Indigenous-State Relationships and the Paradoxical Effects of Antidiscrimination Law: Lessons from the Australian High Court in Maloney v The Queen

  • Kirsty Gover
Chapter
Part of the Palgrave Socio-Legal Studies book series (PSLS)

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.

References

  1. Australian Bureau of Statistics (2017) Australian Government, http://www.abs.gov.au/ date accessed 27 July 2017.
  2. S. Curry (2003) ‘Indigenous Rights’ in T. Campbell, J. Goldsworthy and A. Stone (eds), Protecting Human Rights: Instruments and Institutions, (Oxford: Oxford University Press).Google Scholar
  3. Committee on the Elimination of Racial Discrimination (CERD) (1997) ‘Report of the Committee on the Elimination of Racial Discrimination’, UN Doc A/52/18.Google Scholar
  4. 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).Google Scholar
  5. Department of Aboriginal and Torres Strait Islander and Multicultural Affairs (2012) ‘Review of the Alcohol Management Plans’, https://www.datsip.qld.gov.au/resources/datsima/publications/policy/amp/amp-background-tor.pdf, date accessed 30 July 2017.
  6. Legislative Assembly of Queensland, Palm Island Select Committee Report (August 2005).Google Scholar
  7. 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.
  8. 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.
  9. D. Ivison (2016) ‘Justification, not recognition’, Indigenous Law Bulletin, 8(24), 12–18.Google Scholar
  10. 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.
  11. 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.Google Scholar
  12. 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.
  13. Queensland Government, Response to The Palm Island Select Committee (November 2005).Google Scholar

Legislation and Cases

  1. Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld).Google Scholar
  2. Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld).Google Scholar
  3. Canadian Constitution Act.Google Scholar
  4. Canada Act 1982 (UK).Google Scholar
  5. Canadian Charter of Rights and Freedoms.Google Scholar
  6. Charter of Human Rights and Responsibilities Act 2006 (Vic).Google Scholar
  7. Indigenous Communities Liquor Licences Act 2002 (Qld).Google Scholar
  8. International Covenant on Civil and Political Rights 1966.Google Scholar
  9. International Convention on the Elimination of All Forms of Racial Discrimination 1966.Google Scholar
  10. International Labour Organization Convention 169, 1989.Google Scholar
  11. Liquor Act 1992 (Qld).Google Scholar
  12. Native Title Act 1993 (Cth).Google Scholar
  13. New Zealand Bill of Rights Act 1990.Google Scholar
  14. Racial Discrimination Act 1975 (Cth).Google Scholar
  15. Stronger Futures in the Northern Territory Act 2012 (Cth).Google Scholar
  16. Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth).Google Scholar
  17. Social Security Legislation Amendment Act 2012 (Cth).Google Scholar
  18. United Nations Declaration on the Rights of Indigenous Peoples 2007.Google Scholar
  19. Universal Declaration of Human Rights.Google Scholar
  20. Amaltal Fishing Co Ltd v Nelson Polytechnic [1996] NZAR 97.Google Scholar
  21. Adoptive Couple v Baby Girl 570 U.S. ____ (2013).Google Scholar
  22. Aurukun Shire Council v Chief Executive Officer, Office of Liquor Gaming and Racing in the Department of Treasury [2012] 1 Qd R 1.Google Scholar
  23. Bropho v Western Australia (2008) 169 FCR 59 (FCAFC).Google Scholar
  24. Bruch v Commonwealth [2002] FMCA 29.Google Scholar
  25. Carr v Boree Aboriginal Corporation [2003] FMCA 408.Google Scholar
  26. Eatock v Bolt [No. 1] (2011) 197 FCR 261.Google Scholar
  27. Gerhardy v Brown (1985) 159 CLR 70.Google Scholar
  28. Guerin v The Queen [1984] 2 SCR 335.Google Scholar
  29. Mabo v Queensland [No. 2] (1992) 175 CLR 1.Google Scholar
  30. Maloney v Queensland Police Service [2011] QDC 139.Google Scholar
  31. Maloney v The Queen (2013) 252 CLR 168.Google Scholar
  32. Maloney v The Queen [2012] HCATrans 342.Google Scholar
  33. The Manbarra People v Great Barrier Reef Marine Park Authority [2004] AATA 268.Google Scholar
  34. Morton v Mancari (1974) 417 U.S. 535.Google Scholar
  35. New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641.Google Scholar
  36. Proprietors of Wakatū & Rore Stafford v Attorney- General [2017] NZSC 17.Google Scholar
  37. R v Kapp [2008] 2 SCR 483.Google Scholar
  38. R v Maloney [2013] 1 Qd R 32.Google Scholar
  39. Tsilhqot’in Nation v British Columbia [2014] 2 SCR 257.Google Scholar
  40. Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373.Google Scholar
  41. Western Australia v Ward (2002) 213 CLR 1.Google Scholar
  42. Wotton v State of Queensland [No. 5] [2016] FCA 1457.Google Scholar

Copyright information

© The Author(s) 2018

Authors and Affiliations

  • Kirsty Gover
    • 1
  1. 1.Melbourne Law SchoolCarltonAustralia

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