Maloney v The Queen
[2012] HCATrans 342
[2012] HCATrans 342
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 TUESDAY, 11 DECEMBER 2012, AT 10.15 AM
Copyright in the High Court of Australia
MS C.A. RONALDS, SC: May it please the Court, I appear for the applicant with my friends, MR J.K. KIRK, SC, MS S.E. PRITCHARD, SC and MR A.L. McAVOY. (instructed by Aboriginal & Torres Strait Islander Legal Service (Qld))
MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear for the respondent with my learned friends, MR S.A. McLEOD and MR A.D. SCOTT. (instructed by Crown Solicitor (Qld))
MR J.T. GLEESON, SC, Acting Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with my learned friends, MR C.L. LENEHAN and MS F.T. ROUGHLEY, for the Attorney‑General of the Commonwealth, intervening. (instructed by Australian Government Solicitor)
MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR M.J. WAIT, for the Attorney‑General for South Australia, intervening. (instructed by Crown Solicitor (SA))
MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia: If it please the Court, I appear with my learned friend, MR C.S. BYDDER, for the Attorney‑General of Western Australia, intervening. (instructed by State Solicitor (WA))
MS K.L. EASTMAN, SC: May it please the Court, I appear for the Australian Human Rights Commission, seeking leave to intervene. (instructed by Australian Human Rights Commission)
FRENCH CJ: Do you seek leave to intervene as a party or as an amicus?
MS EASTMAN: Well, either, your Honour, but the Act provides that the Commission may seek leave to intervene as a party with the Court’s leave, but alternatively, if the Court thinks it is appropriate that the Commission appear as amicus then the Commission is content to take that course as well.
FRENCH CJ: Your preference is to intervene as a party?
MS EASTMAN: It is.
FRENCH CJ: You will have that leave. I should say that in the event that you seek to make any oral submission to supplement your written submissions we will want you to first state succinctly the point you would seek to make that differs from those of the appellant.
MS EASTMAN: Yes, your Honour.
FRENCH CJ: Thank you.
MS M.J. RICHARDS: May it please the Court, I appear with my learned friend, MS S.M. FITZGERALD, for the National Congress of Australia’s First Peoples Limited, seeking leave to appear as amicus. (instructed by Human Rights Law Resource Centre Ltd)
FRENCH CJ: Ms Richards, you will have leave on the same basis as I have indicated to Ms Eastman in relation to any oral submissions you might wish to put.
MS RICHARDS: May it please the Court.
FRENCH CJ: Yes, Ms Ronalds.
MS RONALDS: Your Honour, at page 158 of the appeal book, there is an amended notice of appeal that was filed. It has a modest amendment in relation to costs.
FRENCH CJ: Ms Ronalds, the respondent seeks leave to file a notice of contention out of time. Do you have any objection to that?
MS RONALDS: Not to it being filed out of time, no, your Honour.
FRENCH CJ: Mr Solicitor, you have that leave. Yes.
MS RONALDS: As your Honours are aware, this is an appeal from a decision of the Queensland Court of Appeal and it involves two main provisions of the Racial Discrimination Act – section 10 – the right to equality before the law and section 8, particularly section 8(1) – an exception in relation to special measures.
The appellant contends that the Court of Appeal made two errors: firstly, that his Honour Justice Chesterman, with Justice Daubney agreeing, in finding that there was no breach of section 10 of the RacialDiscrimination Act and while their Honours agreed at paragraph [84] – and that is at appeal book 122:
that the impugned provisions were discriminatory on the ground of race –
they found no right in Article 5 of the Convention on the elimination of all forms of racial discrimination was infringed and, hence, they found section 10 was not engaged. The second error, we contend, is that all members of the Court in finding that the liquor restrictions were special measures within the meaning of section 8 of the Racial Discrimination Act were in error.
A short history of Palm Island, which I will not take your Honours to, but it is conveniently summarised in Clumpoint v Director of Public Prosecutions [2005] QCA 43 at footnote 1 and that explains the history of forced removals to the island from around Queensland. Paragraph 1 of that decision explains some events in 2004 which led to this Court’s recent decision in Wotton v Queensland (2012) 285 ALR 1, where at paragraphs 4 and 5 some further history of Palm Island is set out.
In relation to the criminal conviction, on 31 May 2008, Joan Maloney was arrested and charged – and this is at appeal book 2 – with an offence under section 168B(1) of the Liquor Act 1992, and I will take your Honour shortly through the provisions of the Liquor Act. She was charged with being in possession of an amount of liquor in excess of the prescribed quantity in a public place, namely Palm Island, within a restricted area declared under section 173H of the Liquor Act 1992, namely Palm Island. She was convicted on 27 October 2010 in the Palm Island Magistrates Court and fined $150 or, in default, one day imprisonment, and that is at appeal book 6.
FRENCH CJ: Now, she did not enter a plea, she did not appear. It was done on the basis of what were said to be agreed facts.
MS RONALDS: Yes, and those agreed facts are at appeal book page 4. That conviction was upheld initially by the District Court and then by the Queensland Court of Appeal and that, of course, is the decision that brings us here today. We contend that the charge and conviction for an offence against a law which, in its practical operation and effect, imposes a discriminatory burden or prohibition directed to persons of a particular race – here, Aboriginal persons – engages section 10 of the Racial Discrimination Act.
As to the special measures exception in section 8, none of the submissions has identified a single instance in any other jurisdiction where a law criminalising the conduct of persons identified as the beneficiaries of a measure or where in law imposed contrary to the wishes of the representative institution of the so‑called beneficiaries has been sought to be defended as special measures within the meaning of Article 1, 4 or 2.2 of the Convention.
FRENCH CJ: You say that section 10 is engaged by operation of section – in that aspect of its application which brings into play section 109 of the Constitution in relation to the State law.
MS RONALDS: Yes, your Honour. And, we say, that Schedule 1R – and I will take your Honours to the specific provisions in a moment – is an invalid provision because of the operation of section 10.
FRENCH CJ: Because of section 109.
MS RONALDS: Because of section 109, yes. I am sorry, your Honours, I have neglected to say at the beginning that in terms of our short outline, I will address the Court on paragraphs 1 to 7 and my learned friend, Mr Kirk, will address on the issues of rights and special measures. I hope that will be convenient to the Court.
FRENCH CJ: Very well.
MS RONALDS: In relation to – and this is just a general summary – section 8, neither the respondent nor any of the Attorneys have explained how criminalising the conduct of a 55‑year‑old woman pensioner without any criminal record could be contended to be securing her adequate advancement or that of Palm Island community. Rather, we contend it shows that the operation of the law has a detrimental impact on Ms Maloney and many hundreds of other persons who had criminal convictions recorded due to the possession of alcohol on Palm Island or whose cases are on hold pending the outcome of these proceedings.
If I could take your Honours to the terms of section 10 of the RacialDiscrimination Act. ? The heading is “Rights to equality before the law”, although those exacts words do not appear in the terms of section 10(1). Section 10(1) provides:
If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory –
and here we are addressing a law of a State, obviously -
persons of a particular, race, colour or national or ethnic original do not enjoy a right that is enjoyed by persons of another race . . . or enjoy a right to a more limited extent than persons of another race . . . then, notwithstanding anything in that law, persons of the first‑mentioned race . . . shall, by force of this section, enjoy that right to the same extent as persons of that other race -
In this instance, we identify the race of being indigenous Australians, sometimes referred to as Aboriginal and Torres Strait Islanders, particularly for Queensland. Of course, Congress has started to promote the use of the term “Australia’s first peoples”.
FRENCH CJ: It is not in dispute that something of the order of 97 per cent of the population of Palm Island are indigenous people.
MS RONALDS: Yes, your Honour, I understand there is no dispute about that. The Court of Appeal used the term “overwhelming majority of the population”. So, as a starting point, we say that the provisions in the Liquor Act and Schedule 1R of the Liquor Regulations are not facially neutral or racially neutral as has been put against us.
To adopt the respondent’s position and that of the Commonwealth Attorney and the South Australian Attorney, who concur, is, we say, to ignore the factual circumstances of the enactment of the provisions which are clearly aimed only at indigenous communities. No non‑indigenous communities are included. We say that the parliamentary record is clear on that part. If I could ask your Honours to turn to the explanatory note for the Indigenous Communities Liquor Licences Bill 2002. We say that the name itself clearly sets out the objective of the provision. Do you have that, your Honours?
FRENCH CJ: Yes.
MS RONALDS: You will see the objectives of the Bill on page 1 start with a clear statement that:
The objective of the Bill is to prevent harm in Indigenous community areas caused by alcohol abuse and misuse and associated violence –
and then sets out in brief form what the Bill will do. Over the page, at page 2 in the third substantive paragraph, it sets out that:
The Bill makes a range of amendments to the Liquor Act1992 to provide the mechanisms to implement the necessary control on alcohol in Indigenous communities. The key mechanisms in the Bill are the declaration of limits on carrying and possessing alcohol in restricted areas, and the ability to impose new licence conditions on licensed premises in and adjacent to Indigenous communities. The advice of community justice groups will be central in determining the particular controls that will be put in place. It is anticipated that Alcohol Management Plans developed by community justice groups in conjunction with members of their communities will be the primary source of guidance in implementing the alcohol controls.
Further, and I will just briefly refer to – if one turns to page 17 of the explanatory note, you will see there it sets out what clause 64 intended to achieve and over the page clause 66 was inserting a new Part 6A. So clause 64 is relating to what became section 168B of the Liquor Act, setting the provisions, and then Part 6A set up the mechanism for the declaration of restricted areas. Importantly, we say, there is no reference in the explanatory note or the second reading speech, which was handed to your Honours this morning, that this is a special measure under the Racial Discrimination Act.
FRENCH CJ: Does that matter?
MS RONALDS: We say that it is just one factor that your Honours will take into account ‑ ‑ ‑
FRENCH CJ: How?
MS RONALDS: There appears to have been no consideration or certainly not anything that was considered sufficient to address.
FRENCH CJ: But how does it inform characterisation?
MS RONALDS: We say that the reliance on special measures arose only after there was a challenge to the provisions in relation to the Racial Discrimination Act and it was not a matter that the legislature took into account and it was not part of their intention at the time that the legislation and the package was enacted.
HAYNE J: What is the legal consequence that you attribute to that? Assume it to be right, what follows?
MS RONALDS: In and of itself probably nothing. It is just one of the factors we say that are relevant when one is assessing whether it is a special measure or not and whether it can be properly categorised as a special measure. If I could then ask your Honours to turn to the provisions of the Indigenous Communities Liquor Licences Act, and the provisions were inserted into the Liquor Act in 2002 and they were the same provisions that were still in operation in March 2008 when Ms Maloney was charged.
When one turns to page 33 of the Act, you will see that section 168B has been inserted headed “Prohibition of possession of liquor in restricted area” and then in subsection (1) it sets out that:
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.
Section 168(2) sets out the maximum penalties. If one then turns to page 35 of the Act, you will see it inserts Part 6A headed “Restricted areas”. The purpose of Part 6A is at 173F and 173G then authorises regulations declaring an area to be a restricted area and subsection (2) says that:
Without limiting subsection (1), a community area, or part of a community area, may be declared to be a restricted area.
FRENCH CJ: Now just before we go further into that, there is already in place a Part 6, is there not, in Division 4 which relates to consumption of liquor in certain public places which includes a prohibition on the consumption of liquor in land owned by or under the control of a local government, et cetera. I notice that is not defined but the Palm Island – that is under the authority of a local council?
MS RONALDS: Yes.
FRENCH CJ: Which has statutory support? Is that a local government for the purposes of 173B?
MS RONALDS: There was a separate provision at this time. In 2009, the Local Government Act was amended and it was all brought together but until then indigenous communities had specific legislation for local government called the Local Government (Community Government Areas) Act and that applied only to the discrete indigenous communities and they had different and a lesser role in terms of powers that they could execute compared to non‑indigenous local government.
FRENCH CJ: Just to cut to the chase, 173B(1)(a), did that apply to public places on Palm Island?
MS RONALDS: Not as I understand it. It did not at that stage. There were other provisions that had come through the Land Act about declaration of dry areas in Aboriginal communities that applied.
FRENCH CJ: The general prohibition on drinking in public places did not apply?
MS RONALDS: No, your Honour. The Liquor Act – the community area that was defined in Part 6A which applied as I have indicated only to indigenous areas meant a community area under the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984, so there were two parallel systems until 2009 when they were brought together. There were quite different powers for the local government, what was then called the Palm Island Aboriginal Shire Council, to operate.
There were some changes in 2004 to the Local Government (Community Government Areas) Act which provided for declarations and to new councils and that was when the Palm Island Shire Council was created and prior to that it was Palm Island Aboriginal Council and it operated under a deed of grant in trust. There was a deed of grant in trust for the 10 islands that form the Palm Island group. It was a trust pursuant to Chapter 3 of the Land Act. So, there were also at the time – it is a bit messy – but there was also at the time a Community Services (Aborigines) Act and a Community Services (Torres Strait) Act. They all operated together so that ‑ ‑ ‑
FRENCH CJ: Anyway, the answer to my question is that there was not a - you say there was no general prohibition against drinking in a public place on Palm Island?
MS RONALDS: Not under that part of the Liquor Act but there was under by‑laws that were made by the Palm Island Aboriginal Council.
FRENCH CJ: Yes, all right.
MS RONALDS: They were the by‑laws that were enacted under the provisions of the Land Act in a later amendment. So that those by‑laws operated - they regulated alcohol on Palm Island from 2004 until Schedule 1R was added in June 2006 and then section 27 of the then Local Government Act 1993, in effect, is a 109‑type provision. Where the State law conflicts with a by‑law it overrides a local law and so that those – the by‑laws themselves have not been enforced because of the provisions of Schedule 1R.
So returning to Part 6A, there can be a declaration for a prohibition of possession of liquor in restricted areas. Then 173I has requirements for “Consultation with community justice groups for declarations”, and you will note subsection (4) says that:
However, failure to comply with subsection (2) or (3) does not affect the validity of a regulation made for the subsection.
As part of the amendments enacted in 2002 there was the Liquor Amendment Regulation (No 2) 2002, and it set up the broader structure for the provision in regulation 37A for the declaration of restricted areas, enacting the power in section 173G(1), and then a declaration of prohibition of possession of liquor in restricted areas, enacting the regulation to sustain the provision in 173H.
At that stage, when that was amended in December 2002, the first schedule was enacted, which was Schedule 1A, which was for Aurukun which is a community on Cape York, to have zero alcohol. During the course of 2003 there were various further amendments to the liquor regulations and a further 16 indigenous communities were added to the schedule in ones and twos, finishing with Schedule 1Q at Mapoon.
The next amendment was the amendment that covered Palm Island, and that was in 2006, and if I could ask your Honours to turn to the Liquor Amendment Regulation (No 4) 2006, and this is the provision that we say through the operation of section 109 and section 10 of the Racial Discrimination Act is the invalid provision. You will see it provides only for Palm Island, and it commenced on 19 June 2006. It then described the area to be declared as the restricted area which, in essence, is the public space of the island, and then it set out the prescribed quantity of alcohol “other than the canteen” and:
for beer in which the concentration of alcohol is less than 4% ‑
that is described as a low and mid strength beer and “11.25L” is one carton of cans, and ‑
for any other liquor – zero.
Then there are some provisions for the canteen which were in operation then but no longer operate, and there have been two amendments to Schedule 1R in 2008 which do not really – the references to canteens has been removed, but the primary provision in 2(1) remains in relation to light and mid strength beer only and a limited quantity.
FRENCH CJ: Now, the restriction does not apply to possession of liquor in private homes on Palm Island?
MS RONALDS: No, your Honour, but unless you have it left over from prior to June 2006 you are not able to get it to your house.
FRENCH CJ: What about section 168B(3A) - I am not quite sure whether that applies?
MS RONALDS: It only applies – it was not there in 2008, it was added later, your Honour. There is what is called a sports bar and bistro on Palm Island ‑ ‑ ‑
FRENCH CJ: I am just looking at the case of a person travelling say from – conveying alcohol from a place outside Palm Island to their home on a public road on Palm Island.
MS RONALDS: No, they cannot, your Honour.
FRENCH CJ: They are not saved by (3A), or do you say that is after the event?
MS RONALDS: That is after the event and it is only for persons in the particular situations. It is for persons where it is carried - do you see it says by “a carrier”. It is so that deliveries can be made. There is a bar ‑ ‑ ‑
FRENCH CJ:
subsection (1) does not apply to the possession of liquor by a person, other than a carrier . . . travelling in a vehicle on a public road prescribed under a regulation if –
because there are other provisions relating to carriers.
MS RONALDS: Yes, your Honour. That was not in the 2008 provisions, your Honour. It was added later. So you can drive from the ferry – there is a bistro and bar on Palm Island that has very limited licensing hours and that permits someone to drive it. The only way you could have it lawfully in your house is if a helicopter dropped it on your veranda or you had it left over from 2006. In this very case, she was arrested in the car on the road – on a public road. There is a deeming provision that if you are the driver of the car you are deemed to be in the possession of the alcohol, unless somebody else in the car says that they are – in effect, puts their hand up to the possession.
So Cherbourg was then added in 2008 as Schedule 1S and no other communities have been added to the schedule since. So what we say is that all the communities listed in Schedule 1A to 1S and in particular 1R are indigenous communities and that, we say, gives rise to the proviso in relation to race.
If I could then turn to section 10 and, in our submission, section 10 is engaged. In relation to the respondent’s notice of contention, we say that the Court of Appeal was correct and there is no basis to overturn that part of their decisions. The Queensland Court of Appeal found in this case that the liquor restrictions were discriminatory on the ground of race. If I could ask your Honours to turn to page 122 of the appeal book where his Honour Justice Chesterman’s decision is set out, and at paragraph [84] he said that:
All the members of the Court agreed –
in Morton, which was an earlier case about the same provisions –
that the impugned provisions were discriminatory on the ground of race. It is pointed out that their effect is to prohibit the inhabitants of Palm Island from possessing more than a specified type and quantity of alcohol. The inhabitants of Palm Island are overwhelmingly Aboriginal so that the legal and practical effect of the legislation is to restrict possession of alcohol by members of a group who are identified, by the fact of their residence, as Aboriginal. There is no reason in this application to depart from that opinion.
Her Honour the President agreed at page 96 of the appeal book in paragraph [9] of her decision. However, his Honour Justice Chesterman went on to find that there was no Article 5 right engaged and hence there was no breach of section 10. In so finding, as he has indicated, the court followed the earlier case of Morton v Queensland Police Service (2010) 271 ALR 112 where her Honour the President addressed the matter at page 114, paragraph [5] and his Honour Justice Chesterman at page 129, paragraph [54]. We say that these conclusions are unremarkable in the light of the clear targeting of indigenous communities by the legislation, as we have indicated earlier.
HAYNE J: Sorry, what conclusions are unremarkable?
MS RONALDS: That there was race discrimination by the identification of Palm Island, that the inhabitants of Palm Island are overwhelmingly Aboriginal, and 1R is directed at Palm Island. We say it is not the physical location or the residence, as the respondent apparently seeks to contend, that is the true discriminant. We say this ignores the impact and operation of section 168B, Part 6A and Schedule 1R, which is a burden to an indigenous community only.
Palm Island is recognised by the Queensland Government as a discrete indigenous community and we say the record does not need to demonstrate the precise number or proportion of indigenous and non‑indigenous persons living on Palm Island. This much is reflected by the Queensland Court of Appeal recording that Palm Island was overwhelmingly indigenous and elsewhere it is referred to as having 97 per cent.
GAGELER J: Ms Ronalds, may I just ask, for the purposes of section 10, what do you identify as the law of the State?
MS RONALDS: Schedule 1R. We make no comment about the other schedules except I have referred to them just to give you the background of how the system came into the operation, through the operation of section 168B, Part 6A and then the two regulations, 37A and 37B. They are underpinning to Schedule 1R but it is Schedule 1R itself which we say is the law to which section 10 refers.
We say that the approach to section 10 as set out by the plurality in Western Australia v Ward (2002) 213 CLR 1, if I could take your Honours to that, per the Chief Justice, Justices Gaudron, Gummow and Hayne at pages initially 99 and 100. You will see at paragraph 104 they set out the provisions of section 10 and then at paragraph 105 on page 99 their Honours set out in detail a discussion about section 10, starting with:
A number of points may be made at once. First, the sub‑section does not use the word “discriminatory” or cognate expressions. Yet these terms are used throughout the authorities in which s 10(1) has been considered. That to which the sub‑section in terms is directed is the enjoyment of rights by some but not by others or to a more limited extent by others; there is an unequal enjoyment of rights that are or should be conferred irrespective of race –
et cetera. They then go on to set out what they considered to be the relevant matters. Paragraph 106 is perhaps less relevant because it looks at land. But, paragraph 107 says:
This may be contrasts with the case where the State law in question imposes a discriminatory burden or prohibition.
That is what we say applies in these circumstances and then a quote from his Honour Justice Mason from Gerhardy v Brown which, of course was the last time that this Court considered the special measures in this particular sort of way in such depth. If one then turns to paragraph 115 of the decision, their Honours said:
In determining whether a law is in breach of s 10(1), it is necessary to bear in mind that the sub‑section is directed at the enjoyment of a right; it does not require that the relevant law, or an act authorised by that law, be “aimed at” native title, nor does it require that the law, in terms, makes a distinction based on race. Section 10(1) is directed at “the practical operation and effect” of the impugned legislation and is “concerned not merely with matters of form but with maters of substance”. Mason J in Gerhardy put the matter this way:
“[Section] 10 is expressed to operate where persons of a particular race, colour or origin do not enjoy a right that is enjoyed by persons of another race, colour or origin, or do not enjoy that right to the same extent.”
HAYNE J: Well, it is 116 that is then next relevant, is it not?
MS RONALDS: Yes, your Honour.
HAYNE J: How do you say and what is the content of identifying and making the comparison between respective rights? What are the rights? What is the comparison, et cetera?
MS RONALDS: We say the comparison, for the purpose of section 10, is an Aboriginal person living on Palm Island as compared – in a public place on Palm Island, sorry – to a non‑Aboriginal person living in a public place elsewhere in Queensland, not being one of the other 17 communities listed in the schedules to the Liquor Act.
HAYNE J: I am not sure that that grapples entirely with what is said in 117 or grapples entirely with section 10.
MS RONALDS: Hopefully Mr Kirk will be able to assist, your Honour.
HAYNE J: Very well.
MS RONALDS: We say that it is clear, as this Court has held, that the racial distinction does not have ‑ ‑ ‑
HAYNE J: Can I just say this?
MS RONALDS: I am sorry.
HAYNE J: This seems to me to be the entry point to the debate, not the exit point. This is the entry point for the debate, is it not?
MS RONALDS: Yes, your Honour. We say that it is clear that the racial distinction does not have to be in the terms of the law itself, as it is not here. But, as this Court has frequently noted, the task of statutory construction must begin with the consideration of the task itself as was repeated in this Court’s decision last week in Commissioner of Taxation vConsolidated Media Holdings [2012] HCA 55 at paragraph 39, where it was referred that:
“This Court has stated on many occasions that the task of statutory construction must begin with the consideration of the [statutory] text . . . That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.
FRENCH CJ: Well, having said all that, what does that lead you to say about section 10?
MS RONALDS: What we say about section 10 is that when one looks at the history of the amendments, their name – the clear focus that they were to indigenous communities – then we say that that point gives rise to the initial part of the engagement process of section 10 by the identification of a clear indicia of race.
FRENCH CJ: Well, you are talking about the impugned law. I am just asking about what, if anything, the references you have just made have to say about the construction of section 10, or was it not directed to that at all?
MS RONALDS: No, your Honour, it was about that. In was in relation to what we say is concerns about the generic notions of discrimination and how some of our friends have sought to rely on provisions in discrimination laws which, we say, are not applicable to the reading of section 10. They have sought to import – and I will take your Honours to this in a moment, but the provisions of direct and indirect discrimination from the other discrimination laws, that is, the age, disability and sex discrimination provisions which are different to the Racial Discrimination Act. We say that there is no basis upon which one would incorporate the provisions, for example, of direct discrimination.
If one looks at what this Court addressed in Purvis, if I could ask your Honours to turn to the terms of Purvis. In her submissions, the Commonwealth Attorney has referred to the provisions of direct discrimination in the Disability Discrimination Act as it was considered by the Court in Purvis v New South Wales (2003) 217 CLR 92 to be matters that should be taken into account. We say that there is nothing on the face of section 10 which permits it to be read in such a limited way and that the comparison that arises in relation to direct discrimination has a number of factors that are tied into it that are not present by the construct of the comparator in the section 10 circumstances.
If one turns to the decision of their Honours Justice Gummow, Hayne and Heydon at page 153 at paragraphs 198 and 199, there their Honours make the distinction between sex and race discrimination and disability discrimination where they say at the top of page 154:
A central purpose of each of those Acts is to require that people not be treated differently on the ground of sex or race. Difference in sex or race is identified as a generally irrelevant consideration.
By contrast, disability discrimination legislation necessarily focuses upon a criterion of admitted difference.
They then go on to address what they say is the – so, we say, that the notion of disability in and of itself is problematic but, more particularly, we say, if one turns to paragraph 213 at page 158 of their Honours’ judgment, you will see it very clearly addresses the proviso – the terms of section 5(1) as it existed at that time where it:
requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give . . . “in circumstances that are the same or are not materially different”.
Then, at the end of the paragraph they talk about the comparator. We say that that direct discrimination provision in the Disability Discrimination Act is not appropriate to read into the context of section 10, that it includes many statutory terms that are, we say, not relevant to the assessment of the operation of section 10.
Similarly, in relation to indirect discrimination – I am sorry, I should say that for historical reasons the Racial Discrimination Act is out of step with the other – or currently out of step, though there is a current proposal to consolidate them, so that section 9(1) of Racial Discrimination Act which is its indirect discrimination provision is different and does not have those same ‑ ‑ ‑
FRENCH CJ: You say that section 10(1) applies to operational discrimination?
MS RONALDS: Yes.
FRENCH CJ: How does it work in this case? Just looking at the words of the section and applying it to the prohibition which is enlivened through Schedule 1R, how does it apply in this case?
MS RONALDS: We say that it imposes a burden or prohibition on the activities of Aboriginal persons on Palm Island and, in particular, Ms Maloney, that leads her to have her conduct criminalised where in other parts of Queensland, that is, a person of another race, non‑Aboriginal person in another part of Queensland, would not carry such a burden.
FRENCH CJ: But why do we put to one side the proposition – I am not advancing this as an expression of my own view, but just to understand your argument – why does one put to one side the proposition that this law applies equally to Aboriginal and non‑Aboriginal persons on Palm Island?
MS RONALDS: We say that to do that is to ‑ ‑ ‑
FRENCH CJ: In terms of the text of section 10, how do you use the terms of section 10 to put to one side that proposition?
MS RONALDS: We say that when one looks at what the law is that one must be careful about how one constructs what the law is, the actual definition of it, and we say that the law is an indigenous targeted law only and that that arises because of its legislative history.
FRENCH CJ: But you are concerned with its operation, are you not, its operational discrimination that is the issue as far as you are concerned?
MS RONALDS: Yes, and we can see that there may be a non‑Aboriginal person arrested on Palm Island for being in possession of alcohol, but we say that that does not undermine or take us outside the operation of section 10 because of the way that the law itself is targeted to indigenous communities, that is, that one must look at the way - the practical intent of the legislation is that it is focusing only on Aboriginal communities. It is not focusing on alcohol in the community generally. There are other laws that do that and we say they are the ones that should apply in Palm Island as elsewhere and that there should not be special targeted laws which criminalise conduct that would not be criminalised in other circumstances – in other places.
GAGELER J: The passages you took us to from Ward were all about the effect of the law.
MS RONALDS: Yes.
GAGELER J: How do you use those passages?
MS RONALDS: We say that the substantial effect of the law is on Aboriginal persons in Palm Island because they are 97 per cent of the population.
GAGELER J: How do you use purpose?
MS RONALDS: Well, the purpose we say is that then we go back to ‑ ‑ ‑
GAGELER J: I am just trying to understand the different concepts and how you employ them.
MS RONALDS: The purpose we say is that the legislature’s intention at the time of enactment was to deal with what identified particular problems in particular communities. So we rely on the effect of it in real terms on the communities to which it was targeted. Before I hand over to Mr Kirk, if I could just identify in terms of the indirect discrimination provisions that this Court has looked at indirect discrimination on three major occasions - in Waters v Public Transport Commission in 1991; Australian Iron and Steel v Banovic in 1989; and State of New South Wales v Amery in 2006.
A reading of any of those decisions will show the complexity of the indirect discrimination provisions which we say just cannot be incorporated into the terms of section 10 as they have no application and no work to do and they would unreasonably and unfairly restrict that provision in a way that was not intended by the operation of section 10. If I could just hand to Mr Kirk.
FRENCH CJ: Yes, very well. Yes, Mr Kirk.
MR KIRK: Thank you, your Honour. Your Honours, we respectfully adopt what your Honour Justice Hayne said that the entry point in relation to analysis here must begin with section 10(1) and must begin with a comparison of enjoyment of rights. What section 10 requires is a consideration of whether by operation of the law or by its purpose:
persons of a particular race, colour or national or ethnic origin do not enjoy a right . . . or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin –
It involves a comparison in relation to the enjoyment of rights. That necessarily then turns one to identification of what the rights are and identification of how those rights are or are not enjoyed or enjoyed to a lesser extent between two racial groups, if I can use race as a shorthand for all elements.
The rights we rely on here are derived from Article 5 of the Convention. Section 10(2) of the Act says that that is an inclusive – that is not an exhaustive but an inclusive set of rights. It is sufficient for our purposes to rely on three of the rights in Article 5, namely that in 5(a):
(a)The right to equal treatment before the tribunals and all other organs administering justice;
. . .
(d)Other civil rights, in particular:
. . .
(v)The right to own property alone as well as in association with others –
. . .
(f)The right of access to any place or service intended for use by the general public such as . . . hotels –
I will focus my submissions on the right to property, though we rely on the other two as well. In relation to – but if I can come back to your Honour the Chief Justice’s question as to how we say there is a differential degree of enjoyment of rights between persons on Palm Island and persons elsewhere, we say as we identify in paragraph 7 of our reply that the relevant comparison, in our respectful submission, is between an Aboriginal person in a public place on Palm Island and I would add to that the words “resident there”, that is to say, resident in Palm Island and, on the other hand, a non‑Aboriginal person in a public place and who is resident elsewhere in Queensland without, of course, being a similarly restricted indigenous community.
The lack of enjoyment is that, whereas, on Palm Island it is a criminal offence for anyone to possess a bottle of bourbon or a bottle of rum, as Ms Maloney did, there is no such criminal offence elsewhere for the greater part in Queensland. One then needs to tie that to race. As my learned leader has said, by reference to authority, the overwhelming proportion of residents in Palm Island are Aboriginal people. It is overwhelmingly an indigenous community, those people live there.
It is a characteristic of residing in a place, by definition, that one generally spends a significant proportion of one’s time there. The practical effect of this measure is that for people living on Palm Island, predominantly indigenous, for the greater part of their lives, it is a criminal offence to do what most of us do – or that many of us do from day to day which is to have a drink, other than light beer or to possess anything more than a very limited quantity of that light beer.
GAGELER J: Would your argument be any different if the restriction was imposed by a local government by‑law?
MR KIRK: It would depend, as with all such arguments, on analysis of the circumstances – issues of fact and degree arise. So, first, one would have to look at the population. But, let us take Palm Island and say Palm Island and the shire council impose such restrictions. One of the relevant issues in characterisation is what is the scope of power of the enacting body and if the enacting body only has power for a particular area and uses all of its power to implement a measure - I am not saying that would be definitive but it would be a relevant issue, just as one cannot compare what Queensland has done to what New South Wales has done and say, well, because it is not the law in New South Wales, therefore, it is discriminatory in Queensland. One has to look at the source of power that is being exercised as part of the judgment.
But, it may also be – it would be a hard question in relation to Palm Island – that, let us say, a local council and, let us say – your Honour’s question does not, perhaps, raise this – but let us say it is a local council which has been subject of much criticism and is perhaps not terribly representative and introduces such a measure. There would still be room to argue about whether it was discriminatory in a practical effect and one may then be driven to an analysis of special measure, taking account of all the circumstances. But I accept, as I put to begin with, that it is a relevant consideration as to the extent of the power that is being exercised.
GAGELER J: Relevant to the comparison you say is required by section 10?
MR KIRK: Yes, and that is even though this Court has made clear one must and, indeed, the Convention makes clear, one must look to practical effects. The reason that arises – if I can tie it to a legal foundation – is that we accept consistently with what Justice Mason said in Gerhardy at page 99 that although section 10(1) does not speak of discrimination, nevertheless, his Honour put it for constitutional reasons section 10(1) has to be read as implementing the Convention, in effect, read it down to giving effect to the prohibition on discrimination that is dealt with in the Convention and thus his Honour reads in the definition of “discrimination” in Article 1 of the Convention.
GAGELER J: How do you do that textually?
MR KIRK: I am not here to challenge the validity of section 10(1) of the RDA, your Honour. Textually, there is no ready foundation but it would be taken as implicit, I would suspect, in words such as “do not enjoy a right” or “enjoy to a more limited extent” as being read as, in effect, a shorthand and the comparison read as a shorthand for the notion of discrimination that is referred to in Article 1.1 of the Convention. I think his Honour Chief Justice Gibbs in Gerhardy took a similar view and I think that view has been taken subsequently. So that is the construed scope of section 10(1). That being so, to come back to your Honour’s difficult question for me ‑ ‑ ‑
FRENCH CJ: I am sorry, does that mean you accept the last sentence in the last paragraph on page 99 of the judgment of Justice Mason, beginning “Consequently section 10”?
MR KIRK: Yes, we do. Now, if I could come back to tie all that together – I am sorry to be a bit longwinded. That being so, Article 1.1 uses the words “based on”. It is discrimination based on race, et cetera. That picks up also one of the preambles which talks about discrimination between human beings on the grounds of race. Now, to use the words “based on” introduces a characterisation question. Can we characterise this measure as based on race? It is because of that that one would get into issues such as the scope and source of power which the lawmaker had available and was exercising because it is less likely to be based on race if it is simply using exhaustively all the power it has got for its law area to apply to everybody.
Can I come then to the issue of the property rights because we lost on this argument below, at least in the view of his Honour Justice Chesterman, and also actually in the view of President McMurdo for somewhat different reasons. President McMurdo, and I will come to this shortly, felt herself bound by Bropho v Western Australia, and I will deal with that. Before I do, can I deal with what his Honour Justice Chesterman said and if I could ask your Honours to turn to page 125 of the appeal book, paragraphs [96] to [97] of the judgment.
There are a couple of points we seek to make in response to his Honour. The key point his Honour made is at the middle of paragraph [96] – a bit earlier in fact, fourth line:
Section 10 is, however, limited to protecting the rights described in the Convention and those which, like them, are fundamental to an individual’s human existence . . . The right to possess liquor is not such a right: see Morton at [94] and the judgment of Keane JA in Aurukun.
Now, we make two points in response to this. First, with great respect to his Honour Justice Chesterman, he has misapprehended the judgment of Justice Keane in Aurukun. If I could take your Honours briefly to that judgment, your Honours should hopefully have the official version which is [2012] 1 Qd R 1, although the decision was handed down in 2010. His Honour Justice Chesterman referred to paragraph [148] which is on page 67 of the Queensland Reports.
The context of this case was that I think two councils were challenging some Queensland provisions which prevented them from having liquor licences as they had previously held and that was said to be discriminatory. The point Justice Keane makes is that:
the opportunity to have access to a licensed source of alcohol supply provided by local government . . . has not been recognised as such a human right or fundamental freedom.
Now, that is a different point to the one at issue in our case. So much is made clear by Justice Keane, in our respectful submission, on page 65, paragraph [141], first seven lines, being the first three sentences.
KIEFEL J: Looking at the language of Article 5(d)(v), however, the right there identified is not the right to own all property, is it?
MR KIRK: It is expressed in unqualified terms, your Honour. It is “The right to own property”.
KIEFEL J: It could not possibly be intended to be all property because there will be some property which of its nature is harmful and in respect of which governments will need to regulate.
MR KIRK: Absolutely so – guns – one can choose all sorts of examples. That brings one back to Article 1.1 and section 10. It is about comparison of enjoyment of rights. If there was a ‑ ‑ ‑
KIEFEL J: Well, then you are talking about a right to discriminate as a right, not the right to property. You have to be specific about this.
MR KIRK: Yes. Well, section 10, as I have just sought to articulate and as put by his Honour Justice Mason, is giving effect to a prohibition on discrimination. The point of section 10, in our respectful submission, is that it does not guarantee you a right to have alcohol or firearms or poisons, but if there is to be such a right it cannot be treated in a discriminatory fashion. There must not be differential enjoyment of rights based on race.
KIEFEL J: Yes, but section 10 does not give you a right to have laws which are non‑discriminatory, in effect.
MR KIRK: It gives you a right not to be discriminated in relation to your legal rights.
KIEFEL J: With respect to particular rights, that is why the identification of the right is so important.
MR KIRK: Yes, that is right. So one comes to property and it says here – and, of course, the right to property was the foundation of this Court’s analysis in the Native Title Act Case and in Western Australia v Ward. One could equally say there is no right to own land, and there is not. The key issue is the comparison ‑ ‑ ‑
KIEFEL J: There is no right to smoke cigarettes.
MR KIRK: Indeed, and so if Queensland chooses to ban alcohol or cigarettes or any land ownership it can do so consistently with the RDA, but it cannot do so partially. It cannot do so in a way that discriminates based upon race and that is the issue here, in our respectful submission.
The second point I was going to seek to make about his Honour Justice Chesterman’s analysis – and this picks up a little perhaps on what your Honour Justice Kiefel was asking me – is that his Honour Justice Chesterman deals with it at a very specific level of abstraction; his Honour focuses in upon a right to possess alcohol as though that was something of no great consequence and it is regulated everywhere. It is true, of course, we are talking about alcohol here, but as the plurality in Ward ‑ your Honours need not go to it – at paragraph 116, picking up the Native Title Act Case, recognised:
“Property” in this context includes land and chattels –
and, in our respectful submission, ownership of personal property is a fundamental part, at least in our society, of what it means to be an autonomous human being treated with dignity or equality. One could equally make a derisory argument that a right to own household implements or toothbrushes or mirrors or purses or motor vehicles are matters of little real significance, but these are the attributes of living a human existence in our society. That that is so is reflected, incidentally, in section 10(3) of the Act which makes specific provision with respect to provisions this country used to have authorising:
property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander –
and section 10(3) deems that to be discrimination for the purposes of section 10(1). We are not saying that is directly applicable here but it fills out the notion of property.
In the respondent’s submissions, the respondent seeks to emphasise that alcohol in societies around the world and in Australia is a regulated product and it is regulated in different ways. That is all true, but it comes back to the point I was seeking to make a minute ago. It is all about how you regulate and whether you regulate equally or differentially based upon race. In the respondent’s written submissions at paragraphs 22 to 23, the respondent appears to accept that an “expressly racist” law prohibiting possession by Aboriginal persons of the kind that Australia has had from time to time, would fall within section 10 and, with respect, that must be so if section 10 is to be of any great utility and significance in Australia.
The premise or that implicit concession is that the RDA can apply to this type of property. If an express law relating to alcohol can fall within the operation of section 10, so a law which by its practical operation – a point I recognise we must make good – can equally fall within section 10. That then drives one, in our respectful submission, to whether or not it is a special measure and I will come to that.
Can I turn to the issue that led President McMurdo to reject the property argument? I should note that her Honour thought that the right to equality applied and thought that the right to access services applied – and I will come back to that very briefly - but in relation to property, her Honour felt herself bound to follow Bropho v Western Australia in the Full Federal Court to, in effect, apply a proportionality‑type of analysis at the section 10 stage.
Can I see seek to deal with that? It is a point made, similarly, as my learned leader has noted, by the Commonwealth and South Australian Attorneys in this case. We do not dispute the result in Bropho which related to exclusion of particular people from an Aboriginal reserve, or a reserve which had been designated for Aboriginal people based on concerns about their safety and Ms Bropho was a young woman, I think, who had been excluded because it was seen as a very dysfunctional community and the administrator excluded her.
That raises an issue of characterisation – why was she excluded? A challenge was made based both on section 9 and section 10 of the RDA – and if I can note briefly that in relation to the section 9 challenge, paragraphs 71 to 72 – the Full Court held that Ms Bropho had been excluded, not because of her race, but because of concerns about safety of women and children.
Now, that type of characterisation issue arises for section 10 – as I have sought to submit. Further, all property rights are subject to certain limitations and, in a sense, this was simply an application of a limitation where there was an overriding public interest. In that sense, there was no discriminatory burden.
Where we depart from what may be suggested by the Full Court – and what is certainly suggested by the Commonwealth and South Australia – is that we respectfully submit it is an error to introduce a proportionality‑type test or “reasonably appropriate and adapted” type test about achieving some general public interest goal in order to ascertain whether section 10 responds. For reasons I will seek to articulate, that is dealt with, in our submission, at the section 8 level, not at the section 10 level.
FRENCH CJ: Do you differ from the submissions of the Human Rights Commission in that respect?
MR KIRK: We do. To understand our submission or for me to explain it, the starting point is that a test of proportionality or being reasonably appropriate and adapted is at its heart a test of purpose. It is a test of the purpose of the measure. That is how it was explained when first discussed, for example, by his Honour Justice Deane, who introduced this notion to Australian law in the Tasmanian Dam Case (1983) 158 CLR 1 at 259 to 261, discussing the external affairs power relevantly with the purposive aspect in relation to implementing treaties.
That is the effect of the discussion of five members of this Court in Castlemaine Tooheys v South Australia (1990) 169 CLR 436 at 471 to 472 in the section 92 context, of course, where again, it was indicated that this was part of a test of purpose where if there is a prima facie infringement of section 92 the question arises whether it can be justified as what we would now say reasonably necessary to give effect to a legitimate purpose. That is where proportionality comes in.
That is how it was explained in the informative, with great respect, and illuminating discussion about characterisation in the constitutional context by his Honour Justice Brennan in Cunliffe v The Commonwealth (1994) 182 CLR 272 at pages 317 to 326. It is a test of purpose. But section 10, whilst it refers to purpose, is not limited to it. It also applies to discrimination by reference to practical effects, as four members of the Court made clear in Ward at paragraph 105.
That being so, the mere fact that a law is directed to a purpose which may be beneficial or in the public interest simply, in our submission, does not answer the point as to whether the law has the effect of creating unequal enjoyment of rights based on race.
FRENCH CJ: The prior question is whether or not the right, the enjoyment of which is said to be differential, is qualified by reference to legitimate exceptions and so forth.
MR KIRK: Yes and no, with respect, your Honour. As, I think his Honour Justice Mason accepted in Gerhardy, speaking about movement, all rights or essentially all rights - perhaps there are a couple of exceptions - are limited in the way your Honour has indicated. The key point about section 10, as I have sought to emphasise, is that it is about comparison of enjoyment of rights. The fact that rights of property or movement or anything are capable of being limited on a proportionality‑type analysis under a human rights regime, which we accept, does not answer the point of well, why are you limiting it for us and not for you?
That is the key point. It is all very well to say that a right of property can be overridden in the public interest, which no one would dispute, but why are you only limiting it for us, Aboriginal people, in Palm Island and not for the residents of Brisbane? The issue that arises for section 10 and whether it is based upon race, as we accept, is I accept, one of characterisation, but insofar as it raises and depends upon practical effect, it is no answer to say but the purpose is beneficial.
Can I deal with some of the examples that are given against us to say, well, your reading of section 10 is unworkable? The Commonwealth gives an example of a planning law on Palm Island which says you cannot build more than one storey, let us infer because of cyclonic conditions or such like, and the Commonwealth says, well, there is no such restriction in Brisbane. We know about the characteristics of residence there, so you would say the Commonwealth says that that is something to which section 10 applies.
We would say, no. The question is, is the discrimination based on race – sure race is relevant - but if one looked at the circumstances of the enactment of that law, it would almost certainly be part of some overall scheme dealing with planning or environmental laws necessarily responding on an environment by environment basis to particular conditions.
FRENCH CJ: That takes you back to the purpose or intention of the law as referred to by Justice Mason in Gerhardy, as distinct from its simply focusing upon its operation.
MR KIRK: No, with respect to your Honour.
FRENCH CJ: I thought you accepted what Justice Mason said in Gerhardy in that respect.
MR KIRK: Well, that sentence at page 99, point 8 of Justice Mason’s judgment in Gerhardy 159 CLR, his Honour said:
s. 10 should be read in the light of the Convention as a provision which is directed to lack of enjoyment of a right arising by reason of a law whose purpose or effect is to create racial discrimination.
His Honour was not nailing the flag to the mast of purpose. The point of the submission I am seeking to put now is that, even within an effect analysis, one can take account of all the circumstances which, with respect, is not a novel proposition in this Court when one is assessing issues of Commonwealth constitutional validity as the Court summarised, to give your Honours a reference, in the Work Choices Case (2006) 229 CLR 1 at paragraph 142.
One looks to – or it is sufficient that the legal operation of the law is within power or that the practical effect of the law is within power and sometimes that itself will raise issues of purpose, as Justice Brennan well explained in Cunliffe. But the fact that a Commonwealth measure has a dominating purpose outside power does not preclude it from being characterised as within power.
So the fact that the superannuation guarantee levy if it works will never raise a dollar because it is seeking to create conduct of compliance does not preclude it from being characterised as a tax, even though the purpose overrides – and is clear purpose does not preclude practical characterisation.
KIEFEL J: I am sorry, I am interrupting you, but could I take you back to what appears to me to be an assumption that Article 5(d)(v) applies and section 10 then operates upon the right here? The right here, you say, is the right to own alcohol of certain strength as property, as personal property. I would just like to understand your argument about how you say, since you accept that Article 5(d)(v) cannot be absolute in its terms, how do you say that the right to own property of this kind is a human right that is recognised by the Convention?
We submit that there is one extra step in the reasoning to reach that conclusion, and that step in the reasoning is to address the alleged comparator that Mr Kirk identified this morning – the non‑indigenous person elsewhere in Queensland. We submit that that alleged comparator can be assessed under section 10 and when that is done one reaches the same conclusion as Mr Sofronoff has put. The fourth matter, which is paragraph 16 to 19, concerns special measures where we support what Mr Sofronoff has put.
Your Honours, on the first question, which is whether there is a relevant right of ownership of property, our starting point would be that the various rights expressed in Article 5(a) to (f) are expressed at a level of generality and in each case their content will need to be made more specific, and in doing so various legitimate restrictions will come into play, including to reconcile the demands of different rights which made the intention. That point was made by Justice Mason in Gerhardy. If I could go to that at page 102?
FRENCH CJ: Do you differ from the position of the Human Rights Commission?
MR GLEESON: We substantially agree with Ms Eastman’s first proposition that limitations upon a right may be relevant considerations in identifying the enjoyment of the right within section 10. That matter was addressed by Justice Mason at page 102 of Gerhardy, and those considerations, we submit, are particularly important when one comes to giving content to the right of ownership of property when the property is alcohol.
We would accept that at a general level it might be said that a right of ownership of property carries with it an ability to make decisions about what property to have in your possession in various places. That is at its highest and that right then needs to be reconciled with such reasonable regulation as may be necessary to reflect harms arising from possession of the property.
In essence, the first manner in which we submit this case can be resolved is that when one recognises the specific form of property which is alcohol and recognises both its potential beneficial effects but also its real and proven susceptibility to be misused in ways that cause harm, not just to the abuser but to the surrounding community, it naturally leads to reasonable regulation to protect the rights of others.
The pattern of reasonable regulation seen generally across the law includes at least four elements. One is appropriate use of the criminal law. The second is that the regulation will vary across the polity depending upon the nature and risk of the harm. The third is it will often be locality based and the fourth is it will very regularly be “bright line” regulation, one rule for all people in a particular situation.
So, our first and initial submission in terms of rights is that no relevant right of ownership of property is engaged by a liquor regulation which limits decisions over types and amount of alcohol for the purpose of mitigating the risk of harm from misuse of that very alcohol. In that sense ‑ ‑ ‑
KIEFEL J: I am sorry to interrupt you. Do I take it from what you say, though, that you are suggesting that a State law could be subject to an analysis of proportionality for reasonableness even without a provision such as the special measures provision in the Commonwealth legislation?
MR GLEESON: Yes, and that at the essence of this case is that where one sees at first blush a differential in treatment, and in one sense there is a differential in treatment which is Mr Kirk’s alleged comparator, in order to determine whether in truth the norm of racial equality has been infringed one looks beyond the differential to ask the question why? What are the circumstances in which restrictions have been imposed in one place which may differ from another, and do those differing restrictions in truth infringe the norm of equality?
That is the area where I have mentioned we take one further step than Queensland in the analysis. We do not submit that Mr Kirk’s comparator of a non‑indigenous person anywhere in Queensland is simply to be dismissed from the analysis as cherry‑picking, but we submit that it is a comparator which can be embraced within the analysis in the sense that – for two reasons: one is this legislative scheme, as Mr Sofronoff mentioned, does not exclude the application of these types of measures to other parts of Queensland if similar problems existed, and secondly, there is no suggestion that in fact there are other parts of Queensland where there are similar problems where the State has declined to extend the benefit of these types of restrictions.
FRENCH CJ: So does that mean that, on your submission, the right to own property has its own built‑in qualifier which, subject to a proportionality test, allows a law to be made which does not fall foul of section 10 because the differential enjoyment of the right falls within the qualifier?
MR GLEESON: Yes, and the result is that the law, even conducting the fullest analysis into practical effect and looking at any comparator that has been thrown up here, in the end is a species of regulation of the right which is equal across Queensland, equality here naturally calling for some variation to deal with the particular circumstances in which the demands of other – let us be frank – more valuable rights, more important rights are being compromised by the misuse of the right over alcohol.
KIEFEL J: When you are speaking of the right in this context, you are speaking of the right of protection, are you?
MR GLEESON: Yes. That protection of women, children, other members of the Palm Island community from this proven abuse represents the circumstance which surrounds any exercise of what might be a right to ownership over alcohol in Palm Island and absent a case where those circumstances surround the equivalent right elsewhere in Queensland and where the Queensland lawmakers have steadfastly closed their mind to that circumstance and said, “We won’t extend equal restrictions”, then Mr Kirk’s comparator is not in truth a comparator.
It is not enough to say that the restriction elsewhere in Queensland is different for non‑indigenous people. One must ask the further question, “Why?” and in in this case the appellant does not take that further challenge and therefore has not identified in truth a relevant comparator. Is that a convenient time, your Honours?
FRENCH CJ: No. We will sit through until 4.30.
MR GLEESON: If your Honours please. Your Honours, that was the first of the four points. The second of the four points concerned the right in Article 5(a) – your Honour Justice Bell asked some questions about the nature of that right. Our submission, consistent with the Queensland submission, is that that right of equal treatment before the law – picking up Article 14 of the ICCPR – is concerned with saying when the processes of the court, or a tribunal, or a government organ, are sought to be applied against persons of one race that must be done in the same manner in which it is done to persons of other races.
A good example might be the need to offer an interpreter to a person who cannot speak the language of the courtroom. That would be a case of recognising a difference in the circumstance of that person calling for a differential treatment but, in fact, achieving the norm of equal treatment before the law. If that view is not taken, if President McMurdo’s view is taken, the problem is that Article 5(a) subsumes the entire inquiry. It becomes a right to say no law can ever operate differently against me to any other person where I am of one race, and in a sense that cannot be accepted.
What the proponents of that argument are driven to is one aspect of Ms Eastman’s argument that we disagree with, which was her third point that really the chapeau to Article 5 – the right at its broadest to equal protection before the law – is imported into section 10. So it becomes similarly to how Justice Kiefel put it to Mr Kirk in questions. Does it become a right, it is said to be free from any form of racial discrimination in the law. That is where the argument would be driven and, we submit, that one does not import the right at that level of complete generality into what section 10 protects.
BELL J: It might also be thought to pick up, as it were, Article 2.
MR GLEESON: Article 2.
BELL J: Yes.
MR GLEESON: Yes. Your Honours, that is the second point. The third point, which I have already touched on in part, is whether the rich concept of discrimination which is now inherent in international ‑ Australian constitutional and Australian statutory law can be embodied and found in the language of section 10, or whether it is a foreign intruder, as Mr Kirk is suggesting. How does one get the concepts of discrimination that we are familiar with out of the very language of section 10?
Our submission is that it comes from the critical concept of the comparison in the extent of enjoyment of relevant rights, and one simply, in conducting that inquiry asks what is the nature of the right said to be in play? What content should it be given in the particular circumstances, making it more specific, as I have mentioned earlier? What are the circumstances in which that right is enjoyed by one group and does a difference in those circumstances justify what might otherwise appear to be a difference in the reflection of the right in the law?
Where that difference it turns out on examination is due to a need to recognise the requirements of competing rights, particularly more valuable rights, then the norm of equality embedded in section 10 positively requires one to take account of those different circumstances. To fail to do so would in fact be to convert section 10, not into a protection of equality between races but into something which produced the very opposite consequences.
Where that leads to, your Honours, is a step which was not taken in Gerhardy v Brown, namely, that this concept of legitimate differential treatment is one that we submit this Court can and should take in this case and recognise it is an aspect reflected in the language of section 10. Without being overly schematic about it, where one sees differences in treatment bearing on enjoyment of rights, in the modern jurisprudence in this area there are at least three types of cases where the difference may in fact not be discriminatory. The first is the one I am currently focusing on which is where it is a legitimate differential treatment. The second ‑ ‑ ‑
GAGELER J: What is the measure of legitimacy?
MR GLEESON: The measure of legitimacy is whether the difference is reasonably and appropriately adapted to the achievement of a non‑discriminatory object. There must be both an object which is non‑discriminatory and does not offend the norm of equality in question, and to that extent we agree with Queensland. We are also urging that there is an element of reasonable and appropriately adapted to the achievement of that object in order that it does not become too easy just to say, “Although I am treating you differently, I am doing it for what I think is a good reason, so don’t complain”.
HAYNE J: Is the legitimate object to which you point exemplified by Article 5(b) and the right to security of person?
MR GLEESON: Yes.
HAYNE J: Assume then that to be so, how do you say section 10 works in a case where, let it be assumed, particular group X of a kind dealt with by the RDA is identified as having a particular prevalence of domestic violence. Does it mean that section 10 is not engaged when on some basis or other a legislature decides, well, we have to make a special law for social group X because they have a particularly high incidence of domestic violence? We are going to deal with them differently and separately.
MR GLEESON: It is the “some basis or other” that my proposition has sought to address. It is not good enough to say that is a relevant competing right I wish to advance. That is the end of the inquiry. The inquiry, as we have placed in our written submissions, consistent with the overseas jurisprudence and Castlemaine Tooheys, for example, the different context is is it reasonably appropriate and adapted to choose this measure as the means by which you say I am, in fact, achieving equality across racial groups.
HAYNE J: But the criterion of operation in the example given is racial, and your answer is that you never get to special measures?
MR GLEESON: Yes.
HAYNE J: Have you not just driven a horse and cart through section 10, and why should we?
MR GLEESON: As I indicated to your Honours, there are at least three types of cases where differences are to be reconciled with the norm of equality, and although we sometimes describe them as different situations, in a sense they are different modes of reasoning. The three modes are legitimate differential treatment, special rights – which is where a minority group is recognised as having a permanent entitlement to, for instance, protection of language – and then special measures which are temporary measures to alleviate or ameliorate a particular deficit.
It may be that more than one of those methods of analysis is available to look at a particular case. Each of the three of them, I would submit, in truth are means of ensuring that the norm of equality which section 10 recognises is given full content. What that means is that special measures should not be treated simply as, as it were, an exception to what is proven discrimination and as a situation where you can justify what is otherwise wrongful. Special measures like legitimate differential treatment are a manifestation or corollary of the underlying norm of equality which section 10 seeks to present.
It may therefore be that a given measure could be justified on both legitimate differential treatment and special measures. In some cases, they may be true alternatives. They may be modes of reasoning which produce the same result of non‑discrimination. Could I just explain why?
Legitimate differential treatment starts at one end of the spectrum which is what is your object? Is it a non‑discriminatory object you are pursuing and are you doing it in a reasonably appropriate and adapted manner? Special measures starts at a different point which is to say that there is a deficit in the enjoyment of rights by a racial group and pursuant to, as Mr Sofronoff has pointed out, my positive obligation under international law to take measures to alleviate such deficits, am I for the sole purpose of advancement, that is, ameliorating that deficit, putting in place a measure that can be justified. Is it a temporary measure or is it capable of cessation if the circumstances change?
They start, in a sense, from different conceptual ways of analysing. Is it appropriate to put in place something which does have a difference in it but is it a difference that truly matters? Therefore, we would submit in some cases it may be available to analyse it under both those modes of reasoning. In the end, though, asking ultimately a single question and we would accept the single question has an element of evaluation in it. It is not just the matter of applying the meaning of words. The ultimate question in these cases is does it offend the norm of equality between races to choose this particular matter as the point for establishing differences in the enjoyment of rights? In the present case, coming back to its practicalities, the matter that has been chosen as the reference point is there needs to be varying restrictions on alcohol use between different localities in the State in order to meet differing degrees of harm throughout the State.
One must then fully bring to account there may be an overwhelming incidence of people of one race in one of those areas. One brings that to account and asks, however, does it offend that norm of equality to have recognised that difference in harm and responded in this fashion? That, we submit, can be done under section 10 and it could if necessary be looked at under section 8. Is that a convenient time?
FRENCH CJ: What is your estimate of time? You have one more point to go I think, have you not?
MR GLEESON: Yes, so about 15 minutes, your Honour.
FRENCH CJ: Solicitor‑General for South Australia?
MR HINTON: About 20 minutes.
FRENCH CJ: Solicitor‑General for Western Australia? Thank you. The Court will adjourn until 9.45 tomorrow morning for pronouncement of orders and 10.15 for the resumption of this matter.
AT 4.30 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 12 DECEMBER 2012
5
9
0