Maloney v The Queen

• Jurisdiction: Australia Federal only
• Judge: French CJ.,Hayne J.,Crennan J.,Kiefel J.,Bell J.,Gageler J.
• Judgment Date: 19 June 2013
• Neutral Citation: [2013] HCA 28,2013-0619 HCA A
• Docket Number: B57/2012
• Court: High Court
• Date: 19 June 2013

[2013] HCA 28

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ

B57/2012

Joan Monica Maloney

Appellant

and

The Queen

Respondent

Representation

C A Ronalds SC and J K Kirk SC with S E Pritchard SC and A L McAvoy for the appellant (instructed by Aboriginal & Torres Strait Islander Legal Service (Qld))

W Sofronoff QC, Solicitor-General of the State of Queensland with S A McLeod and A D Scott for the respondent (instructed by Crown Solicitor (Qld))

Intervener

J T Gleeson SC, Solicitor-General of the Commonwealth with C L Lenehan for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Hinton QC, Solicitor-General for the State of South Australia with M J Wait for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

G R Donaldson SC, Solicitor-General for the State of Western Australia with C S Bydder for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

K L Eastman SC for the Australian Human Rights Commission, intervening (instructed by Australian Human Rights Commission)

M J Richards with S M Fitzgerald for the National Congress of Australia's First Peoples Limited, appearing as amicus curiae (instructed by Human Rights Law Resource Centre Ltd)

Constitution, s 109.

Liquor Act 1992 (Q), ss 168B, 173G, 173H.

Racial Discrimination Act 1975 (Cth), ss 8, 10.

Liquor Regulation 2002 (Q), ss 37A, 37B, Sched 1R.

Maloney v The Queen

Discrimination law — Racial discrimination — Certain geographical areas on Palm Island subject to restrictions as to nature and quantity of liquor which may be possessed — Palm Island population overwhelmingly Aboriginal — Appellant, an Indigenous member of Palm Island community, convicted of possessing liquor in restricted area on Palm Island — Whether restrictions affected enjoyment of right to equal treatment before tribunals protected by Art 5(a) of International Convention on the Elimination of All Forms of Racial Discrimination (‘Convention’) — Whether restrictions affected enjoyment of right to own property protected by Art 5(d)(v) of Convention — Whether restrictions affected enjoyment of right of access to places or services for use by general public protected by Art 5(f) of Convention — Whether restrictions engaged s 10 of Racial Discrimination Act 1975 (Cth) — Whether restrictions valid as special measure within meaning of s 8 of Racial Discrimination Act.

Constitutional law (Cth) — Inconsistency between Commonwealth and State laws — Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency pursuant to s 109 of Constitution.

Words and phrases — ‘human rights or fundamental freedoms’, ‘racial discrimination’, ‘right of access to any place or service intended for use by the general public’, ‘right to equal treatment before the tribunals and all other organs administering justice’, ‘right to own property’, ‘special measure’.

Appeal dismissed.

French CJ.

Introduction

1 The appellant, who is an Indigenous resident of Palm Island in Queensland, was charged on 3May 2008 in the Magistrates Court for the District of Townsville with possession of more than a prescribed quantity of liquor in a restricted area on Palm Island contrary to s 168B of the Liquor Act 1992 (Q) (‘Liquor Act’).

2 Palm Island is a ‘community government area’ within the meaning of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Q) 1. It is subject to regulations made under ss 173G and 173H of the Liquor Act declaring it a restricted area and restricting the nature and quantity of liquor which people may have in their possession in the community area on the Island 2. The community itself is composed almost entirely of Indigenous people.

3 The appellant did not appear before the Magistrates Court. She entered no plea to the charge. The magistrate proceeded on the basis of facts agreed between the parties. It was agreed that the police had intercepted a motor vehicle on Park Road, Palm Island and that the appellant was an occupant of that vehicle. A black backpack in the boot of the vehicle was found to contain one 1125 ml bottle of Jim Beam bourbon and one 1125 ml bottle of Bundaberg Rum which was three-quarters full. The appellant admitted to being the owner of the liquor. A fine of $150 was imposed, to be paid within two months with one day imprisonment in default of payment.

4 The appellant appealed against the conviction to the District Court of Queensland 3 contending, inter alia, that s 168B of the Liquor Act, regulations made under the Act and the restrictions which they imposed relating to possession of alcohol on Palm Island were invalid by reason of inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth) (‘RDA’). Section 10 relevantly provides that if a State law has the effect that persons of a particular race do not enjoy a right enjoyed by persons of another race or enjoy it to a more

limited extent, the person adversely affected shall, by force of s 10, enjoy that right to the same extent as the persons of that other race. The appellant's appeal to the District Court 4 and a subsequent application for leave to appeal to the Court of Appeal of the Supreme Court of Queensland 5 were dismissed 6. The Court of Appeal held, by majority, that s 10 did not apply, but in any event, unanimously, that the impugned legislation was a ‘special measure’ taken for the sole purpose of securing the adequate advancement of the Indigenous people of Palm Island and that by force of s 8 of the RDA s 10 did not apply to that legislation.

5 On October 2012, this Court (French CJ and Crennan J) granted special leave to the appellant to appeal against the decision of the Court of Appeal 7. The appeal should be dismissed on the basis that the impugned provisions were a special measure within the meaning of s 8 of the RDA.

6 The appeal requires an examination of the interaction between ss 8 and 10 of the RDA, which are of general application, and the specific provisions of the Liquor Act and regulations made under it, which underpin the charge brought against the appellant. It is convenient to begin by consideration of the relevant provisions of the RDA.

The statutory framework — the RDA

7 The purpose of the RDA, as appears from its Preamble, is to provide for the prohibition of racial discrimination and certain other forms of discrimination and to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’). The term ‘racial discrimination’ is defined in Art 1(1) of the ICERD to 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.’

8 By Art 2 of the ICERD the parties to it ‘undertake to pursue by all appropriate means … a policy of eliminating racial discrimination in all its

forms’. By Art 2(1)(c) each State Party must take effective measures ‘to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists’. Each State Party is also required, by Art 2(1)(d), to ‘prohibit … by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization’.

9 Part II of the RDA, comprising ss 8 to 18A, is entitled ‘Prohibition of racial discrimination’. Section 9(1), which is not directly in issue in this case, makes it unlawful to do any act which involves racial discrimination within the meaning of that term in the ICERD as defined by Art 1(1) 8. Other provisions of Pt II prohibit specific kinds of racial discrimination 9. Section 10 of the RDA, entitled ‘Rights to equality before the law’, relevantly provides 10:

• ‘(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.’

The non-exhaustive definition of ‘right’ in s 10(2) picks up the enumerated rights in Art 5 of the ICERD and the larger class referred to in Art 1(1) 11, namely:

‘human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.’

That class of rights is not limited to legal rights enforceable under municipal law 12. In the event, the appellant relied only upon enumerated rights in Art 5 in her invocation of s 10 13.

10 Section was evidently inserted in the RDA to give effect to Art 2(1)(c) of the ICERD 14. It is said to have been designed to bring about equality before the law 15. It might more modestly be described as designed to overcome inequality before the law based on race, colour or national or ethnic origin. Two important applications of s 10(1) were identified by Mason J in Gerhardy v Brown16 in reasoning approved by the plurality in Western Australia v Ward17:

The plurality in Ward also...