Maloney v The Queen

The case of *Maloney v The Queen* involved an appeal to the High Court of Australia concerning racial discrimination. The appellant, an Indigenous member of the Palm Island community, was convicted of possessing liquor in a restricted area on Palm Island, where such restrictions disproportionately affected Aboriginal residents. The central dispute revolved around whether these liquor restrictions constituted unlawful racial discrimination under Australian law, particularly in light of international human rights conventions.

The High Court was required to determine several legal issues. These included whether the liquor restrictions infringed upon the appellant's rights to equal treatment before tribunals, the right to own property, and the right of access to places or services for the general public, as protected by Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Furthermore, the Court had to consider whether these restrictions engaged section 10 of the *Racial Discrimination Act 1975* (Cth) and, if so, whether they were valid as a "special measure" under section 8 of that Act. The Court also considered the potential for inconsistency between state and Commonwealth law under section 109 of the Constitution.

The Court's reasoning, drawing on its prior decision in *Morton v Queensland Police Service*, affirmed that the impugned liquor provisions were indeed discriminatory on the grounds of race and that their practical effect was to restrict alcohol possession by Aboriginal persons. However, the Court clarified that the appellant's complaint was not about unequal treatment in the courts themselves, but rather about the discriminatory operation of the law under which she was prosecuted. The Court held that the rights protected by section 10 of the *Racial Discrimination Act* were limited to those defined as "human rights and fundamental freedoms" under Article 1(1) of ICERD. The appeal was ultimately dismissed.