/ I
| JUDGMENT No. .d!k!.L&.~ | dR2.f~ | #:,.$). |
I
| IN THE FEDERAL cou | RT OF AUSTRALIA | 1 |
| QUEENSLAND DISTRICT REGISTRY | 1 | No. QG 192 of 1993 , | , |
BETWEEN: JOHN RICHARD ROBINSON
Applicant
AND: AUSTRALIAN ELECTORAL COMMISSION
First Respondent
AND: STEPHEN BROWN
Second Respondent
MINUTES OF ORDER
| JUDGE MAKING ORDER: | Spender J |
| DATE OF ORDER: | 15 August 1994 |
| WHERE MADE: | Brisbane |
| THE COURT ORDERS that: |
the application for an order of review' under the Administrative Decisions [Judicial Review) Act 1977 is dismissed, with costs, to be taxed if not agreed.
| NOTE : | Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules. |
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| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| QUEENSLAND DISTRICT REGISTRY | |
| GENERAL DIVISION | 1 |
BETWEEN: JOHN RICHARD ROBINSON
Applicant
AND: AUSTRALIAN ELECTORAL COMMISSION
First Respondent
AND: STEPHEN BROWN
Second Respondent
| CORAM : | Spender J |
| PLACE : | Brisbane |
| DATE |
| -* | 15 August 1994 |
REASONS FOR JUDGMENT
On Tuesday, 2 November 1993, the applicant, John Richard Robinson, who is not an "Aboriginal personw or "Torres
S t r a i t Islanderw as those terms are defined by the Aboriainal
and Torres Strait Islander Commission Act (1989) ('the ATSIC Act') sought to nominate as a candidate in the election for the Aboriginal and Torres Strait Islander Commission Regional Council ele~tion for the Townsville region. Section 101 of the ATSIC Act provides:
| A person i s entitled t o vote a t an election for | the members of a Regional Council i f and only |
| - | i f : | | (a) | the person is an Aboriginal person or a | |
| Torres S t r a i t Is1 ander; | and |
| (b) | either: |
| (i) the | person's | name | i s | on | the | |
Commonwealth Electoral Roll and the person's place o f l iv ing as shown on that Roll i s within the region for which the Regional Council i s established; or
(ii) the person i s entitled t o vote a t the
election pursuant t o rules made under
subsection 113(3). " [my emphasis] |
The second respondent, Stephen Brown, the regional returning officer for the Townsville region, rejected his nomination on the grounds that the nomination did not comply with rr. 9(l)(b) and 13(a)(ii)(A) of the Reaional CounciL Election Rules ('the Rulesf), which relevantly provide:
| " 9 . | ( 1 ) A nomination must: |
...
| (b) | be signed by not less than 4 electors, other than the candidate, who are enrolled i n respect o f the ward for which the |
| candidate i s nominated. | 11 | |
| . . | . |
and
" 13. A nomination i s not valid unless:
| ( a ) | the person nominated: |
...
| (A ) | t h a t he or she i s qualified t o |
| stand for election under section |
| It | 102 o f the Act; and |
...
| In the case of r. 9(l)(b), the second respondent not signed "by not less than 4 electors. Rule 2 defines | rejected the nomination because Mr Robinson's nomination was |
| elector to mean " a person who i s entitled t o vote i n an |
election". Election is defined as "an election for the
members o f a Regional Council wardn. |
| The second respondent took the view that Mr Robinson's nominating electors failed to fulfil the requirement of S. 101(a). |
Rule 13(a)(ii)(A) refers to S. 102 of the ATSIC Act,
which relevantly provides:
| 102. | (1) A person | i s not | q u a l i f i e d t o s tand for |
| e l e c t i o n , | o r t o be | e l e c t e d , | a s a member | o f a |
Regional Council i f :
| ( a ) | the person | i s not | e n t i t l e d t o v o t e a t the |
| Regional | Counc i l | e l e c t i o n ; |
| l1 |
...
Section 102 therefore refers one back to S. 101. The second respondent took the view that Mr Robinson and his nominating electors did not fulfil the requirements of S. 101(a).
It is admitted that Mr Robinson and his nominators
at all material times were persons of Anglo-Saxon or Celtic
race and/or ethniz origin. Section 4 of the ATSIC Act defines
" a b o r i g i n a l personw to mean " a persons o f the abor ig ina l r a c e
| o f | ~ u s t r a l i ; " and | "Tor re s | S t r a i t | I s l a n d e r n | to | mean | " a |
| descendant | o f | an | i nd igenous | i n h a b i t a n t | o f | the | Tor re s | S t r a i t |
| Is1 ands ". | Mr Robinson satisfies S. lOl(b)(i) but not |
Mr Robinson seeks an order of review pursuant to S.
5 of the Administrative Decisions (Judicial Review) Act (1977) of the second respondent as regional returning officer to reject his nomination as a candidate for election to the Townsville Regional Council. He seeks a declaration that the first respondent and/or the second respondent should have accepted his nomination for election, and a declaration that he was at all material times duly qualified to be nominated for the election of the Townsville Regional Council of ATSIC and, in particular, is entitled to be nominated for the election held on 4 December 1993.
The requirements of S. 101 of the ATSIC Act are peremptory and Mr Robinson does not satisfy them. The applicant says that, notwithstanding the provisions of 8. 101(a) of the Act, he is entitled by force of S. lO(1) of
the Racial Discrimination Act 1975 ('the RD Act') to enjoy the right to vote at the election to the same extent as Aboriginal persons or Torres Strait Islanders.
The respondents assert that S. 101(a) of the ATSIC Act is not subject to the RD Act. Alternatively, it is submitted that by virtue of S. 8 of the RD Act, ss. 9 and 10 of that Act.-do not apply because S. 101(a) of the ATSIC Act is a special measure to which paragraph 4 of Article 1 of the
| Racial DiserimTnation applies. Section 10 of the RD Act | International Convention on the Elimination of all Forms of |
| provides : |
| " | ( 1 ) I f , by reason o f , or o f a provision o f , a l a w o f the Commonwealth or o f a State or Territory, persons o f a particular race, colour or national or ethnic origin do not enjoy a right that i s enjoyed by persons o f another race, colour or national or ethnic origin, or |
| enjoy a right t o a more limited extent than persons o f .another race, colour or national or ethnic origin, then, notwithstanding anything i n t h a t l a w , persons o f the first-mentioned race, colour or national or ethnic origin shall, by force o f th i s section, enjoy that r i g h t t o the same extent as persons o f that other race, colour or national or ethnic origin. |
| ( 2 ) A reference i n subsection ( 1 ) t o a right includes a reference to a right o f a kind referred t o i n Article 5 o f the Convention. |
| (3) Where a l a w contains a provision that: |
| (a) | authorizes property owned by an Aboriginal or a Torres S t r a i t Islander t o be managed | |
| by another person without the consent o f | the Aboriginal or Torres S t r a i t Islander; |
| or |
| (b) | prevents or restricts an Aboriginal or a Torres S t r a i t Islander from terminating the management by another person o f property owned by the Aboriginal or Torres |
S t r a i t Islander;
not being a provision t h a t applies t o persons general l y without regard to their race, col our or national or ethnic origin, that provision shall be deemed t o be a provision i n relation to which subsection ( 1 ) applies and a reference i n that subsection t o a right includes a reference t o a right o f a person t o manage property owned by the person.
| section 8 | ( 1) of the RD Act provides: |
| This P a r t does not apply to, or i n relation t o | the application o f , special measures t o which |
| paragraph 4 o f Article 1 o f the Convention applies except measures i n relation t o which subsection 10(1) applies by virtue o f |
| |
| Section 9(1) proscribes racial discrimination. It |
provides :
I t i s unlawful for a person t o do any act involving a distinction, exclusion, restriction
or preference based on r a c e , c o l o u r , descent o r
| na t ional | o r e t h n i c | o r i g i n which | has | t h e purpose |
| o r | e f fec t | o f | n u l l i f y i n g | or | impair ing | the |
| recogni t i o n , | enjoyment | o r e x e r c i s e , | on | an | equal |
| f o o t i n g , | o f | any | human | r i g h t | o r | fundamental |
| freedom | i n | the | p o l i t i c a l , | economic, | s o c i a l , |
| c u l t u r a l | o r any o t h e r f i e l d | o f p u b l i c | l i f e . " |
The submission by the applicant is that the decision to refuse his nomination involved an error of law in that it wrongly relied on the provisions of S. 101(a) of the ATSIC Act, whereas by virtue of S. 10 of the RD Act, the second respondent should have accepted his nomination. It is also alleged by the applicant that the decision to refuse his nomination constitutes racial discrimination against the applicant and the persons who signed his nomination form by virtue of S. 9 of the RD Act.
No submission was directed by the applicant that the
ATSIC Act and, in particular, S. 101(a) was not a validly
enacted law of the Commonwealth under an appropriate head of
| power. | --.- |
| Section 101(a) is a discriminatory law conferring on Aboriginal persons and Torres Strait Islanders a right, being a right to vote in particular elections, which is not conferred on persons who are not Aboriginal persons or Torres Strait Islanders. An examination of the ATSIC Act shows that it discriminates throughout by reference to race or ethnic origin. The title of the Act itself makes it clear that the Commission is to be an Aboriginal and Torres Strait Islander |
| Commission. | As Latham CJ said in Birch v . Allen (1942) 65 CLR |
| " I t may be proper | t o l o o k a t the t i t l e f o r the |
| purpose | o f de termin ing the scope o f an Ac t ; | i t |
| may be | r e f e r r e d | t o , | n o t | t o c o n t r a d i c t | a n y c l e a r |
| and | unambiguous | language, | b u t i f t h e r e i s any |
| u n c e r t a i n t y | i t | may | be | r e f e r r e d | t o | for | the |
| purpose | o f | r e s o l v i n g | the | u n c e r t a i n t y . | ' | The |
| t i t l e i s an important par t | o f the A c t , | and | i s |
| so | t r e a t e d | i n both | Houses | o f Parliament,' |
| L i n d l e y | MR | s a i d | i n | the | c a s e | o f | F i e l d i n q | v. |
| florlev C o r m r a t i o n | ( (1899) 1 Ch 1 a t p. | 4 . |
See also Lockhart J in Tickner v. Browho 114 ALR 409 at 434.
More importantly, the objects of the ATSIC Act are
set out in S . 3:
| " | The | o b j e c t s | o f | t h i s Act | a r e , | i n r e c o g n i t i o n | o f |
| the | p a s t | d i s p o s s e s s i o n | and | d i s p e r s a l | o f | the |
| Abor ig ina l | and | Torres | S t r a i t | I s l a n d e r | H o p l e s |
| and | their | presen t | disadvantaged | p o s i t i o n | i n |
| A u s t r a l i a n | society: |
| ( a ) | t o | ensure | maximum | p a r t i c i p a t i o n | o f |
| Abor ig ina l | persons | and | Torres | S t r a i t |
| Is1 anders | i n | the | formulat ion | and |
| implementat ion | o f government | p o l i c i e s | t h a t |
| a f f e c t them; |
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| (b) t o | promote | the | development | o f | sel f - |
| management | and | s e l f - s u f f i c i e n c y | among |
| Abor ig ina l | persons | and | Torre s | S t r a i t |
| ( c ) | to | f u r t h e r | the | economic, | s o c i a l | and |
| c u l t u r a l | development | o f Aboriginal | persons |
| and | Torre s S t r a i t | I s l ander s ; | and |
| ( d ) | t o ensure co-ordinat ion | i n the formulat ion |
| and | implementat ion | o f | p o l i c i e s | a f f e c t i n g |
| Abor ig ina l | persons | and | Torre s | S t r a i t |
| Is1 anders | by | the | Commonwealth, | S t a t e , |
| T e r r i tory | and | 1 ocal | governments, | wi thout |
| d e t r a c t i n g | from | the | r e s p o n s i b i l i t i e s | o f |
| S t a t e , | T e r r i t o r y and | l o c a l | governments | t o |
| prov ide | services | t o their Abor ig ina l | and |
| Torre s S t r a i t | I s 1 ander r e s i d e n t s . | " |
| "Abori | ginal | person " | and | " Torres S t ra i t | Is1 ander" are |
defined, as already indicated, by reference to race and ethnic origin respectively. Under the ATSIC Act, provision is made for loans and grants to &original persons and Torres Strait Islanders and to Aboriginal and Torres Strait Islander corporations: see ss. 14, 15, 16 17 and 18. The Act establishes institutions, particularly regional councils and the Aboriginal and Torres Strait Islander Commission: see ss. 6 and 92. The function of regional councils is the
| subject of S. 94 of the Act. | Section 94(l)(a) provides: |
| " | Each | Regional | Council | has | the | fo l lowing |
funct ions :
| ) t o formulate, and revise from time t o | t ime , | a | reg ional | plan | f o r | improving | t h e |
| economic, | s o c i a l | and | cul tura l | s t a t u s | o f |
| Aboriginal | and | Torres | S t r a i t | Is1 ander |
| r e s i d e n t s | o f | t h e | region; |
Further, by S. 7 of the Act, the functions of the
Aboriginal b;ld Torres Strait Islander Commission include the
formulation and implementation of programs for Aboriginal | persons and Torres Strait Islanders, and the monitoring of the |
| ef f ectivenebs of such programs, including programs conducted |
| by bodies other than the Commission. Its functions include the development of policy proposals to meet national, state, territory and regional needs and priorities of Aboriginal persons and Torres Strait Islanders, as well as other functions of a policy and administrative kind relating to Aboriginal persons and Torres Strait Islanders. |
| It is plain that a central purpose of the ATSIC Act was comprehensively to provide for new Aboriginal and Torres Strait Islander organisations including the Commission itself and regional councils, for the management of Aboriginal and Torres Strait Islander affairs. |
| In that context, the eligibility to vote at regional council elections and to stand for election and to be elected is confined to persons who are Aboriginal persons or Torres Strait Islanders, and the Rules establish a detailed scheme to ensure compliance with those requirements. The conclusion is inescapable, that the ATSIC Act is discriminatory in its nature. It is intended to further the economic, social and cultural development of Aboriginal persons and Torres Strait Islanders and is directed to obtaining the maximum participation of those persons in the formulation and implementation of government policies that affect them. It is clear that ss. 101(a) and 102(l)(a) directly discriminate on the basis of,race and ethnic origin. |
| I do not accept the submission implicit in the arguments of the applicant that when Parliament enacted the ATSIC Act in 1989 it intended that its operation or effect should be constrained by the RD Act of 1975. The ATSIC Act is an Act of the Commonwealth Parliament dealing comprehensively with the subject matters referred to in its long title, "An Act to establish an Aboriginal and Torres Strait Islander Commission and an Aboriginal and Torres Strait Islander | |
Commercial Development Corporation, and for related purposes ,
and the scheme of the Act was directed to achieve the objects set out in S. 3 of the Act. Integral to that structure are the objects of self management and self sufficiency among Aboriginal persons and Torres Strait Islanders, an object which would be severely undermined if the submissions of the applicant were correct. The discrimination apparent in the ATSIC Act is the essence of it; it is the foundation on which it is structured: see Brennan J in Gerhardv v. Brown (1984-5) 159 CLR 70 at 132.
Here, the Commonwealth Parliament has in terms authorised that which is discriminatory. In my opinion there is no room for the operation of the RD Act in those circumstances. This conclusion in my view is wholly consistent with and supported by the reasoning of Lockhart J in Pareroultia v. Tickner (1993) 42 FCR 32 at 46. O'Loughlin and Whitlam JJ concurred in the judgment of Lockhart J. The question there was whether the Aboriainal Land Riahts _(Northern Territorv! Act 1976 (Cth) operated subject to the
| provisions of the RD Act. Lockhart J said at p. 46: |
" here can be no room for the operation of the Racial Discrimination Act upon the act of issuing a land grant to a Land Trust under the Land Rights Act, because the Parliament has in terms authorised what is said to be the discriminatory act. "
Moreover, in my view, if the provisions of the ATSIC Act do in fact conflict with the provisions of the RD Act, then the ATSIC Act, being the later Act, prevails to the
extent of any inconsistency: see in this respect also the reasoning of Lockhart J in Pareroultia at 46 and the cases cited there.
The contentions of the applicant would mean, not only that persons who were neither Aboriginal persons or Torres Strait Islanders could vote at regional council elections and stand for election, but also that such persons would be eligible for grants and loans, which would frustrate one of the central objects of the Act.
If I am wrong and the ATSIC Act is to be read
subject to the RD Act, then in my opinion the ATSIC Act
constitutes a " s p e c i a l measure" to which paragraph 4 of
Article 1 of the International Convention on the Elimination of all Forms of Racial Discrimination applies, and as a consequence Part 11 of the RD Act, which includes ss. 9 and 10, does not,apply to the ATSIC Act. That the ATSIC Act is a
" spec ia l measure" is demonstrated, inter alia, by the objects
| of the Act in S. 3. Article l(4) of the Convention provides: |
| " Spec ia l measures t aken f o r the sole purpose | o f |
| s e c u r i n g | adequate | advancement | o f | c e r t a i n | r a c i a l |
| or | ethnic | groups | or | i n d i v i d u a l s | r e q u i r i n g | such |
| p r o t e c t i o n | a s | may | be | neces sary | i n | o r d e r | t o |
| ensure | such | groups | or | i n d i v i d u a l s | equal |
| enjoyment or exercise | o f human r i g h t s and |
| fundamental | freedoms | s h a l l n o t be | deemed | r a c i a l |
| d i s c r i m i n a t i o n , provided, however, t h a t such measures do not, a s a consequence, l e a d t o the maintenance o f s epara t e r i g h t s for d i f f e r e n t | r a c i a l | groups | and | t h a t | they | s h a l l | not | be |
| cont inued | a f t e r | the | o b j e c t i v e s | f o r | which | they |
| were t aken have been achieved. | " |
Again, as Lockhart J noted in Pareroultia (at p. 47), the manifest purpose of Article l(4) is to "exempt from
the d e f i n i t i o n o f ' r a c i a l d i s c r im ina t ion ' t h o s e d i s t i n c t i o n s ,
| e x c l u s i o n s , | r e s t r i c t i o n s o r p r e f e r e n c e s | which | a r e made | f o r | the |
| sole purpose | s t a t e d i n t h a t paragraph". |
To adopt the words of Gibbs CJ in Gerhardv v. B r o w at 88, the ATSIC Act adopts "a number o f measures t o ach ieve
i t s purpose b u t nevertheless has the sole purpose o f s e c u r i n g
| the advancement | o f the e t h n i c groups | i n ques t i on" . | In my |