In today’s decision in Maloney v The Queen the High Court of Australia unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland which held that a law restricting possession of alcohol on Palm Island was not invalid by reason of inconsistency with section 10 of the Racial Discrimination Act 1975 (Cth).
Ms Maloney is an Indigenous resident of Palm Island in Queensland. She was convicted of the offence of being in possession of more than a prescribed quantity of liquor in a restricted area on Palm Island contrary to section 168B of the Liquor Act 1992 (Qld). Schedule 1R of the Liquor Regulation, made under the Act, has the effect of restricting the nature and quantity of liquor which people may have in their possession in public areas on Palm Island. The Palm Island community is composed almost entirely of Indigenous people.
Ms Maloney challenged her conviction, arguing that Schedule 1R of the Liquor Regulation contravened the Racial Discrimination Act. By section 10 of that Act, where a law has the effect that persons of a particular race enjoy a right to a more limited extent than persons of another race, the persons adversely affected shall enjoy that right to the same extent as the persons of that other race. Ms Maloney argued that the Liquor Regulation affected her enjoyment of three rights: the right to equal treatment before courts and tribunals; the right to own property; and the right to access places and services intended for use by the general public. This was disputed by the State of Queensland.
The State of Queensland also argued that the Liquor Regulation is a “special measure” taken for the sole purpose of securing the adequate advancement of a racial group requiring such protection as may be necessary to ensure that group’s equal enjoyment or exercise of human rights and fundamental freedoms. If so, then section 10 did not apply.
The six-member bench of the High Court unanimously held that the Liquor Regulation constituted a “special measure” within the meaning of the Act. In doing so, the Court rejected the proposition that a necessary prerequisite for a “special measure” was that there had been consultation (much less “adequate consultation”) with the Indigenous community. They also rejected the proposition that the Liquor Regulation was not a “special measure” because there were less restrictive means of achieving the undisputed aim of addressing alcohol-related violence on Palm Island.
Their Honours differed in relation to whether or not the Liquor Act resulted in a “right” being enjoyed “to a more limited extent”. Kiefel J held that none of the three rights identified by Ms Maloney was affected by the Liquor Regulation. Of the remaining judges:
- French CJ and Gageler J rejected the proposition that Ms Maloney’s right to equal treatment before courts and tribunals had been affected (holding, in effect, that this right was directed towards procedural laws and not substantive laws). Hayne J (with whom Crennan J agreed) doubted that this right had been affected but did not need to decide the question, and Bell J considered it unnecessary and therefore inappropriate to decide;
- French CJ, Hayne J (with whom CrennanJ agreed), Bell J and Gageler J held that Ms Maloney’s right to own property had been affected;
- French CJ rejected the proposition that the Liquor regulation affected Ms Maloney’s right of access to a place or service intended for use by the general public. Hayne J (with whom Crennan J agreed) doubted that this right had been affected but did not need to decide the question. Bell J and Gageler J held that this right was affected.
- the proper approach to identifying the “rights” referred to in section 10, and the extent to which they are “limited” by a particular legislative provision;
- the proper function of the courts in determining whether or not a particular law is a “special measure”, and the deference to be given to the legislative and executive arms of government in that determination;
- the relevance (or not) of determinations by international bodies in giving content to the term “special measures”;
- the relevance of prior consultation with affected communities in determining whether or not a law was a “special measure”;
- more generally, the proper approach of the courts in finding “constitutional facts” for the purposes of ruling upon invalidity of legislation;
- the relevance of “proportionality” in determining whether there has been a contravention of section 10, and in determining whether or not a law is a “special measure”.