Morton v Queensland Police Service
[2009] QDC 233
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- Unreported Judgment
- Appeal Determined (QCA)
- Morton v Queensland Police Service[2009] QDC 233
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Morton v Queensland Police Service[2009] QDC 233
Morton v Queensland Police Service[2009] QDC 233
DISTRICT COURT OF QUEENSLAND
CITATION: | Morton v Queensland Police Service [2009] QDC 233 |
PARTIES: | Florence Maree Morton (Appellant) and Queensland Police Service (Respondent) and Human Rights and Equal Opportunity Commission (with leave as amicus curiae) |
FILE NO/S: | D75/2008 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Townsville |
DELIVERED ON: | 19 June 2009 |
DELIVERED AT: | Townsville |
HEARING DATES: | 04 July 2008, 29 August 2008, 31 October 2008 |
JUDGE: | Durward SC DCJ |
ORDERS |
|
CATCHWORDS: CASES: LEGISLATION: | LEGISLATION - Liquor Act 1992 and Liquor Regulation 2002 – prohibition on possession in a public place in a restricted area of more than the prescribed quantity of liquor for the area – Palm Island a restricted area – whether applicable to both indigenous and non-indigenous people in the restricted area - whether locality or race focused. CONSTITUTION – whether Queensland legislation invalid – whether inconsistent with Commonwealth legislation – whether State legislation should be struck down.. RACIAL DISCRIMINATION ACT 1975 – whether Queensland legislation inconsistent with s. 10 of the Act – whether legislation is a ‘special measure’ under s, 8 of the Act. COSTS - Costs of responding to affidavit of evidence of respondent that was not relied on – whether quantum appropriate in the circumstances – whether indemnity costs. Mabo v Queensland (1988) 166 CLR 186; Gerhardy v Brown (19850 159 CLR 70; Western Australia v Ward (2002) 213 CLR 1; Ebber v HREOC (1995) 129 ALR 455; Secretary Department of Veterans Affairs v P (1998) 79 FCR 594; Bropho v Western Australia (2007) FCA 519; Hagan v The Trustees of the Toowoomba Sports Ground Trust (2000) FCA 1615; Vanstone v Clark (2005) 147 FCR 299.. Commonwealth of Australia Constitution Act; Racial Discrimination Act 1975; Liquor act 2002; Liquor Regulation 2002; Indigenous Communities Liquor Licensing Act 2002; Northern Territory National Emergency Response Act 2007. |
COUNSEL: | D O'Gorman SC and A McAvoy for the Appellant M Hinson SC and A Horneman-Wren for the Respondent JN Hunyor for the Amicus Curiae. |
SOLICITORS: | Aboriginal & Torres Strait Islander Community Legal Services for the Appellant Crown Solicitor for the Respondent Human Rights and Equal Opportunity Commission. |
- [1]The Appellant is an aboriginal who resides on Palm Island. She has appealed against her conviction on 22 February 2008 in the Magistrates Court at Townsville of an offence under Section 168B of the Liquor Act 1992 (“Liquor Act”), namely having in her possession in a public place in a restricted area more than the prescribed quantity of liquor for the area than under the authority of a restricted area permit.
- [2]The facts of the offence were not disputed and the only defence raised in the Magistrates Court was that the relevant provisions of the Liquor Act and the Liquor Regulation 2002 (“Liquor Regulation”) were inconsistent with sections 9 and 10 of the Racial Discrimination Act 1975 (Cth) (“RDA”).
- [3]His honour decided that section 9 of the RDA had no application. The Appellant did not rely on section 9 in the appeal. His honour held that the Liquor Act was a ‘special measure’ within the meaning of section 8 of the RDA so that section 10 did not apply.
THE APPEAL
- [4]The appeal to this Court is made pursuant to section 222 of the Justices Act 1886 and is by way of re-hearing on the evidence in the Court below (section 223). The appeal raises an issue of constitutional invalidity. Notices pursuant to section 78B of the Judiciary Act 1903 were given to the Attorneys’ General of the Commonwealth and the States and all responded to the effect that they did not intend to intervene in the proceedings before the next appeal stage at least.
- [5]The appeal was argued on two grounds, namely that His honour erred:
- (a)in holding that the Liquor Act was a ‘special measure’; and
- (b)by breaching the rules of natural justice.
- [6]The Appellant’s principal argument was that the treatment of indigenous people on Palm Island in respect of possession of liquor is different from the treatment of non-indigenous people in Queensland and that the Liquor Act was therefore in conflict with section 10 of the RDA and invalid by operation of section 109 of the Commonwealth of Australia Constitution Act.
QUEENSLAND LEGISLATION
- [7]The Liquor Act 1992 (as amended) inter alia regulates the sale and supply of liquor. The objects of the Act are set out in section 3:
“ 3 Act’s Objects
This Act’s objects are –
(a) To regulate the liquor industry in a way compatible with minimising harm caused by alcohol abuse and misuse; and
Examples of harm –
adverse effects on a persons’ health
personal injury
property damage
violent or anti-social behaviour
(b)…
(c)…
(d)…
(e)to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence.
(f)…
(g)… “
- [8]By Regulation made under the Liquor Act 1992 (“the Liquor Act”) the Queensland legislature declared a number of geographical areas that corresponded with established indigenous community areas throughout Queensland, to be restricted areas under the Act.
- [9]The Liquor Regulation 2002 provided:
- (a)in s 37A, the declaration of a restricted area pursuant to s 173G(1) of the Act, as follows:
“An area stated in a relevant schedule is a restricted area”
and
- (b)in s 37B, the declaration of prohibition of possession of liquor in a restricted area by reference to s 173H of the Act, as follows:
“(1) Each restricted area is an area to which s 168B of the Act applies.
(2)The prescribed quantity for a restricted area is the quantity stated for the area in a relevant schedule.”
- [10]Section 173 of the Act relevantly provides as follows:
173F Purpose of pt 6A
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.
173G Declaration of restricted area
- (1)A regulation may declare an area to be a restricted area.
- (2)Without limiting subsection (1), a community area, or part of a community area, may be declared to be a restricted area.
- (3)In recommending the Governor in Council make the regulation, the Minister must be satisfied the declaration is necessary to achieve the purpose of this part.
173H Declaration of prohibition of possession of liquor in restricted area
- (1)A regulation may declare that a restricted area is an area to which section 168B applies.
- (2)A regulation under subsection (1) must state the quantity of liquor that a person may have in possession in a public place in the restricted area (the prescribed quantity) without a restricted area permit.
173I Consultation with community justice groups for declarations
- (1)This section applies if a community area is, or a community area or part of a community area is in –
- (a)an area to be declared under a regulation under section 173G to be a restricted area; or
- (b) a restricted area to be declared under a regulation under section 173H to be an area to which section 168B applies.
- (2)The Minister may recommend the Governor in Council make the regulation only if the Minister has consulted with the community justice group for the community area about the declaration or, if the group made a recommendation about the declaration, the minister has considered the recommendation.
- (3)Also, the Minister must consider a recommendation made by the community justice group about changing the declaration.
- (4)However, failure to comply with subsection (2) or (3) does not affect the validity of a regulation made for the subsection.
- [11]Section 168 of the Act relevantly provides for the subject offence provision, in the following terms:
168B Prohibition on possession of liquor in restricted area
(1)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.
- [12]The purpose of the declaration in the Regulation in each case is evident from the terms of the schedules which relate separately to each of the indigenous communities’ geographical areas. In the case of Palm Island, Schedule 1R to the Liquor Amendment Regulation (No 4) 2006 is expressed in the following terms:
“SCHEDULE 1R PALM ISLAND
Sections 37A & 37B
1.Areas declared to be restricted areas
Each of the following areas is a restricted area –
- (a)The community area of the Palm Island Shire Council;
- (b)Any foreshore of the community area of the Palm Island Shire Council;
- (c)The jetty on Greater Palm Island known as Palm Island Jetty.
2.Prescribed quantity
- (1)The prescribed quantity for each restricted area, other than the canteen, is –
- (a)for beer in which the concentration of alcohol is less than four percent – 11.25L; and
- (b)for any other liquor – zero
- (2)The prescribed quantity for the canteen is –
- (a)for beer in which the concentration of alcohol is less than four percent – any quantity; and
- (b)for any other liquor – zero
3.In this section “canteen” means the licensed premises known as the Palm Island Canteen at Beach Road, Palm Island.”
- [13]Earlier amendments to the Regulation declared restricted areas in respect of other indigenous communities, some of which simply declared a prescribed quantity of zero.
- [14]The origins of the provisions referred to above, which were the result of amendments to the Liquor Act, included the Indigenous Communities Liquor Licences Act 2002. That Act reflected the recommendations in the Cape York Justice Study Report in 2001 which (in the terms of the Explanatory Notes to the 2002 Bill):
“…highlighted the seriousness of the alcohol problem in indigenous communities in clear and unequivocal terms:
Alcohol abuse and associated violence are so prevalent and damaging that they threaten the communities’ existence and obstruct their development.”
- [15]The Alcohol Management Plans were to be developed by community justice groups in a consultative way as a guide to implementation of alcohol controls. The extent to which there may or may not have been consultation was not the subject of evidence in this appeal and the ‘alcohol management plans’ were referred to generically but not in substance as to there content, composition or development, in submissions.
COMMONWEALTH LEGISLATION
- [16]The Racial Discrimination Act 1975 was made after Australia ratified and became a party to the International Convention on the elimination of all forms of racial discrimination. The Act, inter alia, finds the Crown in right of each of the States.
- [17]Part II – Prohibition of Racial Discrimination of the RDA relevantly provides as follows:
“10. Rights to equality before the law
(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State of 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 sub-section (1) to a right includes a reference to a right of a kind referred to in article 5 of the Convention.
(3) …
8. Exceptions
(1) 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 sub-section 10(1) applies by virtue of sub-section 10(3).
(2) …
(3) …”
- [18]The International Convention on the elimination of all forms of racial discrimination (“the Convention”) relevantly provides as follows:
“PART I
Article 1
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 their 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.
2. …
3. …
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such a 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 5
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 …”
(Article 5 then sets out a series of paragraphs specifying particular rights.)
- [19]Section 10(1) of the RDA includes a reference to a right “of a kind” referred to in Article 5 of the Convention. Hence it is argued that the RDA does not provide that Article 5 exhaustively outlines all rights and that section 10(1) of the RDA protects rights beyond those outlined in the Convention, provided they are “of a kind” referred to in Article 5.
DISCUSSION OF APPELLANT’S SUBMISSIONS
- [20]The Appellant argues that the Liquor Act is in breach of at least one “right” pursuant to section 10 of the RDA, namely one or more of the following:
“(i) the right of access to goods; and/or
(ii) the right to engage freely in public activity; and/or
(iii) the right to access places and facilities; and/or
(iv) …
(v) the right of access to a place intended for use by the general public, namely, a ‘public place in a restricted area’, as that expression is used in section 168B(1) of the Liquor Act.”
- [21]The Appellant abandoned its reliance on paragraph (iv) - the right to equal treatment before organs administering justice – at the outset of the appeal hearing.
- [22]The Appellant says that the “right” in question falls to be construed broadly. That is, it is not merely a “right to possess alcohol” but is a right which encompasses the ability of an individual to “engage freely in any public activity and to enjoy the public benefits of that society” and to engage freely in public activity.
- [23]The Appellant argues that the Alcohol Management Plan (that is, the rationale for the relevant provisions in the Liquor Act and the Regulations) with respect to Palm Island does not constitute a situation where “the burden falls upon all racial groups”. In other words, the burden does not fall upon non-indigenous people in the rest of Queensland.
- [24]It was submitted that The Alcohol Management Plan was inconsistent with section 10, and therefore was invalid by means of section 109 of the Constitution. That submission was predicated on the following:
“Palm Island is mostly inhabited by persons of a particular race, namely aboriginal persons; the alcohol management plan restricts the possession of alcohol on Palm Island; the possession of alcohol is not so restricted in areas in Queensland inhabited largely by non-aboriginal people.
…
…people living on Palm Island, that is mostly aboriginal people, do not enjoy a right endured by persons of another…race, or enjoy a right to a more limited extent than non-aboriginal’s living in Queensland. The right being the right to possess alcohol in the manner that non-aboriginal people in Queensland can possess alcohol.
…the rights we say have been breached are the rights of access to goods, and/or the right to engage freely in public activity, and/or the right to access places and facilities, and/or the right of access to a place intended for use by the general public (T1-10).
…
…there must be a breach of a right as that term appears in Article 5 of the Convention. Consequently the court is required to identify the particular right that Palm islanders either do not enjoy or enjoy to a more limited extent than persons elsewhere in Queensland as a result of the Management Plan (T1-11).
- [25]The Appellant submitted that the ‘right’ to which section 10 refers is, “…like the rights referred to in Art. 5, a human right - not necessarily a legal right enforceable under the municipal law”: Mabo v Queensland [1988] 166 CLR 186, per Brennan, Toohey and Gaudron JJ at 217; and Gerhardy v Brown {1984 -1985} 159 CLR 70, per Mason J at p102 and Gibbs CJ at pp85-86.
- [26]Hence the Appellant argues that the Liquor Act provisions are specifically directed to indigenous persons on Palm Island which is an indigenous community and to that extent the provisions of the Liquor Act are inconsistent with section 10 of the RDA and thereby are invalid; that is, the provisions affected persons because of their racial origin. (my emphasis) Cf: Ebber v HREOC (1995) 129 ALR 455; Veterans’ Affairs v P {1998} 79 FCR 594.
- [27]The Appellant argued that section 10 of the RDA is remedial legislation and consequently should be given a beneficial and not a narrow construction: Waters v The Public Transport Corporation (1991) 173 CLR 349; Baird v The State of Queensland (2006) 156 FCR 451. I agree. That is what I have done, in the context of this case, in this judgment.
- [28]The Appellant acknowledged that the Liquor Act regulated consumption and possession of alcohol generally in the community but submitted that on Palm Island it was regulated in a discriminatory way. There was as a consequence an unequal enjoyment of rights arising directly from the relevant provisions of the Liquor Act.
- [29]In his submissions on s 10, the Appellant placed great reliance on the decision of the High Court in Gerhardy v Brown (1984-1985) 159 CLR 70. In that case the defendant was an Aboriginal, but not a ‘Pitjantjatjara’. He had entered the lands of the latter people without permission. Hence the issue of discrimination arose in that context.
- [30]Mason J said at page 99:
“Section 10 makes no reference to racial discrimination; nor does it make any reference, as s. 9(1) does, to the elements of the definition of ‘racial discrimination’ in art 1.1 of the Convention. Instead s. 10 is expressed to operate where persons of a particular race, colour or origin do not enjoy a right that is enjoyed by persons of another race, colour or origin or do not enjoy that right to the same extent. Some question as to the validity of s. 10 might be thought to arise because it fails to follow the language of art. 2 of the Convention. The exclusion of persons of a race, colour or origin from the enjoyment of a relevant right by reason of the law does not necessarily involve ‘racial discrimination’ in that it may not amount to a distinction, exclusion, restriction or preference ‘which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise’ of the right ‘on an equal footing’. Consequently, s. 10 should be read in the light of the Convention as a provision which is directed to lack of enjoyment of a right arising by reason of a law whose purpose or effect is to create racial discrimination.”
- [31]Gibbs CJ (at pp 85-86) described the purpose of s 10 as dealing with legislation which brings about discrimination as distinct from other sections of the RDA which prohibits acts of discrimination by persons.
- [32]The Appellant argued that in respect of s. 8 of RDA, there was no evidence upon which it could be found that the Alcohol Management Plan applicable to Palm island was a “special measure” within the meaning of sub-section (1) was concerned. Further, it was submitted than an exemption such as is provided in s 8, which restricts rights, should be strictly construed.
- [33]The appellant submitted that the indicia that needed to be satisfied for a finding of a “special measure” were not satisfied in this case. Those indicia are set out in Gerhardy v Brown by Brennan J at p133:
“The class to be benefited by special measure be a racial or ethnic group or individuals belonging to the group. The sole purpose of a special measure is to secure such ‘adequate advancement’ or ‘adequate development and protection’ of the benefited class as is necessary to ensure ‘equal enjoyment or exercise of human rights and fundamental freedoms’. The occasions for taking a special measure is that the circumstances warrant the taking of the measure to guarantee that the members of the benefited class shall have the full and equal enjoyment of human rights and fundamental freedoms’. From these conceptions, the indicia of a special measure emerge. A special measure (1.1) confers a benefit on some or all members of a class, (2) 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.”
- [34]“Special measures” are described in art. 1(4) of the Convention in the following terms:
“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 .. (have access to) .. 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.”
- [35]The Appellant addressed the issue of “special measures” primarily because it was upon a finding by the Magistrate, that the legislation was a “special measure”, that the Appellant was convicted.
- [36]In effect the Appellant submitted that the finding could not have been made in the absence of evidence directed to the relevant criteria or evidence of consultation with the community on Palm Island in respect of the alcohol management plan. The Appellant referred to observations in Gerhardy v Brown about the need for evidence in respect of special measures: Gibbs CJ at pp 87-88; Dean J at pp149 and 152; Mason J at pp 105-106; and Brennan J at 142.
DISCUSSION OF HREOC’S SUBMISSIONS
- [37]The Commission submitted that the issue was the circumstance in which laws regulating public behaviour can consistently with the RDA have a disparate impact upon people of a particular race. It was submitted that there were two circumstances in which such disparate impact is permissible, firstly where the legislation was legitimate in the sense of being necessary and proportionate in seeking to achieve a non-discriminatory purpose; and secondly where the law is a special measure: Bropho v WA (2008) 169 FCR 59; and Gerhardy v Brown, respectively.
- [38]It was submitted that a narrow approach to “rights” thwarted the fundamental purpose of anti discriminatory laws and that there should be a broad construction of s 10 of the RDA.
- [39]The emphasis in the submission was upon the circumstances in which a “right” could be limited. The Commission took issue with the Respondent’s submission about there being no right to possess goods or right to freedom of speech (see infra, in the respondents Submission). It was submitted that the right of access to goods was one which engaged a fundamental right as a part of an individual’s existence as a human being in the broader context.
- [40]The Commission submitted that there were two issues: whether the legislation had the effect of limiting a right; and whether, if there was such limitation, it was a legitimate one.
- [41]It was submitted that whilst the legislation did not identify by its language people and hence applied to anyone on Palm Island, the practical effect of it was to limit the ability of indigenous people to possess alcohol and that was directly related to the purpose of the amendments (to which I have referred above) and the consumption of alcohol by Aboriginal people. I have made a finding about that further in this judgment
- [42]The Commission referred to Hagan v Trustees of Toowoomba Sports Ground Trust (2000) FCA 1615 as demonstrating what it submitted was a narrow view of the rights at issue taken by the respondent in this case. It was argued that even though s 9 of the RDA was not directly in issue in this case, nevertheless s 10 picked up concepts from other sections dealing with specific rights such as the supply of goods and services.
- [43]In Hagen Drummond J said (at paragraph 38) that:
“It can be accepted that s 9(1) protects the basic human right of every person who is a member of a particular racial group to go about his recreational and other ordinary activities without being treated by others less favourably than persons who do not belong to that racial group…”
- [44]Similarly, it was submitted, in Gerhardy v Brown, Mason J observed the following at p 101:
“The expression ‘human rights’ is commonly used to denote the claim of each and every person to the enjoyment of rights and freedoms generally acknowledge as fundamental to his or her existence as a human being and as a free individual in society. The expression includes claims of individuals as members of a racial or ethnic group to equal treatment of the members of that group in common with other persons.”
- [45]Hence it was submitted, by way of conclusion, that the issue was not one of whether laws were “based on” race but rather than the test in s. 10 was whether there was unequal enjoyment of rights between racial or ethnic groups.
- [46]The Commission submitted there were a number of factors to be considered in endeavouring to determine the issue of whether there were “limitations” in the context referred to, namely:
Proportionality
What other measures were available
What were the wishes of the indigenous people, in the context of a right to self-determination
Consultation with those potentially affected
Special and concrete measures to ensure development and protection of certain racial groups
Rights to protect citizens from violence and to give security to the person
Right to health and development.
- [47]The Commission submitted with respect to the issue of special measures that the judgment of Brennan J in Gerhardy v Brown was preferable to that of Nicholson in Bropho v WA. I have referred to the Full court judgment in that case in the course of this judgment.
- [48]In Bropho, the Court was concerned with the responsibility for management of a reserve designated for the use and benefit of aboriginal persons including the appellant. Management was transferred from those persons to a State Authority. The State Authority imposed entry restrictions, requiring express authority for persons to enter the reserve. The rationale for the measure was concern for the safety of women and children on the reserve. The decision at first instance was taken on appeal to the Full Court of the Federal Court, which held that the Authority’s act of excluding the appellant from the reserve was not taken by reference to her race, but rather was taken by reference to her as a member of a dysfunctional community in which vulnerable members were at risk. Hence there was no contravention of s 9 of the RDA.
- [49]In so far as consultation was concerned, in the context of a consideration of special measures, the Commission referred to the need to consider the wishes of the people who were potentially affected by the legislation. It submitted that the judgment of Brennan J in Gerhardy v Brown (at p 134) was apposite, namely:
“The human right to invite or permit another to enter one’s home is not unqualified. It can be regarded as an individual right when the individual alone occupies the home, but it is more a collective right when premises are the home of a group.”
- [50]Finally, the Commission referred to the issue of “political questions” in the test for special measures, by reference to the observations of Brennan J (at p 138) in Gerhardy v Brown:
“…whether a special measure is needed and is likely to alter the circumstances affected a disadvantaged racial group in such a way that they will be able to live in full dignity, to engage freely in any public activity and to enjoy the public benefits of society equally with others if they wish to do so is, at least in some respects, a political question. A court is ill-equipped to answer a political question.”
- [51]Hence, it was submitted that the court nevertheless had to “decide the limits in which a political assessment might reasonably be made” which required it to be satisfied of the following:
The element of “advancement” is met, based on the wishes of the beneficiaries;
The circumstances of the racial group (about which a factual finding needs to be made), can reasonably support the taking of the measure; and
The measure is capable of being reasonably considered to be appropriate and adapted to achieving its purpose.
See Dean J and Brennan J at pp 149 and 139 respectively in Gerhardy v Brown
DISCUSSION OF RESPONDENT’S SUBMISSIONS
- [52]The Respondent dealt firstly with s 10 of the RDA. It was submitted that there were two questions requiring answer to determine whether s 10 was invoked. Firstly, the identification of the right which is enjoyed by some persons of a particular race but not by other persons of a different race or which was enjoyed to some more limited extent than the latter; and secondly to ascertain whether by reason of the law, which is said to contravene s 10, that difference in race is based on a distinction based on race.
- [53]The Respondent’s primary submission dealt with s 10(1) of the RDA. It’s fallback position, in effect, was s 8 of the RDA.
- [54]It was submitted that if one viewed the question of racial discrimination within the geographical area concerned, it was appropriate to enquire as to whether by reason of the operation of the particular law, how different races might be dealt with.
- [55]The answer to that rhetorical enquiry, it is submitted, is that persons of all races are treated in exactly the same way; that is, the legislation applies not only to people who live on Palm Island but to people who visit Palm Island for long or short periods or any duration, whether they be indigenous or non-indigenous people.
- [56]It was submitted that the legislation had no impact on the right to engage freely in public activity, the right to access places and facilities and the right of access to a place intended by the general public. Rather, the legislation was concerned with the possession of goods of a particular kind, namely liquor.
- [57]It was submitted that a right of access to goods is not an unlimited right. For example, it was submitted that there are restrictions upon a person’s possession of weapons or of drugs. It was also submitted that there was no right of free speech (a matter challenged in , as I have said, in the submissions of the Commission).
- [58]In Bropho (supra) the Full Court of the Federal Court said the following:
“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 right to occupy and manage the land conferred by statute was subject to the contingency that the right will be removed or modified if its removal or modification was necessary to protect vulnerable members of the community enjoying the right of occupation and management. We accept that it will always be a question of degree in determining the extent to which the content of a universal human right is modified or limited by legitimate laws and rights recognised in Australia.”
- [59]It was submitted that the legislation in issue operated in a neutral way, in that it impacted upon all races within the particular geographically restricted area.
- [60]It was submitted that s 10 required a comparison to be made between the rights enjoyed by a person of one race and the rights enjoyed by a person of another race: Ward (at 101). It is said that that was so because s 10 gave to the person who has been discriminated against, the rights of the comparator: Vanstone v Clark (2005) 147 FCR 299 at 353. The difference in the rights must be based on race and not on some other criterion.
- [61]In Mabo’s case the thrust of the decision in respect of s 10 was directed to ensuring equal enjoyment of rights in the society in which they lived and their capacity to participate fully in society, rather than with rights of an individual concerning his or her personal position; that is, the rights are those that go to one’s very existence as a human being rather than to the quality of one’s existence as a human being.
- [62]It was submitted that a right to possess liquor is not a right of the kind with which s 10 is concerned. It was not a right which evoked a universal value of concern to all societies or for which universal respect and observance is encouraged. It was not a right which was fundamental to existence as a human being.
- [63]It was submitted that if s 10(1) of the RDA was invoked in respect of indigenous persons on Palm Island, the non-indigenous people on Palm Island would themselves be discriminated against because the law would potentially continue to apply to them.
- [64]Mr Hinson submitted that the purpose of the principles enunciated in Mabo were aimed at the creation by law of a distinction or restriction based on race, colour, descent or national or ethnic origin; that is at the extinguishing of rights of Aborigines and Torres Strait Islanders and no-one else, because they were the only persons to enjoy traditional land rights. Those rights were exclusive to persons of those races or national or ethnic origins. By contrast, he submitted, the legislation here is directed towards a right which is enjoyed not merely by persons of a particular race, but enjoyed by persons of any race.
- [65]Mr Hinson was critical of an analogy, of sorts, submitted by the Commission in its submissions; that is, the reference to ‘segregation and apartheid laws’ in South Africa. He described it as a “somewhat colourful reference” that was taking matters to an extreme not justified in the circumstances; that is, those laws in south Africa were of a completely different character to the legislation under consideration in this case. I agree :the analogy is risible – it is simply not comparable on any objective or rational legal or other basis and I reject it absolutely.
- [66]It was submitted that the prohibition in s 168 (B) (1) applied simply to a public place in a restricted area - it did not apply beyond that restricted area. Outside the restricted area, all persons regardless of race had the same right to possess liquor, but within the restricted area, all persons regardless of race, were subject to the same restriction upon that right to possess liquor.
- [67]Hence, it is submitted, it is a fallacy to compare the rights of a person to possess liquor in a restricted area with the rights of a person to possess liquor outside a restricted area; that is, it is so, by limiting the comparison to persons of a particular race and ignoring the others who are non-indigenous who would be affected by a similar comparison. The proper comparison it was submitted, was between persons of different races within the area of restriction. Such a comparison would result in the conclusion that the rights of any person of any race to possess liquor were equally restricted. In other words, the Appellant was subject to the prohibition whilst she was in the restricted area but not whilst she was outside it . Any other person, including non-indigenous persons were subject to the prohibition within the restricted area, were not so restricted outside that area.
- [68]Hence, it is submitted, the differential in a comparison of rights is one relating to a restricted area, not to race. In those circumstances, s 10 was not invoked. I agree..
- [69]In so far as s 8(1) is concerned, it was submitted that the legislation was a “special measure” in the context discussed in Gerhardy v Brown. The legislation had the effect of addressing the conditions of a disadvantaged class, by reference to the right to security of person and protection by the State against violence or bodily harm and social rights including the right to public health. The purpose of the legislation, as expressed earlier, was to minimise harm caused by alcohol abuse and misuse and associated violence and to minimise alcohol related disturbances or public disorder in a locality. It was submitted that this purpose had an obvious and direct connection with the human rights recognised by Art. 5 of the Convention.
- [70]The issue of whether or not a racial group required protection was a matter for the legislature and it was submitted that a Court is ill-equipped to answer what is really a political question: Gerhardy v Brown at pp 137-138 and pp 161-162. It was not a matter that the Court should enquire further into. I agree with the force of that submission. Certainly, in this case it has been matter of legal construction – there has been no evidence to consider. It is for the legislature, in my view, to determine individual or collective rights as a matter of public policy or community wellbeing, protection or advancement; it is for the courts to determine whether the legislature has exceeded the legal parameters in so doing.
- [71]It was submitted that the legislation was a ‘special measure’ within the meaning of s 8 of the RDA because of its purpose of securing the proper advancement of racial groups or individuals (including indigenous persons on Palm Island) who required protection in order to ensure equal enjoyment and exercise of the human rights of security of their persons and protection by the State against violence or bodily harm, the right of freedom or peaceful assembly and association and the right to public health.
- [72]Mr Hinson referred to the Northern Territory National Emergency Response Act 2007. This is the legislation enabling the Commonwealth intervention into Aboriginal affairs in the Northern Territory. Mr Hinson particularly referred to a specific section in that legislation (s 132 (1)) wherein it is said:
“The provisions of this Act and acts done other or for the purposes of those provisions are for the purposes of the Racial Discrimination Act special measures.”
- [73]I was submitted that the Commonwealth had seen fit to make an express declaration of a special measure because it was empowered to do so. By contrast, the Queensland Parliament did not have the power to modify the effect of a Commonwealth Act and could not, it was submitted, make an express provision of that kind in the Liquor Act. If it had such power, and had declared in the Liquor Act that the amending legislation was a special measure, there would be no argument available to the Appellant but it did not and could not. I agree.
FINDINGS
- [74]In my view, the Appellant cannot succeed. I find that s 10 of the RDA is not invoked by the legislation. Hence there is no issue of racial discrimination arising in this case. Alternatively, the legislation is a special measure within the meaning of s 8 of the RDA.
COSTS
- [75]The Appellant seeks costs thrown away in respect of its response to the affidavit of the Respondent’s Mr Anderson, on an indemnity basis. The Respondent accepts that an award of costs in the circumstances is just. However, it disputes the qualification of the costs and the making of an award on an indemnity basis.
- [76]The matter of this appeal was complex, novel and of importance. An award above the scale amount was therefore appropriate: section 233A Justices Act 1887 and Lucy v OCC Holdings Pty Ltd (2008) QdC 169.
- [77]The Appellant ’s claim for costs is for $25,740 professional expenses (including travelling time) and $2,903.32 out of pocket expenses, a total of $28,643.32.
- [78]The Respondent submits that there is insufficient detail, inter alia, of the breakdown of the costs. However, the Appellant had early in the proceedings stated that a proper response would require broad and detailed investigations in consultation within the indigenous communities, including those on Palm Island.
- [79]Whilst the Respondent did give notice that it no longer relied on an affidavit, prior to the day set aside for hearing of the substantive appeal, the Appellant had in the meantime expended a significant sum in preparing for a response to affidavit evidence which it considered to be of great significance in the appeal.
- [80]The Respondent submitted that the discretion to award indemnity costs was not enlivened in the circumstances of this case and referred to Martinovic v Chief Executive Queensland Transport (2005) 1 QdR 502 (at 510-511). I accept that this authority refers to rather condign circumstances. However, the judicial discretion is not so confined.
- [81]The appeal was certainly shortened by the approach finally taken by the parties and savings in time and costs has no doubt resulted. However, in my view in the circumstances of this case, the significance of the work at the time it was performed by the Appellant and the relatively late notice, in respect of the performance of that work, given by the Respondent of its intentions regarding the affidavit, does properly enliven my discretion. It was the delivery of the affidavit on or about the eve of the original date of hearing which caused that hearing to be adjourned in order for the Appellant to make a proper response to it. It was only on a subsequent directions hearing that it became clear that the Respondent was no longer relying upon any affidavit of evidence.
- [82]The Appellant subsequently argued that the Respondent should be obliged to rely on the affidavit, but there was no circumstance in which it could succeed in doing so. That at the least was a measure of the importance that the appellant had placed on the issue of adducing evidence on the appeal and it’s response to answering that was then a significant part of the respondents case on the appeal. It should not be overlooked that I gave leave for fresh evidence, so to speak to be adduced at the hearing, upon the application of the respondent.
- [83]In my view my discretion is sufficiently engaged in the circumstances of this case for an award of costs on an indemnity basis to be made. In my view such an award on that basis is warranted in all the circumstances. I also propose to award the costs in the quantum submitted by the Appellant. It does not seem to me to be an amount that is beyond reasonable expectation given the task that the Appellant was faced with. I have no doubt that the enquiries and consultation required attendance at Palm Island and could not have been properly or adequately performed by some more remote means.
- [84]In the premises, I propose to make an order that the Respondent pay the Appellant’s costs thrown away in respect of the preparation of an affidavit of evidence in response to the Respondent’s affidavit deposed by Mr Anderson, on an indemnity basis and in the sum of $28,643.32.
CONCLUSION
- [85]As I have indicated, I agree with the submissions of the Respondent with respect to whether s 10(1) of the RDA is invoked or not I have found that the right claimed by the Appellant is not a right of the kind protected by s 10(1) of the RDA; and that the Appellant has not and cannot demonstrate a distinction in rights which is based on race, rather such distinction as there is, is based on the geographical boundary or restricted area.
- [86]In the premises, because s 10(1) is not invoked, it is not necessary for me to consider the application of s 8 of the RDA. However, if I am wrong in my finding in respect of s 10 (1) of the RDA I am satisfied that s 8 applies to the relevant legislation and I would, in such circumstances, had it been necessary so to do, have found that the legislation was a special measure within the meaning of s 8 of the RDA.
- [87]The Appellant offered no other defence to the charge, the facts and circumstances of which were admitted by her. In those circumstances, the appeal against her conviction for the offence fails.
ORDERS
- The appeal is dismissed.
- The Respondent to pay the Appellant’s costs thrown away in respect of the preparation of an affidavit of evidence, on an indemnity basis in the sum of $28,643.32.
- The Appellant to pay the costs of the Respondent of and incidental to the appeal, with the exception of the matter referred to in order 2 herein, in an amount in excess of the scale amounts as agreed between the parties or otherwise as assessed.
- The parties have liberty to apply, if there be no agreement as to the costs order referred to in order 3 herein, for an assessment of the costs of an incidental to the appeal.