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Submission to Court as Intervener and Amicus Curiae

Legal

COURT OF APPEAL

SUPREME COURT OF
QUEENSLAND

Aurukun Shire Council v

Chief Executive, Office of Liquor Gaming and Racing in the Department Of Treasury

Kowanyama Aboriginal Shire Council v

Chief Executive, Office of Liquor Gaming

Submission by the Australian Human Rights Commission

2 July 2009

pdf Commission Submission (PDF, 46 KB)

word Commission Submission (Word, 117 KB)


CA NUMBER: 13499/08

NUMBER: 516/08


APPELLANT: AURUKUN SHIRE COUNCIL

AND

RESPONDENT: CHIEF EXECUTIVE, OFFICE OF LIQUOR GAMING AND RACING IN
THE DEPARTMENT OF TREASURY


CA NUMBER: 13501/08

NUMBER: 528/08


APPELLANT: KOWANYAMA ABORIGINAL SHIRE COUNCIL

AND

RESPONDENT: CHIEF EXECUTIVE, OFFICE OF LIQUOR
GAMING


SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY
COMMISSION


  1. The Human Rights and Equal Opportunity Commission (‘the
    Commission’    ) has sought leave to appear as amicus curiae in the
    hearing of both appeal proceedings. The Commission does not argue for a
    particular outcome in the appeal, but rather seeks to identify the relevant
    principles of law as they apply to the appeal for the assistance of the Court.

  2. These submissions address the following issues:

    • (a) the proper construction of s 10 of the Racial Discrimination Act 1975 (Cth) (‘RDA’) based on the text of the International
      Convention on the Elimination of all Forms of Racial Discrimination       (CERD);[1]

    • (b) the recent decision of the Full Court of the Federal Court in Bropho
      v State of Western Australia       (2008) 169 FCR 59 which considered the proper
      construction of s 10 of the RDA and the application of CERD rights;

    • (c) the application of the relevant principles to these appeals; and

    • (d) the proper construction of s 8 of the RDA with respect to ‘special
      measures’.

Issue to be determined

  1. The appeals therefore pose the question whether these particular provisions
    of the Liquor Act that suspend indefinitely the ability of residents of
    Aboriginal communities to attend, socialise in, purchase alcohol from and
    consume alcohol in licensed premises located in their community are contrary to
    the RDA.

RDA and CERD

  1. CERD aims to eliminate discrimination and achieve equality without
    distinction as to race, colour, descent or national or ethnic origin. These
    objects reflect a longstanding and widely recognised international human right
    of non-discrimination and equality. The RDA gives effect to CERD and the text of
    CERD is set out in the schedule of the RDA.

  2. Section 9(1) contains a general provision rendering any racial
    discrimination unlawful. The language of article 1(1) of CERD is reproduced in
    section 9 of the RDA.

  3. Section 10 does not replicate any specific provision of
    CERD.[2] 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.[3] Section 10 operates as a
    stand-alone provision in the RDA in the sense that it does not require the Court
    to determine whether the impugned law contravenes s 9(1) and/or (1A) of the
    RDA.[4]Further, s 10(1) does not
    require an impugned law to make an explicit distinction based on race. As
    Sackville J observed in Jango v Northern Territory (2006) 152 FCR 150 at
    324, s 10(1) is directed at ‘the practical operation and
    effect’     of the impugned legislation and is ‘concerned not
    merely with matters of form but with matters of
    substance’.    [5]

  4. Sections 9 and 10 of the RDA engage a wide range of human rights and
    freedoms, which are not limited to the human rights described in article 5 of
    CERD.[6]

  5. Sections 11 to 15 of the RDA proscribe race discrimination in specific areas
    of public life, including access to places and facilities and the provision of
    goods and services. Those sections do not limit the generality of s 9 and have
    been described as ‘amplifying and applying to particular cases the
    provisions of s 9’    .[7]

  6. The RDA provides very limited exceptions to race discrimination. Relevantly,
    there is an exception to discrimination, if the conduct is a special measure:
    see s 8 of the RDA.

Principles of interpretation relevant to RDA


  1. The following principles of interpretation apply where proceedings involve
    the interpretation of international human rights law, such as CERD:

    1. where the RDA uses the same language as CERD, the provisions of the RDA
      should be construed in the same way as the relevant provision of CERD is
      construed;[8]

    2. when ascertaining the meaning of CERD, primacy should be given to the text
      of CERD with consideration of the context, objects and purposes of
      CERD;[9]

    3. 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’;[10 ]

    4. there is a presumption that Parliament intended to legislate in accordance
      with its international
      obligations;[11]

    5. a court should not impute to the legislature an intention to abrogate or
      curtail fundamental rights or freedoms unless such an intention is clearly
      manifested by unmistakable and unambiguous
      language.[12]

Proper construction of section
10 of the RDA

  1. The Commission agrees generally with the parties’ submissions with
    respect to s 10 of the RDA.

  2. As the Full Court of the Federal Court recently observed in Bropho v
    State of Western Australia     (2008) 169 FCR 59 at 83 [81] – [83], the
    application of s 10 of the RDA requires the Court to
    consider:

(a) whether there is a relevant ‘right’ or
‘rights’ that are affected by the impugned law;

(b) whether persons of a particular race do 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:

(i) whether there is a limitation upon the enjoyment of a right by people of
a particular race by reason of law; and

(ii) whether there is any limitation upon the right a legitimate one,
intended to achieve a non-discriminatory purpose?


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


  1. It is necessary to approach the meaning of ‘rights’ in a broad
    way to avoid undermining the purpose of s 10(1) of the RDA. 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.    ’[13]

  2. As the parties to the appeal note, the ‘rights’ protected by s
    10(1) are not limited to the rights set out in CERD. 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.[14]

  3. The Commission agrees with the Appellants’ identification of the
    relevant rights. The Commission submits that the Respondent has adopted a
    narrow approach which is contrary to the approach identified by Deane J in Mabo No 1. The Commission submits that the identification of the
    human right in question is not answered by simply asking, ‘what does the
    Appellant or its members wish to do?’. Rather, the focus
    should be on the impugned law and the impact that law will have on the manner in
    which the members of the relevant community interact with each other and the
    individual members’ rights to live free from discrimination.

Equality before the law generally


  1. The Commission agrees with the Appellants’ submission that the
    impugned provisions of the Liquor Act have the practical effect of making
    a distinction between Indigenous and non-Indigenous people in Queensland. The
    distinction which in practical terms imposes a different regime of alcohol
    regulation for the Appellants is sufficient to engage the human right of
    equality and non-discrimination.

Access to goods

  1. The right to access goods is explicitly recognised by the RDA in s 13. It is
    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. This right is not concerned with the nature of the
    particular goods in question. Rather it is concerned with the right to access
    the goods which are generally offered for sale.

  2. The Commission submits that s 106(4) of the Liquor Act engages 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 engage freely in public activity

  1. It is alternatively open to the Court to find that the relevant provisions
    of the Liquor Act engage the rights of members of the Aurukun and
    Kowanyama communities to ‘engage freely in public activity’, namely
    access to alcohol. This is consistent with broad approach that the High Court
    has held is appropriate to the rights protected by s 10(1).

Right to property

  1. The Commission notes the Appellants’ submissions addressing the right
    to property. The Commission does not agree with the narrow approach taken by
    the Respondents. The human right to property is described in article 5(d)(v) of
    CERD and article 17 of the 1948 Universal Declaration of Human Rights.

  2. The High Court in Ward v Western Australia (2002) 213 CLR 1 at
    103-104 [116] held that the relevant right to property encompassed an immunity
    from arbitrary deprivation of property and that property ‘includes
    lands and chattels as well as interests therein’    , including native
    title rights and interests. The High Court observed that the CERD rights are
    identified in terms of ‘complete
    generality’.[15]

  3. The Commission submits that the question of ‘ownership’ takes it
    meaning and shape from the nature of the property. In the present matter, it is
    open to the Court to accept that rights in relation to a licence are a form of
    property.

Permissible limitations on rights – Bropho decision


  1. The Commission submits that both parties’ submissions address the
    identification of the rights in question but do not consider the application of
    the rights and the extent to which those rights may be limited. The Commission
    notes that the Respondents do raise countervailing rights in the context of its
    submissions about special measures, but it is appropriate to consider those
    rights at this stage.

  2. Very few human rights have an absolute character, in the sense that there
    may be no limitation or restriction of the right. Where there are claims of
    competing rights or interests, a court may be called on to strike a balance
    between the competing claims and determine when and how certain rights may be
    limited. In Bropho, the Full Court accepted that some forms of
    differential treatment resulting from the operation or effect of a State law are
    permissible if it has a legitimate and non-discriminatory public
    goal.[16]

  3. In Bropho the Court identified the permissible limits could be placed
    upon the right to property at international law. The Court 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’    . The 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’    .[17] The Court found
    that the laws in that case interfered with the rights of the Indigenous
    residents, but did so for the purpose of protecting the safety and welfare of
    the residents, particularly women and children. They were therefore not
    invalidated by s 10(1) of the RDA.

Applying Bropho


  1. A number of points may be noted in applying the decision in Bropho and determining what will constitute a ‘legitimate’ interference with rights.[18] The Commission submits that the following steps should be considered.
  2. 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 legislature lacked a discriminatory motive or intention.
  3. 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.
  4. 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.[19]
  5. 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 CERD and another relevant human rights instrument such as the ICCPR. [20]

Relevance of limitations to the issues raised in the appeals
– is there a limitation on the enjoyment of the right by Indigenous
people?


  1. The terms of s 106(4) of the Liquor Act are directed to those bodies
    listed in the section (‘local government, corporatised corporation or
    relevant public sector entity’), and members of the Aurukun and Kowanyama
    communities are therefore affected in their ability to exercise their rights
    (outlined above) in circumstances where ‘the only local governments
    holding such licences are Aboriginal
    Councils’.[21]

  2. Whilst s 106(4) of the Liquor Act does not prevent the premises in
    question from being licensed, only that a ‘local government, corporatised
    corporation or relevant public sector entity’ is unable to apply for or
    hold a licence,[22] the practical
    operation and effect of the section is that the limitation exists until such
    time as a new licence is granted. The limitation is a complete one and for an
    uncertain period of time.[23]

  3. The Commission agrees with the
    Appellant[24] that the comparison
    undertaken by Jones J of the effect of s 106(4) on the ability of Indigenous and
    non-Indigenous people who accessed the goods and services offered by the Three
    Rivers Tavern was erroneous. The relevant legislative changes were explicitly
    aimed at those local governments who held a liquor licence, all of whom were
    Aboriginal councils who manage predominantly Indigenous communities, in order to
    ‘break the nexus between profits from the sale of alcohol and delivery of
    services’.[25] The correct
    approach, therefore, is to consider the effect of the prohibition on the rights
    of the predominantly Indigenous residents of these communities in comparison to
    the rights of non-Indigenous people in other parts of the Queensland rather than
    in comparison to the rights of visitors, such as workers employed at a nearby
    mine site.[26]

Are any limitations upon the rights in this case legitimate?


  1. In the present matter, it is important to consider the reasons for the
    limitation of the relevant rights. Justice Jones accepted that the
    ‘trigger’ for the amending legislation was an attempt to minimize
    the harmful effects of alcohol abuse that had been observed in Aboriginal
    Council lands: see para [41] of the reasons for judgment.

  2. Further, it appears that the Legislature’s objective was to divest
    canteens from local governments because the government considered it
    inappropriate for ‘local government social services being reliant on the
    level of profit from a business whose purpose is to sell alcohol, particularly
    when alcohol-related harm is driving the need for those
    services.’[27]

  3. The Commission notes that whether the objective includes the promotion and
    protection of the rights of others, such as eliminating violence against women
    and children, where there is evidence that the violence flows in large part from
    alcohol use, are all legitimate reasons for seeking to limit the rights in
    question.

  4. The critical question is whether the legislative
    changes are a proportionate response. This involves the Court asking whether the
    relevant provisions of the Liquor Act can reasonably be considered to
    involve the least possible interference with the rights outlined in order to
    achieve their stated purpose or whether the measures in question exceed what is
    necessary to achieve the stated objectives. Relevant to this question is what
    other measures could have been implemented to deal with the issues sought to be
    addressed by the legislative changes ie breaking the nexus between profits from
    the sale of alcohol and delivery of services against a background of a wider
    government legislative and non-legislative strategies to reduce the level of
    alcohol related harm in Indigenous communities.

Special measures


  1. The expression ‘special measures’ is not defined in s 8 of the
    RDA and it takes its meaning directly from article 1(4) of CERD. It is generally
    accepted that the four elements identified by Brennan J in Gerhardy must
    exist before a measure is a special
    measure.[28]

  2. In Gerhardy, Brennan J highlighted the importance of consultation
    with the prospective
    beneficiaries.[29] Brennan’s
    approach is consistent with general principles of international law and the
    circumstances in which special measures should
    apply.[30] If it is accepted that is
    necessary for a measure to be ‘appropriate and adapted’ to the
    relevant purpose of advancing the particular
    group,[31] the Commission submits
    that it is not possible to reach that conclusion without considering the wishes
    of the beneficiaries. To take any other approach contemplates a paternalism that
    considers irrelevant the views of a group as to their wellbeing and decisions
    materially affecting them.

  3. The wishes of the beneficiaries may not be determinative of whether the
    measure in question is a special measure. The extent of consultation and the
    need for consent must be considered in the context of each particular case.
    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 and the right to
    self-determination.[32]

K.L. Eastman

Counsel for the Commission 2 July 2009

[1] CERD entered into force for
Australia on 30 October 1975 and article 14 with effect from 28 January 1993.

[2] Gerhardy v Brown (1985)
159 CLR 70, 99 (Mason J) (‘Gerhardy’). See also Macabenta
v Minister for Immigration & Multicultural Affairs (1998) 154 ALR
591,[9].

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

[4] Ward (1985) 159 CLR 70
99 (Mason J), 279-281 and 285-286 (Callinan J); Vanstone v Clark (2005)
147 FCR 299, 352 [197].

[5] Jango v Northern
Territory (2007) 159 FCR 531 [115], Gerhardy (1985) 159 CLR 70,99
(Mason J), Ward (2002) 213 CLR 1, 107 at [126] (Gleeson CJ, Gaudron,
Gummow and Hayne JJ). See also Sahak v Minister for Immigration &
Multicultural Affairs [2002] FCAFC 215, [34].

[6] Gerhardy (1985) 159 CLR
70, 101-2 (Mason J), 125-6 (Brennan J).

[7] Ibid, 85 (Gibbs CJ).

[8] Applicant A v Minister for
Immigration and Ethnic Affairs (1997) 190 CLR 225, 230-31 (Brennan CJ).

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

[10 ]Ibid, [26] and authorities
cited therein.

[11] Minister for Foreign
Affairs and Trade v Magno (1992) 37 FCR 298, 305.

[12] S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [29] (Gleeson CJ)
and see also Phipps v Australian Leisure and Hospitality Group Ltd & Anor [2007] QCA, [79] (McMurdo J).

[13] Commonwealth, Parliamentary Debates, Senate, 15 April 1975, 999 (the Hon Mr JJ
McClelland, Minister for Manufacturing Industry).

[14] Mabo No 1 (1988) 166
CLR 186, 217 (Brennan, Toohey and Gaudron JJ). See also Gerhardy (1985)
159 CLR 70,126 (Brennan
J).



[15] At 105
[119].

[16] At [83]. Mason J took a
similar approach to the right to freedom of movement in Gerhardy (1985)
159 CLR 70, 102-4.

[17] At [83].

[18] see United Nations Economic
and Social Council Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, UN Doc
E/CN4/1985/4, Annex (1985) (‘Siracusa
Principles’).

[19] Siracusa Principles, [4].

[20] 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]and Human Rights Committee General Comment 18:
Non-discrimination, (Thirty –seventh session), UN Doc A/45/40 (1989),
[13].

[21] Aurukun Shire Council v
CEO Office of Liquor Gaming and Racing in the Department of Treasury [2008]
QSC 305, [19].

[22] See also Respondent’s
Outline of Argument in relation to Aurukun and Kowanyama appeals,
[21].

[23] Particularly
given what is said in relation to the likely delays in finding a replacement
licensee given that alternate licensees are not readily available in the short
term in isolated indigenous communities: Appellants’ Outline of Argument
in Aurukun ([45]) and Kowanyama ([42]).

[24] Appellants’ Outline
of Argument in Aurukun ([46]-[47]) and Kowanyama ([43]-[44]).

[25] Explanatory notes to Aboriginal and Torres Strait Islander Communities (Justice, Land and Other
Matters) and Other Acts Amendment Bill 2008, 16.

[26] Aurukun Shire Council v
CEO Office of Liquor Gaming and Racing in the Department of Treasury [2008]
QSC 305, [25]. This accords with the approach taken in Ward (2002) 213
CLR 1, 104 [117] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[27] Explanatory notes to Aboriginal and Torres Strait Islander Communities (Justice, Land and Other
Matters) and Other Acts Amendment Bill 2008,
9.

[28] at
133.

[29] at 135.

[30] CERD Committee, General
Recommendation XXIII concerning Indigenous Peoples, (Fifty-first session) UN Doc
A/52/18 (1992), [4(d)]. See CERD Committee, General recommendation XXI on the
right to self-determination, (Forty-eighth session), UN Doc A/51/18 (1996),[2].
The European Union’s Racial Equality Directive 2000/43/EC provides for
special measures (article 5) and the concept of social dialogue (article 11)
wherein all interested parties engage in a dialogue.

[31] Gerhardy (1985) 159
CLR 70 105 (Mason J), 149 (Deane
J).

[32] Articles 27 and
1 respectively of the International Covenant on Civil and Political Rights.