Maloney v The Queen

[2012] HCATrans 343

Replacement Transcript

[2012] HCATrans 343

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B57 of 2012

B e t w e e n -

JOAN MONICA MALONEY

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 DECEMBER 2012, AT 10.15 AM

(Continued from 11/12/12)

Copyright in the High Court of Australia

FRENCH CJ:   Yes, Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  Your Honours, to conclude the third point could I ask the Court to go to one case, Castlemaine Tooheys 169 CLR 436 at 478, which I referred to yesterday. Could I seek to apply our argument to the statements by Justices Gaudron and McHugh, found in the middle of that page? The first statement is:

A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant –

in this case a distinction based upon race.  Our first argument is that a law which imposes a more rigorous restriction on a right in one community, as a response to a type of harm which often flows from misuse of the right, but is found in that community in a greater quantity than elsewhere, does not operate by reference to a racial distinction within section 10, even if that community is overwhelmingly one race.  If that is correct the law still must meet the second challenge and dropping down to the next sentence –

a law is discriminatory if, although it operates by reference to a relevant distinction –

Here, the relevant distinction is the quantity of harm flowing from alcohol violence in the community area - that is the relevant distinction.  It would nevertheless be discriminatory if the difference in treatment –

is not appropriate and adapted to the difference or differences which support that distinction.

The law survives that second challenge in this case, particularly by reference to the matters Mr Sofronoff has identified.

Your Honours, finally in relation to point 4, or special measures.  If your Honours have the text of Article 1.4 of the Convention, and we deal with this in paragraphs 52 and following of the written submissions.  The two critical elements of special measures I wish to pick up this morning are, firstly, the need or the deficiency in the enjoyment of rights and that comes from the reference to:

racial . . . groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals [receive] equal enjoyment or exercise of human rights –

That is the starting point, we submit, which is a need or a deficiency in the enjoyment of rights, and in an appropriate case that would be a justiciable question.  In the present case it is accepted that there is a need or deficiency, at least within the terms of Article 5(b) of the Convention, and it may well be that some of the “Economic, social and cultural rights” in Article 5(e), particularly the right to education, are also in a situation of deficiency in the community.

If the element of need is met then, we submit, the critical question becomes the sole purpose question.  Is the sole purpose of the measure the securing of advancement of the group and we link the purpose to the need.  The purpose must be a measure which serves to ameliorate the identified deficiency or need. 

Could I make four submissions, then, on this question of purpose?  One is that is an inquiry into purpose and not effect.  Secondly, there will usually be a variety of means which could be employed to address a deficit and it is not a legal criteria of purpose that the means chosen be the best means – be the least restrictive means in respect to other rights or, indeed, that they be necessary means. 

For that last point, could I ask your Honours to go to Gerhardy v Brown 159 CLR 70 at 152 to 153 in the judgment of Justice Deane. This, we submit, is the manner in which purpose becomes justiciable. Your Honours will note on the first half of that page – and this is relevant to consultation – that Justice Deane expressed some reservations about the information before the Court.

KIEFEL J:   I am sorry, Mr Gleeson, could you give me the page number again?

MR GLEESON:   Yes, 152, your Honour.

KIEFEL J:   Thank you.

MR GLEESON:   His Honour expressed some reservations about the information before the Court, including what might called “intra‑group information”.  So the information which the Court had, really, was at the level of generality found in the working party report which was extracted earlier at page 116.  Then at the foot of page 152, Justice Deane rejected a test that the measure must be shown to be necessary to achieve the purpose because on such a test it may have failed.  Instead, he proposed over the page that a provision is taken for the “sole purpose” of the relevant kind, unless it is not capable of being reasonably considered to be appropriate and adapted to achieve that purpose.  That is the test we suggest ‑ ‑ ‑

KIEFEL J:   “Appropriate and adapted” in that context means suitable, does it?

MR GLEESON:   Available to be considered as suitable for a measure, yes. 

GAGELER J:   Do you treat that as being different from what Justice Brennan was saying?

MR GLEESON:   It is different in words from what Justice Brennan said at page 139 about point 4, was it a “political assessment” that could reasonably have been made?  In substance, it probably is not different in the sense that it is a reasonable – is it a political assessment that could reasonably be made that this measure could have the purpose of advancing the deficiency which has been identified.

GAGELER J:   Your construction of Article 1.4 just for the purposes of clarity, is it intended to depart from what Justice Brennan said at page 133 where he separated the requirements of the special measure into four elements?

MR GLEESON:   The answer to that is yes.  Our construction really brings it down to two elements.  The first is the need or the deficiency and the second is whether the measure objectively has a purpose of remedying that deficiency.  Then, the link between those two is, we submit, as per Justice Deane.

Now, in a particular case it may be an analytical tool of some use to go through Justice Brennan’s more detailed series of steps.  For instance, as Mr Sofronoff has submitted in relation to page 133, one of the particular factual matters that quite understandably animated the comments on that page, or the statements, was that the particular measure, namely, moving a group of people to what was said to be a homeland for their benefit, would of course not be a special measure if it had circumstances either which tipped it into an area where people were being taken there against their will or, as per 133 at about point 8, one would need to bring into account that this measure, although it gave the group the control over the land, it denied the individuals the ability to decide whether to let people on the land or not.

So the measure in the case in fact had three elements:  benefit to the group of access; restriction upon individual rights of the group; and prohibition on the conduct of those outside the group.  That is what led his Honour at page 134 to an exercise of balancing or reconciling the series of rights involved, and we would accept that that form of reconciliation is appropriate in a section 8 exercise.

CRENNAN J:   A distinction, I suppose, between that case and this case is the individuals could not apply for a permit.  The allocation of permits was something which was for a particular board, whereas in the legislation we have under consideration there is that permit mechanism which seems patently to include – it seems to apply to individuals.

MR GLEESON:   Yes.  They are distinctions and Gerhardy is also a good example where a narrow view of special measures that they can only be quote “for benefit and never for restriction” is too narrow.  In many cases, a special measure will involve elements of benefit and restriction.  Most of this case is focused on the narrow restriction, in this particular measure, but once one opens the frame, for instance, to the permit or to the likely position that the measure involves an application of State resources to the additional policing and, presumably, it may be accompanied by State resources in terms of alcohol, rehabilitation plans, and the like, when one looks at it in an holistic way, the purpose of the section 8 exercise is to say, provided the purpose is truly one of ameliorating a deficit then, whatever be that balance of benefit and burdens, you are free of any claim under any section of Part II of the Act, not just section 10.

CRENNAN J:   Article 1.4 is really silent on that tension between the individual rights and the collective rights.

MR GLEESON:   In terms it is silent on that tension and what Gerhardy seems to illustrate, particularly at 134, is that when those tensions come to be resolved there will be an ample measure for political assessment of the resolution to be chosen with the court’s ability to intervene being in the manner, I would submit, Justice Deane has identified. Your Honours, otherwise, in relation to consultation or consent our position is the same as Queensland and some of those who are to follow me.

Our final submission would simply be how section 10 and section 8 fit together in the overall achievement of the norm of racial equality.  The end point of a section 10 exercise may be that a law does not, in truth, produce a differential enjoyment of identified rights between races.  Once the full implications of the norm of equality have been worked out, it starts with apparent differences in rights and analyses whether, in truth, they matter, having regard to the norm of equality.

The end point of a section 8 exercise may be the same but comes from a different direction.  It is the combination of the occasion for the action – the deficiency in enjoyment of rights and the purpose of the

endeavour which together immunise the measure from any claim under Part II, whatever be the rights involved.

FRENCH CJ:   Can that analysis be applied irrespective of whether 10 operates, in the sense that one just looks to whether it is a special measure.  I think it is the WA submissions.

MR GLEESON:   Yes.  The European authorities have grappled with that question of whether there is an order in which you start and there is no clear resolution, I believe, in that.  We do not oppose Western Australia’s submission that you can, if you wish, start from section 8 and if the measure meets section 8, the answer you are given is, you do not need to look anywhere in any of Part II, including section 10.  Equally, you could start with section 10 and say, provided that norm of equality is not, in truth, offended and that the differences that are in place are not differences that matter, then ‑ ‑ ‑

FRENCH CJ:   You do not get to section 8.

MR GLEESON:   ‑ ‑ ‑ you do not get to section 8.  As I have said, in some cases, both modes of analysis may produce the same result.  In some cases, you will have a measure which, prima facie, does offend section 10 – a classic affirmative action measure where State resources are applied to bus one race to schools and not applied to other races.  You may be looking at section 10 issues.  You may be thrown more quickly to section 8.  They are just a variety of possibilities.  May it please the Court?

FRENCH CJ:   Thank you.  Solicitor‑General for South Australia.

MR HINTON:   If the Court pleases.  Can I refine our propositions to the following six, which I shall flesh out, and I will attempt not to repeat where we are consistent with those that have gone before.  Firstly, proposition number one, we embrace the approach to construction of section 10(1) of Justice Mason in Gerhardy v Brown.  I will take your Honours back to that for the purposes of fleshing out what it means in terms of the application of section 10(1).

CRENNAN J:   Are you referring particularly to page 102?

MR HINTON:   Page 99, I believe, at the bottom of 99, your Honour.

CRENNAN J:   Yes, thank you.

MR HINTON:   My intention ultimately is to look at Justice Mason’s approach with the assistance of Justice Gaudron’s consideration of discrimination in Street v Queensland Bar Association.  Why do I end up at Street?  I end up at Street because of the reference in Ward v Western Australia to Justice Gaudron’s judgment as being the sort of conceptual analysis that underpins the Racial Discrimination Act.

My second proposition is that the textual anchor for Justice Mason’s construction is to be found in the phrase “by reason of . . . a law” in section 10.  The relevant law must have the characteristics identified in Article 1 of the Convention.  In that regard, I will not develop that proposition.  I adopt what my learned friend, the Solicitor‑General for Queensland, said.

The third proposition that I will deal with is that for the purposes of section 10, the characteristics that the impugned law must have include that it distinguish, exclude, restrict or prefer persons of a particular race, colour or national or ethnic origin on the basis of their race, colour or national or ethnic origin.  Whether or not a law discriminates on such basis is answered, in our submission, by asking whether it can reasonably be considered appropriate and adapted to a racially neutral purpose.  Again, I will tackle that proposition through the filter of Justice Gaudron’s judgment in Street v Queensland Bar Association.

My fourth proposition will be to deal with something that your Honour Justice Hayne put to my learned friend, the Solicitor for the Commonwealth, and that is to adopt that proportionality test with respect to “the basis” does not render section 8 otiose, does not drive a coach and horses through section 10. 

My fifth proposition will be to return to the test in determining whether a law is a special measure.  I want to deal quickly with the questions of proportionality tests developed by this Court in different contexts and then come to what would be the appropriate test in the context of section 8 and, indeed, section 10.  Your Honours may have noticed that I have been deliberate in my use of the language that the test applicable in each instance is that the purported measure or, indeed, the basis must be one that can reasonably be considered appropriate and adapted. 

Finally, my sixth proposition will be that the tests we propose for sections 8 and 10 do not require review of the exercise of legislative power to the same exacting standard as tests applicable in the application of a constitutional guarantee. 

I then turn to proposition No 1.  I will not take your Honours to Gerhardy v Brown, but I am referring to Justice Mason’s decision at page 99 of the book. Section 10(1), his Honour observed, gives effect to Article 2.1(c). My learned friend, Mr Sofronoff, drew that to your Honours’ attention. The failure, his Honour said, to follow the language of Article 2.1(c) gave rise to questions of validity, when one had regard to the application of the external affairs power.

To avoid those questions then the reasoning was to read section 10(1) as directed to laws answering the description in Article 1.1, in short, laws that create racial discrimination.  What Article 1.1 indicates is that “race, colour, descent or national or ethnic origin” is an irrelevant basis upon which to afford differential treatment.  To answer your Honour Justice Gageler’s question as to the relevant content to be given to the concept of a law based on race it is that Article 1 deems race an irrelevant basis for differential treatment. 

Here I move to my third proposition and can I take your Honours to Western Australia v Ward 213 CLR 1, in particular to page 105, paragraph 121. For my purposes the crucial part of paragraph 121 is the last sentence concluding that page and, of course, the footnoted reference. My point, in the joint reasons their Honours consider that the Racial Discrimination Act, like other anti‑discrimination legislation, proceeds from:

an unexpressed declaration that a particular characteristic is irrelevant –

I link that back to Article 1.1 and Justice Mason’s construction the irrelevant characteristic is “based on race”, et cetera.

Can I then take your Honours to Street v Queensland Bar Association 168 CLR 461 and, in particular to the judgment of her Honour Justice Gaudron at 571 as footnoted in the joint reasons in Western Australia v Ward? I invite your Honours to commence at page 571 at point 4, the paragraph beginning “The framework”. That is, in my submission, what the joint reasons in Western Australia v Ward are referring to and I, as I have submitted, put to your Honours that the irrelevant characteristic for the Racial Discrimination Act is actually to be found in Article 1.1.

Article 1.1 invites an inquiry as to whether the impugned law is one, as we have seen, based on the irrelevant characteristic.  Thus, a law that has the identified purpose or effect ‑ Article 1.1 – and is based on race, falls foul of section 10 if it results in the differential enjoyment of rights.  Race, in my submission, is an irrelevant basis for differential treatment that results in the differential enjoyment of rights.  The question that then arises is how do you determine if a law is based on race?  Answer:  you ask can it be considered reasonably appropriate and adapted to a racially neutral end.  If it is, it is not a law based on race.

GAGELER J:   Including a law that on its face draws a racial distinction?

MR HINTON:   It is precisely because a law on its face may draw that distinction that you need perhaps – or not perhaps, but you need then to look at whether in its operation it is based on race.

GAGELER J:   In its operation?

MR HINTON:   In its effect, as it applies.

KIEFEL J:   I am a little confused here because your first ‑ ‑ ‑

MR HINTON:   No.  Actually, I take that back.  I withdraw that.

KIEFEL J:   ‑ ‑ ‑ proposition about it being reasonably appropriate and adapted seems to suggest you are concentrating on purpose, but then you say it is effect.  Is it a neutral purpose or a neutral effect?

MR HINTON:   You adopt a reasonably appropriate and adapted test to truly determine whether or not the law is based on race, is my submission.

GAGELER J:   You apply that even to a law that on its face draws a racial distinction.

MR HINTON:   No, I withdraw that submission.  If it is facially based on the irrelevant characteristic it falls foul of section 10.  If it is not, you then look to whether or not it is a law that is reasonably appropriate and adapted to a racially neutral end.

KIEFEL J:   What do you mean by “reasonably appropriate and adapted”?  It is a phrase that is not popular with me, at least, but ‑ ‑ ‑

MR HINTON:   It is a matter of considering whether or not – it is a test of characterisation, if your Honour pleases.

KIEFEL J:   It is not proportionality, it is characterisation? 

MR HINTON:   Yes, and that is what I will come to tease out, if I may.

KIEFEL J:   Well, then, we are concerned with purpose.

MR HINTON:   Exactly, because section 10 operates much in the same way as a purposive power by looking at what the law is based on.  The connection, therefore, one has to discern by the application of some test.  We say the characterisation test that is known by this Court and applied for purposive powers is the obvious choice of test.  That is our ultimate submission and again, equally for section 8.

HAYNE J:   If you get past those hurdles, all the work of a proposition is done by the expression “racially neutral end”.  It seems to invite attention to the level of abstraction at which you are identifying the end.  Let it be assumed that a particular group within society is marked as having an undue incidence of a particular social problem.  Now, do you characterise that by reference to the problem or the group to which it is targeted?  How do you choose?

MR HINTON:   Our answer to that, which is similar to your Honour’s question, I think, to my learned friend, Mr Gleeson, at page 92 of the transcript, is that if the problem, the issue, is particular to the group, section 10 is not engaged because the relevant characteristic on which the law is based is the issue – the problem.

HAYNE J:   All this depends upon the beautifully symmetrical assumption that life can be divided into neat compartments.  Would that it were so, Mr Solicitor. 

MR HINTON:   I do not disagree with your Honour but the notion of whether something can reasonably be considered appropriate and adapted has the flexibility that allows you to consider competing factors in determining what is the relevant characteristic on which the particular law is based.  So we do not put to the Court any hard and fast bright line sort of test by invoking the notion of what can reasonably be considered appropriate and adapted, we have the flexibility necessary to consider all relevant factors.  When it comes to section 8 the relevant factors would include in a particular case those identified by Justice Brennan but not necessarily all of them or, indeed, it may include others.

GAGELER J:   But we are still on section 10, are we not?

MR HINTON:   I am sorry, your Honour, I was just digressing.  Sticking with Justice Gaudron for a moment, she performs a similar analysis.  As we go through page 571 she refers to the South West Africa Case.  For my purpose, however, it is her reference at the commencement of the last paragraph on 571 to the State of West Bengal v Anwar Case and to the judgment of Justice Das.  Indeed, your Honours will see over on 572, quoted from Justice Das’ judgment with seeming approval, a two‑step test which includes a test not unlike that which we put before your Honours as part of the second test, a characterisation test.  In the Australian context, her Honour deals with the matter at page 573 at point 5:

The question whether different treatment assigned by –

That paragraph there I refer your Honours to and, indeed, arriving at the bottom of page 573 with the same test as we put to your Honours.  So, how then, in our submission, does section 10 work?  You must identify the human right.  You must identify the persons of a particular, race, colour or national or ethnic origin who enjoy that right.  You must identify the persons of a second – a different race, colour or national or ethnic origin who do not enjoy that right.

The differential treatment must be the product of a law of a State, Territory or the Commonwealth.  You must then ask does the one group who does not enjoy the right not enjoy it by reason of that law being based on the irrelevant characteristic.  Asking whether the impugned law can reasonably be considered appropriate and adapted to a racially neutral purpose, allows you to arrive at the answer.

Hence, my answer to your Honour Justice Hayne’s question not long ago and, indeed, put to my learned friend, the Solicitor for the Commonwealth, at page 92.  If the problem of domestic violence is particular to the group, section 10 is not engaged.  If the problem is not particular to the group, section 10 may well be engaged.  If it is particular to the group, without the benefit of other factors, the relevant characteristic on which the law is based is domestic violence.

FRENCH CJ:   What part of a text do you find this in?  Is it “by reason of”?

MR HINTON:   Yes, your Honour.  We embrace what my learned friend, the Solicitor‑General for Queensland, said.

GAGELER J:   But you do not apply that analysis to a facially discriminatory law.

MR HINTON:   No.

GAGELER J:   Why not?

MR HINTON:   Because it is facially neutral and still must answer the description in Article 1.1. 

GAGELER J:   As I understand it, you are not applying that analysis to a law that, upon its face, draws a racial distinction.

MR HINTON:   No, your Honour.

GAGELER J:   Why not?

MR HINTON:   Well, maybe we are cross‑purposes.  I am not applying that analysis to a law that answers the characteristics, on its face, in Article 1.1  – if I can answer it that way.

BELL J:   Can I just take up this you, arising out of a submission that the Solicitor‑General for Queensland made yesterday?  He referred us to the Aboriginals’ Protection and Restriction of the Sale of Opium Act 1897, which he described as the old racist statute and he directed attention to section 19 of that Act that made it an offence for any person to supply, or cause to be permitted to be supplied, liquor to an Aboriginal or half‑caste person. 

Now, as I understood his submission, it was that that legislation would fall within 10(1) because it would treat differently the right of access to a place for service of goods under Article 5(f).  The Act is expressed in its preamble to be for the protection of Aboriginal and half‑caste people.  If one were to consider a view that Aboriginal and half‑caste persons were more susceptible to the deleterious effects of alcohol, would that mean, on your analysis, that section 10(1) would not be engaged?

MR HINTON:   Yes, your Honour, if the relevant characteristic is particular to the group and it is racially neutral, section 10(1) is not engaged.  If the characteristic is not, section 10(1) is.  Can I turn to the fourth proposition that to apply an analysis as we put does not render section 8 otiose, nor run a coach and horses through section 10, in our submission, by determining whether or not a law is based on the irrelevant characteristic and applying the reasonably appropriate and adapted test, one ensures that you catch a substantive discrimination.

Of course, I should have made clear that when we talk of racial discrimination, we refer to it in the sense that I think Mr McKean in his work refers to it.  We have provided your Honours with an extract from Mr McKean’s book Equality and Discrimination under International Law and I refer your Honours in particular to pages 287 and 288, footnoted, I might add, in the Native Title Act Case with approval. 

So the international law notion of racial discrimination is as Mr McKean sets out – the reference in the Native Title Act Case is 183 CLR 373 at page 484 because of course there one of the bases for finding that the Native Title Act did not offend section 10 was the notion of what amounts to racial discrimination, hence the footnote to Mr McKean.

Just completing my submissions on our fourth proposition, with respect to the application of section 8, it will operate on the basis that race, which is the irrelevant characteristic for the purposes of section 10, is the relevant characteristic for the purposes of section 8.  There is a distinction for the purposes of section 8 based on race.  So it will continue to have work to do, on our analysis of the operation of section 10.

Can I deal with my fifth and sixth propositions together?  Here it is necessary to say something quickly about the different proportionality tests that have been developed by the Court in different contexts.  In our submission, there are at least three, and the necessity to set out the three informs while we punt ‑ as I put in answer to your Honour Justice Kiefel ‑ while we punt for the third, and that is the characterisation test as applicable to section 10 and section 8.

The first is the characterisation test; can the impugned law reasonably be considered appropriate and adapted to a legitimate end?  A second is, is the impugned law reasonably appropriate to a legitimate end?  There is a difference.  The third is, is the impugned law reasonably necessary?  They are not merely different formulae for saying the same thing, the tests are different.  The difference, in our submission, is attributable to the different contexts in which they have been developed and the function in those contexts of the judicial power.

It is not correct, with respect, then to contend, as the appellants have done, that there is only one test that is in a constant state of development, one test of proportionality. Test three, working backwards, reasonable necessity, is the most exacting. It has been developed in the context of determining whether or not a law impermissibly burdens a constitutional guarantee such as section 92 and section 7 and section 24 of the Constitution.

So it invites the Court to weigh the objective pursued by the impugned law against the constitutional purpose served by the guarantee, and the best example of that is to be found in Betfair v Western Australia 234 CLR 418 at paragraph 102, in particular referring indeed to Castlemaine Tooheys at paragraph 39.

The question whether a legislative measure that burdens a constitutional guarantee is desirable in the sense of being reasonably necessary involves in no small part, Betfair points out, a political question.  In Castlemaine Tooheys their Honours considered that that was not a question appropriate for the Court, but in Betfair the Court considered that section 92 committed to the judicial power the determination of that political issue ‑ paragraph 98 of Betfair.

So with this test where the Court does have regard to the political question, less latitude is given to the legislature and its selection of the appropriate means to pursue a legitimate end, and this Court may determine whether or not the choice made was correctly made.

KIEFEL J:   I do not know that the Court said in Betfair that it was a political question.  It regarded it as a constitutional question.

MR HINTON:   Can I take your Honour to Betfair 234 CLR 418, and I had in mind in particular paragraphs 98 and 99?

KIEFEL J:   That is to quote from Castlemaine Tooheys - at paragraph 102 on page 477 it said that in adopting ‑ what was said in North Eastern Dairy Co is the doctrine of the Court, but it is suggested that the application here – as elsewhere in constitutional and public law – because the requirement of reasonable necessity arises when, as you say, you have a freedom that is burdened but the freedom is not absolute.  The Court is left to determine on what basis ‑ where is too far.

MR HINTON:   Yes, committed specifically to the judicial ‑ ‑ ‑

KIEFEL J:   Anyway, that is digressing.  It is really quite a long way from where we are in this case, is it not?

MR HINTON:   It is, but our point is that is not what the Court has to do here for the purposes of section 10 and for the purposes, indeed, of section 8.  So, we take your Honours to that looking at that test in the context of a constitutional guarantee to distinguish it in its application here. 

The second test is often framed purely in terms of reasonably appropriate and adapted.  It is not as exacting as the reasonable necessity but more exacting than a test couched in terms of can it reasonably be considered appropriate and adapted.  That test has been used in the context of constitutional implications.  It resonates with the second limb of the Lange test.  The second limb of the Lange test does not or has not yet been developed to the point where it includes the notions of reasonable necessity.  The difference, in our submission, is between the nature of an implication and a constitutional guarantee and then what is committed to the judicial function. 

The third test is can the impugned law reasonably be considered appropriate and adapted to a legitimate end, the least exacting, not applied to constitutional guarantees; a law used to determine whether or not the character of a law falls within a law‑making, by‑law making power, for example, used to determine questions of characterisation for purposive powers.  Examples are to be found with respect to, for example, the external affairs power in Victoria v The Commonwealth.

FRENCH CJ:   How are you saying all this fits in here?

MR HINTON:   Our ultimate submission is that when one looks at section 10 and section 8 and whether or not for the purposes of section 10 a law is based on a racially neutral purpose, we are concerned with an exercise consistent with that of determining the character of a court.  So, the test is can it reasonably be considered appropriate and adapted? 

Similarly, when it comes to section 8 the purpose of advancing the members of a particular racial group, the test again, in our submission, should be consistent with the characterisation test.  That, with respect to section 8, in particular, accords with – and section 10 - the role given to the judicial power and is consistent with the observations of Justice Brennan in Gerhardy at 138 and 139 and Justice Keane in Aurukun at paragraphs 160 to 163.

FRENCH CJ:   All this is bundled up in the words “by reason of”?

MR HINTON:   Bundled up in the words of “by reason of” which take you back to Article 1.1 and those words “based on”, yes, your Honour.  If the Court pleases, those are our submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Solicitor‑General for Western Australia.

MR DONALDSON:   If your Honours please.  I propose, your Honours, to direct my oral submissions to the notion of consultation and consent.  The articulation of that and the relevance of that matter, your Honours, to this matter was addressed in oral submissions yesterday by the appellant and also by one of the interveners.  In relation to the appellant’s submissions, your Honour, in our respectful submission, what your Honours heard yesterday was different from what was in the written submissions, and is not reflected as it happens in the ground of appeal, that is ground 5.  I will, your Honours, deal with the notion and its relevance as it was articulated yesterday.

As we understand it, your Honours, now the appellant’s contention in relation to this notion of consultation and consent is as follows, that consultation with a view to obtaining consent is what is described as a “significant relevant factor”.  The matter to which it is significantly relevant, your Honours, was a little unclear but having regard to Justice Brennan’s judgment in Gerhardy, it is likely that it is contended that it is a significant relevant factor in terms of Article 1.4, to whether the purported special measure is for the sole purpose of securing adequate advancement of the group. 

The alternative to that is what was put by the Chief Justice yesterday that is that consultation then consent is a significant relevant factor to the other element of Article 1.4, which is whether a particular measure is necessary to ensure that the group enjoy equal exercise of human rights and fundamental freedoms.  Now, it may be that the contention now is that consultation and consent is a significant relevant factor to one or to both of those matters. 

What then follows is that if it is determined as a fact that there was no consultation or, to use the terminology that flowed from my friend yesterday, no significant consultation or no meaningful consultation or no adequate consultation, whatever they might mean, then what follows is that the Court is to apply what my friend described as a higher degree of scrutiny in assessing whether the particular special measure is for the sole purpose, or is necessary in terms of Article 1.4. 

It was then advanced that when it is contended by the State that a measure is a special measure, the State must prove by evidence that the measure is for either that sole purpose, or is necessary as contended.  It seemed also to be contended yesterday that in coming to that determination the Court not only can, but should, disregard statements of legislative purpose found in legislation and statements of purpose in explanatory memoranda. 

I think your Honours were aware of the way that, as Justice Bell put to my friend yesterday going through the explanatory memoranda that, in effect, you simply cannot accept what is set out there.  To illustrate that contention in this case, it would follow then that there would need to be a trial as to whether in this particular case there is and has been alcohol‑related violence on Palm Island and other alcohol‑related disturbances.  I am there paraphrasing the terms of section 173F of the relevant legislation. 

It was also contended that in determining those questions it would also have to be considered as a matter of evidence whether there are means other than the special measure to “better deal with these issues” and again that was a matter that would be determined by the court, and also of course whether the consultations that are undertaken were undertaken for the purpose of seeking to obtain the consent of the community to that particular special measure.

A matter that was not addressed, your Honours, but would arise in any such analysis is this, that of course in this context these matters arise in a criminal trial, and so not only an issue of the burden of proof to be considered in respect of those matters, but also the standard of proof in respect of the proof or otherwise of those matters would have to be considered.  Of course, your Honours, as we know from the terms of Article 1.4, these measures are temporary and so trials of this nature and issues of this nature would have to be ventilated on a periodic basis, if not an ongoing basis.

So, your Honours, at trials such as that which are contended for in respect of these matters by the appellants would involve the following.  There would have to be a trial and determination and findings made as to whether there was consultation at all.  There would then have to be a finding as to whether such consultation was with a view to or for the purpose of obtaining the consent of the community.  There would then have to be findings made as to whether that consultation if it occurred was significant or meaningful.  There would then have to be a determination of whether there was in fact the consent of the community to such a measure. 

If the State does not establish those matters, then there would be a determination at this trial in respect of the higher level of scrutiny as to whether the law is one for the sole purpose of securing adequate advancement or necessary to ensure the group’s enjoyment of equal exercise of human rights.

In determining those matters, as I have indicated, the court would disregard legislative statements of statutory purpose and statements in the explanatory memoranda and the State must prove by evidence giving rise to findings that there is alcohol‑related violence on Palm Island, in this case to which these measures respond and the State must prove that there were no better or more efficacious means of dealing with that issue, and of course, the State would have to do that on an ongoing basis.  In my respectful submission, your Honours, there is no process more likely to ensure that special measures in terms of Article 2.2 of the Convention are not enacted by government than to follow a process such as that.

In my brief outline, your Honours, I also referred to the Bropho Case for this reason only, your Honours:  it was put by the appellants yesterday and by both of the interveners supporting the appellants that so far as they are aware there is no case in which a – I do not know whether it was a prohibition or a criminalisation – was found to be a special measure. 

I will not take your Honours to the facts of Bropho, but the facts of Bropho involved a regulatory regime in which an administrator of a reserve was given powers to exclude certain people from that reserve.  In the legislative framework and in the executive instruments that followed it, there was an express power given to police to remove unauthorised people from that particular reserve and it would have followed inevitably if those directions by the police were not followed that there would have been

prosecutions for any number of criminal offences that are obvious.  If your Honours please.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Kirk.

MR DONALDSON:   I am sorry.  Your Honours, if I might simply add, there are some of us who have travel commitments.  If I might be given leave, your Honours, to leave partway through my friend’s reply if he has not finished – without any disrespect, of course.

FRENCH CJ:   Yes, Mr Donaldson.

MR DONALDSON:   Thank you.

FRENCH CJ:   Yes, Mr Kirk.

MR KIRK:   Your Honours, I propose to address three topics that have arisen from the oral submissions of the five of my learned friends to whom I have to reply.  The three topics are first, the argument raised, particularly by Queensland, as to the appropriate comparison, for the purposes of section 10; secondly, whether a proportionality‑type analysis is to be applied at the section 10 stage raised particularly by the Commonwealth and South Australian Attorneys and thirdly, raised by a number, characterisation of the liquor restrictions as special measures.

Turning then to the first topic, the ground on which the respondent has chosen to mount its main defence in this case is that this law, that is to say liquor restriction, is not, in truth, discriminatory based on race such as to fall within Article 1.1 of the Convention and section 10 of the Act.  That is said to be so, as we understand it, because the discriminant is said to be presence or, perhaps, residence but not membership of a racial group – see transcript 3575.  The respondent emphasises that not all indigenous persons in Queensland are subject to these laws, evidently enough.  Thus, an Aboriginal person can have a drink in Brisbane.  Conversely, any non‑indigenous person on Palm Island is also subject to the law.

The first point involves legal error in assuming that it must be all members of the racial group who were detrimentally affected as opposed to some subgroup thereof.  That is inconsistent with Gerhardy where not only did the law not apply to all Aboriginal persons in South Australia, it was arguable it did not even apply to all Pitjantjatjara, a point noted by his Honour Justice Mason at 100, because one of the criteria in issue there was that you had to be a traditional owner and not necessarily all Pitjantjatjara were traditional owners in the relevant sense.

It is sufficient that a law creates a distinction based upon race but that does not require that all members of the broader racial group are so disadvantaged or advantaged.  As for the second point – which to be fair was the main point emphasised by my friend, I think, about the fact that it applies to non‑indigenous people on Palm Island – it is true that a small proportion of the community is non‑indigenous and that other non‑indigenous people may visit from time to time. 

But, as stated in the Native Title Act Case, and as quoted in Ward at paragraph 113 – your Honours do not need to turn to it – it is relevant to take account of the fact - vis-à-vis native title – that native title is property characteristically held by people of a particular group. In other words, it is necessary to broaden it out to look at characteristic features of a racial group, see whether a law detrimentally affects those features such that it could be said that in substance the law operates to the detriment of that racial group.

It is a truism that a characteristic feature of the population of Palm Island is that they reside there and, following from that, that they are generally present there.  Being generally present there insofar as they wish to possess or consume alcohol that is where they would generally seek to do so.

HAYNE J:   Can I attempt to step out that argument by reference to section 10?  Leave aside for the moment the content that is to be given to “by reason of a law” and focus for the moment on “do not enjoy a right”.  One way at least of understanding the argument advanced seems to me to be that by reason of the Queensland Act it is said that persons do not enjoy a right because that Act imposes a new and different prohibition upon them.  That is step 1. 

Step 2 is, as I understand it, that that new and different prohibition is imposed upon account of race.  The content that I understand to be given to “on account of race” in this case is to submit that it is sufficient to show that the facially neutral criterion of place was engaged because of the racial constitution of the community resident in that place. 

There are two points that then, I think, may emerge.  First, what content are you giving to “because of” and the more you demonstrate that the criterion was racial, do you not argue yourself rapidly into the special measures provision because the proposition, the facially neutral criterion of place, was engaged because of the racial constitution of the community.  It fastens upon racial characteristic rather than presence of alcohol‑fuelled violence and deleterious consequences of that kind, that is, it seems to be you are on Morton’s Fork.  The more you demonstrate that alcohol‑fuelled violence, et cetera, has a racial connection, which I think a very large proposition, it seems to me you argue yourself into the special measures provision.

MR KIRK:   Can I put a couple of points in response, if I may?  First, we accept – not quite in the way your Honour puts it - that this case falls to be resolved at the section 8 point and that then needs to be grappled with and we have sought to grapple with it.  But at that section 8 point the mere fact that it is established to be discriminatory in purpose or effect is not enough to say it is a special measure.  One has to apply the fairly restrictive test that is set out in Article 1.4 and which I will come back to.

But secondly, and perhaps at a slightly deeper level in response to what your Honour has put, your Honour used the words “because of”.        The words in Article 1.1 are “based on” – one does not want to pass too much over the particular words, but it goes on to say:

based on race . . . which has the purpose or effect of nullifying or impairing the recognition . . . on an equal footing –

“Based on” has to be read as part of the provision as a whole, including “purpose or effect” and as four members of this Court emphasised in Western Australia v Ward, picking up what had been said in both I think the Native Title Act Case and by Justice Mason in Gerhardy and perhaps others, “Section 10(1) is” – and I am quoting from paragraph 115, quoting in turn other judgments:

Section 10(1) is directed at “the practical operation and effect” of the impugned legislation and is “concerned not merely with matters of form but with matters of substance” –

When one understands, in our respectful submission, that it is not just about purpose, but effect, then “based on” should not be construed as meaning for the purpose of.  In other words, it captures measures which are not particularly meant to be perhaps directed.  They are not ill motivated, they are not meant to be directed at some racial group.  Here, in fact, that is not this case, but it captures measures which simply have a detrimental effect which in substance can be said to be based on race.

Now, I accept, your Honour, that that then raises the large question well what do we mean by “in substance” and that is where the work needs to be done at this level of the argument.  But to seek to do that work we point to the following features.  As I was indicating it is characteristic of the Palm Island population, they reside and live there, they spend their time there.  If they wanted to drink that is where they would drink. 

There is then, leaving aside the small proportion who are not indigenous, a discriminatory burden of the kind identified by your Honour at the first step in that indigenous people do not enjoy a right to the same extent, namely the right to possess and thus to consume alcohol, as people of other racial groups elsewhere.  How then do I deal with the ‑ ‑ ‑

HAYNE J:   Well, no, the comparison drawn in that first step is the position before the law and the position after the law.  The comparison is not between two communities or groups or other comparators after the law has been enacted.  The comparison implicit in that first step is pre‑law, post‑law.  If by reason of the law the something follows.

MR KIRK:   We would respectfully disagree with your Honour, but going back to the words of section 10(1), and although Justice Mason in Gerhardy at 99 said that we read down section 10 somewhat so to be giving effect to Article 1.1, one cannot simply ignore in the way that many to my right seek to have us ignore, the words of 10(1) ‑ ‑ ‑

HAYNE J:   Well, the premise from which I began was in fact intended to help your side of the case.  It was a premise that I thought was an advantage because the alternative premise that you draw comparisons seems to me to run you aground on the shoals of finding a true comparator that leads to any discrimination at all.

MR KIRK:   Insofar as it is helpful, I adopt it.

HAYNE J:   Beware of Greeks bearing gifts.

MR KIRK:   In the alternative, could I seek perilously to make the following submissions, if I may?  Section 10(1) does require a comparison, in our submission, between the members of a group, or some members of a group, who do not enjoy a right compared to persons of another race, and so that is looking to post‑enactment of the law, and that is what leads us to the comparator we put between people on Palm Island and people off Palm Island.

To come back to the point raised by Queensland, well, what about the non‑indigenous people on Palm Island, first we say that is no more an answer here than it was in Castlemaine Tooheys ‑ I know it is dangerous to cite that case too – to say, but there was one interstate competitor, CUB, which benefitted from the South Australian law.  That did not alter the character of the law when viewed as a whole as protectionist.

Secondly, one cannot ignore the context that from beginning to end this scheme has been directed at indigenous communities in Australia.  Apart from the face of the measures every legal document expressly indicates that these measures are directed to indigenous communities.  The explanatory note, the second reading speech, every explanatory note that I have seen at least for every one of the introduction of these measures says that this is directed to indigenous communities.  It has only ever been applied to communities which are in substance indigenous.

The respondent seeks to have it both ways.  It seeks to rely on the Cape York Justice Study as justification for these measures, a study about indigenous communities, but then suggest it is a neutral measure.  In truth, in our submission, the respondent’s submission comes down to saying no more than there is no facial discrimination here, and that is illustrated by the respondent’s written submissions at paragraph 40 ‑ your Honours need not turn to it – but where the respondent says a law dealing with businesses “in Chinatown in Brisbane or Sydney” even where all such businesses, 100 per cent of such businesses, are owned by people of Chinese ethnicity would not contravene section 10. 

Well, the only difference between such a law and a law which said, all Chinese businesses must do X, is facial discrimination.  To focus in that way on facial discrimination is to ignore what this Court has said, in our respectful submission, about the need to look to substance and practical effect.  If these measures directed expressly in every legal document accept the face of the measures is not such as to contravene section 10, then in our respectful submission, section 10 is a protection readily evaded and offering protection of very limited scope.

GAGELER J:   Is that argument really saying that the substantive purpose here is to draw a racial distinction?

MR KIRK:   Did your Honour say “the substantive purpose”?

GAGELER J:   Correct.

MR KIRK:   We do rely on purpose here, but I make the further point, we do not need to rely on purpose.  We can also rely on effect because of what I have sought to emphasise about what is in Article 1.1, and what this Court has said in a number of judgments.  Does that answer your Honour’s question?

GAGELER J:   It goes some way.

MR KIRK:   To turn to the second topic which overlaps a little with the first about proportionality at the section 10 stage, and here I am addressing particularly the Commonwealth and South Australian submissions and to an extent those of the Commission.  The effect of those submissions, particularly of the Commonwealth and South Australian Attorneys is to apply a proportionality‑type test or call it reasonably appropriate and adapted at the section 10 stage, and to justify the restrictions here at that level, such that there is no need to go further.

First, neither the Commonwealth nor any other party grappled with what we put in our primary submissions that proportionality is fundamentally a test of purpose, and I cited three cases to support that proposition yesterday.  Section 10, as I have just sought to emphasise, is directed not only to purpose but to effect.  To treat all issues as though they can be resolved because they have a non‑discriminatory purpose is to ignore that practical effect aspect of section 10, and it came out clearly in the South Australian Attorney’s submissions this morning where my learned friend said something like, “Section 10 works in much the same way as a purposive power”.  No, it does not.  It has a purposive aspect.  It also has an effect aspect, and to ignore the effect aspect is to cut in half the protective measure introduced by section 10.

The Commonwealth Solicitor‑General referred yesterday to the rich concepts of discrimination developed in other areas of the law and there are many other areas of law where discrimination has been dealt with but this Court’s – any court’s first and last duty in statutory construction, as this Court emphasised last week, is to construe the particular text of the statute.  One cannot simply pretend section 10 invokes some generic notion of discrimination without referring to the words, without referring to the Convention and without taking account of section 8.  I will come back to that shortly.

Secondly, the Commission submitted that rights of property are not absolute in nature, which is certainly true and true for essentially all human rights, but section 10 and Article 1.1 require a comparison of the enjoyment of rights.  The fact that at some level of abstraction all rights are not absolute does not answer our complaint, my client’s complaint, “But that limitation on rights has only been applied to me and to my people and not to others”.

Third, no party, save for South Australia, has grappled with the fact that to apply section 10 as though it incorporated a proportionality or a reasonably appropriate and adapted‑type test renders superfluous section 8.  The Solicitor‑General for the Commonwealth yesterday said any measure reasonably appropriate and adapted to achieving a non‑discriminatory object could be held valid at this level.  That will pick up and apply to any measure with the purpose of securing adequate and equal enjoyment of rights, ie, the very thing Article 1.4 and section 8 is intended to deal with.

My learned friend for South Australia did try to distinguish it something along the lines of – I am not sure, with respect, I fully understood the distinction, but something about if the attribute was specific to the group section 10 did not apply.  In any event, as I have already put, the South Australian submissions seems to ignore the practical effect side of section 10 and focus just upon purpose.

Any special measure expressly said to be such if it was in truth a special measure would pass the tests set by my learned friend, Mr Gleeson, by my learned friend, Mr Hinton, and by the Commission.  That renders superfluous section 8, contrary to what this Court has said about the statutory construction, for example, Project Blue Sky (1998) 194 CLR 355, paragraphs 69 to 71 reiterated in M47 more recently. 

This was the point recognised by his Honour Wilson in Gerhardy at pages 113 to 114 and may I note that his Honour there noted that the then Commonwealth Solicitor‑General appears to have expressly dissociated himself from the very sort of submission that has been put by the Commonwealth in this case. That is found at about 113, point 8.

Fourth, insofar as the Commonwealth was suggesting that issues of competing Convention rights have to be dealt with only at the section 10 stage, that is incorrect.  That is precisely the sort of thing that can and should be dealt with as a special measure.  Your Honour Justice Hayne referred yesterday, quite appropriately, with great respect, to the right to the security of a person – Article 5(b) – a right that we do not seek to diminish in any way. 

The real substance of the special measure argument is that members of the community in Palm Island do not enjoy the right to security of the person to the same extent as others and as they should, such that special particular measures are required.  In other words, it is necessary to ensure that measures are introduced to seek to advance members of the community enjoying those fundamental rights, precisely the sort of thing dealt with in Article 1.4 and thus section 8.

Fifthly, and finally on this topic, my learned friend for South Australia sought to emphasise this morning the reference in Ward at paragraph 121 to Justice Gaudron’s judgment in Street and the statement in Ward that the RDA:

proceeds by reference to an unexpressed declaration that a particular characteristic is irrelevant –

That is, with respect, unremarkable and plainly true and the irrelevant characteristic is race.  The Court there was not seeking to suggest, we would submit, a wholesale importation of a proportionality test at the section 10 stage.

Turning finally to my third topic, the liquor restrictions and special measures, first, we accept and embrace what my learned friend, Ms Eastman, said yesterday about taking account of the severity of a measure in the proportionality analysis, or however one labels it, required by section 8.  Further, in relation to, for example, academic assistance schemes of the kind your Honour the Chief Justice raised, such a scheme involves no compulsion.  It involves no criminalisation, and is quite different.  So naturally it requires a far lesser degree of justification.

Secondly, my friend for the respondent sought to argue that because we did not challenge whether the liquor restrictions were within the statutory power we must be taken to concede there were reasonable grounds for the Minister being satisfied of the potential for harm, by reference to the purpose stated in 173F. 

My client was charged with a criminal offence.  This is not a judicial review case.  She was entitled to choose to rely on the RDA as her defence and to have it applied in terms.  In any event, the standards of an administrative law challenge, if I can use that label, involve quite different processes of reasoning to what is involved here.

There is a significant difference, in our submission, between the question of whether a minister could reasonably be satisfied of something – an administrative law question – and whether or not a measure was proportionate to achieving the sole purpose of a goal for adequate advancement and so forth. 

My learned friend, I think in the written submissions, referred to this Court’s judgment in SZMDS (2010) 240 CLR 611 as Justice Gummow and your Honour Justice Kiefel said in that judgment in dissent, but I am sure not controversially, with respect, at paragraph 27, no issue arose in that case relating to proportionality. It is quite a different sort of issue.

The Commonwealth sought to argue that this measure is about achieving substantive equality.  In our respectful submission, this law is profoundly unequal in its operation.  It criminalises a common human matter for, and only for, 18 indigenous communities.  The respondent sought to contrast these measures flatteringly with the 1897 law directed to the supply of alcohol and opium to aboriginal persons.  One does not want to overstate things, nor to cause any offence, but there is an element of history repeating itself.  The law here is of much the same practical effect for the people of Palm Island as that law. 

As your Honour Justice Bell noted this morning the preamble to that Act, although directed mainly to opium and not on my quick reading to alcohol, although so limited was still expressed in terms redolent of the terms employed here.  Now, that is not to say and we do not say that no such measure can be justified and we expressly said in paragraph 3 of our written submissions and I repeat here now, my client does not dispute that some alcohol management provisions or plan are appropriate for Palm Island, but there is a whole wide range of different potential plans.

The premise of the RDA and the Convention is that laws should not operate differentially based on racial distinctions with only rare exceptions.  His Honour Justice Brennan made a similar point in a slightly different context in Gerhardy at 127 at about point 5. Exceptions require careful justification. In that regard, the respondent sought to found the answer on Justice Fitzgerald’s Cape York Study, and my learned friend said at T3488 the findings relating to alcohol and violence in that area that:

findings of that kind that are, by this stage . . . notorious.

I cut out a few irrelevant words there.  How far does this purportedly notorious fact travel?  Seemingly at least the hundreds of kilometres from Cape York to Palm Island, as far as Brisbane, Mount Isa, Uluru, the Kimberley.  What Justice Fitzgerald found had occurred in Cape York is no basis for generalising about other indigenous communities such that no further consideration is needed of the existence, extent and appropriate response to particular problems in particular indigenous communities.

I am sure my learned friend did not mean to suggest this, and I do not say that he did, but for anyone to make an assumption that all indigenous communities are wracked with the same sorts of problems with alcohol or with violence or with their treatment of women and children is insupportable.  It is directly contrary to the spirit of the Convention.  It is the sort of generalisation which has not served Australia well in its treatment of its indigenous population. 

It should not be assumed further that communities that do have difficulties always oppose management plans.  For the 18 that were in place in 2008, I am instructed many were sought by local representative bodies, including local councils.  We do not dispute Palm Island has significant difficulties.  This Court has seen some of those in other cases.  That said we do not dispute some form of plan is appropriate, but here a relatively onerous plan has been adopted, more onerous than employed in many other of the 18 indigenous communities. 

Our question is why?  What is the evidence to support the claim that this measure is necessary to achieve the advancement of rights, even of women and children, in Palm Island?  We dispute the Commonwealth’s submission that it is not necessary to focus on less restrictive means.  We say that submission is inconsistent with the notion of necessity, sole purpose, referred to in Article 1.4, and the international recognition, for example, in general recommendation No 32 that this picks up proportionality. 

My learned friend, the Solicitor‑General for Queensland, conceded in answer to a question from your Honour Justice Gageler that this measure was a piece of significant subordinate legislation for the purposes of the Legislative Standards Act 1992. That being so, section 24(1)(g) of that Act indicated that an explanatory note for such a measure must include certain information in clear and precise language, including:

if appropriate, a brief statement of any reasonable alternative way of achieving the policy objectives (including the option of not making subordinate legislation) and why the alternative was not adopted –

Now, it is qualified by the beginning words “if appropriate”, but in this case there were other possible measures available, namely, the degree of severity of the plan, there being a range of responses for the various communities. 

In the explanatory note in question, save for a reference to compromise of the kind your Honour Justice Bell referred me to yesterday, there is no, as we see it, express direction to consideration of alternatives.  It is not too much, contrary to the submissions of the Western Australian Solicitor‑General, to ask that such matters be considered and addressed prior to introducing measures which have prima facie a racially discriminatory effect.

The respondent complained yesterday that it was not clear till this Court that all aspects of proportionality were at issue, including less restrictive means.  Even if that is so, the respondent will have read Gerhardy as closely as we did and will have seen what members of this Court said about proof in this Court of relevant statutory facts, as they were called. 

The respondent has had ample opportunity to put before this Court any credible material it could find in support of these measures.  Apart from the explanatory note and the reference to Justice Fitzgerald’s study it has put none, and that absence of evidence, in our respectful submission, tells a story as to the level of separate careful consideration that was given to this measure, its necessity, its appropriateness, its likely efficacy in Palm Island.

The Solicitor‑General for Western Australia was wrong to suggest this morning that my oral submissions yesterday departed from our written submissions.  I simply refer your Honours to paragraphs 50 to 61 of our written submissions.  The West Australian Solicitor‑General was wrong to

suggest that what is recited in the explanatory note – insofar as he meant suggest – is to be treated in some way as proof of facts.  That can no more be an answer here than was reference to the preamble in the Communist Party Case.

As to what consultation requires, without taking your Honours to it, can I refer your Honours to what we say in our primary written submissions at paragraph 58 for some international guidance where it has been considered?  The Commonwealth Solicitor‑General said this morning something along the lines of presumably this measure would be accompanied by resources for community support – I did not get the exact words.  There is not a shred of evidence for that.  In fact, the explanatory note notes under the heading, “Estimated cost of government implementation”:

Any expenditure associated with the implementation of the regulation will be met through existing budget allocations –

which does not suggest any additional funding.  In relation to the point raised by your Honour Justice Crennan about permits, your Honour will note that – at least as I understood it – it has been no part of the respondent’s defence to say that these issues would be solved or are meant to be solved or ameliorated by the possibility of granting permits and, as I put yesterday, given the clear policy that is sought to be employed for Palm Island and the other indigenous communities of restricting alcohol, generically and across the board, one could well infer that it was not likely that any generous approach would be taken to the grant of individual exclusions under 103L and 103M.  Unless there is anything further?

FRENCH CJ:   Thank you, Mr Kirk.  The Court will reserve its decision.  The Court will now adjourn to reconstitute for the next matter.

AT 11.47 AM THE MATTER WAS ADJOURNED