Willheim, Ernst --- "Robinson v Australian Electoral Commission and Stephen Brown" [1994] AboriginalLawB 54; (1994) 3(70) Aboriginal Law Bulletin 13

• Robinson V Australian Electoral Commission And Stephen Brown
• The Plaintiff's Argument
• The Respondents' Argument
• The Decision
• Conclusion

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Robinson v Australian Electoral Commission and Stephen Brown

The Federal Court of Australia, Spender J

15 August 1994

by Ernst Willheim

The Federal Court has rejected a claim by a non-Aboriginal person that, by virtue of the operation of the Racial Discrimination Act 1975 (Cth) (the RDA) on the Aboriginal and Torres Strait Islander Act 1989 (Cth) (the ATSIC Act), he was entitled to nominate as a candidate in the ATSIC elections.

Robinson sought to nominate as a candidate in the elections for the Townsville Regional Council. By virtue of ss101 and 102 of the ATSIC Act, entitlement to vote, to nominate candidates and to stand for election, were all restricted to Aboriginal and Torres Strait Islander persons. It was not in dispute that Robinson, and the persons who nominated him, were not Aboriginal. All said they were of Anglo-Saxon or Celtic origin. Robinsor’s nomination was rejected by the Regional Returning Officer. Robinson then sought review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), of the decision to reject his nomination and a declaration that he was entitled to be nominated. In support of his application, Robinson contended that rejection of his nomination constituted racial discrimination for the purposes of s9 of the RDA. and was unlawful. He also claimed that, by virtue of slO(1) of the RDA, he was entitled to enjoy the right to vote at the election to the same extent as Aboriginal persons or Torres Strait Islanders.

The validity of the ATSIC Act was not challenged.

The plaintiff's argument

In support of his claim that the RDA applied to the ATSIC Act, Robinson argued, in reliance on Viskauskas v Niland [1983] HCA 15; (1982) 153 CLR 280, that the RDA was a complete statement of the law with respect to racial discrimination in Australia, it provided a mechanism by which effect was given to enumerated human rights and fundamental freedoms, and it ensured that there was equality before the law in relation to the exercise of those rights and freedoms. By implementation of the RDA, the Commonwealth had clearly enunciated an intention to be bound by the obligations cast upon it by the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention) to eliminate racial discrimination in all its forms. It was submitted that it would be consistent with the international arrangements entered into by the Commonwealth to regard an exercise of power under s5l(xxvi) of the Constitution as not intended to offend the Convention and the RDA without a clearly stated intention to suspend the operation of the RDA. It was also submitted that the race power was 'subject to the Constitution' and the implications arising therefrom and, in the context of the existence of the. Convention and of the RDA, the implications must extend to include freedom from racial discrimination in relation to the free and equal exercise and enjoyment of human rights and fundamental freedoms. The right to vote was such a right or freedom.

Against this background it was argued that sl0 of the RDA represented a direction to the court as to the manner in which it was to interpret a discriminatory law where that law purported to restrict the enjoyment of an enumerated right to persons of a particular race. Section 10 of the RDA did not invalidate ssl0l and 102 of the ATSIC Act, but it operated to ensure that Robinson had the same right to vote as Aboriginal persons. Because sl0l(a) of the ATSIC Act directly concerned a matter within the contemplation of the RDA, that is to say, a racial inequality in relation to the exercise of a human right or fundamental freedom, slO ofthe RDA operated to extend that right to include persons of any other race.

In anticipation of argument that the ATSIC Act was a 'special measure', it was submitted that a discriminatory restriction upon the right to vote and nominate for election was unsupportable and that while a special measure may supplement formal equality before the law, it could not supplant it. It was also claimed that the persons entitled to vote and nominate extended far beyond the range of those within the contemplation of the special measure exception. It was further contended that slOl of the ATSIC Act would not meet a test of proportionality; denial of the right to vote and therefore to nominate was a gross violation of that right for tens of thousands of Australian citizens in the Townsville region. Also, slOl did not satisfy the Convention criteria relating to a special measure.

It was also argued that, as virtually all ATSIC's powers and functions could be delegated to the Chief Executive Officer, who did not have to be Aboriginal, it could not be said to be a central thrust of ATSIC's functions that the Commissioners need be exclusively of Aboriginal or Torres Strait Islander descent.

The respondents' argument

The respondents drew the Court's attention to the provision in clause 2 of Schedule 4 to the ATSIC Act that the validity of any election may be disputed by a petition addressed to the Court and not otherwise and submitted that the onus was on the applicant to satisfy the Court that it had jurisdiction. Reference was also made to Berrill v Hughes (1985) 59 ALJR65 and McKenzie v Commonwealth [1984] HCA 75; (1985) 59 ALJR 190. Attention was drawn to the fact that none of the other candidates (including the person who had been declared elected) were parties or had been served. The Court did not deal with the jurisdictional issues in its decision.

On the substantive issue, the respondents submitted that the decision of the Regional Returning Officer to reject the applicant's nomination was correct since the nomination did not comply with the ATSIC Act (or with the Regional Council Election Rules). The argument that the ATSIC Act was subject to the RDA was untenable and should be rejected. It was argued that the ATSIC Act was essentially discriminatory in its nature and the Act discriminated, throughout, by references to race or ethnic origin. It was an Act to further the economic, social and cultural development of Aboriginal and Torres Strait Islander persons and to ensure their maximum participation in the formulation and implementation of government policies that affected them. Consistently with the scheme of the Act, ssl0l(a) and 102(a) directly discriminated on the basis of race. There could be no room for the operation of the RDA where Parliament had in terms authorised that which was discriminatory.[1]

Reference was made to the title of the Act which made it clear that the new Commission was to be an Aboriginal and Torres Strait Islander Commission and to the objects of the Act which referred to participation of Aboriginal and Torres Strait Islander persons in the Formulation of policies and implementation of policies that affected them, the development of self-management and self-sufficiency among Aboriginal and Torres Strait Islander persons and so on. Aboriginal and Torres Strait Islander persons were defined by reference to race and ethnic origin respectively.

The scheme of the Act included provision for loans and grants to Aboriginal and Torres Strait Islander persons and the establishment of new institutions, particularly ATSIC itself and Regional Councils: "ATSIC is to combine, in the one organisation, the means for Aboriginal and Torres Strait Islander people to have a real say in the management of their own affairs."[2] Regional Councils were "the linchpin of empowerment for the Aboriginal and Tones Strait Islander people .[3] The clear purpose was to provide new Aboriginal and Torres Strait Islander organisations for management of Aboriginal and Torres Strait Islander Affairs. Consistently with this purpose, eligibility to vote and to stand for election were confined to persons who were Aboriginal or Torres Strait Islander.

The contrary view would mean, for example, not only that persons who were neither Aboriginal nor Torres Strait Islander could vote at Regional Council elections and stand for election, but also that such persons would be eligible for loans and grants, which was absurd.

It was also argued that the ATSIC Act, being later in time than the RDA, prevailed to the extent of any inconsistency.[4]

It was further argued that if (contrary to the view for which the respondents contended) the ATSIC Act was to be read subject to the RDA, it constituted a 'special measure for the purposes of Article 4(1) of the Convention and that, by virtue of s8 of the RDA, ss9 and 10 did not apply. The Court should apply the 4 indicia of a special measure set out by Brennan J in Gerhardy v Brown (1984-1985)159 CLR 70,133; see also Deane J at 149. The respondents sought to tender published material describing Aboriginal disadvantage,[5] but the Court was not receptive to 'evidence' otherwise than by way of sworn testimony. It was further submitted that the scheme of the Act was capable of being reasonably considered to be "appropriate and adapted to" the needs of Aboriginal and Torres Strait Islander people. In reliance on Gerhardy v Brown it was submitted that it was not the function of the Court to determine whether the provisions were the most appropriate ones to achieve or whether they would in fact achieve the particular purpose. The Court should accept the political assessment of the Parliament.[6]

The decision

hi dismissing the application, Spender J substantially upheld the submissions on behalf of the respondents. In particular, he held that the ATSIC Act discriminates throughout by reference to race and that the Act was discriminatory in its nature. Sections 101(a) and 102(a) directly discriminated on the basis of race. The discrimination apparent in the ATSIC Act was the essence of it. The Commonwealth Parliament had in terms authorised that which was discriminatory and there was no room for the operation of the RDA. Reference was made to the reasoning of Lockhart J in Pareroultja v Tickner [1993] FCA 465; (1993) 42 FCR 32, 46. Spender J also upheld the respondents' submission that if the provisions of the ATSIC Act did in fact conflict with the provisions of the RDA, the ATSIC Act, being the later Act, prevailed to the extent of any inconsistency. He agreed with the submission of the respondents that the applicant's contention would mean not only that persons who were neither Aboriginal nor Torres Strait Islander could vote at Regional Council elections and stand for elections, but also that such persons would be eligible for grants and loans which would frustrate one of the central objects of the Act.

Spender J went on to say that if he was wrong and the ATSIC Act was to be read subject to the RDA, then the ATSIC Act constituted a 'special measure', and, as a consequence, ss9 and 10 of the RDA did not apply to the ATSIC Act. That the ATSIC Act was a 'special measure' was demonstrated, inter alia, by the objects of the Act in s3 (Spender J did not refer to any indicia of Aboriginal disadvantage). As to the appropriateness of the provisions adopted to achieve the needs of Aboriginal people, Spender J took the view that, subject to reasonableness, it was the political assessment of the Parliament as to what is appropriate which was definitive and to which the Court should defer.

Conclusion

In light of this decision and the earlier Full Court decision in Pareroultja v Tickner it is now clear that attempts to use the RDA to frustrate the operation of legislation enacted for the special benefit of Aboriginal and Torres Strait Islander people are doomed to fail.

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[1] Pareroultja v Tickner [1993] FCA 465; (1993) 42 FCR 32, Lockhart J (O'Loughlin and Whitlam JJ concurring).

[2] Hansard, House of Representatives, 4 May 1989, p1995.

[3] Hansard, House of Representatives, 18 August 1993, p158,25 November 1993, p3761

[4] Pearce and Geddes, Statutory Interpretation in Australia (3rd ed, 1988) paras 7.9-7.13; South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603; Chu Cheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 7475, McHugh J.

[5] Royal Commission Into Aboriginal Deaths In Custody, National Report, especially Vol.2, Ch.11.; Aboriginal Deaths In Custody, Overview of the Response by Governments to the Royal Commission, ALPS, 1992, especially ppl, 5, 19-20; Social Justice for Indigenous Australians, 1993-94, AGPS,1993, especially pp10-14.

[6] Gerhardy v Brown (19841985)159 CLR 70,105 Mason J,138 Brennan J,149 Deane J.