Landmark Cases under the Racial Discrimination Act 1975
The Racial Discrimination Act 1975 (RDA) was the first anti-discrimination legislation enacted by the Commonwealth. The Act bears the hallmarks of pioneering legislation and has been the basis of some of the most significant High Court decisions of the last decades in legal, social and historical terms.
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Facts
The Aboriginal Land Fund Commission contracted to buy a Crown lease
of pastoral property in Queensland for the benefit of John Koowarta and
other members of the Winychanam Group. The lease could not be transferred
without Queensland government approval. The Queensland Minister for Lands
refused to approve the transfer of the lease because he believed that
"sufficient land in Queensland is already reserved and available
for the use and benefit of Aborigines". Mr Koowarta sued the Queensland
Government for discrimination. The Government responded by challenging
the validity of the RDA, arguing that the Commonwealth Parliament had
no constitutional power to pass it.
Main Legal Issue
Did the Commonwealth have the power to pass the RDA?
The Judgment
The High Court upheld the RDA's validity by a majority of 4-3. The
RDA was enacted to give effect to the International Convention on the
Elimination of All Forms of Racial Discrimination. Therefore, the
external affairs power in the Constitution gave the Commonwealth the power
to pass it.
Significance
This case was the first major challenge to the RDA and the result
confirmed the Act's validity and the Commonwealth's power to ensure that
State Governments comply with it. More generally it confirmed the Commonwealth's
power to implement international treaty obligations, including human rights
treaty obligations, into domestic law.
Gerhardy v Brown (1985) 159 CLR 70
Facts
Under the Pitjantjatjara Land Rights Act 1981 (SA) a large area
of northwest South Australia was granted to the Pitjantjatjara people.
They had unrestricted access to the land but non-Pitjantjatjaras required
permission to enter the land (section 19). Mr Brown went onto the land
without permission and, when charged with an offence, argued that the
South Australian Act was inconsistent with the RDA and consequently invalid.
The Legal Issues
Was section 19 of the Pitjantjatjara Land Rights Act in conflict
with the RDA? If so, did section 19 fall within the exception for special
measures in section 8(1) of the RDA?
The Judgment
The High Court held that the South Australian Act was a special measure
for the purposes of section 8(1) of the RDA and consequently valid. Non-Pitjantjatjara
people could lawfully be excluded from the Pitjantjatjara lands.
Significance
This was the first case in which the High Court dealt with the concept
of 'special measures'. All the judges agreed on the appropriateness of
taking affirmative action for Aboriginal people and held that the land
rights legislation was an appropriate remedial step for a disadvantaged
racial group.
Mabo v Queensland (No. 1) (1988) 166 CLR 186
Facts
After the proceedings commenced the Queensland Government passed the Queensland
Coast Islands Declaratory Act in 1985. This Act purported to extinguish
whatever rights and interests the Meriam people might have had under their
traditional law. It also purported to extinguish traditional rights retrospectively
(with effect from 1879 when Queensland annexed the islands) and without
compensation. The Murray Islanders argued, among other things, that the
1985 Queensland Act denied them equality before the law and the enjoyment
of their right to own property and arbitrarily deprived them of their
property. These are human rights protected by article 5 of the International
Convention on the Elimination of All Forms of Racial Discrimination.
Legal Issues
Was the Queensland Act inconsistent with the RDA? If so, was it inoperative
because of Section 109 of the Constitution which invalidates state law
which conflicts with federal law?
The Judgment
By a majority of 4-3, the High Court held that the Queensland Coast
Islands Declaratory Act was invalid because it was inconsistent with
the RDA. It discriminated against the Meriam people by purporting to extinguish
any rights they might have in their land.
Significance
The case confirmed that section 10 of the RDA could render subsequent
discriminatory State legislation invalid. It also drew attention to the
discriminatory nature of the Queensland legislation and enabled Mabo
(No. 2) to go ahead.
Mabo v Queensland (No. 2) (1992) 175 CLR 1
Facts
The second Mabo Case involved the same facts and was a continuation of
Mabo (No. 1).
Major Legal Issues
The first question was whether the Meriam people did have traditional
rights and interests in the land of the Murray Islands and, if so, whether
Australian law would protect those rights and interests. If native title
is recognised, are Indigenous people entitled to compensation if their
land is taken away?
The Judgment
The High Court held by a majority of 6-1 that the Meriam people were entitled,
as against the whole world, to the possession, use, occupation and enjoyment
of (most of) the land of the Murray Islands. The six judges in the majority
rejected the traditional doctrine that Australia was terra nullius
('land belonging to no-one') at the time of European settlement.
Rather the majority found that the common law of Australia recognises a form of native title to land. Pre-existing rights and interests in land survived colonisation and still survives today:
- where the people have maintained their connection with the land and
- where their title has not been extinguished by legislation or any action of the executive arm of the government inconsistent with that title.
Neither the establishment of the colonies nor Queensland's 1879 annexation of the Murray Islands extinguished the Meriam people's native title. However, native title could still be readily extinguished by government actions inconsistent with respect for native title and, before 1975, there was no right to compensation. The relevance of the RDA is that it requires fair and just compensation to be paid for loss of native title after 1975. Failure to pay compensation would be racially discriminatory because other land holders are entitled to compensation.
Significance
The judgment had great political and symbolic importance. The High Court
at last clarified the common law on the effect of colonisation on Indigenous
peoples in Australia. The rejection of the doctrine of terra nullius
established a new starting position for the development of the relationship
between Indigenous and non-Indigenous Australians.
Western Australia v Commonwealth (1995) 183 CLR 373
Facts
The Native Title Act 1993 (Cth) (NTA) was passed to set up a process
for Indigenous peoples to make native title claims. Before the NTA was
passed, however, the WA Government passed its own native title law. The
Land (Titles and Traditional Usage) Act 1993 (WA Act) purported
to extinguish native title in WA and replace it with 'rights of traditional
usage' which would be a form of statutory title.
When the NTA was passed the WA Government challenged its constitutional validity in the High Court. The Government also argued that even if the NTA was valid, all native title in WA had been extinguished at the time of European settlement and therefore there was no native title in WA which the NTA could apply to. Alternatively, the WA Act had extinguished all native title in WA before the NTA was passed.
At the same time, representatives of the Wororra and Martu Peoples challenged the validity of the WA Act arguing it was inconsistent with the RDA or the NTA or both.
Legal Issues
Was the Native Title Act a valid exercise of Commonwealth constitutional
power? Was native title extinguished upon settlement? Was the WA Act inconsistent
with the RDA or the NTA, and thus invalid to the extent of the inconsistency?
The Judgment
The High Court found that the Native Title Act was a valid exercise
of the Commonwealth's power to make special laws with respect to the persons
of any race (the 'race power'), with the exception of just one section.
The Court held that native title in Western Australia had not been extinguished
at the time of European occupation.
RDA section 10 ensures that native title holders have the same security of enjoyment of their land title as other land holders. Yet the new WA 'right of traditional usage' was inferior to native title being even more vulnerable to extinguishment. Therefore the WA Act was invalid because it was inconsistent with the RDA.
Significance
The case ensured the survival of the Native Title Act and established
that the RDA would protect native title against attempted extinguishment
by State governments. It settled any doubts about the status and permanence
of native title within the Australian legal system. By relying on the
RDA to invalidate the WA Act, the case highlighted the discriminatory
nature of the WA legislation and raised public awareness of the RDA and
the rights of Indigenous peoples. The decision highlights the capacity
of the RDA to protect the rights of an individual or group against discriminatory
government action.
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Facts
This case challenged the constitutional validity of a scheme for enforcing
HREOC decisions without having to get a court order. HREOC tribunal decisions
were technically unenforceable. However, the Commission's legislation
provided that a decision registered in the Federal Court would be enforceable
"as if it were an order of the Federal Court" unless it was
successfully challenged within a defined period. Mr Harry Brandy was subject
to an order against him. He argued that the scheme was tantamount to giving
HREOC judicial power and therefore violated the separation of powers required
by the Constitution. The Constitution forbids an administrative agency
like HREOC from exercising any judicial power.
Main Legal Issue
Did the enforcement of HREOC determinations by 'default', as if they were
made by the Federal Court, amount to an allocation of 'judicial power'
to HREOC in contravention of the separation of powers doctrine in the
Australian Constitution?
The Judgment
The High Court found that the scheme invalidly invested HREOC with judicial
power and was unconstitutional.
Significance
HREOC no longer conducts hearings into complaints. The Commission continues
to investigate and conciliate complaints. However, all matters that require
legal determination and enforcement must be taken to the Federal Court
or Federal Magistrates Service.
Jones v Toben [2002] FCA 1150
Facts
The Executive Council of Australian Jewry complained to HREOC about the
website of the Adelaide Institute established by Dr Fredrick Toben. The
Adelaide Institute posed as a scholarly centre for Holocaust research.
The Council argued, however, that it was anti-Semitic and vilified Jews.
The complaint was referred to the HREOC tribunal which ordered the site
to be dismantled. Dr Toben failed to comply with the order forcing Mr
Jeremy Jones, President of the Council, to take the case to the Federal
Court.
Main Legal Issues
Did the Adelaide Institute website violate the racial vilification provisions
of the RDA? Could Dr Toben rely on the exemption for academic articles
published reasonably and in good faith?
The Judgment
The Federal Court found that certain documents on the Adelaide Institute
website vilified Jews by imputing: that there is serious doubt that the
Holocaust occurred; that it is unlikely that there were homicidal gas
chambers at Auschwitz; that Jewish people who are offended by and challenge
Holocaust denial are of limited intelligence; and that some Jewish people,
for improper purposes, including financial gain, have exaggerated the
number of Jews killed during World War II and the circumstances in which
they were killed. Dr Toben did not submit a defence.
Significance
The case was the first to apply the RDA's racial vilification provisions
to the Internet.
