9. Discrimination, Equality and Pluralism

128. Influential Arguments. A significant issue for the Commission, if it is to recommend legislation for the recognition of Aboriginal customary laws, is the argument that such legislation would be in some way ‘discriminatory’ or ‘unequal’, or that it would contravene what is said to be a principle that all Australians are, and should be, subject to the ‘one law’. These are powerful and influential arguments. It cannot be expected that Parliament would pass discriminatory or unequal legislation, especially in the light of the Racial Discrimination Act 1975 (Cth), implementing the International Convention on the Elimination of all Forms of Racial Discrimination of 1966 (to which Australia is a party).[1] Internationally-accepted principles of equality and non-discrimination are also enunciated in the International Covenant on Civil and Political Rights of 1966 (to which Australia is also a party).[2] These instruments express Australia’s commitment to equality and non-discrimination, including especially non-discrimination on account of race. The Commission ought not to recommend legislation or administrative action which would infringe these important principles.

129. Purpose of this Chapter. However the application of these principles is not free from difficulty. Before discussing the major Australian decisions on the point,[3] it is helpful to look at experience in comparable overseas jurisdictions, where guarantees of ‘equality before the law’ or ‘equal protection of the law’ have to be applied judicially. These experiences, and developments at the international level, may not determine the issue for Australia, but they do provide helpful guidance. It is proposed to discuss, first, the tests applied by the United States and Canadian Supreme Courts, especially in cases involving their Indian minorities, under their respective Bills of Rights; secondly, the international law tests for equality and non-discrimination both generally and as expressed in the Racial Discrimination Convention, and thirdly, the Australian position. Even if the Commission’s recommendations are consistent with these standards, there remains the argument that ‘legal pluralism’, or the enactment of special rules for particular groups, is inherently undesirable. This, and related arguments, will be dealt with in the final section of this Chapter.

[1]7 March 1966; Australian Treaty Series 1975 No 40.

[2]19 December 1966: Australian Treaty Series 1980 No 23. The proposed Australian Bill of Rights, Art 1, 4 (based on the International Covenant) would also, if and when it comes into force, provide additional protection for these equality rights: see Australian Bill of Rights Bill 1985 (Cth).

[3]The most significant of these is Gerhardy v Brown (1985) 57 ALR 472. See also para 152-7.

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