection, it is questioned whether the Commonwealth Act contains any provision which is effective to combat an act otherwise discriminatory done pursuant to statutory authority when the statute does not permit the act to be done in a non-discriminatory way. The force of the argument turns partly on the ambit of s.10(1) of the Commonwealth Act when it refers to "a right" in the context of "enjoy a right". This aspect of s.10(1) has its difficulties. As they were not explored in argument, I do not consider it appropriate to embark upon them. It is enough for me to say that s.15 of the State Act does not authorize the issue of a land grant to persons other than Anangu Pitjantjatjaraku and that to prosecute the respondent for an offence under s.19 involves no element of racial discrimination because it is not suggested that any other person committed an offence.

16. Section 10 is not aimed at striking down a law which is discriminatory or is inconsistent with the Convention. Instead it seeks to ensure a right to equality before the law by providing that persons of the race discriminated against by a discrimatory law shall enjoy the same rights under that law as other persons. It provides:

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

(2) A reference in sub-section (1) to a right

includes a reference to a right of a kind referred to in Article 5 of the Convention.

(3) Where a law contains a provision that -

(a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or

(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander,

not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which sub-section (1) applies and a reference in that sub-section to a right includes a reference to a right of a person to manage property owned by him."

Unlike s.9, s.10 makes no reference to "descent", a word which appears consistently in the provisions of the Convention. The reason for its omission in s.10 is not apparent, but its omission is not material to the present case.

17. Koowarta v. Bjelke-Petersen (1982) 56 ALJR 625; 39 ALR 417 decided by majority that ss.9 and 12 of the Commonwealth Act were valid laws with respect to external affairs within the meaning of s.51(xxix). It was common ground between the parties in that case that the two sections of the Commonwealth Act gave effect to the provisions of the Convention. Koowarta involved no decision as to the validity of s.10 of the Commonwealth Act. The validity of the section is not an issue in the present case. For this reason we should proceed on the assumption that it is a legislative implementation of the provisions of the Convention, in particular of arts.2 and 5, an assumption which in my view is well founded, as will appear later. The section seeks to give effect to Australia's obligation to eliminate the relevant racial discrimination by giving to persons of the race discriminated against the enjoyment of relevant rights to the same extent as persons of another race.

18. By art.1.1 of the Convention the term "racial discrimination" is defined to 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."

Article 1.4 provides:

"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."

It is this provision to which s.8(1) of the Commonwealth Act refers when it provides that Pt II does not apply to special measures.

19. Article 2, so far as it is relevant to the present case, 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:

.....

(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."

Whereas art.1.4 provides merely that the taking of special measures does not constitute racial discrimination, art.2.2 imposes an obligation to take special measures. There are minor differences in the expression of the two provisions - "special" cf. "special and concrete" measures; "adequate advancement" cf. "adequate development and protection" - and a difference in the way in which the proviso is expressed in each article. However, both provisions deal with the same subject matter and insist that the measures to which they refer shall not be continued after their object has been achieved.

20. Article 5 is to be understood against the background of these provisions. It commences in this way:

"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:"

There follows mention of: (a) the right to equal treatment in the administration of justice; (b) the right to security of person and protection by the State against violence or bodily harm; and (c) political rights. Paragraph (d) is in these terms:

"Other civil rights, in particular:

(i) The right to freedom of movement and residence within the border of the State;

(ii) The right to leave any country, including one's own, and to return to one's country;

(iii) The right to nationality;

(iv) The right to marriage and choice of spouse;

(v) The right to own property alone as well as in association with others;

(vi) The right to inherit;

(vii) The right to freedom of thought, conscience and religion;

(viii) The right to freedom of opinion and expression;

(ix) The right to freedom of peaceful assembly and association;"

There follows par.(e) which refers to economic, social and cultural rights, in particular:

"(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

(ii) The right to form and join trade unions;

(iii) The right to housing;

(iv) The right to public health, medical care, social security and social services;

(v) The right to education and training;

(vi) The right to equal participation in cultural activities;"

The final provision in art.5 is par.(f) which is in these terms:

"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."

21. By subscribing to these provisions, the nations which adhere to the Convention assume an international obligation to eliminate racial discrimination as that term is defined in relation to human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life, notably those which are set out in art.5. The words "any other field of public life" do not attach any significant limitation to the area of human rights and fundamental freedoms with which the Convention is concerned. Article 5 specifies a number of rights which would in other contexts be thought to lie outside public life, e.g., the right to inherit (par.(d)(vi)) and the right of access (par.(f)).

22. The Convention does not impose an obligation on a nation which is party to the Convention to introduce such human rights and fundamental freedoms; instead, it imposes an obligation to eliminate racial discrimination in relation to such rights and freedoms and to guarantee equality before the law in the enjoyment of them. Accordingly, under the Convention it is necessary to determine not only whether there is racial discrimination but also whether that discrimination has a purpose or effect of nullifying or impairing the enjoyment on an equal footing of human rights or fundamental freedoms of the kind to which the Convention refers.

23. In this respect s.10 does not precisely follow the language of the definition of "racial discrimination" in art.1.1. For the operation of the section it is enough that persons of a particular race, colour or national or ethnic origin, in contradistinction to persons of another race, colour or national or ethnic origin do not enjoy a relevant right or enjoy it to a more limited extent. And the section speaks merely of the enjoyment of rights, whereas art.1.1 speaks of the "recognition, enjoyment or exercise on an equal footing" of rights. By confining itself to the word "enjoyment", s.10 follows the example of art.5 which likewise does not adopt the formula found in art.1.1.

12. Nevertheless the Commonwealth Parliament, in enacting the Racial Discrimination Act, chose in s.9, which is the basic provision in the Act prohibiting racial discrimination, to adopt the wording of the Convention by repeating the definition of racial discrimination which is contained in par.1 of art.1 of the Convention. Section 9(1) provides that it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social or cultural or any other field of public life.

13. It may be questioned whether the term "human right" or "fundamental freedom" has any meaning in our system of law which, at least hitherto, has not recognized any such classification of rights or freedoms. The implementation of the Convention may require comething more than a mere repetition of those expressions in order to translate into domestic law the concepts which they describe. Nor will it necessarily be sufficient to say that they bear the same meaning as that which they bear in the Convention or in international law for it is sufficiently clear from what I have already said that both the Convention and international law may ascribe to them no fixed meaning and may assume that their translation into domestic law, at least in a common law system, requires their evaluation and expression in terms of specific rights and duties. It is no doubt for this reason, amongst others, that the process is subjected to the guidance and supervision of the appropriate agencies of the United Nations.

14. But whatever the mode of progress in the international arena, this Court cannot abdicate its function of deciding the validity of legislation which purports to be passed pursuant to powers conferred by the Constitution. The Commonwealth Parliament does not, under s.51 (xxix) of the Constitution, have power to legislate with respect to the subject matter of any treaty to which Australia is a party. As Mason J. said in The Commonwealth v. Tasmania (1983) 57 ALJR 450, at p 489; (1983) 46 ALR 625, at p 696:

"I reject the notion that once Australia enters into a treaty Parliament may legislate with respect to the subject matter of the treaty as if that subject matter were a new and independent head of Commonwealth legislative power."

See also pp. 476, 506, 518, 532-533, 545 and 568 of A.L.J.R.; pp. 671, 730, 754, 781-782, 805-806 and 850 of A.L.R. The power which the Commonwealth Parliament does have is to perform such obligations as are imposed upon it and where a treaty leaves to the State Parties the selection of the appropriate legal means to achieve the policy which it lays down, as does the Convention on the Elimination of all Forms of Racial Discrimination, it may not be an implementation of the treaty merely to enact as domestic law provisions which are couched in terms of the international obligations. See the discussion of the authorities by Gibbs C.J. in The Commonwealth v. Tasmania, at pp 476-478 of ALJR; pp 671-674 of ALR

15. For reasons which will appear, it is unnecessary to pursue this aspect of the matter further in this case, but I would add that, for my part, I do not regard the question as closed whether s.9 of the Racial Discrimination Act is a valid implementation of any obligation imposed by the relevant Convention. A concession to that effect was made by the State of Queensland in Koowarta v. Bjelke-Petersen and relief upon by the majority in that case in reaching their conclusion, despite argument to the contrary by the intervening States of Victoria and Western Australia, but in my view, such a concession is not capable of concluding the issue. See Koowarta v. Bejelke-Petersen, at pp 647, 653, 656 and 665 of ALJR; pp 456, 468, 473 and 488 of ALR

16. I am, however, prepared to assume for the purposes of this case that s.9 of the Racial Discrimination Act validly enacts a treaty obligation and that the rights relied upon by the respondent are capable of being described as human rights or fundamental freedoms within the meaning of that section. I am also prepared to assume that s.10 of the Racial Discrimination Act, which is the other section relied upon by the respondent, constitutes the implementation of an obligation imposed by the Convention. Sub-section (1) of that section provides that if, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first mentioned race, colour or national or ethnic origin shall, by force of the section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

17. Section 8(1) of the Racial Discrimination Act provides, with an exception which is not relevant for present purposes, that Pt II of the Act (which is the Part in which ss.9 and 10 are to be found) does not apply to, or in relation to, the application of special measures to which par.4 of art.1 of the Convention applies. The sub-section proceeds upon the basis that special measures are sufficiently identified by by par.4 of art.1 so as to enable the ambit of Pt II of the Act and, in particular, ss.9 and 10, to be cut down by reference to that paragraph. There is, however, some difficulty about that, in that the special measures to which par.4 of art.1 refers are those which have actually been taken pursuant to par.2 of art.2 in furtherance of the objectives or policy there set out. Although the latter paragraph provides, together with the external affairs power, a potential source of Commonwealth legislative power, we were not referred to any exercise of that power or to any special measures taken by the Commonwealth.

18. To construe s.8(1) literally would be to confine its application to such special measures as have been taken, so that Pt II of the Act would preclude the taking of further special measures (which need not be in the form of legislation) required to be taken under par.2 of art.2 of the Convention when the circumstances so warrant. If that were the intention, the Act would be in breach of a positive obligation imposed by that paragraph of the Convention and, at least to that extent, would not be by way of implementation of its provisions.

19. However, s.8(1) of the Act quite obviously treats par.4 of art.1 of the Convention as descriptive of the type of special measures to which Pt II of the Act is to have no application. Nor can it be thought that the special measures so described are measures to be taken by the Commonwealth alone for, notwithstanding the legislative power derived by the Commonwealth from the obligation to take special measures which the Convention imposes upon it, it would be exceeding the scope of the Convention and of that legislative power for the Commonwealth, in the absence of legislation of its own, to prevent the taking of special measures by the States for the advancement of particular racial or ethnic groups or individuals.

20. Thus the statement in Viskauskas v. Niland, at p 418 of ALJR; p 41 of ALR, that the Commonwealth Act was intended as a complete statement of the law for Australia relating to racial discrimination must, in the present context, be qualified by the observation that it was not intended to preclude the taking of special measures within the meaning of s.8(1) of the Act by the States as well as the Commonwealth.

21. To proceed thus far is, however, not to solve all of the problems for what is a special measure within the meaning of s.8(1) of the Act must still be determined. That sub-section merely defines special measures by reference to par.4 of art.1 of the Convention and there are some further difficulties which arise from that means of definition.

22. Whilst par.4 of art.1 in one sense describes special measures, its function goes beyond that. It excepts from the definition of "racial discrimination" special measures taken pursuant to the obligation imposed by par.2 of art.2 and does so to a large extent by repeating the language used in par.2 of art.2 to define the obligation. Paragraph 4 of art.1 adds an additional qualification, namely, that special measures must be taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring protection and this addition has the effect of further confining the special measures which may be taken under the Convention pursuant to par.2 of art.2.

23. The fact that par.4 of art.1 of the Convention refers to special measures in terms of the content of the obligation which it imposes to take those measures creates difficulties when that paragraph is used, as it is, to confine the scope of Pt II of the Racial Discrimination Act. It is the obligation imposed by the Convention which gives rise to the legislative power on the part of the Commonwealth to enact special measures, but the limitations imposed by par.4 of art.1 or par.2 of art.2 upon the manner in which, or the purpose for which, special measures which may be taken in conformity with the Convention are not the same thing as limitations upon the subject matter of that legislative power. Indeed, to my mind, the limitations which are imposed by par.4 of art.1 and par.2 of art.21 upon the special measures which might be taken go beyond the definition of the subject matter. They require an examination and evaluation of purpose, not necessarily confined to the terms in which the special measures are expressed. They require either the prediction of the consequences of the special measures in order to determine whether they will lead to the maintenance of separate rights for different racial groups or will be continued after the objectives for which they have been taken have been achieved, or, alternatively, they require the termination of the special measures or some provision to be made for their termination in those circumstances.

24. These limitations are entirely understandable in the context of the Convention, which envisages that the issues raised may be adjudicated by the Committee or the Conciliation Commissions for which the Convention provides. As a means of marking out the scope of Pt II of the Racial Discrimination Act for the purposes of the application of s.109 of the Constitution, they afford little or no assistance. The subject matter of the legislative power which the Commonwealth derives from the obligation imposed by the Convention upon it to take special measures is, in the context of s.109, something different from the manner in which, or the purpose for which, the Convention requires the Commonwealth to exercise that power. That is of significance for it must be borne in mind that, except to the extent that the Commonwealth has exercised its legislative power with respect to that subject matter, the exercise by the States of their legislative powers with respect to the same subject matter has no relevant limits and is not subject to any of the requirements of the Convention.

25. The subject matter which s.8(1) of the Racial Discrimination Act excludes from the operation of Pt II of that Act can, in my view, be defined no more precisely than as the subject matter of special measures having the object of the advancement of particular racial or ethnic groups or individuals requiring protection. It is that subject matter upon which Pt II of the Racial Discrimination Act does not operate and it is that subject matter upon which the States may legislate consistently with the Commonwealth legislation.

26. There can, I think, be no doubt that the Pitjantjatjara Land Rights Act is a special measure the object of which is the advancement of certain racial or ethnic groups. The groups concerned are those peoples identified by the definition of "Pitjantjatjara" who, because they must be traditional owners of the lands or part of them, must be Aboriginal persons. The vesting of the lands in Anangu Pitjantjatjaraku can only be viewed as being for the advancement of those peoples. The administration of the lands when vested is entrusted by the Act to Anangu Pitjantjatjaraku, which has the function of protecting the interests of the traditional owners in relation to the management, use and control of the lands. This provision can also only be viewed as being for the advancement of the Pitjantjatjaras. The question whether Pitjantjatjaras are a racial or ethnic group requiring protection must ultimately be a matter for the legislature and, provided that they are capable of being so regarded, then it is not for this Court to inquire further. From the terms of the Act and those facts which, upon the evidence or otherwise, the Court is entitled to taken into account, I am of the view that it is a conclusion which the legislature might properly have reached.

27. It follows that, in my view, the Pitjantjatjara Land Rights Act is a special measure to which Pt II of the Racial Discrimination Act does not apply and that there is no inconsistency between its provisions and those of the Commonwealth legislation. That conclusion renders it unnecessary for me to consider whether s.19 of the Pitjantjatjara Land Rights Act involves racial discrimination within the meaning of s.9 of the Racial Discrimination Act or the denial of rights to equality before the law under s.10 of that Act. I would answer in the negative the question posed by this appeal.

Orders

Appeal allowed.

Set aside the judgment of Mr Justice Millhouse dated 21

July 1983 and in lieu thereof answer the questions in the special case stated, as amended by this Court, as follows:

1. Is s.19 of the Pitjantjatjara Land Rights Act 1981 (S.A.) invalid or restricted in its operation by reason of the Racial Discrimination Act 1975 (Cth)?

Answer: No.

2. If the answer to Question 1 is that the Pitjantjatjara Land Rights Act is restricted in its operation, does the complaint herein fall within the area of valid operation of the Act?

Answer: Unnecessary to answer.

Order by consent that the appellant pay the respondent's

costs of the appeal.

Remit the proceedings to the Supreme Court of South

Australia.