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Commission submissions: Katinyeri

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IN THE HIGH COURT OF AUSTRALIA

ADELAIDE OFFICE OF THE REGISTRY

No. A29 of 1997

BETWEEN

DOREEN KATINYERI and NEVILLE GOLLAN

Plaintiffs

and:

THE COMMONWEALTH OF AUSTRALIA

Defendant

SUBMISSIONS ON APPLICATION FOR LEAVE TO INTERVENE

1. The Human Rights and Equal Opportunity Commission ("the Commission") by notice of motion dated 24 December 1997, has sought leave to intervene in these proceedings pursuant to ss.11(1)(o)of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the Act") relying upon the affidavit of Christopher Dominic Sidoti sworn on 24 December 1997.

2. The case concerns the validity of the Hindmarsh Island Bridge Act 1997 which the Commonwealth says was enacted in exercise of its power under s.51(xxvi) of the Constitution the race power. The exercise of the race power directly affects human rights and, in this case, directly affects the human rights of Aboriginal people The Commission is the primary Australian body charged with responsibility for monitoring issues concerning human rights both generally and in relation to Aboriginal people as explained in Mr. Sidoti's affidavit.

3. The Commission submits that it has:

3.1 a legitimate concern in making submissions relation to the issues of human rights: Australian Railways Union v Victorian Railways Commission (1930) 44 CLR 319 at 331 per Dixon J;

3.2 an interest in the subject of the litigation greater than a mere desire to have the law declared in particular terms;

3.3 an ability to provide substantial assistance to the Court in the determination of the proceedings in that the Commission's submissions differ from those of the parties and may well assist the Court in fully informing itself "of matters which it ought to take into account in reaching its decision": United States Tobacco Co v Minister of Consumer Affairs (1988) 20 FCR 520 at 534; Levy v State of Victoria (1997) 71 ALJR 837 at 845 846.

4. It is submitted no practical considerations militate against the granting of leave because:

4.1 subject to the wishes of the Court as to hearing oral submissions, the Commission seeks only to file the written submission appearing under Tab B in this booklet;

4.2 the other parties have received timely notice of the Commission's intention to intervene and of the written submissions intended to be made.

R.S. MCCOLL S.C.

Dated: 28 January 1998

 

 

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

(INTERVENING)

 

 

SUMMARY OF SUBMISSIONS

1. Section 51(xxvi) should be construed as a power which enables Parliament only to make laws which would benefit and/or advance people of any race, including Aboriginal people, for whom it is deemed necessary to make special laws.

2. This construction of the Constitution arises:

2.1 by construing the section in accordance with ordinary principles of statutory construction;

2.2 by construing the section in accordance with Australia's international obligations.

3. The Hindmarsh Island Bridge Act 1997 ( the "HIBA") is not a law which is for the benefit and/or advancement of any race entitled to make claims under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. (the "HPA").

INTERPRETATION OF THE CONSTITUTION

4. The Constitution should be construed with regard to the ordinary rules of statutory construction [1] and the common law. [2]

5. These principles require that the Constitution be construed in accordance with international law, namely international treaties and customary international law. [3] The application of these principles has been recognised in the following ways.

6. Statutes will be interpreted and applied as far as their language admits so as not to be inconsistent with the comity of nations or with the established rules of international law. If the language of the legislation is susceptible to a construction which is consistent with the terms of an international instrument and the obligations which the instrument imposes on Australia then that construction should be favoured. [4]

7. In the construction of legislation which is ambiguous, in the sense that it is capable of being given a meaning which is either consistent with or is in conflict with a treaty obligation, the Court may have regard to the terms of the treaty to assist in resolving the ambiguity as there is a presumption that Parliament intended to legislate in accordance with that obligation. [5]

8. Australian courts should have resort to international obligations in order to help resolve uncertainty in judge made law. [6] It has been recognised that the existence of human rights treaties to which Australia is a party is a legitimate and important influence on the development of the common law of Australia. [7]

9. An equally available approach is that there does not need to be ambiguity in the meaning of a statute or the common law for these principles of interpretation to apply. [8]

10. This approach does not transgress the principle that statutes should not be interpreted so as to introduce into domestic law the provisions of an international treaty that has not been incorporated into Australian law, [9] but acknowledges the importance international treaties to which Australia is a party. It is consistent with a general duty of States to bring domestic law into conformity with international law. [10]

INTERPRETATION AND FUNDAMENTAL FREEDOMS, RIGHTS AND IMMUNITIES

11. Independently of international obligations, it is accepted that legislation will not be construed as permitting an abrogation of fundamental freedoms, rights and immunities unless such an intention is manifested unmistakably and unambiguously. [11]

12. Consistently with this approach:

12.1 The Constitution "should not be interpreted so as to condone an unnecessary withdrawal of the protection of [fundamental and universal] rights. At least it should not be so interpreted unless the text is intractable and the deprivation of such rights is completely clear." [12]

12. 2 The Constitution should not be interpreted so as to permit violations of human rights. In Kruger & Ors v. The Commonwealth of Australia [13] Gaudron J. said:

"... s.122 (of the Constitution) should be construed on the basis that it was not intended to extend to laws authorising gross violations of human rights and dignity contrary to established principles of common law."

13. The interpretative approach adopted by Gaudron J. in Kruger & Ors v. The Commonwealth of Australia is equally applicable to all heads of power in the Constitution, especially one with such direct potential impact on human rights as s.51(xxvi).

14. The development of international obligations concerning fundamental freedoms, rights and immunities whether in treaties or customary international law, should be taken into account in applying the principle in par. 11 above.

15. Accordingly, where legislation, including the Constitution, can be interpreted in a manner which is consistent with Australia's international human rights obligations then that should occur. [14]

INTERNATIONAL HUMAN RIGHTS OBLIGATIONS

16. The modern international concern with human rights and fundamental freedoms for all had its origin in the treaties signed and declarations made by certain European States after the First World War guaranteeing the protection of racial minorities. As Brennan J pointed out in Gerhardy v. Brown [15] :

"The recognition and observance of human rights and fundamental freedoms by a State involves restraint on the untrammelled exercise of its sovereign powers in order to ensure that the dignity of human beings within each State is respected and that equality among human beings prevails."

17. In 1945, the member States of the United Nations (the "U.N.") pledged to respect the principle of equal rights and promote universal respect for and observance of human rights for all without distinction as to race and to take steps to achieve "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion." [16]

18. The U.N. established the Commission on Human Rights to achieve this objective and in 1948, the UN. General Assembly adopted the Universal Declaration of Human Rights ("UDHR"), which although in binding, is recognised as being declaratory of customary international law. [17]

19. In the mid 1960's at the time Australia was debating amending s.51(xxvi) and deleting s.127 from the Constitution, racial discrimination featured prominently in the work of the U.N. The General Assembly adopted the Declaration on the Elimination of All Forms of Racial Discrimination in 1963, which was followed by the International Convention on the Elimination of All Forms of Racial Discrimination (the 'CERD") in 1965. The CERD embodied in legally binding form the objectives of' the 1963 Declaration on the Elimination of all forms of Racism.

20. In 1966, the rights contained in the UDHR were incorporated into binding treaty obligations in the International Covenant on Economic, Social and Cultural Rights ("ICESCR") and the International Covenant on Civil and Political Rights ("ICCPR"). [18]

21. By at least 1966 it was recognised that the prohibition on racial discrimination constituted a peremptory norm of customary international law. In the South West Africa Cases (Second Phase) [19] Judge Tanaka stated:

"We consider that the norm of non discrimination or non- separation on the basis of race has become a rule of customary international law..."

22. Australia signed the CERD on 13 October 1966 and ratified it on 30 September 1975. [20]

23. Australia is not bound by a treaty obligation until it has ratified it. Australia is, however, a party to the Vienna Convention on the Law of Treaties. [21] Article 18 of that Convention requires a State to refrain from acts which would defeat the objects and purposes of a treaty after it has signed the treaty but before it has ratified it. Although the Vienna Convention was not in force when Australia signed the CERD, its provisions constitute an authoritative statement of customary International law [22] and furnish presumptive evidence of emergent rules of general international law. If is appropriate to refer to the Vienna Convention principles even if the Convention had not entered into force when another Convention was adopted. [23]

24. By becoming a party to the CERD Australia undertook to prohibit and eliminate racial discrimination in all its forms by appropriate means including legislation. [24] The importance of Australia taking steps to suppress racial discrimination has been emphasised in a number of cases. [25]

25. As Stephen J said in Koowarta v. Bjelke Petersen [26] there was much to be said for the Commonwealth's submission that even if Australia had not ratified the CERD it would have had an international obligation to suppress all forms of racial discrimination because respect for human dignity and fundamental rights had become part of customary international law.

26. Accordingly at the time of the 1967 referendum Australia was obliged to refrain from acts which would defeat the objects and Purposes of CERD. The enactment of legislation which permitted Australia to pass laws which discriminated adversely against the people of a race would have defeated the objects and purposes of CERD.

27. The treaties and international instruments referred to in Annexure A prescribe minimum standards of treatment for the protection of human rights. For the purposes of' the issue before the Court, the relevant rights are dealt with below.

Equality before the law and non discrimination

28. It is a fundamental principle of international law that 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 unlawful discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race. [27]

29. International law recognises the special status of indigenous peoples and the obligations on States to protect and promote indigenous rights over and above the obligation not to discriminate. [28] These rights are accorded to indigenous people because of their status as indigenous people, particularly in relation to land rights and the preservation of distinct cultural identities

30. Both international and Australian law recognise that it may be necessary to enact laws which differentiate between the people of different races in order to achieve substantive equality. Such laws are not inconsistent with the overall objective of eliminating racial discrimination. [29]

Protection of minority groups' culture and heritage

31. Persons belonging to racial, ethnic, religious or linguistic minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. [30]

32. In Lansman et al. v. Finland [31] the Human Rights Committee said [para. 9.4]:

"..A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation but by reference to the obligations it has undertaken in Article 27. Article 27 requires that a member of a minority shall not be denied his right to enjoy his culture. Thus, measures whose impact amount lo a denial of the right will not be compatible with the obligations under Article 27. However, measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under Article 27."

SECTION 51 (xxvi)

33. Section 51(xxvi) should be construed as a power which enables Parliament only to make laws which would benefit and/or advance people of any race, including Aboriginal people, for whom it is deemed necessary to make special laws. [32]

34. There is no decision on the interpretation of s.51(xxvi) which binds the Court. Western Australia v. The Commonwealth of Australia is the closest the Court has come to expressing a joint view about 51(xxvi) but that case turned on legislation the Court held conferred a "benefit protective of native title (at 462) and not detrimental legislation. It is clear from. Kruger v. The Commonwealth of Australia that some Justices did not regard the decision in Western Australia v. The Commonwealth of Australia as finally deciding the ambit of the s.51(xxvi) power. [33]

35. Section 51 (xxvi) should be construed by having regard to the amendment effected as a result of the 1967 referendum, the change in historical circumstances since 1900 including the substantial developments in the prohibition of discrimination based on (inter alia) race [see pars. 16 32 above]. [34]

36. A beneficial construction of s.51(xxvi) does not change the essential meaning of the sub section [cf. CS §2.22 ]. [35] It accords it a meaning consistent with:

36.1 The plain intention of the 1967 amendment;

36.2 the historical developments which changed the character of the s.51 (xxvi) power from that which it might have been intended to have had in 1900 to that which the proponents of the 1967 referendum intended it to have;

36.3 Australia's international human rights obligations.

37. An interpretation of s.51 (xxvi) which is consistent with Australia's international obligations to protect fundamental human rights is not seeking to alter the text of the Constitution, change its meaning or purporting to "develop" the law. It will not render s. 51(xxvi) inoperative or meaningless [cf. CS §2.211] [36]

38. It would not "fracture a skeletal principle of our legal system." It would ensure that the Constitution was not "frozen in an age of racial discrimination." [37]

History of section 51 (xxvi) [38]

39. The Parliamentary debates which preceded the 1967 referendum demonstrate that the principal object of the amendment of s.51(xxvi) was to enable the Commonwealth to redress past inequality suffered by Aboriginal people.

40. The debate which preceded the 1967 Referendum [39] has been analysed in the Plaintiffs' submissions. It is important to note that the proponents of the amendment were conscious of Australia's international obligations not to discriminate against any race: Mr. Calwell PM [40] 64, col.2; PM 66, col.2; PM 70, col.2.7; Mr. Beazley PM 77 col. 2.20 78, col. 1.5; Mr. Wentworth PM 98, col.2.20 99 col.15; Senator Cohen PM 144.

41. At the time of the 1967 referendum Australia was under an international obligation to refrain from acts which would defeat the objects and purposes of CERD which it had signed on 13 October 1966 [see pars. 22 26 above]. An amendment to s. 51(xxvi) which would have permitted the Commonwealth to make laws detrimental to Aboriginal people would have defeated the objects and purposes of CERD.

42. This supports the conclusion that the intention of the 1967 referendum was to give s.51(xxvi) its contemporary meaning, one consistent with the fundamental human right of non-discrimination for all races which was part of customary international law in 1967 and which Australia had recognised by its membership of the U.N., by its endorsement of the principles in the Declaration on the Elimination of All Forms of Racial Discrimination and its signing of the CERD.

THE ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION ACT

43. The HPA gives effect to the international objectives of equality and non discrimination referred to in paragraphs 28 30 and protection of minority rights and culture referred to in paragraphs 31 31.

44. The HPA is not a special measure [cf.CS §2.13 fn.41]. In terms it is not a law to secure advancement of Aboriginal peoples and Torres Strait Islanders [cf. Art.1(4) CERD PM193].

45. The HPA has effect subject to the obligations of Australia under international law: s. 8(2). It is a recognition of the principles set out in the lCCPR [PM203] to enable all peoples to pursue freely their cultural development (Art. 1(1)), that States should legislate to give effect to the rights recognised in the ICCPR (Art. 2(2)) one of which is the right for ethnic minorities to enjoy their own culture (Art.27).

46. It is not the case, therefore, that the rights enshrined in the HPA are subject to the "short life" principle reflected in Art. 1(4) of the CERD and that principle can not be relied upon to justify its validity [cf. CS §2.13 fn. 41].

THE HINDMARSH ISLAND BRIDGE ACT

47. The HIBA is an act passed to "enable the construction and operation of the Hindmarsh Island Bridge without any further action being taken under the Heritage Protection Act": Hindmarsh Island Bridge Bill Explanatory Memorandum [PM 227 at 228].

48. The HIBA is "discriminatory" in a sense proscribed by international law because it is a law which creates 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 human rights and fundamental freedoms in ... cultural life..": Art. 1(1) CERD [PM 193]

49. The HIBA is inconsistent with the ICCPR and CERD because it removes rights to cultural life (cf. Art. 5(1) ICCPR), it discriminates against people entitled to make a claim in respect of the land the subject of the HIBA (cf. Art. 26 ICCPR) and denies them the right to enjoy their own culture (Art.27 ICCPR and Art. 5(e) (vi) CERD [PM 192 at 195])

50. Prima facie, international law would condemn as discriminatory a law which differentiated between the rights available to people on account of their race because of an administrative reason e.g. in Gueye v. France the Human Rights Committee [41] considered the criteria put forward by the French Government to justify differential treatment with respect to pension rights of former members of the French armed forces of Senegalese, as opposed to French, nationality and concluded that the criteria were not reasonable and objective. In the course of its decision the Committee insisted "…Mere administrative inconvenience or the possibility of some abuse of pension rights cannot be invoked to justify unequal treatment." [42]

51. To the extent that international law would allow "reasonable measures of differentiation i.e. legal discrimination" [43] it might be noted that the HIBA "is designed to remove the hiatus caused by the circumstances following the making of the previous and current applications by Ngarrindjeri women for protection of sites on Hindmarsh Island" because "the Government believes the [Heritage Protection] Act has proved to be unworkable in this instance" and "has Judged that enough is enough": Hindmarsh Island Bridge Bill, Second Reading Speech [PM 230 at 231.21,234.10 and 234.25]. It appears the HIBA has been enacted because of frustration at the administrative inconvenience caused by the exercise of rights under the HPA by Aboriginal people. This would appear to fall short of the international standard of 1egal discrimination".

CONCLUSION

52. The HIBA is not a law which is for the benefit and/or advancement of any race but one which discriminates adversely against those entitled to make claims under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the "HPA") in respect of the land described in Schedule 1 to the HIBA.

R.S. MCCOLL S.C.

Dated: 28 January 1998

ANNEXURE A

INTERNATIONAL INSTRUMENTS

1945

UN Charter [PM181]

1946

UN Human Rights Commission established

1948

Universal Declaration of Human Rights [PM187]

  • Equality and non discrimination Arts.2 and 7
  • Protection of minority groups' culture and heritage Art.27

1957

International Labour Organisation Convention No. 107 Concerning the Protection and Integration of Indigenous and other Tribal and Semi Tribal Populations in Independent Countries (entered into force, 2 June 1959).

1962

International Court of Justice (ICQ) South West Africa Cases

(Preliminary Objections)

1963

Declaration on the Elimination of All Forms of Racial Discrimination:

  • Equality and non discrimination Arts. 1 4, 6 and 7

1965

*International Convention on the Elimination of All Forms of Racial Discrimination (adopted and opened for signature and ratification on 21 December 1965 [PM 192], signed by Australia on 13 October 1966; entered into force 4 January 1969; ratified by Australia 30 September 1975): [PM 192]

  • Equality and non discrimination Arts. 1,2,5(e)(vi) and 6
  • Protection of minority groups' culture and heritage Art. 5 (e) (vi)

1966

*International Covenant on Civil and Political Rights (signed for Australia on 18 December 1972 and ratified on 13 August 1980; entered into force 23) March 1976): [PM 203]

  • Equality anti non discrimination Arts. 2(1), 26 and 27

*International Covenant on Economic, Cultural and Social Rights (signed for Australia on 18 December 1972 and ratified on 13 August on1980; entered into force 3 January 1976) [PM214]

Declaration of the Principles of International Cultural Co Operation



1CJ Case South West Africa Cases (Second Phase)

1970

ICJ, Advisory Opinion Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970).

1978

Declaration on Race and Racial Prejudice (UNESCO):

  • Equality and non discrimination Arts. 3 and 9
  • Protection of minority groups' culture and heritage Arts. 5 and 8

1981

**Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

1984

Aboriginal and Torres Strait Islander Heritage Protection Act

1989

*ILO Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries (entered into force 5 September 1991)

  • Protection of minority groups' culture and heritage Arts.1 5,7 8,13 14,16 17

1989

Human Rights Committee General Comment on Non-discrimination No. 18 of 1989

1991

First Optional Protocol to ICCPR came into force in Australia (signed 25 September 1991 and ratified 25 December 1991

1992

Declaration on the Rights of Persons Belonging to National of Ethnic, Religious, Linguistic minorities:

  • Equality and non discrimination Arts. 3 and 4
  • Protection of minority groups' culture and heritage Arts 1 4

Draft Declaration on Rights of Indigenous Peoples

  • Protection of Minority groups' culture and heritage Part III, Arts. 12 14; Part IV, Arts. 25 30

1993

Vienna Declaration and Programme of Action

1994

Human Rights Committee, General Comment 23, Article 217 of the ICCPR

1996

CERD Committee on the Elimination of Racial Discrimination, General Recommendation XXI on self determination, U.N. Doc. CERD/48/Misc. 7/Rev. 3 (Forty eighth session, 1996)

1997

CERD Committee General Recommendation on the Rights of Indigenous Peoples, adopted by the Committee at its 1235th meeting

Hindmarsh Island Bridge Act

* Australia is a party to these instruments

** Declared an instrument pursuant to s. 47 of the Human Rights and Equal Opportunity Act 1986 (Clth.) on 8 February 1993: see Cth. Gaz. No. GN 7, 24 February 1993, pp.525 527

1. The State of Tasmania v. The Commonwealth of Australia (1904) 1 C.L.R 329 at 338 per Griffith C.J.; Attorney General (NSW) v. Brewery Employees Union of New South Wales (1908) 6 C.L.R 469 at 611 12 per Higgins J; Amalgamated Society of Engineers v. The Adelaide Steamship Company (1920) 28 C.L.R. 129 at 142 143, 148 150 per Knox C.J., Isaacs J., Rich J., and Starke J.; at 161 162 per Higgins J., McGinty v. The State. of Western Australia (1996) 186 C.L.R. 140 at 230 232 per McHugh J.

2. University of Wollongong v. Metwally (1982) 158 C.L.R 447 at 466 per Mason J; Theophanous v. Herald and Weekly Times Ltd (1994) 182 C.L.R. 104 at 126 127 per Mason C.J., Toohey J. and Gaudron J. at 141 144 per Brennan J, at 196 199 per McHugh J.; Wik Peoples v. The State of Queensland and Others (1996) 187 C.L.R. 1at 170 per Gummow J.

3. Unlike international treaty law, customary international law is binding on all nation states and a State's consent to be bound is not required. A rule of customary international law exists where there is evidence of general practice of States which reflects an accepted rule and that States follow the rule in the belief that such as course is legally required - opinio jurissive necessitatis: see Polyukhovich v. The Commonwealth of Australia (1991) 172 C.L.R. 501 at 559 560 per Brennan J., 667 per Toohey J.; The State of Victoria v. The Commonwealth of Australia (1997) 187 C.L.R. 416 at 545.]

4. Jumbunna Coal Mine NL v. Victorian Coal Miners Association (1908) 6 C.L.R 309 at 363 per O'Connor J.; see also Polities v Commonwealth (1945) 70 C.L.R '00 at 68 69 per Latham C.J., at 77 per Dixon J. and at 80 81 per Williams J; Minister of State for Immigration and Ethnic Affairs v. Teoh (1995) 183 C.L.R 273 at 287 288 per Mason C.J., and Deane J.; R v. Secretary of State for the Home Department [1991}1 A.C. 696 at 748.

5. Chit Kheng Lim v. Minister for Immigration (1992) 176 C.L.R. 1 at 38 per Brennan J., Deane J. and Dawson J.; Dietrich v. R (1992) 177 C.L.R. 292 at 306 per Mason C.J., and McHugh J., at 348 9 per Dawson J. at 360 361 per Toohey J.; Minister of State for Immigration and Ethnic Affairs v. Teoh, op. cit. at 287 per Mason C.J., and Deane J., at 301 2 per Toohey J. and at 315 per McHugh J.; Kruger and Others v. The Commonwealth of Australia (1997) 147 A.L.R. 126 at 161 per Dawson J., at 174 per Toohey J.; Newcrest Mining (WA) Limited v. The Commonwealth of Australia (1997) 147 A.L.R. 42 at 147 per Kirby J.; Minister for Foreign Affairs and Trade v. Magno (1992) 37 F.C.R.298 at 304 per Gummow J.

6. An approach described as "common sense" by Mason C.J., and McHugh J. in Dietrich v The Queen op.cit. at 306 who did not, however, decide whether that approach should be adopted in Australian courts; cf. Jago v. Judges of the District Court of N.S.W. (1988) 12 N.S.W.L.R. 558 at 569 per Kirby P., 582 per Samuels J.A.; Ballina Shire Council v. Ringland (1994) 33 N.S.W.L.R. 680 at 687 per Gleeson C.J., at 699, 709 710 per Kirby J.

7. Mabo v. The State of Queensland [No.2] (1992) 175 C.L.R 1 at 42 per Brennan J (Mason CJ and McHugh J concurring at 15); Dietrich v. The Queen, op.cit. at 321 per Brennan J, 306 per Mason CJ and McHugh J and 349 per Dawson J.; Minister for Immigration and Ethnic Affairs v. Teoh op.cit at 288 per Mason CJ. and Deane J.

8. See Kirby J. querying, but not deciding, in whether ambiguity is necessary: Newcrest Mining (WA) Limited v. The Commonwealth of Australia, op.cit. at 150 fn. 495. Since 1974 English courts have been prepared to construe United Kingdom domestic legislation by reference to the United Kingdom's international obligations with respect to human rights even though the domestic legislation involved has not been intended to give effect to those obligations: see Waddington v. Miah [1974]1 W.L.R. 683 at 694 per.Lord Reid; Ahmad v. Inner London Education Authority [1978] 1 QB 36 at 41 per Lord Denning M.R. and at 48 per Scarman L.J.; Garland v. Engineering Ltd. [1983] 2 A.C. 751 at 771 per Lord Diplock; Attorney General v Guardian Newspapers Ltd. [No. 2] [1990] 1 A.C. 109 at 283 per Lord Goff of Chievely.

9. Chow Hung Ching v. The King (1948) 77 C. L.R. 449 at 478 per Dixon J.; Bradley v. The Commonwealth of Australia (1973) 128 C.L.R. 557 at 582 per Barwick C.J., and Gibbs J.; Simsek v. Macphee ((1982) 148 C.L.R. 636 at 641; Minister for Immigration and Ethnic Affairs v. Teoh, op. cit. at 288 per Mason CJ and Deane J and Newcrest Mining (WA) Limited v. The Commonwealth of Australia, op. cit. at 147 per Kirby J

10. Brownlie, Principles of Public International Law (1990) at p. 36.

11. Re Bolton; ex parte Beane (1987) 162 C.L.R. 514 at 523 per Brennan J.; Coco v. The Queen (1994) 179 C.L.R. 427 at 436 438 per Mason C.J., Brennan J, Gaudron J and McHugh Commissioner of Taxation (Cth.) v. Citibank Ltd (1989) 20 F.C.R. 403 at 432 433 per French J.

12. Newcrest Mining (WA) Limited v. The Commonwealth Australia op.cit at 150, per Kirby J.

13. (1997) 146 ALR 126 at 190.

14. Newcrest Mining (WA) Limited v. The Commonwealth of Australia op.cit at 148 per Kirby J.

15. Gerhardy v. Brown (1985) 159 C.L.R. 70 at 124 125 per Brennan J

16. Articles (3), 55 (c) (the "norm of non-discrimination") and 56 of UN Charter. These provisions have been interpreted as imposing legal obligation: Brownlie, op.cit. at 570

17. ibid. As a matter of international law, U.N. declarations do not have legally binding force. However, as a member of the UN, Australia has pledged to co-operate with the UN to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race. In Koowarta v. Bjelke Petersen (1982) 153 C.L.R. 168 at 204 5 Gibbs C.J., said that "The preponderance of opinion appears to favour the view that the obligation upon members of the United Nations to protect human rights and fundamental freedoms is of a legal character.." and referred to authorities for the view that "a denial of human rights by reason of racial discrimination may constitute a breach of international law."

18. Treaties such as the ICCPR and the CERD are described as "the nearest thing we have to a statute in international law.": Brownlie, op.cit, (1990) at 604.

19. [1966] I.C.J.R. 3 at. 293. Judge Tanaka dissented, but not on a material point with respect to this issue; see also Advisory Opinion of the International Court of Justice in 1971, Legal Consequence for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council 276 (1970) Advisory Opinion [1971] I.C.J.R. 3 at 57.

20. Annexure A sets out relevant international instruments (including reference to relevant provisions), details of signature and ratification by Australia and relevant Australian legislation. Copies of international instruments which are not in the Plaintiffs' materials appear in this booklet. "[R]atification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention": Minister for immigration and Ethnic Affairs v. Teoh, op.cit at 291 per Mason C.J., and Deane J., see also at 301 per Toohey J., at 304-305 per Gaudron J. and at 316 per McHugh J.

21. Australia acceded to the Vienna Convention in June 1974. The Vienna Convention formally came into force on 27 January 1980: Victrawl Pty. Limited v. Telstra Corporation Ltd. (1995) 183 C.L.R. 595 at 622 fn.106 per Deane J., Dawson J., Toohey J and Gaudron J. By acceding to the Convention in 1974 Australia indicated it formally accepted its provisions: Brownlie, op. cit. at 607 608.

22. Victrawl Pty. Limited v. Telstra Corporation Ltd., op.cit. at 622; Minister for Foreign Affairs and Trade v. Magno (1992) 37 F.C.R. 298 at 305; Victrawl Pty. Limited v. Telstra Corporation Ltd. (1993) 45 F.C.R. 298 at 304.

23. The Commonwealth of Australia v. The State of Tasmania (1983) 158 C.L.R. 1 at 222 per Brennan J.; see also Brownlie, op. cit. at 604.

24. The Commonwealth of Australia v. The State of Tasmania op.cit at 121 per Mason J. A number of legislative steps have been taken to give effect to Australia's international human rights obligation. Pursuant to s. 47 of the Human Rights and, Equal Opportunity Commission Act 1986 (Cth.) , the Declaration on the Elimination of All Forms of Religious Intolerance and Discrimination based on Religion and Belief has been declared an instrument (see Annexure A). The Racial Discrimination Act 1975 (Cth) gives effect to the CERD. All States (except Tasmania) and both Territories have passed legislation prohibiting (inter alia) racial discrimination: Anti Discrimination Act 1977 (N.S.W.) s. 20D; Equal Opportunity Act 1984 (S.A.) ss. 52 62; Equal Opportunity Act 1984 (W.A.) ss. 4(1) and 36 49; Anti Discrimination Act 1991 (Old.), ss. 7(g) and 126; Discrimination Act 1991 (A.C.T.) s. 4(1) and Part Ill; Anti Discrimination Act 1992 (N.T.) ss. 19(1) (a), 20 and 28; Equal Opportunity Act 1995 (Vic.) ss. 6(i) and 7.

25. Koowarta v. Bjelke Petersen , op cit. at 204 206 per Gibbs C.J., 218 221 per Stephen J., 230, 234 235 (Brennan J agreeing at 260), per Mason J., 238 241 per Murphy J., 247-248. per Wilson J; Gerhardy v. Brown (1985) 159 C.L.R. 70 at 95 98 per Mason J., at 124 133 per Brennan J.

26. op. cit. at 220.

27. The relevant articles are listed in Annexure A.

28. See Article 1(1) ICCPR; CERD Committee, General Recommendation XXI on self-determination, U.N. Doc, CERD/48/Misc. 7/Rev. 3 (Forty eighth session, 1996) adopted at its 1147th meeting on 8 March 1996. CERD Committee General Recommendation on the Rights of Indigenous Peoples, adopted by the Committee at its 1235th meeting on 18 August 1997.

29. Gerhardy v. Brown, pp.cit. at 127 128 per Brennan J., s. 9 Racial Discrimination Act 1975. In Broeks v. Netherlands, Communication No. 172/1984, Selected Decisions under the Optional Protocol, Volume 2 at 196, the Human Rights Committee established pursuant to Article 28(1) of the ICCPR said:

The right to equality before the law and to equal protection of the laws without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Article 26."

See also Zwann de Vries v Netherlands, Communication No. 182/1984 Selected Decisions under the Optional Protocol, Volume 2 at 209; now affirmed by General Comment 18/37 of 9 November 1989 [Non Discrimination] at para 13. See also Anne F Bavefskv, The Principle of Equality or Non Discrimination in International Law, Volume 11 Human Rights Journal 1 at 14.

30. The relevant articles are listed in Annexure A. Article 27 of the ACC PR is particularly important. The Human Rights Committee's General Comment 23 on Art. 27 emphasises the obligation placed on States by the ICCPR to take positive measures to enable minorities to enjoy and develop their culture.

31. Communication No. 511/1992, UN Doc. CCPR/C/52'/D/511/1992 (1994), adopted by the Human Rights Committee on 26 October, 1994.

32. (a) There are dicta in decisions which would favour the construction that s.51(xxvi) only permits the passage of beneficial laws: Koowarta v. Bjelke Petersen, op.cit per Murphy J at 242 ; referred to with approval in Chu Kheng Lim v. Minister for Immigration , op. cit. at 56 per Gaudron J.; The Commonwealth of Australia v. The State of Tasmania, op.cit. per Murphy J. at 180; per Brennan J at 242; per Deane J at 273

(b) There are dicta which favour a construction which would permit the passage of laws which discriminated adversely: The Commonwealth o Australia v. The State of Tasmania, op.cit. at 110 per Gibbs C.J. per Mason J. at 158; Koowarta v. Bjelke Petersen, op.cit. at 186 per Gibbs CJ; The State of Western Australia v. The Commonwealth of Australia (1995) 183 C.L.R. 373 at 461.2.

(c) Some dicta are equivocal e.g. The Commonwealth of Australia v. The State of Tasmania op.cit. at 273 per Deane J.

33. Kruger v. The Commonwealth of Australia op. cit. at 156 per Dawson at 193 per Gaudron J. and at 228 per Gummow F.

34. The State of Victoria v. The Commonwealth of Australia (1971) 122 C.L.R. 353 at 396 7, 399 per Windeyer J.; Cheatle v. The Queen (1993) 177 C.L.R. 541 at 560 1; McGinty v. The State of Western Australia op.cit at 200 201 per Toohey J.

35. "CS" is a reference to the Commonwealth of Australia's Submissions.

36. cf. Coco v. The Queen, op.cit. at 438 per Mason C.J., Brennan J, Gaudron J and McHugh J.

37. Mabo v. The State of Queensland [No. 21]. Op.cit at 42 43 per Brennan J. (Mason C.J. and McHugh J. agreeing at 15).

38. An account of the history of s.51(xxvi) prior to 1967 appears in Sawer, "The Constitution and the Australian Aborigine", (1967) 2 Federal Law Review 17; see also Sadler, "The Federal Parliament's Power to make laws with respect to ... the people of any race....", 10 Sydney Law Review 591.

39. Reference to such materials is permissible as identifying "the contemporary meaning of the language used, the subject to which that language was directed and the objectives of" submitting the amendments to the Constitution to the people in the 1967 referendum: Cole v. Whitfield (1988) 165 C.L.R. 360 at 385. At the very least the 1967 Referendum introduced "a second set of founding intentions": Detmold, "Original Intentions and the Race Power", (1997) 8 Public L.R. 244 at, 247.

40. "PM" refers to pages in the bundle of the Plaintiffs' Materials.

41. While decisions of Human Rights Committee of the United Nations (established Pursuant to Art. 28(1) of the ICCPR) are not binding on States, they are persuasive: see Mathew, "International Law and the Protection of Human Rights", 17 Sydney. L.R. 177 at 183 4; see also Burmester, "Impact of Treaties and International Standards" 17 Sydney Law Review 127 at 145 6.

42. Communication No. 196/1985 UN. Doc Supplement No. 40 A/44/40 at 189 [para. 9.5]

43. See Brownlie, op.cit, at 599.

Last updated 20 May 2003.