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R v Maloney

R v Maloney

Case [2012] QCA 105 20 April 2012

Racial Discrimination

Constitutional Validity

Legitimate Expectation

Constitutional Law

Human Rights Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Maloney [2012] QCA 105

PARTIES:

R
v
MALONEY, Joan Monica
(applicant)

FILE NO/S:

CA No 237 of 2011
DC No 289 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

20 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2012

JUDGES:

Margaret McMurdo P and Chesterman JA and Daubney J
Separate reasons for judgment of each member of the Court, Chesterman JA and Daubney J concurring as to the order made, Margaret McMurdo P dissenting in part

ORDER:

LEAVE TO APPEAL REFUSED, WITH COSTS

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – RACIAL DISCRIMINATION – where applicant was charged with possessing liquor in a restricted area pursuant s 168B(1) Liquor Act 1992 (Qld) – where applicant admitted the facts of the charge but sought leave to appeal arguing that s 168B was invalidated by s 10 Racial Discrimination Act 1975 (Cth) – whether s 168B and related provisions of the Liquor Act invoke s 10 Racial Discrimination Act by contravening human rights enumerated in Article 5(a), 5(d)(v) and 5(f) Convention on the Elimination of All Forms of Racial Discrimination – whether the provisions of the Liquor Act are a special measure within s 8 Racial Discrimination Act – whether the form of consultation with the Palm Island community prevented the relevant provisions from being a special measure – whether the consent of the Palm Island community was necessary for the provisions to constitute a special measure

Racial Discrimination Act 1975 (Cth), s 8, s 10, sch
Liquor Act 1992 (Qld), s 3, s 168B, s 173F, s 173H, s 173I
Liquor Amendment Regulation (No. 4) 2006 (Qld)
Liquor Amendment Regulation (No. 3) 2008 (Qld)
Liquor Regulation 2002 (Qld), s 37A, s 37B
Statutory Instruments Act 1992 (Qld), s 54
United Nations Declaration on the Rights of Indigenous Peoples (2007), Art 1, Art 2, Art 3, Art 4, Art 19
United Nations International Covenant on Civil and Political Rights [1980] ATS 23; 999 UNTS 171, Art 2, Art 26
United Nations International Convention on the Elimination of All Forms of Racial Discrimination [1975] ATS 40; 660 UNTS 195, Art 1, Art 2, Art 5
United Nations Universal Declaration of Human Rights (1948), Art 1, Art 2, Art 7

Aurukun Shire Council v CEO Office of Liquor Gaming & Racing (2010) 265 ALR 536; [2010] QCA 37, discussed
Bropho v Western Australia (2008) 169 FCR 59; (2008) 249 ALR 121; [2008] FCAFC 100, discussed
Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11, discussed
Morton v Queensland Police Service (2010) 240 FLR 269; [2010] QCA 160, discussed
Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92; [2002] FCAFC 423, cited
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, cited
Western Australia v Ward (2002) 213 CLR 1

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Maloney

Details

AGLC: R v Maloney [2012] QCA 105
Case: [2012] QCA 105
Decision Date: 20 April 2012

CaseChat Overview and Summary

The applicant in this case, who was charged with possessing liquor in a restricted area, sought leave to appeal against the decision of a lower court. The charge was brought against the applicant pursuant to section 168B(1) of the Liquor Act 1992 (Qld). Although the applicant admitted the facts of the charge, they argued that section 168B of the Liquor Act was invalidated by section 10 of the Racial Discrimination Act 1975 (Cth). The applicant contended that section 168B and related provisions of the Liquor Act contravened human rights set out in Article 5(a), 5(d)(v) and 5(f) of the Convention on the Elimination of All Forms of Racial Discrimination. The applicant further argued that the relevant provisions were not a special measure within the meaning of section 8 of the Racial Discrimination Act, as the form of consultation with the Palm Island community did not meet the requirements for such a measure. Finally, the applicant claimed that the consent of the Palm Island community was necessary for the provisions to constitute a special measure.

The court was required to determine whether section 168B and related provisions of the Liquor Act contravened human rights set out in Article 5(a), 5(d)(v) and 5(f) of the Convention on the Elimination of All Forms of Racial Discrimination. The court was also required to determine whether the relevant provisions were a special measure within the meaning of section 8 of the Racial Discrimination Act. The court had to assess whether the form of consultation with the Palm Island community met the requirements for such a measure, and whether the consent of the Palm Island community was necessary for the provisions to constitute a special measure.

The court found that the relevant provisions did not contravene human rights set out in Article 5(a), 5(d)(v) and 5(f) of the Convention on the Elimination of All Forms of Racial Discrimination. The court also found that the relevant provisions were a special measure within the meaning of section 8 of the Racial Discrimination Act. The court determined that the form of consultation with the Palm Island community met the requirements for such a measure, and that the consent of the Palm Island community was not necessary for the provisions to constitute a special measure. The court ultimately found that the applicant's arguments were not well-founded and refused leave to appeal, with costs.

The court's decision in this case has significant implications for the interpretation and application of the Racial Discrimination Act and the Liquor Act. The court's finding that the relevant provisions were a special measure within the meaning of section 8 of the Racial Discrimination Act suggests that such measures may be permissible in certain circumstances, provided that the requirements of the Racial Discrimination Act are met. However, the court's refusal to grant leave to appeal may limit the ability of individuals to challenge the constitutionality of such measures in the future. Overall, this case highlights the complex interplay between human rights law, discrimination law, and liquor regulation in Australia.

Orders

Orders of the court

LEAVE TO APPEAL REFUSED, WITH COSTS

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

R v Maloney [2012] QCA 105

Most Recent Citation

High Court Bulletin [2012] HCAB 11

Cases Citing This Decision

Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16
Citation 1

…Khazaal [2006] NSWSC 1353; 167 A Crim R 565 R v Maloney [2012] QCA 105 R v Secretary of State for the Home Department, Ex Parte Pierson [1998] AC 539; [1997] UKHL 37 Raymond v Honey [1983] AC 1 Reed v Commissioner of Corrective Services [2008] NSWSC 161 Ren v Jiang (No 3) [2014] NSWCA 204 Residual Assco Group Ltd…
High Court Bulletin [2013] HCAB 5
Citation 2

…Appealed from Qld SC (CA): (2012) 262 FLR 172; [2012] QCA 105.…
High Court Bulletin [2013] HCAB 4
Citation 3

…Appealed from Qld SC (CA): (2012) 262 FLR 172; [2012] QCA 105.…
High Court Bulletin [2013] HCAB 3
Citation 4

…Appealed from Qld SC (CA): (2012) 262 FLR 172; [2012] QCA 105.…
High Court Bulletin [2013] HCAB 2
Citation 5

…Appealed from Qld SC (CA): (2012) 262 FLR 172; [2012] QCA 105.…
High Court Bulletin [2013] HCAB 1
Citation 6

…Appealed from Qld SC (CA): (2012) 262 FLR 172; [2012] QCA 105.…
High Court Bulletin [2012] HCAB 12
Citation 7

…Appealed from Qld SC (CA): (2012) 262 FLR 172; [2012] QCA 105.…
High Court Bulletin [2012] HCAB 11
Citation 8

…Appealed from Qld SC (CA): (2012) 262 FLR 172; [2012] QCA 105.…

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Cases Cited

Wotton v Queensland [2012] HCA 2
Citation 1 (Para 1)

…sions about the relevant provisions between the Queensland government and members of the Palm Island community at this time. [41] Wotton v Queensland [2012] HCA 2, [4].…
Morton v Queensland Police Service [2010] QCA 160
Citation 2

…lia (2008) 169 FCR 59; (2008) 249 ALR 121; [2008] FCAFC 100, discussed Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11, discussed Morton v Queensland Police Service (2010) 240 FLR 269; [2010] QCA 160, discussed Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92; [2002] FCAFC 423, cited Plaintiff S157/2002 v T…
Aurukun Shire Council v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37
Citation 3

…ration of Human Rights (1948), Art 1, Art 2, Art 7 Aurukun Shire Council v CEO Office of Liquor Gaming & Racing (2010) 265 ALR 536; [2010] QCA 37, discussed Bropho v Western Australia (2008) 169 FCR 59; (2008) 249 ALR 121; [2008] FCAFC 100, discussed Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11, discussed M…
Wurridjal v The Commonwealth [2009] HCA 2
Citation 4

…2003] HCA 2, cited Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, cited Wurridjal v The Commonwealth (2009) 237 CLR 309; [2009] HCA 2, cited COUNSEL: C A Ronalds SC, with A McAvoy for the applicant M D Hanson SC, with S A McLeod for the respondent SOLICITORS: Aboriginal and Torres Straight Islander L…
Bropho v Western Australia [2008] FCAFC 100
Citation 5

…quor Gaming & Racing (2010) 265 ALR 536; [2010] QCA 37, discussed Bropho v Western Australia (2008) 169 FCR 59; (2008) 249 ALR 121; [2008] FCAFC 100, discussed Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11, discussed Morton v Queensland Police Service (2010) 240 FLR 269; [2010] QCA 160, discussed Pilkington (Au…
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22
Citation 6 (Para 1)

…opho was plainly wrong. As I stated in Aurukun ,[25] however, I consider it should be limited to the construction of [22](1993) 177 CLR 485, 492. [23](2007) 230 CLR 89, 151–152 [135]. [24](2010) 265 ALR 536, 562 [63]. [25]Above, 563 [65]. Art 5(d)(v) of the Convention (the right to own property).…
Plaintiff S157/2002 v Commonwealth [2003] HCA 2
Citation 7

…ister for Justice and Customs (2002) 127 FCR 92; [2002] FCAFC 423, cited Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, cited Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, cited Wurridjal v The Commonwealth (2009) 237 CLR 309; [2009] HCA 2, cited COUNSEL: C A Ronalds SC, wi…
Western Australia v Ward [2002] HCA 28
Citation 8

…23, cited Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, cited Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, cited Wurridjal v The Commonwealth (2009) 237 CLR 309; [2009] HCA 2, cited COUNSEL: C A Ronalds SC, with A McAvoy for the applicant M D Hanson SC, with S A McLeod for…
Re East; Ex parte Nguyen [1998] HCA 73
Citation 9 (Para 1)

…of the Articles. Nor does this country’s accession to the Declaration give rise to enforceable rights or obligations: see Re East; Ex parte Nguyen (1998) 196 CLR 354 at 362.…
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15
Citation 10 (Para 1)

…al, I cannot conclude that Bropho was plainly wrong. As I stated in Aurukun ,[25] however, I consider it should be limited to the construction of [22](1993) 177 CLR 485, 492. [23](2007) 230 CLR 89, 151–152 [135]. [24](2010) 265 ALR 536, 562 [63]. [25]Above, 563 [65]. Art 5(d)(v) of the Convention (the right to own pr…
Gerhardy v Brown [1985] HCA 11
Citation 11

…d Bropho v Western Australia (2008) 169 FCR 59; (2008) 249 ALR 121; [2008] FCAFC 100, discussed Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11, discussed Morton v Queensland Police Service (2010) 240 FLR 269; [2010] QCA 160, discussed Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FC…
Pilkington (Australia) Ltd v Minister of State for Justice & Customs [2002] FCAFC 423
Citation 12

…vice (2010) 240 FLR 269; [2010] QCA 160, discussed Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92; [2002] FCAFC 423, cited Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, cited Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28, cited Wurridjal v The C…
Ltd v Minister for Labour (1969) 1 WLR 89
Citation 13

…0; [1985] HCA 11, discussed Morton v Queensland Police Service (2010) 240 FLR 269; [2010] QCA 160, discussed Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92; [2002] FCAFC 423, cited Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, cited Western Australia v Ward (2002) 213 CLR 1; [2002] HC…
Murphy J's observations in Falbo v United States (1944) 320 US 549
Citation 14

…[4](2009) 237 CLR 309 (adopting Murphy J's observations in Falbo v United States (1944) 320 US 549, 561).…

Legislation Cited

Liquor Act 1992 (Qld) 173F, 3, 3(a), 4
5 mentions (from Para 1)
Racial Discrimination Act 1975 (Cth) 7, 8
3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld) 4
2 mentions (from Para 1)
Statutory Instruments Act 1992 (Qld) 54
2 mentions (from Para 1)
District Court of Queensland Act 1967 (Qld)
1 mention (from Para 1)
Justices Act 1886 (Qld)
1 mention (from Para 1)

CITATION:	R v Maloney [2012] QCA 105
PARTIES:	R v MALONEY, Joan Monica (applicant)
FILE NO/S:	CA No 237 of 2011 DC No 289 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	20 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2012
JUDGES:	Margaret McMurdo P and Chesterman JA and Daubney J Separate reasons for judgment of each member of the Court, Chesterman JA and Daubney J concurring as to the order made, Margaret McMurdo P dissenting in part
ORDER:	LEAVE TO APPEAL REFUSED, WITH COSTS
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – RACIAL DISCRIMINATION – where applicant was charged with possessing liquor in a restricted area pursuant s 168B(1) Liquor Act 1992 (Qld) – where applicant admitted the facts of the charge but sought leave to appeal arguing that s 168B was invalidated by s 10 Racial Discrimination Act 1975 (Cth) – whether s 168B and related provisions of the Liquor Act invoke s 10 Racial Discrimination Act by contravening human rights enumerated in Article 5(a), 5(d)(v) and 5(f) Convention on the Elimination of All Forms of Racial Discrimination – whether the provisions of the Liquor Act are a special measure within s 8 Racial Discrimination Act – whether the form of consultation with the Palm Island community prevented the relevant provisions from being a special measure – whether the consent of the Palm Island community was necessary for the provisions to constitute a special measure Racial Discrimination Act 1975 (Cth), s 8, s 10, sch Liquor Act 1992 (Qld), s 3, s 168B, s 173F, s 173H, s 173I Liquor Amendment Regulation (No. 4) 2006 (Qld) Liquor Amendment Regulation (No. 3) 2008 (Qld) Liquor Regulation 2002 (Qld), s 37A, s 37B Statutory Instruments Act 1992 (Qld), s 54 United Nations Declaration on the Rights of Indigenous Peoples (2007), Art 1, Art 2, Art 3, Art 4, Art 19 United Nations International Covenant on Civil and Political Rights [1980] ATS 23; 999 UNTS 171, Art 2, Art 26 United Nations International Convention on the Elimination of All Forms of Racial Discrimination [1975] ATS 40; 660 UNTS 195, Art 1, Art 2, Art 5 United Nations Universal Declaration of Human Rights (1948), Art 1, Art 2, Art 7 Aurukun Shire Council v CEO Office of Liquor Gaming & Racing (2010) 265 ALR 536; [2010] QCA 37, discussed Bropho v Western Australia (2008) 169 FCR 59; (2008) 249 ALR 121; [2008] FCAFC 100, discussed Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11, discussed Morton v Queensland Police Service (2010) 240 FLR 269; [2010] QCA 160, discussed Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92; [2002] FCAFC 423, cited Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, cited Western Australia v Ward (2002) 213 CLR 1