Morton v Queensland Police Service
[2010] QCA 160
•25 June 2010
SUPREME COURT OF QUEENSLAND
CITATION:
Morton v Queensland Police Service [2010] QCA 160
PARTIES:
MORTON, Florence Maree
(appellant/applicant)
v
QUEENSLAND POLICE SERVICE
(respondent)AUSTRALIAN HUMAN RIGHTS COMMISSION
(with leave as amicus curiae)FILE NO/S:
CA No 178 of 2009
DC No 75 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:
District Court at Townsville
DELIVERED ON:
25 June 2010
DELIVERED AT:
Brisbane
HEARING DATE:
2 March 2010
JUDGES:
McMurdo P, Holmes and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Leave to appeal granted.
2. Appeal dismissed.CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – RACIAL DISCRIMINATION – where applicant was charged with possessing liquor in a restricted area contrary to the prohibition contained in s 168B(1) of the Liquor Act 1992 (Qld) – where applicant admitted the facts of the charge but argued s 10 of the Racial Discrimination Act 1975 (Cth) invalidated s 168B – where Magistrate rejected that argument and applicant’s appeal to the District Court was dismissed – where applicant seeks leave to appeal – whether s 168B and related provisions of the Liquor Act 1992 (Qld) invoke s 10 of the Racial Discrimination Act 1975 (Cth) – whether the human rights referred to in s 10 are limited to human rights and fundamental freedoms described in Article 1(1) of the United Nations Convention on the Elimination of All Forms of Racial Discrimination – whether the Liquor Act 1992 (Qld) infringed the applicant’s rights under Article 5 of the Convention – whether the Liquor Act 1992 (Qld) infringed the applicant’s right under Article 5(a) to equal treatment before tribunals and organs administering justice – whether the provisions of the Liquor Act 1992 (Qld) are a special measure under s 8 of the Racial Discrimination Act 1975 (Cth)
Racial Discrimination Act 1975 (Cth), s 8, s 10, s 13
Liquor Act 1992 (Qld), s 4, s 168B(1), s 173F, s 173G, 173H
Liquor Regulation 2002 (Qld), s 37A, s 37B, sch IRUnited Nations International Convention on the Elimination of All Forms of Racial Discrimination [1975] ATS 40, Art 1(1), Art 1(4), Art 2, Art 2(2), Art 5, Art 5(a), Art 5(f)
United Nations International Covenant on Civil and Political Rights [1980] ATS 23, Art 26Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury[2010] QCA 37; 265 ALR 536, considered
Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455; [1995] FCA 1134, cited
Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11, followed
Mabo v Queensland (1988) 166 CLR 186; [1988] HCA 69, applied
Melkman v Commissioner of Taxation (1988) 20 FCR 331; [1988] FCA 231, applied
Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215, cited
Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, citedCOUNSEL:
D O’Gorman SC, with A McAvoy, for the applicant
M Hinson SC, with A Horneman-Wren SC, for the respondent
G Del Villar for the Australian Human Rights CommissionSOLICITORS:
Aboriginal & Torres Strait Islander Legal Service for the applicant
Crown Solicitor for the respondent
No appearance for the Australian Human Rights Commission
McMURDO P: The applicant, Florence Maree Morton, was found guilty in the Magistrates Court at Townsville under s 168B(1) Liquor Act 1992 (Qld) of possessing two bottles of bourbon whisky in a restricted area on Palm Island. Her appeal to the District Court under s 222 Justices Act 1886 (Qld) was refused. This application for leave to appeal under s 118 District Court of Queensland Act 1967 (Qld) turns on whether the relevant provisions of the Liquor Act and the Liquor Regulation 2002 (Qld) are inconsistent with s 10 Racial Discrimination Act 1975 (Cth) and therefore invalid under s 109 of the Commonwealth Constitution.
I agree with my colleagues that the important subject matter of this application warrants the granting of leave to appeal. As Kirby J explained in Wurridjal v Commonwealth of Australia,[1] citing Murphy J in Falbo v United States:[2]
"…the 'law knows no finer hour' than when it protects individuals from selective discrimination and persecution. [Courts] should be specially hesitant before declining effective access … to those who enlist assistance in the face of legislation that involves an alleged deprivation of their legal rights on the basis of race. All such cases are deserving of the most transparent and painstaking of legal scrutiny." [3]
[1](2009) 237 CLR 309; [2009] HCA 2.
[2](1994) 320 US 549 at 561.
[3](2009) 237 CLR 309 at 393; [2009] HCA 2 at [210].
I also agree with my colleagues that the appeal should be dismissed, but my reasons for reaching that conclusion differ.
The first issue for determination is whether the District Court judge correctly held that the relevant provisions of the Liquor Act and Regulation did not offend s 10 Racial Discrimination Act. The second issue is, if the judge was wrong and the impugned provisions contravened s 10, whether they were "special measures" within s 8 Racial Discrimination Act so that s 10 did not apply.
Chesterman JA has set out the relevant sections of the Liquor Act and the Regulation which I shall refer to as the impugned provisions.[4] I agree with his Honour that the impugned provisions are discriminatory on the ground of race.[5] The impugned provisions do not expressly distinguish between races but it is the practical effect which must be considered: see Gerhardy v Brown;[6] Western Australia v Ward;[7] Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury;[8] Jango v Northern Territory.[9] The practical effect of the impugned provisions is to discriminate directly against the overwhelmingly Aboriginal inhabitants of Palm Island as to their right to legally possess alcohol. This is a significant feature distinguishing the present case from Aurukun. Although the relevant legislative provisions in Aurukun in practical terms predominantly affected local shires in which the overwhelming majority of constituents were Indigenous, the legislature removed the right of all Queensland local governments to hold a liquor licence and did not prevent alcohol from being made available from other licensed premises;[10] the racial discrimination in Aurukun was less direct than in the present case.
The relevant provisions of the Racial Discrimination Act
[4]See Chesterman JA's reasons [45]-[49].
[5]See Chesterman JA's reasons at [54].
[6](1985) 159 CLR 70; Mason J at 99.
[7](2002) 213 CLR 1 at 103; [2002] HCA 28.
[8][2010] QCA 37 at [30], [31], [179], [261], [262].
[9](2006) 152 FCR 150; Sackville J at 324.
[10]See Keane JA at [179], [180] and Philippides J at [259]-[265].
Before returning to the first issue, whether the impugned provisions offend s 10, it is helpful to set out the relevant provisions of the Racial Discrimination Act and the International Convention on the Elimination of All Forms of Racial Discrimination,[11] which I shall refer to as the Convention. The preamble to the Racial Discrimination Act relevantly states:
"WHEREAS a Convention entitled the 'International Convention on the Elimination of all Forms of Racial Discrimination' (being the Convention a copy of the English text of which is set out in the Schedule) was opened for signature on 21 December 1965:
AND WHEREAS the Convention entered into force on 2 January 1969:
AND WHEREAS it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention: …".
[11]The Convention entered into force in Australia on 30 October 1975.
That preamble makes clear that the Racial Discrimination Act is Australia's legislative response to the adoption of the Convention. The Convention is contained in the Racial Discrimination Act's schedule. The preamble to the Convention relevantly provides:
"The States Parties to this Convention,
Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, … ,
Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, … ,
Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination … ,
Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, … ,
Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person,
Convinced … that there is no justification for racial discrimination, in theory or in practice, anywhere,
Reaffirming that discrimination between human beings on the grounds of race, … is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,
Convinced that the existence of racial barriers is repugnant to the ideals of any human society,
Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation,
Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination,
…
Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end,
Have agreed as follows:…"
I shall set out further extracts from the Convention as they relate to the provisions of the Racial Discrimination Act to which I will refer.
The Racial Discrimination Act binds the Crown in right of the Commonwealth and of each of the States.[12] It does not "exclude or limit the operation of a law of a State … that furthers the objects of the Convention and is capable of operating concurrently with this Act".[13] The provisions pertinent to these appeals are contained in Part II of the Act, headed "Prohibition of racial discrimination" (s 8 to s 18A). Section 8 is directly concerned in these appeals and relevantly provides:
"8 Exceptions
(1)This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).
…"
[12]Racial Discrimination Act, s 6.
[13]Racial Discrimination Act, s 6A.
The Racial Discrimination Act does not discretely define "special measures". But, Art 1 of the Convention relevantly provides that:
"1. In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
…
4.Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved."
Essential to understanding the parties' contentions as to "special measures" is Art 2 of the Convention which relevantly provides:
1.States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
…
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
…
2.States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved."
Section 10 Racial Discrimination Act is also central to this appeal and relevantly provides:
"10 Rights to equality before the law
(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race … 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 … .
(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.
…"
Article 5 of the Convention relevantly provides:
"In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice;
(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;
…
(f)The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks."
Sections 11-15 of the Racial Discrimination Act make racial discrimination unlawful in various specified areas of public life including Land, housing and other accommodation (s 12); A right to join trade unions (s 14); and Employment (s 15). It seems that the applicant may have placed some emphasis on s 11 and s 13 which relevantly provide:
"11 Access to places and facilities
It is unlawful for a person:(a)to refuse to allow another person access to or use of any place … that members of the public are, or a section of the public is, entitled or allowed to enter or use, or to refuse to allow another person access to or use of any such place … except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow access to or use of that place … ;
…
by reason of the race … of that other person or of any relative or associate of that other person.
…
13 Provision of goods and services
It is unlawful for a person who supplies goods … to the public …:
…(b)to refuse or fail on demand to supply those goods … to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods … ;
by reason of the race, … of that other person … ."
But s 11 to s 15, together with s 9, are of limited direct assistance in this case. They proscribe acts of racial discrimination by persons whereas s 10, which is at the heart of the applicant's contentions, concerns racial discrimination through the application of laws: see Aurukun.[14]
Do the impugned provisions deny the applicant equality before the law in the enjoyment of the right to equal treatment before organs administering justice?
[14]Keane JA at [112].
The applicant's strongest contention is that the impugned provisions offend against her right under s 10 and Art 5(a) of the Convention "to equality before the law…in the enjoyment of…[t]he right to equal treatment before the tribunals and all other organs administering justice".[15]
[15]Convention, Art 5(a).
Before discussing that contention, I emphasise that it is not contended in this application, and nor was it in Aurukun, that there is a human right or fundamental freedom to drink alcohol. It is possible to envisage instances where a prohibition on drinking alcohol may violate a human right, for example, the taking of communion wine in Christian church services. But it was unnecessary in Aurukun, as in the present case, to decide that issue. I did not reach a concluded view on that point in Aurukun[16] and there is no reason for me to do so in this case.
[16][2010] QCA 37 at [43].
Section 10(2) in its terms states that the reference in s 10(1) to "a right" includes those rights set out in Art 5 of the Convention. Although it is of no direct consequence in this case, I consider it significant that the terms of s 10(2) do not limit the operation of s 10(1) to the rights set out in Art 5 of the Convention and Art 5 itself is not exhaustive.[17] In my opinion, s 10 also includes the enjoyment of human rights such as those expressed in the United Nations Universal Declaration of Human Rights (the Declaration): see Gerhardy v Brown.[18] The rights to be enjoyed under s 10 are also capable of including those human rights set out in other international conventions to which Australia is a party, such as, but not limited to, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Declaration on the Rights of Indigenous People.[19] These international conventions recognise that to discriminate against people on the basis of their race (except in the case of special measures under s 8) is to strike at the essence of the humanity of those discriminated against. For the reasons articulated in Aurukun,[20] courts should take a broad approach in identifying whether a right is within the terms of s 10.
[17]General Recommendation Number 20: Non-Discriminatory Implementation of Rights and Freedoms (Art 5), 15 March 1996, 48th Session (UN Doc A/51/18).
[18](1985) 159 CLR 70, Mason J at 101.
[19]Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37, McMurdo P at [33]; Philippides J at [240].
[20][2010] QCA 37, McMurdo P [32]-[35]; Philippides J at [234]-[242].
Irrespective of whether a broad approach is taken in construing s 10, the right "to equality before the law…in the enjoyment of …[t]he right to equal treatment before the tribunals and all other organs administering justice" is a right referred to in Art 5 of the Convention[21] and is therefore plainly a right with which s 10 is concerned. The introductory paragraphs of Art 5 refer to the prohibition and elimination of racial discrimination in all its forms and to guaranteeing the right of everyone, without distinction as to race, to equality before the law. As Brennan J noted in Gerhardy, in describing the meaning and effect of provisions in the Racial Discrimination Act, including s 10:
"The inequality of treatment is produced by the law itself … A discriminatory law … denies the human right of equality before the law, referred to in the third preamble to the Convention. The right to equality before the law without distinction as to race is guaranteed by the States Parties to the Convention: Art. 5. The claim to equality before the law is, as Sir Hersch Lauterpacht wrote (An International Bill of the Rights of Man (1945), p. 115), 'in a substantial sense the most fundamental of the rights of man … It is the starting point of all other liberties'. A distinction etc. based on race that is required by law nullifies the enjoyment of the human right to equality before the law."[22]
[21]Set out at [13] of these reasons.
[22](1985) 159 CLR 70 at 128.
Article 5 specifically identifies a number of rights, the first of which is "the right to equal treatment before the tribunals and all other organs administering justice". The terms "tribunals" and "other organs administering justice" are not defined in the Convention or the Racial Discrimination Act. The Macquarie Dictionary relevantly defines "organ" as "an instrument or means, as of performance". Giving the words "tribunals and all other organs administering justice" their ordinary meaning, they clearly include the Magistrates Court where the charge against the applicant was brought and determined, the District Court where her appeal was heard and dismissed, and this Court to which she now applies for leave to appeal. I am not persuaded that "the right to equal treatment before the tribunals and all other organs administering justice" is intended to be concerned solely with procedural law and practice adopted in enforcing substantive law, and not also with the equal protection against discrimination from the practical effect of substantive law. Such a narrow construction is not consistent with the broad terms of the preamble to the Convention (particularly the third paragraph) and the introductory paragraph of Art 5. It is also inconsistent with the broad approach to be adopted in identifying whether a right is within the terms of s 10.[23]
[23]Gerhardy (1985) 159 CLR 70, Mason J at 101; Western Australia v Ward (2002) 213 CLR 1, Gleeson CJ, Gaudron, Gummow and Hayne JJ at 103; Jango v Northern Territory (2006) 152 FCR 150, Sackville J at 324; Pilkington (Australia) Ltd v Minister of State of Justice and Customs (2002) 127 FCR 92 at [26]; See also Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37, McMurdo P at [32] – [35]; Philippides J at [234] – [242].
In my respectful opinion, it is wrong to reason that s 10 is not invoked through Art 5(a) in this case because the Queensland parliament in enacting the impugned provisions was not a tribunal or organ administering justice. Such reasoning appears to me to be circular: parliaments necessarily enact laws as that is their function; and, by virtue of the doctrine of the separation of powers, parliaments can never be tribunals or other organs administering justice. That cannot mean that s 10 is not invoked though Art 5(a) where the practical effect of a law enacted by a State or Territory is to preclude Aboriginal Australians from fully enjoying the right to equality before the law by way of equal treatment before tribunals or other organs administering justice to the same extent as non-Aboriginal Australians. When parliament enacts laws, the practical effect of which is to create an offence which disproportionately affects Aboriginal Australians, Aboriginal Australians are precluded from enjoying the right to equality before the law in the equal treatment before tribunals or other organs administering justice to the same extent as non-Aboriginal Australians. In my opinion, Art 5(a) means that such laws enacted by a State or Territory cannot escape the consequences of s 10.
If Art 5(a) of the Convention is superimposed into s 10 in the present context, it relevantly reads:
If, by reason of the impugned provisions the Aboriginal Australian applicant does not enjoy the right to equality before the law in the equal treatment before the tribunals and all other organs administering justice to the same extent as non-Aboriginal Australians then, notwithstanding anything in the impugned provisions, the Aboriginal Australian applicant shall, by force of s 10, enjoy that right to the same extent as non-Aboriginal Australians.
I agree that s 10, by its clear terms, would not be invoked if, instead of the impugned provisions enacted by the Queensland parliament, the local government for Palm Island had passed municipal laws regulating the supply of alcohol to people on Palm Island. So much was recognised by the High Court in Mabo v The State of Queensland[24] and by Drummond J in Ebber v Human Rights and Equal Opportunity Commission.[25] But here, the practical effect of the impugned provisions enacted by the Queensland parliament is to discriminate racially against the Aboriginal adults of Palm Island by subjecting them to far more restrictive liquor laws than non-Aboriginal Australians living in non-Aboriginal communities. This is not an infringement of a mere private right which would not invoke s 10: see Gibbs CJ's observations in Gerhardy.[26]
[24](1988) 166 CLR 186, Brennan, Toohey and Gaudron JJ at 217; [1988] HCA 69.
[25](1995) 129 ALR 455 at 476-477.
[26](1985) 159 CLR 70 at 86.
In summary, the impugned provisions have the practical effect that Aboriginal adult Queenslanders like the applicant do not enjoy equality before the law in the right to equal treatment with non-Aboriginal adult Australians before tribunals and other organs administering justice. The impugned provisions are contrary to that human right which is, in essence, the human right of equality before the law referred to in the introductory paragraph of Art 5 and Art 5(a).[27] As Brennan J explained in Gerhardy,[28] the concept of "equality before the law" in Art 5 includes both equality with regard to enforcement of the law[29] and also the equal protection of the law.[30] So much is made clear in the third preamble to the Convention.[31] This construction is consistent with the broad approach required in identifying rights in s 10.[32] The impugned provisions offend s 10 as their practical effect is that Aboriginal Australians like the appellant do not enjoy equality before the law in the equal treatment before courts and tribunals administering Queensland's liquor laws.
[27]Above at 128.
[28](1985) 159 CLR 70 at 128. See also [19] of these reasons.
[29]Cf Art 14 ICCPR which sets out detailed procedural considerations related to a person's right to equality before courts and tribunals.
[30]Cf Art 26 ICCPR which states: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law…"
[31]Set out at [7] of these reasons.
[32]Gerhardy v Brown (1985) 159 CLR 70, Mason J at 101; Western Australia v Ward (2002) 213 CLR 1, Gleeson CJ, Gaudron, Gummow and Hayne JJ at 103; Jango v Northern Territory (2006) 152 FCR 150, Sackville J at 324; Pilkington (Australia) Ltd v Minister of State of Justice and Customs (2002) 127 FCR 92 at [26]; See also Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37, McMurdo P at [32] – [35]; Philippides J at [234] – [242].
It follows that the applicant will succeed in her application and appeal unless, under s 8 Racial Discrimination Act, s 10 has no application. It is therefore unnecessary for me to consider the applicant's other contentions concerning s 10, which, in my opinion, are far less promising for her.
Are the impugned provisions special measures under s 8 Racial Discrimination Act?
The second issue is whether the impugned provisions were "special measures" within s 8; if so, s 10 does not apply to them. The applicant contended that the onus was on the respondent to establish that the impugned provisions were special measures; there was no evidence before the magistrate or the District Court judge to support the conclusion that they were. The appellant particularly emphasised the absence of any evidence of meaningful consultation between the Palm Island community and the Queensland government prior to the introduction of the impugned provisions.
The relevant provisions pertaining to special measures in this application are contained in s 8(1) Racial Discrimination Act and Art 1(4) and Art 2(2) of the Convention.[33] In Gerhardy, Brennan J identified that a special measure:
"(1) confers a benefit on some or all members of a class, (2) the membership of which is based on race … , (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms."[34]
Mason J[35] and Deane J[36] observed that special measures invoking the exemption under s 8(1) must be capable of being reasonably considered to be appropriate and adapted to achieving the purpose of securing an objective of the kind described in Art 1(4) of the Convention.[37]
[33]Set out at [9]-[11] of these reasons.
[34](1985) 159 CLR 70 at 133.
[35]At 105.
[36]At 149.
[37]Set out at [10] of these reasons.
In my opinion, it is desirable for legislatures to consult with the beneficiaries of special measures before introducing them. As Brennan J noted in Gerhardy:
"The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement. The dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them."[38]
[38](1984) 159 CLR 70 at 135.
Brennan J's observations were cited with approval by Philippides J[39] and me[40] in Aurukun. The desirability of consultation is supported by Art 1 of the International Covenant on Civil and Political Rights which provides:
"1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
…
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations."
[39]At [243]-[249].
[40]At [78]-[80].
The International Declaration on the Rights of Indigenous People[41] provides further support for the need for legislatures to consult with Indigenous people before imposing special measures in its emphasis on Indigenous self-determination:
"Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions." [42]
[41]Adopted by Australia on 3 April 2009.
[42]The desirability for consultation with the beneficiaries of the special measure was also recently noted by James Anaya, the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People:
Whilst Brennan J recognised that the wishes of the beneficiaries may be essential in determining whether racially discriminatory provisions are special measures under s 8, his Honour did not categorically state that consultation was essential in order to constitute special measures under s 8. There are prudent reasons for not making the desirability for consultation a mandatory pre-requisite for the application of s 8. There may be competing views within a group affected by proposed special measures as to whether the measures are appropriate. As I noted in Aurukun,[43] the intended beneficiaries of special measures, or some of them, perhaps because of age, infirmity or cultural reasons, may have difficulty in expressing an informed and genuinely free opinion as to whether special measures are in their interest. Nevertheless, meaningful consultation with, and consideration of the wishes of, the beneficiaries of special measures is highly desirable.
[43]At [81].
Subject to those matters and with that contextual background, it is essentially a political question for the legislature to determine whether members of a racial group need particular legislative protection through special measures in order to ensure those members of that racial group are able to enjoy or exercise their human rights and fundamental freedoms.[44] If it is reasonably open to the legislature to make such a political assessment, a court will not interfere.[45] But a court must not hesitate to strike down a law which amounts to a clearly manifested unauthorised exercise of power.[46] Special measures should be of a temporary nature and should cease effect once "the objectives for which they were taken have been achieved".[47]
[44]Gerhardy v Brown (1985) 159 CLR 70, Brennan J at 137-138, Dawson J at 161-162.
[45]Above, Brennan J at 139, 141; Dawson J at 161-162.
[46]Above, Brennan J at 139, 141; Dawson J at 161-162.
[47]The Convention, Art 1(4).
I turn now to consider the legislative intent in the impugned provisions inserted into the Liquor Act by s 66 Indigenous Communities Liquor Licence Act 2002 (Qld). The relevant explanatory notes included:
"The objective of the Bill is to prevent harm in Indigenous community areas caused by alcohol abuse and misuse and associated violence by:
…
Providing for the declaration, in consultation with community justice groups, of restricted areas for the purposes of minimising harm caused by alcohol abuse and misuse and associated violence and minimising alcohol-related disturbances in a locality, by:(a)prescribing limits on the quantity of liquor that a person can have in their possession; and
(b) placing conditions on licensed premises within the area.
Reasons for the Bill
The Bill is part of the Government's response to the Cape York Justice Study report, which was submitted to Government by Justice Tony Fitzgerald in November 2001. The Bill is part of a package of reforms to address the prevalence of alcohol abuse and violence in Indigenous communities in Cape York and other parts of Queensland.
…
Clause 66 inserts a new Part 6A for provisions relating to restricted areas. This part allows an urgent response to problems to minimise harm from the consumption or availability of alcohol, alcohol related disturbances and public disorder. If the Minister is satisfied that the declaration of a restricted area under the regulation is necessary a regulation may be recommended to the Governor in Council. The area may or may not include a community area or part of a community area. If a restricted area is declared a further regulation may declare a maximum amount of liquor that a person may have in their possession within the restricted area without a restricted area permit. It is an offence to have in possession more than the prescribed amount of liquor. The Minister is required to consult the community justice group for the community area if a community area may be affected by the limit."
Part 6A Liquor Act (contained in the impugned provisions) commences with s 173F:
"173F Purpose of pt 6A
The purpose of this part is to provide for the declaration of areas for minimising—
(a) harm caused by alcohol abuse and misuse and associated violence; and
(b) alcohol related disturbances, or public disorder, in a locality."
The explanatory note to the Liquor Amendment Regulation (No 4) 2006 which brought Palm Island within the impugned provisions, restated the objective of Pt 6A set out in s 173F and additionally included:
"4 Reasons for the subordinate legislation
The Amendment Regulation will declare a restricted area for the community of Palm Island. The Amendment Regulation is based on the recommendations of the Palm Island Community Justice Group (CJG) and Palm Island Shire Council (Council).
…
8 Consultation
(a) Community
The CJG and Council for the Indigenous community of Palm Island have recommended alcohol limits as part of their community alcohol management strategies.
(b) Government
The Department of Aboriginal and Torres Strait Islander Policy and the Queensland Police Service were consulted in relation to the proposed Amendment Regulation.
…
9 Results of consultation
The proposed alcohol restrictions do differ from the recommendations of the CJG and Council. There is ongoing division within the CJG and between the CJG and the Council. This division has inhibited community agreement on an Alcohol Management Plan (AMP). Subsequently, the Government developed an AMP based on a compromise between the four separate AMPs that have previously been presented to Government by the CJG and the Council.
On 19 January 2005, the Government presented a draft AMP to the Council and CJG for consideration and comment by 7 February 2005.
On 3 February 2005, Government received correspondence from the Mayor of the Council accompanied by 22 completed survey forms. The Council feedback did not comment on the detail of the proposed AMP. However the Council did state that the AMP would not be successful without appropriate support structures. No other formal feedback has been received from the community. The restricted area for the community will comprise the whole of the Palm Island Shire including all ten islands, the Palm Island jetty located on Greater Palm Island and all the island foreshores. It is proposed that the possession of liquor in the community will be restricted to one carton (11.25 litres) of light or mid strength beer.
Extensive consultation has been undertaken with the community. The final round of consultation occurred in February 2006. Across the community there was common agreement that unrestricted alcohol was a major concern that needed to be addressed.
The AMP is necessary for Palm Island to effectively address its alcohol related issues. It is the Government's experience that in other Indigenous communities where similar alcohol related issues were present and an AMP was implemented, the quality of life has generally improved."
These statements of legislative intent in the impugned provisions and in the explanatory notes to them are clear. The legislative intent is to confer a benefit on those predominantly Aboriginal members of the Palm Island community by minimising harm to them from alcohol-fuelled violence in order that they may enjoy and exercise equally with others their "right to security of person and protection by the State against violence or bodily harm."[48] The appellant offered no evidence to show that these statements of legislative intent were disingenuous. The legislature apparently made a genuine effort to consult the Palm Island community before determining the format of the impugned provisions. The legislature, had it not put in place special measures of some kind, may have been subjected to reasonable criticism from an international human rights perspective. The measures it introduced in the impugned provisions are capable of being reasonably considered to be appropriate and adapted to achieving their purpose of minimising harm caused by alcohol-fuelled violence to members of the Palm Island community. It may be that, in time, if circumstances improve and evolve on Palm Island, and the views of its responsible citizens change, the impugned provisions could cease to amount to special measures under s 8.
[48]The Convention, Art 5(b), set out at [13] of these reasons.
On the material before this Court, I consider the magistrate and the District Court judge correctly determined that the impugned provisions were special measures under s 8 so that s 10 did not apply to them. It follows that the present appeal must be dismissed.
ORDERS:
I would grant leave to appeal but dismiss the appeal.
HOLMES JA: I agree with the reasons of Chesterman JA and the orders he proposes.
CHESTERMAN JA: The applicant, Florence Morton, was summonsed to appear before the Magistrates Court in Townsville on 22 February 2008. She was charged with possessing liquor in a restricted area contrary to the prohibition contained in s 168B(1) of the Liquor Act 1992 (Qld) (“the Liquor Act”). The particular charge was that:
“… on ... 26 … August 2007 … Florence … MORTON in a public place namely Butler Bay Road Palm Island being in a restricted area declared under section 173H of the Liquor Act … did have in her possession … 2 x 700ml (bottles of) Bourbon being more than the prescribed quantity of liquor for the area … ”.
On that day the applicant was convicted and fined $150. No conviction was recorded. An order was made forfeiting the bourbon to the Crown.
The applicant admitted the facts necessary to prove the charge. However she contested the prosecution on the ground that s 168B unlawfully deprived her of her right to possess spirituous liquor on Palm Island. The unlawfulness of the deprivation was said to come about by reason of racial discrimination, in that her right to possess liquor of any type and in any quantity, which was a right enjoyed by all citizens of Queensland, except those in some identified indigenous communities, had been limited by the Liquor Act. Section 10 of the Racial Discrimination Act 1975 (Cth) (“RD Act”) was said to invalidate the relevant provisions of the Liquor Act.
The Magistrate rejected her argument and the applicant appealed against her conviction to the District Court. The appeal was heard by Durward DCJ over three days, 4 July, 29 August and 31 October 2008. On 19 June 2009 the appeal was dismissed.
The applicant seeks leave to appeal against the dismissal of her appeal by the District Court. The same point is taken on her behalf as was taken in both lower courts.
Section 168B of the Liquor Act provided:
“(1)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 a type of liquor for the area, other than under the authority of a restricted area permit.
Maximum penalty –
(a)for a first offence – 500 penalty units; or
(b)for a second offence – 700 penalty units or 6 months imprisonment; or
(c)for a third or later offence – 1000 penalty units or 18 months imprisonment”.
Section 173H provides that a regulation may declare that a restricted area is an area to which s 168B applies, and such a regulation:
“… must state the quantity of a type of liquor that a person may have in possession in the restricted area …”.
That section is preceded by s 173F and s 173G. The former provides that the purpose of Part 6A of the Liquor Act, in which the sections appear:
“… is to provide for the declaration of areas for minimising –
(a)harm caused by alcohol abuse and misuse and associated violence; and
(b)alcohol related disturbances, or public disorder, in a locality”.
The second section, s 173G, provides that a regulation may declare an area to be a restricted area and that, without limiting that generality, a community area may be declared a restricted area. By subsection 3 the Minister must be satisfied that the declaration is necessary to achieve the purposes of Part 6A before recommending the regulation to the Governor in Council.
Part 8A of the Liquor Regulation 2002 (Qld) (“the Regulation”) provides, by s 37A and s 37B respectively, that an area stated in a relevant schedule is a restricted area, and that s 168B of the Liquor Act applies to all restricted areas, in respect of each of which the schedule is to prescribe the quantity and type of liquor that may be possessed.
The relevant schedule is 1R. It reads:
“Palm Island
sections 37A and 37B
1 Areas declared to be restricted areas
Each of the following areas is a restricted area –
(a)the community area of the Palm Island Shire Council;
(b)any foreshore of the community area of the Palm Island Shire Council;
(c)the jetty on Greater Palm Island known as Palm Island jetty.
2 Prescribed quantity
The prescribed quantity of liquor for each restricted area is –
(a)for beer in which the concentration of alcohol is less than 4% – 11.25L; and
(b)for any other liquor – zero”.
The “community area of the Palm Island Shire Council” is the whole of the Local Government area of the Palm Island Shire Council. This was the result of definitions of “community area” and “council” in s 4 of the Liquor Act together with the fact that the Palm Island Shire Council is a community government under the Local Government (Community Government Areas) Act 2004 (Qld), and therefore a “council” as defined by the Liquor Act. The area over which the Palm Island Shire Council exercises its jurisdiction is its “community area”. This was identified on a map found in Schedule 2 to the Local Government (Community Government Areas) Act 2004 (Qld). It included that part of Palm Island on which the applicant was found in possession of the two bottles of bourbon. The same result follows from the current Schedule 4 of the Local Government (Community Government Areas) Act 2004 (Qld) and Schedule 1A of the Local Government Act 1993 (Qld).
The applicant’s argument addressed to the District Court, that s 168B, s 173G and s 173H of the Liquor Act were inconsistent with s 10 of the RD Act, was rejected by the learned judge. His Honour held, as well, that the provisions of the Liquor Act in question were a “special measure” within s 8 of the RD Act and so were valid. The applicant seeks leave to appeal to re-agitate the arguments which were not accepted in the District Court. The application for leave to appeal, and the appeal, were heard together, the submissions on the latter being advanced in support of the grant of leave.
The appeal raises two questions. The first is whether the prohibition contained in s 168B and the related provisions of the Liquor Act is overcome by s 10 of the RD Act. If it is, the second point arises, whether the provisions of the Liquor Act are a special measure within the meaning of s 8 of the RD Act so that s 10 does not apply. It is convenient to deal with the points in that order. Section 10 of the RD Act provides:
“Rights to equality before the law
(1)If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethic origin.
(2)A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention”.
The Convention referred to is the International Convention on the Elimination of All Forms of Racial Discrimination (“Convention”). It is reproduced in the Schedule to the RD Act. Article 5 of the Convention provides:
“Article 5
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice;
(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;
(c) Political rights, in particular the rights to participate in elections – to vote and to stand for election – on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the State;
(ii) The right to leave any country, including one’s own, and to return to one’s country;
(iii) The right to nationality;
(iv) The right to marriage and choice of spouse;
(v) The right to own property alone as well as in association with others;
(vi) The right to inherit;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social security and social services;
(v) The right to education and training;
(vi) The right to equal participation in cultural activities;
(f)The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks”.
The operation of s 10 of the RD Act was explained by Gleeson CJ, Gaudron, Gummow and Hayne JJ in TheState of Western Australia v Ward (2002) 213 CLR 1 at 99. Their Honours said:
“That to which (s 10(1)) … 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, colour or national or ethnic origin. ‘Enjoyment’ of rights directs attention to much more than what might be thought to be the purpose of the law in question. Given the terms of the Convention which the (RD Act) implements … that is not surprising. The Convention’s definition of racial discrimination refers to any distinction, exclusion, restriction or preference based … on race which has the purpose or effect of nullifying or impairing … the enjoyment of certain rights. Further, the basic obligations undertaken by States party to the Convention include taking effective measures to nullify laws which have the effect of creating or perpetuating racial discrimination … . It is therefore wrong to confine the relevant operation of the (RD Act) to laws whose purpose can be identified as discriminatory … .
… (Section) 10(1) operates by force of federal law to extend the enjoyment of rights enjoyed under another federal law or a … State law”. (emphasis in original)
It may, I think, be accepted that s 168B, together with its application to Palm Island by s 173G and s 173H of the Liquor Act and the terms of the Regulation, are discriminatory on the ground of race. Their effect is to prohibit the inhabitants of Palm Island from possessing more than the specified type and quantity of alcohol. The inhabitants of Palm Island are overwhelmingly Aboriginal. The legal and practical effect of the legislation is therefore to restrict the possession of alcohol by the members of a group which are identified, by the fact of their residence, as Aboriginal.
The question which the appeal throws up is whether the right so restricted by the Liquor Act is one within the ambit of s 10 of the RD Act. The respondent argued that s 10 applies only to human rights and fundamental freedoms as described in Article 1(1) of the Convention, and that the right limited by the Liquor Act, possessing alcohol without limit as to type or quantity, was not of that kind.
The applicant argued that she had four rights:
“of the type referred to in s. 10(1) … .
(i) the right of access to goods;
(ii) the right to engage freely in public activity;
(iii)the right to equal treatment before organs administering justice; and
(iv)the right of access to a place intended for use by the general public”
which the Liquor Act infringed.
Of these rights (iii) and (iv) come from Article 5 of the Convention being respectively 5(a) and 5(f). Right (i) seems to have its provenance in s 13 of the RD Act. The second right does not seem to come from the Act, or the Convention, but may be accepted as a human right.
The applicant’s arguments centred on the right to equal treatment before organs administering justice. She hardly advanced the contention that any of the other identified rights were affected by the Liquor Act. There are obvious difficulties with the argument that s 168B of the Liquor Act prohibited or restricted the applicant’s access to goods; or free engagement in public activity; or access to any place intended for use by the general public. A consideration of those rights may be deferred because it is the other, equal treatment before organs administering justice, which raises the real point in dispute.
The rival contentions of the parties are these. The respondent contends the rights referred to in s 10 are those defined or described by Article 1(1) of the Convention, human rights and fundamental freedoms, and unless the law in question, here the Liquor Act, impacts upon such a right, it is not affected by s 10. It is, of course, as well, submitted that a restriction on the right to possess liquor is not a human right or fundamental freedom, so understood.
The applicant’s contention, as I understood it, is that the rights referred to in s 10 are not limited to human rights and fundamental freedoms as explained in the Convention. The applicant contends that any discrimination on the ground of race or other attribute described in s 10 will offend s 10, which is said to extend to any kind of racial discrimination by any means in every field of human activity and existence.
There are, I think, substantial reasons in support of the respondent’s contention.
The first comes from the terms of the RD Act and the Convention themselves. The preamble to the RD Act recites the Convention and its coming into force and the desirability of legislation “to make provision for giving effect to the Convention”. The Convention is defined inter alia as the document “a copy of the English text of which is set out in the Schedule”. Article 1 of the Convention defines racial discrimination. It provides:
“1. In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.
Article 2 contains a condemnation by the States Parties to the Convention of racial discrimination and their undertaking:
“… to pursue by all appropriate means … a policy of eliminating racial discrimination in all its forms … and, to this end:
(a)…
(b)…
(c)…
(d)Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;
(e)… ”.
The RD Act must therefore be seen as the discharge by the Commonwealth of its obligation, by legislation, to bring racial discrimination to an end. Section 10 was one of the means by which that end was to be achieved. The racial discrimination which was to be ended by the legislation was that described in Article 1(1), the “distinction, exclusion, restriction or preference based on race … nullifying or impairing the recognition, enjoyment or exercise … of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.
The definition in Article 1(1) is very wide but it is not unlimited. It does not refer to racial discrimination in all its forms or of whatever kind. The definition, though wide, is restricted to discrimination with respect to those rights which it designates “human rights and fundamental freedoms”. One gains an understanding of the nature of those rights from Article 5 which, although not exhaustive, indicates the tenor of such rights.
In addition to this consideration the respondent’s contention is supported by the highest authority. In Gerhardy v Brown (1985) 159 CLR 70, a case in which an Act of the South Australian Parliament forbade any person other than a member of a particular Aboriginal tribal group from entering onto certain areas of land: all others, defined by their race, being denied access, Gibbs CJ said (86):
“However, the term ‘racial discrimination’ is defined in Art. 1(1) of the Convention to mean ‘any distinction … based on race … which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’. The conclusion seems to be inescapable that the word ‘right’ in s. 10(1) must be intended to refer only to a human right ‘in the political, economic, social, cultural or any other field of public life’”.
Mason J said (98-99):
“When racial discrimination proceeds from a prohibition in a State law directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race, by virtue of that State law, s. 10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race”.
Later, his Honour said (101):
“The questions whether the lack of enjoyment of the right of access arises by reason of a law whose purpose and effect is to create racial discrimination and whether the right of access … is a human right or fundamental freedom or is otherwise a right of a kind referred to in Art. 5 of the Convention may be considered together. Although s. 10(2) includes rights of a kind referred to in Art. 5, it is not confined to the rights actually mentioned in that article. What then are the other rights, if any, to which s. 10(1) relates? The answer is the human rights and fundamental freedoms with which the Convention is concerned, the rights enumerated in Art. 5 being particular instances of those rights and freedoms, without necessarily constituting a comprehensive statement of them”.
Brennan J said (125):
“However, the Convention does not seek to eliminate racial discrimination in every field of life. The Convention definition of racial discrimination, substantially reproduced in s. 9(1), comprehends a distinction etc. based on race that ‘has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right and fundamental freedom in the political, economic, social, cultural or any other field of public life’. … The object of the Convention is thus limited in some respects. At its heart is the object of achieving universal recognition and observance of human rights and fundamental freedoms for all, and the limitation of the Convention’s object to the achievement of racial equality in the fields of public life focuses attention on particular ways in which human rights and fundamental freedoms should be recognized and observed”.
The point was also discussed in Mabo v Queensland (1988) 166 CLR 186. Brennan, Toohey and Gaudron JJ said in a joint judgment (217):
“Section 10 of the Racial Discrimination Act is enacted to implement Art. 5 of the Convention and the ‘right’ to which s. 10 refers is, like the rights mentioned in Art. 5, a human right – not necessarily a legal right enforceable under the municipal law”.
Deane J said (229):
“The word ‘right’ is used in s. 10(1) in the same broad sense in which it is used in the International Convention, that is to say, as a moral entitlement to be treated in accordance with standards dictated by the fundamental notions of human dignity and essential equality which underlie the international recognition of human rights: cf., the preamble to the International Convention”.
The Full Federal Court has taken the same approach, following Gerhardy. In Melkman v Commissioner of Taxation (1988) 20 FCR 331 the court (Davies, Lockhart and Gummow JJ) said (336):
“Consistently with what was said by Mason J in Gerhardy … it is necessary for the appellant to establish both that the prejudice of which complaint is made arises by reason of statutory provisions … whose purpose or effect is to create racial discrimination, and also that that prejudice amounts to an exclusion from an impairment of a human right or fundamental freedom, or a right of a kind referred to in Art 5 of the Convention”.
The proposition was reaffirmed in the joint judgment of Goldberg and Hely JJ in Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514 at [35].
Consistently with this approach Drummond J expressed the opinion, in Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455, that (476-477):
“It follows from this and from the fact that the legislative intention in enacting the RDA was to give effect to the Convention and from the fact that the RDA is a valid exercise of Commonwealth legislative power only pursuant to the external affairs power within s 51(xxix) of the Constitution, that the rights and freedoms protected by ss 9(1) and 10(1) of the RDA do not encompass every right which a person has under the municipal law of the country that has authority over him or every other right which he may claim; rather are those sections limited to protecting those particular rights and freedoms with which the Convention is concerned and those other rights and freedoms which, like those specifically referred to in the Convention, are fundamental to the individual’s existence as a human being”.
In this Court Keane JA came to the same conclusion in Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37.
His Honour said:
“[113]If the point were free from authority, there might have been something to be said for the view that the ‘rights’ protected by s 10(1) of the RDA do not need to fall within ‘human rights’ or ‘fundamental freedoms’ of the kind protected by CERD and the RDA. Section 10(1) does not refer expressly to ‘human rights’ or ‘fundamental freedoms’: in this respect the terms of s 10(1) are in stark contrast to the terms of s 9. Further, s 10(2) shows that the rights referred to in s 10(1) ‘include’, and so are not limited to, rights of a kind referred to in Article 5 of CERD.
[114]It might have been thought that there was no need for s 10 to specify the kinds of rights which it protects because its function is to ensure that, whatever rights of whatever kind and however derived are enjoyed by persons, no law of a State or the Commonwealth may have effect to allow a difference in the enjoyment of those rights on the ground of racial difference. On this view, s 10(1) could be understood as securing, in the most comprehensive way, equality before the law for people of all races, thus giving direct effect to Article 2 of CERD the terms of which I set out below. But that is not the view which has been taken.
[115]In Gerhardy v Brown and Mabo v Queensland, it was established that s 10 protects human rights and fundamental freedoms of the kind described in CERD. In Gerhardy v Brown, Mason J said:
‘What then are the other rights, if any, to which s 10(1) relates? The answer is the human rights and fundamental freedoms with which the Convention is concerned, the rights enumerated in Art. 5 being particular instances of those rights and freedoms, without necessarily constituting a comprehensive statement of them.’
[116]It was common ground between the parties that this view continues to prevail, but the appellants and the Australian Human Rights Commission (‘AHRC’) (formerly the Human Rights and Equal Opportunity Commission (‘HREOC’)), which was given leave to appear in this Court as amicus curiae, are at pains to insist that CERD does not contain an exhaustive list of the ‘rights’ protected by s 10 of the RDA. They argue that s 10 of the RDA protects human rights and fundamental freedoms of the kind referred to in CERD. This argument must be accepted on the authorities. It is convenient now to refer to the relevant terms of CERD”. (footnotes omitted)
This recital of authority establishes, I think conclusively, that rights which, by s 10, may not be withheld from persons of a particular race etc., are rights of the kind described in the Convention and called for convenience, human rights and fundamental freedoms. A right must be of that type to fall within the protection of s 10.
There is a third reason why it might be thought that the terms of s 10 do not go beyond the Convention’s understanding of racial discrimination. It is that the power of the Commonwealth Parliament to pass the RD Act is restricted to the discharge of the obligations of a State Party to the Convention. The point was alluded to by Gibbs CJ in Gerhardy. His Honour said (85-86):
“Although the validity of s. 10(1) was not argued before us, there can be no doubt that its provisions will be valid only if they conform to, and carry into effect, the provisions of the Convention. Under Art. 5 States Parties to the Convention undertake to prohibit and eliminate racial discrimination ‘in all its forms’. If s. 10(1) and (2) have the effect of prohibiting and eliminating racial discrimination they will be valid notwithstanding that they comprehend rights other than those specifically mentioned in Art. 5. … the term ‘racial discrimination’ is defined in … the Convention …”.
The definition, of course, refers to distinctions etc. in the enjoyment etc. “of human rights and fundamental freedoms”.
Dawson J adverted to the same point. His Honour said (158):
“The Commonwealth Parliament does not, under s. 51(xxix) of the Constitution, have power to legislate with respect to the subject-matter of any treaty to which Australia is a party. As Mason J. said in the Tasmanian Dam Case …:
‘I reject the notion that once Australia enters into a treaty Parliament may legislate with respect to the subject matter of the treaty as if that subject matter were a new and independent head of Commonwealth legislative power’.
The power which the Commonwealth Parliament does have is to perform such obligations as are imposed upon it and where a treaty leaves to the States Parties the selection of the appropriate legal means to achieve the policy which it lays down, as does the Convention … it may not be an implementation of the treaty merely to enact as domestic law provisions … couched in terms of the international obligations …”.
There are therefore compelling reasons for construing “rights” in s 10 as being human rights as defined in Article 1 of the Convention.
The applicant puts forward two bases for her contention as to what “rights” means in s 10. Firstly it is said that the result is achieved by reference to Article 5(a) of the Convention: “The right to equal treatment before the tribunals and all other organs administering justice”. This is undoubtedly a human right and fundamental freedom within the definition in Article 1(1) and within the purview of s 10. Subsection 2 is express in that regard. We were not referred to any case which has considered the ambit of the right, and my own researches have been fruitless.
The right which the applicant contended for comes down to a right not to be subjected to any discrimination by act of parliaments. It is difficult to see how that right can be regarded as a right to equal treatment before tribunals etc. administering justice. The subject matter of that right would seem to be the equal application of municipal laws to all persons regardless of race etc. It suggests, to my mind at least, a requirement of non-discriminatory conduct by tribunals and courts, and such like institutions, which make decisions affecting the persons with whom they deal. It probably extends to the executive enforcement of laws, for example by police officers. Constable Tabuai, who made the complaint, and the Magistrate who convicted the applicant, may each have been an organ or tribunal administering justice, but their conduct is not complained of. Anyway s 10 does not apply to them. It applies to laws which have the described effect. Parliament, when it passed the Liquor Act, was not a tribunal or organ administering justice.
Article 5(a) does not confer upon the applicant a right to control Parliament with respect to the laws it passes, or a right to be unaffected by any law made by Parliament which, by its terms, applies to her. Her rights with respect to legislation are those conferred by s 10 of the RD Act. Article 5(a) does not assist her.
The applicant had a second basis for her submission that she had a right not to be subjected, on the ground of her race, to any discrimination. The submission depended upon the President’s opinion in Aurukun. Her Honour said:
“[33]The rights to be enjoyed under s 10 are not limited, however, to those in the Convention or the Declaration. In my view, they are capable of including those human rights set out in other international conventions to which Australia is a party, such as, but not limited to, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Declaration of the Rights of Indigenous People. Relevantly, Art 26 of ICCPR provides:
‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race … .’
[34]The Human Rights Committee, an expert committee established under Art 28 of ICCPR, has confirmed the breadth of the international human right to be free of discriminatory provisions in stating that Art 26’s guarantee of equal protection requires that laws not be discriminatory in purpose or effect; Art 26 exists as a free standing right against discriminatory laws in ‘any field regulated and protected by public authorities’”.
Philippides J took the same view of the RD Act. Her Honour said:
“[240]Given the broad scope of the right to equality before the law with which Art 5 CERD is concerned, informed as it is by the preamble, the rights protected by s 10 RDA in my view extend to include human rights as elaborated in other international instruments to which Australia is a party which are directed to the same concerns as Art 5 CERD. I accept the appellants’ contention that Art 26 of the International Covenant on Civil and Political Rights (‘ICCPR’) comes within this category. It provides:
‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race … .’
[241]The right to ‘equal protection of the law’, which is the focus of Art 26 ICCPR, is derived from Art 7 of the Universal Declaration, and is also central to Art 5 CERD, being cited in the preamble to CERD and being consonant with its objective to eliminate racial discrimination ‘in all its forms and manifestations’. The Human Rights Committee established under the ICCPR has observed that Art 26 provides an autonomous right prohibiting discriminatory legislation, such that it prohibits discrimination in law or fact ‘in any field regulated and protected by public authorities’. Thus, the application of the principle of non-discrimination contained in Art 26 is not limited to those rights which are expressly protected in ICCPR.
[242]Likewise, the protection against discriminatory legislation with which s 10 RDA is concerned, does not rest on a hierarchy of human rights, with the racially discriminatory regulation of ‘lesser rights’ being outside the purview of s 10(1) RDA. Such an interpretation would have the perverse effect of construing s 10(2) in a manner inconsistent with the broad objectives sought to be achieved by the RDA. A broad interpretation of s 10 RDA, consistent with the beneficial purpose promoted by the RDA and the CERD, leads to the conclusion that the right to equality before the law includes, as a fundamental right, a right to ‘equal protection of the law’, which operates to nullify legislation that is racially discriminatory ‘in any field regulated and protected by public authorities’. Such a broad construction of s 10(1) RDA nevertheless recognises that the CERD does not seek to eliminate racial discrimination in every field of life, but rather that it is concerned with the protection against racial discrimination of rights ‘in some field of public life’.” (footnotes omitted)
The applicant therefore argues that her right “without any discrimination to the equal protection of the law” was infringed, or restricted, by the enactment of s 168B of the Liquor Act. That law meant that she did not enjoy the same right to possess alcohol as did other persons on the mainland so that s 10 conferred on her that same right. It was said that the right “without any discrimination to the equal protection of the law” was itself a human right of the Convention type.
I acknowledge the attraction of the opinion expressed by the President and Philippides J but, for my part, I am unable to accept that it correctly enunciates the effect of s 10. I accept of course the correctness of the decision in Aurukun but I do not understand that the doctrine of precedent obliges me to accept a construction of the section which I think, with all respect, is incorrect. The RD Act is a Commonwealth law. This Court must construe it as did the High Court. Moreover this Court ought to construe it as did the Full Federal Court.
The present point, that there is a human right not to be discriminated against at all on the ground of race, was not explicitly discussed in any of the authorities I have referred to. However, its premise is inconsistent with the manner in which the High Court discussed the operation of s 10, and the meaning to be given to “rights” in s 10. If the applicant’s submission were right there would have been no need to distinguish between human rights and fundamental freedoms and other rights. It would have been sufficient to decide that there was discrimination on the ground of race. The subject matter of the discrimination would not have mattered, yet the cases proceeded by declaring that s 10 applied to “human rights” and then identifying the right in question to determine if it fell within that category. See, for example, the discussion in Ward at 103-5.
There is also the point that the right, not to be discriminated against at all, which is designated a human right and fundamental freedom, does not fit within the framework of the Convention. Article 5, which sets out the rights with respect to which the States Parties undertake to prohibit and eliminate racial discrimination, does not include such a right. This is a significant omission. Moreover the rights enumerated in the Article are both particular and numerous. They may not exhaust the category of human rights but the identification and description of those rights would have been unnecessary if there was one single all embracing right, not to be subjected to discrimination of any kind, on the ground of race.
The same observation can be made with respect to Article 1(1). It defines racial discrimination as the denial or curtailment of certain rights, called “human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. The fact that the definition is so worded indicates strongly that the racial discrimination with which the Convention is concerned, while very extensive, is not universal. If it were intended to eliminate all discrimination it would have been easy enough to word the definition to say so. (One may observe, as an interpolation, that such an approach would have been commendable and that it is not obvious why that approach was not taken. Perhaps considerations of practicalities intruded. There is no point in speculating. The function of the court is to construe the language used, not to lament what might have been achieved by a different form of words.)
To my mind Article 26 of the International Covenant on Civil and Political Rights is an unconvincing basis for thinking that there is a human right to be quit of all discrimination on the ground of race. The right “without any discrimination to the equal protection of the law”, is elusive in meaning and content. It is the expression of an ideal, or high moral principle, lacking any indication of how it is to be achieved, or more profoundly, what it means. It does not appear to me to be apposite to convey the meaning which the applicant advances. That it has no particular meaning may be seen by notionally including the term from Article 26 in s 10. So adjusted the section will read:
“If, by reason of … a law of … a State, persons of a particular race … do not enjoy a right without any discrimination to the equal protection of the law that is enjoyed by persons of another race … then … persons of the first-mentioned race … shall, by force of this section, enjoy that right without any discrimination to the equal protection of the law to the same extent as persons of that other race …”.
The substitution does not give any clear understanding of what is meant by “equal protection of the law”.
It is, I think, obvious that s 10 itself confers a right on persons of all races to be treated equally by the law. It does so by the particular mechanism described in the section. It is not obvious to me that the object sought by Article 26 is not achieved by the enactment of s 10.
The focus of Article 26 is on equal treatment before the law, or equal protection of the law. Section 10, it seems to me, is a provision which aims to achieve that very goal. It does not do so by saying that no law may discriminate on the ground of race with regard to any subject matter. The subjects of legislation which may be discriminatory will be few in number because of the width of the definition of human rights in the Convention, but it is the case that some subject matter will not be caught.
To make the suggested substitution in s 10 involves a degree of circularity. Section 10 confers a right to equal protection of the law. If one answers the question: “what is the right it confers?” by saying it is the right to equal protection of the law without discrimination, one has not got a satisfactory answer, nor got to the point of saying that it is a right not to be discriminated against in any respect under any circumstances.
The relevant Convention is that on the Elimination of Racial Discrimination, particularly Articles 1(1) and 5. It is that Convention which the RD Act implements. Its terms will prove most helpful in construing the RD Act. Whatever role Article 26 might play in assisting to understand the Convention it cannot give to Articles 1(1), and 5, a meaning which they plainly do not have. The terms of the Convention do not extend as far as to give the applicant the right she asserts. Whether they should have been expressed to give effect to that meaning is not for a court, called upon to construe the RD Act, to say.
I conclude that the rights of which s 10 speaks are human rights and fundamental freedoms which one can identify by reference to the Convention. The right to possess liquor is not such a right. Aurukun was concerned with the right of a local authority to hold a liquor licence, and whether it was a right of the kind referred to in s 10. Keane JA said:
“[148]In my respectful opinion, however broad a view one takes of the sources which might instruct the Court as to the content of human rights and fundamental freedoms of the kind referred to in CERD, the opportunity to have access to a licensed source of alcohol supply provided by local government as suggested by Mr Campbell has not been recognised as such a human right or fundamental freedom.
[149]Similarly, the ‘right lawfully to buy alcohol’ urged by Ms Eastman in her written submissions is not encompassed in the list of rights in Article 5 of CERD. It may be accepted that the list in Article 5 of CERD is not exhaustive, and that one should not take a narrow view of the extent of the rights protected by CERD and the RDA. In this field of discourse one is not ‘engaged in an exercise in analytical jurisprudence, or with the classification, expressed in terms of correlatives and opposites, that delights and attracts both disciples and critics to Hohfeld’. That having been said, the ‘rights’ conferred in Article 5 of CERD go nowhere near propounding a ‘right to buy alcohol locally’”. (footnote omitted)
The President (Aurukun at [43]) noted the persuasiveness of Keane JA’s opinion, but did not decide the point.
The other rights identified by the applicant are irrelevant. As I mentioned, they were not pressed. The restriction imposed by s 168B of the Liquor Act is not an infringement of the right of access to goods. Section 13 of the RD Act, the source of the alleged right, makes it:
“… unlawful for a person who supplies goods … to the public … :
(a)to refuse or fail on demand to supply those goods … to another person; or
(b)to refuse or fail on demand to supply those goods … to another person except on less favourable terms … to which he … would otherwise supply those goods…;
by reason of the race … of that other person …”.
The right is thus one of acquisition or purchase, not one to possession of goods once acquired. An inability to possess more than 30 cans or stubbies, or 15 bottles of mid strength beer on Palm Island does not affect one’s access to goods.
The right to engage freely in public activity does not appear to have its origin in any provision of the RD Act or the Convention. Accepting that it is a human right or fundamental freedom it is not affected by s 168B of the Liquor Act. The applicant can participate in any public activity she pleases. If she does so on Palm Island she cannot take with her more than the prescribed quantity of beer, but her right to participate in public activity is unaffected.
The same is true of the right to access a place intended for use by the general public. This is protected by Article 5(f). The right is not infringed by a restriction on the amount of alcohol the applicant may take with her to the place intended for public use.
I therefore conclude that the Liquor Act does not affect any right of the applicant, as that word is used in s 10 of the RD Act. The RD Act does not therefore impact upon the Liquor Act.
The conclusion makes it unnecessary to deal with the second question, whether the provisions of the Liquor Act constituted a special measure as defined by s 8 of the RD Act. I will, nevertheless, deal briefly with the point.
Sections 8 and 10 are in Part II of the RD Act. Section 8 provides that the Part:
“… does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3)”.
Section 10(3) is of no present relevance. Article 1(4) of the Convention is in these terms:
“Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved”.
Article 2(2) contains an obligation on those bound by the Convention to take special measures where appropriate. It provides:
“States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives which they were taken have been achieved”.
The effect of these provisions is that when a special measure is taken pursuant to the obligation on a State Party imposed by Article 2(2), the special measure meeting the definition in Article 1(4), the measure which, by definition, will be racially discriminatory does not have the consequences it otherwise would because the RD Act does not apply. As Gerhardy explained, a special measure which makes a distinction or restriction based on race denies formal equality before the law but has the purpose of achieving effective and genuine equality by alleviating adverse conditions of a disadvantaged class.
Brennan J, in Gerhardy, drew the threads together to offer this explanation of a special measure. His Honour said (133):
“A special measure (1) confers a benefit on some or all members of a class, (2) the membership of which is based on race, colour, descent, or national or ethnic origin, (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms”.
The applicant did not contest that s 168B of the Liquor Act and the associated provisions were capable of amounting to a special measure. Her point was that there was no evidence, or insufficient evidence, to prove that any of the criteria had been satisfied. In particular the applicant complained that there was no evidence that the inhabitants of Palm Island had been consulted about the proposal to make their community area subject to restrictions on possessing alcohol, and no evidence that they had given their assent to it.
The applicant founds this last complaint on a passage in the judgment of Brennan J in Gerhardy. His Honour said (135):
“The purpose of securing advancement for a racial group is not established by showing that the branch of government … who takes the measure does so for the purpose of conferring what it … regards as a benefit for the group if the group does not seek or wish to have the benefit. The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement. The dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them”.
The complaints can be answered shortly. There can be no doubt that the relevant provisions of the Liquor Act and the Regulation were made as, or at least were intended to be, a special measure. Section 173F of the Liquor Act provided that the purpose of the Part in which the sections appear:
“… is to provide for the declaration of areas for minimising—
(a) harm caused by alcohol abuse and misuse and associated violence; and
(b) alcohol related disturbances, or public disorder, in a locality”.
The same explanation was given for making the Regulation. The explanatory notes to it include paragraph 3:
“Objectives of the legislation
The objective of Part 6A of the Liquor Act is to minimise harm caused by alcohol abuse and misuse and associated violence, and alcohol related disturbances or public disorder in Indigenous communities. Part 6A provides for the declaration of restricted areas and the establishment of liquor possession limits in restricted areas”.
Other parts of the explanatory notes are also relevant. Paragraph 8 is headed “Consultation”. It reads:
“(a) Community
The CJG (Community Justice Group) and Council for the Indigenous community of Palm Island have recommended alcohol limits as part of their community alcohol management strategies.
(b)Government
The Department of Aboriginal and Torres Strait Islander Policy and the Queensland Police Service were consulted in relation to the proposed Amendment Regulation. … ”.
The results of the consultation process were explained in paragraph 9:
“The proposed alcohol restrictions do differ from the recommendations of the CJG and Council. There is ongoing division within the CJG and between the CJG and the Council. This division has inhibited community agreement on an Alcohol Management Plan (AMP). Subsequently, the Government developed an AMP based on a compromise between the four separate AMPs that have previously been presented to Government by the CJG and the Council.
On 19 January 2005, the Government presented a draft AMP to the Council and CJG for consultation and comment by 7 February 2005.
On 3 February 2005, Government received correspondence from the Mayor of the Council accompanied by 22 completed survey forms. Council feedback did not comment on the detail of the proposed AMP. … No other formal feedback has been received from the community. …
Extensive consultation has been undertaken with the community. The final round of consultation occurred in February 2006. Across the community there was common agreement that unrestricted alcohol was a major concern that needed to be addressed.
The AMP is necessary for Palm Island to effectively address its alcohol related issues. It is the Government’s experience that in other Indigenous communities where similar alcohol related issues were present and an AMP was implemented, the quality of life has generally improved”.
These recitals appear a complete answer to the allegation that the residents of Palm Island were not consulted about the special measure. Additionally one should note that it was only Brennan J who thought that consultation, and indeed agreement to the measure by those it was designed to protect, was essential to the validity of the measure. None of the other Justices expressed that opinion in Gerhardy. It does not appear in the later cases. Moreover it finds no support in the language of Articles 1(4) or 2(2) of the Convention.
No doubt as a matter of practicality consultation is important, both to ensure that a special measure is appropriately designed to achieve its object, and will be well received thereby improving its efficacy. It is, however, doubtful that consultation is a legal requirement for the validity of the special measure. Moreover if the assent of those intended to benefit from the special measure was essential to its legal efficacy then, in cases such as Palm Island, where opinion was divided, there could never be a special measure and those who wanted its protection would be denied it.
The approach the court should take to the question whether sufficient facts have been established to make it appear that the Liquor Act provisions in question amount to a special measure was explained by Gibbs CJ in Gerhardy. The Chief Justice said (87-88):
“There was no evidence put before the Court to show that the facts either did or did not satisfy the words of Art. 1(4). The case is not one in which the constitutional validity of a statute depends upon facts, but it is closely analogous to such a case … . In Breen v Sneddon … Dixon C.J. pointed out the distinction between ordinary questions of fact which arise between parties … and, on the other hand, matters of fact upon which the constitutional validity of some general law may depend. He said that matters of the latter description cannot and do not form issues between parties to be tried like the former questions but simply involve information which the Court should have in order to judge properly of the validity of the statute. He went on to cite a passage from Commonwealth Freighters Pty Ltd v Sneddon … where he had said that ‘if a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon to pronounce upon validity’. That statement is, in my opinion, applicable to the present case and we must determine as best we can the facts which will enable us to answer the question whether the Act is a special measure within Art. 1(4). We may take judicial notice of facts that are notorious and may rely on the material placed before us … ”.
In the same case, Brennan J (137-8) pointed out that whether an initiative is a special measure is a political question which a court is ill equipped to answer; and Dawson J (161-2) thought that if it was reasonably open to Parliament to make the political assessment that protection is needed in the form adopted the court should not enquire further into the question.
Given the terms of the explanatory memorandum and the nature of the Liquor Act provisions in question it cannot be doubted that the provisions are a special measure. They were obviously meant to advance rights recognised by Article 5 of the Convention, namely (b), the right to security of person and protection by the State against violence or bodily harm; and (e)(iv) the social right to public health.
For this reason also the applicant’s challenge to the Liquor Act must fail.
The point raised by the application is of general importance and not free from controversy. I would therefore grant leave to appeal but, for the reasons I have expressed, dismiss the appeal.
"Affirmative measures by the government to address the extreme disadvantage faced by indigenous peoples and issues of safety for children and women are not only justified, but they are in fact required under Australia's international human rights obligations. However, any such measure must be devised and carried out with due regard of the rights of indigenous peoples to self-determination and to be free from racial discrimination and indignity.
In this connection, any special measure that infringes on the basic rights of indigenous peoples must be narrowly tailored, proportional, and necessary to achieve legitimate objectives being pursued." (United Nations Commission for Human Rights, Statement of the Special Rapportuer on the Situation of Human Rights and Fundamental Freedoms of Indigenous People (27 August 2009)).
8
9
3