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Flynn, Martin --- "Why has the Racial Discrimination Act 1975 (Cth) Failed Indigenous People" [2005] AUIndigLawRpr 2; (2005) 9(1) Australian Indigenous Law Reporter 15

Commentary

Why has the Racial Discrimination Act 1975 (Cth) failed Indigenous People?

Martin Flynn^[*]

I Asking the Right Question: How Do We Judge the Racial Discrimination Act 1975?

In this article I will investigate whether the Racial Discrimination Act 1975 (Cth) (‘RDA’) provides a remedy for statistical inequality. I take ‘statistical inequality’ to exist whenever a comparison of the outcomes of the Indigenous and non-Indigenous population for a given socio-economic indicator reveals that an Indigenous person is likely to be significantly worse off than a non-Indigenous person.

The RDA alone will never eliminate statistical inequality. Statutory civil law is but one of a number of elements in our society that both engender our complex social problems and must also be adapted to provide solutions to those problems.^[1] To the civil law we might add elements such as our criminal laws, our political and legal institutions, our education system, our economic system, our physical and technological environment and our cultural landscape including our media outlets. It is self-evident that non-Indigenous policy makers must be educated on the culture of our Indigenous peoples if statistical inequality is ever to be eliminated. That said, ‘the law’ is capable of making a significant contribution to the resolution of complex social problems. Witness the growth of Indigenous courts as a means of responding to many problems that have arisen from Indigenous contact with the criminal justice system.^[2] If the RDA is not capable of playing at least a supporting role in connection with efforts to address statistical inequality, then we may wish to argue for the reform of the RDA. I adopt the observation of Beth Gaze made in the context of sex discrimination legislation.

Legislation aiming for social change can operate at both instrumental and symbolic levels, changing actual practices or social understandings. However, a law which is relatively ineffective at the instrumental level may not have much impact at the symbolic level ... ^[3]

To recount statistics showing Indigenous disadvantage – however briefly – risks exacerbating the statistical fatigue experienced by many who follow policy debates about Indigenous issues. The statistics showing gross disadvantage are simply too familiar. Compared to a non-Indigenous person, an Indigenous person is much less likely to be employed, live in an adequate house; achieve education milestones; survive childbirth or live beyond the age of 55.^[4] Even more disturbing than these ‘snapshots’ are the ‘trend’ studies revealing that, over time, the situation of many Indigenous people is getting worse. Altman and Hunter examined the trend of Indigenous disadvantage in the fields of employment, income, housing, education and health between 1991 and 2001.^[5] It was not surprising that significant Indigenous disadvantage existed in each of these fields in 1991 and 2001. However, the relative disadvantage had actually widened over that period in the case of many indicators, including labour force participation, adult median income, participation in tertiary education and male life expectancy.^[6] I have not yet mentioned any statistic from the most extensively documented field of disadvantage, namely, Indigenous involvement with the criminal justice system.^[7] Again, with a few exceptions, the snapshot and trend indicators are grounds for pessimism.^[8] We suffer from statistical fatigue because the statistics tell us - repeatedly - what we already know. A disproportionate number of the Indigenous population are at the very bottom of Australia’s socio-economic ladder and appear to be going nowhere.

Writers on the topic of Indigenous disadvantage will often explain a finding of statistical inequality by referring to ‘racial discrimination’ in general terms or claiming that there has been an infringement of an undefined principle of ‘equality’. The Royal Commission into Aboriginal Deaths in Custody found that ‘inequality and disadvantage’ and laws that ‘bear unequally upon Aboriginal people’ explained Aboriginal over-representation in police custody and prison.^[9] The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families stated that ‘[un]equal treatment before the law’ explained the over-representation of Aboriginal children in contemporary separations of children from family.^[10] The Council for Aboriginal Reconciliation concluded that ‘continuing acute disadvantage, discrimination and racism’ was the ‘biggest challenge for reconciliation’.^[11]

Although many writers refer to racial discrimination as an explanation for statistical inequality, very few have investigated whether the RDA supplies a remedy in that situation.^[12] There may be good reason for this omission. The preamble of the RDA makes no reference to anything like the concept of statistical inequality, other than to refer to Parliament’s desire to prohibit ‘racial discrimination’ and to ‘give effect to’ the Convention on the Elimination of all Forms of Racial Discrimination (‘CERD’). The RDA does not contain an ‘objects clause’ setting out the goals of the Act.^[13] There is no section of the RDA referring to ‘statistical inequality’ by that term or an easily comparable term.

On the other hand, the RDA does provide for a remedy when defined conduct has the ‘effect of impairing the enjoyment of’ any human right (s 9) and when, ‘by reason of a law’, one race enjoys a human right ‘to a more limited extent’ than another race (s 10). The emphasised text suggests that statistical outcomes could be relevant to the availability of RDA remedies. This article involves a consideration of the capacity of these sections to address statistical inequality, see ‘III. The RDA and statistical inequality’ below. However, before examining the text of the RDA it will be useful to note the experience of the Sex Discrimination Act 1984 (Cth) (‘SDA’) and the Disability Discrimination Act 1992 (Cth) (‘DDA’).

II Have the Sex Discrimination Act and the Disability Discrimination Act also Failed?

The SDA and the DDA each contains an objects clause and each contain provisions that are, in some respects, comparable to the RDA. Importantly, the SDA and the DDA has each been the subject of detailed and expert reviews that included discussion of the capacity of those statutes to respond to the poor statistical outcomes evident for the groups who might expect to enjoy the ‘protection’ of those statutes.^[14] Those reviews are considered after briefly outlining the similarities and differences between the RDA (on the one hand) and the SDA and the DDA (on the other hand).

A The ‘similar provisions’ of the Racial Discrimination Act, Sex Discrimination Act and the Disability Discrimination Act

There are significant similarities and significant differences between, on the one hand, the SDA and the DDA, and, on the other hand, the RDA. The effect of the RDA, DDA and the SDA is similar in that: discrimination is defined in each Act; proscribed grounds of discrimination are stated in each Act; fields of activity for the operation of each Act are identified; the result is stated to be an ‘unlawful’ act; and exemptions are stated in each Act. There are also similarities among the statutes within each of these elements. Those similarities are found in what will be referred to as the ‘similar provisions’ of the three statutes. The effect of the similar provisions is as follows:

(i) Discrimination

Direct discrimination exists whenever ‘by reason of’ one of the proscribed grounds a person is treated ‘less favourably’ than he or she would otherwise have been treated.^[15] Indirect discrimination also exists when an unreasonable condition, disadvantaging persons of one race or sex or disabled persons, is imposed on a person of that race or sex or with that disability.^[16]

(ii) Proscribed grounds

Three of the proscribed grounds are obvious: ‘race’, ‘sex’ and ‘disability’.^[17] Additional (analogous) grounds are set out in each statute. For example, the RDA proscribes discrimination on the grounds of ‘race, colour or national or ethnic origin’. In the case of the RDA, it has been established that the Indigenous population is a race and that a discrete Indigenous people such as the Pitjantjatjara people are also a ‘race’.^[18]

(iii) Fields of activity

There is substantial overlap as to the fields of activity in which each statute applies. For example, the SDA and the DDA applies in the following fields in which the RDA also applies: access to public places,^[19] acquisition and disposal of land, housing and accommodation,^[20] supply of goods and services to the public,^[21] and employment.^[22] Significantly for any consideration of statistical inequality arising from the conduct of the States and Territories, the RDA and the DDA but not the SDA applies to the Crown in right of the States and Territories.^[23]

(iv) Remedies

A victim of unlawful discrimination under the RDA, SDA and DDA is entitled to ‘redress for unlawful discrimination’ in accordance with the scheme laid down in the Human Rights and Equal Opportunity Act 1986 (Cth) (‘HREOC Act’).^[24] The scheme does not distinguish between racial discrimination, sex discrimination and disability discrimination. A complaint must be made to the Human Rights and Equal Opportunity Commission (‘HREOC’). If the attempts by HREOC to conciliate the complaint do not succeed or if HREOC terminate the complaint for some other reason,^[25] a victim may commence proceedings in the Federal Court or the Federal Magistrates Service.^[26] If the court is satisfied that there has been unlawful discrimination as defined under the RDA, SDA or DDA, the court may make any order it thinks fit.^[27] A court would usually make orders for the award of damages by analogy with tort law.^[28] However, the possibility of a claim for statistical inequality against a government invites speculation about more creative remedies. For example, in a case where the Supreme Court of Canada found that a provincial government infringed a constitutional guarantee of equality, the court stated:

A declaration, as opposed to some kind of injunctive relief, is the appropriate remedy in this case because there are myriad options available to the government that may rectify the ... current system. It is not this Court’s role to dictate how this is to be accomplished ... it is appropriate to suspend the effectiveness of the declaration for six months to enable the government to explore its options and formulate an appropriate response.^[29]

This brief recounting of the effect of the similar provisions suggests that an examination of expert commentary on the impact of the SDA and DDA is warranted. However, before commencing that task, we ought note features of the RDA that distinguish it from the SDA and the DDA.

B Distinguishing features of the Racial Discrimination Act

While the objects of the SDA and DDA are set out in some detail in a special provision of each statute,^[30] the objects of the RDA are obliquely recorded in one sentence of the preamble. The objects of the SDA and the DDA are common insofar as they include the elimination, so far as ‘possible, of discrimination against persons on the ground of’ sex and disability respectively in fields including work and education.^[31] In addition, the SDA refers to ‘promoting the principle of the equality of men and women’ and giving ‘effect to certain provisions of the Convention on the Elimination of Discrimination Against Women’ (‘CEDAW’).^[32] The DDA also refers to ensuring ‘as far as practicable’ that disabled people enjoy the ‘same rights to equality before the law as the rest of the community’.^[33] The preamble of the RDA states that the statute is enacted in light of the desirability of prohibiting ‘racial discrimination and certain other forms of discrimination and, in particular,’ to give ‘effect to’ CERD.

The omission of an objects clause is one distinguishing feature of the RDA. The inclusion of two unique provisions – ss 9 and 10 – is more significant. The similar provisions largely reflect the provisions of UK anti-discrimination statutes that influenced the drafting process. However, ss 9 and 10 of the RDA reflect specific provisions of CERD.

There is no equivalent of s 9 of the RDA to be found in the SDA or DDA. The effect of the similar provisions is that unfavourable treatment of a person by reason of one of the proscribed grounds is ‘discrimination’^[34] and is unlawful when the treatment occurs in one of the nominated fields of activity. Section 9 is comparable insofar as it provides that discrimination in one of the nominated fields of activity is unlawful. However, the definition of discrimination in section 9 of the RDA is not comparable to the one found in the similar provisions and the nominated fields of activity are uniquely described. Section 9 of the RDA states:

9 Racial discrimination to be unlawful

(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race ... 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) [Indirect racial discrimination is defined and will be ‘an act involving a distinction ... based on ... race’ for the purpose of s 9(1).]

(2) A reference ... to a ‘human right or fundamental freedom’ ... includes a reference to a right of a kind referred to in Article 5 of [CERD]. [Article 5 of CERD refers, inter alia, to (a) the right to equal treatment before tribunals ... (b) The right to security of person ... (c) Political rights ...(d) Other Civil rights ...(e) Economic, social and cultural rights, in particular: ... (iii) The right to housing; (iv) The right to public health ... ; (v) The right to education and training]

It is apparent from the quote that under s 9 of the RDA the victim is not required to prove that ‘race’ was the reason for the discriminator’s conduct. The victim’s task is, arguably, less onerous.^[35] Under s 9 of the RDA the victim must prove that the discriminator’s conduct was based on race and that it had the effect of impairing the enjoyment of a human right. The later requirement should not be underestimated. In Aboriginal Students Support & Parents Awareness Committee Traeger Park Primary School v Minister for Education, Northern Territory of Australia,^[36] the victim was unable to prove that the closure of a dedicated Aboriginal school would impair the right to education of the school children.^[37]

The relevant field of activity for the purpose of s 9 is linked to art 5 of CERD which lists rights in the ‘civil, economic, social and cultural’ fields. The result, unarguably, is that broader fields are identified for the purpose of s 9 than for the purpose of the similar provisions. The equal enjoyment of ‘human rights’ is not limited to the equal enjoyment of rights already located in domestic law. An early attempt to circumscribe the very broad ‘human rights’ fields failed in the High Court. In Viskauskas v Niland^[38] the Court considered an argument that s 9 did not apply to private (as distinct from public) conduct because the concluding words of the section (quoted above) suggested application only to ‘public life’. The Court unanimously rejected the argument except to concede that there may be ‘some limits to the extent to which the law should intrude upon personal privacy’.^[39] In subsequent decisions, a construction of the ‘human rights’ fields favouring an expansive application of the RDA has generally been preferred.^[40] A victim alleging discrimination in the fields of health or education will almost certainly find it easier to prove that the discriminator’s (impugned) conduct had an effect on the ‘right to public health’ or ‘the right to education’ (per art 5 of CERD) than to prove that ‘health’ and ‘education’ fall within the ‘supply of goods and services’ field covered by the similar provisions.

There is also no equivalent of s 10 of the RDA to be found in the SDA or DDA. Like s 9 of the RDA, the purpose of s 10 is linked to the domestic implementation of a specific CERD obligation.^[41] Article 2 of CERD includes an obligation upon States parties to ‘rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination’. Section 10 of the RDA provides a definition of ‘equality before the law’ and provides for a remedy for the infringement of this right. It states:

10 Rights to equality before the law

(1) If, by reason of, or of 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 [CERD].

The stated remedy for a victim of an infringement of the right to equality before the law is the extension, to the victim, of the same rights enjoyed by a person favoured by the law.

C Australian Law Reform Commission on the Sex Discrimination Act

The Australian Law Reform Commission (‘ALRC’), responding to terms of reference that required an investigation into whether any changes should be made to remove any ‘unjustifiable discriminatory effects’ of laws on women, concluded (in 1994) that ‘at a very basic quantitative level, measured only through statistical data, women have not (achieved) equality with men’.^[42] The conclusion was reached after considering statistics showing, for example, that: the average earnings of women is significantly less than the average earnings of men; women tend to work part-time and, consequently, do not enjoy the same security, pay, status and benefits enjoyed by full-time workers and that women are under-represented in higher levels of professional jobs.

The SDA was said to be an ‘important measure addressing discrimination’ because it offered (at that time) a relative inexpensive forum for redressing complaints related to employment.^[43] However, the ALRC identified limitations in the capacity of the SDA to address the inequality. Criticism was made of the limited nature of the fields of activity in which the SDA operated and of the expansive nature of the exemptions found in the SDA.^[44] The system of remedies was criticised, as was the lack of awareness among lawyers of ‘the principles behind anti-discrimination legislation’.^[45] However, most criticism was reserved for limitations arising from the definition of discrimination in the SDA. The definition assumes that discrimination is characterised by an isolated ‘aberrant incident’ in which an individual woman, comparable to a man in every respect except gender, is treated less favourably than the man.^[46] In contrast, the ‘common experience of many women’ is that discrimination is characterised by the consistent failure to change the myriad rules and practices that combine to harm women by failing to take account of the biological, ‘historical and cultural factors which produce unequal results’.^[47] This ‘common experience’ was called ‘systemic discrimination’.

The ALRC recommended a number of reforms to address systemic sex discrimination. Two of the recommendations are of present interest because of their direct comparability with the present form of the RDA. The ALRC recommended that the SDA definition of discrimination be replaced with the definition of ‘discrimination against women’ found in art 1 of the Convention on the Elimination of Discrimination Against Women (‘CEDAW’).^[48] The CEDAW definition is, save for the reference to women rather than race, virtually identical to the CERD definition of racial discrimination which is reproduced in s 9 of the RDA. The ALRC also recommended that a guarantee of equality in precisely the same terms as s 10 of the RDA be introduced into the SDA.^[49] Little was said by the ALRC as to how these recommended provisions would, in practice, redress systemic discrimination. This ought not be too surprising given that a volume was given over to explaining the central recommendation for responding to systemic discrimination was an Equality Act that would render invalid any ‘law, policy, program, practice or decision’ that was inconsistent with the ‘full and equal enjoyment of human rights’.^[50]

A third recommendation of the ALRC is also of interest because the criticism of the SDA is readily transferable to the RDA. The ALRC recommended amendments to the definition of indirect discrimination with the objective of easing the ‘heavy onus on a person alleging [indirect] discrimination’.^[51] The SDA defined indirect discrimination as arising when a person was unable to comply with an imposed condition that was unreasonable and which had an unequal effect on one sex. The ALRC recommended that the onus should be upon the putative discriminator to prove that an otherwise indirectly discriminatory condition was reasonable and that matters relevant to ‘reasonableness’ ought be spelt out in the SDA.^[52] Finally, the ALRC recommended that the language of indirect discrimination should be simplified such that an imposed condition is discriminatory if it is likely to have the effect of disadvantaging persons of one sex.^[53] The recommendations were accepted and amendments made to the SDA.^[54] However, the RDA provision on indirect discrimination is unchanged from the date of introduction in 1991. Consequently, victims of indirect racial discrimination labour under the ‘heavy’ onus noted by the ALRC.

D Productivity Commission on the Disability Discrimination Act

The Productivity Commission responded, in 2004, to terms of reference that required it to ascertain, inter alia, whether the objectives of the DDA were being achieved.^[55] I have mentioned already that the stated objects of the DDA include the elimination of discrimination on the ground of disability and the ensuring of equality before the law for persons with disabilities. In order to develop a methodology for measuring the success of the DDA against these objects, the Productivity Commission was required to define what it understood by the objectives of ‘elimination of discrimination’ ^[56] and ‘equality before the law’.

(i) Elimination of Disability Discrimination

The Productivity Commission, drawing upon its own views as to the social and economic reasons for some form of legislative intervention, argued that the DDA objective of eliminating discrimination ‘aims to remove the barriers that impede equality of opportunity for people with disabilities’ and, to that end, the DDA could be expected to require ‘limited differential treatment’ of disabled people.^[57] The ‘equality of opportunity’ conception of equality anticipates more onerous obligations than the conception of equality as known as ‘formal equality’. The latter conception demands no more than that a particular ground (here, disability) not figure in decision-making. The realisation of the goal of ‘equality of opportunity’ anticipates that the ground must be considered be decision-makers to the extent that reasonable steps are taken to ensure that the relevant group (here, disabled people) have access to the same opportunities that are available to the whole population.^[58] The Productivity Commission make clear that a goal of ‘equality of opportunity’ is to be distinguished from a goal of ‘equality of results’. The latter conception of equality, which might be achieved by conferring upon a disadvantaged group a ‘right’ to a minimum level of resources or ‘assigning preferences to one group at the expense of another’, was said by the Productivity Commission not to be the goal of the DDA.^[59]

The Productivity Commission developed a range of measures (of varying levels of sophistication) for the purpose of assessing whether the DDA was achieving the statutory object of eliminating discrimination defined as ‘equality of opportunity’. The Productivity Commission was sanguine about the performance of the DDA when those measures revealed ‘mixed results in different areas of activity’ with (for example) no evidence that the DDA had any impact on the poor employment outcomes (participation, wage levels etc.) of the disabled population.^[60] In light of the evidence of the DDA ‘failures’, the Productivity Commission doubted that the ‘equality of opportunity’ goal would be realised with an amendment of the definition of direct or indirect discrimination.^[61] The recommended approach was the creation of a statutory duty upon participants in each field of activity (eg, employers) to make ‘reasonable adjustments’ to ensure disabled persons enjoyed access to the opportunities that existed in that field.^[62] The suggestion is not novel in disability discrimination law. However, insofar as the Productivity Commission is concerned about the evident failure of anti-discrimination legislation to respond to the needs of a vulnerable minority group, the applicability of the recommendation to the RDA and the situation of Indigenous peoples warrants consideration. Indeed, Philip Tahmindjis made the same observation in the light of his 1995 review of the indirect discrimination provisions of the RDA.^[63]

(ii) Equality Before the Law for Disabled Persons

The Productivity Commission did not elaborate upon the meaning of this object of the DDA,^[64] appearing to take the view that the objective was directed at laws that had a discriminatory effect in the sense of denying, to disabled persons, the ‘opportunity’ of enjoying the benefits provided by a law to other persons (eg, Medicare regulations limiting access to a psychiatrist) or in the sense of conferring upon disabled persons a heavier burden than that conferred upon other persons (eg, social security ‘breaching’ regulations being more likely to ‘catch’ persons with a mental illness).^[65] The Productivity Commission observed that, to the extent that laws having discriminatory effects were not currently amenable to scrutiny under the DDA (which was doubted),^[66] there was an argument for the incorporation into the DDA of a provision such as s 10 of the RDA which guaranteed that written laws having a discriminatory effect were reviewed.^[67]

III The RDA and Statistical Inequality

A Unlawful act of direct discrimination and an unlawful act of indirect racial discrimination: s 9(1) and s 9(1A) of the Racial Discrimination Act 1975 (Cth)

Section 9(1) of the RDA has been quoted above. It provides that a discriminatory ‘act’ by a person is ‘unlawful’ and defines what constitutes discrimination. The essential phrases of that statutory definition may be set out as ‘elements’ of the victim’s cause of action. The victim must prove that a person (the discriminator) has done an ‘act’ that involves a ‘distinction, exclusion, restriction or preference’. The discriminator’s act must have been ‘based on race’. The discriminator’s act must have the ‘purpose or effect’ of ‘impairing the enjoyment’ of a ‘human right’ of the victim. I will refer to conduct that satisfies these elements as an ‘unlawful act of direct racial discrimination’. A further (and alternative) cause of action is available to a victim who proves that a person (the discriminator) required the victim to comply with a ‘condition’. The ‘purpose or effect’ of the discriminator’s ‘requirement to comply’ must have been to ‘impair the enjoyment’ of ‘human rights’ of ‘persons of the same race as the’ victim. The victim must not have been able to comply with the condition. The condition must not, ‘having regard to the circumstances of the case’ have been ‘reasonable’. I will refer to conduct that satisfies these elements (found in s 9(1A) of the RDA) as an ‘unlawful act of indirect racial discrimination’.

There is much room for debate about the meaning that ought to be attributed to the quoted elements of unlawful act of direct or indirect racial discrimination. For example, proof of an unlawful act of direct discrimination hinges upon proving that an act was ‘based’ on race. One view is that this element requires the victim to prove that racial considerations caused the discriminator to act.^[68] Another view is that the victim must prove only a ‘sufficient connection’ between racial considerations and the act of the discriminator.^[69] The text of s 9(1A) on an unlawful act of indirect discrimination is replete with examples of ambiguity. This point can be made by taking the example of a government social benefit that is available by telephoning a call centre and providing relevant information including bank account details and assuming that an Indigenous person in a remote community, otherwise qualified for the benefit, does not have access to a telephone and does not have access to a bank account.^[70] Is the government imposing a condition on the supply of the benefit (the telephone) or describing the benefit (the bank account) that is being offered?^[71] Must the Indigenous person show that compliance with the condition is literally impossible or that it is practically impossible?^[72] Is the condition reasonable?^[73]

A court’s answer to questions such as those posed in the previous paragraph ought start with a consideration of the objects of the RDA.^[74] I have already recounted that the RDA lacks an objects clause and that the preamble adds little except a reference to giving effect to CERD. The Attorney-General’s second reading speech on the Racial Discrimination Bill 1975 (Cth) emphasised the link between CERD and the RDA.^[75] The amendment to the RDA that provided for an unlawful act of indirect racial discrimination was described by the Attorney-General as an ‘amendment of a minor policy nature’.^[76] In two High Court cases on section 9(1) of the RDA, Justice Brennan took up the challenge of articulating the object of the RDA with a view to construing s 9.

Koowarta v Bjelke-Petersen^[77] is widely known as the decision establishing that Commonwealth legislation implementing a bona fide international treaty to which Australia is a party will, irrespective of the subject matter of the treaty, be a valid exercise of power with respect to ‘external affairs’ under s 51(xxix) of the Australian Constitution. Justice Brennan identified two relevant principles to assist in construing section 9 of the RDA.^[78] First, the RDA provision should be given the same meaning in domestic law that the identically worded CERD provision (art 1) is given in international law.^[79] Secondly, in accordance with art 31 of the Vienna Convention on the Law of Treaties,^[80] the ordinary meaning must be given to the text of a treaty in context and in light of the treaty object and purpose.^[81] Against this background, the purpose of CERD was said to be the ‘recognition, enjoyment and exercise of human rights on an equal footing irrespective of race’.^[82] So identified, the purpose encompassed a guarantee of ‘equal protection of the law’ and a guarantee of ‘equal opportunity to obtain rights and freedoms which the law protects’ (emphasis added).^[83]

The former mentioned guarantee would be infringed by a discriminatory enforcement of legal rights. The latter mentioned guarantee – equal opportunity – was exemplified by the situation of the plaintiff, Koowarta. He had contracted to purchase a Queensland leasehold pastoral property and the Queensland Minister for Lands refused to give the consent required under the Land Act 1962 (Qld) because of a Queensland Cabinet policy to view ‘unfavourably proposals to acquire large areas of additional freehold or leasehold land for development by Aborigines’.^[84] Koowarta does not complain of being deprived of property that is owned by him or of being without property. He complains of being denied an opportunity to own property.

The articulation by Justice Brennan of the objects of the RDA is similar to the manner in which the PC articulates the objects of the DDA. The emphasis is on the statute remedying a denial of an opportunity to access the same rights that are available to all. Justice Brennan pursued the theme of the relationship between CERD and section 9 of the RDA in Gerhardy v Brown.^[85] The object of CERD was identified as the ‘achievement of racial equality in the fields of public life’.^[86] The object is realised by prohibiting, in those fields, ‘racial discrimination’. Again, the conception of racial discrimination emphasises the importance of opportunity of access to public goods.

If it appears that a racially classified group or one of its members is unable to live in the same dignity as other people who are not members of the group, or to engage in a public activity as freely as others can engage in such an activity in similar circumstances, or to enjoy the public benefits of that society to the same extent as others may do, and that the disability exists because of the racial classification, there is a prima facie nullification or impairment of human rights and fundamental freedoms.^[87]

I am not saying that ‘equality of opportunity’ is a desirable goal to attribute to the RDA or that it is a desirable goal of any anti-discrimination statute. I am saying that ‘equality of opportunity’ is, because of the links between CERD and the RDA and the observations made by Justice Brennan in Koowarta v Bjelke-Petersen and Gerhardy v Brown, a defensible touchstone for assessing the application of the RDA to statistical inequality. Indeed, criticism may be made of the efficacy of the goal. Fredman observes that the ‘metaphor of equal starting points is deceptively simple’.^[88] It begs a rather large question as to what lengths must be taken to ensure equality of access to opportunity. It does, however, establish an important principle. The state must accommodate the ‘needs, capacities and circumstances’ of all persons to whom it offers services.^[89] Thus, the Supreme Court of Canada held that the omission of a hospital, exercising a power conferred by law to supply health services, to ensure that sign language interpreters were available to deaf patients infringed a constitutional guarantee of equality. It was argued that the constitutional guarantee of equality in

s 15(1) does not oblige governments to implement programs to alleviate disadvantages that exist independently of state action. Adverse effects only arise from benefit programs, they aver, when those programs exacerbate the disparities between the group claiming a s 15(1) violation and the general population. They assert, in other words, that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of those benefits. In my view, this position bespeaks a thin and impoverished vision of s 15(1).^[90]

The quoted reasoning does not depend on the constitutional status of the guarantee of equality. It flows from the same conception of equality that the Productivity Commission found to be the object of the DDA.^[91] It is necessary to have a touchstone when evaluating an anti-discrimination statute.

B Statistical inequality and unlawful acts of direct and indirect discrimination

It is time to answer the question posed in the opening sentence of this article. Does s 9 of the RDA prohibit statistical inequality? The first observation that can be made about the text of s 9 of the RDA is that statistical inequality, of itself, does not constitute either an unlawful act of direct racial discrimination or an unlawful act of indirect racial discrimination. Any ambiguity in the text of s 9 of the RDA cannot be resolved in a way that extends the section to provide a remedy on proof of nothing more than statistical inequality. A goal of ‘equality of opportunity’ does not alter this conclusion. Proof of no more than that an Indigenous person is, for example, less likely to live in an adequate house does not identify ‘an act’ or ‘a discriminator’ much less how the discriminator’s act is one that is ‘based on race’. Nor does proof of statistical inequality identify ‘the condition’ imposed or ‘the discriminator’ imposing the condition. It follows that there cannot be a finding of an unlawful act of direct or indirect racial discrimination.

However, it would not be surprising if an investigation into the complex reasons for statistical inequality in a given case did not reveal systemic unlawful acts of indirect racial discrimination. The findings of a recent report by the Ngaanyatjarra Council on health, education, housing and family support in eleven Aboriginal communities in remote central Australia provide a good example.^[92] The key finding of the report was that little was needed by way of ‘new money or new programs or new services’ to address Indigenous disadvantage in those communities.^[93] Many problems could be addressed if Indigenous people were able to access the same level of support available to low income and disadvantaged non-Indigenous people. The report documents that

access to [government] support often required an applicant [to have] ... reasonable literacy and numeracy skills, viable use of English, adequate maintenance of personal records (ie, income details, birth certificate, tax file information, rent accounts and essential services accounts), an understanding of Government programs and program delivery and a residential address for the receiving of relevant mail.^[94]

Prima facie, the report is describing unlawful acts of indirect racial discrimination. The conditions of access to low income support are imposed by an agent of the government (the discriminator) and the ‘effect’ of the condition is to ‘impair the enjoyment’ of the ‘human right’ of the Ngaanyatjarra people to, ‘housing’, ‘public health’, ‘social security and social services’.^[95] The reasonableness of each condition would have to be assessed in light of the ‘circumstances of each case’.

One implication of my observations about the objects of the RDA is that the elements of s 9(1A) of the RDA on indirect discrimination ought be construed – so far as the text allows – to ensure that the opportunities being denied to the Ngaanyatjarra people are remedied. A point to emphasise about making the case for an unlawful act of indirect racial discrimination is that close attention to the precise reasons for statistical inequality will be required if an ‘imposed condition’ is to be identified and then found to be ‘unreasonable’. The existence of statistical inequality, if causally linked to the condition, will establish that the condition impairs the enjoyment of a human right and the problems of proof of an impaired human right that arose Aboriginal Students Support and Parents Awareness Committee Traeger Park Primary School v Minister for Education, Northern Territory of Australia^[96] will not arise.

One final observation about statistical inequality and s 9 of the RDA concerns remedies. The remedy anticipated by the HREOC Act (the complaint system described above) for a victim of an unlawful act of direct or indirect racial discrimination suffers from the defects identified by the ALRC (in the case of systemic sex discrimination) and the Productivity Commission (in the case of systemic discrimination on the grounds of a disability). One successful complaint by one person about one act of racial discrimination will change little. The ALRC and the Productivity Commission recommended statutory reform. However, where the authority for a discriminatory act can be linked to a State (or Territory law) then, as a result of s 109 of the Australian Constitution, the impugned provision of the State (or Territory) law becomes inoperative if a Court accepts the argument that the State (or Territory) law is inconsistent with s 9 of the RDA. Justice Mason identified this possibility in Gerhardy v Brown:

The operation of s 9 is confined to making unlawful the acts which it describes ... This is not to say that s 9 of the Commonwealth Act cannot operate as a source of invalidity of inconsistent State laws, by means of s 109 of the Constitution. Inconsistency may arise because ... a State law makes lawful the doing of an act which s 9 forbids.^[97]

This reasoning appealed to Deane J and Brennan J in the same case. On their view and but for the ‘special measures’ exception in the RDA, the State law in question would have been inoperative because of an inconsistency with s 9.^[98] The High Court has affirmed the reasoning in subsequent cases (Mabo v Queensland (No1)^[99] and Western Australia v Ward^[100]) and refused an invitation to apply the principle in one (unpromising) case (Re East; Ex parte Nguyen^[101]). This is not the place to explore the implications of the principle except to note that the authority for many of the acts and conditions that give rise to statistical inequality resides in a State or Territory law. (Consider the criminal justice system.) Attention to the implications of section 9 of the RDA (read with s 109 of the Australian Constitution) for those State and Territory laws is overdue and would require consideration of the well known (and often difficult to apply) tests associated with the application of s 109.^[102]

C Statistical Inequality and Equality Before the Law

Section 10 of the RDA is directed at a law of the Commonwealth, State or Territory that infringes the principle of equality before the law. The section provides that the principle is infringed whenever, by reason of the law, persons of one race (‘the minority race’) enjoy a human right to a more limited extent than persons of another race (‘the majority race’). Where the principle of equality before the law (as defined) is infringed, the section goes on provide a remedy for the minority race. The minority race is, by force of s 10, entitled to enjoy the human right ‘to the same extent’ as the majority race. Section 10 should not be confused with a constitutionally entrenched guarantee of equality before the law. A law of the Commonwealth passed after the RDA may expressly or impliedly override the principle of equality before the law. This has occurred on at least one occasion.^[103]

Again, it must be said that the existence of statistical inequality in a field in which a law operates will not, of itself, give rise to an inference that the statistical inequality arises ‘by reason of a law’. The section demands that a law be linked to the impaired enjoyment by one race of a human right. That said, the majority of the High Court in Western Australia v Ward^[104] rejected an argument that s 10 is only directed to a law whose purpose is identified as discriminatory. Section 10 is directed at the enjoyment of rights. Reliance was placed on the text of the CERD defining racial discrimination as distinctions ‘based on race whose purpose or effect is to nullify or impair the enjoyment of human rights’.^[105] It would be a matter of evidence, inference and argument, whether statistical inequality arose ‘by reason of’ of a law in the sense of being ‘the effect’ of a law.^[106] If investigations revealed that statistical inequality in the enjoyment of a human right is the effect of a law, it remains to formulate a remedy. If the law provides for a right which is not available to Indigenous people, then, by force of s 10 of the RDA, the right is now available to Indigenous people. However, if the law is imposing an unequal burden upon Indigenous people, s 10 may operate, in conjunction with s 109 of the Australian Constitution to render the law inoperative.^[107]

IV Conclusion

I have concluded that the RDA does not offer a direct response to statistical inequality. The presence of statistical inequality may, with further investigation, reveal an unlawful act of direct or indirect discrimination or an infringement of the principle of equality before the law. If the only remedy for an unlawful act is an individual complaint, the remedy may prove unsatisfactory insofar as systemic racial discrimination remains unaddressed. However, there is a prospect of a more satisfactory remedy – at least where State laws (or executive conduct linked to those laws) might be rendered inoperative as a result of s 109 of the Australian Constitution.

It will be noticed that, although I have answered the question posed in the first sentence of this article (does the RDA provide a remedy for statistical inequality?), I have not answered the question posed in the title of this article (why has the RDA failed Indigenous People?). The RDA has only failed if it has failed to achieve its objectives. If the objective of the RDA is to eliminate statistical inequality, then it has failed. If the objective of the RDA is to contribute to the elimination of statistical inequality then, despite my argument that it has some capacity to achieve this objective, it has all but failed. The explanation for this last mentioned failure is most likely to be found in what Greta Bird found to be the barriers of access to the RDA that existed in 1995.^[108] Her list strikes a chord today: information barriers, physical barriers of time and place, language/culture barriers, complexity of legal barriers and barriers linked to power and politics. ^[109]

^[*] Martin Flynn is a Senior Lecturer in Law at the University of Western Australia.

^[1] Compare the following prescient observation in Bob Hepple, ‘Have Twenty-five Years of the Race Relations Acts in Britain Been a Failure?’ in Bob Hepple, E M Szyszczak (eds), Discrimination: The Limits of Law (1992), 19:

Why have the [English] Race Relations Acts of 1965, 1968 and 1976 failed to change the patterns of racial disadvantage in Britain? The question is often posed but it is based on a false assumption that law is simply an independent instrument of state power, a technical device that is capable of doing as much for ethnic relations as the microchip has done for communications. ... The separation of law from social life as a whole leads to the expectation that law can, in some way, ‘act upon’ society, and this has been followed by inevitable disillusionment as successive statutes ... have failed to achieve the stated aims of the reformers.

^[2] Elena Marchetti and Kathleen Daly, Indigenous Courts and Justice Practices in Australia (2004).

^[3] Beth Gaze, ‘Context and Interpretation in Anti-Discrimination Law’ [2002] MelbULawRw 18; (2002) 26 Melbourne University Law Review 325, 328–9.

^[4] See, eg, Chapter 3 ‘Headline Indicators’ in Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2003 (Productivity Commission, Canberra, 2003) setting out statistics on life: expectancy at birth, rates of disability and/or core activity restriction, years 10 and 12 retention and attainment, post secondary education – participation and attainment, labour force participation and unemployment, household and individual income, home ownership, suicide and self-harm, substantiated child protection notifications, deaths from homicide and hospitalisations for assault, victim rates for crime, imprisonment and juvenile detention rates.

^[5] Jon Altman and Boyd Hunter, ‘Evaluating Indigenous Socioeconomic Outcomes in the Reconciliation Decade, 1991–2001’ (2003) Economic Papers.

^[6] Ibid.

^[7] The process of comprehensive documentation of criminal justice statistics commenced with the work of the Royal Commission into Aboriginal Deaths in Custody, see: Royal Commission into Aboriginal Deaths in Custody, National Report (1991).

^[8] Carlos Carcach, Anna Grant and Rowena Conroy, Australian Corrections: The Imprisonment of Indigenous People (1999).

^[9] Royal Commission into Aboriginal Deaths in Custody, National Report (1991), Volume 1, [1.7.2].

^[10] National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997), Chapter 26.

^[11] Council for Aboriginal Reconciliation, Reconciliation: Australia’s Challenge: Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament (2000), Chapter 9, Conclusion 23.

^[12] On the RDA in particular contexts, see: Jane Robbins, ‘The Price of Power: Essential Services in Remote Indigenous Communities’ [2000] IndigLawB 37; (2000) 4(30) Indigenous Law Bulletin 4; Greg Crough, ‘The Responsibility of State and Local Governments for Service Delivery to Aboriginal People: The Halls Creek Case’ (1997) Australian Indigenous Law Reporter 9.

^[13] Cf Sex Discrimination Act 1984 (Cth) s 3; Disability Discrimination Act 1992 (Cth) s 3; Age Discrimination Act 2004 (Cth) s 3.

^[14] The expert reviews referred to in this sentence are: Australian Law Reform Commission, Equality Before the Law: Womens Access to the Legal System, Interim Report 67 (1994); Equality Before the Law: Justice for Women, Report 69 (1994), Part 1; Australian Law Reform Commission, Equality Before the Law: Womens Equality, Report 69 (1994), Part 2; Productivity Commission, Review of the Disability Discrimination Act 1992, Report No 30 (2004). In addition, the following reviews of the Sex Discrimination Act 1984 (Cth) should be noted: House of Representatives Standing Committee on Legal and Constitutional Affairs, Half way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (1992); Human Rights and Equal Opportunity Commission, Report on Review of Permanent Exemptions under the Sex Discrimination Act 1984 (1992).

^[15] Sex Discrimination Act 1984 (Cth) s 5; Disability Discrimination Act 1992 (Cth) s 5. The Racial Discrimination Act 1975 (Cth) does not contain a definition of discrimination. However, relevant sections of the Act contain the key elements of the definition, ie, ‘by reason of’ and ‘less favourable’: Racial Discrimination Act 1975 (Cth) ss 11, 12, 13, 15.

^[16] Racial Discrimination Act 1975 (Cth) s 9(1A); Sex Discrimination Act 1984 (Cth) ss 5(2), 6(2), 7(2), 7B, 7C; Disability Discrimination Act 1992 (Cth) s 6.

^[17] For example: Racial Discrimination Act 1975 (Cth) s 9; Sex Discrimination Act 1984 (Cth) s 14; Disability Discrimination Act 1992 (Cth) s 15. ‘Race’ and ‘sex’ are not defined. ‘Disability’ is defined: Disability Discrimination Act 1992 (Cth) s 4.

^[18] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70.

^[19] Racial Discrimination Act 1975 (Cth) s 11; Sex Discrimination Act 1984 (Cth) ss 22, 25; Disability Discrimination Act 1992 (Cth) s 23.

^[20] Racial Discrimination Act 1975 (Cth) s 12; Sex Discrimination Act 1984 (Cth) s 23, Disability Discrimination Act 1992 (Cth) s 25.

^[21] Racial Discrimination Act 1975 (Cth) s 13; Sex Discrimination Act 1984 (Cth) s 22; Disability Discrimination Act 1992 (Cth) s 24.

^[22] Racial Discrimination Act 1975 (Cth) s 15; Sex Discrimination Act 1984 (Cth) s 14; Disability Discrimination Act 1992 (Cth) s 15.

^[23] Racial Discrimination Act 1975 (Cth) s 5; Sex Discrimination Act 1984 (Cth) s 12; Disability Discrimination Act 1992 (Cth) s 14.

^[24] Human Rights and Equal Opportunities Commission Act 1986 (Cth) pt IIB. This scheme was established as a consequence of the decision of the High Court in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.

^[25] Section 46PH(1) of the Human Rights and Equal Opportunities Commission Act 1986 (Cth) provides that the President of HREOC may terminate the complaint if satisfied that: the complaint is not unlawful discrimination; the complaint was lodged more than 12 months after the discrimination; the complaint is trivial or vexations; an alternative remedy is more appropriate; the complaint raises an issue of public importance that should be considered by a Court; there are no reasonable prospects of conciliation.

^[26] Human Rights and Equal Opportunities Commission Act 1986 (Cth) s 46PO.

^[27] Human Rights and Equal Opportunities Commission Act 1986 (Cth) s 46PO(4).

^[28] Chris Ronalds and Rachel Pepper, Discrimination Law and Practice, (2004), Chapter 14.

^[29] Eldridge v. British Columbia (Attorney General) [1997] 3 SCR 624, [96].

^[30] Sex Discrimination Act 1984 (Cth) s 3; Disability Discrimination Act 1992 (Cth) s 3.

^[31] Sex Discrimination Act 1984 (Cth) s 3; Disability Discrimination Act 1992 (Cth) s 3.

^[32] Sex Discrimination Act 1984 (Cth) s 3.

^[33] Disability Discrimination Act 1992 (Cth) s 3.

^[34] Racial Discrimination Act 1975 (Cth) s 11–16; Sex Discrimination Act 1984 (Cth) s 5; Disability Discrimination Act 1992 (Cth) s 5.

^[35] This certainly was the view of Justice Weinberg in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8.

^[36] [1992] HREOCA 4 (26 February 1992).

^[37] The decision has been criticised: see Christine Walton, ‘Traeger Park School: A Case For Human Rights?’, in Indigenous Education: Historical, Moral and Practical Tales, S Harris and M Malin (eds) (1997), 39. See also Loretta De Plevitz, ‘The Briginshaw “Standard of Proof” in Anti-Discrimination Law: “Pointing with a Wavering Finger”’ [2003] MelbULawRw 13; (2003) 27 Melbourne University Law Review 308. A different view of similar facts was taken in Sinnappan and Foley v State Of Victoria [1996] AILR 55; (1996) 1 AILR 245.

^[38] [1983] HCA 15; (1983) 153 CLR 280 (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ).

^[39] Viskauskas v Niland [1983] HCA 15; (1983) 153 CLR 280, 293.

^[40] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 85–6 (Gibbs CJ), 90, 102–4 (Mason J); Mabo v Queensland (No1) (1988) 166 CLR 186; cf Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 184 (Gibbs CJ).

^[41] Viskauskas v Niland [1983] HCA 15; (1983) 153 CLR 280, 295 (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ):

The provisions of s. 10 were no doubt inserted in an endeavour to comply with the requirements of Art. 2(1)(c) of [CERD], which imposed upon the parties to [CERD] an obligation inter alia ‘to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists’.

^[42] Australian Law Reform Commission, Equality Before the Law: Justice for women, Report No 69 (1994) Part 1, [2.35].

^[43] Ibid [3.9].

^[44] Ibid [3.10], [3.49]–[3.50], [3.68]–[3.89].

^[45] Ibid [3.10], [3.90]–[3.104].

^[46] Ibid.

^[47] Ibid [3.7]–[3.16].

^[48] Ibid [3.10], [3.14]–[3.17].

^[49] Ibid [3.18]–[3.21].

^[50] Ibid Recommendation 4.4.

^[51] Ibid [3.24].

^[52] Ibid [3.26], [3.28].

^[53] Ibid [3.27].

^[54] Sex Discrimination Act 1984 (Cth) s 7B, 7D.

^[55] Productivity Commission, Review of the Disability Discrimination Act 1992, Report No 30 (2004), (iv)–(v). The Productivity Commission was required to report on ‘appropriate arrangements for regulation’ of disability discrimination having regard to a range of matters including: ‘the social impacts in terms of costs and benefits’ of the Disability Discrimination Act 1992 (Cth); whether any parts of the Disability Discrimination Act 1992 (Cth) restrict competition; social welfare and equity considerations; economic development; ‘the burden’ on small business; the ‘Competition Principles Agreement’ and the ‘Government's guidelines on regulation impact statements’.

^[56] See, eg, Productivity Commission, Review of the Disability Discrimination Act 1992, Report No 30 (2004), 18–21, 158–9, 180–3, 186–8.

^[57] Ibid 180.

^[58] Ibid 193–4.

^[59] Ibid 180–2. The Productivity Commission went further, arguing that ‘equality of results’ ought not be the goal of the Disability Discrimination Act 1992 (Cth): 182.

^[60] Ibid 77–84.

^[61] Ibid 188 (indirect discrimination), 194 (direct discrimination).

^[62] Ibid 193–6.

^[63] Philip Tahmindjis, ‘The Law and Indirect Racial Discrimination: Of Square Pegs, Round Holes, Babies and Bathwater’ in Race Discrimination Commissioner, The Racial Discrimination Act 1975: A Review (1995) 126.

^[64] Productivity Commission, Review of the Disability Discrimination Act 1992, Report No 30 (2004), 234.

^[65] Ibid 259–60.

^[66] Disability Discrimination Act 1992 (Cth) s 47 was no bar to the application of the Disability Discrimination Act 1992 (Cth) in most cases: ibid 262–5.

^[67] Productivity Commission, Review of the Disability Discrimination Act 1992, Report No 30 (2004), 260.

^[68] See Creek v Cairns Post Pty Ltd [2001] FCA 1007, [19]–[28] (Keifel J).

^[69] Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8, 33 (Weinberg J).

^[70] The example is not hypothetical, see Ngaanyatjarra Council (Aboriginal Corporation), Doing Business with Government (2003), at <http://www.tjulyuru.com/notices/DBWGRepApp.pdf> , 56–60.

^[71] Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349, 361 (Mason CJ and Gaudron J, Deane J agreeing), 394 (Dawson and Toohey JJ), 407 (McHugh J).

^[72] Siddiqui v Australian Medical Council (2000) EOC 93-059, 62.

^[73] Catholic Education Office v Clarke [2004] FCAFC 197 (6 August 2004), [115] (Sackville and Stone JJ; Tamberlin J agreeing).

^[74] To the extent that the objects are ignored or not debated, Courts are exposed to valid criticism, see Gaze, above n 3. The criticism was not taken on board, see the majority judgment in State of Victoria v Schou [2004] VSCA 71 (30 April 2004).

^[75] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 1975, 285–286 (Kep Enderby, Attorney-General and Minister for Customs and Excise).

^[76] Commonwealth, Parliamentary Debates, House of Representatives, 20 September 1990, 2336, 2339 (Mr Duffy, Attorney-General).

^[77] [1982] HCA 27; (1982) 153 CLR 168.

^[78] Three members of the Koowarta Court (Stephen, Mason and Murphy JJ) held that, in light of their finding that Koowarta could succeed on s 12 of the RDA, it was unnecessary to decide whether he could also succeed on s 9. Gibbs CJ (with whom Aikin J and, on this point, Wilson J, agreed) doubted that s 9 was applicable.

^[79] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 265.

^[80] Opened for signature 23 May 1969, 1155 United Nations Treaty Series 331, Australian Treaty Series 1974 No 2 (entered into force 27 January 1980).

^[81] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 265.

^[82] Ibid.

^[83] Ibid 266.

^[84] Ibid 208.

^[85] [1985] HCA 11; (1985) 159 CLR 70, 124–7 (Brennan J)

^[86] Ibid 124.

^[87] Ibid 126–7.

^[88] Sandra Fredman, ‘Combating Racism with Human Rights: The Right to Equality’ in Sandra Fredman (ed), Discrimination and Human Rights – The Case of Racism (2001), 9, 20.

^[89] Law v Canada (Minister of Employment and Immigration [1999] 1 SCR 497, [70].

^[90] Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624, [72]–[73].

^[91] See also: Gaze, above n 3, 325.

^[92] Ngaanyatjarra Council (Aboriginal Corporation), Doing Business with Government (2003) at <http://www.tjulyuru.com/notices/DBWGRepApp.pdf> .

^[93] Ibid 4.

^[94] Ibid.

^[95] The ‘human rights’ mentioned appear in CERD art 5(e)(iii)–(iv).

^[96] [1992] HREOCA 4 (26 February 1992).

^[97] [1985] HCA 11; (1985) 159 CLR 70, 92–3 (Mason J).

^[98] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 121 (Brennan J), 146 (Deane J).

^[99] (1988) 166 CLR 186, 204 (Wilson J).

^[100] Western Australia v Ward (2002) HCA 28 [102]. The observation of Mason J in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 that an act done under statutory authority is not a discriminatory act is quoted with approval.

^[101] [1998] HCA 73; (1998) 196 CLR 354.

^[102] For example, see Keven Booker, Robert Watt and Arthur Glass, Federal Constitutional Law: An Introduction (2nd ed, 1998), Chapter 13.

^[103] See, eg, the changes made to s 7 of the Native Title Act 1993 (Cth) by the Native Title Amendment Act 1998 (Cth), sch 1 para 3.

^[104] (2002) HCA 28, [105].

^[105] Mabo v Queensland (No1) (1988) 166 CLR 186; Western Australia v Ward (2002) HCA 28, [105].

^[106] Jonathon Hunyor, ‘Skin-Deep: Proof and Inferences of Racial Discrimination in Employment’ [2003] SydLawRw 24; (2003) 25 Sydney Law Review 535.

^[107] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 99 (Mason J); Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47; (1993) 183 CLR 373, 437; Western Australia v Ward (2002) HCA 28 [104]–[126].

^[108] Greta Bird, ‘Access to the Racial Discrimination Act’ in Race Discrimination Commissioner, The Racial Discrimination Act 1975: A Review (1995), 287.

^[109] Ibid.