Maloney v The Queen
[2013] HCA 28
•19 June 2013
HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJJOAN MONICA MALONEY APPELLANT
AND
THE QUEEN RESPONDENT
Maloney v The Queen
[2013] HCA 28
19 June 2013
B57/2012
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation
C A Ronalds SC and J K Kirk SC with S E Pritchard SC and A L McAvoy for the appellant (instructed by Aboriginal & Torres Strait Islander Legal Service (Qld))
W Sofronoff QC, Solicitor-General of the State of Queensland with S A McLeod and A D Scott for the respondent (instructed by Crown Solicitor (Qld))
Interveners
J T Gleeson SC, Acting Solicitor-General of the Commonwealth with C L Lenehan and F T Roughley for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M G Hinton QC, Solicitor-General for the State of South Australia with M J Wait for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))
G R Donaldson SC, Solicitor-General for the State of Western Australia with C S Bydder for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
K L Eastman SC for the Australian Human Rights Commission, intervening (instructed by Australian Human Rights Commission)
M J Richards with S M Fitzgerald for the National Congress of Australia's First Peoples Limited, appearing as amicus curiae (instructed by Human Rights Law Resource Centre Ltd)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Maloney v The Queen
Discrimination law – Racial discrimination – Certain geographical areas on Palm Island subject to restrictions as to nature and quantity of liquor which may be possessed – Palm Island population overwhelmingly Aboriginal – Appellant, an Indigenous member of Palm Island community, convicted of possessing liquor in restricted area on Palm Island – Whether restrictions affected enjoyment of right to equal treatment before tribunals protected by Art 5(a) of International Convention on the Elimination of All Forms of Racial Discrimination ("Convention") – Whether restrictions affected enjoyment of right to own property protected by Art 5(d)(v) of Convention – Whether restrictions affected enjoyment of right of access to places or services for use by general public protected by Art 5(f) of Convention – Whether restrictions engaged s 10 of Racial Discrimination Act 1975 (Cth) – Whether restrictions valid as special measure within meaning of s 8 of Racial Discrimination Act.
Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency pursuant to s 109 of Constitution.
Words and phrases – "human rights or fundamental freedoms", "racial discrimination", "right of access to any place or service intended for use by the general public", "right to equal treatment before the tribunals and all other organs administering justice", "right to own property", "special measure".
Constitution, s 109.
Liquor Act 1992 (Q), ss 168B, 173G, 173H.
Racial Discrimination Act 1975 (Cth), ss 8, 10.
Liquor Regulation 2002 (Q), ss 37A, 37B, Sched 1R.
FRENCH CJ.
Introduction
The appellant, who is an Indigenous resident of Palm Island in Queensland, was charged on 31 May 2008 in the Magistrates Court for the District of Townsville with possession of more than a prescribed quantity of liquor in a restricted area on Palm Island contrary to s 168B of the Liquor Act 1992 (Q) ("Liquor Act").
Palm Island is a "community government area" within the meaning of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Q)[1]. It is subject to regulations made under ss 173G and 173H of the Liquor Act declaring it a restricted area and restricting the nature and quantity of liquor which people may have in their possession in the community area on the Island[2]. The community itself is composed almost entirely of Indigenous people.
[1]Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Q), s 4.
[2]Liquor Regulation 2002 (Q), ss 37A, 37B, Sched 1R, s 1(a) ("Liquor Regulation"). The restriction extends to the foreshore and the jetty, effectively preventing any alcohol except of that nature and quantity from being brought onto the Island: Sched 1R, s 1(b) and (c).
The appellant did not appear before the Magistrates Court. She entered no plea to the charge. The magistrate proceeded on the basis of facts agreed between the parties. It was agreed that the police had intercepted a motor vehicle on Park Road, Palm Island and that the appellant was an occupant of that vehicle. A black backpack in the boot of the vehicle was found to contain one 1125 ml bottle of Jim Beam bourbon and one 1125 ml bottle of Bundaberg Rum which was three-quarters full. The appellant admitted to being the owner of the liquor. A fine of $150 was imposed, to be paid within two months with one day imprisonment in default of payment.
The appellant appealed against the conviction to the District Court of Queensland[3] contending, inter alia, that s 168B of the Liquor Act, regulations made under the Act and the restrictions which they imposed relating to possession of alcohol on Palm Island were invalid by reason of inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth) ("RDA"). Section 10 relevantly provides that if a State law has the effect that persons of a particular race do not enjoy a right enjoyed by persons of another race or enjoy it to a more limited extent, the person adversely affected shall, by force of s 10, enjoy that right to the same extent as the persons of that other race. The appellant's appeal to the District Court[4] and a subsequent application for leave to appeal to the Court of Appeal of the Supreme Court of Queensland[5] were dismissed[6]. The Court of Appeal held, by majority, that s 10 did not apply, but in any event, unanimously, that the impugned legislation was a "special measure" taken for the sole purpose of securing the adequate advancement of the Indigenous people of Palm Island and that by force of s 8 of the RDA s 10 did not apply to that legislation.
[3]Pursuant to the Justices Act 1886 (Q), s 222.
[4]Maloney v Queensland Police Service [2011] QDC 139.
[5]Pursuant to the District Court of Queensland Act 1967 (Q), s 118(3).
[6]R v Maloney [2013] 1 Qd R 32.
On 5 October 2012, this Court (French CJ and Crennan J) granted special leave to the appellant to appeal against the decision of the Court of Appeal[7]. The appeal should be dismissed on the basis that the impugned provisions were a special measure within the meaning of s 8 of the RDA.
[7][2012] HCATrans 243.
The appeal requires an examination of the interaction between ss 8 and 10 of the RDA, which are of general application, and the specific provisions of the Liquor Act and regulations made under it, which underpin the charge brought against the appellant. It is convenient to begin by consideration of the relevant provisions of the RDA.
The statutory framework — the RDA
The purpose of the RDA, as appears from its Preamble, is to provide for the prohibition of racial discrimination and certain other forms of discrimination and to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination ("ICERD"). The term "racial discrimination" is defined in Art 1(1) of the ICERD 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."
By Art 2 of the ICERD the parties to it "undertake to pursue by all appropriate means ... a policy of eliminating racial discrimination in all its forms". By Art 2(1)(c) each State Party must take effective measures "to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists". Each State Party is also required, by Art 2(1)(d), to "prohibit ... by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization".
Part II of the RDA, comprising ss 8 to 18A, is entitled "Prohibition of racial discrimination". Section 9(1), which is not directly in issue in this case, makes it unlawful to do any act which involves racial discrimination within the meaning of that term in the ICERD as defined by Art 1(1)[8]. Other provisions of Pt II prohibit specific kinds of racial discrimination[9]. Section 10 of the RDA, entitled "Rights to equality before the law", relevantly provides[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 subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention."
The non-exhaustive definition of "right" in s 10(2) picks up the enumerated rights in Art 5 of the ICERD and the larger class referred to in Art 1(1)[11], namely:
"human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."
That class of rights is not limited to legal rights enforceable under municipal law[12]. In the event, the appellant relied only upon enumerated rights in Art 5 in her invocation of s 10[13].
[8]Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 264 per Brennan J; [1982] HCA 27.
[9]RDA, ss 14-16.
[10]Section 10(3) brings within the scope of s 10(1) laws providing for non-consensual management of the property of Aboriginal and Torres Strait Islander persons but is not directly relevant for present purposes.
[11]Gerhardy v Brown (1985) 159 CLR 70 at 85-86 per Gibbs CJ, 101 per Mason J; [1985] HCA 11.
[12]Mabo v Queensland (No 1) (1988) 166 CLR 186 at 217 per Brennan, Toohey and Gaudron JJ; [1988] HCA 69.
[13]ICERD, Arts 5(a), 5(d)(v) and 5(f), which are set out later in these reasons.
Section 10 was evidently inserted in the RDA to give effect to Art 2(1)(c) of the ICERD[14]. It is said to have been designed to bring about equality before the law[15]. It might more modestly be described as designed to overcome inequality before the law based on race, colour or national or ethnic origin.Two important applications of s 10(1) were identified by Mason J in Gerhardy v Brown[16] in reasoning approved by the plurality in Western Australia v Ward[17]:
•If a State law creates a right which is not universal because it is not conferred on people of a particular race, then s 10 will supply the right the subject of that omission and confer that right upon persons of that race. The right conferred by s 10 will be complementary to the rights conferred by the State law and the Commonwealth and State laws can stand together.
•If a State law prohibits persons of a particular race from enjoying a human right or fundamental freedom enjoyed by persons of another race, s 10 will confer that right upon the persons the subject of the prohibition. In that application, s 10 permits that which the State law prohibits and so will be inconsistent with the State law and, by reason of s 109 of the Constitution, will prevail[18].
The plurality in Ward also included in the second category a State law which deprives persons of a particular race of a human right or fundamental freedom otherwise enjoyed by all regardless of race[19]. An example of such a deprivation was the Queensland Coast Islands Declaratory Act 1985 (Q), s 3 of which purported to extinguish native title on all islands within a defined area in the Torres Strait. It was held in Mabo v Queensland (No 1)[20] to be inconsistent with s 10(1) of the RDA, which had the effect that the Miriam People, who sought recognition of their traditional native title, could enjoy their purportedly extinguished rights. The State Act was invalid to the extent of that inconsistency[21].
[14]Viskauskas v Niland (1983) 153 CLR 280 at 294; [1983] HCA 15.
[15]Gerhardy v Brown (1985) 159 CLR 70 at 94 per Mason J; Mabo v Queensland (No 1) (1988) 166 CLR 186 at 198 per Mason CJ, 205 per Wilson J.
[16](1985) 159 CLR 70 at 98-99.
[17](2002) 213 CLR 1 at 99-100 [106]-[107]; [2002] HCA 28.
[18] See for example Miller v Miller (1978) 141 CLR 269; [1978] HCA 44 (prohibition in State law on obtaining evidence by listening through extension telephone inconsistent with Commonwealth law permitting such conduct); Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 (prohibition on taking and keeping fauna in Fauna Conservation Act 1974 (Q) directly inconsistent with rights conferred by s 211 of Native Title Act 1993 (Cth)).
[19](2002) 213 CLR 1 at 100 [107].
[20](1988) 166 CLR 186.
[21]See also Western Australia v Ward (2002) 213 CLR 1 at 101‑102 [111].
An important feature of s 10 is that it does not require that the law to which it applies make a distinction expressly based on race. The section is directed to the discriminatory operation and effect of the legislation[22]. It provides a mechanism to overcome the effects of Commonwealth, State or Territory legislation to which it applies.
[22]Gerhardy v Brown (1985) 159 CLR 70 at 97, 99 per Mason J; Mabo v Queensland (No 1) (1988) 166 CLR 186 at 198-199 per Mason CJ, 216-219 per Brennan, Toohey and Gaudron JJ, 231‑232 per Deane J; Western Australia v Ward (2002) 213 CLR 1 at 103 [115].
The appellant's first line of argument in this Court was that the impugned provisions of the Liquor Act and the Liquor Regulation imposing the restrictions which gave rise to charges against her affected her rights under Arts 5(a), 5(d)(v) and 5(f) of the ICERD in a racially discriminatory way and, being inconsistent with s 10, were invalid. She then had to meet the argument that, even if one or more of her rights were so affected, the impugned provisions were a "special measure" within the meaning of s 8 of the RDA and s 10 did not apply to them. That line of argument requires consideration of s 8.
Section 8(1) of the RDA provides that Pt II does not apply to, or in relation to the application of, "special measures to which paragraph 4 of Article 1 of the [ICERD] applies"[23]. Article 1(4) excludes "special measures" from the definition of "racial discrimination" in Art 1(1):
"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."
Article 1(4) should be read with Art 2(2), which, subject to a proviso similar to that appearing in Art 1(4), obliges States Parties, when circumstances so warrant, to take "special and concrete measures" broadly of the kind referred to in Art 1(4)[24].
[23]It excepts measures in relation to which s 10(1) applies by virtue of s 10(3), which are not material for present purposes.
[24]"Special measure" provisions also appear in Art 5 of the Discrimination (Employment and Occupation) Convention of the International Labour Organisation (1958) and in Art 4 of the Convention on the Elimination of All Forms of Discrimination against Women (1979); see generally Freeman, Chinkin and Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary, (2012) at 124-129.
The term "special measures", as used in the ICERD, is the criterion for the qualification, created by s 8 of the RDA, upon the prohibitions imposed in Pt II of that Act and the remedial operation of s 10. It is to be construed according to its meaning in the ICERD and therefore according to the rules of construction applicable to the ICERD by Art 31(1) of the Vienna Convention on the Law of Treaties (1969) ("Vienna Convention")[25]:
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."
Also relevant to interpretation is Art 31(3) of the Vienna Convention, which provides:
"There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties."
[25]Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 265 per Brennan J, who applied that interpretive approach to the RDA generally. See also The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 177 per Murphy J; [1983] HCA 21; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230 per Brennan CJ, 240 per Dawson J, 251-253 per McHugh J, 277 per Gummow J; [1997] HCA 4; Minister for Immigration and Multicultural Affairs v RespondentsS152/2003 (2004) 222 CLR 1 at 24-25 [67] per McHugh J; [2004] HCA 18; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 87 ALJR 410 at 415 [8] per French CJ and Gageler J; 295 ALR 596 at 599; [2013] HCA 5.
Difficulties can follow from the incorporation into a domestic law of criteria designed for an international instrument when those criteria have to be applied to the determination of rights and liabilities in a matter arising under that law in a municipal court.As Gummow J said in Applicant A v Minister for Immigration and Ethnic Affairs[26]:
"The text of the international instrument may lack precision and clarity and may have been expressed in attractive but loose terms with a view to attracting the maximum number of ratifications. The terms of the criteria therein ... may be difficult of comprehension and application in domestic law. Moreover, their application in domestic law falls to administrators whose decisions, under the Australian structure of government, are, in the absence of an excess of constitutional authority, subject to curial involvement only by the limited processes of judicial review." (footnotes omitted)
The application in a court of criteria derived from an international instrument may require consideration by the court of whether it is constitutionally competent to apply the criteria and, if so, to what extent. Obligations imposed by international instruments on States do not necessarily take account of the division of functions between their branches of government.The difficulty is compounded when the interpretation of the international instrument is said to have been subject to change by reference to practices occurring since the enactment of legislative provisions implementing it into domestic law. Such practices may, by operation of Art 31(3) of the Vienna Convention, be taken into account in interpretation of the treaty or convention for the purposes of international law[27]. They may lead to its informal modification[28].However, they cannot be invoked, in this country, so as to authorise a court to alter the meaning of a domestic law implementing a provision of a treaty or convention[29].
[26](1997) 190 CLR 225 at 275.
[27]See eg, Minister for Home Affairs (Cth) v Zentai (2012) 246 CLR 213 at 229-230 [36] per French CJ, 238-239 [65] per Gummow, Crennan, Kiefel and Bell JJ; [2012] HCA 28.
[28]Waldock, "Third report on the law of treaties", (1964) 2 Yearbook of the International Law Commission 5 at 60.
[29]As to the use of subsequent practice in the "evolutive interpretation" of treaties, see generally Arato, "Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences", (2010) 9 The Law and Practice of International Courts and Tribunals 443; Feldman, "Evolving Treaty Obligations: A Proposal for Analyzing Subsequent Practice Derived from WTO Dispute Settlement", (2009) 41 New York University Journal of International Law and Politics 655 at 695-703; McLachlan, "The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention", (2005) 54 International and Comparative Law Quarterly 279 at 282-284.
The word "measure" in Art 1(4) necessarily includes action by States Parties and therefore action taken by the legislative and executive branches of government[30]. Any legislative "measure" is likely to be linked, as it is in this case, to executive and judicial action implementing or enforcing the measure. In this case, enforcement of the impugned law was effected by way of prosecution, adjudication, and the imposition of a penalty.
[30]This is not to exclude the possibility that some kinds of judicial function may constitute a "special measure", nor the possibility that non-State action within a State and permitted by the State may constitute a "special measure".
The term "special" in Art 1(4) may be taken, in context, to describe measures whose purposes, in their formal application or in their practical operation and effect, are directed to particular groups and/or individuals. Article 1(4) is concerned with a species of the genus special measure whose attributes are not easily extracted from the difficult wording of the Article. That difficulty, as Deane J pointed out in Gerhardy, "go[es] beyond the possibly unavoidable vagueness of words such as 'adequate' and concepts such as 'human rights' and 'fundamental freedoms'."[31] Nevertheless, Deane J read the "general purport" of Art 1(4), subject to the proviso contained in that Article, as excluding from the ambit of racial discrimination[32]:
"'special measures taken for the sole purpose' of securing the development and protection of disadvantaged racial or ethnic groups or individuals belonging to them to the extent necessary to ensure to such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms."
[31](1985) 159 CLR 70 at 148.
[32](1985) 159 CLR 70 at 148.
Beyond identification of the general purport of Art 1(4), it is necessary to distinguish those things which define the content of the "sole purpose" of the "special measures" referred to in the Article from the factual circumstances in which that purpose is engaged. Taking that approach, the circumstances required for a "special measure" to be taken are:
•the existence within a State Party of certain racial or ethnic groups or individuals;
•the existence of a requirement for the protection of those groups or individuals in order to ensure their equal enjoyment or exercise of human rights and fundamental freedoms.
The sole purpose of a "special measure" in those circumstances must be to secure the adequate advancement of those racial or ethnic groups or individuals to ensure their equal enjoyment or exercise of human rights and fundamental freedoms.
The circumstances and the purpose so identified direct attention to the proper function of a court in responding to a claim that a particular law is or is not a special measure for the purposes of s 8(1) of the RDA. There are limits to the constitutional functions and competencies of courts in making evaluative judgments about the existence of a necessity for protection of a racial or ethnic group or individual and, if such necessity exists, what constitutes "adequate advancement" towards their equal enjoyment or exercise of human rights and fundamental freedoms.
Brennan and Deane JJ in Gerhardy delineated the respective functions of the political branch of government and the courts in determining whether a law is a special measure. In summary, Brennan J made the following observations:
•When the legal rights and liabilities of individuals turn on the character of a law as a special measure, the court which has to determine those rights or liabilities is bound to decide, for the purposes of municipal law, whether it bears that character[33].
•When the character of a special measure depends in part upon a political assessment about the need for advancement of a racial group and the measure that is likely to secure the advancement necessary, the court must accept the assessment made by the political branch of government[34].
•The court can determine whether the political branch acted reasonably in making the assessment which it did[35]. That is to say, the court can determine whether the assessment made by the political branch could reasonably be made[36].
Deane J took a similar approach to the question whether laws had been made for the "sole purpose" referred to in Art 1(4). His Honour said[37]:
"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."
That was not a prescription for merits review of legislation[38]:
"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." (emphasis in original)
[33](1985) 159 CLR 70 at 138.
[34](1985) 159 CLR 70 at 138.
[35](1985) 159 CLR 70 at 138.
[36](1985) 159 CLR 70 at 139.
[37](1985) 159 CLR 70 at 149.
[38](1985) 159 CLR 70 at 149.
Consistently with the approach adopted by their Honours and the identification in these reasons of the circumstances in which a special measure may be taken and the sole purpose for which it may be taken, the court, in proceedings which turn upon the characterisation of a law as a special measure, may:
•determine whether the law evidences or rests upon a legislative finding that there is a requirement for the protection of a racial or ethnic group or individuals in order to ensure their equal enjoyment or exercise of human rights and fundamental freedoms;
• determine whether that finding was reasonably open;
•determine whether the sole purpose of the law is to secure the adequate advancement of the relevant racial or ethnic group or individuals to ensure their equal enjoyment or exercise of human rights and fundamental freedoms; and
•determine whether the law is reasonably capable of being appropriate and adapted to that sole purpose.
If a court is called upon to make a finding of fact relevant to the characterisation of a law as a "special measure", it is likely to be analogous to a judgment about constitutional facts. It may require the court to take judicial notice of notorious facts and otherwise rely upon material placed before it. Fact-finding of this kind is not like finding facts in an issue between parties[39].
[39]Gerhardy v Brown (1985) 159 CLR 70 at 88-89 per Gibbs CJ, 105 per Mason J, 141-142 per Brennan J.
Special measures and the consultation requirement
As discussed above, the interpretation of the ICERD, by reference to international practice in its application since it came into effect, is contemplated by Art 31(3) of the Vienna Convention. The transposition of that approach to interpretation of a domestic statute giving effect to the ICERD and using its language is limited in Australia by the limits of the judicial function.
An interpretation of a treaty provision adopted in international practice, by the decisions of international courts or tribunals, or by foreign municipal courts may illuminate the interpretation of that provision where it has been incorporated into the domestic law of Australia. That does not mean that Australian courts can adopt "interpretations" which rewrite the incorporated text or burden it with glosses which its language will not bear.
The appellant submitted that since Gerhardy there have been developments in international jurisprudence and standard setting in relation to the concept of "special measures" and, in particular, the need for consultation and free and informed consent before their implementation. The appellant referred to General Recommendation No 32 adopted in 2009 by the Committee on the Elimination of Racial Discrimination, established pursuant to Art 8(1) of the ICERD. The relevant part of the recommendation was that "States parties should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities." The appellant also relied upon advice to the like effect, adopted in 2011, by a body called "the Expert Mechanism on the Rights of Indigenous Peoples", established by the United Nations Human Rights Council. She submitted that the recommendation of the Committee and the advice of the Expert Mechanism bore upon the meaning to be given to "special measure" in s 8 of the RDA. That submission should not be accepted. The text of Art 1(4) of the ICERD, as imported by the RDA, did not bring with it consultation as a definitional element of a "special measure". Nor can such a requirement be imported into a text which will not bear it by the subsequent opinions of expert bodies, however distinguished.
That being said, it should be accepted, as a matter of common sense, that prior consultation with an affected community and its substantial acceptance of a proposed special measure is likely to be essential to the practical implementation of that measure. That is particularly so where, as in this case, the measure said to be a "special measure" involves the imposition on the affected community of a restriction on some aspect of the freedoms otherwise enjoyed by its members. It can also be accepted, as the appellant submitted, that in the absence of genuine consultation with those to be affected by a special measure, it may be open to a court to conclude that the measure is not reasonably capable of being appropriate and adapted for the sole purpose it purports to serve. As appears below, the impugned legislation had built into it a consultation requirement, and a consultation process was undertaken, although its coverage and adequacy were challenged by a number of deponents in affidavits filed in the District Court appeal. It is also clear enough from the Explanatory Notes to the relevant regulation under the Liquor Act that there was a division of opinion within the Palm Island community about what, if any, measures should be undertaken to restrict the use of alcohol within the community.
Against that background, it is necessary to consider the impugned provisions of the Liquor Act and regulations made under it.
Statutory framework — Liquor Act and Liquor Regulation
Section 168B(1) of the Liquor Act provided at the relevant time[40]:
"A person must not, in a public place in a restricted area to which this section applies because of a declaration under section 173H, have in possession more than the prescribed quantity of liquor for the area, other than under the authority of a restricted area permit."
That provision must be read, with Pt 6A of the Liquor Act, at the relevant time comprising ss 173F to 173J, which provides for the making of regulations embodying declarations of the kind referred to in s 168B(1). Section 168B and Pt 6A were introduced into the Liquor Act by the Indigenous Communities Liquor Licences Act 2002 (Q) as part of a government response to the Cape York Justice Study Report prepared by the Hon Tony Fitzgerald. As recorded in the Explanatory Notes to the 2002 Bill, that Report said of Indigenous communities in North Queensland[41]:
"Alcohol abuse and associated violence are so prevalent and damaging that they threaten the communities' existence and obstruct their development."
Consistently with its presentation to the Parliament as a response to the findings of the Cape York Justice Study, the purpose of Pt 6A, as stated in s 173F, is to minimise harm caused by alcohol abuse and misuse and associated violence[42] and alcohol-related disturbances or public disorder[43].
[40]In circumstances specified in s 168B(2) and (3) the subsection does not apply to possession of liquor in the ordinary course of lawful business by a licensee or carrier.
[41]Queensland, Legislative Assembly, Indigenous Communities Liquor Licences Bill 2002 (Q), Explanatory Notes at 2.
[42]Liquor Act, s 173F(a).
[43]Liquor Act, s 173F(b).
The declaration process under Pt 6A, relevant to s 168B, involves two steps:
•the making of a regulation under s 173G(1) declaring an area to be a restricted area — which may encompass a community area or part of a community area[44]; and
•the making of a regulation under s 173H(1) declaring that a restricted area is an area to which s 168B applies and prescribing a quantity of liquor that a person may have in possession in a public place in that restricted area without a restricted area permit[45].
[44]Liquor Act, s 173G(2). "Community area" is defined in s 4 of the Liquor Act with reference to the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Q), s 4 of which defines it to include a "community government area", which at the relevant time was defined in that section by reference to the Local Government (Community Government Areas) Act 2004 (Q), Sched 4. The definition of that term in that Schedule included Palm Island.
[45]Liquor Act, s 173H(2).
Before recommending to the Governor in Council the making of a regulation declaring a community area to be a restricted area, the Minister must be satisfied the declaration is necessary to advance the purpose of Pt 6A[46]. He or she must also have consulted with the community justice group for the community area about the declaration or must have considered a recommendation about the declaration from the group, if it has made one[47]. Failure to comply with those requirements does not affect the validity of a regulation to which they applied[48]. Nevertheless, the question whether there had been consultation in relation to the regulation affecting Palm Island was in issue in the District Court[49].
[46]Liquor Act, s 173G(3).
[47]Liquor Act, s 173I(2).
[48]Liquor Act, s 173I(4).
[49]A non-statutory community justice group was in existence on Palm Island before 21 April 2006 as appears from affidavit evidence in the District Court. A statutory community justice group was created by regulation on and from 21 April 2006.
A mechanism for the declaration by regulation of areas pursuant to s 173G and the application to them of s 168B pursuant to s173H was created by the Liquor Regulation. Schedules to that regulation define community areas to which the relevant declarations were applied[50]. Schedule 1R, which was added to the Liquor Regulation by the Liquor Amendment Regulation (No 4) 2006 (Q), defined each of the following areas to be a restricted area and thereby an area to which s 168B applied:
"(a)the community area of the Palm Island Shire Council;
(b)any foreshore of the community area of the Palm Island Shire Council;
(c)the jetty on Greater Palm Island known as Palm Island jetty."
The prescribed quantity of liquor permitted in the restricted areas so defined, other than in the canteen, was 11.25 litres of beer for which the concentration of alcohol is less than four per cent. The prescribed quantity of any other liquor was zero.
[50]Liquor Regulation, ss 37A and 37B.
The Explanatory Notes to the Liquor Amendment Regulation (No 4) 2006 (Q) state that the Palm Island Community Justice Group and the Palm Island Shire Council had recommended limits on the use of alcohol as part of a community alcohol management strategy. However, the restrictions imposed differed from those recommendations. The Explanatory Notes record that there was ongoing division within the Community Justice Group and between the Community Justice Group and the Council which inhibited community agreement about an alcohol management plan. The plan eventually adopted was said to be based on a compromise between four separate alcohol management plans previously presented to government by the Community Justice Group and the Council[51]. There was said to be agreement across the community that unrestricted alcohol was a major concern that needed to be addressed[52]. The Notes state that the restrictions proposed were "necessary for Palm Island to effectively address its alcohol related issues" and that, in the government's experience, "in other Indigenous communities where similar alcohol related issues were present and an [alcohol management plan] was implemented, the quality of life has generally improved."[53]
[51]Queensland, Legislative Assembly, Liquor Amendment Regulation (No 4) 2006, Explanatory Notes at 2.
[52]Queensland, Legislative Assembly, Liquor Amendment Regulation (No 4) 2006, Explanatory Notes at 3.
[53]Queensland, Legislative Assembly, Liquor Amendment Regulation (No 4) 2006, Explanatory Notes at 3.
The District Court decision
In the District Court, the appellant argued, on the basis of affidavit evidence adduced in that Court, that the consultation requirements imposed by the Liquor Act with respect to the restricted area declaration had not been complied with.Durward DCJ held that consultation was "not required as a matter of law"[54], by which his Honour may be taken to have meant that the lack of consultation did not vitiate the making of a regulation declaring a restricted area. So much would seem to flow from s 173I(4). His Honour also held that, in any event, the evidence which had been adduced was insufficient to displace a strong inference open from the Explanatory Notes to the amendment regulation that a consultation process did occur as a matter of fact[55].
[54][2011] QDC 139 at [59].
[55][2011] QDC 139 at [59].
His Honour went on to hold, in effect, that the question whether the provisions of the Liquor Act and of the Liquor Regulation imposing the restrictions were a special measure was not justiciable. It was a matter for the legislature[56].
[56][2011] QDC 139 at [69].
The Morton decision
The decision of the Court of Appeal dismissing the appellant's appeal must be read in light of its prior decision, concerning the validity of the same restrictions, in Morton v Queensland Police Service[57]. That was another case concerning possession of alcohol on Palm Island. The Court of Appeal in Morton held, unanimously, that:
•s 168B in its application to Palm Island by operation of ss 173G and 173H and the Liquor Regulation are discriminatory on the grounds of race[58];
•the practical effect of the legislation is to restrict possession of alcohol by members of a group who are overwhelmingly Aboriginal persons[59];
•the impugned provisions were a special measure within the meaning of s 8 of the RDA[60];
•the residents of Palm Island had been adequately consulted[61].
By majority (Chesterman and Holmes JJA), the Court of Appeal further held that, contrary to the submissions on behalf of the appellant, the rights referred to in s 10 are limited to those defined or described by Art 1(1) of the ICERD as "human rights and fundamental freedoms"[62].
[57](2010) 271 ALR 112.
[58](2010) 271 ALR 112 at 114 [5] per McMurdo P, 129 [54] per Chesterman JA (Holmes JA agreeing with the reasoning of Chesterman JA at 125 [39]).
[59](2010) 271 ALR 112 at 114 [5] per McMurdo P, 129 [54] per Chesterman JA.
[60](2010) 271 ALR 112 at 125 [36]-[37] per McMurdo P, 139 [109]-[110] per Chesterman JA.
[61](2010) 271 ALR 112 at 125 [36] per McMurdo P, 139-140 [111]-[114] per Chesterman JA.
[62](2010) 271 ALR 112 at 129 [58] and 133 [75], cf 118-119 [18] per McMurdo P.
The application of s 10
The majority view in Morton of the class of rights protected by s 10 was accepted by the appellant for the purposes of her appeal to the Court of Appeal[63]. She argued that the impugned legislation deprived her of human rights set out in Arts 5(a), 5(d)(v) and 5(f) of the ICERD. Those rights are:
•the right to equal treatment before the tribunals and all other organs administering justice[64];
•the right to own property alone as well as in association with others[65];
•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[66].
[63][2013] 1 Qd R 32 at 59 [87].
[64]ICERD, Art 5(a).
[65]ICERD, Art 5(d)(v).
[66]ICERD, Art 5(f).
The appellant's reliance upon the equal treatment right was not well‑founded. Her complaint, as a majority (Chesterman JA and Daubney J) of the Court of Appeal characterised it, was not that the Magistrates Court discriminated against her on the basis of race, but that the law pursuant to which she was prosecuted had a discriminatory operation[67]. In this Court the appellant did not argue that she had been treated in the courts of Queensland any differently in matters of procedure from the way in which a non-Aboriginal person would have been treated. She submitted, in effect, that her unequal treatment was constituted by her being charged and convicted for an offence against a law which, in its practical operation and effect, was directed to persons of a particular race. That complaint, however, was not one about equal treatment before the courts. As the respondent submitted, the Liquor Act and the Liquor Regulation did not require any court to apply the law to the appellant in a manner that was different from the way in which the law was applied to non-Aboriginal persons.
[67][2013] 1 Qd R 32 at 60 [90], cf 36-37 [9]-[15] per McMurdo P.
As to the right to own property, referred to in Art 5(d)(v), the Court of Appeal accepted that the impugned law interfered with the appellant's right to possession of a particular kind of liquor in a particular location. However, the right to own property was not absolute, but subject to regulation in the public interest[68]. The right to possess liquor was regulated by different legal systems in many different ways, all reflecting local rather than universal policies and values[69]. Having regard to the objects of Pt 6A of the Liquor Act, the impugned provisions imposed restrictions which were reasonable and legitimate to achieve those stated objectives. They did not have the effect that the human right and fundamental freedom to own property had been infringed[70].
[68][2013] 1 Qd R 32 at 41 [30] per McMurdo P, 60 [94] per Chesterman JA.
[69][2013] 1 Qd R 32 at 61 [96] per Chesterman JA.
[70][2013] 1 Qd R 32 at 41 [30] per McMurdo P, 62 [97]-[99] per Chesterman JA.
With respect to the Court of Appeal, its analysis in relation to the right to own property should not be accepted. The impugned provisions were directed at an Indigenous community. It is not a sufficient answer to the appellant's complaint about those provisions that she was not deprived of her property and that property rights are frequently qualified by regulation, especially in the case of alcohol. In this case, the impugned provisions had the effect that Indigenous persons who were the Palm Island community, including the appellant, could not enjoy a right of ownership of property, namely alcohol, to the same extent as non-Indigenous people outside that community. The impugned provisions effected an operational discrimination notwithstanding the race-neutral language of s 168B of the Liquor Act, under which the appellant was charged.
The rights protected by Art 5 are not so weak that their limits can be defined by reference to regulations, however reasonable, which effect operational discrimination by way of restrictions imposed on the people of a particular racial group. Such an argument diminishes, if it does not render otiose, the particular and limited exemption for operational discrimination provided by the special measures provisions of the ICERD. Subject to the application of s 8, s 10 would have applied to invalidate the impugned provisions on the basis of their discriminatory effects on the appellant's right to own property within the meaning of Art 5(d)(v) of the ICERD.
As to the appellant's contention that the impugned provisions infringed her right of access to services intended for the general public, a majority of the Court of Appeal (Chesterman JA and Daubney J) accepted the respondent's submission that the right described in Art 5(f) of the ICERD was concerned with discrimination based on race among the occupants of places or the patrons of services. The right did not dictate what services must be supplied. The right was not infringed by the supply to an outlet's patrons, regardless of their race, of the limited range of goods available for sale[71].
[71][2013] 1 Qd R 32 at 62 [101] per Chesterman JA, cf 41 [27]-[29] per McMurdo P.
The appellant submitted that the impugned provisions denied her the right of access to a service at the Palm Island canteen, being a service intended for use by the general public, namely the ability to purchase and consume alcohol other than light or mid-strength beer. It was submitted for the respondent that the Liquor Act and the Liquor Regulation did not affect the appellant's enjoyment of her right under Art 5(f). The only effect of the impugned provisions was to restrict possession of liquor in public places. It did not affect access to any place or service. That submission should be accepted. The impugned legislation did not affect the appellant's right of access to any place or service intended for use by the general public.
The "special measure" question
Although the majority of the Court of Appeal found against the appellant in relation to the operation of s 10, their Honours went on to consider in any event whether the impugned provisions constituted a special measure attracting the application of s 8 as the Court had found in Morton. As the Court of Appeal pointed out, the appellant did not seek to challenge the correctness of Morton, but to distinguish it on the basis of the affidavit evidence which was said to establish error in the facts underpinning the finding in Morton[72]. The affidavit evidence, however, went only to the issue of consultation.
[72][2013] 1 Qd R 32 at 41 [32], 49-50 [47] per McMurdo P, 62-63 [102] per Chesterman JA.
The Court of Appeal rejected submissions put by the appellant that, absent the agreement of a substantial majority of the inhabitants or their prior informed and free consent, the impugned provisions could not constitute a special measure. Chesterman JA, with whom Daubney J agreed, held that nothing in Art 1(4) or Art 2(2) rendered prior consent necessary to the validity of a special measure, although it might be relevant for that characterisation[73]. For reasons already given, their Honours were correct in so holding.Their Honours also rejected a contention that a measure could only be special if it were expressed to be temporary. In so doing, their Honours applied Gerhardy[74].
[73][2013] 1 Qd R 32 at 69 [118] per Chesterman JA, cf 51 [52] per McMurdo P.
[74][2013] 1 Qd R 32 at 70 [120]-[122] per Chesterman JA, cf 52 [57] per McMurdo P.
In addition to her arguments based upon consultation and the requirement for prior informed and free consent, the appellant challenged the characterisation of the impugned provisions as a special measure on the following bases:
•the absence of any or any sufficient evidence to establish the existence of the requisite circumstances, the necessity for the restriction and its purpose;
•want of proportionality in the measure, which involved the criminalisation, within the declared restricted areas, of conduct which would be lawful outside those areas;
•the absence of a temporal limit in the regulation.
As to the last of these points, s 54 of the Statutory Instruments Act 1992 (Q) relevantly provides that subordinate legislation expires on 1 September first occurring after the day of its making unless its operation is extended.
The appellant's submissions should be considered in light of the task of the court, discussed earlier in these reasons, in determining whether an impugned law is a "special measure" for the purposes of s 8(1) of the RDA. That task is to be undertaken having regard to the respective functions of the legislature, the executive and the court. To the extent it involves any fact-finding in aid of characterisation, that fact-finding is analogous to constitutional fact-finding and is not governed by the rules of evidence applicable to findings of fact on an issue between parties. The characterisation of a law as a "special measure" is, in the end, an answer to a legal question. There is no question of an onus of proof involved in relation to that process of characterisation.
Applying the preceding approach, a number of conclusions follow which lead to the dismissal of the appeal:
•Section 168B and Pt 6A of the Liquor Act, read with ss 37A and 37B and Sched 1R of the Liquor Regulation, rest upon legislative findings that there is a requirement for the protection of a number of Indigenous communities in North Queensland from the effects of prevalent alcohol abuse and misuse and associated violence. That finding was supported by the Cape York Justice Study Report, which observed that the level of such abuse threatens the existence and obstructs the development of Indigenous communities in which it occurs.
•There was a judgment made by the Executive Government that the Palm Island community was affected by the problem of alcohol abuse and a finding, reflected in the Explanatory Notes to the Liquor Amendment Regulation (No 4) 2006 (Q), that this was recognised in that community. There was no evidence to suggest that that finding was wrong. The evidence of internal debate on Palm Island, to the extent it was disclosed in the Explanatory Notes and the affidavit material, was directed to the appropriate response and whether there had been adequate consultation. The requisite legislative findings can be inferred from the Explanatory Notes for the impugned provisions of the Liquor Act and the Liquor Regulation, the stated purpose of Pt 6A and the nature of the mechanisms created by the impugned provisions to control alcohol abuse.
•There was nothing to suggest that the findings, both general and specific, were not open to the Parliament and to the Minister when he recommended the amendment regulation and the application of the restrictions imposed by Sched 1R.
•The sole purpose of the impugned provisions, reflected in their stated purpose and the circumstances which brought them about, was the adequate advancement of the Palm Island community to ensure their equal enjoyment or existence of human rights and fundamental freedoms.
•While there might be debate about alternative and perhaps less restrictive mechanisms that could have been adopted, it cannot be said that the impugned provisions were not reasonably capable of being appropriate and adapted to their purpose. The criminalisation of the conduct prohibited by s 168B does not take the law out of the category of "special measure" as defined in Art 1(4) of the ICERD and incorporated in s 8 of the RDA. Such a provision is not in terms excluded by the text or by implication from the scope of special measures, which must be capable of application to a wide variety of circumstances. In so saying, it may be accepted that "special measures" are ordinarily measures of the kind generally covered by the rubric "affirmative action".
The Liquor Act, the Liquor Regulation and Sched 1R to the Liquor Regulation were respectively enacted and proclaimed to deal with a serious social problem affecting Indigenous communities in North Queensland, including the Palm Island community. There were difficult judgments to be made about what was necessary to address that problem. Within the boundaries set by the provisions of the RDA, those judgments were a matter, in this case, for the Parliament and the Executive Government of Queensland. The impugned provisions were properly characterised as a special measure for the purposes of s 8(1) of the RDA.
Conclusion
For the preceding reasons, the appeal should be dismissed.
HAYNE J. The appellant, an Aboriginal woman resident on Palm Island, Queensland, was charged with having in her possession, on 31 May 2008, in a public place in a restricted area on Palm Island, a bottle of bourbon whiskey and a bottle of rum. She alleged that the provisions of the Liquor Act 1992 (Q) ("the Liquor Act") and the Liquor Regulation 2002 (Q) ("the Liquor Regulation") which made it an offence to have particular kinds and quantities of liquor in possession in that place were inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) ("the RDA") and consequently invalid by operation of s 109 of the Constitution. Although the appellant directed her argument in this Court chiefly (perhaps even entirely) to the validity of the relevant provisions of the Liquor Regulation, it is necessary to consider the relevant provisions of both the Liquor Act and the Liquor Regulation. (It is convenient to refer to them together as "the impugned provisions".)
The appellant did not appear in the Magistrates Court of Queensland and, on appeal to the District Court of Queensland and on application for leave to appeal to the Court of Appeal of the Supreme Court of Queensland[75], she failed in her challenge to the validity of the impugned provisions. By special leave she appealed to this Court.
[75]R v Maloney [2013] 1 Qd R 32.
The appeal raises two principal questions. The RDA provides that the persons of one race shall enjoy rights to the same extent as persons of another race unless the difference in enjoyment is by reason of what are called "special measures". The residents of Palm Island, who were all affected by the impugned provisions, are overwhelmingly Aboriginal persons. The first question is: did the impugned provisions have the effect that Aboriginal persons enjoy a right to a more limited extent than non‑Aboriginal persons so as to engage s 10 of the RDA? The second question is: were the impugned provisions a "special measure" within s 8(1) of the RDA with the consequence that s 10 does not apply?
In the Court of Appeal, McMurdo P and Chesterman JA (with whom Daubney J agreed) expressed[76] differing opinions about the first question. All members of the Court of Appeal held[77] that the impugned provisions constituted a "special measure".
[76][2013] 1 Qd R 32 at 41 [30] per McMurdo P, 62‑63 [102] per Chesterman JA (Daubney J agreeing).
[77][2013] 1 Qd R 32 at 53 [64] per McMurdo P, 71 [126] per Chesterman JA (Daubney J agreeing).
In this Court, the appellant submitted that the first question should be answered "Yes" and the second "No". These reasons will demonstrate that both questions should be answered "Yes". By reason of the impugned provisions, Aboriginal persons did enjoy a right to a more limited extent than non‑Aboriginal persons. But the impugned provisions constituted a "special measure". Accordingly, s 10 of the RDA does not apply to the impugned provisions.
To explain and justify these answers, it is necessary to examine the impugned provisions and the relevant provisions of the RDA in some detail.
The Liquor Act and the Liquor Regulation
Part 6A (ss 173F-173J) of the Liquor Act provided for the declaration of an area as a "restricted area"[78] and for the declaration of a prohibition on possession of liquor in a public place in a restricted area[79]. Section 168B(1) made it an offence to have in possession, in a public place in a restricted area, more than the prescribed quantity of liquor for the area, other than under the authority of a "restricted area permit"[80].
[78]s 173G.
[79]s 173H.
[80]See s 103L. No party or intervener submitted that the provision for restricted area permits bore upon the issues arising in the appeal.
At the time relevant to this appeal, 31 May 2008, the Liquor Regulation declared[81] each of the areas stated in 18 schedules to be a restricted area. The Explanatory Notes for the regulations which inserted these schedules suggest[82] strongly that each of the areas stated in the schedules is associated in some way with an Indigenous community. The details of those associations were not identified or examined in argument. Instead, attention was confined to Sched 1R, which related to Palm Island. The Court of Appeal found[83], and there was no dispute in this Court, that the residents of Palm Island are "overwhelmingly" Aboriginal people.
[81]s 37A.
[82]See, for example, Queensland, Legislative Assembly, Liquor Amendment Regulation (No 3) 2006, Explanatory Notes at 1.
[83][2013] 1 Qd R 32 at 38 [18], 58 [84].
Schedule 1R declared each of three areas[84] of Palm Island to be a restricted area and stated[85] the prescribed quantity of liquor for each of those areas (other than the licensed premises known as the Palm Island Canteen) to be 11.25 litres of beer in which the concentration of alcohol is less than four per cent[86]. The prescribed quantity of liquor for the canteen was stated[87] to be any quantity of beer in which the concentration of alcohol is less than four per cent. The effect of these provisions was that no person could have any other form of liquor in possession in a public place in a restricted area on Palm Island.
[84]The community area of the Palm Island Shire Council, any foreshore of that community area and the jetty on Greater Palm Island known as Palm Island Jetty.
[85]Sched 1R, s 2(1).
[86]A quantity equivalent to one case of "mid‑strength" or "light" beer.
[87]Sched 1R, s 2(2).
Although Pt 6A of the Liquor Act was cast in terms that did not confine its operation to Indigenous communities, there can be no doubt that the mischief to which its provisions were immediately directed was the evil of alcohol‑fuelled violence and disturbance in those communities. The purpose of Pt 6A was said, in s 173F, to be to provide for the declaration of areas for minimising "harm caused by alcohol abuse and misuse and associated violence" and "alcohol related disturbances, or public disorder, in a locality". Under s 173G(3), the Minister "must be satisfied the declaration is necessary to achieve the purpose of this part" before recommending the Governor in Council make the declaration. (The declaration was to be made by regulation[88].) The Bill for the Act[89] which inserted Pt 6A into the Liquor Act was described[90] as "part of a package of reforms to address the prevalence of alcohol abuse and violence in Indigenous communities in Cape York and other parts of Queensland". The stated purpose[91] of that Act was "to prevent harm in community areas caused by alcohol abuse and misuse and associated violence". Subsequent Explanatory Notes for regulations made to declare restricted areas described[92] the objective of Pt 6A as being:
"to minimise harm caused by alcohol abuse and misuse and associated violence, and alcohol related disturbances or public disorder in Indigenous communities". (emphasis added)
[88]s 173G(1).
[89]Indigenous Communities Liquor Licences Act 2002 (Q).
[90]Queensland, Legislative Assembly, Indigenous Communities Liquor Licences Bill 2002, Explanatory Notes at 1.
[91]Indigenous Communities Liquor Licences Act, s 3(1).
[92]See, for example, Queensland, Legislative Assembly, Liquor Amendment Regulation (No 3) 2006, Explanatory Notes at 1; Queensland, Legislative Assembly, Liquor Amendment Regulation (No 4) 2006, Explanatory Notes at 1.
The RDA
The objects of the RDA are, and in both its long title[93] and its preamble[94] are expressed as being, the prohibition and elimination of racial discrimination. These are large objects.
[93]"An Act relating to the Elimination of Racial and other Discrimination" (emphasis added).
[94]"[I]t is desirable ... to make the provisions contained in this Act for the prohibition of racial discrimination" (emphasis added).
This appeal directed particular attention to two provisions of Pt II of the RDA: s 10 and s 8(1). Part II (ss 8‑18A) is entitled "Prohibition of racial discrimination". Section 10 bears the heading "Rights to equality before the law". It provides (in part):
"(1)If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
(2)A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention."
Section 8(1) provides that, subject to a qualification that is not relevant to this appeal, Pt II of the RDA "does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies".
The Convention to which these provisions refer is the International Convention on the Elimination of All Forms of Racial Discrimination, which was opened for signature on 21 December 1965 and entered into force on 2 January 1969 ("the Convention"). The preamble to the RDA recites that the RDA "make[s] provision for giving effect to the Convention" and this Court has held[95] that the RDA is a valid enactment of the Parliament because it implements Australia's obligations under the Convention. Of course, resort may be had to the Convention in interpreting provisions of the RDA[96]. But, because an Act like the RDA is to be interpreted "by the application of ordinary principles of statutory interpretation"[97], the only extrinsic materials that may bear upon that task are materials of a relevant kind that existed at the time the RDA was enacted. Material published later, such as subsequent reports of United Nations Committees, may usefully direct attention to possible arguments about how the RDA should be construed but any debate about its construction is not concluded by reference to or reliance upon material of that kind[98].
[95]Koowarta v Bjelke‑Petersen (1982) 153 CLR 168; [1982] HCA 27.
[96]Acts Interpretation Act 1901 (Cth), s 15AB(2)(d); Yager v The Queen (1977) 139 CLR 28 at 43-44 per Mason J; [1977] HCA 10.
[97]Minister for Home Affairs (Cth) v Zentai (2012) 246 CLR 213 at 238 [65] per Gummow, Crennan, Kiefel and Bell JJ; [2012] HCA 28, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; [1998] HCA 28 and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46‑47 [47]; [2009] HCA 41.
[98]cf Coleman v Power (2004) 220 CLR 1 at 27-30 [17]‑[24] per Gleeson CJ; [2004] HCA 39.
Section 10(1) of the RDA
The text of s 10(1) of the RDA shows that its application requires consideration of five questions. First, who are the persons of a particular race, colour or national or ethnic origin whose enjoyment of rights is to be considered? Second, how is it said that those persons do not enjoy, or enjoy to a more limited extent, a right? Third, what is the right that (i) is enjoyed by persons of another race, colour or national or ethnic origin, but which (ii) is not enjoyed (or is enjoyed to a more limited extent) by the persons identified in answer to the first question? Fourth, who are the persons of another race, colour or national or ethnic origin? Fifth, is the absence of enjoyment (or enjoyment to a more limited extent) of that right "by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory"? The order in which the issues raised by these questions should be considered may differ from case to case.
As to the third question (what is the right), s 10(2) provides that a reference in s 10(1) to a right includes a reference to a right of a kind referred to in Art 5 of the Convention. Article 5 records the undertaking of States Parties "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 rights set out in the balance of the Article. Those rights include:
"(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 ...;
(c)Political rights, in particular the rights to participate in elections ... to take part in the Government ... and to have equal access to public service;
(d)Other civil rights, in particular:
...
(v)The right to own property alone as well as in association with others;
...
(e)Economic, social and cultural rights ...;
(f)The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafés, theatres and parks."
The operation of s 10(1) has been examined in a number of previous decisions of this Court including, in particular, Western Australia v Ward[99]. The plurality in that case took up and developed a number of propositions that had been made in Gerhardy v Brown, especially in the reasons of Mason J[100]. Two of those propositions[101] are of particular relevance to the issues in this appeal.
[99](2002) 213 CLR 1 at 99‑109 [104]‑[134]; [2002] HCA 28.
[100](1985) 159 CLR 70 at 97‑99; [1985] HCA 11.
[101]See Ward (2002) 213 CLR 1 at 99‑100 [105]‑[107].
First, s 10(1) does not use the word "discriminatory" or any cognate expression, yet the language of discrimination is used throughout the authorities in which s 10(1) has been considered. That use of language follows from the sub‑section's focus on the enjoyment of rights by some but not by others or to a more limited extent by others but it must always be kept at the forefront of consideration that it is the statutory text which is controlling. Questions about the enjoyment of rights do not necessarily require consideration of the concepts that are often associated with "discrimination". Something more will be said about "discrimination" later in these reasons but it is enough for the moment to notice that questions about the enjoyment of rights require consideration of more than the purpose of the relevant law. So much is also made clear by the opening words of s 10(1): "If, by reason of"[102]. It follows that the operation of s 10(1) is not confined to laws the purpose of which can be described as "discriminatory".
[102]Mabo v Queensland (1988) 166 CLR 186 at 230; [1988] HCA 69; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 437; [1995] HCA 47.
Second, s 10(1) may be engaged in two different kinds of case. If a relevant law omits to make enjoyment of a right universal, by failing to confer that right on persons of a particular race, s 10(1) operates to confer that right on persons of that race[103]. This may be contrasted with the operation of s 10(1) when a relevant law imposes a discriminatory burden or prohibition. As Mason J said in Gerhardy[104]:
"When racial discrimination proceeds from a prohibition in a State law directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race, by virtue of that State law, s 10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race. This necessarily results in an inconsistency between s 10 and the prohibition contained in the State law."
And as the plurality added in Ward[105]: "The same is true of a State law that deprives persons of a particular race of a right or freedom previously enjoyed by all regardless of race."
[103]Ward (2002) 213 CLR 1 at 99‑100 [106], quoting Gerhardy (1985) 159 CLR 70 at 98 per Mason J.
[104](1985) 159 CLR 70 at 98-99, quoted in Ward (2002) 213 CLR 1 at 100 [107].
[105](2002) 213 CLR 1 at 100 [107].
To these two points it is necessary to add a third and more fundamental consideration. It will be recalled that the RDA is directed to the prohibition and elimination of racial discrimination. These are very general objects and the relevant provisions of the RDA are expressed in very general terms. Section 10 is especially broad. It is directed to the operation of the laws of the Commonwealth and of the States and Territories. It may be contrasted with s 9(1), which makes it unlawful, but not an offence[106], 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". Whatever the scope of s 9(1), it is sufficient to notice that it contains elements which s 10(1) does not[107].
[106]Re East; Ex parte Nguyen (1998) 196 CLR 354 at 364-365 [25]‑[26]; [1998] HCA 73; Ward (2002) 213 CLR 1 at 97‑98 [102]; cf Gerhardy (1985) 159 CLR 70 at 93 per Mason J.
[107]See Gerhardy (1985) 159 CLR 70 at 97 per Mason J; Mabo (1988) 166 CLR 186 at 196‑198 per Mason CJ.
In many, perhaps most, cases it will be accurate to describe a law which is found to engage s 10 as a racially discriminatory law. Given the objects of the RDA, that is unsurprising. Care is needed, however, to ensure that this statement of conclusion is not used in a way that inadvertently narrows or confines the operation of s 10. To do so would be contrary to the large objects which the RDA evidently pursues and the generality of the words which it uses. Reference to "discrimination" is apt to bring with it conceptual baggage which has been developed in other contexts[108] but which finds no reflection in the text of s 10. One understanding of "discrimination" is that differential treatment does not amount to discrimination if that treatment is justifiable. Transplanting this understanding to s 10[109] would cut down the section's operation. Section 10 does not say that persons of a particular race may enjoy a right to a more limited extent than persons of another race by reason of a Commonwealth, State or Territory law if that difference is justifiable or proportionate to a legitimate end[110]. If the law is not a special measure within the meaning of s 8(1), the conclusion that persons of a particular race enjoy a right to a more limited extent than persons of another race is necessary and sufficient to engage s 10. Section 10 should not, as the appellant suggested, be "read ... down" by "read[ing] in" notions of discrimination[111].
[108]See, for example, Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62.
[109]cf Bropho v Western Australia (2008) 169 FCR 59 at 83‑84 [83]; Aurukun Shire Council v Chief Executive Officer, Office of Liquor Gaming and Racing in the Department of Treasury [2012] 1 Qd R 1 at 46‑47 [64]‑[65], 71 [163], 73 [169], 103 [266]; Maloney [2013] 1 Qd R 32 at 39‑40 [24], 40 [26], 62 [97], [99].
[110]cf Committee on the Elimination of Racial Discrimination, "General Recommendation XIV (42) on article 1, paragraph 1, of the Convention", in Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 48th sess, Supp No 18, UN Doc A/48/18 (1993) 115 at 115 [2]; Committee on the Elimination of Racial Discrimination, "General recommendation XXX on discrimination against non‑citizens", in Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 59th sess, Supp No 18, UN Doc A/59/18 (2004) 93 at 94 [4]; Committee on the Elimination of Racial Discrimination, "General recommendation No 32 (2009): The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination", in Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 64th sess, Supp No 18, UN Doc A/64/18 (2009) 152 at 153‑154 [7]‑[8].
[111]cf Gerhardy (1985) 159 CLR 70 at 99 per Mason J.
The arguments advanced in this appeal must be considered against the background of these fundamental propositions.
The arguments about s 10
The appellant, with the general support of the Australian Human Rights Commission (intervening) and the National Congress of Australia's First Peoples Ltd (as amicus curiae), submitted that, by declaring a restricted area and subjecting those in that area to special restrictions, the effect of the impugned provisions was to treat the exercise by some Aboriginal persons (the Aboriginal persons on Palm Island) of their right to own property differently from the exercise by persons of another race (non‑Aboriginal persons elsewhere in Queensland) of their right to own property. By contrast, the respondent submitted that s 10 is not engaged because the impugned provisions applied equally to persons of every race on Palm Island. And the Commonwealth, intervening generally in the interests of the respondent, submitted that s 10 is not engaged because, even comparing persons on Palm Island with persons elsewhere in Queensland, it was open to the Minister to have other areas in Queensland declared as "restricted areas" if those places met the statutory requirements for a declaration to be made.
There was no dispute that the persons who it was alleged did not enjoy the relevant right or rights were Aboriginal persons on Palm Island. The submissions that have just been described focused upon two issues. What is the right which it is said that those Aboriginal persons did not enjoy to the same extent as persons of another race? How should the persons of that other race be identified: as persons (Aboriginal persons or non‑Aboriginal persons) in places other than Palm Island, or as non‑Aboriginal persons on Palm Island?
The relevant right
The appellant referred to three rights set out in Art 5 of the Convention as relevant to the application of s 10(1) in this appeal: Art 5(a) (the right to equal treatment before courts and tribunals), (d)(v) (the right to own property) and (f) (the right of access to places and services). Because these rights are specifically listed in Art 5, and thus within the meaning of the term "right" in s 10(1), it is not necessary to explore what other rights, beyond those listed in Art 5, might fall within s 10(1)[112]. In particular, it is not necessary to consider whether, as the Australian Human Rights Commission and the National Congress suggested, there is a right to be free from racial discrimination.
[112]See generally Native Title Act Case (1995) 183 CLR 373 at 436.
It may be doubted that by reason of the impugned provisions Aboriginal persons (whether those who reside on Palm Island or some wider class) do not enjoy the same rights to equal treatment before the courts and the same rights of access to any place or service as persons of any other race. It is not necessary, however, to decide these issues. It is sufficient in this appeal to consider only the right to own property.
The right to own property
The ambiguity and looseness with which the word "property" can be used is notorious[113]. Particularly when speaking of a human right to own property, it is necessary to identify the level of generality or abstraction at which that right is being considered.
[113]Yanner v Eaton (1999) 201 CLR 351 at 366‑367 [18]‑[19], 388‑389 [85]‑[86]; [1999] HCA 53; Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning", (1913) 23 Yale Law Journal 16 at 21‑22.
The right to own property might be spoken of in terms of a freedom: the right to own (or perhaps possess or use) property without any (arbitrary, disproportionate or unwarranted) interference[114]. But adopting this framework for analysis would inevitably shift debate to when and in what circumstances an interference with ownership of property is unacceptable. In relation to liquor, the production and sale of which has long been regulated, the debate may well centre upon whether the particular form of regulation was necessary or desirable. There is no textual or other footing for an analysis of that kind to be undertaken in applying s 10. Indeed, this framework for analysis would appear to be little more than another species of those arguments about "discrimination" which would restrict impermissibly the operation of s 10.
[114]cf, for example, Aurukun [2012] 1 Qd R 1 at 103 [266].
At its most abstract, reference might be made to the right to own property without attempting to elucidate what is meant by "own" or to connect the right with any particular object of tangible or intangible property. Approaching the matter in this way will often, perhaps usually, be unhelpful. It is an approach which does not focus attention sufficiently upon how the impugned provisions intersect with the right. And it is an approach which tends to assume either that the relevant right is absolute or that s 10 applies only where persons of one race do not enjoy a right enjoyed by persons of another race. That is, this form of analysis tends to obscure the operation of s 10 in cases, like the present, where it is said that persons of one race enjoy a right "to a more limited extent" than persons of another race. Consideration of that issue requires close attention to the legal and practical operation of the legislation to which it is alleged s 10 applies in order to identify with some specificity what right is enjoyed by persons of one race and how that right is not enjoyed, or is enjoyed to a more limited extent, by persons of another.
Enjoyment of the right to own property to a more limited extent
It will be recalled that one of the central disputes in this Court was whether the groups of persons for consideration should be identified by reference to place. Because argument proceeded by reference to concepts of "discrimination", the issue was treated as depending upon selecting an appropriate comparator to decide whether there was racial discrimination. Was the relevant comparator a non‑Aboriginal person on Palm Island (as the respondent submitted) or was the relevant difference in enjoyment of rights to be discerned (as the appellant submitted) by comparing the rights of an Aboriginal person on Palm Island with the rights of a non‑Aboriginal person not in a restricted area?
Neither argument can be accepted in its entirety because both arguments were framed largely by reference to the conceptual apparatus of discrimination rather than the statutory inquiry about different enjoyment of rights. But the respondent's argument must be wholly rejected. Observing, as the respondent did, that non‑Aboriginal persons on Palm Island are subject to the same restrictions as Aboriginal persons demonstrates only that the impugned provisions do not take race as a criterion for their operation. That is a necessary but not a sufficient condition for a law to be consistent with s 10. Section 10 is not confined to laws the purpose of which can be described as discriminatory and is not confined in its application to laws which expressly use race as a criterion of operation.
Implicit in the respondent's argument was the proposition that the fact that the impugned provisions applied to some (if relatively few) non‑Aboriginal persons on Palm Island denied the application of s 10. That proposition cannot stand with the text of s 10(1). Section 10(1) applies where, by reason of a relevant law, some persons of one race do not enjoy a right to the same extent as persons who are not of that race.
Section 10(1) neither expressly nor impliedly requires demonstration that all persons of a particular race do not enjoy a particular right to the same extent as members of another race. If it had been intended to confine the operation of s 10(1) to laws which applied generally to all members of one race, that might have been done by expressing the condition as "if the (or all) persons of a particular race". But that was not done. There is no foundation in the text and purpose of s 10 or the RDA more generally for concluding that s 10(1) deals only with laws which affect all members of one race.
It will be recalled that the Commonwealth submitted that s 10 is not engaged because any place in Queensland, regardless of the race of those who reside or are present there, could be declared a "restricted area". This submission sought to compare the rights enjoyed by persons on Palm Island with the rights that would be enjoyed by persons elsewhere in Queensland if provisions like the impugned provisions were to be applied in areas in which the latter group of persons resided or were present. The utility of making such a hypothetical comparison was not demonstrated. It should be put aside as irrelevant.
The second textual component of the condition for the application of s 10 of the RDA is expressed to require that the difference in the relative enjoyment of a human right be "by reason of" a relevant law. The words "by reason of" in s 10 connote a causal nexus. The nature of that causal nexus is to reflect the principles and objectives of the Convention. That is because "notions of 'cause' as involved in a particular statutory regime are to be understood by reference to the statutory subject, scope and purpose"[454].
[454]Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 at 597 [99]; [2005] HCA 26.
One aspect of the causal nexus is captured in the observation of Deane J in Mabo [No 1], endorsed in the Native Title Act Case, that s 10 is to be construed as concerned with the practical operation and effect of the relevant law. That focus on practical operation and effect is inconsistent with the drawing of a distinction between the law itself and the facts in relation to which the law operates. The focus on practical operation is not, however, inconsistent with recognition that causation in fact is itself a question of degree. What is required is a direct relationship between the practical operation of the law and the differential enjoyment of human rights. Differential enjoyment of human rights that is the direct result of the practical operation of a law fulfils the first of the two conditions for the existence of discrimination within the meaning of the Convention: different treatment.
Another aspect of the causal nexus connoted by the words "by reason of" accommodates the second of the two conditions for the existence of discrimination within the meaning of the Convention: absence of justification for different treatment. Acknowledgement of that further aspect is consistent with the suggestion in the joint judgment in Ward that, where s 10 has operated to protect native title, the section has applied to redress differential treatment that has occurred by reference to a characteristic implicitly declared by the RDA to be irrelevant.
In his famous dissenting judgment in the International Court of Justice in the South West Africa Cases (Second Phase)[455], quoted in relevant part by Brennan J in Gerhardy[456], Judge Tanaka expressed the concept of equality before the law or absence of discrimination as then understood in international law in terms that "a different treatment is permitted [only] when it can be justified by the criterion of justice", to which he added that "[o]ne may replace justice by the concept of reasonableness generally referred to by the Anglo-American school of law". Usage has moved on. It is now common in international law to express the same concept in terms of a difference in treatment that can be justified by a criterion of proportionality. Proportionality cannot readily be replaced by reasonableness unless reasonableness is acknowledged to permit of gradations and is not limited to mere rationality. The concept of proportionality is now equated for some purposes in Australian law to the narrower and more focussed concept of "reasonable necessity"[457]. Equation of proportionality to reasonable necessity should be acknowledged to be similarly appropriate for the particular purpose of Australia's implementation of the Convention.
[455][1966] ICJ Reports 6 at 306.
[456](1985) 159 CLR 70 at 129.
[457]Thomas v Mowbray (2007) 233 CLR 307 at 331 [19]; [2007] HCA 33; Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 at 477 [102]; [2008] HCA 11.
The Convention principles of dignity and equality and the Convention objective of securing substantive racial equality in the enjoyment of human rights necessarily inform the application of the criterion for determining whether differential treatment of racial groups is justified for the purpose of the implementation of the Convention irrespective of the form in which the criterion is expressed. Those principles and that objective also dictate that any justification for different treatment of racial groups be affirmatively established. It is not enough that different treatment of racial groups could or might be justified. It must be shown to be justified.
Accordingly, s 10 of the RDA is properly construed to admit of circumstances in which persons of one race enjoy a human right to a more limited extent than persons of another race as a result of the direct practical operation of a law without that different enjoyment of rights being "by reason of" the law. But those circumstances are closely confined. It is not enough that the law be shown to strike a reasonable balance between human rights. The principles and objective of the Convention demand proportionality. The law must be shown, in light of the Convention principles of dignity and equality and in light of the Convention objective of securing substantive racial equality in the enjoyment of human rights, to adopt criteria that are both (i) applied in pursuit of a legitimate aim and (ii) reasonably necessary to the achievement of that aim.
The features of a law that meets the condition for the application of s 10 of the RDA can now be stated with as much precision as fidelity to the purpose of s 10 permits. The condition is satisfied by a law that:
(a)gives rise to different treatment of racial groups, in that the law has the direct practical effect that the enjoyment of a human right by persons of one race is more limited than the enjoyment of that human right by persons of another race to a degree that is inconsistent with persons of those two races being afforded equal dignity and respect; and
(b)is not justified in so far as it gives rise to that different treatment of racial groups, in that the law is not shown, in light of the Convention principles of dignity and equality and in light of the Convention objective of securing substantive racial equality in the enjoyment of human rights, to adopt criteria that are both (i) applied in pursuit of a legitimate aim and (ii) reasonably necessary to the achievement of that aim.
Where that condition is satisfied, s 10 operates to bridge the gap in the enjoyment of the human right that occurs (or would occur) as the direct practical effect of the law in question by adjusting the legal rights of persons of the disadvantaged race to the point where those persons enjoy the human right in question "to the same extent" as persons of the other race. The measure of the differential enjoyment of human rights, by reference to which s 10 is triggered, in this way provides the measure of the adjustment of legal rights that s 10 produces.
The nature of the factual inquiry to be undertaken by a court in determining the legitimacy of a legislative aim and proportionality of the legislative criteria adopted in pursuit of that aim is best left to be addressed in the context of special measures.
The critical point for present purposes is that consistency with the principles and objective of the Convention limits those legislative aims that can be regarded as legitimate and limits those legislative criteria that can be regarded as proportionate. In particular, the range of legitimate aims and the range of proportionate criteria are limited by the integration of the concept of special measures within the broader concept of equality in the enjoyment of human rights.
Within the scheme of the Convention, a measure that operates in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race may be justified as adopting proportionate criteria in pursuit of an aim of redressing some other imbalance in the enjoyment of human rights by persons of a particular race. But such a measure can only be so justified if it meets the requirements of a special measure as expressed in Arts 1(4) and 2(2) of the Convention. If justified as a special measure, it is not discrimination within the meaning of the Convention. If not justified as a special measure, it is discrimination and a denial of equal protection.
Within the scheme of Pt II of the RDA, a law that operates directly in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race, and that meets the requirements of a special measure, is excluded from the application of s 10 by s 8 of the RDA. The application of s 10 to a law that operates directly in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race, but that does not meet the requirements of a special measure, cannot be avoided by showing that the criteria the law adopts are nevertheless proportionate or reasonably necessary to the pursuit of a legitimate aim where the substance of the aim is redressing some other imbalance in the enjoyment of human rights by persons of a particular race. Otherwise, the carefully tailored regime for permissible special measures would be undermined. Unless it is a special measure excluded by s 8, the law is one to which s 10 applies.
Section 8 of the RDA: special measures
In providing that Pt II "does not apply to, or in relation to the application of, special measures", s 8 of the RDA might well be argued to express a "justification" or "ground of defeasance or exclusion" which in at least some of its application "assumes the existence of the general or primary grounds" on which a right or liability might arise under another provision of Pt II but which "denies the right or liability in a particular case by reason of additional or special facts"[458]. The text of s 8, and its context within the scheme of Pt II, might be argued thereby to supply "considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter"[459]. The broader context of the place of special measures within the scheme of the Convention might be said to reinforce those textual and contextual considerations.
[458]Vines v Djordjevitch (1955) 91 CLR 512 at 519; [1955] HCA 19.
[459](1955) 91 CLR 512 at 519-520.
Were facts relevant to the existence of a special measure of the same nature as ordinary facts in issue between parties, there would be little difficulty in accepting such an argument so as to construe s 8 of the RDA as placing a burden of proof on a party arguing that an impugned law is a special measure. But they are not.
A distinction has long been drawn between "ordinary questions of fact", which arise between parties and which are determined in accordance with the ordinary rules of evidence, and "matters of fact upon which … the constitutional validity of some general law may depend", which "cannot and do not form issues between parties to be tried like the former questions" and which fall to be ascertained by a court "as best it can"[460]. A court finding constitutional facts is not constrained by the rules of evidence. The court "reaches the necessary conclusions of fact largely on the basis of its knowledge of the society of which it is a part", "supplementing … that knowledge [by processes] which [do] not readily lend [themselves] to the normal procedures for the reception of evidence"[461].
[460]Breen v Sneddon (1961) 106 CLR 406 at 411-412; [1961] HCA 67, quoting Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280 at 292.
[461]North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 622; [1975] HCA 45.
Gerhardy illustrates that "constitutional facts" form part of a larger genus. That larger genus has long been referred to in the United States as "legislative facts"[462]. It is appropriate to adopt that terminology in Australia.
[462]Davis, "An Approach to Problems of Evidence in the Administrative Process", (1942) 55 Harvard Law Review 364 at 402-403; Davis, "Judicial Notice", (1955) 55 Columbia Law Review 945 at 952-953.
The nature of legislative facts and the nature of the duty of a court to ascertain them tell against any a priori constraint on the sources from which the court may inform itself[463]. The sources may, but need not, be "official"[464]. It is desirable, but not inevitable, that they be "public or authoritative"[465]. They can include "inferences … drawn from the regulations and statutes themselves" and "statements made at the bar"[466]. Subject to the requirements of procedural fairness inherent in the judicial process, the ultimate criterion governing the use of information from any source is that a court is able to consider the material sufficiently probative of the legislative fact to be found[467].
[463]Gerhardy (1985) 159 CLR 70 at 142.
[464]Thomas v Mowbray (2007) 233 CLR 307 at 482-483 [526].
[465]Gerhardy (1985) 159 CLR 70 at 142.
[466]Wilcox Mofflin Ltd v State of NSW (1952) 85 CLR 488 at 507; [1952] HCA 17.
[467]Thomas v Mowbray (2007) 233 CLR 307 at 482-483 [526], 512-522 [613]-[639].
Facts relevant to the characterisation of an impugned law as a special measure are legislative facts, as are facts relevant to fulfilment of the condition for the application of s 10. The nature of those legislative facts, and the nature of the duty of a court to ascertain them, tell against a construction of s 8 of the RDA that places a burden of proof on a party arguing that an impugned law is a special measure.
That is not to say that a party arguing that an impugned law is a special measure may not assume what is in practical terms a persuasive burden. It just does not bear a legal burden of proof. The same is true of a party arguing for the purpose of s 10 that an impugned law adopts reasonably necessary criteria in pursuit of a legitimate aim.
To conclude that a law is a special measure, a court – informing itself as best it can with the assistance of the parties and on material it finds sufficiently convincing – must be satisfied of the existence of the four criteria of a special measure identified by Brennan J in Gerhardy. It is necessary to revisit aspects of his Honour's explanations of the third and fourth of those criteria.
The third criterion identified by Brennan J is about the aim of the law. Shortly stated, it is that the law have the sole purpose of securing adequate advancement of its beneficiaries in order for them to enjoy and exercise human rights equally with others. His Honour's reference to the "wishes" of the beneficiaries being "of great importance (perhaps essential)" was in the context only of discussing the curial determination of the existence of a purpose of that nature. His Honour cannot be taken to have implied that a special measure cannot exist without the informed consent of the beneficiaries or without some measure of consultation with them. Nor can the Racial Discrimination Committee be taken to have adopted such a rigid approach in relation to Art 1(4) of the Convention. Its statement in General Recommendation 32 that States Parties "should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities"[468], assuming it to go beyond exhortation, is to be read in context with its subsequent statement that "special measures may have preventive (of human rights violations) as well as corrective functions"[469]. In light of the Convention principles of dignity and equality and the Convention objective of securing substantive racial equality in the enjoyment of human rights, the inherent complexity of human relations, the infinite variety of human need and the beneficial objective of the obligation in Art 2(2) to take special measures "when the circumstances so warrant" all tell strongly against the taking of special measures being the subject of a priori procedural constraint. That is especially so in relation to those measures that might need to be taken to prevent human rights violations. The same considerations tell strongly against the argument that a special measure can never criminalise conduct of beneficiaries.
[468]Paragraph 18 of the Committee on the Elimination of Racial Discrimination, "General Recommendation No 32 (2009): The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination", recorded in the Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 64th sess, Supp No 18, UN Doc A/64/18 (2009) 152.
[469]Paragraph 23 of the Committee on the Elimination of Racial Discrimination, "General Recommendation No 32 (2009): The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination", recorded in the Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 64th sess, Supp No 18, UN Doc A/64/18 (2009) 152.
The fourth criterion identified by Brennan J is about the necessity for the criteria adopted by the law in pursuit of its aim. Shortly stated, it is that the protection the law gives to the beneficiaries be necessary in order that they may enjoy and exercise a human right equally with persons of other races. Consistent with the general concept of absence of discrimination or equality before the law as understood in international law, the Racial Discrimination Committee explains special measures in terms of proportionality. The explanation by members of the Court in Gerhardy in terms of reasonableness reflected the then prevailing usage within what Judge Tanaka in the South West Africa Cases (Second Phase) had referred to as "the Anglo-American school of law". Special measures are now better explained for the purposes of Australian law in terms of reasonable necessity.
Different treatment in this case
Once it is recognised that satisfaction of the first element of the condition for the application of s 10 of the RDA requires no more than that persons of one race enjoy a human right "to a more limited extent" than persons of another race, many of the conceptual impediments to the condition being fulfilled put in argument by Queensland can be seen to fall away.
The simple fact was that, on 31 May 2008, Aboriginal persons living within the community government area of Palm Island were wholly prohibited from possessing alcohol in any public place within the community government area in which they lived unless they had applied in writing for a permit to do so and, having been granted that permit, possessed the alcohol only for a purpose authorised by the permit. Non-indigenous persons living in local government areas elsewhere in Queensland ordinarily had unrestricted freedom to possess alcohol in public places within the local government areas in which they lived.
The enjoyment by Aboriginal persons living on Palm Island of the human rights "to own property" (listed in Art 5(d)(v) of the Convention) and "of access to any place … intended for use by the general public" (listed in Art 5(f) of the Convention) was thereby more limited than the enjoyment of those same human rights by non-indigenous persons living in local government areas elsewhere in Queensland. That disparity in the enjoyment of human rights was inconsistent with persons of those two races being afforded equal dignity and respect. It is not necessary to the analysis to consider whether Aboriginal persons living on Palm Island thereby also suffered a diminution in their relative enjoyment of the human right to equal protection of the law and it is unnecessary to the analysis to consider whether Aboriginal persons living on Palm Island were thereby subjected also to a diminution in their relative enjoyment of some other human right. Nor is it necessary to inquire whether the differential enjoyment of the identified human rights by Aboriginal persons living within the community government area of Palm Island was so extreme as to amount to an impairment or infringement of those human rights.
The direct cause of that differential enjoyment of human rights by Aboriginal persons living on Palm Island on 31 May 2008 was the existence in force on that date of Sched 1R to the Liquor Regulation. The Schedule was geographically targeted to affect only a single community government area, the population of which was overwhelmingly Aboriginal. Its practical impact on that population was neither accidental nor incidental. The Liquor Regulation was brought into existence in an attempt to prevent harm arising from alcohol-related conditions and behaviours perceived generally to exist within indigenous communities but not perceived generally to exist elsewhere in Queensland. Schedule 1R was inserted and tailored specifically to address conditions and behaviours perceived to exist within the indigenous community on Palm Island. Geography was used as a proxy for race.
It is not to the point that the small percentage of non-Aboriginal persons living within the community government area of Palm Island were subjected by Sched 1R to the same restriction and were therefore subjected to the same diminution in their enjoyment of human rights relative to non-indigenous persons living in local government areas elsewhere in Queensland. Racial targeting is not negated by some persons of other races being caught in the net.
The real issue is whether the differential treatment of Aboriginal persons living on Palm Island brought about by Sched 1R was, as at 31 May 2008, justified in light of the underlying principles and objectives of the Convention. The resolution of that issue turns wholly on whether Sched 1R was, at the time, a special measure.
Justification in this case
To ask whether Sched 1R to the Liquor Regulation was, as at 31 May 2008, a special measure within the meaning of Art 1(4) of the Convention is to ask a different question from whether the Amendment Regulation inserting Sched 1R two years earlier was within the powers conferred by Pt 6A of the Liquor Act. The questions have a different temporal focus. Their determination requires reference to different legal criteria.
Part 6A was not framed in terms of the Convention. The purpose of Pt 6A, as set out in s 173F, did not correspond exactly with the purpose of a special measure. The requirement of s 173G that the Minister be "satisfied" that declaration of a restricted area was "necessary" to achieve the purpose of Pt 6A when recommending making the Amendment Regulation to insert Sched 1R required the Minister to act reasonably in reaching that satisfaction[470]. But it did not correspond to a requirement that the alcohol limits prescribed by Sched 1R satisfy a test of reasonable necessity as a condition of validity under Pt 6A. Moreover, nothing in Pt 6A made the continuing operation of Sched 1R contingent on the Minister's continuing satisfaction that its declaration of Palm Island as a restricted area was "necessary" to achieve the purpose of Pt 6A.
[470]Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 150 [34]; [2000] HCA 5.
Ms Maloney's failure to challenge the compliance of Sched 1R with Pt 6A of the Liquor Act therefore cannot be decisive. Compliance of Sched 1R with Pt 6A of the Liquor Act at the time it was inserted by the Amendment Regulation would not alone show Sched 1R to have been a special measure as at 31 May 2008.
That is not to say that the unchallenged compliance of Sched 1R with Pt 6A of the Liquor Act is irrelevant. To ask whether Sched 1R to the Liquor Regulation was, as at 31 May 2008, a special measure within the meaning of Art 1(4) of the Convention is necessarily to engage in an inquiry of legislative fact. In the absence of challenge, a court engaging in such an inquiry is entitled to assume the validity of Sched 1R and to draw inferences from the fact of the making of the Liquor Regulation and of amendments to the Liquor Regulation, including the Amendment Regulation and the Further Amendment Regulation. Those inferences include, but are not limited to, compliance with Pt 6A of the Liquor Act.
Beyond inferences of that nature, no party or intervener put to the Queensland Court of Appeal or to this Court that the inquiry of legislative fact in this case might be assisted by reference to material beyond that to be found in the affidavits tendered to the Townsville District Court, in the Cape York Justice Study and in the explanatory notes to the Amendment Regulation and the Further Amendment Regulation.
The Cape York Justice Study (as a published report to the Executive Government of Queensland) and the explanatory notes for the Amendment Regulation and the Further Amendment Regulation (as material placed before the Queensland Parliament by a responsible Minister in the exercise of a statutory duty) constitute material of the kind on which a court may feel justified basing a conclusion of legislative fact. The Queensland Court of Appeal was correct to find that material not to be contradicted by anything in the affidavits tendered to the Townsville District Court.
The material reveals a pattern of alcohol abuse and associated violence in the indigenous communities targeted by the Liquor Regulation that has existed historically and that existed in 2008 at a level that can readily be characterised as impairing the equal enjoyment of members of those communities of the human right "to security of person and protection … against violence or bodily harm" listed in Art 5(b) of the Convention as well as the human right "to public health" recognised in Art 5(e)(iv) of the Convention. The material reveals a considered judgment by the Queensland Parliament and the Queensland Executive, re-examined by the Queensland Executive in 2008, that the management of alcohol consumption within those communities was critical to the reduction of alcohol abuse and associated violence, and that imposition of restrictions on the possession of alcohol in those communities in consultation with their members was necessary to manage that consumption where other means had failed. In relation to Palm Island, in particular, it reveals a community divided as to the appropriate form of management of alcohol consumption without apparent prospect of agreement. The extent of that division is only reinforced by the affidavits tendered to the Townsville District Court.
The material readily supports the conclusion that the sole purpose of Sched 1R was the adequate advancement of the indigenous members of the Palm Island community in order for them to enjoy human rights to security of person and protection against violence or bodily harm and to public health equally with other Queenslanders.
Was the protection Sched 1R gave to members of the Palm Island community necessary to ensure their enjoyment and exercise of their human rights to security of person and protection against violence or bodily harm and to public health equally with other Queenslanders? Was the total prohibition on the possession of alcohol without a permit in any public place on Palm Island that Sched 1R operated to impose as at 31 May 2008 proportionate or reasonably necessary to redress that imbalance? Answering that question is not assisted by the brevity of the explanatory notes or by the lack of any real explanation in the explanatory notes of the alternatives considered.
It is at this point that, in the absence of challenge to its validity under the Liquor Act and in the absence of material indicative of the contrary, inferences drawn from the making and maintenance of Sched 1R itself assume some significance. The inference to be drawn from the making of the Amendment Regulation to insert Sched 1R is that, barely two years before 31 May 2008, the Minister as the responsible member of the Queensland Executive considered on reasonable grounds that the imposition of alcohol restrictions on Palm Island was necessary to minimise harm caused by alcohol abuse and misuse and associated violence on Palm Island. A further inference is to be drawn from the making of the Further Amendment Regulation, which left Sched 1R substantially unchanged while adjusting other schedules of the Liquor Regulation as a result of what is described in the explanatory note to the Further Amendment Regulation as "a whole-of-government review of alcohol restrictions, programs and services". The inference is that, not long after 31 May 2008, the Minister gave consideration both to the imposition of alcohol restrictions and to the particular level of alcohol restrictions imposed by Sched 1R, and considered on reasonable grounds that those restrictions, at that time, continued to be necessary to minimise harm caused by alcohol abuse and misuse and associated violence on Palm Island. Implicit in the Minister having considered on reasonable grounds that the particular restrictions were necessary to achieve that purpose is that the Minister took less restrictive means of achieving the same purpose into account and rejected them on reasonable grounds as either not practically available or unlikely to be efficacious.
The inference therefore to be drawn is that the total prohibition of the possession of alcohol without a permit in any public place on Palm Island that Sched 1R operated to impose as at 31 May 2008 was a measure considered by the responsible member of the Queensland Executive, on reasonable grounds, then to remain necessary for the advancement of the indigenous members of the Palm Island community in order for them to enjoy human rights to security of person and protection against violence or bodily harm and to public health equally with other Queenslanders. That is sufficient in the circumstances of this case to establish reasonable necessity.
On the basis of those inferences of legislative fact, it can and should be concluded that Sched 1R was, as at 31 May 2008, a special measure within the meaning of Art 1(4) of the Convention.
Conclusion
Schedule 1R to the Liquor Regulation operated to produce the result that Ms Maloney committed an offence against s 168B of the Liquor Act on 31 May 2008 by reason only of being the owner of a bottle of bourbon and a partly full bottle of rum contained in a backpack in the boot of a vehicle on a public road in the local government area in which she lived.
Schedule 1R was at that date properly characterised as a special measure within the meaning of Art 1(4) of the Convention because its sole purpose was the adequate advancement of the indigenous members of the Palm Island community and because the prohibition it brought into effect remained reasonably necessary in order for them to enjoy human rights to security of person and protection against violence or bodily harm and to public health equally with other Queenslanders. The application of s 10 of the RDA to Sched 1R was for that reason excluded by s 8 of the RDA. For that reason alone, s 10 of the RDA had no application to Sched 1R.
The Queensland Court of Appeal was therefore correct to conclude that Sched 1R was valid and that Ms Maloney was validly convicted of the offence against s 168B of the Liquor Act.
The appeal must be dismissed.
Maloney v The Queen [2013] HCA 28
Australian Competition and Consumer Commission v Woolworths Limited [2014] FCA 364
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