Morton v Queensland Police Service D75/08. (2008)

Legal

Morton v Queensland Police Service D75/08

DISTRICT COURT OF QUEENSLAND

REGISTRY: Townsville

NUMBER: D75/08

Appellant FLORENCE MAREE MORTON

AND

Respondent QUEENSLAND POLICE SERVICE

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL
OPPORTUNITY COMMISSION

1 Introduction

The Human Rights and Equal Opportunity Commission (‘the
Commission’)^[1] has been granted leave to appear as an amicus curiae in the hearing of
this appeal.
These submissions address the following issues:
- Background;
- The Racial Discrimination Act 1975 (Cth) (‘RDA’) and International Convention on the Elimination of all Forms of Racial
  Discrimination (‘ICERD’),
  including^[2]
  - Overview of the RDA and
  - Interpreting the RDA;
- The principles of interpretation relevant to the RDA;
- The proper approach to s 10 of the RDA, including
  - Identifying the ‘right’ protected by s 10 in the
    present case
  - Assessing whether there is differential enjoyment of that right
    and
  - Determining whether any limitation upon the right is a legitimate
    one;
- Special measures; and
- The evidence that the Court may consider.
The Commission has sought to avoid repeating in its submissions matters that
have been adequately covered in the submissions of the parties.
Consistent with its role as amicus curiae, the Commission does not
argue for a particular outcome in these proceedings, but rather seeks to
identify the relevant principles of law as they apply to this case for the
assistance of the Court.

2 Background

This matter concerns the provisions of the Liquor Act 1992 (Qld)
(‘Liquor Act’) and the Liquor Regulation 2002 (Qld)
(‘Liquor Regulation’) that operate to restrict the possession of
alcohol on Palm Island, an Indigenous community.
The relevant effects of the Liquor Act and Liquor Regulation are to make it
an offence for a person to possess on Palm Island more than one case of
mid-strength or light beer and to prohibit the possession of any other form of
alcohol.^[3]
The Liquor Regulations also declare 17 other Indigenous communities to be
restricted areas.^[4]
The appellant, who is an Aboriginal woman, was convicted of an offence under
s 168B(1) of the Liquor Act, having been found possessing two bottles of whiskey
on Palm Island.
Relevant to these submissions, the appellant argues that the relevant
provisions of the Liquor Act and Liquor Regulations are invalid by operation of
s 10 of the RDA which provides for equality before the law. The appellant also
argues that the relevant provisions of the Liquor Act, Liquor Regulations and
the ‘Alcohol Management Plan’ for Palm Island are inconsistent with
s 9 of the RDA.
The respondent argues that s 10 has no operation in this matter. It also
argues that the Liquor Act and Liquor Regulations are a ‘special
measure’ for the purpose of s 8(1) of the RDA.

3 The RDA and ICERD

The RDA gives effect to ICERD and the text of ICERD is set out in the
schedule of the RDA.
ICERD aims to eliminate racial discrimination in all its forms and
manifestations. Its objects reflect the longstanding and widely-recognised
international human rights of non-discrimination and equality.

3.1 Overview of the RDA

Section 9 of the RDA provides for a broad prohibition on acts of racial
discrimination.^[5] It adopts the
language used in art 1(1) of ICERD which defines racial
discrimination.^[6] Relevant to this matter, it provides:

9 Racial discrimination to be
unlawful

(1) It is unlawful for a person to do any act involving a 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 any human right or
fundamental freedom in the political, economic, social, cultural or any other
field of public life.

....

(2) A reference in this section to a human right or fundamental freedom in
the political, economic, social, cultural or any other field of public life
includes any right of a kind referred to in Article 5 of the Convention.

....

(4) The succeeding provisions of this Part do not limit the generality of
this section.

Section 10 of the RDA creates a general right to equality before the law.
Section 10 does not prohibit discrimination per se but is concerned with
ensuring the equal enjoyment of rights of all persons under
law.^[7] It
provides, relevantly:

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, 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
ethnic 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.

It can be seen that ss 9 and 10 protect a wide range of human rights and
freedoms, which are not limited to the human rights described in art 5 of
ICERD.^[8] This is an issue discussed
further at 4.1 below.
Sections 11 to 15 of the RDA proscribe acts of race discrimination in
specific areas of public life, including access to places and
facilities^[9] and the provision of
goods and services.^[10] Those
sections do not limit the generality of s
9^[11] and have been described as
‘amplifying and applying to particular cases the provisions of s
9’.^[12]
Section 8(1) provides for one of the very few exemptions to the RDA. It
provides, relevantly, for special measures to which para 4 of art 1 of ICERD
applies. Article 1(4) of ICERD states:

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.
The issue of special measures is discussed further at section 5 below.
The Commission regards the central issue in this matter as the application
of s 10 of the RDA, which is ‘directed to the operation of
laws’.^[13] It therefore does
not seek to make specific submissions on the operation of s 9(1) as a basis for
potential constitutional invalidity, unless the Court would be assisted by
submissions on this issue.

3.2 Interpreting the RDA

Fundamental to this appeal is the proper construction of the RDA based on
the text of ICERD and underlying principles of international human rights law.
The following general principles of interpretation are relevant to this
matter:

(i) Statutes should be interpreted and applied, as far as their language
permits, to be consistent with established rules of international
law.^[14]
(ii) Remedial legislation, such as the RDA, which is designed to prevent
discrimination and protect human rights should be construed beneficially and not
narrowly.^[15]
(iii) Exemptions and other provisions which restrict rights should be
strictly
construed.^[16]
(iv) The meaning of provisions in a statute that implement a convention is
to be ascertained by reference to the provisions of that
convention.^[17]
(v) When ascertaining the meaning of an international treaty, primacy should
be given to the text of the international treaty with consideration of the
context, objects and purposes of the
treaty.^[18]
(vi) Guidance as to the meaning and effect of international conventions may
be gathered from the views and decisions of expert
committees^[19] such as, relevantly
for the present matter, the Committee on the Elimination of Racial
Discrimination (‘CERD Committee’), established under the ICERD and
the Human Rights Committee established under the International Covenant on
Civil and Political Rights (‘ICCPR’).^[20]
(vii) The manner of interpreting an international treaty is one which is
more liberal than that ordinarily adopted by a court construing exclusively
domestic statutes. It is undertaken in a manner unconstrained by technical local
rules or precedent, but on broad principles of ‘general
acceptation’.^[21]

It has also been noted that ‘broad and elastic terminology’ is
required to achieve the broad purposes of ICERD and the
RDA.^[22]

4 Applying s 10

In applying s 10 of the RDA it is necessary to ask:
- What is the relevant ‘right’ or ‘rights’ that are
  affected by the impugned law?
- Do persons of a particular race not enjoy that right or enjoy it to a more
  limited extent than persons of another race by reason of the impugned law? This
  requires asking:
  - Is there a limitation upon the enjoyment of a right by people of a
    particular race by reason of law; and
  - Is any limitation upon the right a legitimate one, intended to
    achieve a non-discriminatory
    purpose?^[23]

4.1 What is the relevant ‘right’ or
‘rights’ that are affected?

Courts applying s 10 have sought to identify a particular right that persons
of a particular race either do not enjoy or enjoy to a more limited extent than
persons of another race.
It is necessary, however, to approach the meaning of ‘rights’ in
a broad way to avoid undermining the purpose of s 10(1). As its title makes
clear, s 10 is intended to guarantee equality before the law. Such purpose is
also clear from the second reading speech of the Racial Discrimination Bill
1975: ‘The Bill will guarantee equality before the law without distinction
as to race.’^[24]

(a) Equality before the law

The principles of equality and non-discrimination are well-recognised parts
of international customary law.^[25] Importantly, equality is a free-standing or independent right that is additional
to other specific rights.^[26] Article 26 of the 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, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
The Human Rights Committee has stated in General Comment 18:

1.
Non-discrimination, together with equality before the law and equal protection
of the law without any discrimination, constitute a basic and general principle
relating to the protection of human rights...

....

12. While article 2 limits the scope of the rights to be protected against
discrimination to those provided for in the Covenant, article 26 does not
specify such limitations. That is to say, article 26 provides that all persons
are equal before the law and are entitled to equal protection of the law without
discrimination, and that the law shall guarantee to all persons equal and
effective protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the
guarantee already provided for in article 2 but provides in itself an autonomous
right. It prohibits discrimination in law or in fact in any field regulated and
protected by public authorities. Article 26 is therefore concerned with the
obligations imposed on States parties in regard to their legislation and the
application thereof... In other words, the application of the principle of
non-discrimination contained in article 26 is not limited to those rights which
are provided for in the
Covenant.^[27]
It is therefore not necessary at international law for a separate
‘right’ to be identified when considering whether the right to
equality before the law has been breached. Where a field is regulated or
protected by public authorities, discrimination ‘in law or in fact’
is prohibited. The same approach should be taken to the protection afforded by s
10 of the RDA.

(b) A broad approach to ‘rights’ under s
10

Deane J stated in Mabo v Queensland:

The word
‘right’ is used in s 10(1) in the same broad sense in which it is
used in [ICERD], 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
[ICERD].^[28]
The ‘rights’ protected by s 10(1) are not limited to the rights
set out in ICERD. It is also clear that the term ‘right’ as used in
s 10(1) does not necessarily refer to a legal right recognised in domestic
law.^[29]
As Brennan J observed of the expression ‘human rights and fundamental
freedoms’ in ss 8(1) and 9(1) of the RDA:

The conception of
human rights and fundamental freedoms in the Convention definition of racial
discrimination describes that complex of rights and freedoms the enjoyment of
which permits each member of a society equally with all other members of that
society to live in full dignity, to engage freely in any public
activity and to enjoy the public benefits of that
society.^[30]
Where a law regulates the behaviour of individuals, as in the present case,
it will invariably impact upon ‘rights’ so as to engage the
operation of s 10(1). Such laws will necessarily directly affect the ability of
individuals to ‘engage freely in any public activity and to enjoy the
public benefits of that society’.
When understood in this context, the Commission submits that at least two
distinct ‘rights’ under s 10(1) can be identified in this case: the
right of access to goods or, alternatively, the right to engage freely in public
activity.

(c) The right of access to goods

The Commission submits that the Liquor Act and Regulations engage the right
of access to goods. That right includes the terms and conditions upon which a
person may access those goods – including limitations on the ability to
possess them.
The right to access goods is explicitly recognised by the RDA in s 13 which
makes it unlawful to refuse to supply goods or services or to refuse to
supply goods or services except on less favourable terms or conditions, by
reason of the race of a person.
The explicit prohibition on discrimination in the provision of goods and
services in s 13 recognises that this is a right to which the general
prohibition against non-discrimination in s 9(1) applies. As noted above, s 13
is to be understood as ‘amplifying and applying to particular cases the
provisions of s 9’^[31] which
applies generally to ‘human rights and fundamental
freedoms’.

(d) The right to engage freely in public
activity

It is alternatively open to the Court to find that the Liquor Act and
Regulations engage the rights of residents of Palm Island to ‘engage
freely in public activity’, namely the possession and consumption of
alcohol on Palm Island. This is consistent with broad approach that the High
Court has held is appropriate to the rights protected by s 10(1).

(e) The decisions in Ebber and P’s
case

The respondent’s submissions note the decisions of Drummond J in Ebber v Human Rights and Equal Opportunity Commission(‘Ebber’)^[32] and Secretary, Department of Veterans Affairs v P (‘P’s
case’)^[33] to the effect
that a right must be ‘fundamental to an individual’s existence as a
human being’.^[34] The
respondent argues that ‘a right to possess liquor is not a right of the
kind with which s 10 is
concerned’.^[35] The Commission
submits that this submission should be rejected.
First, as identified above, the laws engage the right of access to goods.
This is a fundamental right, recognised explicitly in the RDA. The
central issue is the right of access, rather than the type of good in question
– it is not open to a shopkeeper, for example, to decide not to sell
certain products to people of a particular race on the basis that there is no
right to those particular goods.
Second, the approach of the respondent takes an inappropriately narrow view
of the rights at issue in the present case. Laws regulating behaviour do impact upon rights that are fundamental to an individual’s existence as a
human being. In Hagan v Trustees of the Toowoomba Sports Ground
Trust,^[36] Drummond J
held:

It can be accepted that s 9(1) protects the basic human right
of every person who is a member of a particular racial group to go about his
recreational and other ordinary activities without being treated by others less
favourably than persons who do not belong to that racial
group...^[37]
Similarly, in Gerhardy, Mason J observed:

The expression
‘human rights’ is commonly used to denote the claim of each and
every person to the enjoyment of rights and freedoms generally acknowledged as
fundamental to his or her existence as a human being and as a free individual in
society. The expression includes claims of individuals as members of a racial
or ethnic group to equal treatment of the members of that group in common with
other persons.^[38]
It can be recalled that laws regulating ‘ordinary activities’
were features of the notorious policies of both segregation and apartheid. If
laws regulating behaviour are found to discriminate against people of a
particular race, they offend the fundamental principles of equality and
non-discrimination. They deny ‘equal treatment of the members of that
group in common with other persons’. Laws that make arbitrary racial
distinctions deny the right of the people affected by those laws to live
‘in full dignity’.
The decisions in Ebber and P’s case can also be clearly
distinguished from the present
case.^[39] Neither Ebber nor P’s case concerned laws regulating behaviour of the type at issue
here. Ebber concerned the recognition of international architectural
qualifications, while P’s case concerned government-subsidised
housing loans.

4.2 Is there a limitation on the enjoyment of the
right by Indigenous people?

The Full Federal Court in Bropho v Western
Australia (‘Brohpo’)^[40] described the operation of s 10(1) in the following way:

[Section]
10(1) of the [RDA] is engaged where there is unequal enjoyment of rights between
racial or ethnic groups: see Ward v Western Australia (2002) 213 CLR 1.
Section 10(1) does not require the Court to ascertain whether the cessation of
rights is by reason of race, with the clear words of s 10 demonstrating that the
inquiry is whether the cessation of rights is 'by reason of' the legislation
under challenge. Further, s 10 operates, not merely on the intention, purpose or
form of legislation but also on the practical operation and effect of
legislation (Gerhardy v Brown, at 99; Mabo v Queensland
[No 1] (1988) 166 CLR 186 at 230-231; Western Australia v Ward at 103).^[41]
The practical operation and effect of declaring Palm Island and other
Indigenous communities to be restricted areas is to limit the ability of
Indigenous people to possess alcohol. This impacts disproportionately upon their
rights (outlined above) in comparison to the rights of non-Indigenous people.
The burden of the law does not fall equally on all racial
groups.^[42]
While it is not necessary to show that the laws were intended to have a
disproportionate impact, the Commission observes that the relevant laws are
explicitly aimed at Indigenous communities. They are intended to reduce the
consumption of alcohol by Indigenous people living in those communities. The
relevant offence under s 168B was introduced by the Indigenous Communities
Liquor Licenses Act 2002 (Qld). The stated purpose of the Act is ‘to
prevent harm in community areas caused by alcohol abuse and misuse and
associated violence’. The Explanatory Notes to the Indigenous Communities
Liquor Licences Bill make explicit what is apparent from the legislation’s
title – namely that its objective is to ‘prevent harm in Indigenous communities’ (emphasis added) by, amongst other things,
providing for the declaration of restricted areas and prescribing limits on the
quantity of liquor that a person can have in their
possession.^[43]
In the second reading speech, the Minister for Families and Minister for
Aboriginal and Torres Strait Islander Policy noted that one of the key elements
of the bill was ‘the ability to control the amount of alcohol brought into
indigenous
communities’.^[44]
The explanatory notes to the Indigenous Communities Liquor Licenses Bill
2002 state:

The Bill is part of the Government’s response to
the Cape York Justice Study report, which was submitted to the 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. It complements the Community Services Legislation Amendment Bill 2002.

....

The Cape York Justice Study report highlighted the seriousness of the alcohol
problem in Indigenous communities in clear and unequivocal terms:

Alcohol abuse and associated violence are so prevalent and damaging that
they threaten the communities’ existence and obstruct their
development.

Justice Fitzgerald recommended immediate Government intervention and pointed
out that unless the epidemic of alcohol abuse in Indigenous communities is
addressed, reforms in social and economic development and education will not be
sustainable. It was recommended that Government should first seek to work with
and empower Indigenous communities to take action to address alcohol, but that
if this community-based approach did not result in improvements within 3 years,
the Government should consider prohibiting alcohol
altogether.^[45]
The focus of the laws on ‘Indigenous communities’ rather than
‘Indigenous people’ is a matter of form, not substance. That the
laws are intended to reduce the consumption of alcohol by Indigenous people is
clear from the Cape York Justice Study Report which opens the section on Alcohol
with the following:

There is overwhelming evidence that harmful
levels of alcohol consumption by Aboriginal people in the Cape York region are
the chief precursor to violence, crime, injury and ill-health in these
populations.^[46]

4.3 Is the limitation a ‘legitimate’
one?

(a) The decision in Bropho

The Full Federal Court in Bropho held that:

[A]ll rights
in a democratic society must be balanced against other competing rights and
values, and the precise content of the relevant right or freedom must
accommodate legitimate laws of, and rights recognised by, the society in which
the human right is said to
arise.^[47]
That case concerned the closure of the Swan Valley Nyungah Community. The
Full Court was required to consider whether the Western Australian law that
effected its closure contravened s 10(1) of the RDA. The Full Court considered
what permissible limitations could be imposed upon the rights of the inhabitants
of that community to occupy and manage land (as part of a broadly understood
‘right to property’).
The Full Court first identified what permissible limits could be placed upon
the right to property at international
law^[48] and held that ‘a State
has a right to enforce such laws as it deems necessary to control the use of
property in accordance with the general
interest’.^[49]
The Full Court concluded:

[T]he right to occupy and manage the
land conferred by statute was subject to the contingency that the right would be
removed or modified if its removal or modification was necessary to protect
vulnerable members of the community enjoying the right of occupation and
management. We accept that it will always be a question of degree in determining
the extent to which the content of a universal human right is modified or
limited by legitimate laws and rights recognised in Australia. We also emphasise
that these observations are not intended to imply that basic human rights
protected by the [RDA] can be compromised by laws which have an ostensible
public purpose but which are, in truth,
discriminatory.^[50]
The Full Court held that ‘no invalid diminution of property rights
occurs where the State acts in order to achieve a legitimate and
non-discriminatory public
goal’.^[51] The Court found
that the laws in that case interfered with the rights of the Indigenous
residents, but did so to protect the safety and welfare of the residents,
particularly women and children. They were therefore not invalidated by s 10(1)
of the RDA.

(b) Applying Bropho

A number of important points should be noted in applying the decision in Bropho in the present case and determining what will constitute a
‘legitimate’ interference with
rights.^[52]
First, when determining the legitimacy of a limitation of a right, the
assessment is an objective one – it is not sufficient, for example, that
the parliament lacked a discriminatory motive or
intention.^[53]
Second, proportionality will be a vital factor in making assessments of what
is ‘legitimate’, ‘reasonable’ or
‘justifiable’ – a measure will not be legitimate if its impact
upon rights is disproportionate to the claimed purpose or benefit of the
measure. In considering proportionality it is appropriate to consider the
following:
- Is the measure applied only for a specific purpose and directly related to a
  specific need?
- Is the regime the least restrictive one available to achieve the lawful
  objectives pursued? The court should consider whether the measure can
  reasonably be said to involve the least possible interference with the right to
  be free from race discrimination.
Third, the legitimacy of any limitation upon a right must be assessed in the
context of the right in question: not all rights can necessarily be limited in
the same ways.^[54]
Fourth, because the ‘balancing’ of rights is taking place in the
context of the right to racial equality before the law and non-discrimination,
legitimacy should be judged against the objectives and purposes of ICERD and the
ICCPR. The CERD Committee has observed of the right to non-discrimination under
ICERD that

a differentiation of treatment will not constitute
discrimination if the criteria for such differentiation, judged against the
objectives and purposes of the Convention, are legitimate or fall within the
scope of article 1, paragraph 4, of the Convention. In considering the criteria
that may have been employed, the Committee will acknowledge that particular
actions may have varied purposes. In seeking to determine whether an action has
an effect contrary to the Convention, it will look to see whether that action
has an unjustifiable disparate impact upon a group distinguished by race,
colour, descent, or national or ethnic
origin.^[55]
Similarly, the Human Rights Committee has observed of the right to equality
before the law and non-discrimination in art 26

that not every
differentiation of treatment will constitute discrimination, if the criteria for
such differentiation are reasonable and objective and if the aim is to
achieve a purpose which is legitimate under the
Covenant.^[56]
As noted above, in determining what is ‘justifiable’ and
‘reasonable’, the touchstone is proportionality.

(c) Legitimate limitations upon rights in the
present case

The Commission submits that the following factors need to be balanced in
determining whether the limitations upon rights in the present case are
legitimate.

(i) Proportionality

The Court should consider whether the Liquor Act and Regulations can be
reasonably considered to involve the least possible interference with the right
to be free from race discrimination to achieve their stated purpose.
Relevant to this question is what other measures have been or could have
been implemented on Palm Island to deal with issues surrounding the abuse/misuse
of alcohol and/or the prevention of alcohol-related disturbances and
violence.

(ii) Self-determination

Indigenous people have the right to self-determination. This is a
fundamental human right protected by art 1(1) of the ICCPR, which
provides:

All peoples have the right of self-determination. By
virtue of that rights they freely determine their political status and freely
pursue their economic, social and cultural
development.^[57]
The wishes of Indigenous people in relation to measures affecting them will
therefore be relevant to determining the legitimacy of such measures. They are
also relevant to determining whether a measure is a ‘special
measure’, discussed below.
Section 173I of the Liquor Act provides for consultation with the community
justice group for a particular community area. In particular, it requires that
the Minister consult with the community justice group and consider any
recommendation made by the community justice group (s 173I(2)). A failure to do
so does not, however, affect the validity of a regulation made (see s 173I(4)).

(iii) Concrete measures to guarantee enjoyment of
rights

Article 2(2) of ICERD imposes an obligation upon parties to the convention
to, when the circumstances so warrant, take ‘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.’
The applicability of this provision in the present case is discussed below
in the context of the related exemption for ‘special measures’ set
out in art 1(4) of ICERD.

(iv) Right to security of the person

All people have the right to security of the
person.^[58] This right imposes upon
governments the obligation to take positive action to protect its citizens from
violence, including violence from private
persons.^[59]
Governments have a particular obligation under art 3(2) of the Convention
on the Rights of the Child to protect and care for the wellbeing of
children.^[60]

(v) Right to health and development

All people have a right to enjoy the ‘highest attainable standard of
physical and mental
health’.^[61]
Children, in particular, have the right to development. Article 6(2) of the
CRC imposes upon parties the obligation ‘to ensure to the maximum extent
possible the survival and development of the child’.

5 Special measures

If the Court finds that the operation of the
Liquor Act and Regulations is altered by s 10, it is necessary to consider
whether the Act and Regulations are ‘special measures’ for the
purposes of s 8(1) of the RDA.
The concept of special measures is generally understood to apply to positive
measures taken to redress historical disadvantage and create more favourable
conditions or confer benefits on a particular racial group. The exemption
applies to defeat any claim by a different group that it has been discriminated
against. The expression ‘special measures’ is often used
interchangeably with the expressions such as ‘affirmative
action’.^[62]
Brennan J identified five characteristics to be satisfied in order for a
measure to come within s 8(1):
1. the special measure must confer a benefit on some or all members
  
  of a
  class;
2. membership of this class must be based on race, colour, descent, or national
  or ethnic origin;
3. the special measure must be 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. the protection given to the beneficiaries by the special measure must be
  necessary in order that they may enjoy and exercise equally with others human
  rights and fundamental freedoms; and
5. the special measure must not have achieved its
  objectives.^[63]
While it is appropriate to consider the effect of legislation as a whole
when determining whether it is a ‘special measure’, it is still
necessary for its parts to be ‘appropriate and adapted’ to this
purpose.^[64] In the present case, it
is necessary for the Court to consider whether the declaration of Palm Island as
a restricted area satisfies the test for a special measure, as opposed to the
introduction of the general provisions of the Liquor Act and Liquor Regulations
and their application to Indigenous communities generally.
In Vanstone v
Clark,^[65] Weinberg J noted:

The Minister submitted that once it is conceded that s31(1) [of the
ATSIC Act] is a ‘special measure’, any limits inherent in or
attached to the office designated by that section are part of the special
measure, and can not be separately attacked as racially discriminatory... In my
view, this submission can not be accepted. It involves, a strained, if not
perverse, reading of s 8 of the RDA, and would thwart rather than promote the
intention of the legislature. If the submission were correct, any provision of
an ancillary nature that inflicted disadvantage upon the group protected under a
‘special measure’ would itself be immune from the operation of the
RDA simply by reason of it being attached to that special measure.

5.1 ‘Advancement’ and the need for
consultation and consent

Brennan J in Gerhardy considered how to determine whether a measure
was for the ‘advancement’ of the beneficiaries. His Honour stated:

‘Advancement’ is not necessarily what the person who
takes the measure regards as a benefit for the beneficiaries. The purpose of
securing advancement for a racial group is not established by showing that the
branch of government or the person who takes the measure does so for the purpose
of conferring what it or he 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.^[66]
The Magistrate at first instance was, with respect, correct to find that
‘[s]upport of the community for the introduction of a special measure...
is critical to its
legitimacy’.^[67]
This approach is consistent with relevant principles of international law.
Consulting with, and seeking the consent of, the group that is to be the subject
of the special measure is consistent with the protection of the rights of
minorities^[68] and the right of
Indigenous peoples to self-determination.
The CERD Committee, in its General Recommendation on the rights of
Indigenous peoples, has also stressed the need to:

Ensure that
members of indigenous peoples have equal rights in respect of effective
participation in public life and that no decisions directly relating to their
rights and interests are taken without their informed
consent...^[69]
The Commission notes, however, that a different approach was taken at first
instance by Nicholson J in Bropho. While it is unclear whether the
reasoning formed part of the ratio of the case or was obiter, as
Nicholson J decided the case on other grounds, his Honour declined to follow the
approach of Brennan J in Gerhardy, stating that Brennan J’s view
had no ‘apparent judicial support’ and was ‘not consistent
with the general principles expressed in the
case.’^[70] While his
Honour’s approach to other aspects of the RDA was questioned by the Full
Federal Court,^[71] and the Full
Court found that his Honour had erred on the correct identification of the
‘right’ for the purposes of s
10,^[72] it was not necessary for the
Full Court to consider the issue of special measures.
The Commission submits that the approach of Brennan J in Gerhardy is
the correct one and that the conclusion of Nicholson J in Bropho cannot
be supported by reference to Gerhardy and relevant international law
principles (discussed above).
In particular, the Commission notes first that the other justices in Gerhardy neither supported nor disagreed with Brennan J’s
observation.^[73]
Second, it is necessary for a measure to be ‘appropriate and
adapted’ to the relevant purpose of advancing the particular
group.^[74] The Commission submits
that it is not possible to reach that conclusion without considering the wishes
of the particular group concerned. To the extent that the impact of the measures
upon group members may differ, the specific wishes of those persons who are the
intended beneficiaries of the measure must be considered closely.
The Commission accepts that, on the approach of Brennan J, the wishes of the
beneficiaries may not always be determinative of whether the measure in
question is a special measure. The extent of consultation required and the need
for consent must be considered in the context of each particular case. To
suggest, however, that consultation and consent are not of great importance
contemplates a paternalism that considers irrelevant the views of a group as to
their wellbeing and decisions materially affecting them. Such an approach should
not be followed.

5.2 ‘Political questions’ in the test
for special measures

Brennan J in Gerhady recognised that

[w]hether a special
measure is needed and is likely to alter the circumstances affecting a
disadvantaged racial group in such a way that they will be able to live in full
dignity, to engage freely in any public activity and to enjoy the public
benefits of society equally with others if they wish to do so is, at least in
some respects, a political question. A court is ill-equipped to answer a
political question.^[75]
It is nevertheless necessary for a court to determine ‘whether the
political branch acted reasonably in making its
assessment’.^[76] This requires
a court to ‘decide the limits within which a political assessment might
reasonably be made’.^[77] This
includes being satisfied that:

the element of ‘advancement’ is met, based on the wishes of the
beneficiaries;^[78]
the circumstances of the racial group (about which a factual finding needs
to be made), can reasonably support the taking of the
measure;^[79] and
the measure is capable of being reasonably considered to be appropriate and
adapted to achieving its
purpose.^[80]

6 The evidence that the Court may consider

It is unclear, at the time of preparing these submissions, what evidence
will be before the Court in this matter. The Commission submits that the Court
may be assisted by evidence on a range of issues raised above and is not limited
to that put before it by the parties.
Brennan J in Gerhardy stated:

There is a distinction
between a judicial finding of a fact in issue between parties upon which a law
operates to establish or deny a right or liability and a judicial determination
of the validity or scope of a law when its validity or scope turns on a matter
of fact. When a court, in ascertaining the validity or scope of a law,
considers matters of fact, it is not bound to reach its decision in the same way
as it does when it tries an issue of fact between the parties. The validity
and scope of a law cannot be made to depend on the course of private litigation.
The legislative will is not surrendered into the hands of the litigants. When
the validity of a State law is attacked under s.109 of the Constitution and the
scope of the Commonwealth law with which it is thought to be inconsistent
depends on matters of fact (which I shall call the statutory facts) the function
of a court is analogous to its function in determining the constitutional
validity of a law whose validity depends on matters of fact...

....

The Court may, of course, invite and receive assistance from the parties to
ascertain the statutory facts, but it is free also to inform itself from other
sources. Perhaps those sources should be public or authoritative, and perhaps
the parties should be at liberty to supplement or controvert any factual
material on which the Court may propose to rely, but these matters of procedure
can await consideration on another day. The Court must ascertain the statutory
facts ‘as best it can’ and it is difficult and undesirable to impose
an a priori restraint on the performance of that
duty.^[81]
It can be noted that, similar to the present matter, Gerhardy also
involved a challenge to the validity of a law under which an individual, Brown,
had been charged.
While conscious of the limited evidentiary role typically played by an amicus curiae, should the Court seek assistance in ascertaining the
statutory facts in this matter, the Commission will endeavour to provide that
assistance.

........................

Jonathon Hunyor

Solicitor for the
Human Rights and Equal Opportunity Commission

3 October 2008

^[1] The Human Rights and Equal
Opportunity Commission is the legal name for the Australian Human Rights
Commission.

^[2] Opened for
signature 21 December 1965 (entered into force 4 January 1969 except for art 14
which came into force 4 December 1982). ICERD entered into force for Australia
on 30 October 1975 and art 14 with effect from 28 January 1993.

^[3] Section 168B of the Liquor Act
makes it an offence to possess more than a prescribed quantity of a type of
liquor in a restricted area. Restricted areas are declared by regulation
pursuant to s 173G and 173H. Schedule 1R of the Liquor Regulations declares Palm
Island to be a restricted area. Paragraph 2 of sch 1R provides that the
prescribed quantity of alcohol is 11.25 litres of beer less than 4% alcohol and
for any other liquor zero.

^[4] See Schedules 1A-R of the
Liquor Regulations.

^[5] The term
‘race’ is used throughout these submissions as a shorthand for the
expression ‘race, colour or national or ethnic origin’ that appears
in the RDA.

^[6]Koowarta v
Bjelke-Petersen (1982) 153 CLR 168, 264-265 (Brennan
J).

^[7]Gerhardy v Brown (1985) 159 CLR 70 (‘Gerhardy’), 99 (Mason J); Western
Australia v Ward (2002) 213 CLR 1 (‘Ward’), [105]
(Gleeson CJ, Gaudron, Gummow and Hayne JJ).

^[8]Gerhardy, above n 7, 101-2 (Mason J),
125-6 (Brennan J).

^[9]RDA s 11.

^[10] RDA s 13.

^[11] RDA s 9(4).

^[12] Gerhardy, above n 7, 85 (Gibbs CJ).

^[13] Ibid, 196 (Mason J); Ward, above n 7, 97 [101] (Gleeson CJ, Gummow and Hayne JJ).

^[14]Kartinyeri v Commonwealth (1998) 195 CLR 337, 385 [97] (Gummow and Hayne JJ).

^[15] Waters v Public
Transport Corporation (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J,
Deane J agreeing), 372 (Brennan J), 394 (Dawson and Toohey JJ), 406-7
(McHugh J).

^[16] X v Commonwealth (1999) 200 CLR 177, 223 (Kirby
J).

^[17] Koowarta v
Bjelke-Petersen above n 6, 264-5 (Brennan J); Gerhardy above n 7, 124 (Brennan
J).

^[18]Pilkington
(Australia) Ltd v Minister of State for Justice & Customs (2002) 127 FCR
92, 100 [26].

^[19] Chan v
Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 392 (Mason
CJ), 396-397 and 399-400 (Dawson J), 405 (Toohey J), 416 (Gaudron J), 430
(McHugh J).

^[20] Opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976,
except art 41 which came into force 28 March
1979).

^[21]Pilkington
(Australia) Ltd, above n 18, 100 [26] and authorities cited therein.

^[22] Baird v Queensland (2006) 156 FCR 541, 468 [62] (Allsop J, Spender and Edmonds JJ agreeing).

^[23] Bropho v State of Western
Australia [2008] FCAFC 100,
[81]-[83].

^[24] Commonwealth, Parliamentary Debates, Senate, 15 April 1975, 999 (James McClelland,
Minister for Manufacturing
Industry).

^[25] See B.G.
Ramcharan ‘Equality and Nondiscrimination’ in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political
Rights (1981) 246, 249; Warwick McKean Equality and Discrimination under
International Law (1983) 283; Ian Brownlie Principles of Public
International Law (6^th ed 2003) 546.

^[26] Ramcharan ibid
253.

^[27] Human Rights Committee General Comment 18: Non-discrimination (Thirty-seventh session), U.N.
Doc. HRI/GEN/1/Rev.1 at 26 (1994) (emphasis added).

^[28] Ibid 229.

^[29] Mabo v Queensland (1988) 166 CLR 186 (‘Mabo No 1’), 217 (Brennan,
Toohey and Gaudron JJ).

^[30] Gerhardy, above n 7, 126 (emphasis
added).

^[31] Gerhardy, above n 7, 85 (Gibbs CJ).

^[32] (1995) 129 ALR 455.

^[33] (1998) 79 FCR 594.

^[34] See [23]-[26] of the
respondent’s outline of argument dated 15 September 2008.

^[35] Respondent’s outline
of argument dated 15 September 2008, [27].

^[36] [2000] FCA 1615.

^[37] [2000] FCA 1615, [38].

^[38] Above n 7, 101 (emphasis
added).

^[39] The Commission notes
further that it does not concede the correctness of either decision, but it is
not necessary to argue that point here.

^[40] [2008] FCAFC 100.

^[41] Ibid [73].

^[42] Ward, above n 7, 100 [108] (Gleeson
CJ, Gaudron, Gummow and Hayne JJ).

^[43] Explanatory Notes,
Indigenous Communities Liquor Licences Bill 2002 (Qld),
1.

^[44] Queensland, Parliamentary Debates, 6 August 2002, 2632 (Judy Spence, Minister for
Families and Minister for Aboriginal and Torres Strait Islander Policy and
Minister for Disability Services and Minister for Seniors).

^[45] Above n 43, 1-2.

^[46] Tony Fitzgerald, Cape
York Justice Study (2001),
40.

^[47] Above n 23, [81]. Mason J took
a similar approach to the right to freedom of movement in Gerhardy: above
n 7, 102-4.

^[48] Ibid [80].

^[49] Ibid [83].

^[50] Ibid [82].

^[51] Ibid
[83].

^[52] Note that where a
right is one that is expressly protected by a convention it will be necessary to
consider what limitations are permitted under that convention and/or what, if
any, limitations are recognised for that specific right: see, for example, art
29 of the Universal Declaration of Human Rights, GA Res 217A(III), UN Doc
A/810 at 71 (1948); United Nations Economic and Social Council Siracusa
Principles on the Limitation and Derogation Provisions in the International
Convenant on Civil and Political Rights, UN Doc E/CN4/1985/4, Annex (1985)
(‘Siracusa Principles’).

^[53] This follows from the
approach to s 10 generally – see para 43 of these submissions.

^[54] Siracusa principles, above n 52,
[4].

^[55] Committee on the
Elimination of Racial Discrimination, General Recommendation 14: Definition
of Racial Discrimination (Forty-second session), UN Doc A/48/18 at 114
(1994), [2] (emphasis
added).

^[56] Human Rights
Committee General Comment 18: Non-discrimination, above n 27, [13] (emphasis
added).

^[57] See also the right
in the same terms in art 1(1) of the International Covenant on Economic,
Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS
3 (entered into force 3 January 1976) (‘ICESCR’).

^[58] Article 9
ICCPR.

^[59] Delgado Paez v
Colombia, Communication No 195/85, UN Doc CCPR/C/39/D/195/1985 (1990) [5.5]; Jayawardene v Sri Lanka, Communication No 916/00, UN Doc A/57/40 at 234
(2002).

^[60] Opened for signature
20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

^[61] Article 12(1)
ICESCR.

^[62]See, for example,
Theodor Meron, ‘The Meaning and Reach of the International Convention on
the Elimination of All Forms of Racial Discrimination’ (1985) 79 Am J.
Int’l Law 283 at 305; Natan Lerner, The UN Convention on the
Elimination of All Forms of Racial Discrimination (1980), 32; UN Human
Rights Committee, General Comment 18: Non-discrimination, above n 27, [10].

^[63] Gerhardy, above n 7, 133. See also Bruch v Commonwealth [2002] FMCA 29.

^[64]Ibid 105 (Mason J), 149
(Deane J).

^[65](2005) 147 FCR
299, 354 [209], Black CJ agreeing.

^[66] Ibid, 135.

^[67] Record Book
24.10.

^[68]See art 27 of the
ICCPR.

^[69] Committee on the
Elimination of Racial Discrimination, General Recommendation 23: Rights of
indigenous peoples (Fifty-first session), U.N. Doc. A/52/18, annex V at 122
(1997), [4(d)].

^[70] Bropho v Western
Australia [2007] FCA 519, [569].

^[71] Bropho, above n 23, [61]-[62]

^[72] Ibid
[78].

^[73]See, for example,
Wilson J at 113 who refers to the consultation with the beneficiaries of the
measure.

^[74]Gerhardy,
above n 7, 105
(Mason J), 149 (Deane J).

^[75] Ibid, 137-8 (Brennan J).

^[76] Ibid, 138 (Brennan J).

^[77] Ibid, 139 (Brennan J).

^[78] Ibid.

^[79] Ibid.

^[80] Ibid, 149 (Deane J), 139
(Brennan J).

^[81] Ibid 141-2 (Brennan J)
(emphasis added).

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