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  4. Maloney v Queensland Police Service - [2011] QDC 139

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Maloney v Queensland Police Service[2011] QDC 139

Maloney v Queensland Police Service[2011] QDC 139

DISTRICT COURT OF QUEENSLAND

CITATION:

Maloney v Queensland Police Service [2011] QDC 139

PARTIES:

Joan Monica Maloney

(appellant)

and

Queensland Police Service

(respondent)

FILE NO/S:

Townsville D75 of 2010; D289 of 2010

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Palm Island

DELIVERED ON:

27 July 2011

DELIVERED AT:

Townsville

HEARING DATE:

17 May 2011

JUDGE:

Durward SC DCJ

ORDERS:

  1. Appeal dismissed.
  2. The appellant to pay the costs of the respondent of and incidental to the appeal in an amount in excess of the scale amounts, as may be agreed between the parties or otherwise as assessed by the Court.
  3. Liberty to apply for assessment of costs.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – RACIAL DISCRIMINATION – where the appellant was charged with possession of liquor in a restricted area contrary to the prohibition in S.168B(1) of the Liquor Act 1992 (Qld) – whether prohibition is invalid pursuant to S. 10 Racial Discrimination Act 1975 (Cth)

CONSTITUTION – 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 legislation not applicable to the appellant because of constitutional invalidity.

HUMAN RIGHTS – DISCRIMINATION – RACIAL DISCRIMINATION – Racial Discrimination Act 1975 - whether inconsistency between provisions of Liquor Act 1992 and Liquor Regulation 2002 and s 10 of the Racial Discrimination Act 1975 – whether legislation is a "special measure" pursuant to s 8 of  the Racial Discrimination Act 1975 – whether State legislation offends International Convention.

HUMAN RIGHTS – DISCRIMINATION – RACIAL DISCRIMINATION – LIQUOR ACT 1992 & LIQUOR REGULATION 1992 – COMMUNITY ATTITUDES – whether public or community consultation a prerequisite for application of section 8 Racial Discrimination Act – What is meant by or intended in the expression ‘consultation’.

STATUTORY CONSTRUCTION – whether Commonwealth legislation providing for "special measure" is an "extra-curial" matter involving the Parliament of the Commonwealth of Australia.

LEGISLATION

Justices Act 1886; Commonwealth of Australia Constitution Act 1900; Racial Discrimination Act 1975; Liquor Act 2002; Liquor Regulation 2002; Indigenous Communities Liquor Licensing Act 2002; Northern Territory National Emergency Response Act 2007.

CASES

Gerhardy v Brown [1984-1985] 159 CLR 70;

Western Australia v Ward (2002) 213 CLR 1;

Morton v Queensland Police Service [2010] QCA 160;

Aurukun Shire Council & Anor v CEO Office of Liquor, Gaming and Racing in the Department of Treasury [2010] QCA 37;

Bropho v WA [2008] 169 FCR 59;

Waters v Public Transport Corporation [1991] 173 CLR 349;

Meshlawn Pty Ltd & Anor v State of Qld & Anor [2010] QCA 181;

Graham Barclay Oysters Pty Ltd v Ryan [2002] 211 CLR 540.

OTHER SOURCES

Narrainen v Norway [1994] UNCERD1: Opinion of a Committee of the International Convention on the Elimination of All Forms of Racial Discrimination, 15 March 1994.

COUNSEL:

AL McAvoy for the appellant

MD Hinson SC and SA McLeod for the respondent

SOLICITORS:

Aboriginal & Torres Strait Islander Community Legal Services for the appellant

Crown Solicitor for the respondent

The Offence

  1. [1]
    The appellant is an indigenous person who resides on Palm Island.  She has appealed against her conviction on 27 October 2010 in the Magistrates Court at Palm Island of an offence under s 168D(1) of the Liquor Act 1992 ("Liquor Act"), namely: 

"  …[that] on the 31st day of May 2008 at Palm Island in the Magistrates Court District of Townsville in the State of Queensland one Joan Monica Maloney in a public place namely Palm Island within a restricted area declared under s 173H of the Liquor Act 1992 namely Palm Island did have in her possession a quantity of liquor namely Rum and Bourbon being more than the prescribed quantity of liquor for the area under than under the authority of a restricted area permit."

The Factual Circumstances

  1. [2]
    The appellant did not appear at the trial of the charge and it was dealt with ex parte. Hence the factual circumstances were not in dispute. In a Schedule of Facts the appellant and respondent agreed as follows:

(a) The events in question occurred on 31 May 2008;

(b)  Police intercepted a motor vehicle on Park Road, PalmIsland;

(c) Police located 'one x 1125ml of Jim Beam and one x 1125ml of Bundaberg Rum (3/4 full) "in"…a black backpack in the boot of the vehicle';  and

(d) the appellant"… was an occupant of the vehicle and admitted to owning the liquor."

The Appeal

  1. [3]
    The appeal to this court is made pursuant to s 222 of the Justices Act 1886 and is by way of re-hearing on the evidence in the Court below (s 223).  The appellant also by application filed on 19 April 2011 sought leave to adduce new or further evidence on the appeal.  I received the new or further evidence, which was in the form of several affidavits, and heard submissions from counsel, made it subject to my determining whether leave would be granted pursuant to s 223(2) of the Justices Act 1886.  I will deal with that matter shortly.

Grounds of Appeal

  1. [4]
    The appeal raises issues of constitutional law and specifically a contention that the relevant Queensland legislation is invalid by reason of inconsistency with Commonwealth legislation, thus invoking s 109 of the Commonwealth of Australia Constitution Act 1900 (“Constitution”).
  1. [5]
    ‘Notice of a Constitutional Matter’ under s 78B of the Judiciary Act 1903 (Cth) was given to the Commonwealth and State Attorneys General upon filing of a Notice on 16 February 2011.  Informal notice was also given to the Human Rights and Equal Opportunity Commission.  No other parties elected to appear on the hearing of the appeal.

The Rival Contentions

  1. [6]
    The appellant's case is that the Magistrate erred in failing to conclude that ss.168B, 173G and 173H of the Liquor Act, ss. 37A and 37B of the Liquor Regulation 2002 and the Liquor Amendment Regulation (No 4) 2006 (“Liquor Regulation”) were invalid by operation of s. 10 of the Racial Discrimination Act 1975 (Cth) (“RDA”) and s.109 of the Constitution.
  1. [7]
    There were three parts to the appellant's submissions:
  1. (a)
    that the legislative provisions fall within the scope of s. 10 of the RDA;
  2. (b)
    that those provisions are not a "special measure" within s. 8 of the RDA;  and
  3. (c)
    that the legislation concerning "special measure" was enacted as an extra-curial "matter" by the Commonwealth Parliament.
  1. [8]
    The respondent submitted that s 10 of the RDA is not engaged because:
  1. (a)
    the terms of s. 10 do not apply;
  2. (b)
    in any event the provisions are a special measure to which s. 10 does not apply; and
  3. (c)
    the enactment was pursuant to a "Certificate".
  1. [9]
    Hence the parties expressed contrary views with respect to the application of s 10 of the RDA.
  1. [10]
    The respondent argued that the purpose was directly connected to “The International Convention on the Elimination of all forms of racial Discrimination” (“the Convention”), in respect of Articles 5(b), 5(d)(ix) and 5(e)(iv). I think that is plainly so and I agree with that submission.

What is a human right in the context of the RDA?

  1. [11]
    In Morton v Queensland Police Service (2009) QCA 233 (“Morton”), Chesterman JA at [89] referred to Article 26 of the Convention in the context of a submission to the effect that there was “a human right to be quit of all discrimination on the ground of race” and doubted, at least, that was the meaning of the expression “equal protection of the law”.
  1. [12]
    His Honour continued:

“[90] It is, I think, obvious that s 10 itself confers a right on persons of all races to be treated equally by the law. It does so by the particular mechanism described in the section. It is not obvious to me that the object sought by Article 26 is not achieved by the enactment of s 10.

[91]  The focus of Article 26 is on equal treatment before the law, or equal protection of the law. Section 10, it seems to me, is a provision which aims to achieve that very goal. It does not do so by saying that no law may discriminate on the ground of race with regard to any subject matter. The subjects of legislation which may be discriminatory will be few in number because of the width of the definition of human rights in the Convention, but it is the case that some subject matter will not be caught.

[92]  To make the suggested substitution in s 10 involves a degree of circularity. Section 10 confers a right to equal protection of the law. If one answers the question: “what is the right it confers?” by saying it is the right to equal protection of the law without discrimination, one has not got a satisfactory answer, nor got to the point of saying that it is a right not to be discriminated against in any respect under any circumstances.”

  1. [13]
    His Honour concluded at paragraph [94] that “…the rights of which s 10 speaks are human rights and fundamental freedoms which one can identify by reference to the Convention. The right to possess liquor is not such a right”.

Precedent

  1. [14]
    I am bound by the decision of the Court of Appeal in Morton. The majority (Chesterman JA at [100], with whom Holmes JA agreed, McMurdo P dissenting on this issue) concluded that the RDA does not impact upon the Liquor Act. I am also bound by that decision in respect of the issue of special measure (McMurdo P at [37], Chesterman JA at [109] and [117] (Holmes JA agreeing with Chesterman JA)).
  1. [15]
    Hence I do not need to consider further the extent or content of ‘human rights’ as discussed in detail in cases cited to me by counsel (Waters v Public Transport Corporation [1991] 173 CLR 349; Western Australia v Ward [2002] 213 CLR 1; and Bropho v WA (2008) FCR 59) and in Morton.
  1. [16]
    This appeal traverses similar issues as were determined in Morton, save for two contentions: firstly that there is a legal requirement for consultation and that such consultation did not occur and hence the legislation is invalid; and secondly that s 8 was enacted as an ‘extra-curial’ matter. Accordingly, I will discuss the issues raised generally in this appeal in more detail than might otherwise have been necessary, albeit in the context of an understanding that this Court, in respect of the issues in this appeal, is undoubtedly a way-point on a voyage to the Court of Appeal and possibly to the High Court.   

Legislative Provisions

(a) Liquor Act

  1. [17]
    The Liquor Act inter alia regulates the sale and supply if liquor. The objects of the Liquor Act are:

“3 Acts Objects

This Act’s Objects are -

  1. (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
  1. (b)
    …
  2. (c)
    …
  3. (d)
    …
  4. (e)
    to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence.
  5. (f)
    …
  6. (g)
    …”
  1. [18]
    The Liquor Act otherwise relevantly provides:

"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 s. 173H, have in possession more than the prescribed quantity of a type of liquor for the area, other than under the authority of a restricted area permit.

Maximum penalty -

(a) For a first offence - 500 penalty units; or

(b) for a second offence - 700 penalty units or six months imprisonment; or

(c) for a third or later offence - 1,000 penalty units or 18 months imprisonment."

  1. [19]
    A regulation may declare that a restricted area is an area to which s. 168B applies and such a regulation:

"  ... must state the quantity of a type of liquor that a person may have in possession in the restricted area."

  1. [20]
    A regulation may declare an area to be a restricted area and that, without limiting that generality, the community area may be declared a restricted area. Sections 173F, 173G and 173H of Part 6A of the Liquor Act provide 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 s. 168B applies.

(2) A regulation under sub section (1) must state the quantity of a type of liquor that a person may have in possession in the restricted area (the prescribed quantity) without a restricted area permit."

(b) Liquor Regulation

  1. [21]
    Part 8A of the Liquor Regulation provides that an area stated in a relevant schedule is a restricted area, and that s. 168B of the Liquor Act applies to all restricted areas, in respect of each of which the schedule is to prescribe the quantity and type of liquor that may be possessed.
  1. [22]
    Section 37A and 37B of the Liquor Regulation provide:

"37A  Declaration of restricted area - Act, s. 173G(1)

An area stated in a relevant schedule is a restricted area.

37B Declaration of prohibition of possession of liquor in restricted area - Act, s.173H.

(1) Each restricted area is an area to which s. 168B of the Act applies.

(2) The prescribed quantity of a type of liquor for a restricted area is the quantity of the type stated for the area in a relevant schedule."

  1. [23]
    Schedules 1A to 1R of the Liquor Regulation describe various restricted areas.  Schedule 1R relates to Palm Island and was inserted on 19 June 2006 by the Liquor Amendment Regulation (No 4) 2006 (SL 2006 No 79).  It provides: 

"Schedule 1R  PalmIsland

Sections 37A and 37B

(1) Areas declared to be restricted areas

Each of the following areas is a restricted area -

(a) the community area of PalmIsland Shire Council;

(b) any foreshore of the community area of the PalmIsland Shire Council;

(c) the jetty on Greater PalmIsland known as PalmIsland Jetty;

(2) Prescribed quantity

The prescribed quantity for each restricted area is -

(a)  for beer in which the concentration of alcohol is less than 4 per cent - 11.25L; and

(b) for any other liquor - 0."

  1. [24]
    In section 1R the "community area of the Palm Island Shire Council" is the whole of the local government area of the Palm Island Shire Council. The area over which the Palm Island Shire Council exercises its jurisdiction is its "community area."
  1. [25]
    In the explanatory notes for the Liquor Amendment Regulation (No 4) 2006 in paragraph 3, the objective of the legislation in Part 6A of the Liquor Act is stated to be to:

"….minimise harm caused by alcohol abuse and misuse and associated violence, and alcohol related disturbances or public disorder in Indigenous Communities. Part 6A provides for the declaration of restricted areas and the establishment of liquor possession limits in restricted areas."

(c) Analogous Commonwealth legislation

  1. [26]
    By way of analogy, in 2007 the Commonwealth Legislature enacted similar legislation in the Northern Territory National Emergency Response Act 2007 (Cth). The respondent referred to this legislation in its submissions. The Act, inter alia, restricts the possession, consumption, sale and transport of liquor in prescribed areas in the Northern Territory (namely, town camps). The object of the legislation is “to improve the well-being of certain communities in the Northern Territory”.
  1. [27]
    In section 132 the provisions of the legislation were stated to be “… for the purposes of the Racial Discrimination Act 1975, special measures”; and that “The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.” Of course, the Commonwealth can legislate to vary the terms or application of the RDA. The State, of course, cannot so legislate.

(d) Racial Discrimination Act

  1. [28]
    Section 10(1) of the RDA provides:

"10 Rights to equality before the law

  1. (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 person of another race, colour or national or ethnic region, 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."
  1. [29]
    Section 8 of the RDA provides:

“8 Exceptions

  1. (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 subsection 10(10 applies by virtue of subsection 10(3).”

(e) The International Convention

  1. [30]
    ‘The Convention relevantly provides as follows:

“Part I

Article 1

  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. 2.
    …
  3. 3.
    …
  4. 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 …”

The ‘Consultation’ Issue

  1. [31]
    The Liquor Act provides that:

“173I Consultation with community justice groups for declarations

  1. (1)
    This section applies if a community area is, or a community area or part of a community area is in –
  1. (a)
    an area to be declared under a regulation under section 173G to be a restricted area; or
  2. (b)
    a restricted area to be declared under a regulation under section 173H to be an area to which section 168B applies.
  1. (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.
  2. (3)
    Also, the Minister must consider a recommendation made by the community justice group about changing the declaration.
  3. (4)
    However, failure to comply with subsection (2) or (3) does not affect the validity of a regulation made for the subsection.”
  1. [32]
    Amendment (No. 4) to the Liquor Regulation in 2006 was made under the Liquor Act. The Explanatory Notes for the amendment state that the amendment is authorised by Sections 173G and 173H of the Liquor Act.
  1. [33]
    The objectives of the legislation are referred to in the following terms:

“3 Objectives of the legislation

The objective of Part 6A of the Liquor Act is to minimise harm caused by alcohol abuse and misuse and associated violence, and alcohol related disturbances or public disorder in Indigenous communities. Part 6A provides for the declaration of restricted areas and the establishment of liquor possession limits in restricted areas.”

  1. [34]
    The reasons for the amended regulation are referred to as:

“4 Reasons for the subordinate legislation

The Amendment Regulation will declare a restricted area for the community of PalmIsland. The Amendment Regulation is based on the recommendations of the Palm Island Community Justice Group (CJG) and PalmIsland Shire Council (Council).”

  1. [35]
    The Explanatory Notes refer to ‘consultation’ in the following terms:

“8 Consultation

  1. (a)
    Community

The CJG and Council for the Indigenous community of PalmIsland have recommended alcohol limits as part of their community alcohol management strategies.

  1. (b)
    Government

The Department of Aboriginal and Torres Strait Islander Policy and the Queensland Police Service were consulted in relation to the proposed Amendment Regulation.

The Office of Queensland Parliamentary Counsel has drafted the Amendment Regulation.

9 Results of consultation

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 PalmIsland Shire including all ten islands, the PalmIsland jetty located on Greater PalmIsland 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 PalmIsland 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.”

The Evidence about ‘consultation’.

  1. [36]
    The new or further evidence is directed to the issue of a “community consultation process” that the appellant disputes happened as a matter of fact, either at all or in a manner reflecting the intent of the legislation.
  1. [37]
    The deponents of affidavits are or were residents of Palm Island who has been associated with the Palm Island Aboriginal Shire Council, the Palm Island Community Justice Groups (both the statutory Group and the former non-statutory Group), Community elders and an educator.
  1. [38]
    The thrust of the affidavit evidence is that there was no or no real or effective consultation by the Queensland Government or by Queensland public servants or indeed, in one instance, the then Premier of Queensland, Mr Beattie: that is, there was no community forum or group consultative meeting about the Alcohol Management Plan, nor any notifications to that effect. Some deponents refer to there being differences of opinion in the community about an Alcohol Management Plan, one refers to a petition and others refer to the community – or some members of it – wanting to develop its own Alcohol Management Plan.
  1. [39]
    In effect, the tenor of the evidence is that if there was consultation it was a sham and that the Alcohol Management Plan was forced upon the community. Mr McAvoy submitted that the Alcohol Management Plan was rejected by the community. He submitted that it was open to find that the “wishes” of the community were not properly obtained and no genuine effort had been made to do so. He submitted that consultation was necessary.
  1. [40]
    Mr Hinson SC submitted that consultation was not necessary either in the particular factual circumstances or as a matter of law.

The Application for Leave

  1. [41]
    The issue is of sufficient importance and relevance and ought to be discussed and perhaps determined, to the extent that it is open for me so to do. Hence I grant the leave sought by the applicant.

Discussion

(a) The Evidence

  1. [42]
    The Explanatory Notes state that the two community bodies ‘made recommendations’; that the relevant government department and the Queensland Police Service were ‘consulted’; that the regulation ‘differed’ from the community bodies’ recommendations; that the Alcohol Management Plan was a compromise document developed to reflect divisions on the issue within the community; and that “extensive consultation has been undertaken with the community”.
  1. [43]
    The affidavit evidence deposes to the contrary so far as the latter statement in the Explanatory Notes is concerned. No minutes of Council or Justice Group meetings were produced to the Court. The affidavits were tendered without objection. To the extent that the deponents express their personal views, beliefs or understanding of the matters deposed I can accept them, to the extent that they are relevant to the grounds of appeal. To the extent that they express views purported to be held by divers others, whilst I can accept the statements of opinion as being genuinely held by the deponents, the weight afforded to them is entirely another matter. They are also not necessarily and objectively representative of the views of the people of Palm Island, there having been at the material time (as agreed by the parties to the appeal) a population of about 2000 on Palm Island.
  1. [44]
    If I was required to determine as a matter of fact whether any consultation was carried out, sufficiently broad or directed at relevant and critical questions, I would be unable to determine the issue upon the views purported to be held by divers others as deposed in the affidavits. Insofar as the views reflecting the personal belief or experience of the deponents is concerned, those views are limited in scope. They are insufficient for the purpose of determining a matter as broad as the issue about consultation.
  1. [45]
    The Explanatory Notes concede that there were differences of opinion about the Alcohol Management Plan in the community and that the Alcohol Management Plan the subject of the legislation was a compromise. It is open to infer that there was a consultation process that did take into account the views if the community despite the personal experience or expectation of the deponents.
  1. [46]
    To the extent that the question of a ‘special measure’ (which is the point in issue so far as consultation is concerned) involves considerations of factual matters, Brennan J, in Gerhardy v Brown [1984-1985] 159 CLR 70 (“Gerhardy”), wrote (at p. 141):

“There is a distinction between a judicial finding of a fact in issue between parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact. When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties.”

  1. [47]
    I conclude that if I considered that this issue required determination as a matter of fact, I could not find that there was no or no effective consultation such as to support the invalidity issue propounded by the applicant.

(b) The Law

  1. [48]
    However, the issue of ‘consultation’ is really a matter of law. It is upon that basis that the issue in this case is to be determined.
  1. [49]
    In Morton v Queensland Police Service [2009] QDC 233 I gave judgment in an  appeal arising from a conviction under the Liquor Act and in respect of issues that are similar to those in this matter. The issues in that appeal were considered and determined by the Court of Appeal in Morton (supra), to which I have referred. I make reference to my judgment in one respect only: in the hearing of the appeal before me the Respondent had initially sought leave to adduce evidence about consultation. I gave leave and an extensive affidavit was filed, but it was not read on the hearing of the appeal. Hence factual matters about the issue of consultation were not dealt with on that appeal; nor were they dealt with in the Court of Appeal, which, as the President wrote at [36], relied on the Explanatory Notes and the statement that extensive consultation had been undertaken.
  1. [50]
    In Morton, Chesterman JA, with whom Holmes JA agreed, wrote about the issue of consultation at [107] to [114]. His Honour doubted that consultation is a legal requirement for the validity of the regulation, enacted as a special measure.
  1. [51]
    That is the position taken by the Respondent in this appeal: that is, whatever one might make of any conflict that may be found as between the community members who deposed affidavits and the statements made in the Explanatory Notes, it does not matter and does not have to be resolved as an issue of fact because as a matter of law consultation is not necessary to make legislation enacted as a special measure valid.
  1. [52]
    The Appellant relied upon statements in Gerhardy at 135 per Brennan J; and Morton at [26]-[36] per McMurdo P.
  1. [53]
    Chesterman JA in Morton at [108] referred to Brennan J in Gerhardy and wrote:

“[108] The applicant founds this last complaint on a passage in the judgment of Brennan in Gerhardy. His Honour said (135):

“The purpose of securing advancement for a racial group is not established by showing that the branch of government … who takes the measure does so for the purpose of conferring what it … 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” ” (my underlining).

  1. [54]
    However, Brennan J was alone in considering that consultation, even agreement, was essential to the validity of legislation that was or was intended to be a special measure.
  1. [55]
    Further, in Morton McMurdo P observed at [31] that Brennan J “…did not categorically state that consultation was essential in order to constitute special measures under s 8.” Her Honour continued:

“There are prudent reasons for not making the desirability for consultation a mandatory pre-requisite for the application of s 8. There may be competing views within a group affected by proposed special measures as to whether the measures are appropriate”;

and

“Nevertheless, meaningful consultation with, and consideration of the wishes of, the beneficiaries of special measures is highly desirable.”

  1. [56]
    A similar view was expressed in Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37 at [191] – [194]. See also Bropho v Western Australia and Others (supra) at [42].
  1. [57]
    The respondent submitted that consultation is not required as a matter of law and referred, albeit in a different context, to Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 555 [8] and 557 [13] and [15].
  1. [58]
    In my view consultation cannot, as a matter of common sense and practicality, mean “to secure the consent or agreement of” a community. Further, there are no criteria by which one can judge the effectiveness of consultation: See in another context Meshlawn P/L & Anor v State of Queensland & Anor [2010] QCA 19. 
  1. [59]
    I agree that consultation is not required as a matter of law, however desirable it may be in a particular case, depending on one’s perspective of the matter. Further, in this case I do not consider the affidavit evidence is sufficient to displace the strong inference open from the Explanatory Notes that consultation did occur as a matter of fact.
  1. [60]
    In my view the appellant cannot succeed on this issue.

The ‘extra-curial’ issue

  1. [61]
    The issue in simple terms is whether legislation enacted as a special measure by the Legislature is an extra curial matter and therefore review by the Court is either not appropriate or is excluded. The appellant submitted that s 10 of the RDA requires a court to examine the impugned laws and that s 8 of the RDA is therefore also required to be examined by a court. Hence it was submitted that the issue of whether there was any or any sufficient consultation about the Alcohol Management Plan in this case was a subject for curial consideration.
  1. [62]
    The issue of whether or not a racial group or perhaps arguably, individuals, require protection in the context of equality of human rights and fundamental freedoms is a matter for the Legislature – not for the courts.
  1. [63]
    There is no evidence that the laws were not made in good faith for and reflect the purpose specified in section 173F.
  1. [64]
    If it was considered reasonable for the Legislature to make the political assessment that there is a need for such protection, then the court should not inquire further.
  1. [65]
    The respondent submitted in effect that the legislation was enacted pursuant to a ‘certificate’ and hence review by a court was not appropriate.
  1. [66]
    As to whether the question was one properly for the court to consider, Brennan J in Gerhardy wrote (at pp. 137-138):

“Whether a measure is needed and is likely to alter the circumstances affecting 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.”

and (at pp.161-162):

“This provision can also only be viewed as being for the advancement of the Pitjantjatjaras. The question whether the Pitjantjatjaras are a racial or ethnic group requiring protection must ultimately be a matter for the legislature and, provided that they are capable of being so regarded, then it is not for this Court to inquire further.”

  1. [67]
    In Graham Barclay Oysters (supra) the issue of a curial review of the extent of a State’s power to regulate industry, in the context of whether a duty of care resided in the State with respect to consumers of a commercially produced food product and the reasonableness of the conduct of the State, was considered. The Court held that “government decisions about the proper extent of regulation of private or commercial behaviour, or of a particular industry, are inappropriate for judicial review”.
  1. [68]
    The appellant referred to an Opinion of the United Nations Committee on the Elimination of Racial Discrimination in Narrainen v Norway [1994] UNCERD1 in respect of an issue arising under s 5 (a) of the Convention – the right to equal treatment before tribunals. The factual circumstances and the Opinion of the Committee is not relevant except that the appellant referred to it, so far as I can determine, in the context of a statement of the Committee (at paragraph 9.2) that “The Committee notes that the rule laid down in article 5 (a) applies to all types of judicial proceedings…”.
  1. [69]
    In my view there is no substance in the submission on this issue. The Legislature has the power to regulate the liquor industry in the manner provided in the Liquor Act and its reasons for so doing – the minimisation of harm caused by alcohol abuse and misuse and associate violence and alcohol-related disturbances, or public disorder, in a locality, in declared restricted areas of the State – are not matters for the Court to inquire into.
  1. [70]
    Accordingly, the appellate cannot succeed on this issue.

Special Measure

  1. [71]
    In the final analysis, I do not have to further consider whether the legislation is a ‘special measure’. So much follows from Morton and from my discussion about the consultation issue and the extra curial issue.

Conclusion

  1. [72]
    I am bound by the decision in Morton. The appellant’s case, so far as it relies on the two issues specifically discussed and determined in this judgment, cannot succeed. The appeal is dismissed.

Costs

  1. [73]
    The respondent is entitled to its costs of and incidental to the appeal. The appeal raised issues of public importance and constitutional validity that in my view warrant an award of costs in excess of the scale amounts.

Orders

  1. 1.
    Appeal dismissed.
  2. 2.
    The appellant to pay the costs of the respondent of and incidental to the appeal in an amount in excess of the scale amounts, as may be agreed between the parties or otherwise as assessed by the Court.
  3. 3.
    Liberty to apply for assessment of costs.
Close

Editorial Notes

  • Published Case Name:

    Joan Monica Maloney v Queensland Police Service

  • Shortened Case Name:

    Maloney v Queensland Police Service

  • MNC:

    [2011] QDC 139

  • Court:

    QDC

  • Judge(s):

    Durward DCJ

  • Date:

    27 Jul 2011

Litigation History

EventCitation or FileDateNotes
Primary Judgment(No citation)27 Oct 2010Ms Maloney was convicted in the Magistrates Court of an offence against s 168B(1) Liquor Act 1992 (Qld), namely, having in her possession a 1125 ml bottle of Jim Beam bourbon and a 1125 ml bottle of Bundaberg rum (three-quarters full) in a public place on Palm Island within a restricted area declared under s 173H Liquor Act. She was fined $150 in default one day's imprisonment.
Primary Judgment[2011] QDC 13927 Jul 2011Sections 168B, 173G and 173H of the Liquor Act and ss. 37A and 37B of the Liquor Regulation 2002 and the Liquor Amendment Regulation (No 4) 2006 were not invalid by operation of s. 10 of the Racial Discrimination Act 1975 (Cth) and s.109 of the Constitution. Appeal against conviction dismissed: Durward DCJ.
Appeal Determined (QCA)[2012] QCA 105 [2013] 1 Qd R 32, (2012) 262 FLR 17220 Apr 2012The relevant provisions were racially discriminatory, however there was no breach of s.10 Racial Discrimination Act 1975 (Cth) because of the validity of those provisions as special measures enacted under s.8 Racial Discrimination Act 1975 (Cth). Appeal dismissed with costs: Chesterman JA and Daubney J concurring, Margaret McMurdo P dissenting in part.
Special Leave Granted (HCA)[2012] HCATrans 24305 Oct 2012Special leave granted: French CJ and Crennan J.
HCA Judgment[2013] HCA 28; (2013) 252 CLR 168, (2013) 298 ALR 308, (2013) 87 ALJR 75519 Jun 2013Appeal dismissed. Decision of the Queensland Court of Appeal affirmed: French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ.

Appeal Status

Appeal Determined (QCA) - Appeal Determined (HCA)

Cases Cited

Case NameFull CitationFrequency
Aurukun Shire Council v CEO Office of Liquor Gaming and Racing in the Department of Treasury[2012] 1 Qd R 1; [2010] QCA 37
2 citations
Jump To
Cite 1 - [2010] QCA 37
Cite 2 - [2010] QCA 37
Bropho v Western Australia and Others (2008) 169 FCR 59
3 citations
Jump To
Cite 1 - (2008) 169 FCR 59
Cite 2 - (2008) 169 FCR 59
Cite 3 - (2008) 169 FCR 59
Gerhardy v Brown (1985) 159 CLR 70
4 citations
Jump To
Cite 1 - (1985) 159 CLR 70
Cite 2 - (1985) 159 CLR 70
Cite 3 - (1985) 159 CLR 70
Cite 4 - (1985) 159 CLR 70
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
2 citations
Jump To
Cite 1 - (2002) 211 CLR 540
Cite 2 - (2002) 211 CLR 540
Hammercall Pty Ltd v Gold Coast City Council [2009] QCA 233
8 citations
Jump To
Cite 1 - [2009] QCA 233
Cite 2 - [2009] QCA 233
Cite 3 - [2009] QCA 233
Cite 4 - [2009] QCA 233
Cite 5 - [2009] QCA 233
Cite 6 - [2009] QCA 233
Cite 7 - [2009] QCA 233
Cite 8 - [2009] QCA 233
Harding-Price v Medical Board of Queensland [2010] QCA 19
1 citation
Jump To
Cite 1 - [2010] QCA 19
Meshlawn Pty Ltd v State of Qld [2010] QCA 181
1 citation
Jump To
Cite 1 - [2010] QCA 181
Morton v Queensland Police Service [2010] QCA 160
1 citation
Jump To
Cite 1 - [2010] QCA 160
Morton v Queensland Police Service [2009] QDC 233
1 citation
Jump To
Cite 1 - [2009] QDC 233
Narrainen v Norway [1994] UNCERD 1
2 citations
Jump To
Cite 1 - [1994] UNCERD 1
Cite 2 - [1994] UNCERD 1
State of Western Australia v Ward (2002) 213 CLR 1
2 citations
Jump To
Cite 1 - (2002) 213 CLR 1
Cite 2 - (2002) 213 CLR 1
Walters v Public Transport Corporation (1991) 173 CLR 349
2 citations
Jump To
Cite 1 - (1991) 173 CLR 349
Cite 2 - (1991) 173 CLR 349

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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