Rees, Neil --- "Discrimination: What is it?" [1985] AboriginalLawB 1; (1985) 1(12) Aboriginal Law Bulletin 2

• Discrimination: What Is It?

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Discrimination: What is it?

by Neil Rees

On 20 and 21st August, 1984, the High Court heard argument in the case of Gerhardy v Brown. On 21 July, 1983, Millhouse J. of the South Australian Supreme Court decided that section 19 of the Pitjantjatjara Land Rights Act 1981 (S.A.) (PLRA) was inconsistent with section 9 of the Racial Discrimination Act, 1975 (Cth) (RDA) and therefore invalid by reason of the operation on section 109 of the Constitution.[1]

An appeal was lodged against this decision and the matter was removed into the High Court on the application of the South Australian Attorney-General. The High Court's reserved decision is expected some time in early 1985.

This case may have an extraordinary impact upon state land rights' legislation, Commonwealth race discrimination legislation and the scope of the external affairs power in the Commonwealth Constitution. Even though the decision has not yet been delivered, it is instructive to consider the submissions made by the parties and the comment from the Bench during argument.

The decision by Millhouse J., at first instance, has already been the subject of strong criticism.[2] Millhouse J. decided that s.19 of the PLRA, which prevented entry upon Pitjantjatjara lands without the permission of Anangu Pitjantjatjaraku[3], was a law which led to a restriction or preference on the basis of race which impaired the exercise of the right to freedom of movement and therefore contravened s.9 of the Racial Discrimination Act. In order to dispose of the case before him, Millhouse J. needed to go no further than to declare s.19 of the PLRA invalid, but he strongly hinted that those sections of the PLRA which granted land in fee simple to the Pitjantjatjara peoples may also be invalid.

During argument before the High Court, three issues of significance emerged. These were:-

1. The ambit of ss.9 and 10 of the Racial Discrimination Act.

2. The operation of s.8(1) of the Racial Discrimination Act which deals with
special measures' which are not subject to the prohibitions against discrimination contained in the Act.

3. The steps which the Commonwealth Parliament may take when acting under the external affairs power to implement a treaty ratified by the Commonwealth Government.

Before considering these issues, mention should be made of the possible impact upon State land rights legislation of the recent High Court decision in University of Wollongong v Metwally.[4]

In Viskauskas v Niland[5] the High Court decided that the race discrimination provisions of the New South Wales Anti-Discrimination Act 1977 (ADA [NSW]) were invalid by virtue of s.109 of the Constitution because the Commonwealth legislation, the Racial Discrimination Act, covered the field of race discrimination. The Commonwealth subsequently enacted s.6A of the Racial Discrimination Act, which sought to have the race discrimination provisions of the ADA (NSW), both retrospectively and prospectively, by declaring that the Commonwealth did not and had never intended to cover the field of race discrimination.

The High court, by 4-3 majority, held that s.6A of the RDA could not operate retrospectively to save the relevant provisions of the ADA (NSW) because once s.109 of the Constitution had operated to invalidate State law its effect could not be swept aside by retrospective Commonwealth legislation. Therefore, if the High Court invalidates all or part of the PLRA in Gerhardy v Brown it may be impossible for the Commonwealth to retrospectively amend the RDA to save any provisions of the PLRA which are declared invalid.[6]

Further, if the High Court determines that the grant of land under the PLRA to Anangu Pitjantjatjaraku contravenes the RDA, or if (as is more likely) it has no need to determine this issue but suggests in its reasoning that the grant may contravene the RDA, all state land rights legislation may be at risk. Even if the Commonwealth wished to legislate retrospectively to overcome such a result, the decision in Metwally means that it would be confronted with a constitutional minefield.[7]

In Gerhardy v Brown, Millhouse J. chose to invalidate s.19 of the PLRA by using s.9, rather than s.10, of the RDA.

Section 9 is a 'catch-all' provision, drawn straight from Article 1, paragraph 1, of the International Convention on the Elimination of all Forms of Racial Discrimination (the Convention) which declares unlawful all forms of racial discrimination covered by the Convention. Section 10 is an unusual 'equal protection' provision which is directed towards racially discriminatory legislation.

Traditionally, 'equal protection' clauses only invalidate those laws which restrict the rights of an identifiable racial group.[8] However, it may be that s.10 seeks to expand those laws which grant rights to one racial group which are denied to others, as well as to invalidate those laws which cast restrictions upon the rights of one racial group when other racial groups do not face such restrictions.

During argument before the High Court in Gerhardy v Brown, the ambit of ss.9 and 10 of the RDA was discussed. Some members of the Bench expressed concern that Millhouse J. had relied upon the wrong provision in the Commonwealth Act when he held that s.19 of the PLRA contravened s.9 of the RDA. It was argued that if any racial discrimination existed in this case it was wrought by the express terms of the PLRA and therefore the controlling section in the RDA must be s.10 which is directed towards statutory racial discrimination. Section 9 of the RDA, it was argued, is directed towards an act done by a person and a statute passed by the South Australian parliament could not fall within that description.[9]

Section 9 of the RDA is an unfortunate general provision in the midst of legislation directed towards discrimination in specific fields such as employment, the provision of goods and services and access to public facilities. Its exercise lies undoubtedly in the fact that the RDA was drafted at a time when the scope of the Commonwealth's external affairs power was unclear and caution dictated faithful adherence to the terms of the international instrument being implemented.

Section 10 is also not an easy provision. Mr. Merkel Q.C., who appeared for the Anangu Pitjantjatjaraku, argued that s.10 only applies when a law has the negative effect of denying persons of a particular race the human rights and fundamental freedoms enjoyed by members of other races. It could not, he asserted, apply when persons of one race are granted rights not given to all others because the section requires that members of a particular race be denied rights. This argument is interesting because it is difficult to determine how s.10 is constitutionally efficacious if it is designed to give to all other racial groups the rights granted to one particular group by State legislation. his clear that if a State statute deprives one racial group of rights enjoyed by all others, s.10 of the RDA, by force of s.109 of the Constitution, can operate to invalidate the State statute. However, if, as was argued in this case, a State statute grants rights to one racial group only, there is nothing in the Constitution which permits s.10 to operate on the State law to expand the grant of rights to all racial groups. If s.19 of the PLRA contravenes s.10 of the RDA by granting to Pitjantjatjara peoples a right of exclusion from private property not enjoyed by an other members of the community, the Commonwealth statute cannot bring about an expansion of South Australian legislation so that all persons in the State now enjoy that right by dint of State law. Section 109 of the Constitution can only invalidate rather than create state legislation. The only way in which s.10 of the RDA can have such an expansionary effect would be for it to create Commonwealth statutory provisions which granted to all persons in a state the rights granted to a particular racial group by the state legislation. Whether a provision in a Commonwealth statute can operate to create further Commonwealth legislation is a novel issue which may require detailed analysis at some later stage.

At the very least the High Court's decision in Gerhardy v Brown should clearly indicate which provision in the RDA is to be the controlling section when it is alleged that the terms of a statute are racially discriminatory.

Section 8(1) of the RDA declares that the Act's proscriptions against racial discrimination do not apply to 'special measures'. This provision, like s.9, demonstrates an understandably conservative approach to the 'external affairs' power. In order to determine which 'special measures' are excepted from the Act we are directed to the terms of the Convention. As Nettheim and Rees stated "the Convention does not clearly address the claims of indigenous populations for differential status on a long term basis."[10] Article 1, paragraph 4, of the Convention states that special measures taken to ensure that racial groups may have equal enjoyment of human rights and fundamental freedoms shall not be racial discrimination provided that such measures do not "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." Many questions arise: who determines what is a 'special measure' for the purposes of s.8 of the RDA; how do we determine when a 'special measure' has achieved its objectives and who determines that issue; is it necessary for a 'special measures' law to have a sunset clause in order to comply with the RDA.

These questions were raised during argument before the High Court in Gerhardy v Brown and it seems highly likely that the Court will find it necessary to address some of them in order to determine the case.

The primary argument put by the Solicitors-General for South Australia and the Commonwealth and counsel for the Anangu Pitjantjatjaraku was that s.19 of the PLRA contravened neither s.9 nor s.10 of the RDA. Therefore, in their submission, there was no need to consider the operation of the 'special measures' provision. However, if comments from the Bench can betaken as a guide, this argument may not be successful. It was argued by counsel that s.19 of the PLRA does not discriminate against non-Pitjantjatjara people merely because that section grants to the owners of the land the power (similar to, but not the same as, statutory and common law "trespass" provisions) to exclude strangers from that land. Although that power is somewhat stronger than the general law provisions, it was suggested that it is quite reasonable for traditional owners of land to be given greater exclusionary powers than other members of the community. For this argument to succeed the concept of traditional ownership must receive legal recognition, and this concept, rather than race, must be seen as the controlling factor. In other words, so the argument runs, it is not valid to compare the power of exclusion enjoyed by traditional owners with the exclusionary power possessed by other owners of land because, to employ the terminology used in State anti-discrimination legislation, unlawful discrimination only occurs when persons in the same or similar circumstances are treated differently. If. traditional ownership is a different interest in land to "normal" freehold ownership then it is not discriminatory to grant those traditional owners powers not possessed by others.

Mr. Malcolm Gray Q.C., the South Australian Solicitor General, also argued that s.19 of the PLRA did not grant a 'right' within the meaning of s.10 of the RDA. The 'rights' protected by s.10 are drawn from Article 5 of the Convention, and the only relevant right, "freedom of movement", (which was relied upon by Millhouse J. in the South Australian Supreme Court) was not transgressed by s.19. It could not be held, he suggested, that "freedom of movement" was meant to be an absolute right because the Convention recognised other rights, such as "the right to own property" which implicitly cast restrictions upon the right of "freedom of movement".

This argument was met with the suggestion from the Bench that it may be the rights of Pitjantjatjara people which are inhibited by s.19 of the PLRA because, unlike other owners of land, they cannot freely invite guests onto their land. The PLRA provides that all persons, other than the traditional owners, must make an application to the Anangu Pitjantjatjaraku and receive a permit before entering the land. Mr. Merkel Q.C. answered this suggestion by arguing that the ability to freely invite persons onto land was not a "right" sought by or recognised by traditional owners of land, even though it may be a "right" recognised by other members of the community. In effect his argument was a return to the point made earlier that discrimination occurs only when like cases are not treated alike.

The difficulty for the courts when confronted with this argument is to determine whether the circumstances of one racial group differ so markedly from other groups in the community that what may at first appear to be discriminatory legislative treatment is, in reality, a considered legislative response to the needs or aspirations of that group. In the end, one only escapes legitimizing such practices as apartheid, by use of this argument that different racial groups may in some circumstances be treated differently, by acceptance of the notion that discrimination does not occur when the group which is singled out for ostensibly different treatment concedes that its circumstances differ so radically from the rest of the community that is is not possible to compare it to other groups and therefore its treatment cannot in fact be said to be different to that meted out to others.

The difficulties created by the 'special measures' provision in the RDA demonstrate the folly of simply repeating the terms of an international instrument in domestic legislation. Such action may, as happened in this case, result in a court being charged with determining an issue which is properly one for the legislature. As members of the Bench pointed out, Article 1, paragraph 4 of the Convention is not well drafted, and it appears impossible for a court to reasonably determine, without some legislative guidance, whether a statute is a 'special measure', whether it leads to the maintenance of separate rights for different racial groups or whether what was once a valid `special measure' should cease to exist because its objectives have been achieved.

If the High Court concludes that s.19 of the PLRA does contravene either s.9 or s.10 of the RDA it will have an extremely uncomfortable task in determining whether s.19 is a 'special measure' and thereby saved by s.8 of the RDA. The PLRA does not expressly state that it is a 'special measure' so the Court must either look to extraneous materials, such as parliamentary debates and governmental reports, or rely upon judicial notice to determine this threshold question. If it is found to be a 'special measure' the Court must then ask whether the PLRA leads to the maintenance of separate rights for Pitjantjatjara people. The Act grants land in perpetuity but it is within the power of the South Australian Parliament to repeal or amend the PLRA at any time, thereby extinguishing the separate rights (if any) granted to the traditional owners. Finally, the objectives of the PLRA are not completely dear. However, even if the Court is bold enough to identify the Act's objectives, the task of determining whether those objectives have been achieved is well-nigh impossible.

There have not been many cases dealing with the permissible limits of legislative action when implementing a treaty or convention under the external affairs power. This issue was not considered in Koowarta v Bjelke-Petersen[11] because it was conceded by all parties that the relevant provisions in the RDA, s.9 and s.12, did give effect to the terms of the Convention. In the Dams Case[12] the senior member of the majority, Mason. J., rejected the contention that once the Commonwealth has entered into a treaty it may legislate with respect to the subject matter of the treaty as if it were a separate head of legislative power. In order to be valid "the law must conform to the treaty and carry its provisions into effect".[13] Brennan J.[14] quoted with approval the statement by Menzies J. in the Second Airlines Case that legislation implementing a treaty is valid "if it can fairly be regarded as providing a way of doing what the Commonwealth has undertaken to do; the choice of ways and means being a matter essentially for the Parliament."[15] Murphy J. took a somewhat expansive view and declared that whilst the legislature is confined to reasonably appropriate implementation of the treaty provisions it need not implement all of the treaty provisions.[16] Deane J. stated that whilst it is up to Parliament to determine the appropriate means of implementing the terms of a treaty the municipal law must comply with or carry into effect the provisions of the treaty in order to be valid.[17]

Accordingly, it appears that the Commonwealth can move far beyond the mere repetition of the words of the Convention in the RDA. It could, for example, declare that all Aboriginal land rights legislation shall be regarded as a 'special measure', for the purposes of Article 1 paragraph 4, and shall remain as a special measure until the Commonwealth parliament declares otherwise. So long as a law, declared to be a 'special measure', may be reasonably classified as such, it is unlikely that the High Court would consider it necessary to move beyond the legislative declaration. Alternately, the RDA could be amended to provide that the responsible Minister may declare any State or Commonwealth law to be a 'special measure'. If the Minister was shown to have properly considered all relevant matters it is again unlikely that the High Court would consider it necessary to embark upon its own examination of compliance with Article 1 paragraph 4 of the Convention.

The High Court's decision in Gerhardy v Brown may have a profound effect upon the future of Commonwealth and State land rights legislation. It may also tell us, a little more about the meaning of some . of the illusive provisions in the Commonwealth's racial discrimination legislation.

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[1] (1983) 49 ALR 169.

[2] See Nettheim and Rees, "Discrimination and Land Rights' (1903) 9 AboriginalLB 2 and Rowe, 'Land rights as property rights' (1984) 9 Legal Services Bulletin 130.

[3] This body is the corporation set up under the PLRA to hold title to and to administer the land.

[4] Unreported, 22 November, 1984.

[5] [1983] HCA 15; (1963) 57 ALJR 414.

[6] Two members of the High Court in Metwally, Mason and Murphy JJ, suggested complex devices by which the Commonwealth and a State may legislate retrospectively to save State laws invalidated by the operation of the RDA, but as such action would undoubtedly be subjected to further constitutional challenge it is not possible to confidently assert that it is constitutionally possible to retrospectively cure a finding that a State law contravenes the RDA.

[7] See note 6.

[8] See P.G. Polyviou, The Equal Protection of the Laws (London 1980).

[9] It is of interest that in the only other reported case involving a claim that legislation contravened the RDA the Full Court of the Federal Court looked at the application of s.9, rather than s.10, of the RDA. The outcome of Lewis v Trebilco [1984] FCA 93; (1984) 53 ALR 581. The outcome of this case may have been different if the relevant Norfolk Island Ordinance had been subjected to a challenge based on s.10 of the RDA.

[10] Nettheim and Rees supra note 2 at 3.

[11] [1982] HCA 27; (1982) 56 ALJR 625.

[12] Commonwealth v. Tasmania [1983] HCA 21; (1983) 57 ALJR 450.

[13] . Id. at 409.

[14] Id. at 533.

[15] Airlines of N.S.W. Pty. Ltd. v New South Wales [No. 2] [1965] HCA 3; (1965) 113 CLR 54 at 136.

[16] [1983] HCA 21; 1983 57 ALJR 450 at 506.

[17] Id. at 545.