Aurukun Shire Council v CEO, Liquor Gaming & Racing in Dept of Treasury; Kowanyama Aboriginal Shire Council v CEO of Liquor, Gaming & Rac ing [2010] HCATrans 293 (12 November 2010)

Last Updated: 18 November 2010

[2010] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B11 of 2010

B e t w e e n -

AURUKUN SHIRE COUNCIL

Applicant

and

CEO, LIQUOR GAMING & RACING IN DEPT OF TREASURY

Respondent

Office of the Registry
Brisbane No B12 of 2010

B e t w e e n -

KOWANYAMA ABORIGINAL SHIRE COUNCIL

Applicant

and

CHIEF EXECUTIVE, OFFICE OF LIQUOR, GAMING & RACING

Respondent

Applications for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 NOVEMBER 2010, AT 9.32 AM

Copyright in the High Court of Australia

__________________

MR D.J. CAMPBELL, SC: Good morning, your Honours, I appear with MR G.J.D. DEL VILLAR for the applicant in both applications. (instructed by Bottoms English Lawyers)

MR W. SOFRONOFF, QC, Solicitor-General of the State of Queensland: I appear with my learned friends, MR M.D. HINSON, S.C and MR M.O. PLUNKETT for the respondent in both applications. (instructed by the Crown Solicitor (Qld))

HAYNE J: Yes, Mr Campbell.

MR CAMPBELL: Thank you, your Honour. There are two broad issues that are raised in this matter. The first is what rights or fundamental freedoms are encompassed by section 10 of the Racial Discrimination Act. The second is does the amending legislation constitute a special measure within the meaning of section 8 of the Racial Discrimination Act so that section 10 does not apply. It was agreed by all judges below that the terms of the amending legislation were discriminatory on the grounds of race. They restricted the ability of Aboriginal shire councils to hold general liquor licences. That was the design of the legislation, although in fact the legislation applied to all local authorities across the State. In order to enliven sections - - -

CRENNAN J: Just a moment. Justice Keane, application book page 84 at paragraph [171] makes the observation:

that the amending Act has the effect that no resident of any local government area in Queensland enjoys the opportunity to have access to a licensed local government authority to obtain alcohol.

His Honour’s primary findings are not that the amending legislation is discriminatory in respect of race.

MR CAMPBELL: Your Honour, his Honour’s finding with regard to that, as I understood it, is not really on the question of race. It is on the question of a right and whether or not a right exists.

CRENNAN J: It is on the question of whether or not section 10(1) is engaged, which is really the anterior issue with which you need to deal.

MR CAMPBELL: Yes, but there are two issues with regard to that. The first is whether or not there was actual discrimination. The second is whether or not the discrimination affected a right, a human right or fundamental freedom.

HAYNE J: What is the right or freedom that is said to be engaged in this matter?

MR CAMPBELL: Your Honour, the right that we say – there are four. The first is a right to equal protection of the law without discrimination. We say that arises because of this, that by introducing the type of legislation that was introduced, the Queensland legislation treated differently and put in place special and different regulations with regard to Aboriginal communities for the supply of liquor. That offends a general right to equal protection of the law without discrimination, which is a right given pursuant to the Convention on the Elimination of Racial Discrimination.

There are three other rights, we say, that arise. The second is a right of equal participation in cultural activities. Can I say that no judge below found that that right arose, although the first right which I mentioned – equal protection of the law without discrimination – was found to arise by Justice McMurdo and Justice Keane.

The third right, we say, was the right to access places and services intended for use by members of the general public. Again, it was found by Justices McMurdo and Philippides that that arose. The fourth right, we say, is a right to own and enjoy property, the property being the benefit of the licence and things that flow from that.

HAYNE J: Whose right is the land? Who is the beneficiary of the last-mentioned right?

MR CAMPBELL: The Council, as representative for the aboriginal communities, this Council, in these cases, are set up slightly differently to the normal local shire council. They are set up pursuant to legislation. The areas which they control or are involved in are restricted and access to those areas is restricted by legislation. The community to which they relate are the aboriginal community which is associated with the area, who vote then for the Council members. So there is a clear connection between aboriginal shire councils and the local community. But your Honour is correct in saying it is necessary to show that that is a property right which vests in the Council and that that property right then is a right or fundamental freedom such that is protected by the Racial Discrimination Act. Your Honours, they are the four rights that were identified by the Court.

HAYNE J: Now, Justice Keane did not accept that any of those rights was engaged. Is that so?

MR CAMPBELL: That is so, your Honour.

HAYNE J: Why is his Honour wrong in that conclusion?

MR CAMPBELL: His Honour is wrong for this reason. When you consider what rights are engaged, you should do so in a broad way. You should have consideration of not only the relevant international conventions but associated treaties such as the Universal Declaration on Human Rights. Those documents and treaties together should be taken and considered in determining what amounts to a right, a human right or fundamental freedom. In doing so, your Honour, we would submit that you should take into account international treaties, writings, cases which deal with those sections of the Convention, particularly so that Australia remains in step with international views with regard to what constitutes a human right, a fundamental freedom.

HAYNE J: Accept that that approach is the approach to be taken, what is the high point of your submission about equal protection? What is the best method or statement - method of stating or the best statement you have that shows that there was some trenching on equal protection of the law without discrimination when there is a general law made for all of Queensland - local authorities may not have liquor licences?

MR CAMPBELL: Yes, your Honour, before I answer your question specifically, can I say that although this was a general law, its design was specific to attach only to aboriginal communities and that was recognised, not only in the explanatory memorandum of the Act but by, for instance, the judge at first instance. It was not a fact which was disputed, as I understand it, below, even in the Court of Appeal. So that the effect of the Act was that it aimed at and attached only to aboriginal communities despite the fact that the wording of the Act was that it was universal in the sense that it applied across Queensland generally.

With regard to the high point, or the highest way it can be put, your Honour, in the decision, that is found in the judgment of Justice McMurdo, page 49 of the application book, at paragraph [42] beginning about line 32, her Honour said:

This approach seems consistent with the legislative intent of the RDA discernible from its preamble and its scheme. It is clear from the explanatory notes to the amending Act introducing the impugned provisions that their purpose and effect is to impose a regime of alcohol regulation on Indigenous people residing in the appellants’ shires, different from the regime of alcohol regulation applying to non-Indigenous Queenslanders residing outside the appellants’ communities.

She goes on then to refer to some submissions to HREOC and what her Honour is there referring to is the explanatory notes which can be found at page 33 of the application book and her Honour sets out what is said in the explanatory notes under the heading at about line 35, “How objectives are achieved” and that is a quote from the explanatory memorandum of the relevant legislation.

HAYNE J: But do you accept that pointing to differential effect of a law does not, without more, identify that there is a breach of equal protection of the law without discrimination?

MR CAMPBELL: Yes, that can be the case, your Honour. Merely because there is a differential effect does not mean that the law is a breach of a right or a fundamental human right that affects the enjoyment of that right.

HAYNE J: Where then do we find the best statement, beyond a statement of differential effect, of the proposition that there is a trenching on equal protection of the law?

MR CAMPBELL: Your Honour, I can take you to the decision of Justice Brennan in Gerhardy v Brown. He refers to what constitutes right.
It is found at page 126. Gerhardy v Brown was the last case where these issues were considered by the High Court.

HAYNE J: I thought we had written something on this in Ward.

MR CAMPBELL: You did, I am sorry. This is specifically on this issue but your Honour is quite correct. Halfway through the last paragraph at about point 9 there is a sentence beginning:

If it appears that a racially classified group or one of its members is unable to live in the same dignity as other people who are not members of the group, or to engage in a public activity as freely as others can engage in such an activity in similar circumstances, or to enjoy the public benefits of that society to the same extent as others may do, and that the disability exists because of the racial classification, there is a prima facie nullification or impairment of human rights and fundamental freedoms.

We would say that that applies here because the legislation prevents members of the community:

to engage in a public activity as freely as others . . . or to enjoy the public benefits of that society to the same extent as others -

That would, we submit, activate the existence of a right or fundamental freedom such that section 10 should normally apply. We also point out that of course there is dissension within the Court of Appeal in Queensland as to what is the appropriate test and that is seen more recently in a case of Morton, which is on our list, where the reasoning of Justices McMurdo and Phillippides were not followed specifically by Justice Chesterman. The relevant passage is at paragraph [85] of that judgment.

HAYNE J: Would you seek in this Court, if leave were to be granted, any development of or detraction from what the Court said in Ward v Western Australia about the operation of the Racial Discrimination Act?

MR CAMPBELL: No, I do not think we would, your Honour. Can I say I have not considered that specifically but my understanding is at the moment that we would not.

HAYNE J: Ward is, I think, the last word on it.

MR CAMPBELL: Yes. What Ward does not deal with, however, is the question of special measures, which arises in this case because if it is the case - - -

HAYNE J: We get to special measures if, but only if, there is some right, do we not?

MR CAMPBELL: Your Honour is correct, yes.

HAYNE J: Yes.

MR CAMPBELL: Your Honour, I cannot take it further than to say that there is some dissension within the Court of Appeal of Queensland shown in a number of cases with regard to how the question of right should be determined or looked at. Your Honour, briefly, with the question of special measures we would say that raises another issue. There are two aspects of it and of course special measures only arise presuming that there has been a breach of section 10 and that there is the relevant human right.

“Special measures” is unusual in that its definition is by reference to Article 1.4 of the covenant, the covenant on the implementation. That then means, in our submission, that in determining what is a special measure the court should have regard to what foreign tribunals say about it because they are also looking at Article 1.4 of the covenant - and also what learned authors say with regard to how that covenant should be determined.

His Honour Justice Keane found that a special measure, or the test for a special measure, was limited and the court’s only role was to determine whether or not the legislature could have made the special measure. He considered that the question was whether the political assessment, pursuant to which the special measure was introduced, could reasonably be made. This was a test which was also adopted by Justice McMurdo and it was said to have been supported by Justice Brennan in Gerhardy at pages 138 to 139.

We would submit, however, that that test is too narrow on the authorities. In looking at both the circumstances and the effect that the proposed measure has it is submitted that there should be some type of judicial investigation necessary to determine that the special measure is proportionate and properly targeted. That is something more than determining whether or not it reasonably could be made.

Our submission is that this is reflected in the views of Chief Justice Gibbs in Gerhardy at page 88 and also in Justice Mason in the same case at page 105. We also submit that this targeted view of special measures, which includes a test of proportionality, is one that is applied internationally and in our submissions we have referred you to the General Recommendation of the Committee for the Elimination of Racial Discrimination No 32 at paragraph 16 and an observation by Mr Anaya at paragraphs 21 to 23.

We have also, in our reply submissions in a footnote - and it does not appear on our case list - referred to a decision of the European Community

Court of Justice. All those matters and observations by foreign jurisdictions focus on the question of it being necessary to show that there is a proportional response in order to determine whether a matter constitutes a special measure. To that extent we say then that the Court of Appeal in Queensland is out of step with those international decisions and writings and it is a matter which is worthy of further determination.

The second aspect of special measures, which I should briefly touch upon concerns consultation with beneficiaries. In Gerhardy Justice Brennan said that consultation or the wishes of beneficiaries was both important and essential. This was agreed by Justice McMurdo and Justice Philippides in the present cases. Again, that is supported by international commentators and Mr Anaya at paragraph 23 at page 8, in the General Recommendations for the Elimination of Racial Discrimination at paragraph 18. Your Honours, they are a brief overview of my submissions, save those that are contained in the written submissions.

HAYNE J: Thank you, Mr Campbell. Yes, Mr Solicitor.

MR SOFRONOFF: Your Honours, it is not only common ground, but it is part of the applicant’s case that the legislation in this case was directed towards ameliorating the situation suffered by victims of alcohol-fuelled violence and sexual abuse. It would not surprise your Honours to know that the Liquor Act in Queensland, like Liquor Acts elsewhere, provides for the authority, when considering whether to grant a permit or a licence or to extend one or to renew one, requires that authority to take into account what is termed in the Act “the good order of the community”, in respect of which the licence is sought.

But this piece of legislation is dealing solely with a statutorily created privilege to sell liquor in a controlled market and is a legislative manifestation of the taking into account of a factor which, if a permit were being sought by these applicants, would be required to be taken into account.

In that respect the position is on all fours with the position that was considered by the Full Court of the Federal Court in Bropho. Could I ask your Honours to look at Bropho [2008] FCAFC 100; 169 FCR 59 relevantly at page 83, paragraphs 82 and 83. In the middle of paragraph 82 there is a sentence that begins:

That is, the right to occupy and manage the land conferred by statute –

That was a statutory right in that case –

was subject to the contingency that the right would 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.

In the next paragraph, halfway down paragraph 83:

To the extent that the rights in question (which were derived from a mix of statutory instruments) were property rights, such rights were not absolute in nature given the general recognition that a State has a right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest.

That is why, in our respectful submission, the applicants are finding it difficult to identify and to explain the particular right or rights that are said to be offended by this statutory provision.

KIEFEL J: What was said there in Bropho supports Justice Keane’s approach, I think.

MR SOFRONOFF: It does, your Honour. Justice Keane at page 83, paragraph [169], I think, is one such instance.

KIEFEL J: But is it a question here in relation to special leave that there may not be a ratio in the Court of Appeal’s decision?

MR SOFRONOFF: No, your Honours, for the reason that in any event, in our respectful submission, this is a poor candidate for special leave because of the inability of the applicants to identify a right. The second problem with this case as a candidate for special leave is that, in our respectful submission, the Court of Appeal was undoubtedly correct in concluding that this legislative measure was a special measure. Could I ask your Honours to look at the article in the convention which bears upon this, which is clause IV of Article 1, which is picked up by section 8 of the Act:

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 equal enjoyment or exercise of human rights –

Could I ask your Honours to look at the language? An action, legislative or executive, would be a special measure if one, it is taken for a particular purpose and that is the sole purpose, that the purpose of the action is to secure adequate advancement of certain racial or ethnic groups of individuals requiring such protection as may be necessary. Could I ask your Honours to notice that the expression “requiring such protection as may be necessary” is an adjectival clause qualifying groups or individuals, not the special measure.

So what clause 4 requires a person to look at is whether the measure is of a particular character, first, directed to people who need protection and secondly, it is a measure taken for the sole purpose of securing adequate advancement. It does not require a court to consider whether the purpose is, indeed, adequate. It does not require a merits review of the provision.

That construction which we advance is consistent with the construction that Justices Brennan, Deane, Gibson and Dawson in Gerhardy v Brown adopted. I can take your Honours to Justice Brennan’s reasons in Gerhardy v Brown [1985] HCA 11; 159 CLR 70, relevantly at page 139 where his Honour, after considering the question and saying in a number of places that it is not for the Court to consider whether the adequacy of the measure is adequate, just below the quote on page 139 in the third line, his Honour said:

If the political assessment could not have been made reasonably, the measure does not bear the character of a special measure and the court must so hold.

In short it is a question of whether the measure is capable of answering the description in Article 1.4. Similarly, Justice Deane at page 149 at the top of the page, at the end of the paragraph at the top of the page:

They will not be properly so characterized unless their provisions are capable of being reasonably considered to be appropriate and adapted to achieving that purpose.

The Court of Appeal – I will give your Honours the other references, I will not take your Honours to them. Justice Gibbs at page 88, Justice Dawson at 162, Justice Mason at page 105 came to the conclusion that the measure was reasonably adapted. But his Honour did not analyse the legislation or give any considered reasons why that might be the test. Consequently, in our respectful submission, the submission made by our learned friends at paragraph [209] at page 102 of the application book, the submission made on behalf of the applicants there is recorded:

Mr Campbell argues that the Court may uphold the amending Act as a special measure only if the Court is satisfied that it is reasonably proportionate and adapted to securing the adequate advancement –

In our respectful submission, that test has no support in authority. Nevertheless, even applying that test Justice McMurdo – President McMurdo – concluded that the legislation bore that character. Consequently, finally in answer to your Honour Justice Kiefel’s question,

this is a case that the applicants cannot win, at least because of the special measure aspect of it and also, because it is not a case that throws up a right that can be identified clearly for the purpose of the court considering the legislation. Those are our submissions, your Honours.

HAYNE J: Thank you, Mr Solicitor. Yes, Mr Campbell.

MR CAMPBELL: Thank you, your Honour. Briefly, we are dealing with two things. The inability to identify a right. Can I respond to that by saying this, that both Justice McMurdo and Philippides identified the rights as existing and arising in this matter in the way that I have described in my submissions. The reason why Justice Philippides did not find that those rights created an infringement of section 10 was because she said that the rights were not infringed by reason of the legislature. She found rather that the rights were infringed because of geographical and economic circumstances due to the isolation and the situations of the communities. But the existence of those rights – at least some of those rights – was not canvassed. So there is an ability to identify what rights arise in this matter.

With regard to Bropho, if I can deal with that briefly and the submissions that were made with regard to what I think is called a legitimate limitation of a right, this arises where there are two rights in contention and the situation arises where the legislature has to choose which right should be given priority. Justice Keane considered that a right could be limited if the legislature acted for a legitimate non-discriminatory purpose and section 10 would not be infringed provided that the law could be one which a reasonable legislature could make. He used Bropho as authority for that proposition.

It was not supported by Justice McMurdo and that can be seen at pages 55 to 56, paragraphs [61] to [65]. We would submit that, firstly, Bropho should be confined to its facts. It was a case concerning a property right, not necessarily a human right or a fundamental freedom and perhaps there is a distinction between a property right and that, to some degree.

Secondly, to an extent – well, certainly Bropho was a correct decision. There was no other remedy which was possible in the situation - that was available to the court in that situation. But we would submit that the mechanism or the way by which they came to that decision is susceptible to criticism and challenge. Generally, we would say that to say that there is a legitimate limitation on rights that can be chosen by the legislature is not in accordance with the covenant. It is not in accordance with the Racial Discrimination Act. It does not appear to be something which is considered or adopted by international courts or writing. So, in our submission, therefore, Bropho should be confined to its facts. They are my submissions in reply, your Honours.

HAYNE J: Thank you, Mr Campbell.

We are not persuaded that the applicants have significant prospects of demonstrating that the impugned provisions of the Liquor Act 1992 (Qld) infringe a human right or fundamental freedom, whether the right to equal protection of the law without discrimination or some other right or freedom. There being no relevant right or freedom, enjoyed by some but not others, section 10 of the Racial Discrimination Act 1975 (Cth) is not engaged. No question about special measures would fall for consideration if leave to appeal were to be granted. We are not persuaded that there are sufficient prospects of disturbing the actual orders made by the Court of Appeal of Queensland to warrant a grant of special leave. Special leave to appeal is accordingly refused

AT 10.04 AM THE MATTERS WERE CONCLUDED