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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/).