Commission submissions: Bropho

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY                No WAD90 of 2007 

BETWEEN

BELLA BROPHO on behalf of members of

the Swan Valley Community Aboriginal Corporation and

Aboriginal Inhabitants of Reserve 43131

AND

STATE OF WESTERN AUSTRALIA

First Respondent

ABORIGINAL AFFAIRS PLANNING AUTHORITY

Second Respondent

BARRY CHARLES JAMESON

Third Respondent

WESTERN AUSTRALIAN PLANNING COMMISSION

Fourth Respondent

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ON GROUNDS OF APPEAL

1. The Human Rights and Equal Opportunity Commission (‘HREOC’) has sought leave to intervene in the hearing of the appeal.

2. These submissions address the following issues:

• The foundation of the Racial Discrimination Act 1975 (Cth) (‘RDA’) in the International Convention on the Elimination of all Forms of Racial Discrimination (CERD);1
• The principles of interpretation relevant to the RDA;
• The proper construction of ss 9 and 10 of the RDA and the meaning of discrimination – Grounds 5 and 9 of the Notice of Appeal;
• Special measures – Ground 12 of the Notice of Appeal; and
• The right to property – Ground 3 of the Notice of Appeal.

3. HREOC makes no submissions about the factual findings. These submissions are concerned with the proper legal tests to apply and not the application of the facts under those tests.

A. CERD and the Racial Discrimination Act 1975 (Cth)

4. CERD aims to eliminate discrimination and achieve equality without distinction as to race, colour, descent or national or ethnic origin.2 These objects reflect a longstanding and widely recognised international human right of non-discrimination and equality.

5. The right to equality and freedom from discrimination have special implications for Indigenous groups.3 As noted in the report of the United Nations Seminar on the Effects of Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States:

Racial discrimination against indigenous peoples is the outcome of a long historical process of conquest, penetration and marginalization, accompanied by attitudes of superiority and by a projection of what is indigenous as “primitive” and “inferior.” The discrimination is of a dual nature: on the one hand, gradual destruction of the material and spiritual conditions [needed] for the maintenance of their [way of life], on the other hand, attitudes and behaviour signifying exclusion or negative discrimination when indigenous peoples seek to participate in the dominant society.4

6. The RDA gives effect to CERD and the text of CERD is set out in the schedule of the RDA.  Section 9 of the RDA contains a general provision rendering any racial discrimination unlawful: AB 593-594.5

Structure of the RDA

7. Section 9(1) does not ‘define’ discrimination. In this respect s 9 differs from other federal and state discrimination enactments. Section 9(1) adopts the language used in article 1(1) of CERD.6  However, s 9(1A) of the RDA, which was introduced in 1990,7 does define a form of discrimination commonly referred to as ‘indirect discrimination’. HREOC notes that s 9(1A) does not operate as a prohibition and in this respect it simply describes a type of conduct which may create unlawfulness by s 9(1).

8. 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.8

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

10. Sections 11 to 15 of the RDA proscribe race discrimination in specific areas of public life, including access to places and facilities10and the provision of goods and services.11 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’.12

11. HREOC notes that Nicholson J is, with respect, in error in stating that ‘indirect discrimination’ has no application to s 12(1)(d): AB 675 [468]. The definition of ‘indirect discrimination’ in s 9(1A) explicitly applies for the purposes of Part II of the RDA, which contains ss 11-15, and applies to the expression ‘by reason of’ race, as used in those sections.

12. Unlike many other Australian discrimination enactments, the RDA provides very limited defences or exceptions to unlawful race discrimination: see s 8 of the RDA.

B. Principles of interpretation relevant to the RDA

13. An overarching issue raised by this appeal is the proper construction of the RDA based on the text of CERD and underlying principles of international human rights law. 

14. The following general principles of interpretation may be distilled from relevant High Court and Federal Court decisions:

1. where the provisions of an international treaty are transposed into a statute in whole or in part, the language of the statute should bear the same meaning as the treaty;13
2. 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;14
3. where it is necessary to discern the meaning of a provision of an international treaty, the Court may apply the international rules applicable to treaty interpretation, namely articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties.15 The Court may also be assisted by reference to the specialist international courts and tribunals that have also construed treaty provisions.16 For the present matter, this includes the Committee on the Elimination of Racial Discrimination (‘CERD Committee’), established under the CERD.
4. it is accepted that 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’;17
5. there is a presumption that Parliament intended to legislate in accordance with its international obligations;18
6. there is a presumption that a statute should be interpreted and applied, as far as its language admits, to be consistent with established rules of international law;19
7. where the statutory provisions are designed to give effect to international human rights treaties, the statutory provisions should be beneficially construed;20
8. exemptions and other provisions which restrict rights should be strictly construed;21
9. where there is ambiguity, the Court should prefer a construction that is consistent with and advances Australia’s international treaty obligations.22 The Court should look to substance rather than form;23
10. if the Court is asked to construe the terms of a statute inconsistently with the international instrument, then it must be clear that Parliament intended a construction contrary to the international obligations and the intention must be expressed in the clearest terms; and
11. in the case of a conflict, the domestic law prevails over the requirements of the international treaty. 24

C. Proper construction of sections 9 and 10 of the RDA and the meaning of discrimination – Grounds 5 and 9.

Section 9(1) of the RDA

15. HREOC submits that Nicholson J was correct in holding that s 9(1) of the RDA applies to an ‘act’ of a person but does not extend to the enactment of a law by Parliament.25 At AB 622 [284] and AB 669 [448], his Honour correctly applied s 9(1) to the acts of the Administrator and s 10(1) to the provisions of the Reserves Act.  If the Court would be assisted by further submissions on the application of s 9(1) and (1A) of the RDA, HREOC would seek to make such submissions orally.

Section 10 of the RDA

16. Unlike s 9(1) of the RDA, s 10(1) does not import any specific provision of CERD. Section 10(1) does not adopt the language of CERD.

17. In Gerhardy, Mason J observed:

Section 10 makes no reference to racial discrimination; nor does it make any reference, as s 9(1) does, to the elements of the definition of “racial discrimination” in art 1.1 of the [CERD]. Instead s 10 is expressed to operate where persons of a particular race, colour or origin do not enjoy a right that is enjoyed by a persons of another race, colour of origin, or do not enjoy that right to the same extent…  s 10 should be read in the light of the [CERD] as a provision which is directed to lack of enjoyment by a right arising by reason of law whose purpose or effect is to create racial discrimination. 26 

18. Section 10 operates as a stand-alone provision. It does not require the Court to determine whether the impugned law contravenes s 9(1) and/or (1A) of the RDA.27 Section 10(1) should not necessarily be construed by resort to concepts of ‘direct’ and ‘indirect’ discrimination, which are short hand expressions to describe the different ways discrimination may occur.28

19. HREOC submits that Nicholson J has erred at AB 652 [391(iii)] in asking whether the cessation of any assumed rights ‘is by reason of the race of the applicant’. Section 10(1) does not require the Court to ask whether the cessation of rights is by reason of race. The express terms of s 10(1) make it plain that the inquiry is whether the cessation of rights is by reason of the impugned law or a provision of the law.29

20. Further, s 10(1) does not require an impugned law to make an explicit distinction based on race.  As Sackville J observed at 324 in Jango v Northern Territory, 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’.30  

Proportionality under the RDA

21. HREOC submits that Nicholson J has also erred by incorporating a proportionality test into the application of s 10(1) of the RDA and finding that the determination of alleged racial discrimination, regard may be had to the reasonableness of the enactment or action in question: AB 652 [391(iii)] and AB 698 [544]. 31

22. In Gerhardy, the Court accepted that all differential treatment was prima facie discriminatory unless it was saved as a special measure. It was argued there by the Solicitor-General for South Australia, in the context of s 9 of the RDA, that there is no discrimination:

… when there is an objective or reasonable justification in the distinction, exclusion, restriction or preference. For there to be discrimination the distinction or differentiation must be arbitrary, invidious or unjustified.32

That submission was not upheld and was specifically rejected by two members of the Court.33  Further, questions of proportionality and reasonableness played no role in the Court’s approach to s 10(1).34 

23. Subsequent decisions of the High Court and Federal Court have not included considerations of reasonableness and proportionality in their analysis of either s 1035 or s 9(1) of the RDA.36

Proportionality at international law

24. If the Court does not accept this submission and finds that s 10(1) of the RDA impliedly incorporates a proportionality test, HREOC submits that the approach taken by Nicholson J at AB 698 – 700 [544 – 552] is not consistent with the approach taken in international human rights law to proportionality. 37 HREOC submits that the correct approach is as follows.

25. First, where proportionality is used as a ‘justificatory’ factor it must be applied only for a specific purpose and directly related to the specific need on which the action is predicated.38

26. Second, the principle of proportionality requires a precise balancing of the impact of a measure with the desired objective. In this respect, the test is whether the regime is the only one, or the least restrictive one, which will achieve the lawful objectives pursued.  There must be assessment as to whether the measure involves least possible interference with the right to be free from race discrimination.

27. Third, restrictive measures must be clear and predictable. The law in question ‘should use precise criteria and may not confer an unfettered discretion on those charged with their execution’.39

28. Finally, the fact that the purpose may be permissible or simply reasonable is not sufficient. Proportionality requires an assessment of whether the particular measure in question is necessary.40

D. Special Measures – Ground 12 of the Notice of Appeal

29. 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.41

30. Section 8(1) of the RDA provides that Part II of the RDA does not apply to ‘special measures’: AB 592 [189]. The expression ‘special measures’ is not defined in the RDA and it takes its meaning directly from article 1(4) of CERD: AB 593[190]. 

31. JusticeNicholson concluded that the Reserves Act was a special measure: AB 707 [580]. 

32. HREOC submits that Nicholson J’s approach to special measures contains a number of errors, set out below. Whether it is open to find that the Reserves Act was a special measure upon a correct application of the law is a matter for the Court about which HREOC makes no submission.

Need for consultation and significance of consent

33. Justice Nicholson accepted that the four elements identified by Brennan J in Gerhardy at 133 must exist before a measure is a special measure: AB 701 [559]. But he rejected Brennan J’s observation at 135 that:

…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.

34. Justice Nicholson said that Brennan J’s observation was dicta that had no ‘apparent judicial support’ and was ‘not consistent with the general principles expressed in the case.’: AB 704 [569]-[570].

35. HREOC submits this conclusion cannot be supported by reference to Gerhardy and relevant international principle.

36. First, the other justices in Gerhardy neither supported nor dismissed Brennan J’s observation.42

37. Second, it is necessary for a measure to be ‘appropriate and adapted’ to the relevant purpose of advancing the particular group.43 HREOC 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. 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.

38. HREOC accepts that 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.

39. In the present case, the rights of children and the rights of adult individuals the subject of the measures contained in the Reserves Act may differ, and this raises complex issues in relation to consent. It does not, however, deny the need for consultation and a consideration of the views expressed in that consultation. Although consultation with children may raise challenges, children capable of forming their own views are entitled to the right to express those views and have them considered.44

40. Third, Brennan J’s approach is consistent with general principles of international law and the circumstances in which special measures should apply.

41. The importance of consulting with, and seeking the consent of, the group that is to be the subject of the special measure is consistent with General Recommendation XXIII of the CERD Committee which calls upon State parties to CERD 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…45

42. 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 minorities46 and the right to self-determination.47

Discriminatory elements of a special measure must be assessed

43. HREOC submits that Nicholson J misapplied the dicta of Brennan J in Gerhardy, in stating that Brennan J ‘noted that the characteristation of a measure as a “special measure” was largely a matter for the other branches of government’: AB703 [568]. Brennan J was not there suggesting judicial deference generally to whether something is a special measure, but rather the need for deference to the ‘political assessment that advancement of a racial group is needed’. This same point was made by Dawson J in the passage cited by Nicholson J: AB 703 [567]. This is only one element of the test for ‘special measures’.

44. This incorrect approach may explain Nicholson J’s failure to consider the elements of the Reserves Act challenged by the applicants to determine whether they were justifiable as special measures. Rather, his Honour considers the Act as a whole: AB 705 [572], [573], 706 [577], 707 [580].

45. While it is appropriate to consider the effect of the 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.48

46. If one provision of a law which purports to be a special measure can not be properly characterised as being appropriate and adapted to achieving the sole purpose of securing the ‘adequate advancement’ of the intended beneficiaries of the special measure, then the provision may be read down or rendered inoperative by virtue of the operation of s 10.

47. This approach is necessary to ensure that the special measures provision, as an exemption to the general prohibition against racial discrimination, is applied narrowly.49

48. In Vanstone v Clark (2005) 147 FCR 299 at 354 [209] Weinberg J in obiter (with whom Black CJ agreed) 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. (emphasis added)

49. HREOC notes that Nicholson J did consider the proportionality of the impugned aspects of the Reserves Act in the context of s 10(1). A similar analysis, taking into account issues of consultation and consent, was necessary in the context of determining the issue of special measures.

E. The right to property – ground 3 of the Notice of Appeal

50. The Appellant claimed that the Reserves Act impaired the inhabitants’ right to property as provided by article 5(d)(v) of CERD and article 17 of the Universal Declaration of Human Rights (‘UDHR’). CERD provides:

The right to own property alone as well as in association with others.

         The UDHR provides:     

• (1) Everyone has the right to own property alone as well as in association with others.
• (2) No one shall be arbitrarily deprived of his property.

51. At AB 709 [587] Nicholson J concluded that ‘the fundamental difficulty with the claim’ was that it did not have a ‘foundation of a right to property in domestic law or a human right to the ownership of property.’  HREOC submits that this conclusion was based on a narrow construction of the relevant human right, which in turn was premised on a narrow definition of ‘ownership’: AB 647 [375 – 378].

52. Justice Nicholson set out the contentions in relation to the nature of property rights at AB 632–643 and 646-648 [373]–[380]. At AB 647 [377], his Honour considered that it was necessary to consider whether ‘whatever qualified as property in the bundle of rights under consideration is capable of being ‘owned’.

53. HREOC submits that the question of ‘ownership’ takes it meaning and shape from the nature of the property. In the present matter, the Court’s approach was to determine how property could be ‘owned’ thereby incorrectly focusing on the concept of ownership rather than examining the nature of the property in question.

54. 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.

55. The High Court observed that the CERD rights are identified in terms of ‘complete generality’ (at 105 [119]) and further confirmed that native title rights and interests should not be treated differently from other forms of title simply because native title has characteristics different from other property rights and derives from different sources (at 106 [122]).

56. HREOC respectfully submits that contrary to AB 647 [378], the nature of property rights should not be resolved only  ‘by looking to the effect of other domestic law determining issues of ownership, ownership being a private right recognised by the domestic law.’50 While domestic law is a relevant consideration, the expression ‘own property’ must be construed against the relevant international law considerations. In this respect, there was very limited consideration in the decision of the meaning of the right to property in international law and no reference to relevant statements of the CERD Committee or international bodies.

57. Relevant international jurisprudence has considered the nature of the right to property where the property concerns Indigenous rights.  In The Mayagna (Sumo) Awas Tingni Community v Nicaragua,51the Inter-American Court considered the right to property as provided by article 21 of the Inter-American Convention on Human Rights. The Court observed:

144. “Property” can be defined as those material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value.

…

148. … it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua.

149. …. Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.

58. HREOC submits that the approach taken by the Inter-American Court in this and subsequent decisions52 is directly applicable to the way in which the right to property may be construed for the purpose of article 5(d)(v) of CERD.53  Having regard to the nature of the property interests in the present matter, HREOC submits that it was open to the Court to construe the right to own property broadly and inclusively.

Kate Eastman

Counsel for HREOC

Tel: 02 9236 8677

Fax: 02 9237 2212

Email: eastman@stjames.net.au

3 September 2007

Footnotes