GAGELER J.
Introduction
Palm Island comprises a group of ten islands forming part of Queensland situated about 70 kilometres north of Townsville. Palm Island was established as an Aboriginal reserve under Queensland legislation in 1914 and retained that or a similar status under subsequent Queensland legislation until 1986. Title to Palm Island was then granted in trust under the Land Act 1962 (Q) to the Palm Island Aboriginal Council, an Aboriginal council under the Community Services (Aborigines) Act 1984 (Q) ("the Aboriginal Communities Act"), and Palm Island became a "trust area" (subsequently redesignated a "community area") within the jurisdiction of the Palm Island Aboriginal Council under the Aboriginal Communities Act. In 2004, by force of the Local Government (Community Government Areas) Act 2004 (Q) ("the Community Government Areas Act"), as well as being continued as a community area within the meaning of the Aboriginal Communities Act as then amended, Palm Island was declared to be a "local government area" and by virtue of that also became a "community government area" to which provisions of the Local Government Act 1993 (Q) thereafter applied and the Palm Island Aboriginal Council was continued in existence as the Palm Island Shire Council.
According to the results of the 2006 census as published by the Australian Bureau of Statistics, Palm Island then had about 2000 residents, of whom over 90 per cent were Aboriginal.
Ms Maloney is an Aboriginal woman who was born on Palm Island and who remains a resident of Palm Island. On 31 May 2008, she was an occupant of a motor vehicle intercepted by Queensland Police on a public road on Palm Island. She admitted to owning a 1.125 litre bottle of Jim Beam Bourbon and a three-quarter full 1.125 litre bottle of Bundaberg Rum found to be contained in a backpack in the boot of the vehicle.
Ms Maloney was charged with an offence against s 168B of the Liquor Act 1992 (Q) ("the Liquor Act"). The particulars of the charge were that "in a public place namely Palm Island within a restricted area declared under section 173H of the [Liquor Act] namely Palm Island" she "did have in her possession a quantity of liquor namely Rum and Bourbon being more than the prescribed quantity of liquor for the area other than under the authority of a restricted area permit".
Ms Maloney was convicted of that offence in the Magistrates Court at Palm Island. She was ordered to pay a $150 fine, and to spend one day in prison in default of payment. The liquor she owned was forfeited. She appealed unsuccessfully against her conviction to the Townsville District Court and was refused leave to appeal to the Court of Appeal of the Supreme Court of Queensland.
The argument of Ms Maloney, unsuccessful in the Townsville District Court and in the Queensland Court of Appeal, was that s 168B of the Liquor Act, in its application to Aboriginal persons on Palm Island, was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) ("the RDA") and was to that extent invalid under s 109 of the Constitution.
Ms Maloney repeats and elaborates on that argument in her appeal, by special leave, to the High Court. She does so with the support of the National Congress of Australia's First Peoples Ltd ("the National Congress"), which was granted leave to appear in the appeal.
The Crown in right of the State of Queensland ("Queensland"), as respondent to the appeal, does not dispute that s 168B of the Liquor Act would be invalid under s 109 of the Constitution if and to the extent s 10 of the RDA has application. Queensland argues that s 10 of the RDA has no application. Queensland argues that is because s 10 is not engaged in its own terms and, in the alternative, because s 10 is excluded by s 8 of the RDA. Queensland argues with the support of the Attorneys-General of the Commonwealth, South Australia and Western Australia, who intervene as of right. The Australian Human Rights Commission, intervening by leave, makes submissions about ss 8 and 10 of the RDA without supporting either party.
The appeal gives rise to novel and important issues concerning the meaning and application of ss 8 and 10 of the RDA. The resolution of those issues requires close attention to underlying provisions of the International Convention on the Elimination of All Forms of Racial Discrimination (1965) ("the Convention") and to prior authority of the High Court and is assisted by a consideration of earlier decisions of the Queensland Court of Appeal and the Full Court of the Federal Court. They are best addressed after explaining first the scheme and relevant application of the Liquor Act.
The Liquor Act
The Liquor Act defines liquor to mean "a spiritous or fermented fluid of an intoxicating nature intended for human consumption". The principal focus of the Liquor Act is on the regulation of the liquor industry in Queensland. That regulation is achieved, for the most part, by restricting the sale and supply of liquor to sale or supply by licensed persons conducting businesses on licensed premises.
The Liquor Act also contains, within Pt 6, a number of general prohibitions. Those general prohibitions have long included a prohibition against the consumption of liquor in a public place that is a road or that is land owned or under the control of a local government. One exception to that prohibition is if the consumption of liquor in the place is authorised or permitted under a licence or permit. Another is if the place is at the relevant time designated by the local government to be a place where liquor may be consumed. The Liquor Act has always empowered the Governor in Council to make regulations under the Liquor Act, including with respect to the consumption or possession of liquor in a public place and including by creating offences and fixing penalties for those offences.
Section 168B is an addition to these long-standing prohibitions within Pt 6 of the Liquor Act. Section 168B and associated provisions in Pt 6A and in Div 13B of Pt 4 were inserted into the Liquor Act as part of a range of amendments effected by the Indigenous Communities Liquor Licences Act 2002 (Q) ("the 2002 Act"). The legislatively expressed purpose of the 2002 Act was to "prevent harm in community areas caused by alcohol abuse and misuse and associated violence". The "community areas" that were the focus of the 2002 Act were defined to encompass community areas within the jurisdiction of Aboriginal councils under the Aboriginal Communities Act and community areas within the jurisdiction of Island councils under the similarly structured Community Services (Torres Strait) Act 1984 (Q). Those community areas later became local government areas and community government areas by operation of the Community Government Areas Act as well as community areas under the Aboriginal Communities Act as amended in 2004.
The 2002 Act was explained at the time of its enactment as a partial response to a report to the Queensland Government of an investigation into indigenous communities in Cape York published in 2001 ("the Cape York Justice Study"). The Cape York Justice Study had found alcohol abuse and associated violence in indigenous communities in Cape York to be "so prevalent and damaging that they threaten the communities' existence and obstruct their development" and had recommended immediate intervention.
As inserted in 2002 and as in force as at 31 May 2008, s 168B of the Liquor Act provided in part:
"A person must not, in a public place in a restricted area to which this section applies because of a declaration under section 173H, have in possession more than the prescribed quantity of liquor for the area, other than under the authority of a restricted area permit."
Section 173H, to which reference was made in s 168B, was within Pt 6A of the Liquor Act. As inserted in 2002 and as in force as at 31 May 2008, Pt 6A commenced with s 173F, which provided:
"The purpose of this part is to provide for the declaration of areas for minimising -
(a) harm caused by alcohol abuse and misuse and associated violence; and
(b) alcohol related disturbances, or public disorder, in a locality."
Within Pt 6A of the Liquor Act, s 173G provided that "[a] regulation may declare an area to be a restricted area", and that an area so declared to be a restricted area might be a community area or part of a community area under the Aboriginal Communities Act. Section 173G provided that, in recommending the Governor in Council make the regulation, the Minister administering the Act "must be satisfied the declaration is necessary to achieve the purpose of this part". Section 173H went on to provide that "[a] regulation may declare that a restricted area is an area to which section 168B applies" and that such a regulation must state the quantity of liquor (to be referred to as "the prescribed quantity") that a person may have in possession in a public place in the restricted area without a "restricted area permit". Section 173I applied if a community area or part of a community area was in an area to be declared under s 173G to be a restricted area or to be declared under s 173H to be an area to which s 168B applied. Section 173I provided that the Minister could recommend that the Governor in Council make the regulation only if the Minister had consulted with, or considered any recommendation that had been made by, the "community justice group for the community area", but went on to provide that failure to comply did not affect the validity of a regulation.
Regulations made under the Liquor Act for the purposes of ss 173G and 173H, like other subordinate legislation in Queensland, were required to be tabled in the Queensland Parliament, where they were subject to disallowance. If the regulations were likely to impose appreciable costs on the community or part of the community, they were required to be accompanied as tabled by an explanatory note prepared under the authority of the responsible Minister. An explanatory note was required to include, amongst other things, a brief statement of the policy objectives of the subordinate legislation, a brief statement of the reasons for those policy objectives, and a brief statement of "the way [those] policy objectives will be achieved by the legislation and why this way of achieving them is reasonable and appropriate". Where the subordinate legislation was preceded by consultation, an explanatory note was also required to include a brief statement of the way the consultation was carried out and of the results of the consultation together with a brief explanation of any changes made to the subordinate legislation because of the consultation.
A restricted area permit, to which reference was made in ss 168B and 173H of the Liquor Act, was a permit granted under Div 13B of Pt 4 of the Liquor Act. A restricted area permit could be granted, on application, by the chief executive of the department of the Minister administering the Liquor Act and could be subject to conditions imposed by the chief executive. However, it could not be granted unless the chief executive was satisfied that the amount of liquor that the applicant had applied to have in possession was reasonable for the purpose stated in the application. The permit authorised the permittee to have in possession in a public place in a restricted area more than the prescribed quantity of alcohol for the area only at the times or during the period, and only for the purpose, stated in the permit.
The community justice group for a community area, to which reference was made in s 173I of the Liquor Act, was a body established under regulations made under the Aboriginal Communities Act, as amended contemporaneously with the 2002 Act. The community justice group for a community area was required to comprise, to the greatest practicable extent, representatives of the main indigenous social groupings in the area.
As amended shortly after being made under the Liquor Act in 2002, and as in force as at 31 May 2008, the Liquor Regulation 2002 (Q) ("the Liquor Regulation") declared for the purpose of s 173G of the Liquor Act that "[a]n area stated in a relevant schedule is a restricted area". It also declared that "[e]ach restricted area is an area to which section 168B of the Act applies" and that "[t]he prescribed quantity for a restricted area is the quantity stated for the area in a relevant schedule". Schedule 1R, the last of 18 relevant schedules to the Liquor Regulation, was headed "Palm Island".
Schedule 1R to the Liquor Regulation was inserted by the Liquor Amendment Regulation (No 4) 2006 (Q) ("the Amendment Regulation"). As inserted by the Amendment Regulation in 2006 and as in force as at 31 May 2008, it stated that "the community area of the Palm Island Shire Council" was a restricted area, as was the foreshore of that community area and the Palm Island jetty. It stated the prescribed quantity for each of those restricted areas to be 11.25 litres for beer with an alcohol concentration of less than 4 per cent and zero for any other liquor, save only that for particular licensed premises (identified as the "Palm Island Canteen") the prescribed quantity for beer with an alcohol concentration of less than 4 per cent was to be "any quantity".
The explanatory note for the Amendment Regulation explained it to be "based on the recommendations of the Palm Island Community Justice Group (CJG) and Palm Island Shire Council (Council)", each of which had "recommended alcohol limits as part of their community alcohol management strategies". The explanatory note went on to explain:
"The proposed alcohol restrictions do differ from the recommendations of the CJG and Council. There is ongoing division within the CJG and between the CJG and the Council. This division has inhibited community agreement on an Alcohol Management Plan (AMP). Subsequently, the Government developed an AMP based on a compromise between the four separate AMPs that have previously been presented to Government by the CJG and the Council.
On 19 January 2005, the Government presented a draft AMP to the Council and CJG for consideration and comment by 7 February 2005.
On 3 February 2005, Government received correspondence from the Mayor of the Council accompanied by 22 completed survey forms. The Council feedback did not comment on the detail of the proposed AMP. However the Council did state that the AMP would not be successful without appropriate support structures. No other formal feedback has been received from the community. The restricted area for the community will comprise the whole of the Palm Island Shire including all ten islands, the Palm Island jetty located on Greater Palm Island and all the island foreshores. It is proposed that the possession of liquor in the community will be restricted to one carton (11.25 litres) of light or mid strength beer.
Extensive consultation has been undertaken with the community. The final round of consultation occurred in February 2006. Across the community there was common agreement that unrestricted alcohol was a major concern that needed to be addressed.
The AMP is necessary for Palm Island to effectively address its alcohol related issues. It is the Government's experience that in other Indigenous communities where similar alcohol related issues were present and an AMP was implemented, the quality of life has generally improved."
A somewhat more extensive explanation of the history of the Liquor Regulation, and of the policy objectives underlying the Liquor Regulation, was set out in an explanatory note accompanying the Liquor Amendment Regulation (No 3) 2008 (Q) ("the Further Amendment Regulation"). The Further Amendment Regulation amended statements of prescribed quantity in a number of schedules to the Liquor Regulation with effect from 2 January 2009 but left the statement of prescribed quantity in Sched 1R substantially unchanged. The Further Amendment Regulation and its accompanying explanatory note were tabled in the Queensland Parliament on 11 November 2008, slightly less than six months after the events giving rise to the offence of which Ms Maloney was convicted. Under the heading "Reasons for the subordinate legislation", the explanatory note stated:
"Between 2002 and 2006, alcohol restrictions have been implemented in 18 Indigenous communities. Alcohol restrictions are declared under part 6A of the Liquor Act by way of regulation and prescribe the amount of alcohol that can be in a person's possession or in a vehicle (carriage limit).
In 2007, the Office for Aboriginal and Torres Strait Islander Partnerships, Department of Communities conducted a whole-of-government review of alcohol restrictions, programs and services. The review showed that despite existing restrictions, in many remote Indigenous communities alcohol-related harm and violence remain significantly higher, and school attendance significantly below, average Queensland standards.
In February 2008, the Premier met with Indigenous community mayors and announced an Indigenous alcohol reform package whereby communities were urged to go 'as dry as possible' with government to provide improved alcohol-related support services. Part of the reforms included a review of all carriage limits in the communities.
The review of carriage limits assessed the levels of harm occurring in communities and consultation was undertaken with community and other stakeholders. The Strong Indigenous Communities, Chief Executive Officers' Committee … has overseen the review. Where alcohol-related harm is high, tighter restrictions on the quantity and strength of alcohol are required.
Harm levels in the communities subject to regulatory amendment range from 7.5 times to 13.6 times Queensland's expected number of hospital admissions for assault; and from 11.2 times to 24.6 times the expected number of reported offences against the person."
The Convention
The preamble to the RDA recites the purpose of the RDA as being "to make the provisions contained in [the RDA] for the prohibition of racial discrimination … and, in particular, to make provision for giving effect to the Convention". In light of that stated purpose, it is appropriate at the outset to note not only the relevant text of the Convention as set out in the Schedule to the RDA but also the context of the Convention, which includes its relationship to other international human rights instruments.
The Convention had its origin in the Charter of the United Nations (1945), which states amongst its purposes "[t]o achieve international cooperation … in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race …", and in the Universal Declaration of Human Rights ("the Universal Declaration"), adopted by resolution of the General Assembly of the United Nations in 1948, the first recital of which was that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world". The Universal Declaration declared, amongst other things, by Art 1 that "[a]ll human beings are born free and equal in dignity and rights", by Art 2 that "[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race …", and by Art 7 that "[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law". Article 2 of the Universal Declaration, as distinct from Art 7, was soon after reflected in the Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by members of the Council of Europe in 1950 ("the European Convention"), Art 14 of which provided that "[t]he enjoyment of the rights and freedoms set forth in [that] Convention shall be secured without discrimination on any ground such as … race …".
In opening for signature in December 1965 and entering into force in 1969, the Convention pre-dated the International Covenant on Economic, Social and Cultural Rights (1966) ("the ICESCR"), under Art 2 of which States Parties "undertake to guarantee that the rights enunciated in the [ICESCR] will be exercised without discrimination of any kind as to race …", and the International Covenant on Civil and Political Rights (1966) ("the ICCPR"), under Art 2 of which each State Party similarly "undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the [ICCPR], without distinction of any kind, such as race …" but which goes on to recognise rights which include those in Art 14, that "[a]ll persons shall be equal before the courts and tribunals", and in Art 26, that "[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law". Although the ICESCR and the ICCPR did not open for signature until December 1966 and did not enter into force until 1976, they had each existed in draft since 1954. As explained in annotations to the texts of the 1954 drafts, Art 2 of the ICESCR and Art 2 of ICCPR reflected "the prevalence of the view that, whatever the level reached in the realization of rights in a country at any given time, the benefits thereof would be accorded to all equally". That was in contrast to Art 26 of the ICCPR, the underlying principle of which was explained in the same annotations as being to establish "freedom from discrimination" as a free-standing right and not merely as a general principle governing the enjoyment of other rights recognised in the ICCPR.
The Convention was preceded in 1963 by a resolution of the General Assembly of the United Nations known as the "United Nations Declaration on the Elimination of All Forms of Racial Discrimination" ("the Racial Discrimination Declaration"). The Racial Discrimination Declaration affirmed both "the necessity of speedily eliminating racial discrimination throughout the world, in all its forms and manifestations, and of securing understanding of and respect for the dignity of the human person" and "the necessity of adopting national and international measures to that end" in order to secure the universal and effective recognition and observance of principles it went on to proclaim. At the forefront of those principles were that "[d]iscrimination between human beings on the ground of race … is an offence to human dignity" and that "[n]o State … shall make any discrimination whatsoever in matters of human rights and fundamental freedoms in the treatment of persons … on the ground of race …". For the purpose, as explained at the time, of achieving "true equality" for racial groups in positions of inferiority, the Racial Discrimination Declaration went on to proclaim by Art 2(3) that "[s]pecial concrete measures shall be taken in appropriate circumstances in order to secure adequate development or protection of individuals belonging to certain racial groups with the object of ensuring the full enjoyment by such individuals of human rights and fundamental freedoms" but that those measures "shall in no circumstances have as a consequence the maintenance of unequal or separate rights for different racial groups". It proclaimed by Art 3 that "[p]articular efforts shall be made to prevent discrimination based on race … especially in the fields of civil rights, access to citizenship, education, religion, employment, occupation and housing" and that "[e]veryone shall have equal access to any place or facility intended for use by the general public, without distinction as to race …".
The preamble to the Convention records the consideration of States Parties, amongst other things, "that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings", that the Universal Declaration "proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race …" and that the Racial Discrimination Declaration "solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person". The preamble concludes by recording the desire of States Parties "to implement the principles embodied in the [Racial Discrimination Declaration] and to secure the earliest adoption of practical measures to that end".
Article 1 of the Convention is definitional. It provides in part:
"1. In this Convention, the term 'racial discrimination' shall mean any 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 the political, economic, social, cultural or any other field of public life.
…
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved."
Article 2 of the Convention lays down what Art 5 goes on to refer to as "fundamental obligations". It provides in part:
"1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
…
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
…
2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved."
Article 5 provides:
"In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice;
(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;
(c) Political rights, in particular the rights to participate in elections - to vote and to stand for election - on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the State;
(ii) The right to leave any country, including one's own, and to return to one's country;
(iii) The right to nationality;
(iv) The right to marriage and choice of spouse;
(v) The right to own property alone as well as in association with others;
(vi) The right to inherit;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social security and social services;
(v) The right to education and training;
(vi) The right to equal participation in cultural activities;
(f) The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks."
Article 5 has been explained to require adherence by States Parties to a single principle expressed in different ways: the requirement for a State Party "to guarantee the right of everyone, without distinction as to race … to equality before the law, notably in the enjoyment of the [listed] rights" is no more than an expression in different words of the requirement for a State Party "to eliminate racial discrimination" as defined in Art 1 "in all its forms". Consistent with that explanation, it appears always to have been accepted that the rights listed in Art 5 are non-exhaustive examples of "human rights and fundamental freedoms" within the meaning and scope of Art 1(1).
The rights listed in Art 5 differ in some respects from those set out in the Universal Declaration and in the ICCPR and the ICESCR. Of those argued to be relevant in this case, only that referred to in Art 5(d)(v) ("to own property alone as well as in association with others") is identical to a right listed in the Universal Declaration, although not reflected in either the ICCPR or the ICESCR. The right referred to in Art 5(a) ("to equal treatment before the tribunals and all other organs administering justice") is narrower in expression than the right to equality before the law and to equal protection of the law referred to in Art 7 of the Universal Declaration and in Art 26 of the ICCPR and is closer in expression to the right to equality before courts and tribunals referred to in Art 14 of the ICCPR. The right referred to in Art 5(f) ("access to any place or service intended for use by the general public") does not appear at all amongst the rights listed in the Universal Declaration, the ICCPR or the ICESCR and rather reflects the particular concern expressed in Art 3(2) of the Racial Discrimination Declaration that everyone should have equal access to any place or facility intended for use by the general public, without distinction as to race.
Article 8 of the Convention provides for the establishment of a Committee on the Elimination of Racial Discrimination ("the Racial Discrimination Committee"), consisting of experts elected to serve in a personal capacity. Article 9 confers functions on the Committee which include making "suggestions and general recommendations", based on the examination of the reports and information received from the States Parties, which are to be reported to the General Assembly of the United Nations.
The Racial Discrimination Committee has made "general recommendations" which are not binding on States Parties but which provide guidance to States Parties on the interpretation of the Convention. General recommendations of the Committee over the last two decades have elaborated a coherent understanding of the meaning and interrelationship of Arts 1(1), 1(4), 2(2) and 5 of the Convention. They have contributed to, and are indicative of, a "normative development". No party or intervener suggested the understanding they reveal not generally to be accepted amongst States Parties.
The Racial Discrimination Committee addressed the definition of "discrimination" in Art 1(1) of the Convention in 1993 in its General Recommendation 14. The Committee noted that "[n]on-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic principle in the protection of human rights". The Committee stated that "[a] distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights and freedoms". The Committee went on to state that "a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of [Art 1(4)] of the Convention". The Committee added that "[i]n seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race …". The Committee continued in the same vein in General Recommendation 30 in 2004 where, in the context of addressing the topic of "differential treatment based on citizenship or immigration status", it stated that differential treatment "will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim".
The Racial Discrimination Committee's suggestion that "discrimination" within the meaning of Art 1(1) of the Convention encompasses action that has "an unjustifiable disparate impact" on a racial group reflects the reference in Art 1(1) of the Convention to distinctions which have the "effect" of impairing the recognition, enjoyment or exercise of human rights or fundamental freedoms "on an equal footing". That suggestion, as well as the Committee's further suggestion that justification for different treatment requires demonstration of the proportional pursuit of a legitimate aim, is in keeping with accepted understandings of the undefined references to "discrimination" in Art 3 of the ICESCR and Art 2 of the ICCPR and to "equality before the law" in Art 26 of the ICCPR.
The Racial Discrimination Committee addressed the operation of Art 5 of the Convention in 1996 in its General Recommendation 20. The Committee there noted that Art 5, "apart from requiring a guarantee that the exercise of human rights shall be free from racial discrimination, does not of itself create civil, political, economic, social or cultural rights, but assumes the existence and recognition of these rights" and that the Convention "obliges States to prohibit and eliminate racial discrimination in the enjoyment of such human rights". The Committee added that "[w]henever a State imposes a restriction upon one of the rights listed in [Art 5] which applies ostensibly to all within its jurisdiction, it must ensure that neither in purpose nor effect is the restriction incompatible with [Art 1] as an integral part of international human rights standards".
Much more recently, in its General Recommendation 32 in 2009, the Racial Discrimination Committee addressed the nature of "special measures" in Art 1(4) and "special and concrete measures" in Art 2(2) and their relationship with the definition of "racial discrimination" in Art 1(1). The Committee commenced by noting that the Convention "is based on the principles of the dignity and equality of all human beings", that "[t]he principle of equality underpinned by the Convention combines formal equality before the law with equal protection of the law" and that "substantive or de facto equality in the enjoyment and exercise of human rights [is] the aim to be achieved by the faithful implementation of its principles". The Committee reiterated that discrimination under the Convention "includes purposive or intentional discrimination" as well as "discrimination in effect" and further reiterated that the "core notion", as articulated in General Recommendations 14 and 30, lay in differential treatment where the criteria for differentiation, judged in the light of the objectives and purposes of the Convention, are not applied in pursuit of a legitimate aim, and are not proportional to the achievement of that aim. The Committee went on to explain the expression "special and concrete measures" in Art 2(2) as "synonymous" with "special measures" in Art 1(4) and to explain Arts 1(4) and 2(2) as having an "essential unity of concept and purpose", Art 1(4) being essentially a clarification of the meaning of discrimination when applied to special measures and Art 2(2) carrying forward the same special measures concept into the realm of obligations of States Parties. The Committee emphasised in particular that "special measures are not an exception to the principle of non-discrimination but are integral to its meaning and essential to the Convention project of eliminating racial discrimination and advancing human dignity and effective equality" and are not to be confused with specific and permanent rights pertaining to categories of person (an example of which is the rights of indigenous peoples to lands traditionally occupied by them).
In relation to the content of the expressions used to define special measures in Art 1(4), the Racial Discrimination Committee relevantly stated: that the reference to "sole purpose" "limits the scope of acceptable motivations"; that "adequate advancement" "implies goal-directed programmes which have the objective of alleviating and remedying disparities in the enjoyment of human rights and fundamental freedoms affecting particular groups and individuals"; that "protection" "indicates that special measures may have preventive (of human rights violations) as well as corrective functions"; and that the limitation that "they shall not be continued after the objectives for which they have been taken have been achieved" "is essentially functional and goal-related: the measures should cease to be applied when the objectives for which they were employed - the equality goals - have been sustainably achieved".
In relation to the conditions for the adoption and implementation of special measures, the Racial Discrimination Committee relevantly stated that special measures "should be appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary" and "should be designed and implemented on the basis of need, grounded in a realistic appraisal of the current situation of the individuals and communities concerned". The Committee added that States Parties "should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities". That statement as to consultation and participation with affected communities does not go quite as far as the more general and aspirational statement in a General Recommendation in 1997 by which the Committee called upon States Parties 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".
The RDA and its prior interpretation
Sections 8 and 10 are within Pt II of the RDA. Section 8(1) of the RDA provides:
"This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3)."
Section 10(3) of the RDA is not relevant. The remainder of s 10 provides:
"(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention."
Section 10 of the RDA, alone or with s 8 of the RDA, has been the subject of close consideration by the High Court in a series of cases beginning with Gerhardy v Brown ("Gerhardy") and including Mabo v Queensland ("Mabo [No 1]"), Western Australia v The Commonwealth (Native Title Act Case) and Western Australia v Ward ("Ward"). It is appropriate to review those cases with a view to identifying the propositions for which they are collectively authority.
It was uncontroversial in each of those cases, as it is uncontroversial in this case, that s 10 of the RDA gives effect to Australia's obligations under Arts 2(1)(c) and 5 of the Convention. It was, and is, equally uncontroversial that s 8 of the RDA gives effect to the limitation on the scope of "racial discrimination" that is expressed in Art 1(4) of the Convention and that also underlies the obligation in Art 2(2) of the Convention.
It was also uncontroversial in each of those cases, as it is uncontroversial in this case, that the reference to "rights" in s 10 of the RDA has the same meaning as "human rights and fundamental freedoms" in Art 1(1) of the Convention, of which the rights listed in Art 5 of the Convention are particular examples. They are conveniently referred to as "human rights". Human rights are distinct in concept from specific legal rights protected or enforced under domestic law. They are "moral entitlement[s]".
At issue in Gerhardy was the consistency with s 10 of the RDA of a provision of a South Australian law which imposed a criminal prohibition on non-Pitjantjatjara persons entering Pitjantjatjara land without prior permission granted on application in writing. The unanimous holding was that the provision was a special measure within Art 1(4) of the Convention in respect of which the application of s 10 was excluded by s 8 of the RDA. That was so notwithstanding that the provision resulted in the unequal enjoyment, as between Pitjantjatjara and non-Pitjantjatjara persons, of the human right "to freedom of movement" referred to in Art 5(d)(i) of the Convention.
The Court was unanimous in holding that it was not essential to the characterisation of a law as a special measure within Art 1(4) of the Convention that the law be temporally limited on its face: it was sufficient that the law meet the indicia of a special measure at the time its character is called into question. As to the criteria by reference to which the existence of a special measure within Art 1(4) of the Convention was to be determined, Brennan J said:
"A special measure (1) confers a benefit on some or all members of a class, (2) the membership of which is based on race, colour, descent, or national or ethnic origin, (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms."
In the context of discussing the third of those criteria, his Honour said:
"'Advancement' is not necessarily what the person who takes the measure regards as a benefit for the beneficiaries. The purpose of securing advancement for a racial group is not established by showing that the branch of government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group does not seek or wish to have the benefit. The 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."
His Honour nevertheless went on to emphasise that both the third and the fourth criteria involved questions of fact and degree the determination of which was in the first instance for a political branch of government in performance of the obligation imposed by Art 2(2) of the Convention. To conclude that a measure in fact taken by a political branch of government was a special measure within Art 1(4) of the Convention and s 8 of the RDA, it was enough that a court determine that the political assessment inherent in the measure could reasonably be made, ascertaining the facts relevant to the making of that judicial determination "as best it can". Gibbs CJ and Mason J adopted a similar approach, as did Deane J, who said that a finding that a provision embodying a measure was "taken" for a "sole purpose" of a kind referred to in Art 1(4) "will not be precluded unless it appears that the provision is not capable of being reasonably considered to be appropriate and adapted to achieving that purpose".
As to the legal operation of s 10 of the RDA where the condition for its application is fulfilled, Mason J pointed out that s 10 implements Arts 2(1)(c) and 5 of the Convention by operating "to confer on the persons discriminated against the enjoyment of a relevant right to the same extent as it is enjoyed by persons of another race" and went on to distinguish the effect of s 10 under s 109 of the Constitution on two categories of State law. Expressed at the level of generality with which his Honour's analysis came later to be endorsed and applied in the Native Title Act Case and in Ward, those categories can be stated as follows. In the case of a State law which results in the unequal enjoyment of a human right by failing to confer a legal right on persons of a particular race, s 10 operates to give that legal right to persons of that race in a manner that is complementary to the State law. In the case of a State law which results in the unequal enjoyment of a human right by positively impeding the enjoyment of that right by persons of a particular race (for example, by imposing a legal prohibition or by extinguishing a legal right), s 10 operates to remove that impediment. In the first case, the State law is consistent with the operation of s 10 and is valid. In the second case, the State law is inconsistent with the operation of s 10 and is to that extent invalid under s 109 of the Constitution.
Members of the Court in Gerhardy variously expressed views to the effect that s 10 of the RDA would have been engaged either by the prohibition on non-Pitjantjatjara persons entering Pitjantjatjara land or by the conferral of title to Pitjantjatjara land on Pitjantjatjara persons had the application of s 10 not been excluded by s 8. It was suggested in that context that special measures in Art 1(4) constitute an exception to discrimination as defined in Art 1(1) of the Convention and that s 8 correspondingly operates to exclude a category of discriminatory laws to which s 10 of the RDA would otherwise apply. Those views were not necessary to the outcome in Gerhardy and ought not to be treated now as having the weight of authority. Academic criticism soon showed them to be out of step with the developing international understanding of the Convention. The force of that criticism was subsequently acknowledged in the Native Title Act Case where it was said that the Native Title Act 1993 (Cth) "can be regarded either as a special measure under s 8 … or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the [RDA] or the [Convention]".
At issue in Mabo [No 1] was the consistency with s 10 of the RDA of a Queensland law which, in providing retrospectively that the Murray Islands were vested in the Crown in right of Queensland freed from all other rights, purported in its substantive practical operation uniquely to extinguish without compensation the native title of the Miriam people. In a similar vein, amongst the issues in the Native Title Act Case was the consistency with s 10 of the RDA of a Western Australian law, which purported without compensation prospectively to extinguish native title and to replace it with statutory rights inferior to those of the holders of interests arising from Crown grants. Each of those State laws was held to be inconsistent with s 10 of the RDA so as to be invalid under s 109 of the Constitution. In so holding, the Court in the Native Title Act Case unanimously endorsed the explanation of the meaning and application of s 10 given by Deane J in Mabo [No 1]:
"As its opening words ('If, by reason of …') make clear, it is concerned with the operation and effect of laws. In the context of the nature of the rights which it protects and of the provisions of the … Convention which it exists to implement, the section is to be construed as concerned not merely with matters of form but with matters of substance, that is to say, with the practical operation and effect of an impugned law." (emphasis in original)
Having identified the rights protected by s 10 of the RDA to include (by reference to Art 5(d)(v) and Art 5(d)(vi) of the Convention) a "right to own or to inherit property", and having identified "'[p]roperty' in the context of [those] human rights" to include land and chattels as well as interests in land and chattels, the joint judgment in the Native Title Act Case went on to identify the "security of enjoyment" of interests arising from a Crown grant as "the benchmark by which to determine whether … the Aborigines who hold native title enjoy their human rights in relation to land to a more limited extent than do persons of other races".
The joint judgment of four members of the Court in Ward built on the reasoning in Mabo [No 1] and the Native Title Act Case in emphasising that s 10 of the RDA is not confined to laws whose purpose can be identified as discriminatory nor to laws that can be said to be aimed at a racial characteristic or to make a distinction based on race and that fulfilment of the condition for the application of s 10 turns rather on the effect of a law on the relative "enjoyment" of a "right" by persons of different races. It was said:
"That to which [s 10(1)] in terms is directed is the enjoyment of rights by some but not by others or to a more limited extent by others; there is an unequal enjoyment of rights that are or should be conferred irrespective of race, colour or national or ethnic origin. 'Enjoyment' of rights directs attention to much more than what might be thought to be the purpose of the law in question. Given the terms of the Convention … that is not surprising. The Convention's definition of racial discrimination refers to any distinction, exclusion, restriction or preference based (among other things) on race which has the purpose or effect of nullifying or impairing (again among other things) the enjoyment of certain rights. Further, the basic obligations undertaken by States party to the Convention include taking effective measures to nullify laws which have the effect of creating or perpetuating racial discrimination". (emphasis in original)
After pointing out that "care is required in identifying and making the comparison between the respective 'rights' involved", the joint judgment went on to emphasise that the holdings in Mabo [No 1] and the Native Title Act Case both involved the rejection of the argument that native title can "legitimately be treated differently from … other forms of title" for the purposes of s 10. The joint judgment suggested that the rejection of that argument was best seen as being for the reason that to deprive people of a particular race of a particular species of property not enjoyed by persons of another race finds "no basis" in the Convention or the RDA and involves differential treatment by reference to a characteristic implicitly declared by the RDA to be "irrelevant".
Despite the emphasis given in Mabo [No 1], the Native Title Act Case and Ward to s 10 of the RDA being directed to the practical operation and effect of laws on the enjoyment of human rights, the laws impugned in those cases each had a legal operation that uniquely extinguished or impaired legal rights (to native title as recognised at common law) essential to the continuing enjoyment by persons of a particular race (Aboriginal persons) of human rights (to own or to inherit property). The law earlier impugned in Gerhardy drew a racial distinction on its face.
No previous case in the High Court has addressed whether, and if so how, s 10 of the RDA might apply to an impugned law that operates to impose the same legal burden on persons of all races but that so operates practically to burden the enjoyment of a human right by persons of a particular race to a greater extent than it burdens the enjoyment of a human right by persons of other races. That is to say, no previous case in the High Court has addressed the application of s 10 to what the Racial Discrimination Committee has referred to as "an unjustifiable disparate impact upon a group distinguished by race", encompassing what is sometimes referred to as "adverse impact discrimination": where "treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable".
Prior to three cases recently to have come before the Queensland Court of Appeal, of which this case is one, an issue of that kind had been addressed at the level of an intermediate appellate court only obliquely by the Full Court of the Federal Court in Bropho v Western Australia ("Bropho"). The Full Court in that case held s 10 of the RDA not to be engaged by an exercise of statutory discretion under a Western Australian statute which had the effect of excluding certain persons from an Aboriginal reserve in order to obviate risks to the safety and welfare of women and children residing on the reserve. The excluded persons were all Aboriginal. The Full Court noted:
"It has long been recognised in human rights jurisprudence that all rights in a democratic society must be balanced against other competing rights and values, and the precise content of the relevant right or freedom must accommodate legitimate laws of, and rights recognised by, the society in which the human right is said to arise."
The reasoning of the Full Court was then expressed in the following passage:
"In the present case it is undesirable to explore, to the point of conclusion, what might be the content of the rights or freedoms asserted by the appellant concerning the occupation and management of the reserve land having regard to legitimate laws and rights recognised in Australia. To the extent that the rights in question (which were derived from a mix of statutory instruments) were property rights, such rights were not absolute in nature given the general recognition that a State has a right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest. It follows that any interference with the enjoyment of the right, provided that such interference is effected in accordance with the legitimate public interest (in this case to protect the safety and welfare of inhabitants [of the reserve]), will not be inconsistent with s 10 of the [RDA]. Indeed, although the authorities on s 10 of the [RDA] recognise that there is no basis for distinguishing between different species of ownership of property, no property right, regardless of its source or genesis, is absolute in nature, and no invalid diminution of property rights occurs where the State acts in order to achieve a legitimate and non-discriminatory public goal."
It will be seen that the proposition for which Bropho is appropriately to be treated as authority later divided the Queensland Court of Appeal. A narrow understanding (favoured by McMurdo P) is that a legal limit on a legal right to own property imposed in pursuit of a legitimate public interest will not affect the enjoyment of the human right to own property referred to in Art 5(d)(v) of the Convention so as to engage s 10 of the RDA. A wider understanding (favoured by Keane JA and by Chesterman JA) is that pursuit of any legitimate public interest is a sufficient answer to any claim that a law results in the unequal enjoyment of any human right protected by s 10 of the RDA provided only that the means adopted by the law are not demonstrably unreasonable. For reasons which will appear, I cannot accept either of those understandings.
The earlier Queensland cases
The Queensland Court of Appeal grappled with whether, and if so how, s 10 of the RDA might apply to a case of adverse impact discrimination in two earlier cases. In both cases, it rejected an argument that s 10 was engaged by provisions of the Liquor Act or of the Liquor Regulation operating to impose a disparate practical burden on the enjoyment of human rights by Aboriginal persons living in community areas. In each case, it was unanimous in finding the provisions to be special measures excluded from the application of s 10 by s 8 of the RDA. In each case, it was divided as to whether the condition for the application of s 10 would otherwise have been fulfilled. Its reasoning in those cases provides the immediate context for its reasoning in this case.
The first case, Aurukun Shire Council v Chief Executive Officer, Office of Liquor Gaming and Racing in the Department of Treasury ("Aurukun"), involved a challenge to amendments to the Liquor Act by which all local government authorities in Queensland were prohibited from applying for or holding a liquor licence. The State-wide prohibition was designed to give effect to a principal recommendation of the Cape York Justice Study, that local councils no longer operate canteens in community areas, and was introduced only in 2008 after legislative amendments in 2002 aimed at facilitating divestiture had proved ineffective. The Queensland Court of Appeal (McMurdo P, Keane JA and Philippides J) unanimously found the prohibition to constitute a special measure directed to securing the advancement of women and children in Aboriginal communities, by protecting them from alcohol-fuelled violence and abuse. In so holding, it unanimously rejected an argument that it is essential to the existence of a special measure that the intended beneficiaries be consulted and have given informed consent.
McMurdo P would otherwise have held that the amendments fulfilled the condition for the application of s 10 by stopping Aboriginal persons in indigenous communities from enjoying the same access as non-indigenous Queenslanders to equal protection of the law or "equal treatment before the law". She identified that right as being recognised in Art 5(a) of the Convention (referring to "equal treatment before the tribunals … administering justice") as well as in Art 26 of the ICCPR. Bropho, she said, was to be confined to property rights. Philippides J would also have accepted s 10 to encompass a right to equal protection of the law but considered that the State-wide prohibition did not "in substance or practical effect impose a different liquor licensing regime in indigenous communities" with the consequence that Bropho had no relevance.
Keane JA took a different approach. He said that equal protection of the law in this context is no more than a paraphrase of the purpose of s 10. It does not identify the content of a right protected by s 10. His primary position was that there was no unequal enjoyment of rights. While he was prepared to accept that the liberties of adult persons to drink alcohol and to buy alcohol from licensed premises were human rights within the protection of s 10, those rights were unaffected by the amending legislation. The mere opportunity to buy alcohol from a local council was not a human right. His secondary position, for which he invoked Bropho, was that the case was at most one of competing human rights because the amendments gave legislative expression to the right "to security of person and protection … against violence or bodily harm" referred to in Art 5(b) of the Convention. He said that the striking of a legislative balance between competing human rights was incapable of engaging s 10 unless the balance struck was demonstrably unreasonable.
The second case was Morton v Queensland Police Service ("Morton"). Like this case, Morton was a challenge to the application of the criminal prohibition in s 168B of the Liquor Act to the possession of alcohol by Aboriginal persons on Palm Island brought about by insertion of Sched 1R into the Liquor Regulation by the Amendment Regulation. Finding Sched 1R to be a special measure, the Queensland Court of Appeal (McMurdo P, Holmes and Chesterman JJA) relied on the explanatory note to the Amendment Regulation to demonstrate satisfaction of each of the criteria identified by Brennan J in Gerhardy, including, in relation to the third criterion, the existence of consultation.
McMurdo P would otherwise have applied her reasoning in Aurukun to hold s 10 to be engaged, if not excluded by s 8, on the basis that Sched 1R had the practical effect of denying to Aboriginal persons on Palm Island the same access as non-indigenous Queenslanders to equal protection of the law. Chesterman JA (with whose reasons Holmes JA agreed) accepted Sched 1R to be "discriminatory on the ground of race" in that its "legal and practical effect" was to "restrict the possession of alcohol by the members of a group which are identified, by the fact of their residence [on Palm Island], as Aboriginal". With similar effect to Keane JA in Aurukun, he said that the right to equality before the law was outside the protection of s 10. He said that the right to possess liquor was not a human right, and that the right of access to a public place referred to in Art 5(f) of the Convention was not "infringed" by a restriction on the amount of alcohol able to be taken to that public place. His position was that the absence of infringement of a human right meant that s 10 was not engaged.
For reasons which will appear, I would reject for the purpose of s 10 of the RDA the utility of equality of enjoyment of a right to equal protection of the law. To that extent, I prefer the approach of Keane JA and of Chesterman JA to that of McMurdo P and Philippides J. I would also accept the primary position of Keane JA in Aurukun (that there was no unequal enjoyment of human rights in that case). However, I cannot accept the secondary position of Keane JA in Aurukun (that s 10 cannot be engaged by the striking of a not-unreasonable legislative balance between competing human rights). Nor can I accept the position of Chesterman JA in Morton (that s 10 cannot be engaged without infringement of a human right).
This case
It was against the immediate background of the fate of the challenge in Morton that Ms Maloney mounted her challenge to Sched 1R to the Liquor Regulation in this case. Her argument to the Queensland Court of Appeal was put on a wider basis than the argument that had been put in Morton. She argued that Sched 1R resulted in her unequal enjoyment, as an Aboriginal person living on Palm Island, relative to non-indigenous persons living elsewhere in Queensland, of the human rights referred to in Art 5(a), Art 5(d)(v) and Art 5(f) of the Convention. She relied on affidavits of 14 senior members of the Palm Island community read in the Townsville District Court to argue for a finding that, contrary to what was said in the explanatory note for the Amendment Regulation, there had been no real consultation and that the prohibition on the possession of alcohol had been forced on the Palm Island community. She argued that, contrary to Aurukun, consent of an affected community is essential to the existence of a special measure.
The Queensland Court of Appeal (McMurdo P, Chesterman JA and Daubney J), as in Morton, was unanimous in finding Sched 1R to constitute a special measure. As to the effect of the affidavits, the Court of Appeal in essence adopted the finding of the District Court that it was "open to infer that there was a consultation process that did take into account the views [of] the community despite the personal experience or expectation of the deponents". Chesterman JA (with whose reasons Daubney J agreed) stated the short point to be drawn from the evidence in this way: there had been consultation; the community was divided as to whether alcohol restrictions should be imposed and as to what form any restrictions should take; and there was no prospect of agreement. As to the argument about consent, Chesterman JA said:
"The short answer … is that nothing in Arts 1(4) or 2(2) makes consent necessary to the validity of a special measure although consent, or its lack, may be relevant in determining whether a provision is a special measure. If consent were an essential pre-condition to the validity of a special measure the utility of s 8 of the [RDA] and Art 1(4) would be denied to communities, such as Palm Island, which were divided in opinion about the measures. A small minority could deprive the majority of a valuable protective measure."
As in Morton, McMurdo P would otherwise have applied her reasoning in Aurukun to hold s 10 engaged, if not excluded by s 8, on the basis that Sched 1R had the practical effect of denying to Aboriginal persons on Palm Island the same access as non-indigenous Queenslanders to equal protection of the law referred to in Art 5(a) of the Convention. She would also have held, in respect of the right referred to in Art 5(f), that Ms Maloney was denied "the same access to the service of liquor in licensed premises in her community on Palm Island which is enjoyed by non-Indigenous Queenslanders in their communities", pointing out that "[t]he relevant provisions do not apply to dysfunctional non-Indigenous communities with problems of alcohol-related violence". However, she felt compelled by Bropho to hold that the pursuit by Sched 1R of a legitimate public interest was sufficient to exclude the engagement of s 10 in respect of the right to own property listed in Art 5(d)(v). Chesterman JA said that Art 5(a) did not refer to a right not to be prosecuted under a discriminatory law and therefore could have no application. Consistent with the position he had taken in Morton, he would have held s 10 not to be engaged in respect of the human rights referred to in Art 5(d)(v) or Art 5(f) for the reason that the pursuit by Sched 1R of a legitimate public interest prevented either of those rights being "infringed".
In her appeal to the High Court, Ms Maloney essentially repeats the argument she made to the Court of Appeal as to the engagement of s 10 of the RDA. But the argument she now puts about s 8 is more nuanced. She says that Queensland has the burden of proving that Sched 1R has the character of a special measure. She says that, in the absence of consultation being shown to have led to informed consent, a law criminalising conduct of members of a racial group can be justified as a special measure only where there is evidence that shows a compelling need for the measure in order to advance the enjoyment of rights by members of that group. She says that evidence is lacking. The National Congress alone argues that the informed consent of an affected community is essential to the existence of a special measure. The National Congress goes further to argue that a law criminalising the conduct of members of a group identified as the beneficiaries of the measure is not capable of being characterised as a special measure at all.
For its part, Queensland says that the appeal should be dismissed on the basis that the condition for the application of s 10 was not fulfilled, without this Court needing to address whether Sched 1R constituted a special measure. It argues that Ms Maloney's choice of comparator is wrong: the appropriate comparison is between indigenous and non-indigenous persons on Palm Island, all of whom are subject to the prohibition in s 168B of the Liquor Act brought about by Sched 1R to the Liquor Regulation in exactly the same way to exactly the same degree. If it is necessary to reach s 8, says Queensland, the compliance of Sched 1R with Pt 6A of the Liquor Act, unchallenged by Ms Maloney, is enough to show Sched 1R to be a special measure. In the final alternative, argues Queensland, a sufficient factual basis is established by the Cape York Justice Study and the explanatory note for the Amendment Regulation.
For reasons which follow, I consider that the final alternative argument of Queensland alone should be accepted: at the time of the offence of which Ms Maloney was convicted, s 10 had no application to Sched 1R only because Sched 1R was then a special measure.
Section 10 of the RDA: equality before the law
Whether or not the condition for the application of s 10 of the RDA is fulfilled turns on the construction of s 10. The construction of a statutory provision begins and ends with its text - read always in context. The context of s 10 critically includes its legislative purpose.
The purpose of the RDA, as has already been noted, is to give effect to the Convention. The more particular purpose of s 10 of the RDA, as has also already been noted, is to give effect to Australia's obligations under Arts 2(1)(c) and 5 of the Convention. The first of those obligations is to "take effective measures … to amend, rescind or nullify any laws … which have the effect of creating or perpetuating racial discrimination wherever it exists". The second is expressed compositely and by reference to the first. It is, in pursuit of the first, "to eliminate racial discrimination in all its forms" and "to guarantee the right of everyone, without distinction as to race … to equality before the law" in the "enjoyment" of human rights including but not limited to those listed in Art 5(a)-(f) of the Convention.
Section 10 of the RDA is to be construed to give effect to those obligations under Arts 2(1)(c) and 5 of the Convention to the maximum extent that its terms permit. What is required by those obligations turns on the content attributed to them by the community of nations.
The Convention is, and always has been, firmly understood to be based on the principles of the dignity and equality of all human beings and to have as its objective the securing of equality in fact in the enjoyment of human rights by persons of all races. The international understanding of its content has nevertheless evolved. Whatever uncertainty may have existed at the time Gerhardy was decided, the repeated pronouncements of the Racial Discrimination Committee in its recommendations to the General Assembly of the United Nations can be taken to reflect what is now a clear and consistent international understanding of what is required to eliminate racial discrimination and to guarantee racial equality before the law in the enjoyment of human rights. What is required is the removal of all differential treatment that impacts on the equality of enjoyment of a human right by persons of different races save for differential treatment that can be judged, in light of the Convention principles of dignity and equality and in light of the Convention objective of securing substantive racial equality in the enjoyment of human rights, to result from the application of criteria that are both applied in pursuit of a legitimate aim and proportionate to the achievement of that aim. The Committee's characterisation of special measures not as an exception to the principle of non-discrimination but as "integral to its meaning" and "essential to the … project of eliminating racial discrimination and advancing human dignity and effective equality" underlines an international understanding that the range of differential treatment that is capable of justification is closely circumscribed.
The purpose of s 10 would not be achieved were constructional choices now presented by its text not to be made consistently with that contemporary international understanding.
Section 10 of the RDA expresses a condition for its application that can be seen to have two textual components. The first is that there exists (or would exist but for s 10) a state of affairs in which persons of one race either do not enjoy a human right that is enjoyed by persons of another race or enjoy a human right "to a more limited extent" than persons of another race. The second is that that state of affairs is (or would be but for s 10) "by reason of" a Commonwealth, State or Territory law.
The first textual component is expressed to require no more than that "persons" of one race enjoy a human right "to a more limited extent" than "persons" of another race.
The word "persons" connotes groups not individuals. The reference to persons of one or another race does not, however, connote a group that comprises all persons of one or another race. It is not necessary to the application of s 10 of the RDA that all persons of one race enjoy a human right to a more limited extent than all persons of another race. Nor is it necessary that all persons of all other races enjoy the human right to the same extent.
The words "to a more limited extent" reflect the point that:
"discrimination and non-discrimination are relational terms, so that whether we speak of disadvantage, equality, or advantage, we are speaking of treatment of one person or group as measured by the treatment, or the standard of treatment, of another person or group".
Persons of one race can enjoy a human right "to a more limited extent" than persons of another race without suffering impairment or infringement of that human right. That proposition can be illustrated by an example adapted from one given by the European Court of Human Rights concerning the requirement of Art 14 of the European Convention that "enjoyment" of the rights and freedoms set forth in that Convention be secured "without discrimination". A State may well not infringe the human right "to education and training" referred to in Art 5(e)(v) of the Convention by failing to establish a particular kind of educational institution. But if a State establishes an educational institution of a particular kind, the State must ensure that the education the institution provides is available equally to persons of all races. A State law cannot, consistently with s 10 of the RDA, arbitrarily bar the admission of persons of a particular race.
The extent of enjoyment of a human right is a question of degree. The mere limitation of a legal right created or recognised by the common law or statute does not necessarily impact on the extent of enjoyment of a human right. Bropho, which concerned an exercise of statutory discretion to limit statutory rights to enter a particular area of land where that area was not generally open to the public and where those statutory rights were qualified from their inception by the contingency of being so limited, decided no more. Bropho should not be treated as authority for any broader proposition.
A difference in the extent of enjoyment of a human right is similarly a question of degree. In the context of s 10 of the RDA, it is a question of degree to be answered in light of the principles and objectives of the Convention. Construed against the background of those principles and objectives, persons of one race will enjoy a human right "to a more limited extent" than persons of another race where a difference in their relative enjoyment of a human right is of such a degree as to be inconsistent with persons of those two races being afforded equal dignity and respect. The relevant indignity or want of respect lies in the difference in the levels of enjoyment of a human right by persons of the two races rather than in the absolute level of enjoyment by persons of the disadvantaged race. The significance of a difference can be affected by contextual factors, which may include racial targeting or presumptions about the characteristics of racial groups just as they may include ignorance or lack of consideration of the characteristics of racial groups.
Human rights within the scope of s 10 of the RDA, not being limited to those listed in Art 5 of the Convention, may be accepted to encompass the full gamut of the civil, political, economic and social rights recognised in the Universal Declaration and in the ICESCR and the ICCPR. However, the analysis required to determine whether or not the first component of the condition for the application of s 10 is satisfied is not readily assisted by focussing on the free-standing right to equality before the law or equal protection of the law expressed in Art 7 of the Universal Declaration and Art 26 of the ICCPR. That is because it is in the nature of such a right that a question about its enjoyment requires the undertaking of an analysis that mirrors the very analysis that s 10 requires to be undertaken with respect to the human rights to which it refers. To inquire for the purposes of s 10 into whether there is by reason of a law unequal enjoyment of a human right to equality before the law or equal protection of the law is to become mired in unproductive circularity. The right referred to in Art 5(a) of the Convention ("to equal treatment before the tribunals and all other organs administering justice") is not properly equated to a right to equal protection of the law in Art 7 of the Universal Declaration and Art 26 of the ICCPR. Like Art 14 of the ICCPR, Art 5(a) of the Convention is more narrowly focussed: on the administration and enforcement of laws by courts and tribunals rather than on the content of laws more generally.
The second textual component of the condition for the application of s 10 of the RDA is expressed to require that the difference in the relative enjoyment of a human right be "by reason of" a relevant law. The words "by reason of" in s 10 connote a causal nexus. The nature of that causal nexus is to reflect the principles and objectives of the Convention. That is because "notions of 'cause' as involved in a particular statutory regime are to be understood by reference to the statutory subject, scope and purpose".
One aspect of the causal nexus is captured in the observation of Deane J in Mabo [No 1], endorsed in the Native Title Act Case, that s 10 is to be construed as concerned with the practical operation and effect of the relevant law. That focus on practical operation and effect is inconsistent with the drawing of a distinction between the law itself and the facts in relation to which the law operates. The focus on practical operation is not, however, inconsistent with recognition that causation in fact is itself a question of degree. What is required is a direct relationship between the practical operation of the law and the differential enjoyment of human rights. Differential enjoyment of human rights that is the direct result of the practical operation of a law fulfils the first of the two conditions for the existence of discrimination within the meaning of the Convention: different treatment.
Another aspect of the causal nexus connoted by the words "by reason of" accommodates the second of the two conditions for the existence of discrimination within the meaning of the Convention: absence of justification for different treatment. Acknowledgement of that further aspect is consistent with the suggestion in the joint judgment in Ward that, where s 10 has operated to protect native title, the section has applied to redress differential treatment that has occurred by reference to a characteristic implicitly declared by the RDA to be irrelevant.
In his famous dissenting judgment in the International Court of Justice in the South West Africa Cases (Second Phase), quoted in relevant part by Brennan J in Gerhardy, Judge Tanaka expressed the concept of equality before the law or absence of discrimination as then understood in international law in terms that "a different treatment is permitted [only] when it can be justified by the criterion of justice", to which he added that "[o]ne may replace justice by the concept of reasonableness generally referred to by the Anglo-American school of law". Usage has moved on. It is now common in international law to express the same concept in terms of a difference in treatment that can be justified by a criterion of proportionality. Proportionality cannot readily be replaced by reasonableness unless reasonableness is acknowledged to permit of gradations and is not limited to mere rationality. The concept of proportionality is now equated for some purposes in Australian law to the narrower and more focussed concept of "reasonable necessity". Equation of proportionality to reasonable necessity should be acknowledged to be similarly appropriate for the particular purpose of Australia's implementation of the Convention.
The Convention principles of dignity and equality and the Convention objective of securing substantive racial equality in the enjoyment of human rights necessarily inform the application of the criterion for determining whether differential treatment of racial groups is justified for the purpose of the implementation of the Convention irrespective of the form in which the criterion is expressed. Those principles and that objective also dictate that any justification for different treatment of racial groups be affirmatively established. It is not enough that different treatment of racial groups could or might be justified. It must be shown to be justified.
Accordingly, s 10 of the RDA is properly construed to admit of circumstances in which persons of one race enjoy a human right to a more limited extent than persons of another race as a result of the direct practical operation of a law without that different enjoyment of rights being "by reason of" the law. But those circumstances are closely confined. It is not enough that the law be shown to strike a reasonable balance between human rights. The principles and objective of the Convention demand proportionality. The law must be shown, in light of the Convention principles of dignity and equality and in light of the Convention objective of securing substantive racial equality in the enjoyment of human rights, to adopt criteria that are both (i) applied in pursuit of a legitimate aim and (ii) reasonably necessary to the achievement of that aim.
The features of a law that meets the condition for the application of s 10 of the RDA can now be stated with as much precision as fidelity to the purpose of s 10 permits. The condition is satisfied by a law that:
(a) gives rise to different treatment of racial groups, in that the law has the direct practical effect that the enjoyment of a human right by persons of one race is more limited than the enjoyment of that human right by persons of another race to a degree that is inconsistent with persons of those two races being afforded equal dignity and respect; and
(b) is not justified in so far as it gives rise to that different treatment of racial groups, in that the law is not shown, in light of the Convention principles of dignity and equality and in light of the Convention objective of securing substantive racial equality in the enjoyment of human rights, to adopt criteria that are both (i) applied in pursuit of a legitimate aim and (ii) reasonably necessary to the achievement of that aim.
Where that condition is satisfied, s 10 operates to bridge the gap in the enjoyment of the human right that occurs (or would occur) as the direct practical effect of the law in question by adjusting the legal rights of persons of the disadvantaged race to the point where those persons enjoy the human right in question "to the same extent" as persons of the other race. The measure of the differential enjoyment of human rights, by reference to which s 10 is triggered, in this way provides the measure of the adjustment of legal rights that s 10 produces.
The nature of the factual inquiry to be undertaken by a court in determining the legitimacy of a legislative aim and proportionality of the legislative criteria adopted in pursuit of that aim is best left to be addressed in the context of special measures.
The critical point for present purposes is that consistency with the principles and objective of the Convention limits those legislative aims that can be regarded as legitimate and limits those legislative criteria that can be regarded as proportionate. In particular, the range of legitimate aims and the range of proportionate criteria are limited by the integration of the concept of special measures within the broader concept of equality in the enjoyment of human rights.
Within the scheme of the Convention, a measure that operates in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race may be justified as adopting proportionate criteria in pursuit of an aim of redressing some other imbalance in the enjoyment of human rights by persons of a particular race. But such a measure can only be so justified if it meets the requirements of a special measure as expressed in Arts 1(4) and 2(2) of the Convention. If justified as a special measure, it is not discrimination within the meaning of the Convention. If not justified as a special measure, it is discrimination and a denial of equal protection.
Within the scheme of Pt II of the RDA, a law that operates directly in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race, and that meets the requirements of a special measure, is excluded from the application of s 10 by s 8 of the RDA. The application of s 10 to a law that operates directly in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race, but that does not meet the requirements of a special measure, cannot be avoided by showing that the criteria the law adopts are nevertheless proportionate or reasonably necessary to the pursuit of a legitimate aim where the substance of the aim is redressing some other imbalance in the enjoyment of human rights by persons of a particular race. Otherwise, the carefully tailored regime for permissible special measures would be undermined. Unless it is a special measure excluded by s 8, the law is one to which s 10 applies.
Section 8 of the RDA: special measures
In providing that Pt II "does not apply to, or in relation to the application of, special measures", s 8 of the RDA might well be argued to express a "justification" or "ground of defeasance or exclusion" which in at least some of its application "assumes the existence of the general or primary grounds" on which a right or liability might arise under another provision of Pt II but which "denies the right or liability in a particular case by reason of additional or special facts". The text of s 8, and its context within the scheme of Pt II, might be argued thereby to supply "considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter". The broader context of the place of special measures within the scheme of the Convention might be said to reinforce those textual and contextual considerations.
Were facts relevant to the existence of a special measure of the same nature as ordinary facts in issue between parties, there would be little difficulty in accepting such an argument so as to construe s 8 of the RDA as placing a burden of proof on a party arguing that an impugned law is a special measure. But they are not.
A distinction has long been drawn between "ordinary questions of fact", which arise between parties and which are determined in accordance with the ordinary rules of evidence, and "matters of fact upon which … the constitutional validity of some general law may depend", which "cannot and do not form issues between parties to be tried like the former questions" and which fall to be ascertained by a court "as best it can". A court finding constitutional facts is not constrained by the rules of evidence. The court "reaches the necessary conclusions of fact largely on the basis of its knowledge of the society of which it is a part", "supplementing … that knowledge [by processes] which [do] not readily lend [themselves] to the normal procedures for the reception of evidence".
Gerhardy illustrates that "constitutional facts" form part of a larger genus. That larger genus has long been referred to in the United States as "legislative facts". It is appropriate to adopt that terminology in Australia.
The nature of legislative facts and the nature of the duty of a court to ascertain them tell against any a priori constraint on the sources from which the court may inform itself. The sources may, but need not, be "official". It is desirable, but not inevitable, that they be "public or authoritative". They can include "inferences … drawn from the regulations and statutes themselves" and "statements made at the bar". Subject to the requirements of procedural fairness inherent in the judicial process, the ultimate criterion governing the use of information from any source is that a court is able to consider the material sufficiently probative of the legislative fact to be found.
Facts relevant to the characterisation of an impugned law as a special measure are legislative facts, as are facts relevant to fulfilment of the condition for the application of s 10. The nature of those legislative facts, and the nature of the duty of a court to ascertain them, tell against a construction of s 8 of the RDA that places a burden of proof on a party arguing that an impugned law is a special measure.
That is not to say that a party arguing that an impugned law is a special measure may not assume what is in practical terms a persuasive burden. It just does not bear a legal burden of proof. The same is true of a party arguing for the purpose of s 10 that an impugned law adopts reasonably necessary criteria in pursuit of a legitimate aim.
To conclude that a law is a special measure, a court - informing itself as best it can with the assistance of the parties and on material it finds sufficiently convincing - must be satisfied of the existence of the four criteria of a special measure identified by Brennan J in Gerhardy. It is necessary to revisit aspects of his Honour's explanations of the third and fourth of those criteria.
The third criterion identified by Brennan J is about the aim of the law. Shortly stated, it is that the law have the sole purpose of securing adequate advancement of its beneficiaries in order for them to enjoy and exercise human rights equally with others. His Honour's reference to the "wishes" of the beneficiaries being "of great importance (perhaps essential)" was in the context only of discussing the curial determination of the existence of a purpose of that nature. His Honour cannot be taken to have implied that a special measure cannot exist without the informed consent of the beneficiaries or without some measure of consultation with them. Nor can the Racial Discrimination Committee be taken to have adopted such a rigid approach in relation to Art 1(4) of the Convention. Its statement in General Recommendation 32 that States Parties "should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities", assuming it to go beyond exhortation, is to be read in context with its subsequent statement that "special measures may have preventive (of human rights violations) as well as corrective functions". In light of the Convention principles of dignity and equality and the Convention objective of securing substantive racial equality in the enjoyment of human rights, the inherent complexity of human relations, the infinite variety of human need and the beneficial objective of the obligation in Art 2(2) to take special measures "when the circumstances so warrant" all tell strongly against the taking of special measures being the subject of a priori procedural constraint. That is especially so in relation to those measures that might need to be taken to prevent human rights violations. The same considerations tell strongly against the argument that a special measure can never criminalise conduct of beneficiaries.
The fourth criterion identified by Brennan J is about the necessity for the criteria adopted by the law in pursuit of its aim. Shortly stated, it is that the protection the law gives to the beneficiaries be necessary in order that they may enjoy and exercise a human right equally with persons of other races. Consistent with the general concept of absence of discrimination or equality before the law as understood in international law, the Racial Discrimination Committee explains special measures in terms of proportionality. The explanation by members of the Court in Gerhardy in terms of reasonableness reflected the then prevailing usage within what Judge Tanaka in the South West Africa Cases (Second Phase) had referred to as "the Anglo-American school of law". Special measures are now better explained for the purposes of Australian law in terms of reasonable necessity.
Different treatment in this case
Once it is recognised that satisfaction of the first element of the condition for the application of s 10 of the RDA requires no more than that persons of one race enjoy a human right "to a more limited extent" than persons of another race, many of the conceptual impediments to the condition being fulfilled put in argument by Queensland can be seen to fall away.
The simple fact was that, on 31 May 2008, Aboriginal persons living within the community government area of Palm Island were wholly prohibited from possessing alcohol in any public place within the community government area in which they lived unless they had applied in writing for a permit to do so and, having been granted that permit, possessed the alcohol only for a purpose authorised by the permit. Non-indigenous persons living in local government areas elsewhere in Queensland ordinarily had unrestricted freedom to possess alcohol in public places within the local government areas in which they lived.
The enjoyment by Aboriginal persons living on Palm Island of the human rights "to own property" (listed in Art 5(d)(v) of the Convention) and "of access to any place … intended for use by the general public" (listed in Art 5(f) of the Convention) was thereby more limited than the enjoyment of those same human rights by non-indigenous persons living in local government areas elsewhere in Queensland. That disparity in the enjoyment of human rights was inconsistent with persons of those two races being afforded equal dignity and respect. It is not necessary to the analysis to consider whether Aboriginal persons living on Palm Island thereby also suffered a diminution in their relative enjoyment of the human right to equal protection of the law and it is unnecessary to the analysis to consider whether Aboriginal persons living on Palm Island were thereby subjected also to a diminution in their relative enjoyment of some other human right. Nor is it necessary to inquire whether the differential enjoyment of the identified human rights by Aboriginal persons living within the community government area of Palm Island was so extreme as to amount to an impairment or infringement of those human rights.
The direct cause of that differential enjoyment of human rights by Aboriginal persons living on Palm Island on 31 May 2008 was the existence in force on that date of Sched 1R to the Liquor Regulation. The Schedule was geographically targeted to affect only a single community government area, the population of which was overwhelmingly Aboriginal. Its practical impact on that population was neither accidental nor incidental. The Liquor Regulation was brought into existence in an attempt to prevent harm arising from alcohol-related conditions and behaviours perceived generally to exist within indigenous communities but not perceived generally to exist elsewhere in Queensland. Schedule 1R was inserted and tailored specifically to address conditions and behaviours perceived to exist within the indigenous community on Palm Island. Geography was used as a proxy for race.
It is not to the point that the small percentage of non-Aboriginal persons living within the community government area of Palm Island were subjected by Sched 1R to the same restriction and were therefore subjected to the same diminution in their enjoyment of human rights relative to non-indigenous persons living in local government areas elsewhere in Queensland. Racial targeting is not negated by some persons of other races being caught in the net.
The real issue is whether the differential treatment of Aboriginal persons living on Palm Island brought about by Sched 1R was, as at 31 May 2008, justified in light of the underlying principles and objectives of the Convention. The resolution of that issue turns wholly on whether Sched 1R was, at the time, a special measure.
Justification in this case
To ask whether Sched 1R to the Liquor Regulation was, as at 31 May 2008, a special measure within the meaning of Art 1(4) of the Convention is to ask a different question from whether the Amendment Regulation inserting Sched 1R two years earlier was within the powers conferred by Pt 6A of the Liquor Act. The questions have a different temporal focus. Their determination requires reference to different legal criteria.
Part 6A was not framed in terms of the Convention. The purpose of Pt 6A, as set out in s 173F, did not correspond exactly with the purpose of a special measure. The requirement of s 173G that the Minister be "satisfied" that declaration of a restricted area was "necessary" to achieve the purpose of Pt 6A when recommending making the Amendment Regulation to insert Sched 1R required the Minister to act reasonably in reaching that satisfaction. But it did not correspond to a requirement that the alcohol limits prescribed by Sched 1R satisfy a test of reasonable necessity as a condition of validity under Pt 6A. Moreover, nothing in Pt 6A made the continuing operation of Sched 1R contingent on the Minister's continuing satisfaction that its declaration of Palm Island as a restricted area was "necessary" to achieve the purpose of Pt 6A.
Ms Maloney's failure to challenge the compliance of Sched 1R with Pt 6A of the Liquor Act therefore cannot be decisive. Compliance of Sched 1R with Pt 6A of the Liquor Act at the time it was inserted by the Amendment Regulation would not alone show Sched 1R to have been a special measure as at 31 May 2008.
That is not to say that the unchallenged compliance of Sched 1R with Pt 6A of the Liquor Act is irrelevant. To ask whether Sched 1R to the Liquor Regulation was, as at 31 May 2008, a special measure within the meaning of Art 1(4) of the Convention is necessarily to engage in an inquiry of legislative fact. In the absence of challenge, a court engaging in such an inquiry is entitled to assume the validity of Sched 1R and to draw inferences from the fact of the making of the Liquor Regulation and of amendments to the Liquor Regulation, including the Amendment Regulation and the Further Amendment Regulation. Those inferences include, but are not limited to, compliance with Pt 6A of the Liquor Act.
Beyond inferences of that nature, no party or intervener put to the Queensland Court of Appeal or to this Court that the inquiry of legislative fact in this case might be assisted by reference to material beyond that to be found in the affidavits tendered to the Townsville District Court, in the Cape York Justice Study and in the explanatory notes to the Amendment Regulation and the Further Amendment Regulation.
The Cape York Justice Study (as a published report to the Executive Government of Queensland) and the explanatory notes for the Amendment Regulation and the Further Amendment Regulation (as material placed before the Queensland Parliament by a responsible Minister in the exercise of a statutory duty) constitute material of the kind on which a court may feel justified basing a conclusion of legislative fact. The Queensland Court of Appeal was correct to find that material not to be contradicted by anything in the affidavits tendered to the Townsville District Court.
The material reveals a pattern of alcohol abuse and associated violence in the indigenous communities targeted by the Liquor Regulation that has existed historically and that existed in 2008 at a level that can readily be characterised as impairing the equal enjoyment of members of those communities of the human right "to security of person and protection … against violence or bodily harm" listed in Art 5(b) of the Convention as well as the human right "to public health" recognised in Art 5(e)(iv) of the Convention. The material reveals a considered judgment by the Queensland Parliament and the Queensland Executive, re-examined by the Queensland Executive in 2008, that the management of alcohol consumption within those communities was critical to the reduction of alcohol abuse and associated violence, and that imposition of restrictions on the possession of alcohol in those communities in consultation with their members was necessary to manage that consumption where other means had failed. In relation to Palm Island, in particular, it reveals a community divided as to the appropriate form of management of alcohol consumption without apparent prospect of agreement. The extent of that division is only reinforced by the affidavits tendered to the Townsville District Court.
The material readily supports the conclusion that the sole purpose of Sched 1R was the adequate advancement of the indigenous members of the Palm Island community in order for them to enjoy human rights to security of person and protection against violence or bodily harm and to public health equally with other Queenslanders.
Was the protection Sched 1R gave to members of the Palm Island community necessary to ensure their enjoyment and exercise of their human rights to security of person and protection against violence or bodily harm and to public health equally with other Queenslanders? Was the total prohibition on the possession of alcohol without a permit in any public place on Palm Island that Sched 1R operated to impose as at 31 May 2008 proportionate or reasonably necessary to redress that imbalance? Answering that question is not assisted by the brevity of the explanatory notes or by the lack of any real explanation in the explanatory notes of the alternatives considered.
It is at this point that, in the absence of challenge to its validity under the Liquor Act and in the absence of material indicative of the contrary, inferences drawn from the making and maintenance of Sched 1R itself assume some significance. The inference to be drawn from the making of the Amendment Regulation to insert Sched 1R is that, barely two years before 31 May 2008, the Minister as the responsible member of the Queensland Executive considered on reasonable grounds that the imposition of alcohol restrictions on Palm Island was necessary to minimise harm caused by alcohol abuse and misuse and associated violence on Palm Island. A further inference is to be drawn from the making of the Further Amendment Regulation, which left Sched 1R substantially unchanged while adjusting other schedules of the Liquor Regulation as a result of what is described in the explanatory note to the Further Amendment Regulation as "a whole-of-government review of alcohol restrictions, programs and services". The inference is that, not long after 31 May 2008, the Minister gave consideration both to the imposition of alcohol restrictions and to the particular level of alcohol restrictions imposed by Sched 1R, and considered on reasonable grounds that those restrictions, at that time, continued to be necessary to minimise harm caused by alcohol abuse and misuse and associated violence on Palm Island. Implicit in the Minister having considered on reasonable grounds that the particular restrictions were necessary to achieve that purpose is that the Minister took less restrictive means of achieving the same purpose into account and rejected them on reasonable grounds as either not practically available or unlikely to be efficacious.
The inference therefore to be drawn is that the total prohibition of the possession of alcohol without a permit in any public place on Palm Island that Sched 1R operated to impose as at 31 May 2008 was a measure considered by the responsible member of the Queensland Executive, on reasonable grounds, then to remain necessary for the advancement of the indigenous members of the Palm Island community in order for them to enjoy human rights to security of person and protection against violence or bodily harm and to public health equally with other Queenslanders. That is sufficient in the circumstances of this case to establish reasonable necessity.
On the basis of those inferences of legislative fact, it can and should be concluded that Sched 1R was, as at 31 May 2008, a special measure within the meaning of Art 1(4) of the Convention.
Conclusion
Schedule 1R to the Liquor Regulation operated to produce the result that Ms Maloney committed an offence against s 168B of the Liquor Act on 31 May 2008 by reason only of being the owner of a bottle of bourbon and a partly full bottle of rum contained in a backpack in the boot of a vehicle on a public road in the local government area in which she lived.
Schedule 1R was at that date properly characterised as a special measure within the meaning of Art 1(4) of the Convention because its sole purpose was the adequate advancement of the indigenous members of the Palm Island community and because the prohibition it brought into effect remained reasonably necessary in order for them to enjoy human rights to security of person and protection against violence or bodily harm and to public health equally with other Queenslanders. The application of s 10 of the RDA to Sched 1R was for that reason excluded by s 8 of the RDA. For that reason alone, s 10 of the RDA had no application to Sched 1R.
The Queensland Court of Appeal was therefore correct to conclude that Sched 1R was valid and that Ms Maloney was validly convicted of the offence against s 168B of the Liquor Act.
The appeal must be dismissed.