Seventh Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund

SECOND MINORITY REPORT
CONTENTS

CHAPTER 1

Formal v. Substantive Equality

The RDA and the Convention

1.1 Article 1.1 of the International Convention on the Elimination of All Forms of Racial Discrimination ('the Convention') provides:

In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

Consistent with the fact that the concept of discrimination at international law does not include benign discrimination [1], Article 1.4 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.

1.2 Article 2 of the Convention condemns and prohibits racial discrimination (as defined by Article 1), and enjoins States Parties to take, or in some cases refrain from, certain actions:

1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organisations;

(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation;

(e) Each State Party undertakes to encourage, where appropriate, integrationist multi-racial organisations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

1.3 Article 5 amplifies on Article 2 and lists examples of rights covered by the Convention:

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:-

(a) The right to equal treatment before the tribunals and all other organs administering justice;

(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;

(c) Political rights, in particular the rights to participate in elections - to vote and to stand for election - on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(d) Other civil rights, in particular:-

(i) The right to freedom of movement and residence within the border of the State;

(ii) The right to leave any country, including one's own, and to return to one's country;

(iii) The right to nationality;

(iv) The right to marriage and choice of spouse;

(v) The right to own property alone as well as in association with others;

(vi) The right to inherit;

(vii) The right to freedom of thought, conscience and religion;

(viii) The right to freedom of opinion and expression;

(ix) The right to freedom of peaceful assembly and association;

(e) Economic, social and cultural rights, in particular:

(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

(ii) The right to form and join trade unions;

(iii) The right to housing;

(iv) The right to public health, medical care, social security and social services;

(v) The right to education and training;

(vi) The right to equal participation in cultural activities;

(f) The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks.

1.4 The Racial Discrimination Act 1975 (Cth) (RDA) seeks to implement Australia's obligations under the Convention. The Preamble to the RDA provides:

AND WHEREAS it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention . . . (emphasis added)

1.5 To this end, s.9(1) of the RDA provides:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

And s.10(1) of the RDA provides:

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.

In relation to ss.9 and 10 'rights' (and 'fundamental freedoms in the case of s.9) 'includes' those referred to in article 5 of the Convention. [2] However, rights and fundamental freedoms protected by ss.9 and 10 would not appear to be limited to those listed in Article 5. [3]

1.6 Section 8(1) makes it clear, in the interest of more abundant caution [4], that:

(1) This Part [including ss.9 and 10] does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10 (1) applies by virtue of subsection 10 (3). [5]

 

Benign Discrimination and Substantive Equality

1.7 Two points should be made about the Convention and the RDA. First, benign discrimination does not fall within the definition of 'discrimination' as used in those instruments. W. Sadurski, an academic lawyer, has noted:

. . . the plain language of the definition of "discrimination " in Art. 1(1) of the Convention confirms that not "any distinction . . . based on race" is discriminatory, but only such distinction based on race which "has the purpose or effect of nullifying or impairing . . . the recognition on an equal footing, of human rights. [6]

And:

. . . the notion of "discrimination" as identical with invidious (or arbitrary, or unjust) distinctions only, and not with any distinction, has gained common currency in international law. [7]

Similarly, the Law Reform Commission's report on the recognition of Aboriginal customary laws concluded that:

. . . the better view seems to be that Art 1(1) of the Convention does incorporate the general test for discrimination based on the reasonableness as opposed to the arbitrariness of particular classifications or distinctions. [8]

And Justice Gaudron noted in Street v. Queensland Bar Association that under most anti-discrimination legislation the concept of discrimination:

. . . is confined to different treatment that is not appropriate to a relevant difference. [9]

1.8 The second point about the RDA and the Convention is that, in our view, formal equality before the law can itself amount to discrimination if the material circumstances of different races are not the same. The Convention and the RDA require substantive (or substantial) equality between races in relation to human rights and fundamental freedoms. This follows from the general approach taken to discrimination in international law. For example, Judge Tanaka observed in the South West Africa Cases (Second Phase):

To treat unequal matters differently according to their inequality is not only permitted but required. [10]

Likewise, Justice Gaudron observed in Street that:

. . . if there is a relevant difference, a failure to accord different treatment appropriate to that difference also constitutes discrimination. [11]

Other commentators and international jurists have rejected the formal equality-before-the-law approach to the concept of discrimination. [12] It is not sufficient that all laws apply in exactly the same way to all races; laws need to make adjustments, depending on the circumstances of each race, in order to produce equality in the treatment of rights covered by the Convention and the RDA.

1.9 The Government members argue, on the basis of Gerhardy v. Brown [13], that the RDA requires formal equality and merely permits (without requiring), as an exception to the formal equality rule, Australian parliaments to enact in their political judgment special measures [14] to assist disadvantaged races. On that basis they argue that the right to negotiate is a special measure that can be withdrawn or restricted without offending the RDA. We disagree. As we stated in the First Minority Report [15], we do not accept that Gerhardy v. Brown should be regarded as seminal; in our view the integrity of the right to negotiate needs to be preserved in order to comply with the RDA and the Convention. The High Court signalled a departure from Gerhardy v. Brown in the 1995 case of Western Australia v. the Commonwealth. In that case the Court held that, as against the RDA, the Native Title Act could be justified as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the RDA or the Convention. [16] The High Court made a footnote reference to reports and articles favouring the view that a law could make distinctions without being discriminatory [17]; one of those articles contained a trenchant critique of the formal equality approach taken in Gerhardy v. Brown. [18] The relevant text and footnote are set out in Appendix 2.

1.10 1.11 Not surprisingly, the Government professes to be sceptical of the idea that the High Court is moving away from the strict formal equality approach. On Wednesday 27 November 1996 the Attorney-General's Department told the Committee:

Perhaps I am being cautious, but I cannot see as a lawyer that that sort of footnote reference, which they have engaged in Western Australia and the Commonwealth, is enough to override Gerhardy v. Brown. [19]

But, as Appendix 2 shows, the critical finding by the High Court was in the text rather than in a footnote. And it was an explicit ground for holding against Western Australia's argument that the Native Title Act was destroyed by inconsistency with the RDA. This shows quite clearly and deliberately that the High Court has already relied on the notion of substantive equality. [20]

1.12 The Government's fall-back position was that, even if the High Court moved to a substantive equality approach, ss.9 and 10 would then merely permit, without requiring, benign discrimination. In this regard, on 27 November 1996, the Attorney-General's Department told the Committee:

. . . it is possible that the courts might move to allow a substantive equality approach to be taken by governments. That would be a move to allowing it. In my submission it would not be a move to requiring it. The government would continue to have a choice as to whether it provided substantive equality or whether it provided a special measure or formal equality. [21]

However, if, as Western Australia v. the Commonwealth holds, a law can make racial distinctions without being racially discriminatory, it must be that a law which fails to make appropriate racial distinctions (to take into account difference or the position of a disadvantaged race) will be contrary to the principles in the RDA and the Convention. The substantive equality approach is a two-edged sword. Indeed, Article 2(2) of the Convention and the authorities referred in paragraph 1.8 suggest that Australia is required to take positive steps to alleviate substantive inequality in respect of rights under the Convention and RDA.

 

The Native Title Act as a Special Measure

1.13 Government members of the Committee would characterise the right to negotiate and the Native Title Act as a whole as a special measure within the meaning of s.8 of the RDA. We reject the implications of this view as asserted by the Government. [22] However, even if one accepted for the sake of argument that the Native Title Act as a whole is a special measure it would surely not continue to be so if the right to negotiate were to be cut back in the drastic ways proposed in the Native Title Amendment Bill 1996.

1.14 The Native Title Act is not an unalloyed benefit for Indigenous people. One of the Act's main purposes is to validate any Crown grants that were invalid because of the RDA. That process of validation is effectively a confiscation of property rights without any right to be heard. Because of this, taken on their own, the validation provisions in the Native Title Act [23] conflict with the RDA. [24]

1.15 The only way one could argue that the Native Title Act as a package is consistent with the RDA is by asserting that the right to negotiate, in its present form, gives the Native Title Act as a whole the character of a special measure (ie that the benefits in the right to negotiate outweigh the disadvantages in the validation provisions). But the special measure characterisation would disappear if the right to negotiate were restricted. Father Frank Brennan put the following opinion to the Senate Committee on Legal and Constitutional Affairs inquiry into the Hindmarsh Bridge Bill 1996:

What if the native title holders said they do not want the validation regime? In Gerhardy v. Brown, Justice Brennan made the point that the characterisation of a special measure depends on a political assessment by a political branch of government and that "a municipal court must accept the assessment of the political branch of government which takes the measure." But he did say that the Court would need to determine "whether the political branch of government acted reasonably in making that assessment." It would be difficult to argue that the political branch of government, including Parliament, was acting reasonably in the interests and for the advancement of native title holders by legislating a validation regime which extinguished native title retrospectively, granting only compensation. [25]

1.16 It would follow from Father Brennan's reasoning and that of others, [26] that the withdrawal of a special measure would ordinarily be subject to a reasonableness assessment by the High Court. In our view the Native Title Act as amended by the Native Title Amendment Bill 1996 is incapable of being regarded as a special measure on such an assessment. This would result in the Native Title Act as a whole breaching the principles in the RDA.

1.17 This argument is given additional force by the consideration that the net effect of the amendment proposals is much worse than when taken individually. On this subject, a recent submission by Mr John Basten QC is most useful. [27] Mr Basten has articulated problems confronting native title holders for the proposed individual amendments. Taken together, these difficulties can be overwhelming for claims and claimants:

• a native title claim has first to survive the proposed (fifteen-part) registration test pursuant to s.190A (Sub. 84, paras 2.1 to 2.6);
• even if registered, under the proposed amendments a claim will not attract the right to negotiate if the original title had been subject to renewals, regrants and extensions in relation to mining interests (Sub. 84, para 3.1);
• in theory, a short exploration licence, which had been subject to the right to negotiate, could be extended for a lengthy period without any further negotiation (Sub. 84, para 3.3);
• there is a (further) restriction on the right to negotiate where the proposed act is preceded by an act 'consisting of the creation of a right to explore or prospect': no further right to negotiate would arise where the negotiation had anticipated a possible grant of a mining right and that matter had been dealt with in the conditions of the resulting determination (Sub. 84, para 3.4);
• claimants that are not affected by development renewals, regrants and extensions that bypass the right to negotiate can lose their right by Ministerial fiat under weaker criteria than that presently provided in the Act (Sub. 84, para 4.1);
• another procedure by which acts can be excluded from the right to negotiate concerns compulsory acquisition: the proposed amendment (s.26(2)(d)(i)) allows the Commonwealth Minister to determine that the reason for the acquisition is to provide a public infrastructure facility and, unlike the present provisions, the right to negotiate would not apply even where the developer is not a government agency (Sub. 84, para 4.6);
• further, the ability to exclude future acts from the right to negotiate is to be available to government parties under less stringent criteria than presently applies (Sub. 84, paras 5.1, 5.2 and 5.3); and
• even claims that are not otherwise vulnerable can suffer intervention by Ministers (Sub. 84, paras 7.1 to 7.8).

1.18 Overall, then, the impact of the proposed amendments on native title applicants is very significant. The gauntlet which applications are required to pass would become daunting. This would not only be an injustice to native title holders, but would render the amended NTA incapable of any reasonable assessment as a 'special measure'. Even on the Government's understanding of the RDA and the status of the NTA as a 'special measure', its amended NTA taken as a whole would offend the RDA and the RDA's correspondence with the Convention on the Elimination of All Forms of Racial Discrimination would be impaired. Were the Government's amendments to the NTA adopted in their present form, the result would be an overriding of the RDA.

1.19 In summary:

• the RDA and the Convention on the Elimination of All Forms of Racial Discrimination require substantive equality;
• the High Court has already relied on the notion of substantive equality;
• substantive equality requires the recognition of difference to achieve effective equality of outcome;
• it is necessary that the Native Title Act achieve substantive equality by accommodating the inherently different nature of native title;
• in any event, the impairment of the right to negotiate proposed by the Government would result in the Native Title Act losing its character as a special measure, and would result in the Act as a whole conflicting with the Convention and the principles in the RDA.

 

Footnotes

[1] Sadurski W, Gerhardy v. Brown v. The Concept of Discrimination: Reflections on the Landmark Case that Wasn't Sydney Law Review , Vol. II, March 1986, p.5 at p.31.

[2] Sections 9(2) and 10(2).

[3] Gerhardy v. Brown (1984 - 1985) 159 CLR 70 at 85-86 (per Gibbs CJ) and 101 (per Mason J). Cf Lofgren N, Complaint Procedures Under Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination, Aboriginal Law Bulletin, Vol.3, No.67 April 1994, p.11 at p.12.

[4] Sadurski W, op. cit., pp.29 -30. We agree with Mr Sadurski's view that s.8 merely confirms that ss.9 and 10 do not include benign discrimination.

[5] Section 10(3) is directed inter alia at the compulsory management of Aboriginal property by another person without the consent of the Aboriginal concerned.

[6] Sadurski W, op. cit. at p.30.

[7] ibid, p.31.

[8] Law Reform Commission Report No. 31, The recognition of Aboriginal customary laws, Volume 1, par. 150 (p.112).

[9] 1989 168 CLR 461 at 570.

[10] As quoted by Brennan J in Gerhardy v. Brown (1984 -1985) 159 CLR 71 at p.129. Observations by Judge Tanaka are also referred to by Mr Basten QC at Evidence p.3611.

[11] 1989 168 CLR 461 at 570.

[12] See generally the authorities quoted by Brennan J in Gerhardy v. Brown op. cit. at pp.128-131.

[13] (1984 -1985) 159 CLR 71.

[14] Pursuant to s.8 of the RDA.

[15] Paragraph 4.4 (the First Minority report is contained in the Committee's Sixth Report).

[16] See Appendix 2.

[17] ibid.

[18] Sadurski W, Gerhardy v. Brown v. The Concept of Discrimination: Reflections on the Landmark Case that Wasn't Sydney Law Review , Vol. II, March 1986, p.5.

[19] Evidence, p.3619.

[20] Evidence, p.3619.

[21] Evidence, p.3600.

[22] In particular, we disagree with the implication that the right to negotiate can be diminished or withdrawn.

[23] Sections 14, 15 and 19 in particular.

[24] Section 7(2) of the Native Title Act acknowledges this.

[25] Submission no. 5 dated 11 November 1996 to the Senate Legal and Constitutional Legislation Committee inquiry into the Hindmarsh Bridge Bill 1996, p.11.

[26] For example, Evidence, p.3615.

[27] Submission No. 84; reproduced as Appendix 3 to this report.