Author: CRU Associate

CRU Intern, MICHAEL STARKEY, has contributed the following post:
The delay of the referendum on indigenous recognition until at least after the 2016 federal election has created an important opportunity: to consider including in the final proposal for change an obligation on government known in international law as ‘the duty to consult.’ In legal speak, the idea is that governments should, in good faith, consult with indigenous peoples in order to obtain their free, prior and informed consent before adopting any measure that specially affects them. In the words of Noel Pearson, it is that indigenous peoples ‘get a fair say in laws and policies made about [them].’
While the normative content of the duty to consult is expressed most clearly by international law (particularly by Article 19 of the UN Declaration on the Rights of Indigenous Peoples and Article 6 of ILO Convention 169), in seeking practical guidance on how to implement it, Australia should turn to two foreign jurisdictions. The first, Canada, is a likely comparator. The second, Bolivia, less so. But by drawing on the jurisprudence developed in the former, and appropriating the constitutional provision of the latter, Australia could effectively entrench the duty to consult to the enduring benefit of our nation as a whole.
In 1982, the Canadian Constitution was amended to recognise, inter alia, the rights of indigenous Canadians. Section 35(1) of the newly entrenched Constitution Act provided: ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’ Following this amendment, a comprehensive body of Canadian case law has confirmed that the Crown has a duty to consult indigenous Canadians before taking actions which might affect their ‘aboriginal rights.’ This development cannot be explained by the constitutional amendment alone, however, because, as its wording suggests, section 35(1) conferred no new rights on indigenous Canadians. What it did do, though, was constitutionally protect the common law of Canada’s conception of the relationship between indigenous Canadians and the Crown as fiduciary in certain circumstances. That relationship, when it arises, requires Canadian governments to consult with indigenous peoples to ensure the Crown’s power is exercised in their best interests. In Mabo, the High Court (with the exception of Toohey J) refused to characterise the relationship between the Crown and indigenous Australians as fiduciary. Because of this, simply transplanting section 35(1) of the Canadian Constitution Act into our own would not entrench a duty to consult. However, if we could import the duty by other means, Canadian jurisprudence would provide a rich resource to be drawn on by our courts in fleshing out its local requirements.
Canadian courts have held that both federal and provincial governments must consult with indigenous Canadians and accommodate their established or asserted rights prior to making decisions which might affect them. It is important to note that the Canadian duty is not a duty to agree. Rather, it is about good faith negotiation and the balancing of interests. A breach of the duty becomes relevant when it is alleged that a government measure infringes an ‘aboriginal right’ protected by section 35(1) of the Constitution Act. Such infringement will not pass the required test of ‘justification’ unless the procedural duty to consult has been fulfilled. Where consultation has been inadequate, the purported decision can be suspended or quashed. In numerous cases, administrative decisions have been overturned as a consequence of the duty’s breach (see, e.g., R v Sparrow [1990] 1 SCR 1075; Haida Nation v British Colombia (Minister of Forests) [2004] 3 SCR 511; Tsilhqot’in Nation v British Columbia [2014] SCC 44). While in theory the duty also applies to legislative decision-making, there appear to have been no cases in which legislation has been struck down on the basis of inadequate consultation. However, legislation has been held to have no effect with respect to particular indigenous individuals if it infringes their rights for no good reason (see R v Powley [2003] 2 SCR 207).
If Australia were to adopt a duty to consult, drawing on this jurisprudence would continue the established tradition of our courts referring explicitly to Canadian decisions in indigenous rights cases. The question remains though, how might we effectively frame the duty to consult in the Australian context? The answer, it is proposed, lies in the Bolivian Constitution, Article 30 of which provides: ‘…indigenous peoples enjoy [the right]… to be consulted by appropriate procedures, in particular through their institutions, each time legislative or administrative measures may be foreseen to affect them.’ Since its adoption in 2009, this provision has been used to challenge a major government works project involving the building of a highway through the TIPNIS, a national park home to 12,000 indigenous Bolivians. While the consultations mandated by Bolivia’s Plurinational Constitutional Tribunal as a result of that challenge were criticised as being neither free nor informed, it is clear that the duty to consult is forcing a change in the way the Bolivian Government interacts with the 62 per cent of Bolivia’s population who identify as indigenous.
Appropriating the directness of the Bolivian duty’s wording, an Australian duty to consult might affirm: ‘The Commonwealth, a State or a Territory shall consult indigenous peoples, through their representatives, before taking legislative or executive measures that may be seen to specially affect their interests.’ It would be the familiar role of Australian courts to interpret this provision, and it is here that Canadian jurisprudence on that country’s duty to consult would play an invaluable role.
The merits of this proposal are numerous. Adopting a duty to consult will guarantee that indigenous voices continue to be heard once the current process of constitutional recognition is over. It will help generate the climate of confidence, currently lacking, between Australia’s indigenous peoples and its governments. And importantly, the duty to consult addresses the practical need to resolve the recent, dangerous emergence of partisanship in the recognition debate. While the Australian Labor Party seems intent on including an anti-discrimination provision in the final recognition proposal, the Coalition Government appears to be moving to quell expectations of anything more than symbolic recognition. A duty to consult provision arguably paves a middle road between these two extremes. If there is one thing that the history of referenda in Australia tells us, it is that bipartisanship is essential for success, and not since 1967 has success been as important as it is now.
SUGGESTED CITATION: Michael Starkey, ‘Indigenous Constitutional Recognition – A Duty to Consult?’, Constitutional Critique, 26 October 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

CRU Associate AMANDA SAPIENZA has contributed the following post:
First came the victory, when in Pape it was held to authorise laws governing stimulus payments during the GFC. Then came the defeat, when in Williams (No 1) it was denied the capacity to authorise funding for chaplains in schools. Now non-statutory executive power (NSEP) is poised to make a comeback, in its most controversial and politically-charged instalment yet, CPCF v Minister for Border Protection and the Commonwealth. But whereas in previous cases the stakes were measured in dollar terms, this time the consequences of the alleged exercise of NSEP have a human face.
CPCF is the case currently pending before the High Court that arose out of the interception on 29 June of 157 Sri Lankan asylum-seekers outside Australia’s territorial waters (though inside its contiguous zone), detention of the asylum-seekers and their Indian-flagged vessel and the Commonwealth government’s attempt to take the asylum-seekers to India. Submissions have been filed and the case is set down for hearing on 14-15 October.
The plaintiff is ultimately making a claim of false imprisonment, arguing that the detention of the plaintiff (one of the asylum-seekers) on the Australian vessel was not authorised by law. The defendants are claiming that the Maritime Powers Act 2013 (Cth) authorised their actions. Much of the submissions of the parties and the interveners (the United Nations High Commissioner for Refugees and the Australian Human Rights Commission) deal with interesting questions of how the powers in that Act interact with Australia’s international obligations, primarily its obligation of non-refoulement under the Refugee Convention; that is, the obligation not to send a person to a place in which the person’s life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion (see Art 33(1) of the Refugee Convention). Interesting administrative law questions also arise as to the permissibility of general deterrence as a purpose for taking a group of people to a place other than Australia and whether the exercise of a statutory power by a maritime officer who was following an order of the National Security Committee of Cabinet constitutes acting unlawfully under dictation.
But the case will also be of interest to constitutional lawyers because it is the latest attempt by the government to source its power to take controversial action in the NSEP of the Commonwealth under s 61. The Commonwealth parties claim that, if their actions were not authorised by the Maritime Powers Act 2013, the actions were authorised by NSEP. It is making the argument that ultimately won the day in the dispute over the Tampa affair, Ruddock v Vadarlis (2001) 110 FCR 491: that Commonwealth executive power includes power ‘to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion’ (at [193] (French J)). Indeed, the Commonwealth’s submissions are littered with references to the reasoning of then Justice of the Federal Court, now Chief Justice of the High Court, Robert French, in the Tampa decision.
The substantive issues in the Tampa decision never made it to the High Court. Vadarlis was denied special leave to appeal because, with the transfer of the asylum-seekers to Nauru and New Zealand, their detention on board the MV Tampa could no longer be challenged so the precise issues raised before the Federal Court had become moot (see generally the transcript of the special leave application). Legislation was also passed that retrospectively authorised the detention of the asylum-seekers and other acts done in connection with the Tampa affair, and made clear that the Migration Act 1958 (Cth) did not abrogate any executive power that may authorise conduct covered by the Act. The panel of justices hearing the special leave application recognised that, although events and procedural issues had overtaken the application in that matter, the validity of the retrospective legislation and the issues of executive power raised in the Federal Court were important constitutional questions which might, in an appropriate case, warrant a grant of special leave to appeal.
The mootness argument raised its head again in CPCF. Following the bringing of the plaintiff and the other asylum-seekers to the Cocos (Keeling) Islands late in July, Hayne J heard argument on whether the matter could proceed as it was then instituted: on a case stated for the Full Court on an urgent basis regarding the legality of the detention on board the Commonwealth vessel for the purpose of taking the asylum-seekers to a place other than Australian territory (see the High Court transcript from 28 July 2014). Although it is not explicit on the transcripts, it can be inferred that the parties agreed to a reformulation of the case. Besides the obvious point that CPCF is an application in the High Court’s original jurisdiction, as opposed to an application for leave to appeal from existing orders, there was another point of departure from the circumstances surrounding the Tampa special leave application that presumably made negotiating a reformulation possible. This was that the plaintiff in CPCF has actually made a claim of false imprisonment, rather than the claim in the nature of habeas corpus made in the Tampa case. So even though the challenged detention (that of the asylum-seekers while on board the Commonwealth vessel) has come to an end, the legality of that detention is very much a ‘matter’ for an exercise of federal judicial power, and not a merely hypothetical question.
Now, the High Court might get its chance to weigh in on the ‘important constitutional question[s]’ that were previously determined by the Federal Court in the Tampa matter. It may be required to decide whether the executive power invoked in that case exists, whether legislative attempts (including in the Maritime Powers Act itself) to ensure that any such executive power has not been abrogated were successful and the NSEP question hitherto untouched by the High Court: whether an exercise of NSEP is attended by an obligation to afford procedural fairness and other administrative-law style limitations.
In relation to the application of procedural fairness to exercises of NSEP, it seems that neither party is willing to argue that the chief international authority on the issue, Council for Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 (CCSU) should not be endorsed and applied by the High Court. In that case, the House of Lords held that a power’s non-statutory source alone is not a reason to shield its exercise from judicial review, and it would have found that the Minister failed to afford the Council procedural fairness but for the national security context of the decision, which the Lords considered rendered the exercise of power non-justiciable. This has been applied consistently in intermediate Australian courts (as discussed here) but the High Court has never been required to decide whether to apply it. Perhaps it will be required to do so in CPCF.
The defendants argue that either obligations of procedural fairness did not attach to the power to take the plaintiff to a place outside Australia or that the circumstances of the power’s exercise reduced the content of any procedural fairness obligations to nil. The circumstances that the defendant invokes to support this argument are based on the power being one that involves ‘broad (and contentious) political considerations and matters of public policy unsuited to examination by courts, including matters of defence, border protection and international relations’ (see Defendants’ submissions para [100]).
It is arguable that this submission does not pay enough heed to modern attempts by Australian courts to decide these issues not at a high level of generality, focusing on broad subject matters, but by focusing on whether the precise issues sought to be agitated by an applicant require a court to pass judgment on matters our system of government commits to the discretion of the executive (again see here). But perhaps this will be teased out in oral submissions. Any guidance the High Court can give as to how CCSU might play out in the Australian context of s 61 executive power will be most welcome.
More controversial are the plaintiff’s submissions as to other limitations on exercise of a NSEP to exclude and, where necessary to effect that exclusion, detain, people with no legal right to enter Australia. As with the statutory power under the Maritime Powers Act, the plaintiff argues that exercise of the power is constrained by Australia’s international obligations, particularly non-refoulement. The defendants deny that the NSEP is limited by international law. The UNHCR’s proposed submissions on this point assume the existence of NSEP as claimed by the defendants. But they argue that such power is constrained by Australia’s international obligations because a power to detain and remove a person to a place to which he or she does not want to go is extraordinary and should be constrained and because, in this case, the relevant power is a power to act outside Australian territory, in an area governed by international law. The UNHCR seeks to argue that, while Parliament could make laws authorising a breach of international law, it has not done so in this case and no NSEP to breach international law exists.
More controversial still is the plaintiff’s argument for further limitations on the exercise of any NSEP to exclude and detain. Unlike the purported exercise of statutory power, which the plaintiff contends was rendered unlawful by recognised legal errors of acting under dictation and acting for an unauthorised purpose, in respect of the defendants’ reliance on NSEP the plaintiff appears to be invoking a proportionality ground of review. The plaintiff submits that commencing to take the plaintiff to a country at which the plaintiff could not lawfully be discharged took the length of detention outside the control of the Commonwealth and thus extended detention beyond what is proportionate to achieve the power’s purpose of preventing entry to Australia.
The plaintiff’s pragmatic reasons for such a submission are understandable enough: although it does not seem to have been examined in any depth in Australia, cases and academic commentary contain broad brush statements about the difficulty of applying standard administrative law grounds to an exercise of NSEP, due to the lack of statutory purpose and context from which to draw relevant limitations. However, the reliance on a proportionality argument to get around any such difficulties is novel and, dare I say, brave. Although proportionality tests are well-recognised in constitutional law jurisprudence in relation to purposive powers, they remain largely unaccepted in Australian administrative law as a ground on which to challenge executive action (at least, statutory executive action). They have come to prominence in the UK largely as a necessary by-product of that country’s incorporation of the European Charter of Human Rights by the Human Rights Act 1998 (UK) and the consequent ‘Europeanisation’ of that country’s administrative law (see M Taggart, ‘”Australian Exceptionalism” in Judicial Review’ (2008) 36(1) Federal Law Review 1, 24-26). But that context is an insufficient basis on which to transplant the concept to Australia. Perhaps a need to impose limits on exercises of NSEP will give proportionality tests an opportunity to make inroads in Australian administrative law.
Yes, CPCF has the capacity to break new ground in relation to NSEP. But before we get too excited, it’s worth recalling that the NSEP argument is only made in the alternative to the Commonwealth’s primary argument, that the action was authorised by statutory power. The transcripts and submissions all make clear that arguments about NSEP are secondary to the main game: questions of construction of the Maritime Powers Act. CPCF may well see the High Court justices doing battle on statutory construction points redolent of Al-Kateb v Godwin (2004) 219 CLR 562; namely, whether there is sufficient ambiguity in the relevant provisions of the Maritime Powers Act to warrant recourse to international obligations for its resolution. Further, the High Court has previously displayed a broad approach to determining whether executive action is sufficiently connected to a statutory power to make arguments regarding NSEP unnecessary to resolve, and a corresponding keenness to avoid the question of the application of procedural fairness to exercises of NSEP until dealing with it becomes absolutely necessary (a good example of both being the unanimous judgment in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319).
If the Maritime Powers Act governs the matter, not only will a chance for the High Court to engage in novel analysis of the limitations on exercises of NSEP go begging, but Tampa will have to keep waiting for either its ultimate vindication or its consignment to the annals of Australian constitutional law.
SUGGESTED CITATION: Amanda Sapienza, ‘CPCF: Will Tampa finally get its day in the High Court?’, Constitutional Critique, 11 October 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

The following blog-post has been contributed by CRU Intern Tim Craven:
It is generally agreed that the Commonwealth’s power to legislate ‘with respect to the people of any race for whom it is deemed necessary to make special laws’ (s. 51(xxvi)) should be repealed in any future constitutional referendum. Not only is repeal justified on the basis of its unclear scope but also the very existence of a power predicated on race – extra-judicially described by Chief Justice Robert French as a ‘harmful taxonomy of humanity’ – upsets contemporary Australian standards of equality. If the race power is repealed but not replaced, there is a risk that a number of present and future Commonwealth laws beneficial to Aboriginal people and Torres Strait Islanders would not find support within other heads of power. There are different views as to what exactly should replace s. 51(xxvi), with many of the suggested formulae bringing with them the problems that compel its repeal in the first place. A less commonly explored approach is to consider how current and future Indigenous-related legislation could draw on what remains in the Constitution so that a replacement head of power could be a more limited and nuanced power that is based upon need.
Proposed replacement heads of power generally allow the Commonwealth to legislate with regard to ‘Aboriginal and Torres Strait Islander peoples.’ This arguably perpetuates problems associated with s. 51(xxvi) related to its characterisation as a ‘people’s power’, that is, one that enables the government to make laws with respect to a specific group of people. Any form of differential operation, even if confined to positive measures, is itself a ‘false taxonomy’ by continuing to rely on racial classification as a criterion of legislative validity. This is inconsistent with notions of the legal equality of the people. Additionally, difficult questions of characterisation arise under a ‘people’s power.’ According to former NSW Chief Justice James Spigelman, a power based on making distinctions between people ‘may enable discriminatory laws to be enacted pursuant to [it].’
A proposed cure is to include qualifiers designed to clearly exclude discrimination from the purposes of the power, such as confining laws to Indigenous ‘benefit’ or ‘advancement’ or clarifying that laws should be passed ‘so as not to discriminate against them on the basis of their race.’ However, these terms bring with them interpretive difficulties, involving normative judgments for a branch of government designed to be apolitical. This may lead to the court declining to make such judgments and deferring to the legislature. Another suggestion has been to include a broad racial discrimination prohibition in the Constitution, but this is likely to muddy the issue of Indigenous recognition at referendum, jeopardizing the success of positive reforms.
An alternative worth considering is replacing the ‘race power’ with one still allowing the Commonwealth to legislate in relation to Indigenous issues, but on the basis of ‘subject-matters’ as opposed to ‘peoples.’ This does not deny that the Commonwealth should still have the power to ameliorate the effects of past inequality but attempts to avoid the pitfalls of a peoples power. This would not only remove the problematic connotations of ‘race’ as a constitutional fact but would also be less fraught with interpretive difficulties. Indeed, Justice Spigelman contended that ‘a subject matter power is…more likely to be read down in accordance with contemporary requirements of the rule of law and the rights of citizenship than a peoples power.’
What then should these subject matters be? Drafting a head of power that simultaneously upholds present indigenous-related legislation and ensures the validity of unknown future laws is no easy task. Any constitutional amendment should be formulated on the basis of need. As such, one avenue worth considering could be to determine what laws may stand up or be passed under the Constitution as is, and then to fill in the gaps with a subject matter power.
Importantly, the Commonwealth has already made use of the grants power (s. 96) to address indigenous issues relating to health, education, economic development and welfare through the provision of tied federal grants to the States. Repeal of the race power will not affect the status quo in that regard. The Commonwealth also has direct welfare powers in s 51(xxiiiA), including benefits to students, medical and dental services, unemployment benefits and family allowances.
The other provision the Commonwealth could rely upon is its power to legislate with respect to ‘external affairs’ (s. 51(xxix)). This power is particularly attractive as, owing to the High Court’s prevailing liberal interpretation, it is one that allows the Commonwealth to legislate on an expansive range of topics not confined within section 51. The mere existence of a treaty to which Australia is a party is, itself, enough to support a Commonwealth law that implements obligations under that treaty. With this in mind, it is important to consider what international agreements canvass indigenous-related issues. At present though, the utility of these treaties lies only in their potential to activate the external affairs power, as few are explicitly relevant to indigenous issues and Australia is yet to ratify those that are. Indeed, while some such as the World Heritage Properties Conservation Act have already been acknowledged judicially as relevant to Indigenous-related laws, only one treaty to which Australia is a party, the Convention on the Rights of the Child, makes direct reference to indigenous peoples (Article 30). Importantly though, Australia has previously indicated that it is considering ratification of the International Labor Organization’s Convention No. 169, the current most comprehensive formal treaty related to indigenous issues. Ratification would support domestic legislation on cultural heritage (Article 5), customary laws (Article 8), land rights (Article 14), and representative bodies (Article 6).
Reliance on the external affairs power would still bring with it some uncertainty, though, as any putative indigenous-related legislation must ‘conform’ to the provision of the treaties which it is intended to implement. Indeed, whilst it is not necessary to implement all provisions of a treaty, nor is it necessarily desirable to do so, the Commonwealth cannot pick and choose from them as it likes. According to the majority in the Industrial Relations Act case ‘a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention.’
The inability of the Commonwealth to ‘cherry pick’ for fear of rendering legislation constitutionally invalid is potentially problematic for a number of reasons. First, the legislature is confined to implementing obligations imposed by the treaty and cannot stray too far outside their terms. Secondly, any indigenous-related legislation would be vulnerable to legal challenge. For example, a seemingly essential condition of ILO No 169 is the requirement for consultation prior to passing indigenous-specific laws (Article 6), rendering any legislation relying upon this Convention susceptible to challenge if these procedures aren’t sufficiently followed or included within its provisions. The extent and nature of this ‘consultation’ may itself be subject to interpretational difficulties.
Whilst this feature of the external affairs power may be viewed as a disadvantage to the Commonwealth, it may be advantageous from the perspective of Aboriginal people and Torres Strait Islanders. Importantly, the requirement of conformity militates against issues of characterisation raised earlier. Given that these treaty obligations have been drafted solely for indigenous benefit, relying on s. 51 (xxix) to give effect to them means that the High Court is likely to assess any disadvantageous or detrimental legislation as not reasonably appropriate and adapted to implementing the terms of a treaty. Additionally, Aboriginal and Torres Strait Islanders may see particular benefit in a requirement of genuine consultation before laws affecting their interests are made. This, however, is likely to be a politically contentious issue.
The broadest international instrument significant to Aboriginal and Torres Strait Islanders is the United Nations Declaration on the Rights of Indigenous Peoples, which Australia has formally endorsed. It is unlikely that a mere declaration would currently be regarded as sufficient to support the enactment of legislation under the external affairs power, but it remains possible that the High Court might expand its interpretation of the power in this manner in the future, opening up a broader Commonwealth legislative power with regard to Indigenous affairs.
Clearly, formulating a replacement to the ‘race power’ is fraught with many challenges. Those drafting a constitutional amendment should explore a number of different avenues, ranging from a people power to a subject-matter power, taking into account the range of other powers upon which the Commonwealth may rely.
SUGGESTED CITATION: Tim Craven, ‘Filling the gaps – Options for replacing the race power’, Constitutional Critique, 1 June 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

The following blog post has been contributed by CRU intern, STEPHEN SHARPE:
When the Expert Panel on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples proposed the insertion of an anti-racial discrimination provision in the Constitution, it had to struggle with the vexed problem of how to prohibit racial discrimination while still permitting measures intended to reverse or ameliorate the practical effects of past discrimination. Should it adopt the ‘special measures’ approach used in the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’), which was adopted by the Racial Discrimination Act 1975 (Cth) (‘RDA’), or should it use different terminology to fulfill its intention?
One of the difficulties is that we have had very little indication from the High Court of the meaning of ‘special measures’ and how far it extends in Australian law. Until recently, the only substantive authority on the issue was the High Court’s 1985 judgment in Gerhardy v Brown, and in particular the judgment of Brennan J. Given the recent controversies concerning the Northern Territory intervention and the use of alcohol restriction laws in Aboriginal communities, greater clarity upon what amounts to a ‘special measure’ has been desperately needed.
The position has now changed with the High Court handing down a recent judgment dealing with special measures – Maloney v The Queen [2013]. The High Court largely endorsed Brennan J’s four indicia of what amounts to a special measure, as set out in Gerhardy v Brown:

A special measure (1) confers a benefit on some or all members of a class, (2) the 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. (1985) 159 CLR 70, 133.

The Court in Maloney revealed a strong deference to Parliament’s assessment that criminal sanctions may constitute ‘special measures’ under the RDA, providing governments with a wide capacity to implement and enforce restrictive alcohol laws in Indigenous communities. The judgment suggests that the Court will interpret the Parliament’s powers broadly under any prospective non-discrimination clauses included as a part of Aboriginal and Torres Strait Islander recognition within the Australian Constitution.
Maloney v The Queen
In Maloney, a majority of Justices found the regulations restricting the possession of alcohol in the Aboriginal community of Palm Island to be an infringement of either one or a number of rights protected by s 10 of the RDA, which operates to ensure equality before the law, by conferring rights upon those discriminated against in legislation. However, the Court unanimously held that the laws implementing the alcohol restrictions were valid special measures under s 8 of the RDA, and therefore exempt from being considered discriminatory. The necessity and relevance of consultation or consensus was found to be largely a matter of political judgment, to be determined by Parliament, outside the jurisdiction of the Court.
Although the judgments emphasized the role of the RDA in giving effect to Australia’s obligations under the ICERD, none of the Justices were willing to accept the current international consensus of the United Nations ICERD Committee as having any bearing on the classification of laws as special measures. The Court found that the prior informed consent or consultation of an affected community, a requirement adopted by the ICERD Committee, was unnecessary for a law to be a special measure. While the majority referred to Brennan J’s remark in Gerhardy, that the wishes of the beneficiaries of special measures ‘are of great importance (perhaps essential)’, the Justices considered this not to be an essential feature in determining a special measure’s legitimacy. The effect is to vest greater power and discretion in the Parliament and the Government through the making of regulations that affect Aboriginal and Torres Strait Islander peoples.
The Court also largely deferred to Parliament in determining whether a special measure was for an affected community’s benefit and of ongoing necessity. The judiciary’s role was essentially defined as determining whether it was reasonably open for a legislative finding that a special measure was required, and that such a measure’s sole purpose was the adequate advancement of the affected community. Various standards of proportionality, reasonable necessity, and what is reasonably appropriate and adapted, were found to be in some way applicable to the legislation. However, the Court’s emphasis was on the initial legislative finding, supported primarily by the Cape York Justice Study, that some action was required to ensure the equal enjoyment of human rights and fundamental freedoms on Palm Island through the restriction of alcohol possession. This emphasis leaves little room for domestic challenges to restrictive criminal measures that have purportedly been enacted for the advancement of a racial group made under the RDA. The refusal to build upon the obiter of Brennan J and strengthen the community consultation requirement developed by international law, suggests a Court and a country out of step with contemporary notions of discrimination, and further emphasizes the need for both the constitutional recognition of Indigenous Australians and the review of the RDA.
Maloney and Stronger Futures
The Maloney decision’s inconsistency with international law was highlighted by the compatibility review undertaken by the Parliamentary Joint Committee on Human Rights. The Committee agreed with the UN Special Rapporteur on Indigenous Peoples that a measure criminalizing the conduct of members of the community for the benefit of the community as a whole should not be considered a special measure. This line of argument was led by the appellant in Maloney, but received little attention in the judgments. This again demonstrates the broad purview given by the High Court to Parliament under s 8 special measures.
The Committee suggested that the RDA be reviewed so that infringements of s 10, occasioned by laws like those in Maloney, do not have to be justified as special measures under s 8. The Committee suggested that such actions should be considered under a broader justification in international law of a reasonable and proportionate measure in pursuit of a legitimate goal. Whether or not this broader exception would place a greater emphasis on consultation with the affected community, or allow for equally restrictive laws as those held valid by Maloney, is yet to be tested. However, the use of proportionality, and the legal history it imports, may assist in refining an approach to such legislation. The High Court’s willingness to stretch, in terms of current international law, the domestic understanding of special measures in Maloney to encompass all forms of discriminatory laws for the benefit of a racial group, emphasizes the need for reform of racial discrimination law.
Non-Discrimination as a part of Constitutional Recognition
Section 116A, proposed by the Expert Panel on Indigenous Constitutional Recognition and designed to enshrine non-discrimination in the Constitution, avoids the language of special measures and opts for excepting ‘laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.’ The suggested provision accommodates a broader range of exceptions than the RDA and draws upon similar international constitutional and bill of rights provisions, such as those in New Zealand and Canada, in emphasizing the historic disadvantage of the relevant racial group. Significantly, the ‘sole purpose’ requirement of s 8 special measures is absent, preserving the operation of laws with multiple purposes and aims.
The Panel’s recommended s 51A, gives the Parliament the power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples, and contains an acknowledgement of ‘the need to secure the advancement of Aboriginal and Torres Strait Islander peoples’ in its preamble. Such wording accommodates the language of s 8 special measures by making it potentially relevant to the interpretation of the proposed power’s scope, but avoids adopting it as substantive law by placing it in the preamble. The associated jurisprudence concerning the need for such laws to be for the benefit of a community may therefore be drawn upon, if the High Court chooses to use the preamble in this way, without being imposed as a legal requirement.
Like the Report of the Human Rights Committee discussed above, the Expert Panel’s Report suggests a wariness of special measures that criminalize community conduct or erode principles of self-determination. The Maloney case, however, shows that the current High Court is prepared to defer to the judgment of the Parliament in upholding as special measures restrictive alcohol laws, such as those in place on Palm Island, which criminalize the conduct of a racial group in the pursuit of substantive equality, with or without the consultation of the affected community. Those reviewing the Expert Panel’s recommendations should now take into account the High Court’s Maloney decision in assessing how the notion of special measures should be dealt with in any anti-discrimination measure to be inserted in the Constitution and whether deference to Parliament should be replaced by judicial assessments of proportionality to legitimate ends.
SUGGESTED CITATION: Stephen Sharpe, ‘Finding the balance between special measures and the prohibition of discrimination’, Constitutional Critique, 9 February 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).