The High Court of Australia has dismissed an appeal by a resident of Palm Island, Ms Joan Maloney, against her conviction for possession of alcohol in a restricted area contrary to provisions of the Liquor Act 1992 (Qld). Ms Maloney claimed that the legislative regime breached the Racial Discrimination Act 1975 (Cth) (RDA) because it could not properly be regarding as being a “special measure” for the benefit of Aboriginal peoples.
The HRLC assisted the National Congress of Australia’s First Peoples to intervene as an ‘amicus curiae’ to make submissions to the Court about the proper interpretation and application of sections 8 and 10 of the RDA and the meaning of “special measures”. The submissions made by Congress focused on the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the UN Declaration on the Rights of Indigenous Peoples and the requirement under those instruments that informed consent be central to all decisions that affect Aboriginal and Torres Strait Islander communities and in particular the development of “special measures”.
Unfortunately, the High Court’s decision constitutes a very strict, literal interpretation of the text of sections 8 and 10 of the RDA and articles 1(4) and 2(2) of CERD. While the judgment contains references to various international sources, such as general comments of UN treaty bodies, unfortunately the Court did not find that these materials were authoritative or persuasive sources in support of an interpretation of the RDA consistent with established jurisprudence on the meaning and content of special measures under international law.
Interestingly, one week after the High Court’s decision the Parliamentary Joint Committee on Human Rights released its report on the Stronger Futures legislation, which also included an assessment of the High Court’s decision in Maloney. The Committee observed that the High Court decision adopts “a number of conclusions which are arguably not in conformity with the current state of international law and practice relating to special measures” and recommends that section 10 of the RDA be reviewed in light of the decision in Maloney.
A copy of the HRLC case note on the High Court's decision is available here.
A copy of the submissions made by National Congress is available here.
National Congress was assisted on a pro bono basis by the HRLC, together with barristers Ron Merkel QC, Debbie Mortimer SC, Melinda Richards and Sarala Fitzgerald and leading international law firm Allens.