CHAPTER 4
4.1 The Racial Discrimination Act 1975 commenced operation on 31 October
1975. The most relevant aspects of the RDA for the purposes of this report
are as follows:
PART II - PROHIBITION OF RACIAL DISCRIMINATION
Exceptions
8. (1) This Part 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).
(2) This Part does not apply to:
(a) any provision of a deed, will or other instrument, whether
made before or after the commencement of this Part, that confers charitable
benefits, or enables charitable benefits to be conferred, on persons
of a particular race, colour or national or ethnic origin; or
(b) any act done in order to comply with such a provision.
(3) In this section, "charitable benefits" means benefits
for purposes that are exclusively charitable according to the law in
force in any State or Territory.
Racial discrimination to be unlawful
9. (1) 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.
(1A) Where:
(a) a person requires another person to comply with a term,
condition or requirement which is not reasonable having regard to
the circumstances of the case; and
(b) the other person does not or cannot comply with the term,
condition or requirement; and
(c) the requirement to comply has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on
an equal footing, by persons of the same race, colour, descent or
national or ethnic origin as the other person, of any human right
or fundamental freedom in the political, economic, social, cultural
or any other field of public life;
the act of requiring such compliance is to be treated, for the
purposes of this Part, as an act involving a distinction based on, or
an act done by reason of, the other person's race, colour, descent or
national or ethnic origin.
(2) A reference in this section to a human right or fundamental
freedom in the political, economic, social, cultural or any other field
of public life includes any right of a kind referred to in Article 5
of the Convention.
(3) This section does not apply in respect of the employment,
or an application for the employment, of a person on a ship or aircraft
(not being an Australian ship or aircraft) if that person was engaged,
or applied, for that employment outside Australia.
(4) The succeeding provisions of this Part do not limit the generality
of this section.
Right to equality before the law
10. (1) If, by reason of, or 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.
(2) A reference in subsection (1) to a right includes a reference
to a right of a kind referred to in Article 5 of the Convention.
(3) Where a law contains a provision that:
(a) authorises property owned by an Aboriginal or a Torres
Strait Islander to be managed by another person without the consent
of the Aboriginal or Torres Strait Islander; or
(b) prevents or restricts an Aboriginal or a Torres Strait
Islander from terminating the management by another person of property
owned by the Aboriginal or Torres Strait Islander;
not being a provision that applies to persons generally without
regard to their race, colour or national or ethnic origin, that provision
shall be deemed to be a provision in relation to which subsection (1)
applies and a reference in that subsection to a right includes a reference
to a right of a person to manage property owned by the person.
4.2 To summarise and simplify these provisions:
- s.8 allows for 'special measures' pursuant to paragraph 4 of Article
1 of the International Convention on the Elimination of Racial Discrimination;
- s.9 makes it unlawful for a person to do any act involving a distinction
based on race which has the effect of impairing the enjoyment of any
human right or fundamental freedom; and
- s.10 provides that where by reason of any law persons of a particular
race do not enjoy a right to the same extent as persons of another race,
then by force of that section the first-mentioned persons enjoy that
right to the same extent.
The Attorney-General's Department has advised that:
The traditional legal position in Australia has been that any
laws which deal with racial matters either have to provide formal equality
- that means they have to treat people of different races in the same
way - or have to be a special measure. [1]
4.3 In Mabo (No1) a majority of the High Court held that the Queensland
Coast Islands Declaratory Act 1985 (Qld) would have extinguished native
title but for the operation of s.10 of the RDA. The state legislation
was accordingly rendered inoperative.
4.4 The view taken by the High Court about the RDA in Mabo (No2) is less
straightforward. Prior to the RDA, grants of land extinguished native
title; a majority of the High Court held in Mabo (No2) that extinguishment
of native title by inconsistent Crown Grant did not give rise to a claim
for compensatory damages. For grants made since the commencement of the
RDA in 1975, however, it has been suggested that where such a grant would
have the effect of extinguishing native title interests without compensation,
and where such a grant would not extinguish other relevant interests without
compensation, the effect may be discriminatory in relation to a human
right to own property and not be arbitrarily deprived of it. [2]
4.5 Comment was made on this issue by the Attorney-General's Department
in August 1993 as follows:
If the effect of making a grant or doing an act is discriminatory,
there are two possible results in respect to grants made since 1975:
- that the RDA protects native title from extinguishment and
renders the relevant legislation or acts under that legislation wholly
or partly invalid; or
- that the RDA operates so as to provide a right of compensation
for the extinguishment of native title.
There is doubt as to which view a court would take (see, eg, Toohey J's
comment that 'nothing in this judgement should be taken to suggest that
the titles of those to whom land has been alienated by the Crown may now
be disturbed': 153, and compare it with his comments about the impact
of the RDA: 167-169). On the latter view, statutory titles are valid and
the RDA may give native title holders a right to compensation, subject
to the operation of statutes of limitations. On this view, appropriate
compensation would be due to holders of native title, where this has been
extinguished or impaired. (It is also perhaps arguable that, in the case
of mining leases, the RDA would operate to prevent the extinguishment
of native title. The rights of conventional property owners are not
permanently curtailed or extinguished by the grant of a mining lease;
rather, there is only temporary interference during the term of the lease.
If, as is [sic] may well be the case, a mining lease permanently affects
native title, equality of treatment might require that native title rights
survive the grant of a mining lease, with compensation payable for the
temporary disturbance of rights.) On the former view, the RDA may in some
cases render wholly or partly invalid State laws or grants. [3]
4.6 For this reason, ss.14, 15, 19 and 229 of the Native Title Act 1993
provide for the validation for 'past acts'. (Section 7(1) provides that
nothing in the NTA affects the operation of the RDA and s.7(2) provides
that 7(1) does not affect the validation of past acts.) Land grants first
made between October 1975 and January 1994 now are valid and compensation
may be payable. Crucially, however, and concerning extinguishment, the
question is whether any native title rights have survived. The wording
of the NTA (s.15) is that 'the act extinguishes the native title concerned'.
It may be an open question whether rights such as a right to negotiate,
if it is a native title right, has survived this legislative act.
4.7 Similarly, with regard to land grants that were validly issued prior
to October 1975 (and, therefore, not subject to the RDA), the question
remains whether the native title rights that may have survived (which
is a matter largely for the courts) are, since October 1975, protected
by the RDA.
4.8 The Commonwealth Departments have advised [4] that the High Court did not feel compelled
to take into account the particular characteristics of native title when
determining whether the Land (Titles and Traditional Usage) Act 1993 (WA)
and the NTA were inconsistent with the RDA: the Departments quote the
judgement:
'The two-fold operation of s.10(1) ensures that Aborigines who
are holders of native title have the same security of enjoyment
of their traditional rights over or in respect of land as others
who are holders of title granted by the Crown ...' (183 CLR, 438
- our emphasis; see also 437 and 483-483).
That is, the security may be the same, but the nature
of the right may be different. If the right is a native title
right, and if it has survived extinguishment, then it is clear that
it is protected pursuant to s.10 of the RDA until extinguished or impaired
by a later and specific legislative act of the Commonwealth.
4.9 Since the commencement of operation of the NTA, of course, native
title is also protected pursuant to the Act. Notably, the Preamble to
the NTA states that:
The law, together with initiatives announced at the time of its
introduction and others agreed on by the Parliament from time to time,
is intended, for the purposes of paragraph 4 of Article 1 of the International
Convention of the Elimination of All Forms of Racial Discrimination
and the Racial Discrimination Act 1975, to be a special measure
for the advancement and protection of Aboriginal peoples and Torres
Strait Islanders, and is intended to further advance the process of
reconciliation among all Australians. [5]
It has already been noted that s.8 of the RDA allows 'special measures'
which confer benefits on racial grounds.
4.10 Submission No 82 from the Commonwealth Departments confirms that
the basis of the NTA was the provision of special measures and a 'dualistic
approach of formal equality':
This dualistic approach of formal equality, subject only to the
provision of special measures, is also the basis on which the NTA was
enacted. Thus many of the basic provisions of the NTA provide for equality
of treatment of native title holders with 'ordinary title holders',
in respect to whether an act can be done and what compensation and procedural
rights apply (see sections 22, 23 and 235), whilst others including
the right to negotiate (RTN) were justified in terms of being 'special
measures'. This understanding of the NTA and the RTN provisions appears
in the Preamble to the Act, and the Second Reading Speech and Explanatory
Memorandum to the Native Title Bill 1993. [6]
4.11 If native title, (perhaps) including a right to negotiate, is protected
by the NTA, what scope is there for amending the NTA without being inconsistent
with the RDA? Under the RDA 'special measures' (s.8) may be either conferred
or withdrawn by legislative act. The Commonwealth Departments have advised:
The RDA whilst recognising special measures as a permissible
exception to 'non-discrimination', and thus permitting positive discrimination,
does not impose an obligation on governments to establish special measures
or to continue them either in their current terms or with amendments.
The necessity for such measures and their form are matters to be decided
in the political arena. [7]
4.12 Nevertheless, an alternative view has been put concerning the question
whether the parliament may legislate to amend the NTA without offending
the RDA. Paragraph 4.4 of the First Minority Report, in referring to an
advice of Mr John Basten QC, suggests that the RDA requires substantial
(or substantive) rather than merely formal equality with regard to respect
for rights. One aspect of this view is that native title as a property
right has traditionally included something like the right to negotiate,
and that legislation should respect the 'whole bundle' of native title
rights if the 'whole bundle' of non-Indigenous title rights are afforded
similar respect (even though the contents of the bundle may differ). Another
possible implication is that the right to negotiate is necessary for the
dignity of Indigenous people in socio-economic terms; ie to bring Indigenous
people to par with non-Indigenous society.
4.13 On this view, the guarantee of formal equality in s.235 of the Native
Title Act is necessary, but not sufficient, to comply with the principles
in the RDA; to comply with the RDA and achieve substantive equality the
right to negotiate would also be necessary. The withdrawal or restriction
of the right to negotiate, by way of a more stringent registration test
or any other measure, would then be contrary to the principles in the
RDA. Crucially, benefits for native title holders under the NTA would
not be regarded as special measures but merely 'benign discrimination'.
4.14 This alternative view is supported by the Aboriginal and Torres
Strait Islander Social Justice Commissioner (at pp.20 to 25 of his Native
Title Report: 1994-1995, which quotes an excerpt from an advice by Mr
Basten QC), and an article by W. Sadurski entitled Gerhardy v. Brown v.
The Concept of Discrimination: Reflections on the Landmark Case that Wasn't
(1986) 11 Sydney Law Review 5. This view would appear to run counter to
the High Court's exposition of the relevant principles in Gerhardy v.
Brown. However, there is a passage in Western Australia v. the Commonwealth
which suggests that the High Court has acknowledged the existence, if
not necessarily the merit, of the alternative view.
4.15 The alternative view, advocating that the acknowledgment of native
title rights (including the right to negotiate) does not amount to a special
measure but is in fact given to ensure substantive equality, is confronted
with questions of legal fact. The Attorney-General's Department has advised
the Committee that the substantive equality approach has not yet been
accepted in Australian law. Even were it so accepted, a substantive equality
approach would not require governments to make laws with that objective;
it would simply enable them to do so. [8]
4.16 This has been contested by Mr John Basten QC. Mr Basten relies on
a footnote to a passage from pages 483 to 484 of the Commonwealth Law
Reports in Western Australia v. the Commonwealth:
The passage made quite express, despite what the High Court had
unanimously said in Gerhardy, that the Native Title Act might be regarded
either as a special measure or as a law which, though racially discriminatory,
did not offend the Racial Discrimination Act because it was in substance
what Mr Orr has usefully identified as benign discrimination. [9]
Mr Basten expressed confidence that the High Court will accept that benign
discrimination is appropriate. [10]
Mr Basten further argued that the special measure provision itself may
import a positive obligation under international convention: in other
words, a positive obligation on government to enact special measures where
appropriate and necessary. He claimed, further, that if substantive equality
is the correct approach, it positively means that the Racial Discrimination
Act does not accept conduct which fails to recognise the inequalities
which may arise in the context of race. [11]
4.17 There are two major difficulties for Mr Basten's argument. First,
it remains true as a matter of fact that the law in Australia has yet
to move to an acceptance of the benign discrimination or substantive equality
view. Mr Basten himself acknowledges this, although he believes that there
is a 'very real likelihood' of the position changing in the future. [12]
It is difficult to share Mr Basten's expectation in this matter, or his
reliance on the footnote in Western Australia v. the Commonwealth (1995).
Further, the Committee cannot support any suggestion that the passage
referred to in that judgement clearly identifies the NTA as 'benign discrimination';
the relevant sentence is :
But if there were any discrepancy in the operation of the two
Acts, the Native Title Act can be regarded either as a special measure
under s.8 of the Racial Discrimination Act ... or as a law which, though
it makes racial distinctions, is not racially discriminatory so as to
offend the Racial Discrimination Act ...
Arguably, the High Court merely noted the possibility in theory that
the 'benign discrimination' view presented an alternative to the 'special
measure' approach. To suggest that the High Court is likely to move to
the 'benign discrimination' position in the future is to draw an unacceptably
long bow. When it came for the High Court to actually decide in the case
of Western Australia v. the Commonwealth, it took the formal equality
approach:
They looked at the rights that native title holders and people
who had rights under that Act had. They looked at the rights that the
freeholders and other titleholders had. They held that it was racially
discriminatory because the native title holders and the people with
rights under the Western Australia Act had fewer rights than freeholders
and others had. They did not address issues of substantive equality
in that analysis. [13]
4.18 Second, if the alternative view is correct, the States and Territories
(whose legislation is subject to the RDA) might have to consider the differential
impact of a number of kinds of legislation on the various races or ethnic
groups within the State or Territory. Mr Basten himself has offered the
opinion that if substantive equality is the correct approach, one cannot
say that it is permissive only. [14] Hypothetically, this might have implications
extending, for example, to industrial relations, consumer or residential
tenancy legislation. And the question of conformity with the RDA would,
on the alternative view, be reviewable by the High Court which would have
to consider social and economic questions arguably more suited to the
political arms of government (which have parliamentary committees and
other ways of acquiring information on social, economic and political
policy issues). On the Government's view of the RDA the question whether
measures should be instituted to bring about substantive equality would
be a matter for parliament, with limited court review.
4.19 In summary, the Government's view is that the right to negotiate
is a 'special measure'; as such it is permitted, but not required, by
the RDA; and it may be modified without offending the principles in the
RDA. The alternative view is that the RDA requires substantive equality
(or equality of outcome); that the right to negotiate is necessary to
achieve such equality as between native title holders and ordinary title
holders in relation to the enjoyment of their property and possibly other
rights; and that the impairment of the right to negotiate would therefore
infringe the RDA. This report argues that the alternative view cannot
be accepted, and that the 'special measures' provided under the NTA can
be modified without offending the RDA.
4.20 Finally, the Committee notes another issue raised by Mr Basten QC.
He suggested that if the Native Title Amendment Bill is inconsistent with
the RDA, then it impliedly amends the RDA to the extent of such inconsistency.
And if that results in the RDA corresponding less closely to the terms
and intent of the International Convention on the Elimination of All Forms
of Racial Discrimination, the constitutional support for the RDA in its
modified form disappears (the argument being that the RDA is dependent
on close correspondence with the Convention and the support of the external
affairs power in s.51(xxix) of the Constitution). Mr Basten advised the
Committee:
Immediately one starts to interfere with the scope, purpose and
intent of the Racial Discrimination Act, there is very live danger that
the High Court will at some stage say, 'The Act no longer accords sufficiently
closely to the terms of the convention and, therefore, either the amendments
to it express or implied will be invalid or the whole Act itself will
be invalid.' [15]
This argument depends on the premise that the Native Title Amendment
Bill 1996 and Exposure Draft provisions are inconsistent with the RDA.
That premise is not accepted for the reasons already outlined.
Footnotes
[1] Evidence, p.3595.
[2] Mabo The High Court Decision on Native
Title AGPS 1993, p.24.
[3] op.cit., pp. 15, 16.
[4] Submission No 82, op.cit., p.5.
[5] Native Title Act 1993, Preamble,
p.3.
[6] Submission No 82, op.cit., p.3.
[7] ibid, p.2.
[8] Evidence, pp.3595 - 3600; the passage from
the Law Reports, including the footnote, is reproduced in this report
at Appendix 2.
[9] Evidence, p.3609.
[10] Evidence, p.3612.
[11] ibid.
[12] Evidence, p.3612.
[13] Evidence, p.3620.
[14] ibid.
[15] Evidence, p.3609.
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