2.3.2 Intermediate appellate court decisions
49 The Commonwealth also relied on several decisions of intermediate appellate courts. The applicant submitted that, to the extent that these decisions supported the Commonwealth's position, they were inconsistent with Maloney and should not be followed.
50 We have come to the view that none of these cases is directly on point, so that no question arises as to whether they should be followed. We therefore do not need to express concluded views as to whether any of these cases was (as the applicant submitted) wrongly decided. However, it is useful to say something about two preliminary matters before discussing the cases: the relationship between intermediate appellate decisions and "seriously considered dicta" of the High Court; and the position of a Full Court of this Court constituted (in the original jurisdiction) to determine separate questions.
51 The view has occasionally been expressed that, as a matter of precedent, a decision by a Full Court exercising the original jurisdiction of the Court carries no more weight than three (or five, as the case may be) single judge decisions to the same effect: see the cases cited in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [31] (Allsop CJ) (FAK19). However, in FAK19 the Chief Justice doubted the correctness of that view, given the text and structure of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and the importance of Full Court authority in the operation of the system it creates: at [32]. The issue did not need to be decided in FAK19. The point did arise, however, in Pitman v Commissioner of Taxation [2021] FCAFC 230; 289 FCR 287 (Pitman), where the Full Court exercising original jurisdiction (in an "appeal" from the Administrative Appeals Tribunal) was invited to depart from a decision of an earlier Full Court exercising the same jurisdiction. Davies J (at [10]) regarded that step as not open unless the earlier decision was "plainly wrong", and quoted from other parts of Allsop CJ's reasons in FAK19. Allsop CJ (at [3]) agreed and said:
… for all the reasons set out in FAK19 at [14]-[29], in particular the reasons directed to the text and structure of the [FCA Act], Full Court decisions in the original jurisdiction (often sat for the purpose of expressing a view on a legal or constructional question) should not be viewed somehow as of lesser authority than Full Court decisions in the appellate jurisdiction.
52 The other member of the Court in Pitman, Bromwich J, regarded the earlier decision as clearly correct, but would otherwise not have departed from it for the reasons given by Allsop CJ and Davies J (at [34]).
53 The issue that now arises is different, but related: should a Full Court exercising the original jurisdiction consider itself bound by a decision of an earlier Full Court exercising appellate jurisdiction, or another intermediate appellate court in the integrated judicial system of Australia?
54 Unlike issues concerning the status to be afforded within the Court to existing judgments of the Court, the question is not solely one of practice (cf FAK19 at [24], [32]). It concerns, in part, consistency of approach as between different courts in the Australian judicial system. That is a topic upon which the High Court has expressed views (in Farah Constructions at [135] and earlier in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485, 492). However, the position arrived at by the High Court appears to be that even a single judge is not strictly bound by a decision of an intermediate appellate court in another jurisdiction and may depart from it if persuaded that it is plainly wrong (see CAL No 14 Pty Ltd v Motor Accidents Board [2009] HCA 47; 239 CLR 390 at [49]-[50]). The fact that we are now exercising original rather than appellate jurisdiction may therefore not matter. If that is not correct, and a single judge is constrained in this regard to a greater extent than an appellate court, we would nevertheless conclude that a Full Court of this Court exercising original jurisdiction is in essentially the same position as a Full Court exercising appellate jurisdiction. That conclusion is supported by the consideration that under s 24 of the FCA Act a decision of a single judge can be the subject of an appeal to the Full Court, where existing intermediate appellate authority can be canvassed and departed from if it is plainly wrong, whereas a decision of the Full Court (including one exercising original jurisdiction) cannot: the only avenue of appeal in that case is to the High Court, subject to a grant of special leave. Statements of principle in the cases are to be approached on this basis; and the decisions, if not distinguishable, are to be followed unless plainly wrong.
55 An aspect of the "plainly wrong" question in relation to intermediate appellate decisions is whether they can be reconciled with High Court authority. Another way of putting the point is that, as was noted in Hill v Zuda Pty Ltd [2022] HCA 21; 96 ALJR 540 at [25]-[26], an intermediate appellate court should follow "seriously considered dicta" of the High Court; while a decision of another intermediate appellate court on the interpretation of Commonwealth legislation can properly be departed from if it is considered to be "plainly wrong". In other words, institutional respect between courts of equivalent status gives way, in the event of conflict, to the authoritative status of seriously considered dicta of the High Court. To the extent that a decision of another intermediate appellate court (or this Court) cannot be reconciled with the view of the majority in Maloney concerning the scope of s 10(1), therefore, that decision must be regarded as wrongly decided and therefore not to be followed.
56 With these principles in mind, we turn to the authorities relied on by the Commonwealth. As noted earlier, we have come to the view that these cases are distinguishable and we therefore do not need to express concluded views as to whether they are to be followed, on the one hand, or "plainly wrong" on the other.
57 In Melkman v Commissioner of Taxation (1988) 20 FCR 331 the appellant sought to claim the benefit of a provision of the tax law which exempted a pension paid by a State of the Federal Republic of Germany by way of compensation to victims of Nazi persecution. The appellant was receiving a pension of that character paid by the Netherlands. His attempt to rely on s 10(1) was found at 336-337 to face at least two problems. One was that the human rights referred to in art 5 that he invoked (those found in paras (d)(iii) and (e)(iv)) were considered not to involve exemption from taxation. Another was that the law did not draw any distinction, express or otherwise, between persons of different races. This second point might now require further scrutiny in light of Maloney, because the German pensions to which the exemption applied were payable (in general at least) only to people of German national origin. By exempting those pensions but not others from tax, the exemption provision arguably granted an exemption that was only available to members of a particular race (although there would be a significant issue as to how the relevant "race" was to be identified, for the purpose of working out who were the persons of "another race" entitled to the same benefit by force of s 10(1)). However, this observation does not cast any doubt on the other significant barrier that the appellant's argument faced: the need to prove that the particular human rights to which he referred were enjoyed to a lesser extent by members of one or more races, as a result of a small number of members of a particular race having access to a tax exemption.
58 Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 (Nguyen) involved a Vietnamese man whose application to the (then) Refugee Review Tribunal (RRT), for review of a decision by an officer not to grant him refugee status, had been filed outside the applicable limitation period. The RRT had no power to grant an extension of time and concluded that it had no jurisdiction to conduct a review. The appellant argued that, because notice of the primary decision had been sent in English, he was less able to enjoy the right to be notified than a person of another race who could understand English, and s 10(1) therefore applied. So far as can be deduced from the report, his argument seems to have been that s 10(1) gave him an entitlement to be notified in his own language; that had not occurred, and therefore time had not started to run.
59 Tamberlin J held that provision of a notice in the de facto official language of Australia could not be said to be discriminatory in form or effect any more than the printing of legislation and judicial decisions in English was discriminatory (at 319). In the alternative, his Honour reasoned that any lessening of the appellant's enjoyment of the right to be notified arose from his circumstances (ie that he did not understand English) and not as a result of the terms or effect of the legislation. Sundberg J reasoned at 326-327 that the legislation did not give the members of any race a right to receive notice in their own language. Rather, notification was given in English (which, his Honour found, was implicitly required by the legislation) because that was Australia's official language. Alternatively, if the argument was that the appellant enjoyed the right to "notification" to a lesser extent than a person who could read English, his Honour regarded that argument as unsound because having the notice brought to one's attention or understanding it was not a component of the requirement for notice under the Migration Act (at 327). Marshall J (at 331) reasoned along similar lines to Sundberg J.
60 The reasoning of Tamberlin J in Nguyen appears to us to be open to question because of its focus on discrimination (a concept s 10(1) does not employ, at least directly) and the suggestion that any lesser enjoyment of a right was the consequence of the appellant's circumstances rather than the law. The second aspect is problematic for the reason we have indicated above (at [29]-[31]), and also because the circumstance of the appellant that led to his lesser enjoyment (lack of comprehension of English) was, at least prima facie, related to his race. The same problem arises in the present case, where the reduced life expectancy of Aboriginal men compared to their non-Aboriginal contemporaries is expressly agreed to be a "function" of their race. If lesser enjoyment of a human right by members of the Aboriginal race could be said not to arise "by reason of" the law that gives local expression to that right, on the footing that lesser enjoyment is a consequence of factors arising from their Aboriginality, s 10(1) would be readily circumvented. However, these criticisms do not affect the reasoning of Sundberg and Marshall JJ or the correctness of the actual decision. The practice (widespread if not universal among nation states) of conducting government business in one or two official languages clearly raises special issues, which do not arise in this case. The proper understanding of the relationship between an official language and art 5 of the Convention (and with s 10(1)) may be found in the proper identification of the relevant human right (a point that received little attention in Nguyen) and close attention to what is meant by the enjoyment - and the relative enjoyment - of that human right. Nguyen has not been shown to be wrongly decided, but we do not think it assists greatly in resolving the present case.
61 Sahak concerned applications for judicial review of decisions by the RRT, lodged out of time by applicants who were unable to read and write in English. The focus was s 478 of the Migration Act, which imposed a time limit for an application invoking the statutory review jurisdiction of the Federal Court under s 476. The appellants had both filed review applications outside the permitted period, which the Court had no power to extend. They argued that, as a result of s 478, persons of Syrian and Afghan national origin enjoyed the right to equality before the law, including access to the Court, to a more limited extent than persons of a national origin which had an attribute or characteristic of English as a first language; and that therefore, by force of s 10(1), the time limit did not apply to them. Goldberg and Hely JJ observed at [45] that the discrimination or disadvantage arising from the practical operation of the time limit was not racial discrimination, because a person whose national origin was Afghan or Syrian was able to take advantage of the relevant right to the same extent as anybody else if they had a sufficient understanding of English or if they had access to friends or professional interpreters.
62 Their Honours then said, at [48]:
The fact that an applicant who wishes to review the decision of a Tribunal requires the services of an interpreter in order to prepare and file an application for review does not mean that the right to apply for the review is lessened. Similarly, a person who speaks English but who does not understand how to complete the application due to circumstances, such as physical infirmity, a lack of literacy or a lack of education, does not have his or her right to apply for review lessened by the time limit in s 478 compared to the right of a literate, educated, healthy, English-speaking applicant. Any difficulty such persons confront in completing and filing applications for review within the time limit prescribed by s 478 is due to personal characteristics and not due to a circumstance which is dictated by their race, colour, or national or ethnic origin.
63 Their Honours went on at [49] to conclude that there was no nexus or causal connection between the provisions of s 478 and the manner in which the appellants enjoyed their right of access to the Court as compared with the manner in which English-speaking applicants enjoyed that right. Section 478 operated uniformly and, in their Honours' view, did not have a differential or discriminatory impact.
64 We have expressed doubts about this last aspect of the reasoning above. Part 8 of the Migration Act, as in force at the relevant time, created a right to seek judicial review of certain migration decisions in the Federal Court in addition to the constitutionally entrenched jurisdiction of the High Court under s 75 of the Constitution. Part of the manner in which that right was conferred was that it could only be exercised by making an application within a strict time limit. To the extent that the right was enjoyed to a lesser extent by members of one race compared to members of another, and that lesser enjoyment arose from the more onerous application of the time limit upon people whose first language was not English, it is hard to see how that lesser enjoyment did not have a nexus or causal connection with the provisions of s 478.
65 However, the result in Sahak can be explained on the basis of what their Honours said at [48], which echoes the reasoning in Nguyen. It can also (and perhaps more persuasively) be explained on the alternative basis set out in the reasons of North J (at [3]-[4]). If the relevant human right is understood as the right to seek judicial review of an adverse decision, and regard is had to the jurisdiction of the High Court under s 75(v) of the Constitution (which, unlike the jurisdiction of the Federal Court under Pt 8 of the Migration Act, was not limited to specified grounds), it could not be said that the right was not enjoyed or enjoyed to a lesser extent by the appellants than by other persons.
66 Jones v Public Trustee of Qld [2004] QCA 269; 209 ALR 106 (Jones) concerned provisions in the Succession Act 1981 (Qld) (Succession Act) specifying the persons who could pursue proceedings in the Supreme Court concerning an estate that had been administered on intestacy. The appellant claimed the right to pursue such proceedings on the basis that he was the most senior elder of the Dalungdalee people, to which the deceased had belonged. That was not a sufficient interest under the provisions of the Succession Act. It was argued that the relevant provisions were inconsistent with s 10(1), on the basis that they conflicted with Aboriginal traditional or customary law. However, McPherson JA (with whom Williams and Jerrard JJA agreed) held that the content of any such traditional rights had not been proved. His Honour also observed (at [19]) that the provisions of the Succession Act made no distinction between peoples of any race or origin and applied equally to all people including Aboriginal people. In the light of Maloney, the latter proposition might well not be sufficient to dispose of the case. However, it may be doubted whether "the right to inherit" (referred to in art 5(d) of the Convention) is enjoyed to a lesser extent by the people of any race in a situation where the same rules apply in relation to any person who dies intestate. The case is, rather, one where the State has chosen to apply the same rules to everyone rather than create different intestacy regimes for people of different racial or cultural backgrounds. In the end, we do not think Jones assists in the resolution of the present issues.
67 In Vanstone v Clark [2005] FCAFC 189; 147 FCR 299 (Vanstone), the respondent was the Chair of the Aboriginal and Torres Strait Islander Commission (ATSIC). He sought judicial review of a decision by the appellant (as the responsible Minister) to suspend him from office under a provision of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (ATSIC Act). The decision depended on a determination made (purportedly) under another section of the ATSIC Act, providing that conviction for certain offences was to be taken to constitute "misbehaviour" for the purposes of that Act. At first instance, the determination (and thus the decision) was held invalid on several grounds, one of which was that its effect was to hold office-holders of ATSIC to a higher standard than holders of comparable offices under other legislation. Section 10 was said to require the determination to be read down to overcome that effect (Clark v Vanstone [2004] FCA 1105; 211 ALR 412 at [109]-[115]). In the Full Court, the other statutory offices referred to by the primary judge were regarded as not comparable (Vanstone at [201] (Weinberg J (Black CJ agreeing))), and the determination did not operate in a discriminatory way between Indigenous and non-Indigenous holders of offices under the ATSIC Act (at [200]). There was thus no inconsistency of treatment based upon race.
68 Queensland Construction Materials Pty Ltd v Redland City Council [2010] QCA 182; 271 ALR 624 (Queensland Construction Materials) concerned a provision in Queensland planning law entitling the owners of neighbouring properties to be given notice of, and object to, a proposed development. "Owner" was relevantly defined to include a person entitled to receive rent from the property (or who would be so entitled if the property were leased). Parties who claimed to hold native title in certain land contended that, by virtue of s 10(1), they were entitled to be given notice. Chesterman JA and Applegarth J held that, even if native title was established, s 10(1) would not operate so as to put the claimants in the same position as holders of other interests in land. Their Honours held that the distinction made by the relevant provisions was based not on race but upon different proprietary interests in land. If the claimants were able to establish a right to exclusive possession and a right to receive rent for the land, they would relevantly be "owners"; otherwise, along with holders of various kinds of non-native title rights other than freehold and leasehold, they would not be.
69 An application for special leave to appeal to the High Court in Queensland Construction Materials was refused on the papers: [2011] HCASL 131. It is not clear whether the issue referred to in the previous paragraph was raised in the application.
70 In R v Woods [2010] NTSC 69; 246 FLR 4 (Woods), the defendants were two Aboriginal men charged with murder. They challenged the array of jurors on several bases, including that provisions in the Northern Territory legislation excluded persons who had been in custody in the previous seven years from jury service and required the service of summons by ordinary post. These provisions were said to result in a disproportionately low number of Aboriginal people on jury panels, because of their over-representation in the prison population and because many had no postal address. This, it was argued, engaged s 10(1) because the defendants, compared to non-Aboriginal persons, had less chance of being tried by a jury including people of the same race as them. The argument was rejected by the Full Court, holding that the right to trial by jury did not include any requirement as to the racial mix of the jury panel. Rather, in their Honours' view, random selection of jury members was an important element of trial by jury (at [58]). The Court went on to say, at [59]:
To impose some overriding requirement to the effect that a jury, once randomly selected in this way, has to be racially balanced or proportionate would be the antithesis of an impartially selected jury, not to mention the enormous practical difficulties that would be associated with attempting to meet such a requirement, particularly as it is not an easy matter to identify who is, or is not, a member of a particular racial group.
71 Factually, Woods is close to the present case. The impugned law was part of the statutory regime giving effect under municipal law to one of the fundamental human rights whose equal enjoyment is mandated by the Convention. Its facially neutral criteria were said to operate differently as between Aboriginal people and others, because of social facts concerning the life experiences of Aboriginal people that resulted in different probabilities as to how relevant rights would be enjoyed. The resolution of the case lay in analysing the relevant human right and what was involved in its equal or unequal enjoyment. In our view, the reasoning in Woods is not overtaken by anything that was said in Maloney.
72 Aurukun is a case that might well be approached differently following Maloney, although that does not mean it was wrongly decided. It concerned amendments to the Liquor Act 1992 (Qld) (Liquor Act) which provided that a local government entity could no longer hold a liquor licence. The only local government entities that held liquor licences were Indigenous local governments.
73 Keane JA held that s 10(1) was not engaged on the basis that neither the right to use a local government facility to purchase alcohol nor the right to use a local supplier was a human right or fundamental freedom of the kind with which s 10 was concerned (at [155]); the provisions were not in breach of s 10 because they served a legitimate and non-discriminatory goal (protecting women and children in Indigenous communities from domestic violence) (at [166]-[170]); and the law did not result in a different level of enjoyment of the right to have access to a local supplier of alcohol (the practical effect of the law being that nobody in Queensland could acquire alcohol from their local government) (at [178]-[179]). Alternatively, his Honour would have held that the law was a special measure within s 8 of the RDA. Philippides J held, as to the rights of individuals, that the provisions were not inconsistent with equal treatment before the law because they applied everywhere in Queensland (at [262]) and other means of obtaining alcohol were not precluded (at [275]-[276]); and that, so far as there was interference with the property rights of the local councils, those rights were not absolute and could be modified to achieve a legitimate and non-discriminatory public purpose (at [266]-[271]). McMurdo P held that s 10(1) was engaged, but that the provisions were a special measure.
74 An application for special leave to appeal from the decision in Aurukun was dismissed on the basis that an appeal would have insufficient prospects of success. Refusal of special leave has no status as precedent (North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; 185 CLR 595, 643 (McHugh J)), although in some circumstances the reasons given can be persuasive (Algama v Minister for Immigration [2001] FCA 1884; 115 FCR 253 at [62] (Whitlam and Katz JJ, French J agreeing)). The short oral reasons delivered by Hayne J indicate that the High Court was not persuaded that the applicants had significant prospects of identifying a fundamental right or freedom that was infringed (Transcript of Proceedings, Aurukun Shire Council v CEO, Liquor Gaming & Racing in Dept of Treasury [2010] HCATrans 293), and therefore do not involve any endorsement of the reasoning in the Court of Appeal concerning the practical effect of the provisions. (The provisions considered in Aurukun, while they amended the Liquor Act, were part of an Act called the Aboriginal and Torres Strait Islander Communities (Justice Land, and Other Matters) and Other Acts Amendment Act 2008 (Qld) which was plainly directed at Indigenous communities. There is every reason to think that, if these provisions had affected the enjoyment of a fundamental human right of the kind referred to in art 5 of the Convention, the Court as constituted in Maloney would have regarded them as engaging s 10(1); although the provisions might well also have been regarded as a special measure.)
75 Munkara is the first of the intermediate appellate decisions to which we were referred that post-dates Maloney. Section 6 of the Alcohol Protection Orders Act 2013 (NT) (APO Act) provided police with powers to issue alcohol protection orders. These orders could be issued if a person was charged with a "qualifying offence" and the issuing officer believed that the person was affected by alcohol at the time. The effect of an order was to prohibit the person from possessing or consuming alcohol or (with certain exceptions) being on licensed premises. Evidence showed that Aboriginal people were vastly more likely to be issued with alcohol protection orders than other people in the Territory. The appellant argued that s 6 engaged s 10(1) of the RDA and was therefore invalid. He also argued that the provisions for seeking reconsideration of an order engaged s 10(1) because the very short time limits in ss 9 and 11, together with other formalities, created particular difficulties for Aboriginal people given their low levels of literacy in English. The time limits were said to be of no effect for this reason. Although the statute was racially neutral in its terms, the appellant argued (relying on Maloney) that its "legal and practical operation" was to disadvantage Aboriginal people in their enjoyment of the right to own property (ie alcohol) and their right of access to licensed premises (including hotels, restaurants, cafes and some supermarkets).
76 The reasoning of the Court of Appeal on the s 10 issues is to be found in the reasons of Blokland J. Kelly J agreed with that reasoning (at [15]) and Barr J agreed with Kelly J on all of the issues in the appeal.
77 In relation to s 6, Blokland J said at [99]:
The primary judge was correct in holding that any adverse effect suffered by Aboriginal persons as a result of the imposition of an alcohol protection order is not as a result of the law itself but as a result of the person committing a qualifying offence whilst affected by alcohol. The situation is clearly distinguishable from the circumstances considered in Maloney because in that case, the Queensland legislative and regulatory scheme was directed at the largely Aboriginal population of one community, Palm Island, the residents of which were almost all Indigenous persons. They suffered disadvantage without any wrongdoing or qualifying conduct on their part. Under the Act the subject of this appeal, the law does not have effect unless and until a person commits a qualifying offence and a police officer reasonably believes that a person was affected by alcohol at the time of offending. Criminal offending in circumstances where the offender is affected by alcohol triggers the operation of the Act.
78 Her Honour's response to the argument that alcohol consumption (and therefore exposure to orders under the APO Act) was causally related to race was as follows (at [102]):
That contention is rejected. It adds nothing to the bare statement of the statistics, i.e. that Aboriginal people form about 27 percent of the population and have received over 90 percent of the alcohol protection orders. It could also be said that "serious domestic violence and race are interrelated concepts when it comes to Aboriginal people in the Northern Territory" because the statistics are much the same. Put that way, the concept is simplistic and offensive. The appellant's submission ignores the reality of deprivation and disadvantage that are the real matters referred to by the High Court in [Bugmy v The Queen [2013] HCA 37; 249 CLR 571] and are well acknowledged to be important factors associated with criminal behaviour and alcohol and substance abuse. Further, it ignores the fact that most Aboriginal people do not abuse alcohol and that many non-Aboriginal people do.
79 However, what her Honour described as the "main point" (at [103]-[104]) was that, unlike the law considered in Maloney, the APO Act did not deprive anyone of the right to possess alcohol or enter licensed premises. Instead, its effect was "to place consequences on people's behaviour, namely in the first instance committing a qualifying offence while affected by alcohol". If s 10(1) was engaged because members of a particular race were disproportionately likely to engage in the relevant behaviour, the same would be true of any offence-creating provision in the Criminal Code where members of a particular race are more likely than other people to be imprisoned (and thereby deprived of liberty) for committing the relevant offence.
80 As to the challenge to the time limits on reconsideration requests, Blokland J held that the reasoning in Sahak was not contrary to established authority concerning s 10(1) (including Maloney) (at [118]) and not clearly wrong (at [119]).
81 While we have reservations as to whether some of the reasoning on s 6 of the APO Act in Munkara is consistent with statements in Maloney, it is clear that the Court considered the effect of that case. While the considered dicta in Maloney are binding (to the extent that a majority position emerges from them), comity between intermediate appellate courts requires a high degree of respect to the understanding of the Court of Appeal concerning what flows from those dicta. Thus, in order to conclude that Munkara was wrongly decided by reason of inconsistency with Maloney, we would need to be persuaded that the Court was clearly wrong in its understanding of the effect of that case. In any event, what Blokland J described as the "main point" appears to us, with respect, to be sound. A law of general application imposing penal consequences for behaviour considered to be antisocial would not normally be said to result in a lesser enjoyment of human rights by members of a particular race, unless the behaviour was singled out for punishment as an attack on members of a particular race who were associated with it. (We note here that we have some difficulty with the alternative explanation suggested by Basten JA in Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16; 400 ALR 507 at [33] (Hamzy) as to why a criminal law of general application could survive s 10(1) despite having a disproportionate operation on Aboriginal communities: ie that such a law was reasonable and justifiable because it is protective of the same communities. Section 10(1) does not call for any inquiry into whether laws are reasonable or justifiable: Maloney at [39] (French CJ), [68] (Hayne J (Crennan J agreeing at [112])), [167] (Kiefel J), [214] (Bell J), [348] (Gageler J). Nor does s 10(1) invite consideration of whether a detriment that falls disproportionately on some members of a particular race (eg those who engage in criminalised behaviour) is offset by a benefit to other members of the same race (victims of that behaviour).)
82 The reasoning in Munkara on the time limits for seeking reconsideration in ss 9 and 11 of the APO Act grapples directly with whether Sahak is still good law following Maloney. For present purposes we do not need to express a concluded view on that question, as the facts in Sahak are far removed from those in the present case. We have expressed reservations about the majority reasoning in that case. We add that, for the reason outlined in the previous paragraph, in order to regard Sahak as having been overtaken by Maloney, we would need to be persuaded that the Court in Munkara had erred on this issue.
83 The appellant in Hamzy was a prisoner, who had been designated as an "extreme high risk restricted inmate". As such he was subject to various measures including a requirement that most of his communications be in English (so that corrections officers, who monitored his communications, could know what he was discussing). That placed a burden on him because he was accustomed to speak partly in Arabic, his parents did not speak good English, and speaking in Arabic was important to the practice of his Islamic faith. He argued, among other things, that the requirement to use English was inconsistent with s 10(1).
84 Leeming JA, with whom Bathurst CJ agreed, dismissed the s 10(1) claim on the basis that there was "no other law which conferred a right enjoyed by persons of another race, colour or national or ethnic origin which, by dint of s 10, could be relied upon by the appellant" (at [274]). Basten JA also appears to have embraced that reasoning (at [21]). We doubt, with respect, whether that was an adequate answer to the claim. If the freedom to speak to family members or practice a religion in one's "native" language (or chosen language) is a human right of the kind protected by art 5 of the Convention, persons in Australia generally enjoy that human right because the common law permits that which is not prohibited (see, eg, Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 at 564 (the Court)). It is not clear to us why a particular law giving effect to the right needs to exist, in order for a law curtailing its enjoyment by members of a particular race to engage s 10(1). However, that point does not need to be pursued here. The human right in question in the present case has been given domestic legal force by statute, and it is the manner in which that has occurred that is in question.
85 Basten JA, in extensive obiter dicta, criticised reasoning of the primary judge to the effect that there would be no breach of s 10(1) "if a person does not enjoy a human right, or does so to a lesser extent, because of his or her individual personal circumstances". His Honour said that such reasoning could not be accepted; and, to the extent that it was supported by reasoning in Sahak, that reasoning should not be followed (at [23]-[24]). His Honour was critical of some of the reasoning in Sahak (at [25]-[29]) and in Munkara (at [30]-[33]). After referring to Maloney, his Honour went on to state (at [39]-[40]):
To attribute the effects of the clauses of the Regulation impugned by the appellant to "the personal circumstances of his being in custody", would be analogous to dismissing Ms Maloney's claim on the basis that the adverse operation of the law was attributable to her residing on Palm Island. Such an approach cannot be sustained. Even if the judge's reason were an elliptical reference to the restrictions being justified by the circumstances of the appellant's incarceration, that would involve a rejection of the core of the reasoning as to justification adopted in Maloney.
Further, if that basis of the judge's reasoning as to the non-engagement of s 10 were applied, it would seem that any racially discriminatory treatment of prisoners would be beyond the protection of s 10. But that would contradict the uniform approach of international bodies to such cases.
86 After discussing some decisions of the European Court of Human Rights on this point, Basten JA turned to the analysis of s 9 of the RDA, which was also raised in Hamzy. In that context, at [69]-[88], his Honour discussed the identification of the relevant right or freedom. At [89]-[91] his Honour concluded that, in the light of the way the case was run at trial (including the ways that the relevant right had been framed), the lawfulness of the challenged provisions could not be determined and the primary judge had been correct to dismiss the summons.
87 The most recent intermediate appellate decision that needs to be mentioned is Bara. The Misuse of Drugs Act 1990 (NT) contained two offences of trafficking less than a commercial quantity of a Schedule 2 drug. Section 5A applied generally in the Northern Territory and prescribed a maximum penalty of five years' imprisonment. Section 5D applied where the drug was supplied in an Indigenous community, and prescribed a maximum penalty of nine years' imprisonment. A charge under s 5D also carried a presumption against bail. The appellant, an Aboriginal man, was charged with an offence under s 5D. He argued that the section was invalid by reason of inconsistency with s 10(1).
88 The Court of Appeal held that s 5D was a special measure for the purposes of s 8 of the RDA, and therefore not subject to Pt II of that Act. However, the Court also considered whether, apart from s 8, the impugned provision engaged s 10(1). Facts were agreed between the parties, including that around 25 percent of the Territory's population were Indigenous and about 87 percent of the population of "indigenous communities" (as defined for the purposes of s 5D) were Indigenous. The agreed facts also included statistical information which showed that 94.9 percent of the charges under s 5D, and 93.6 percent of charges leading to conviction in the Local Court, were against Indigenous people, compared with 49.4 percent of the total charges and 50.7 percent of charges leading to conviction under s 5A; and that sentences under s 5D were significantly more likely to include terms of imprisonment. In the period covered by these figures, as the primary judge observed, 140 Indigenous people were charged and either convicted or committed to the Supreme Court under one or other of the provisions (compared to 60 non-Indigenous people). Forty-seven of these were convicted or committed under s 5A (compared to 52 non-Indigenous people) and 93 (compared to 8) under s 5D. Digging a little deeper, more people were committed to the Supreme Court for offences under s 5A (indicating more serious offending) than s 5D. The primary judge observed that those imprisoned were "by no means overwhelmingly" offenders who had been charged under s 5D.
89 The rights that were said to be unequally enjoyed as a consequence of s 5D were the right to liberty and the right to equal treatment before courts and tribunals. Both were accepted as falling within s 10(1). As to the former, the appellant's case boiled down to an argument that s 5D caused Aboriginal people to enjoy the right to liberty to a more limited extent than others in the Territory because it extended the time that they spent in custody, compared with non-Aboriginal people charged under s 5A (at [40]). As to the latter, the Court referred at [44] to statements in Maloney that were critical of proposing a broadly expressed right to equality as a right that engages s 10(1), and regarded the right referred to in art 5(a) of the Convention as concerned essentially with procedural equality. Debate on this issue thus focused on whether the presumption against bail, and a mandatory minimum sentence that applied in some circumstances, were "procedural" or "substantive" in character: at [45].
90 The appellant's argument on unequal enjoyment of rights was understood to involve a comparison between people charged under s 5D (who were predominantly Aboriginal) and people charged under s 5A. The argument invoked reasoning in Maloney (where, it will be recalled, the population of Palm Island was overwhelmingly but not entirely Aboriginal). The Court held that this division did not involve a meaningful comparison, because almost half of the people charged under s 5A were also Aboriginal (at [48]). A further difficulty identified by the Court was that the comparison sought to be made was between people charged with different kinds of offending: offences under s 5D were more serious because of the aggravating factor of supplying drugs to a vulnerable community (at [49]). Thus, the argument was to be rejected.
91 The Court went on to identify further problems that it perceived in the appellant's argument.
(a) The case was said to be different from Maloney because s 5D did not make anything unlawful that was previously lawful. Section 5D had no impact on any person's rights or freedoms unless and until the person engaged in or was reasonably suspected of engaging in criminal conduct (matters which were "not related to race") (at [57]). Munkara was a similar case, and its reasoning was therefore not inconsistent with Maloney (at [58]-[60]).
(b) In response to the point that the reference to Indigenous communities in s 5D was a criterion based on race (and its disproportionate application was therefore not incidental or accidental), the Court observed that the facts before it did not show what proportion of the Aboriginal people charged with the offence actually lived in or had connections with those communities (at [63]). Experience showed that, in general, Aboriginal people were more likely to be involved at lower levels of organised drug supply, making them more visible and liable to be caught (at [64]). It was therefore "difficult to draw conclusions about the strength of the causal nexus between the number of Aboriginal people charged with an offence against s 5D and the reference in s 5D to indigenous communities" (at [65]).
(c) In any event, connection with an Indigenous community did not of itself give rise to any liability. The necessary condition for liability was engagement in the supply of dangerous drugs (referring again to Munkara). Section 5D thus did not turn on a criterion based on race (at [66]-[67]).
(d) Exposure to a higher maximum penalty, compared with offences under s 5A, did not result in a lesser enjoyment of human rights because the maximum penalty was only one, usually relatively minor, driver of the ultimate sentencing disposition (at [73]-[76]) and it had previously been part of the sentencing practice of courts in the Territory to treat supply to an Indigenous community as an aggravating factor in cases of the supply of dangerous drugs (at [77]-[78]). A person charged under s 5D and convicted would most likely receive a very similar penalty to someone who had engaged in identical conduct and been charged under s 5A (at [79]-[83]).
(e) The mandatory minimum penalty (28 days' imprisonment) applied to an offence for which the maximum penalty was seven years' imprisonment or more, and therefore to offences under s 5D, unless the sentencing court was of the opinion that such a penalty should not be imposed. It therefore did no more than reverse the normal approach of imposing a custodial sentence as a last resort. The mandatory minimum also applied to other offences (including under s 5A) if an "aggravating circumstance" was present. "Aggravating circumstance" was defined to include an offence committed in an Indigenous community. Thus, the mandatory minimum penalty did not lead to any significant disparity in enjoyment of the right to liberty between offenders charged for the same conduct between ss 5A and 5D (at [84]-[89]). For the same reason there was no difference in enjoyment of the right to equal treatment (at [103]).
(f) Analysis of the statistics showed only a relatively modest difference in imprisonment rates between offenders sentenced for offences against the two provisions. In a relatively small sample, the difference was insignificant and explicable by differences in the seriousness of offending or the subjective circumstances of offenders (at [90]-[92]).
(g) In the absence of evidence it was unsafe to assume that the presumption against bail for people charged with offences under s 5D led to Aboriginal people charged with such offences being refused bail in significantly greater numbers than non-Indigenous people charged under s 5A (at [98]-[101]).
(h) The provisions imposing the presumption against bail and the mandatory minimum sentence were matters of substantive law, not procedure, and therefore did not lead to any inequality of treatment by courts or tribunals (at [102]-[105]).