Abstract
In this chapter, I consider the precariousness of Indigenous rights to selfgovernance when advanced or defended as nondiscrimination claims. In the absence of settled concepts of Indigenous rights in domestic law, any differential treatment of Indigenous peoples is susceptible to characterisation as a ‘special measure’, designed to ensure substantive equality by addressing Indigenous disadvantage. The special measures justification allows settler governments to defend benefits conferred on indigenous peoples when these are challenged as forms of preferential treatment, consistently with the understanding that special measures and affirmative action are interchangeable concepts (Committee on the Elimination of Racial Discrimination (CERD) 2009). The same logic, however, enables governments to defend coercive measures imposed on indigenous peoples against challenges brought by members of the burdened group. The special measures exception, designed to protect the interests of disadvantaged groups, paradoxically can make it harder for indigenous peoples to challenge settler state unilateralism and paternalism. In this chapter, I address the particular shortcomings of the special measures exception in situations where indigenous peoples are seeking to enforce the relational responsibilities of settler governments. These responsibilities have variously been expressed in settler law as trust obligations, fiduciary duties, government-to-government relationships, and significantly, as duties to consult indigenous peoples about proposed measures affecting their established or claimed rights.
Many thanks to participants at the ‘Spaces of Indigenous Justice Workshop II’ (13–14 April 2015, James E. Rogers College of Law, University of Arizona), and to participants at the ‘Making Sense of Maloney: The Significance and Consequences of Maloney v The Queen’ Roundtable (31 October 2014, Melbourne Law School, University of Melbourne). Thanks also to the MLS Academic Research Service and to Cate Read in particular. All errors and opinions are mine.
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Notes
- 1.
Now called the ‘Stronger Futures Legislation’, encompassing the Stronger Futures in the Northern Territory Act 2012 (Cth) (‘Stronger Futures Act’); Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth); and Social Security Legislation Amendment Act 2012 (Cth). The measures include income quarantining, the compulsory acquisition of leasehold interests over Aboriginal land, restrictions on the supply and possession of alcohol and pornography, and the removal of customary law and cultural practices as considerations in criminal sentencing (see Chap. 10).
- 2.
A similar idea is discussed by Steven Curry (2003) ‘Indigenous Rights’ in T. Campbell, J. Goldsworthy and A. Stone (eds) Protecting Human Rights: Instruments and Institutions (Oxford: Oxford University Press) p. 307.
- 3.
For a recent example, see V. McCall, (8 April 2016) ‘Te Awa Tupua (Whanganui River Claims Settlement) Bill: Consistency with the New Zealand Bill of Rights Act 1990’, Crown Law Office, para.3. Identical language is used in Crown Legal advice on at least 21 other Treaty settlement bills. ‘The Bill does not prima facie limit the right to freedom from discrimination affirmed by s.19 of the Bill of Rights Act through conferring assets or rights on the Whanganui Iwi that are not conferred on other people. Discrimination arises only if there is a difference in treatment on the basis of one of the prohibited grounds of discrimination between those in comparable circumstances. In the context of this settlement, which addresses specified historical claims brought by the Whanganui Iwi, no other persons or groups who are not party to those claims are in comparable circumstances to the recipients of the entitlements under the Bill.’
- 4.
See also Hayne J at para.84: ‘Those who live on Palm Island are overwhelmingly Aboriginal persons. The extent to which the residents of Palm Island enjoy the right to own property differs from the extent to which persons resident elsewhere in Queensland enjoy that right, and argument in this Court proceeded on the implicit footing that those who are resident elsewhere are predominantly non-Aboriginal persons.’ See further in para.71: ‘There was no dispute that the persons who it was alleged did not enjoy the relevant right or rights were Aboriginal persons on Palm Island.’ The interpretation is consistent with the framing of the relevant section of the Racial Discrimination Act 1975. Section 10 of the RDA does not require that the law in question make a distinction expressly based on race, but is triggered by the differential effect of such a law on members of a particular race. See, e.g., Maloney v The Queen (2013) 252 CLR 186, para.10 (French CJ).
- 5.
Several judges thought that a lack of consultation might, in some circumstances, be a factor relevant to the question of whether a measure could reasonably be deemed a ‘special measure’, but did not think this limitation was applicable to the facts. The Chief Justice noted ‘that prior consultation with an affected community and its substantial acceptance of a proposed special measure is likely to be essential to the practical implementation of that measure’: Maloney v The Queen (2013) 252 CLR 168, para.25 (French CJ). Especially, he noted, where the measure imposed a restriction on the freedoms of some members of the beneficiary group.
- 6.
Three of the arrestees subsequently brought a class action suit that was heard by the Federal Court in 2016, resulting in a finding that the Queensland police acted in breach of the Racial Discrimination Act in their conduct on the island. The police were ordered to pay compensation to the three lead applicants, one of whom had spent 19 months in jail after being convicted for inciting violence on the island. Other claims are expected to be made pending the possible appeal of the decision to the federal appellate court. See, e.g., R. Ison (21 September 2015) ‘Palm Island Case Hears of Police “Racism”’, The Australian, http://www.theaustralian.com.au/news/latest-news/palm-island-discrimination-case-to-start/news-story/3d9bb27f4b841056d9961240483471ce, date accessed 13 June 2017; C. Knaus and AAP (5 December 2016) ‘Police Discriminated against Palm Island’s Indigenous Community, Federal Court Finds’, The Guardian, https://www.theguardian.com/australia-news/2016/dec/05/police-discriminated-against-palm-island-indigenous-community-federal-court-finds, date accessed 13 June 2017.
- 7.
This is the word used in media reports. In Wotton, Mortimer J preferred to describe the events as ‘protests and fires’—‘To use the word “riot” to describe these events would be to convey an impression that does not reflect my view of the evidence before me. I have used the composite phrase “protests and fires” in these reasons to describe what happened on 26 November 2004’: Wotton v State of Queensland [No. 5] [2016] FCA 1457, para.8.
- 8.
Maloney v The Queen (2013) 252 CLR 168, para.219 (Bell J), but see para.223: ‘In circumstances in which, as will be explained, Ms Maloney’s submission that her rights under Art.5(d)(v) and (f) are impaired by the liquor restrictions should be accepted, it is unnecessary and for that reason inappropriate to determine whether s.10(1) protects a right to equality before the law of the breadth for which the AHRC contends.’ Three judges considered as relevant the human rights of vulnerable members of the community. They emphasised, in general terms, the rights of women and children to ‘security of the person and State protection from violence’ (para.249, Bell J), to ‘a life free from violence’ (para.184, Kiefel J and para.371, Gageler J, citing ICERD Art.5(b)), and to ‘public health’ (para.371, Gageler J, citing ICERD Art.5(e)(iv)). See also, para.107 (Hayne J).
- 9.
See also, Parliamentary Joint Committee on Human Rights (Cth) (27 June 2013) ‘Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011: Stronger Futures in the Northern Territory Act 2012 and Related Legislation, 11th report’, p. 31 (s.1.111): ‘The committee is unaware of any case in which an international body has classified such a measure as a “special measure”, and the High Court judgments contain no reference to any such instance under international law. The examples given internationally and the assumption underlying international discussion of special measures is that they involve the direct conferral of benefits on members of a particular racial group which are not provided to persons who are not members of that racial group, in order to advance the enjoyment of human rights of the benefitted group.’
References
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S. Curry (2003) ‘Indigenous Rights’ in T. Campbell, J. Goldsworthy and A. Stone (eds), Protecting Human Rights: Instruments and Institutions, (Oxford: Oxford University Press).
Committee on the Elimination of Racial Discrimination (CERD) (1997) ‘Report of the Committee on the Elimination of Racial Discrimination’, UN Doc A/52/18.
Committee on the Elimination of Racial Discrimination, General Recommendation No. 32: The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination (August 2009).
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Legislative Assembly of Queensland, Palm Island Select Committee Report (August 2005).
N. Hutchins (2016) ‘Self-Determination Discussions Take Step Forward’, http://www.premier.vic.gov.au/self-determination-discussions-take-step-forward/, date accessed 29 July 2017.
R. Ison (21 September 2015) ‘Palm Island Case Hears of Police “Racism”’, The Australian, http://www.theaustralian.com.au/news/latest-news/palm-island-discrimination-case-to-start/news-story/3d9bb27f4b841056d9961240483471ce, date accessed 13 June 2017.
D. Ivison (2016) ‘Justification, not recognition’, Indigenous Law Bulletin, 8(24), 12–18.
C. Knaus and AAP (5 December 2016) ‘Police Discriminated against Palm Island’s Indigenous Community, Federal Court Finds’, The Guardian, https://www.theguardian.com/australia-news/2016/dec/05/police-discriminated-against-palm-island-indigenous-community-federal-court-finds, date accessed 13 June 2017.
V. McCall (8 April 2016) ‘Te Awa Tupua (Whanganui River Claims Settlement) Bill: Consistency with the New Zealand Bill of Rights Act 1990’ Crown Law Office.
Parliamentary Joint Committee on Human Rights (Cth) (27 June 2013) ‘Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011: Stronger Futures in the Northern Territory Act 2012 and Related Legislation, 11th report’, http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports/2013/2013/112013/index, date accessed 27 July 2017.
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Legislation and Cases
Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld).
Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld).
Canadian Constitution Act.
Canada Act 1982 (UK).
Canadian Charter of Rights and Freedoms.
Charter of Human Rights and Responsibilities Act 2006 (Vic).
Indigenous Communities Liquor Licences Act 2002 (Qld).
International Covenant on Civil and Political Rights 1966.
International Convention on the Elimination of All Forms of Racial Discrimination 1966.
International Labour Organization Convention 169, 1989.
Liquor Act 1992 (Qld).
Native Title Act 1993 (Cth).
New Zealand Bill of Rights Act 1990.
Racial Discrimination Act 1975 (Cth).
Stronger Futures in the Northern Territory Act 2012 (Cth).
Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth).
Social Security Legislation Amendment Act 2012 (Cth).
United Nations Declaration on the Rights of Indigenous Peoples 2007.
Universal Declaration of Human Rights.
Amaltal Fishing Co Ltd v Nelson Polytechnic [1996] NZAR 97.
Adoptive Couple v Baby Girl 570 U.S. ____ (2013).
Aurukun Shire Council v Chief Executive Officer, Office of Liquor Gaming and Racing in the Department of Treasury [2012] 1 Qd R 1.
Bropho v Western Australia (2008) 169 FCR 59 (FCAFC).
Bruch v Commonwealth [2002] FMCA 29.
Carr v Boree Aboriginal Corporation [2003] FMCA 408.
Eatock v Bolt [No. 1] (2011) 197 FCR 261.
Gerhardy v Brown (1985) 159 CLR 70.
Guerin v The Queen [1984] 2 SCR 335.
Mabo v Queensland [No. 2] (1992) 175 CLR 1.
Maloney v Queensland Police Service [2011] QDC 139.
Maloney v The Queen (2013) 252 CLR 168.
Maloney v The Queen [2012] HCATrans 342.
The Manbarra People v Great Barrier Reef Marine Park Authority [2004] AATA 268.
Morton v Mancari (1974) 417 U.S. 535.
New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641.
Proprietors of Wakatū & Rore Stafford v Attorney- General [2017] NZSC 17.
R v Kapp [2008] 2 SCR 483.
R v Maloney [2013] 1 Qd R 32.
Tsilhqot’in Nation v British Columbia [2014] 2 SCR 257.
Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373.
Western Australia v Ward (2002) 213 CLR 1.
Wotton v State of Queensland [No. 5] [2016] FCA 1457.
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Gover, K. (2018). Indigenous-State Relationships and the Paradoxical Effects of Antidiscrimination Law: Lessons from the Australian High Court in Maloney v The Queen. In: Hendry, J., Tatum, M., Jorgensen, M., Howard-Wagner, D. (eds) Indigenous Justice. Palgrave Socio-Legal Studies. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-60645-7_3
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