Maloney v The Queen

[2012] HCATrans 243

[2012] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No B27 of 2012

B e t w e e n -

JOAN MONICA MALONEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 5 OCTOBER 2012, AT 9.39 AM

Copyright in the High Court of Australia

MS C.A. RONALDS, SC:   May it please the Court, I appear with my learned friends, MS S.E. PRITCHARD, SC and, MR A.L. McAVOY, for the appellant.  (instructed by Aboriginal & Torres Strait Islander Legal Service)

MR M.D. HINSON, SC:   May it please the Court, I appear with my learned friend, MR S.A. McLEOD, for the respondent. (instructed by Crown Solicitor (Qld))

FRENCH CJ:   Yes, Ms Ronalds.

MS RONALDS:   The applicant contends in this application for special leave that the Queensland Court of Appeal made two significant errors.  The first is that in the majority decision their Honours, Justice Chesterman and Justice Daubney, found that there was no breach of section 10 and so there was no act of racial discrimination in relation to what we call the liquor restrictions.

FRENCH CJ:   When you talk about breach of section 10, you are invoking that operation of section 10 which, as it were, creates an inconsistency with the State law and then invalidates the State law to the extent of the inconsistency through section 109.

MS RONALDS:   Yes, your Honour, and what we say is that ‑ ‑ ‑

FRENCH CJ:   As explained in Ward, I think.

MS RONALDS:   Yes, your Honour.  What we have called the “liquor restrictions” there are a series of provisions that we set out in our submissions but they culminate in Schedule 1R to the liquor restrictions which apply specifically to Palm Island.  So this matter only addresses that provision of section ‑ ‑ ‑

FRENCH CJ:   The prohibition is of global application within Palm Island.

MS RONALDS:   Within Palm Island.

FRENCH CJ:   Anybody is affected but you say it is operational discrimination.

MS RONALDS:   Yes, your Honour.

CRENNAN J:   Just looking for a moment at section 168B(1) of the Liquor Act, the prohibition is confined to a public place in a restricted area?

MS RONALDS:   Yes.

CRENNAN J:   I wanted to raise that with you, but I do not want to take you off your course, but at some point there is the need, I think, to think about special leave question 1(c) which is to be found in the application book at page 84.  Do you have that? 

MS RONALDS:   Yes, your Honour.

CRENNAN J:   There is a reference there to “public and private places” and there would be an issue, I think, about whether that question is, at the moment, misconceived having regard to the provision, section 168B(1).

MS RONALDS:   Thank you, your Honour.  We will just look at that.

CRENNAN J:   But do come to that when it is convenient.

MS RONALDS:   Yes, your Honour.  I trust your Honours have the extrinsic material bundle that we have provided, and you will that Schedule 1R is at page 38 of that bundle, and you will see that it applies only to Palm Island.  There are Schedules 1A up to 1R, 1R being the last one.  So there are 18 Aboriginal communities that are covered by similar, but varying, restrictions, that is the quantity and type of alcohol varies between each community.  In the Palm Island community the limitation is to light and mid‑strength beer, and 11.25 litres is a carton of beer in the usual way.  So the concentration of less than 4 per cent is light and mid‑strength beer.  Some of the other Aboriginal communities that are covered by other parts of the schedules have permission for wine, for example.  There is no such permission here, so that that this is ‑ ‑ ‑

CRENNAN J:   To the extent that this is not facially discriminatory, I think there is evidence somewhere, is there not, about the residents of Palm Island, about 97 per cent of them are indigenous people?

MS RONALDS:   Yes, your Honour, and certainly the Court of Appeal accepted, both in Morton, an earlier case, and in this matter that there was an overwhelming majority and 97 per cent is the figure most commonly relied on and that is what gives rise to the race considerations.  It is because of the very significant proportion of the Aboriginal and Torres Strait Islander persons who live on Palm Island.

FRENCH CJ:   What is the community area of Palm Island, by the way?

MS RONALDS:   That is, as I understand it, the whole area including the foreshores.  It is self‑evidently an island.  It is a series of islands, in fact.  You will see (b) is the “foreshore” and also “the jetty” which is where ‑ ‑ ‑

FRENCH CJ:   Is there a definition of the community area of the Palm Island Shire Council?  Is that a statutory concept?

MS RONALDS:   I think it is a statutory concept in – it is in the Local Government Act, which is set out in other - the community area of Palm Island, but as I understand it, it is the whole of the island.

FRENCH CJ:   Thank you.

MS RONALDS:   There are no parts excised, as there are in other places for other activities.  There is no other sort of activity like mining or anything where there has been removed.  That is the provision that we say enlivens section 10 because while on its face it may appear to have no racial impact it is because of the particular structure of the community of Palm Island that gives rise to that consideration.

The second major question is that all members of the Queensland Court of Appeal found that Schedule 1R of the regulation imposing the alcohol restrictions on Palm Island was a special measure and hence, even if section 10 was enlivened, the exception operated.  The applicant does not say that there should not be any form of alcohol restrictions per se, or that there should not be some limit on the type and quantity of alcohol that can be available either in the canteen or elsewhere on the island.

What we say is that for the regulatory scheme not to breach the Racial Discrimination Act, then certain factors must operate and most importantly in relation to the operation of a special measure that consultation in order to obtain consent must occur for it to be able to be afforded the protection of section 8.  For that, we say that to comply with the Racial Discrimination Act, the community through its representative institutions must be consulted and involved in the drafting and implementing of any measure restricting the supply or possession of alcohol.

CRENNAN J:   Now, I think the Court of Appeal found unanimously that consultation had taken place.

MS RONALDS:   Yes, your Honour.

CRENNAN J:   What is your complaint in relation to that reasoning?

MS RONALDS:   We say that the 14 affidavits that we have included in our extrinsic material, twice in fact, show that that finding is incorrect, but more importantly perhaps that the explanatory note upon which the court relied is not evidenced.  What we say is that those who seek to provide themselves with the protection of section 8 carry the onus of proof, and that it was for the respondent to establish the various criteria to meet the special measure provision and that in the absence of that, there is not sufficient material for this Court to be satisfied that there was such material, and the explanatory note itself is an explanatory note to a subordinate legislation, and we say that that was not evidenced.

The 14 affidavits upon which we rely and the summary of the material in the affidavits is at page 169 of the extrinsic material.  There is just a short summary.  It is of very poor quality, and I apologise for that.  It shows that although it is 14 of 2,000 people, what we say is that they are the leaders of the community, and they are the members of the representative organisation or institution that should be consulted in relation to any introduction of any special measure.

CRENNAN J:   Is there guidance in Gerhardy v Brown as to how this question is to be approached on which you are seeking to rely?

MS RONALDS:   Not this question – no, your Honour, because Gerhardy v Brown - his Honour ‑ ‑ ‑

CRENNAN J:   I realise it was a facially discriminatory measure so there is that distinction.

MS RONALDS:   Yes, but in terms of – there was a reference by his Honour Justice Brennan about ‘cannot be imposed against the will of the beneficiaries” and referring to “choice” but in that instance the community wanted the special legislation.  The Pitjantjara people wanted it and sought it out and obtained it from the South Australian Government.  So the nub of our argument did not arise because there was consent and inactive participation over a lengthy period.  There were reports, et cetera, before the South Australian Parliament passed that law.

So the consultation issue which we say is one of the main issues which we seek to traverse before the Court was not a matter that was considered in Gerhardy v Brown and, indeed, is not a matter that has been brought before this Court and certainly, within the context of the criminalisation of personal conduct, which is the outcome of what happens that Ms Maloney and many hundreds of others have been charged with a criminal offence.

CRENNAN J:   Was that point considered in the Court of Appeal, the criminalisation of certain conduct ‑ ‑ ‑

MS RONALDS:   Yes, your Honour, that was because, of course, it is an appeal from the – it wound its way through from the Magistrates Court.

CRENNAN J:   I meant in the context of the present argument.

MS RONALDS:   Yes, well, it was certainly put before the court and they were matters that were traversed.  We say that it is the criminalisation.

CRENNAN J:   But is there is some aspect of the reasoning which you would seek to criticise in this context?

MS RONALDS:   We say that they failed, in fact, to accord the proper status to the serious consequences of the criminalisation of the conduct and that many members of the community who had, as Ms Maloney had, never had any criminal record at all and at the age of 55 then acquires a criminal record in relation to this matter.  We say that gives rise to one of the serious considerations about the impact of the law on the community.

FRENCH CJ:   What is the precise mechanism by which consultation feeds into the characterisation of a special measure?

MS RONALDS:   We say that it is - when one looks at what is appropriate and adapted or how one achieves the formulation of what is required the community needs to be involved in and consulted in order to have an input into what the content of the plan would be, so that the Palm Island Aboriginal Shire Council had previously had its own alcohol management plan which was more extensive and covered different alcohol than that imposed by the State.

FRENCH CJ:   Yes.

MS RONALDS:   We say that there needs to be consultation with the community in order to affect consent and if one looks, for example, at the terms of Article 19 of the Declaration on the Rights of Indigenous People, and that is in our bundle at page 20, your Honours, you will see that ‑ ‑ ‑

FRENCH CJ:   I just want to clarify, is there a statutory requirement for consultation anywhere?

MS RONALDS:   There is, in terms of with the community justice group, but we say that the consultation ‑ ‑ ‑

FRENCH CJ:   As a condition of characterisation of a special measure for the purposes of section 8?

MS RONALDS:   No, your Honour.

FRENCH CJ:   So how does it feed in legally, as it were, to the ‑ ‑ ‑

MS RONALDS:   We say that it is the current international jurisprudence, and we have referred to a number of the declarations and included those in our extrinsic memorandum and we say that ‑ ‑ ‑

FRENCH CJ:   So you construe “special measure” in section 8 as a measure which imports a consultation process or is based upon a consultation process.

MS RONALDS:   Yes, your Honour.

FRENCH CJ:   That derives from international instruments or international – because it is not in paragraph 4 of Article 1 of CERD.

MS RONALDS:   No, your Honour, it is not.  But, we say that indeed since Gerhardy v Brown these matters have been developing on an international sphere.  We say they are represented in the declaration ‑ ‑ ‑

FRENCH CJ:   I am just wondering how they feed into our domestic legal structure.

MS RONALDS:   Well, we say that when construing the Racial Discrimination Act, which clearly relies on the terms of the Convention, that it is, we say, uncontroversial that the court would favour a construction enacted in accordance with the international obligations, consistent with Australia’s international obligations, and we say they are represented as at this stage by the recommendations and other UN documents we have included in our bundle, particularly by the Declaration on the Rights of Indigenous People and Article 19 ‑ ‑ ‑

CRENNAN J:   Justice Brennan does speak about this topic at page 135 of Gerhardy v Brown.

MS RONALDS:   Yes, your Honour.

CRENNAN J:   At about point 7 of the page he talks about “The wishes of the beneficiaries”.

MS RONALDS:   Yes, and that is where he identifies the matter that I referred to earlier that – not being “foisted on” – I think is the expression he uses – being foisted on the ‑ ‑ ‑

CRENNAN J:   Then there is reference, at page 49 of the appeal book, to Article 19, in relation to the Declaration of the Rights of Indigenous Peoples, which I think picks up on the Chief Justice’s question to you ‑ ‑ ‑

MS RONALDS:   Yes, your Honour, and that is the provision I referred to a moment ago.  That is at page 20 of the extrinsic ‑ ‑ ‑

FRENCH CJ:   We acceded to that since this regulation, did we not?

MS RONALDS:   Yes, we did.  But we say that at the time the declaration was first voted on Australia voted against it and at a later time supported it.  But we say that at the point it came into operation it really represented a bringing together of the current international standards and that Article 19, you will see, refers to:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent ‑ ‑ ‑

FRENCH CJ:   Well, let us say there is a total failure to consult, no consultation, the regulation is just made ‑ ‑ ‑

MS RONALDS:   Which is what we say occurred in this instance.

FRENCH CJ:   Yes.  Well, you say then because of a failure to consult it does not constitute a special measure within the meaning of Article 1, paragraph 4?

MS RONALDS:   Yes.

FRENCH CJ:   Is that how it works as a matter of characterisation as distinct from breach of obligation?

MS RONALDS:   Yes, that is how we would characterise it.

FRENCH CJ:   That is a fairly large proposition, it seems to me.

MS RONALDS:   Well, we would say that it is critical, and in terms of our international obligations, that consultation with indigenous peoples before matters are imposed on them, be they legislative ‑ ‑ ‑

FRENCH CJ:   Well, it may be it is a desirable thing, I do not think anybody would probably argue about that.  The question is whether it affects the legal characterisation of the measure for the purposes of section 8 and Article 1, paragraph 4.

MS RONALDS:   Similarly Article 2, paragraph 2.

FRENCH CJ:   Yes, that is where you have to get to, is it not?

MS RONALDS:   Yes, it is, your Honour.

FRENCH CJ:   You have to show it goes to characterisation.

MS RONALDS:   We say that the failure to consult undermines the integrity of the ‑ ‑ ‑

FRENCH CJ:   That is all very well to say it undermines the integrity, how does it go to characterisation?

MS RONALDS:   We say it removes it from the provision of section 8 because it is such an essential element of what could be a special measure, that is that the State cannot, as it did in pre‑paternalistic times, just impose measures on indigenous communities without consulting them about the appropriateness of it and whether it is the suitable mechanism, and a failure to do so means they cannot then cloak themselves or seek to cloak themselves in the exception provisions in section 8.  So that really is the nub of our argument.

FRENCH CJ:   All right.  Are those your submissions?

MS RONALDS:   Yes.

FRENCH CJ:   Yes, all right, thank you.

MS RONALDS:   I am sorry, your Honour, in relation to Justice Crennan’s question ‑ ‑ ‑

CRENNAN J:   That special leave question gets translated into ground 6 ‑ ‑ ‑

MS RONALDS:   Sorry, ground (c) is not pressed.

CRENNAN J:   What about ground 6 then of your ‑ ‑ ‑

MS RONALDS:   Ground 6 is not pressed, that is clear in our submissions in reply.  We say, of course, it is also the jurisdiction of the CERD Committee, that is the committee on the Convention that is the schedule to the Racial Discrimination Act and we have included the relevant recommendations, which also set out the provisos in relation to consultation and we have set those out in our submissions about the individual provisions of the Convention, because the Convention, as I say, being annexed to the Racial Discrimination Act is the critical Convention and the consideration of that over the years has also looked at consultation and the importance and requirement of indigenous communities to be consulted

before attempts to change patterns of conduct, or through legislative change can be imposed on that community.

CRENNAN J:   On one view it is a question of fact that you are seeking to raise.

MS RONALDS:   With respect no, your Honour.  We say it is much broader than that, that it is a question of looking at what are the international standards and how they will apply in relation to individual measures and that the evidence in the 14 affidavits sustain the propositions that we seek to advance.

FRENCH CJ:   Thank you.  Yes, Mr Hinson.

MR HINSON:   Your Honours, special leave should be refused because the Court of Appeal’s decision is not attended by sufficient doubt.  Unless section 10 is engaged, section 8 does not arise for consideration and, in our submission, section 10 is not engaged.  The conduct struck at by the impugned provisions is the possession of more than a prescribed quantity of liquor within a geographical area – a restricted area. 

The applicant identifies three rights by which it seeks to engage section 10, but for the reasons given by the Court of Appeal, the majority in the Court of Appeal, none of those rights arise in relation to the conduct - being in possession of more than the prescribed quantity of liquor.  So the section 10 threshold is not crossed which makes it unnecessary, in our submission, to consider section 8.

There are two points raised by the applicant about section 8.  The first is a lack of consultation and consent.  We say that point does not warrant a grant of special leave for two reasons.  First, there was, in fact, consultation.  The Court of Appeal made factual findings about it and this is simply an attempt to re‑agitate questions of fact.  Secondly, there is nothing in section 8, or the Convention, which makes consultation an indicia of characterisation of a measure as a special measure or not as a special measure.

The second section 8 point that the applicant wishes to agitate is a lack of proportionality question.  Our brief response to that is that the question whether the impugned provisions – the Liquor Act and Liquor Regulations – are reasonably capable of being considered to be appropriate and adapted to the purpose of securing adequate advancement is the question, rather than the question that the applicant poses, which is a matter for the Court to determine whether the impugned provisions are appropriate and adapted.  As Gerhardy v Brown makes plain, the Court’s function in

these circumstances is to consider whether the political judgment made is one that was reasonably open to be made.

Your Honours, for those reasons, we submit that in general terms the decision of the Court of Appeal is not attended by sufficient doubt to warrant a grant of special leave in this case. 

FRENCH CJ:   Yes, thank you, Mr Hinson.  Yes, Ms Ronalds.

MS RONALDS:   Your Honour, in relation to the right in section 10, we rely on Article 5(a):

The right to equal treatment before the tribunals and all other organs administering justice –

We say that the ambit of Article 5(a) includes those tribunals with jurisdiction to hear and determine a complaint for a criminal offence and any decision dismissing an appeal or hearing and determining an appeal in that regard.  We say that the substantive content of Article 5(a) is such that the inequality of treatment here is produced by the actual terms of the law itself, that is, the power to regulate and then the contents of Schedule 1R.  We do not say it is a matter of procedure, that is, that Ms Maloney was someway dealt with differently.

FRENCH CJ:   Well, that involves an underlying proposition, does it not, that the right mentioned in Article 5(a) affords protection against discriminatory laws creating criminal offences.

MS RONALDS:   Yes, your Honour.

FRENCH CJ:   Because they have to be determined by a tribunal or court.

MS RONALDS:   Yes.  We say that it is the law that brings the criminal charge itself which enlivens the operation of Article 5(a) because there is a lack of the right to equality before the law, because the law only applies in this instance to Aboriginal people.  That is how Article 5(a) is enlivened, and that is one of the three rights that we rely on.

We rely also on Article 5(d)(v), which is the “right to own property”, and what we say is that the property could be owned in other parts of Queensland lawfully, but not able to be owned on Palm Island, and we say that this is to be done at a level of generality when one looks at what the property is and what the rights are, as the Court discussed in Ward at 105, paragraph 119. 

We say that the liquor restrictions impose a discriminatory burden or prohibition on the applicant which is directed to her because of her race, and so in relation to the right to own property, she is prevented from enjoying a fundamental freedom enjoyed by persons of another race.  We also rely on Article 5(f), but our primary reliance is on Article 5(a).

FRENCH CJ:   Yes, thank you.  The Court will adjourn briefly to consider what course it should take.

AT 10.05 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.11 AM:

FRENCH CJ:   There will be a grant of special leave in this matter on grounds 1 to 5, but we would suggest that ground 5 should be reconsidered to raise squarely the question of characterisation of the law as a special measure, including the requirement of consultation or consent.  Thank you.

AT 10.11 AM THE MATTER WAS CONCLUDED