Annexure 1: Principles of Discrimination and Native Title
Miriuwung Gajerrong [1] reiterates the principles which guide the High Court’s interpretation of whether laws of the Commonwealth, State or Territory are discriminatory under the Racial Discrimination Act 1975 (Cwlth) (‘RDA’), particularly as they apply to legislation which authorises dealings with land. These principles are based on the High Court’s decisions in Gerhardy v Brown, [2] Mabo (No 1), [3] and Western Australia v The Commonwealth [4] (‘Native Title Act Case’). The key principles are set out below.
1 Section 10 of the RDA is the most appropriate section for determining whether legislative or executive acts that authorise dealings with Crown land are discriminatory. Section 10 provides:
If, by reason of, or of a provisions of, a law of the Commonwealth or of a State or Territory, persons of a particular 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.
It is the application of section 10 that will determine whether the extinguishment or impairment of native title by dealings authorised by legislative or executive acts is discriminatory under Australian domestic law. [5]
2 Section 10 of the RDA is not merely concerned with matters of form but also with matters of substance; it is concerned with the enjoyment of rights. It involves looking at more than just the purpose or intention of the legislation and requires an analysis of the practical operation and effect of the legislation. [6] Where the effect of a statute is the unequal enjoyment of rights between racial groups, then s10 is engaged.
3 The High Court’s interpretation of the standard of equality required by the RDA is based on the definition of discrimination in Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination [7] (‘ICERD’) which defines racial discrimination as:
Any 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 human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Significantly, the High Court in Miriuwung Gajerrong did not limit itself to Article 1 of ICERD in establishing a substantive approach to equality and non-discrimination under s10 RDA, but also referred to Article 2 of ICERD which requires a state party to ICERD to take effective measures to nullify laws which have the effect of creating or perpetuating racial discrimination. [8]
4 In determining whether the effect of legislative interference is the unequal enjoyment of rights, section 10 of the RDA requires a comparison of rights as defined in s10(2). This includes, but is not limited to, rights of the kind referred to in Article 5 of ICERD, such as the right to own property alone and in association with others, [9] a right to inherit, [10] and a right to be immune from the arbitrary deprivation of property (implied in other rights and specifically referred to in article 17(2) of the Universal Declaration of Human Rights [11] (‘UHDR’). [12] Property includes land and chattels and extends to native title rights and interests. [13]
5 The effect of RDA s10 upon discriminatory legislation is twofold. First, where a State law omits to make enjoyment of rights universal, s10 operates to confer that right on persons of the particular race deprived of the enjoyment of that right. The RDA does not invalidate the State law but complements it by extending rights equally. [14] Second, where the State law imposes a discriminatory burden or prohibition forbidding enjoyment of a human right or fundamental freedom enjoyed by persons of another race, s10 confers a right on the persons prohibited. This necessarily results in an inconsistency between s10 and the prohibition contained in the State law. Section 109 of the Commonwealth Constitution operates to invalidate so much of the State legislation that is inconsistent with the RDA. [15]
6 The twofold effect of the RDA on discriminatory State law also applies to discriminatory Territory laws. In relation to the second effect however this occurs, not through the invalidating effect of S109 of the Constitution but because the Territory does not have the power to repeal Commonwealth legislation. [16]
7 Section 10 of the RDA is offended where a law purports to expropriate property held by a particular racial group for purposes additional to or on less stringent conditions (including lesser or no compensation) than those laws justifying expropriation of property held by members of the community generally. [17] The fact that land is ordinarily only acquired for a public purpose on payment of just terms sets a benchmark for the way in which expropriation of property should occur for all racial groups. [18] Expropriation of property belonging to a particular racial group for different purposes or on lesser terms is discriminatory. [19]
The way in which these domestic law principles are applied to determine whether the extinguishment or impairment of native title is discriminatory is also demonstrated in Miriuwung Gajerrong. The key principles on the application of the RDA to the extinguishment or impairment of native title are noted below.
8 It is because native title characteristically is held by members of a particular race, that interference with the enjoyment of native title is capable of amounting to discrimination on the basis of race, colour or national or ethnic origin.
9 Native title is a property right and entitled to the protection of Article 5 of ICERD, which specifically protects the right to own property alone and in association with others, [20] a right to inherit, [21] and a right to be immune from the arbitrary deprivation of property (implied in other rights and specifically referred to in article 17(2) of the UDHR). [22]
10 Section 10 of the RDA is concerned with the equal enjoyment of human rights, not simply the enjoyment of legal rights. This distinction is important in determining the way in which the principles of equality and non-discrimination deal with property rights that are unique insofar as they emanate from a different system of law and custom.
The High Court confirmed that just because native title has different characteristics from other forms of title and derives from a different source, it does not mean it can be given less protection than other forms of title. The rights which the RDA protects, as identified in Article 5 of ICERD, do not provide a basis for distinguishing between ownership or inheritance of different types of property. The right to own and inherit property must be enjoyed equally regardless of the nature of the property concerned. Thus it is wrong to say that because native title is inherently fragile, or because it does not amount to freehold title, depriving people of the enjoyment of this right is not discriminatory. [23] It is.
11 Native title may include a group or individual right. The rights that the RDA protects extend to group rights emanating from a particular culture. [24]
12 Three applications for s10 in relation to native title might arise: (i) a State law forbids enjoyment of a human right or fundamental freedom, such as a right to property or freedom from the arbitrary deprivation of property, and the burden falls on all racial groups; (ii) a State law provides for extinguishment or impairment of land titles but provides for compensation only in respect of non-native title; (iii) a State law extinguishes or impairs only native title and leaves other land titles intact. [25]
In relation to (i) above, there is no discrimination upon which s10 would operate. In relation to (ii) above, s10 would operate to extend the compensation to native title holders but the extinguishment would remain valid. In relation to (iii) above, s10 would operate to invalidate the State law. The Court in Miriuwung Gajerrong did not consider the situation where a law extinguishes only native title and leaves others intact but provides compensation to native title holders. Nor did the Court consider the situation where the law takes additional measures to protect native title rights and interests not available to other title holders.
13 Section 10 of the RDA is engaged by legislation that regulates or impairs the enjoyment of native title without extinguishing it. [26]
14 The fact that laws extinguishing or impairing native title are consistent with the common law which permits extinguishment or impairment of native title by a valid exercise of sovereign power, does not mean the RDA does not apply to those laws. In the Native Title Act Case the question was whether the WA legislation was inconsistent with s10(1) of the RDA regardless of whether it was inconsistent with the common law. The High Court said:
At common law...native title can be extinguished or impaired by a valid exercise or sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title. But the Racial Discrimination Act is superimposed on the common law and it enhances the enjoyment of those human rights (earlier mentioned) which affect native title so that Aboriginal holders are secure in the possession and enjoyment of native title to the same extent as the holders of other forms of title are secure in the possession and enjoyment of those titles. The question is whether the WA Act attempts to diminish that security to the comparative disadvantage of the Aborigines on whom s7 rights are conferred.
…Those provisions [of the WA Act] may be consistent with the common law relating to native title but we are concerned with their consistency with s 10(1) of the Racial Discrimination Act.
The fact that a particular statute is consistent with the common law does not exempt it from the RDA. [27]
Together these principles constitute a substantive notion of equality. The RDA is concerned with the enjoyment of human rights, not the treatment of legal interests. It fastens the notion of discrimination to the international standards from which the legislation originates. Equality is measured by the extent to which the laws allow rights and freedoms as defined in ICERD to be enjoyed.
1 Western Australia v Ward & o’rs [2002] HCA 28 (8 August 2002) (‘Miriuwung Gajerrong’).
3 Mabo & ano’r v Queensland & ano’r (1989) 166 CLR 186.
4 (1995) 183 CLR 373 (‘Native Title Act Case’).
5 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [103].
7 660 United Nations Treaty Series 195 (‘ICERD’) (Australia joined 1975).
9 ICERD, op.cit., art 5(d)(v).
11 United Nations General Assembly resolution 217A (III), United Nations document A/810 at 71, 10 December 1948.
12 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [116] & [119]
14 ibid., at [106]; see also Gerhardy v Brown, op.cit., per Mason J at 98.
15 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [107].
17 Native Title Act Case, op.cit., per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ at 437.
18 Mabo & o’rs v Queensland (No 2) (1992) 175 CLR 1 (Mabo No 2), per Toohey J at 214.
19 General laws guiding expropriation of property by Commonwealth, States and Territories includes Lands Acquisition Act 1989 (Cwlth), Pt VII; Land Acquisition (Just Terms Compensation) Act 1991 (NSW), Pt 3; Land Acquisition and Compensation Act 1986 (Vic), Pt 3; Acquisition of Land Act 1967 (Qld), Pt IV; Land Acquisition Act 1969 (SA), Pt IV; Public Works Act 1902 (WA), Pt III; Lands Resumption Act 1957 (Tas), Pt IV; Lands Acquisition Act 1978 (NT), Pt VII.
20 ICERD, op.cit., art 5(d)(v).
22 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [116].
24 Gerhardy v Brown, op.cit., per Mason J at 105.
25 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [108].
27 Native Title Act Case, op cit. per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ at 439.
19 March 2003.
