Law Society Journal 2009: What will constitute a legitimate interference with rights?
A new approach to race discrimination?
Christine
Fougere
Deputy Director
Legal Section
Australian
Human Rights Commission
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Introduction
A recent decision of the full Federal Court in Bropho v State of Western
Australia[1] has created
the opportunity to reconsider the operation of s 10 of the Racial
Discrimination Act 1975 (Cth). Section 10(1) of the RDA is unique in
discrimination law around the country. It is concerned with the operation and
effect of laws rather than with making the actions of individuals unlawful.
Importantly, State legislation may be found to be inconsistent with s 10 of the
RDA, and therefore invalid because of the operation of s 109 of the
Constitution, if a person of a particular race does not enjoy a right to the
same extent as a person of a different race because of the operation or effect
of the State law.
Until now, the approach taken to s 10 has generally been one of ‘formal
equality’ such that any differential treatment created by a law is likely
to be discriminatory, but that s 10 of the RDA will not be breached if the law
amounts to a special measure under s 8 of the
RDA.[2] The decision of the full
Court in Bropho suggests that some forms of differential treatment
resulting from the operation or effect of a State law will be permissible,
namely, those that achieve a ‘legitimate and non-discriminatory public
²µ´Ç²¹±ô.’[3] If this test is
satisfied, then the law will not offend s 10 and there will be no need to
consider whether the law amounts to a special measure.
The facts in Bropho
In 1994, Reserve 43131 (‘the
Reserve’) was designated for the use and benefit of Aboriginal persons and
a management order placed the care, control and management of the Reserve with
the members of the Swan Valley Nyungah Community (‘SVC’). In
response to concerns about the sexual and other abuse of women and children on
the Reserve, the Reserves (Reserve 43131) Act 2003 (WA) was introduced.
Amongst other things, the Reserves Act removed the power of care, control and
management of the Reserve from the SVC and placed it with an Administrator who
was empowered to make direction in relation to the Reserve. The appointed
Administrator prohibited entry to the Reserve without his authority and ordered
some of the residents to leave. However, many of the residents, alerted to the
issues, had already left the Reserve by the time that the order was made.
Bella Bropho, a member of the SVC and a former resident of the Reserve,
complained, amongst other things, that the Reserves Act interfered with the
enjoyment and exercise of her human rights and fundamental freedoms including
the right to own property.
Decision at first instance
At first
instance,[4] the trial judge found
that neither the Reserves Act nor the actions of the administrator were racially
discriminatory.
His Honour noted, amongst other things, that in considering whether a law is
inconsistent with s 10, regard may be had to the reasonableness of the law in
question.[5] He held that the
Reserves Act and the actions taken under it were both reasonable and
proportionate.[6] His Honour
concluded, however, that even if he had formed the view that the Act was in some
way inconsistent with s 10 of the RDA, the entirety of the Reserves Act was a
special measure and was therefore
valid.[7]
His Honour also found that the applicants had no right of ownership over the
Reserve and that any right they did have was in the nature of a statutory
responsibility pursuant to the Management Order.
What did the full Federal Court decide?
The full Court
unanimously dismissed the applicant’s appeal.
- How should the ‘right to own property’ be interpreted under s
10?
The full Court disagreed with the trial judge’s approach to
property rights and held that the ‘right to own property alone as well as
in association with others’[8] should be interpreted in light of international jurisprudence rather than being
restricted to 'ownership of kind analogous to forms of property which have been
inherited or adapted from the English system of property law or conferred by
statute'.[9] In particular, the full
Court had regard to the jurisprudence of the Inter-American Court of Human
Rights, which recognises the proprietary nature of communal rights in several
Latin American indigenous communities.
- ‘Rights’ are not absolute
The full Court
held, however, that the right to own property is not
absolute.[10] The full Court noted
that ‘it has long been recognised in human rights jurisprudence that all
rights in a democratic society must be balanced against other competing rights
and values, and the precise content of the relevant right or freedom must
accommodate legitimate laws of, and rights recognised by, the society in which
the human right is said to
²¹°ù¾±²õ±ð’.[11]
Whilst some caution needs to be exercised in applying that statement to all
human rights,[12] the Court held
that, in relation to the right to own property, it was not inconsistent with s
10 to limit those rights in accordance with the legitimate public interest to
protect the safety and welfare of women residing at the Reserve in question. The
Court stated that ‘no property right, regardless of its source or genesis,
is absolute in nature and no invalid diminution of property rights occur where
the State acts in order to achieve a legitimate and non-discriminatory public
²µ´Ç²¹±ô.’[13]
The Court also noted, however, that it will always be a question of degree in
determining the extent to which the content of a universal human right is
modified or limited by legitimate laws and rights recognised in Australia and
its reasoning was not ‘intended to imply that basic human rights protected
by the [RDA] can be compromised by laws which have an ostensible public purpose
but which are, in truth,
»å¾±²õ³¦°ù¾±³¾¾±²Ô²¹³Ù´Ç°ù²â’.[14]
On the basis of this reasoning, the full Court held that the Reserves Act was
not inconsistent with s 10 of the RDA. Given this finding, there was no need to
consider whether the Reserves Act amounted to a special measure.
Conclusion
The application of the Bropho decision in
relation to rights other than property rights remains to be seen as well as the
application of the ‘legitimate and non-discriminatory public goal’
proviso. Careful consideration will need to be given in determining what will
constitute a ‘legitimate’ interference with rights in order to
ensure that s10(1) remains an effective protection against racially
discriminatory laws.[15]
[1] [2008] FCAFC 100 (Ryan, Moore
and Tamberlin JJ). The ºÚÁÏÇ鱨վ was granted leave to
intervene in these proceedings by the High Court on 15 November 2007. The
Commission’s written submissions are available at:
http://humanrights.gov.au/legal/submissions_court/intervention/bella_bropho.html
[2] See, for example, the approach taken Gerhardy v Brown (1985) 159 CLR 70,
113-114 (Wilson J), 131 (Brennan J). This aspect of the Court’s reasoning
has been the subject of academic commentary: see Sarah Pritchard, ‘Special
Measures’, in Racial Discrimination Act 1975: A Review, Race
Discrimination Commissioner, 1995; Wojciech Sadurski, ‘Gerhardy v Brown v
The Concept of Discrimination: Reflections on the Landmark Case that
Wasn’t’, (1986) 11 Sydney Law Review 5.
[3] Ibid
[83].
[4] Bropho v Western
Australia [2007] FCA 519 (Nicholson
J).
[5] Ibid
[544]-[551].
[6] Ibid
[551].
[7] Ibid
[580].
[8] Contained in article
5(d)(v) of the International Convention on the Elimination of All Forms of
Racial Discrimination.
[9] [2008] FCAFC 100 [78].
[10] Ibid
[80].
[11] Ibid [81].
[12] Given that some rights,
including the rights to life, to be free from torture and to be free from
slavery are non-derogable rights (see article 4(2) of the International
Covenant of Civil and Political Rights) and therefore cannot be balanced
against other competing rights and values.
[13] [2008] FCAFC 100
[83].
[14] Ibid
[82].
[15] The Commission
understands that the applicant has sought special leave to appeal the full
Court’s decision to the High Court. Suggestions as to how
‘legitimacy’ may be assessed are also discussed in the
Commission’s written submissions in the matter of Morton v Queensland
Police Service D75/2008, an appeal to the Townsville District Court
concerning laws restricting the possession of alcohol on Palm Island. The
Commission was granted leave to make submissions in the matter as amicus
curiae: http://humanrights.gov.au/legal/submissions_court/intervention/2008/20081003_alcohol_palm.html. .