The High Court has provided insight into the scope and operation of “special measures” under the Racial Discrimination Act 1975 (Cth) (RDA), holding that laws and regulations restricting the possession of alcohol on Palm Island were for the benefit of Aboriginal peoples. Contrary to statements of leading UN bodies such as the Committee on the Elimination of Racial Discrimination (UN Committee) and the UN Expert Mechanism on the Rights of Indigenous Peoples, the Court has found that special measures do not require either consultation with or the informed consent of an affected community.
The appellant, Ms Joan Maloney, was convicted on 27 October 2010 in the Palm Island Magistrates Court for possession of a quantity of alcohol above the prescribed limit contained in section 168B of the Liquor Act 1992 (Qld). Schedule 1R of the Liquor Act prescribes limits as to the quantity and nature of alcohol that may be possessed by persons on Palm Island, an almost entirely Aboriginal community.
The appellant, an Aboriginal woman, appealed her conviction to the Townsville District Court and subsequently to the Queensland Court of Appeal on the basis that the relevant provisions of the Liquor Act breached section 10 of the RDA and were therefore invalid pursuant to section 109 of the Constitution. Both appeals were unsuccessful and the appellant subsequently sought and was granted leave to appeal to the High Court of Australia.
The respondent argued that the relevant provisions of the Liquor Act were a “special measure” permitted by section 8 of the RDA because they were designed to address the significant issues associated with alcohol on Palm Island. Under section 8 of the RDA, a measure will not constitute discrimination under section 10 if it can be established that the measure is a special measure.
The National Congress of Australia's First Peoples, the national representative body for Aboriginal and Torres Strait Islander peoples, was granted leave to be heard as amicus curiae. The submissions made by National Congress focused on international human rights standards relating to the participation of Aboriginal and Torres Strait Islander peoples in decision making and the role of consultation and informed consent in the characterisation of special measures. The Australian Human Rights Commission was also granted leave to appear as amicus curiae.
The Court held by a majority of 5-1 (Justice Kiefel dissenting) that the relevant provisions of the Liquor Act were discriminatory under section 10 of the RDA. However, the Court unanimously dismissed the appeal on the basis that the relevant provisions were "special measures" within the meaning of section 8 of the RDA. The Court also unanimously held that neither consultation with beneficiaries, nor their consent, are prerequisites for a special measure under the RDA.
Equality Before the Law – Section 10 of the RDA
In addressing whether section 10 of the RDA was breached by the relevant provisions of the Liquor Act, the Court held by a 5-1 majority that a fundamental human right – the right to own property – had been infringed. Chief Justice French held that the impugned provisions had the effect that Aboriginal and Torres Strait Islander persons who were the Palm Island community, including the appellant, could not enjoy a right of ownership of property to the same extent as non-Indigenous people outside that community.
Justice Kiefel rejected the notion that the relevant right was that of the right to own property. Her Honour concluded that the relevant right is the freedom to possess alcohol for consumption; a right which is enjoyed by groups elsewhere inQueenslandand which is denied to the residents ofPalmIsland. On this identification, her Honour rejected the idea that the relevant right can be characterised as a "human right" and, as such, concluded that the impugned provisions did not engage section 10 of the RDA.
Special Measures –Section 8 of the RDA
The appellant submitted that the liquor restrictions could not be characterised as a special measure because they criminalised certain conduct and were therefore disproportionate to the need to have some alcohol management plan for Palm Island. The Court unanimously found that the liquor provisions were properly characterised as a "special measure" for the purposes of section 8 of the RDA, however the approach taken by each judge in reaching that finding differed slightly. The Court was divided on the issue of whether the words "as may be necessary" in Art 1(4) of CERD implied a test of proportionality or reasonable necessity into section 8 of the RDA.
Justices Hayne and Crennan considered that section 8 requires considerations of whether less restrictive alternative measures are available to achieve the same objectives, but found that there was no material before the Court which would allow it to assess the capacity of alternative and less restrictive means to effect an equivalent protection of the Palm Island community.
Chief Justice French found that if the measure can be seen to be appropriate and adapted, it was not for the Court to consider if a less restrictive option was available. His Honour stated that where:
… the character of a special measure depends in part upon a political assessment about the need for advancement of a racial group and the measure that is likely to secure the advancement necessary, the Court must accept the assessment made by the political branch of government.
Consultation and Informed Consent
The appellant, as well as the National Congress and Australian Human Rights Commission (both intervening as amicus curiae), argued that in accordance with international human rights law valid special measures required either the free, prior and informed consent, or alternatively consultation with the affected community. They drew from various international sources regarding the interpretation of the rights of Indigenous peoples and special measures under CERD and the UN Declaration on the Rights of Indigenous Peoples, including General Recommendations of the Committee on the Elimination of Racial Discrimination, the UN Special Rapporteur on the Rights of Indigenous Peoples, and the UN Expert Mechanism on the Rights of Indigenous Peoples.
The Court unanimously held (although it was not strictly necessary for Justice Kiefel to decide) that neither consultation with, nor the consent of, those people affected is a legal requirement for a "special measure" under section 8 of the RDA. The Court found that there is no basis in the RDA, or in the text of CERD, for imposing either a consultation or consent requirement.
In particular, Chief Justice French rejected the submission that extraneous material, such as General Recommendation No 32 on special measures adopted in 2009 by the Committee on the Elimination of Racial Discrimination or the advice of the UN Expert Mechanism on the Rights of Indigenous Peoples, should bear upon the meaning to be given to "special measure" in section 8 of the RDA. His Honour emphasised that the text of Art 1(4) of the Convention, as imported by the RDA, did not bring with it consultation as a definitional element of a "special measure" and, as such, the Court could not import such a requirement into domestic legislation. Chief Justice French also emphasised that international practice occurring after the enactment of the RDA cannot authorise an Australian court to alter the meaning of that legislation.
Chief Justice French did acknowledge that prior consultation with an affected community “as a matter of common sense … is likely to be essential to the practical implementation of that measure.”
The High Court’s decision is significant with respect to the interpretation and operation of sections 8 and 10 of the RDA in several key aspects. While a reasonably broad approach was taken to the identification of a relevant human right that may be engaged under section 10 of the RDA, the Court has arguably adopted a narrow approach to the interpretation of special measures under section 8 and afforded a wide margin of appreciation to the legislature in assessing whether a special measure is for the benefit of particular group.
The Court’s decision also demonstrates some of the limitations associated with incorporating Australia’s international human rights obligations into the interpretation of domestic laws, even where the operation of a domestic law is the domestic incorporation of an international treaty signed and ratified by Australia.
Despite the operation of Article 31(3) of the Vienna Convention on the Law of Treaties (1969) regarding the interpretation of international treaties, Chief Justice French held that the interpretation of the RDA is limited in Australia by the constraints of the judicial function. Further, Justice Bell held that neither the recommendations of the Committee on the Elimination of Racial Discrimination, nor the provisions of the UN Declaration on the Rights of Indigenous Peoples, constitute extrinsic materials of the kind contemplated by Article 31(3) of the Vienna Convention. Justice Crennan similarly characterised the materials as non-binding and extraneous, holding that in accordance with principles of statutory construction such materials could not be elevated over the language of an international convention to which State Parties have agreed.
Notwithstanding the above, it was accepted by a majority of the Court that consultation may be a relevant consideration in relation to whether a measure can be characterised as a "special measure" for the purposes of section 8 of the RDA. Chief Justice French accepted the appellant's submission that in the absence of genuine consultation with those to be affected by a special measure, it may be open to a court to conclude that the measure is not reasonably capable of being appropriate and adapted for the sole purpose it purports to serve.
This decision is available online at: http://www.austlii.edu.au/au/cases/cth/HCA/2013/28.html
This casenote was prepared by the HRLC with the assistance of Malcolm Stephens, Tim Maxwell, Anna Payten, Ben Friis-O'Toole, Rowan Platt and Alyse Richmond from Allens.