FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ
JOAN 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".
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Maloney v The Queen [2013] HCA 28
Case
[2013] HCA 28
Decision Date
CaseChat Overview and Summary
The case of *Maloney v The Queen* involved an appeal to the High Court of Australia concerning racial discrimination. The appellant, an Indigenous member of the Palm Island community, was convicted of possessing liquor in a restricted area on Palm Island, where such restrictions disproportionately affected Aboriginal residents. The central dispute revolved around whether these liquor restrictions constituted unlawful racial discrimination under Australian law, particularly in light of international human rights conventions.
The High Court was required to determine several legal issues. These included whether the liquor restrictions infringed upon the appellant's rights to equal treatment before tribunals, the right to own property, and the right of access to places or services for the general public, as protected by Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Furthermore, the Court had to consider whether these restrictions engaged section 10 of the *Racial Discrimination Act 1975* (Cth) and, if so, whether they were valid as a "special measure" under section 8 of that Act. The Court also considered the potential for inconsistency between state and Commonwealth law under section 109 of the Constitution.
The Court's reasoning, drawing on its prior decision in *Morton v Queensland Police Service*, affirmed that the impugned liquor provisions were indeed discriminatory on the grounds of race and that their practical effect was to restrict alcohol possession by Aboriginal persons. However, the Court clarified that the appellant's complaint was not about unequal treatment in the courts themselves, but rather about the discriminatory operation of the law under which she was prosecuted. The Court held that the rights protected by section 10 of the *Racial Discrimination Act* were limited to those defined as "human rights and fundamental freedoms" under Article 1(1) of ICERD. The appeal was ultimately dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
HAYNE J
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.