Federal Court of Australia

This application is brought by Ms Maria  Macabenta  ("the applicant") as a representative party in respect of a group of 690 applicants ("the group"), comprising nationals of a number of countries, some of which include the Philippines, Indonesia, Fiji, India and Pakistan.

The applicant seeks a declaration under s 10 of the Racial Discrimination Act 1975 (Cth) ("the RDA") that, by reason of provisions of Statutory Rule No 279 of 1997 ("SR"), the group members do not enjoy a right enjoyed by persons of other national origins (Iraq, Kuwait, Lebanon, China, Sri Lanka and States comprising the former Yugoslavia) and that s 10 operates to entitle herself and the group to enjoy the rights conferred by that Rule to the same extent as persons of those other national origins.

On the hearing the applicant elected not to proceed with claims made in the first amended application, which were founded on s 9 of the Act.

The application raises important questions as to the interpretation and application of s 10 of the RDA. That section relevantly provides:

"Rights to equality before the law

10. (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 persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention." (Emphasis added)

The "Convention" referred to is the International Convention on the Elimination of all Forms of Racial Discrimination, which came into force on 21 December 1965.

Several points should be noted with respect to this provision:

* it is concerned with the operation of a law and not with activities or conduct of individuals;

* it must relate to the enjoyment of a right;

* the inequality must arise by reason of race, colour, national or ethnic origin;

* a provision of a law which enlivens the section is not made unlawful or invalid;

* it operates to confer an entitlement to equal enjoyment of that right on persons who would otherwise be affected unequally by the law.

The operation and effect of s 10 has been discussed and contrasted with the operation of s 9, which is concerned with discriminatory conduct: see Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 per Mason J at 92-100 and Brennan J at 119-124. I will refer to these differences more specifically later in these reasons.

By s 504(1) of the Migration Act 1958 (Cth) ("the Migration Act"), the Governor-General is empowered to make regulations required or permitted to be made or which are necessary or convenient to give effect to that Act.

Section 31 of the Migration Act provides for regulations which prescribe criteria for visas of specified classes.

The object of the Migration Act is set out in s 4 which provides:

"4.(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act."

The object of the Act is expressed in wide and general terms, as are the means of advancing that object. This indicates the plenary nature of the powers and discretions intended to be conferred by the Act.

Background

On 13 June 1997, the  Minister for Immigration  and  Multicultural Affairs  ("the Minister") announced the Government's decision to resolve the uncertainty surrounding the future status of certain groups of people who, for humanitarian reasons, had been allowed to remain in Australia as long term temporary residents. This was to be effected by creating new visa classes (850 and 851) to cover persons from Sri Lanka, countries in the former Yugoslavia region, Iraq; Kuwait; Lebanon, and the People's Republic of China ("the PRC"). I will refer to these as the "specified countries." The practical effect of these visas, if all qualifying conditions are met, is to offer permanent resident status.

It has been the practice of successive governments over many years to provide, for humanitarian reasons, extension of stay concessions for people temporarily in Australia, who had suddenly been faced with serious disruptions in their home countries and who would have faced acute difficulties if required to return home from Australia at that time. These concessions enabled such persons to obtain an extension of their residence entitlement, usually by way of visa, to lawfully remain in Australia pending the resolution of the situation in their home countries. The measures were reviewed from time to time over the years and the temporary visas were concessions extended by way of extensions where the Government considered it appropriate. The concessional treatment ceased when the current developments in those countries indicated that such a concession was no longer necessary. The status of persons treated in this way had been left unresolved and uncertain for some years and so the decision was made in order to remedy the unsatisfactory and uncertain state of affairs surrounding their status. These categories of visas, which were proposed to give effect to this purpose, came to be known as Resolution of Status Visas (850 and 851) and were given statutory effect through Statutory Rule (SR) 279 of 1997, dated 1 October 1997.

The concession introduced pursuant to the 1997 decision applied to citizens of the specified countries, who met prescribed criteria, and who had arrived lawfully in Australia in the periods and from the countries set out below:

(a) Iraq and Kuwait - on or before 31 October 1991,

(b) Lebanon - on or before 30 November 1991,

(c) PRC - on or before 1 November 1993,

(d) Sri Lanka - on or before 1 November 1993, and

(e) former Yugoslavia - on or before 1 November 1993.

I will refer to the above dates as the "cut off dates". The evidence indicates that the cut off dates were fixed having regard to the periods of disruptions and disturbances in those countries and other matters such as economic considerations.

On 1 November 1993 the  Minister for Immigration  at the time, Mr Bolkus, announced a measure enabling nationals of the PRC, who had arrived in Australia before 20 June 1989 (the Tiananmen Square incident), access to permanent residence. At the same time he also announced the creation of additional permanent residence categories. This government decision was given statutory effect through SR 11 of 1994.

The uncontradicted evidence of Mr Johnston, who is the Director of the Special Residence Section of the Migration Branch in Canberra, was that when determining the cut off dates for entitlement to new visas, consideration was given to a wide range of factors including Australia's economic and budgetary constraints on providing general assistance beyond the countries and dates fixed. The decision provided a cut-off between those who had been in Australia for a lengthy period, without their status having been resolved, and those who had arrived more recently in the light of improving circumstances in their home countries in the knowledge that they would be required to return home. In particular, the cut-off dates for citizens of Iraq, Kuwait and Lebanon reflect the dates when earlier temporary concessions for those nationals ceased. They were fixed to normalise the position of those individuals who remained in Australia beyond those dates with their status unresolved.

The cut-off date for the citizens of the PRC, Sri Lanka and the former Yugoslavia were said to be consistent with the former Minister's decision of 1 November 1993, which made permanent residence available to certain groups primarily from the PRC. However, it also included persons from Sri Lanka and the former Yugoslavia, who had applied for refugee status or had been granted humanitarian temporary entry permits and who had met age and other qualification criteria. The 1997 decision recognised that the earlier governmental decisions had generated hopes and expectations in other citizens of these countries in Australia at the time, from broadly similar situations, that they would also be allowed to stay.

At the time of the 1997 decision, it was contemplated that the proposed measures would enable about 8,000 people to apply for the new visas. The offer extended the temporary stay of these people, with the availability of permanent residence after they had been in Australia for a total of ten years.

The applicant

The applicant was born in the Republic of the Philippines on 25 May 1958. She entered Australia on 25 October 1991 as the holder of a passport issued by the Republic of the Philippines and she was granted a valid entry permit on arrival.

On 24 October 1997, the applicant lodged an application both for a sub-class 850 Resolution of Status (Temporary) visa and an application for a sub-class 851 Resolution of Status visa (which I will refer to as "the visas"). The latter visa provided for permanent residence if the conditions were satisfied. Her application was refused because she was not the holder of a passport of one of the specified countries in respect of which sub-classes 850 and 851 apply. See sub-clause 3(c) and clause 1216A of Part 2 of Schedule 1 of the Regulations.

Submissions

The applicant's primary submission is that the limitation of the right to apply for the new visas by reference to the specified countries attracts the operation of s 10 of the RDA. The specific provisions referred to in argument were sub-clause 1216A(3)(b) of Part 2 of Schedule 1; sub-clause(3) of Clause 850.212 of Part 2 Schedule 2 and Clause 850.213 of Part 2 of Schedule 2 of Statutory Rules No 279. These will be referred to as the "visa provisions".

The submissions can be conveniently considered under separate headings. These are:

* national origin

* enjoyment of a right

* indirect discrimination

* special measures

* benign interpretation

* the PRC.

National origin

Section 10 of the RDA relates only to a law which, by reason of national or ethnic origin, does not afford equal enjoyment of a right. Accordingly, the first question which arises is whether the visa provisions can be said to nullify or impair the enjoyment of a right by the applicant by reason of "national origin".

The applicant says that a liberal interpretation is to be given to the expression "national origin" and that it should not be confined to a person's current nationality or connection with a sovereign state but that it covers a person's race or descent. Two cases are cited in support of this proposition: see Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342 at 365, and Australian Medical Council v Wilson (1996) 68 FCR 46 at 75.

The next submission of the applicant is that the choice of the specified countries is by reference to "nationality" and that "nationality" is effectively equivalent to "national origin". The latter expression, it is said, may refer to the birth nationality of a person but it reaches beyond this and may also include such other nationality or nationalities as a person may acquire in a life time. The applicant does not dispute, for example, that a person born in a country such as Indonesia might be properly considered to have Indonesia as the country of "national origin". The visa provisions under challenge, it is said, are not concerned with distinctions between Australian and non-Australian citizens but rather draw a distinction between different non-Australian nationals. It is further said that the concept of "nationality" is used in the regulation as a convenient reference point by which to protect persons whose "national origin" is the state of nationality they hold. In other words, "nationality", as used in the regulation, is a useful and concise way of referring to "national origin."

The Minister, on the other hand, submits that even if, (which is disputed), there is any relevant "right" for the purposes of s 10, that right is not afforded to the persons from specified countries on the basis of "national origin" but rather by reference to their nationality; the date on which they entered Australia; their particular circumstances; whether their entry was lawful, and the cut off dates referred to above. It is said that there is a significant distinction between "national origin" and "nationality." The Minister relies on a recent decision in De Silva v Ruddock (unreported, Merkel J, 19 February 1998) where his Honour considered the operation of s 9 of the RDA.

Discussion

The relevant qualification for the new visas is that the applicant has entered Australia as the holder of a valid passport of one of the specified countries. The requirement does not, in terms, select "national origin" as the factor which enlivens its operation. Nor does it refer to race, colour, or ethnic origin. In Ealing (supra), the House of Lords had to consider the expression "national origin" as used in the English Race Relations Act, 1968. That section provided:

"1(1) It shall be unlawful for any person, being the proprietor or manager of or employed for the purpose of any place of public resort to which this section applies, to practice discrimination on the ground of colour, race, or ethnic or national origins against persons seeking access to or facilities or services at that place...." (Emphasis added)

In discussing the expression "national origins" in his speech Lord Cross said, at 365-6:

"There is no definition of `national origins' in the Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as `a nation' - whether or not they also constitute a sovereign state....

Suppose, for example, that a man of purely French descent marries a woman of purely German descent and that the couple had made their home in England for many years before the birth of the child in question. It could ... be said that the child had three `national origins'; French through his father, German through his mother and English not because he happened to have been born here but because his parents had made their home here. Of course, in most cases a man has only a single `national origin' which coincides with his nationality at birth in the legal sense and again in most cases his nationality remains unchanged throughout his life. But `national origins' and `nationality' in the legal sense are two quite different conceptions and they may well not coincide or continue to coincide. That is shown by this case. Mr Zesco was born in 1913 when Poland - though a `nation' was not a sovereign state but part of the Russian empire. So at birth his `national origins' were Polish but his nationality was Russian. When Poland became an independent state after the first war he became a Polish citizen, but now though his `national origins' have remained throughout Polish he has become a citizen of the United Kingdom by naturalisation. It is not difficult to see why the legislature in enacting the Race Relations Act 1965 used this new phrase `natural origins' and not the word `nationality' which had a well established meaning in law." (Emphasis added)

His Lordship said that the expressions "ethnic" or "national origins" were used to limit the scope for argument over the meaning of the word "race" which, of course, is a concept capable of many different shades of meaning. In ordinary discourse there is frequently reference to expressions such as the "Negro" race; the "Jewish" race; the "Chinese" race, and the "Indian" race for example.

Lord Donovan (at 354) pointed out that "national origins" meant something different from mere "nationality", and observed that otherwise there would no reason for not using the latter term. Viscount Dilhorne (at 359-360) drew a similar distinction, and Lord Simon (at 363) took a similar view. Although he was in dissent, Lord Kilbrandon, made an important observation at 368 where he said:

"The forbidden grounds are `colour, race, or ethnic or national origins'. These characteristics seem to have something in common: they have not been acquired, and they are not held, by people of their own choice. They are in the nature of inherited features which cannot be changed, as religion, politics and nationality can be changed, more or less at will, although subject, in the case of the last to fairly strict rules laid down by the receiving state. These considerations seem to indicate a deliberate exclusion of nationality from the unlawful grounds, apart from the strong argument that so familiar a popular as also juridical concept could hardly have been omitted from the area of protection by accident." (Emphasis added)

These words are apposite in the present case. The concept of "nationality" can properly be described as a feature which can be changed and which is not inherent in the above sense. "National origin" on the other hand is not a characteristic which, generally speaking, is capable of change.

The decision in Ealing was considered by the Full Federal Court in the Australian Medical Council case where (at 75), Sackville J said:

"... there is powerful independent support for the conclusion that `national origin' as used in s 9 of the RD Act, does not simply mean citizenship... In my opinion, Ealing provides guidance for Australian courts concerning the meaning of the phrase `national origin', as used in s 9 of the RD Act."

Referring to Dr Siddiqui, the applicant in that case, his Honour said:

"However, it seems that he was born and educated in India and that his racial background is Indian. Accordingly, although he became an Australian citizen in 1982, it is very likely that his national origin for the purposes of the RD Act, is Indian."

In De Silva, Merkel J in discussing the expression "national origin" as used in s 9(1) of the Discrimination Act said at 22:

"The discrimination alleged in the present case is not based on national origin; rather, at best for the applicants, one of its bases relates to nationality at or since a specified date, being 1 November 1993. Although there are obvious difficulties in any precise definition of `national origin' as that term is used in the RD Act, in my view it does not mean current nationality or nationality at a particular date which has no connection with the national origin of the persons concerned. Accordingly, any case of direct discrimination under s 9(1) must fail on that ground alone."

Although there are important differences between ss 9 and 10 of the RDA, which I advert to later, I can see no reason to conclude that a different meaning should be given to the expression "national origin" in the two sections.

On a natural and ordinary reading of the words "national origin", the term denotes place or nation of "origin" or perhaps "birth nationality" but not nationalities acquired at subsequent stages of life.

Some support for the existence of a distinction in s 10 between "nationality" and "national origin" can be gleaned from the text of the Convention itself, which in Article 1(3) refers to "nationality." If the legislation implementing the Convention had intended that the wider term "nationality" should control the application of the law, it would have been a simple matter to use that term rather than to refer to "national origin".

Over a lifetime, a person may acquire a number of different "nationalities" which, depending on the legal regimes in force in any particular country, may be held successively from time to time or even simultaneously where States recognise dual nationality. In these circumstances it may often be a matter of substantial difficulty to determine the relevant nationality of a person for the purpose of a particular regulatory regime. On the other hand, the expression "national origin" is a narrower concept and more readily determined because it is limited to "origin", which is fixed at birth and incapable of change. In framing an International Convention and legislation to implement its provisions against the background of many different legal systems, there is much to be said for preferring a more specific criterion which can be more readily determined with greater certainty.

In the present case the criterion adopted is whether the person, at the time of entry into Australia, held a valid passport of a specified country. This is not a reference to the national origin of the person. Nor is it a reference to race, colour or ethnic origin. For these reasons I do not accept the submission of the applicant on this point.

Right - Is the applicant adversely affected in her equal enjoyment?

The applicant accepts that she must establish that she does not enjoy a "right" or that she enjoys a "right" to a lesser extent, in comparison with persons of another race or colour or national or ethnic origin.

The applicant points out that the reference in s 10(1) of the RD Act is to a "right" and that is different from s 9(1), which refers to a human right or fundamental freedom in the political, economic, social, cultural fields or any other field of public life. Therefore, it is submitted by the applicant that cases concerned with the application of s 9 are not relevant. Reference is made to Mabo v Queensland No 1 (1988) 166 CLR 186 at 229-230.

In my view, the differences in wording do not carry much weight because the Convention itself is focused broadly on the observance of human rights and fundamental freedoms. See, for example, the first two clauses of the Recitals to the Convention. The statements in the second clause refers to the Universal Declaration of Human Rights. These matters indicate that the Convention and the RDA are primarily concerned with the enjoyment of basic human or fundamental rights.

The applicant also points out that, whereas s 9 is concerned with the acts of an individual, s 10 is concerned with the effect of a provision of the law of the Commonwealth or State. The essential difference is that under s 9, it is unlawful for a person to contravene the section, whereas under s 10, a law to which the section applies is not invalid but rather its operation is extended to confer entitlements to those adversely affected to enable them to enjoy the right in question to the same extent.

Both sections provide that the expression "rights" includes a right "of a kind" referred to in Article 5 of the Convention because the definition is inclusive in nature. Even if "right" is not "of a kind" referred to in the Convention, it may still be a "right" for the purposes of s 10. Article 5 enumerates a collection of wide-ranging general rights, such as the right to equality under the law, the right to freedom of movement and residence within the border of the State, the right to nationality, the right to inherit, the right to work, and so on. It is evident that the expression "right" should be given a broad interpretation.

The rights set out in Article 5 are, of course, only particular instances of the rights and freedoms protected by s 10 and not an exhaustive description of those rights and freedoms: see Gerhardy (supra) at 101.

The applicant further submits that the opportunity conferred by the new visas to apply for permanent residence is a right of a kind referred to in Article 5, namely a right to obtain residence.

The respondent, on the other hand, submits that the applicant must establish that the right alleged is of a "kind" intended to be protected by the Act. The courts, it is said, have shown reluctance to attempt a definition of the meaning of the word "right" as used in ss 9 or 10 of the Act. Nevertheless, it is the function of the Court to ascertain in each case whether a "right", said to support the application of s 10, is one which attracts the protection of the Act. Such a process involves an exercise in statutory interpretation, which as Deane J points out in Mabo (supra) at 229-230, must not be narrow or legalistic. His Honour there said:

"The word `right' is used in s 10 in the same broad sense in which it is used in the International Convention, that is to say, as a moral entitlement to be treated in accordance with standards dictated by the fundamental notions of human dignity and essential equality which underlie the international recognition of human rights." (Emphasis added)

The respondent also submits that the Court should adopt the analysis by Merkel J in De Silva (at 23) in relation to s 9 as follows that:

"To fall within section 9(1) the failure to extend the subclass 435 visa must nullify or impair the recognition, enjoyment or exercise of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. Putting aside the special position of refugees, which does not arise as none of the applicants put their claims in this proceeding on the basis of eligibility for refugees status, Article 5 of the Convention does not recognise any right of non-citizens to remain where they are temporarily resident in such circumstances. Further, the applicants have not demonstrated the recognition of any such right as a human right or fundamental freedom in any other context."

Whilst accepting that s 9 speaks in terms of a "human rights or fundamental freedom," the respondent submits that the Court must undertake an exercise of characterisation similar to that carried out by his Honour in De Silva and that such an exercise demonstrates that the entitlement of certain non-citizens here to seek an 850 or 851 visa is not a right of the kind protected by s 10 of the Act.

The respondent further submits that the opportunity for a non-citizen to apply for permanent residence in Australia after a period of temporary residence, because of disruption in the person's home land, is not a right of the kind protected by s 10 of the Act. Such an opportunity is in the nature of a benefit to meet a specific need arising from past governmental treatment of certain groups. In order to qualify for characterisation as a right under the section, the right conferred must be of a kind that is capable of being enjoyed by the applicants. Otherwise it cannot be said that it is a right in respect of which the applicant is being denied any, or complete enjoyment on an equal basis. The opportunity which the visa rules provide, according to the respondent, is to be characterised as being conferred on persons in a special class, not because of ethnic origins, but rather because of past treatment. There is no evidence that the applicant was granted a temporary entry visa on humanitarian grounds because of disruption in her homeland. The right in question, it is said, was a right which the applicant could not have taken advantage of or enjoyed and so it cannot be concluded that she is denied or limited as to the enjoyment of that opportunity. She is not within a group having an equivalent claim to residence because she has not established the same background of governmental treatment as groups from specified countries.

The provision of an opportunity to become a permanent resident does not deprive nationals of other countries, who do not have a similar history and who are non-citizens, of the opportunity to enjoy a "right" to reside in Australia. The provision of an opportunity to make an application for temporary and/or permanent status arising from specific historical and special humanitarian circumstances, does not therefore enliven s10.

Although Article 5 of the Convention is cast in wide terms in respect of the right to residence, it does not follow that every non-citizen who lawfully enters Australia has any claim by way of a right to permanently reside here. The equality envisaged in the enjoyment of the enumerated rights does not encompass circumstances where a government, on compassionate grounds, has declined to return a group of persons from certain states to their national states. Therefore, the law does not unequally affect persons from other countries who do not have a similar history and who are differently affected because of that history. There is no unequal treatment in the enjoyment of rights as between two groups of non-citizens with different histories of treatment by the government in different circumstances where the measures are not claimed to be unreasonable or inappropriate to implement the object and purposes of the Migration Act. The provisions for the new visas provide a means of meeting a specific human problem of specific groups, namely an expectation of being able to remain in Australia arising from their treatment by previous governments. It does not have the effect of unequally treating the group of which the applicant is a representative.

In the course of argument reference was made to a report of the deliberations of the UN Human Rights Committee in Adam v The Czech Republic, (Comm. No 586/1994, UN Doc CCPR/C/57/D (1996)). That proceeding concerned an application by an Australian citizen for restitution of property confiscated by the Czechoslovakian government in 1949. The claim was rejected on the grounds that the applicants did not fulfil the requirements that they have Czech citizenship and be permanent residents of the Czech Republic. The Committee concluded that the refusal of restitution to non-citizens of the Czech Republic violated their rights.

In the course of the Committee's Examination of the Merits, it is said at par 12.5:

"... The State party itself has acknowledged that the confiscations under the Communist governments were injurious and this is the reason why specific legislation was enacted to provide for a form of restitution. The Committee observes that such legislation must not discriminate among the victims of the prior confiscations, since all victims are entitled to redress without arbitrary distinctions. Bearing in mind that the author's original entitlement to his property by virtue of inheritance was not predicated on citizenship the Committee finds that the condition of citizenship is ... unreasonable." (Emphasis added)

It is noteworthy in the above passage that the Committee considered that the entitlement must be conferred without arbitrary distinctions. In the present case, of course, it cannot be said that the criteria for selection of the listed countries is arbitrary, having regard to the circumstances in which the selection of these countries and cut off dates was made.

For the above reasons I am not persuaded that the applicant is unequally affected in the enjoyment of any "right" as a result of the visa conditions.

Indirect discrimination

The applicant seeks to rely on the principles relating to indirect discrimination. This type of discrimination can be described as the selection of criteria for differential treatment, which on their face apply equally but which in their practical operation are unfair and discriminatory. The applicant submits that the expression "to a more limited extent" imports the concept of indirect discrimination into s 10(1). It is submitted that this arises because it is said to be obvious that in practice, in the majority of cases, the criteria of "nationality" and "national origin" will coincide. Therefore, if a law imposes a comparative advantage by reference to nationality, a substantial number of persons of the corresponding national origin will enjoy the right to a greater extent than persons not of that origin.

In substance the submission is that by selecting the listed countries, on the basis of nationality, there is a discriminatory effect by reason of "national origin". This stems from what is claimed to be the indirect discriminatory impact of the grant of the right to apply for the new visas.

In my view there is no reason to introduce into s 10 concepts of indirect discrimination. Section 10 is concerned with the effect of a law and not with the concept of discrimination upon the individual. The effect of a law can be direct or indirect. It is not necessary to input into s 10 the concept of indirect discrimination embedded in s 9. Reliance on indirect discrimination raises a false issue. The real question for the Court is the proper construction of the language used in the section. If it can be said that by reason of a provision of a law, there is an effect of the type set out in the section, then the equalising adjustment provided for in the section is enlivened. It is not to the point to speak in terms of direct or indirect discrimination. The section operates by reference to the nationality of a person at a particular point of time when that person entered Australia as the holder of a valid passport of a listed country. For the reasons given earlier, on a proper interpretation of the section, the language does not warrant the conclusion that national origin and nationality are the same.

Special measures

As a further, alternative submission, the respondent says that s 10 can have no operation because the visas are a "special measure", to which par 4 of Article 1 of the Convention applies, with the consequence that s10 does not apply.

Article 1(4) of the Convention provides:

"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 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."

In support of this argument, the respondent refers to the decision of Brennan J in Gerhardy (supra) at 133, where his Honour, with reference to Article 1(4) of the Convention said:

"A special measure (1) confers a benefit on some or all members of a class, (2) membership of which is based on race, colour, descent or national or ethnic origin, (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms."

In determining the purposes for which a measure is taken, a court will have regard to background facts. As Brennan J went on to say at 137-138:

"To determine whether the measure in question is intended to remove and is necessary to remove inequality in fact (as distinct from formal inequality), the circumstances affecting the political, economic, social, cultural and other aspects of the lives of the disadvantaged group must be known and an opinion must be formed as to whether the measure is necessary and likely to be effective to improve those circumstances. The objective circumstances affecting the disadvantaged group are matters of fact, capable of ascertainment albeit with difficulty. But once those circumstances are ascertained, an assessment must be made about a number of matters: what is `adequate advancement' of the beneficiaries in the circumstances? Do they require the protection given by the measure in order to enjoy and exercise their human rights and fundamental freedoms equally with others? 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."

The judgment of Deane J (at 149) is also relied on. His Honour there said:

"What is necessary for characterization of legislative provisions as having been `taken' for a `sole purpose' is that they can be seen, in the factual context, to be really and not colourably or fancifully referable to and explicable by the sole purpose which is said to provide their character. They will not properly be so characterized unless their provisions are capable of being reasonably considered to be appropriate and adapted to achieving that purpose."

The respondent submits that all four indicia necessary to establish a "special measure" are established in the present case having regard in particular to the affidavit of Mr Johnston and the published statements of governmental policy annexed to it.

On the assumption, (which I do not accept), that there has been discrimination, I do not consider that the present circumstances attract the exception. This is not a case where the visas can be said to be necessary to enable the selected groups to enjoy and exercise equally human rights and fundamental freedoms. The language is simply not apposite to the present circumstances. The visas are designed to meet a specific problem. However, the visa provisions cannot be properly characterised as being for the purpose of securing the advancement of the beneficiaries in order that they may enjoy and exercise human rights and fundamental freedoms. For these reasons the measures are not within Article 1(4) of the Convention or within the criteria referred to by Brennan J.

Benign discrimination

The respondent contends that there is a principle distinct from the "special measures" principle which can support the visa provisions. This is described by the respondent as the "benign" discrimination point. It is based on a remark in the majority judgment in Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 483-4 in these terms:

"... if there were any discrepancy in the operation of the two Acts, the Native Title Act can be regarded either as a special measure under s 8 of the Racial Discrimination Act (372) or as a law which, although it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Convention on the Elimination of All Forms of Discrimination." (Emphasis added)

In the present case, in view of the conclusions which I have reached, it is not necessary for me to decide whether there is any principle of "benign discrimination" which would justify beneficial discrimination on the ground of race and I express no opinion on this submission.

PRC

The applicant points out that the broad justification advanced for limiting the visas to the specified countries was that those benefited had been eligible for specific visa concessions provided by previous Governments for humanitarian reasons. This justification is referred to in the evidence given by Mr Johnston. The applicant seeks to weaken the force of this justification in the specific case of the PRC. The applicant points out that there is an apparent anomaly in the case advanced for the Minister in the case of persons who came from the PRC after Tiananmen Square in 1989 and 1 November 1993, because some persons in this category were not given any entitlement to a visa or residence until the 1997 regulations for the new visas.

The evidence of Mr Johnston was that many of these persons from the PRC were eligible, in fact, for refugee status so that the point only has relevance in the case of persons who did not make such an application. In addition, other PRC nationals, namely unsuccessful applicants for refugee status, were able to claim residence under other special visas requiring special qualifications. However, it is true that there remained a residual group who remained here without interim visas having been made available. There was no evidence as to the number of persons who came within the description of not having any visa until the present provisions came into operation in 1997. Mr Johnston's evidence was that in most cases the PRC Nationals had either applied for refugee status or other visas.

The evidence as to this inconsistency, in relation to an indeterminate number of persons from the PRC in the period after Tiananmen Square, does not, in my view, affect the central consideration that the visas were, in substance, established for humanitarian and compassionate reasons based on the expectations of persons from these countries. They are based on continued, prior government conduct in permitting and enabling the continued residence in Australia of persons from the specified countries.

Procedure

The respondent has submitted that the Orders sought should not be made because this is a representative proceeding and the Orders are not appropriate as to form and for other reasons.

In view of my conclusion that the application should be dismissed it is not necessary to deal with these submissions.

General Conclusions

Considered from a broader perspective, the position is that the entitlement claimed by the applicant is that a right to residence has been given to some groups of persons who arrived in Australia holding passports of certain countries. These persons have been resident in Australia for over four years because of concessions extended from time to time, by the Australian government, for humanitarian considerations. The present government has taken into account these past concessions and recognised that they have given rise to reasonable expectations of continued residence and engendered uncertainty on the part of such persons as to their future status. In order to reduce the extent of the problem of uncertain status, the government has provided for the new visas.

The confinement of the new visas to individuals from specific countries is because the humanitarian concessions, which have been extended, were made by reference to persons arriving from those countries. No doubt this reference to the countries is a convenient way of describing the groups of persons who had received the concessions over the years and who had experienced the uncertainty as to status. The cut-off dates, which also comprise one of the selected criteria, are imposed because of budgetary and other practical constraints. Consequently, the position is that even within the groups themselves, from the specified countries, the government made its decision after taking into account the practicalities of the situation.

Due to the opportunity conferred being referable to a particular history of governmental treatment, it cannot be said that members of other groups, which have not experienced that history and which were not so treated, have been deprived of their enjoyment of substantially the same entitlement or right. Formulated in the negative, the opportunity furnished by the visas is not one in respect of which the applicants can be said to be eligible. When regard is had to the background circumstances, it cannot be said that the provisions give rise to unequal treatment in the enjoyment of any right by reason of national origin.

For the above reasons the application should be dismissed. However, as this proceeding is a representative proceeding I will not make any orders as this stage. I direct the parties to bring in appropriate Short Minutes. These should also deal with the future conduct of the proceeding. At that time I will hear the parties on costs.

I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated: 21 April 1998

Counsel for the Applicant:	Mr D M J Bennett QC Ms C Ronalds Mr S Beckett
Solicitor for the Applicant:	Parish Patience
Counsel for the Respondent:	Mr J Basten QC Dr A S Bell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 March 1998
Date of Judgment:	21 April 1998