The Position in Australia

151. The Effect of Section 51(26) of the Constitution. In Koowarta v Bjelke-Petersen, some members of the High Court expressed the view that legislation under s 51(26) of the Australian Constitution, which empowers the Parliament to pass ‘special laws’ for, amongst others, the people of the Aboriginal race, would necessarily be ‘discriminatory’ legislation. Justice Wilson said:

There is a touch of irony in the fact that the Commonwealth seeks to support the validity of an Act to give effect to these principles [of equality and non-discrimination] by relying on a power to enact discriminatory laws, whether for good or ill, for the people of any race … [I]t is basic to an understanding of the scope of the power to recognise that even when it is used for wholly benevolent and laudable purposes it remains a power to discriminate with respect to such people.[108]

Similarly, Justice Brennan said:

It is of the essence of a law falling within para (xxvi) that it discriminates between the people of the race for whom the special laws are made and other people, whereas the Act seeks to eliminate racial discrimination.[109]

On the other hand the Chief Justice (with whom Justice Aickin agreed) and Justice Stephen stated only that ‘discriminatory or repressive’ legislation could be passed under s 51(26), not that legislation under that power would necessarily be discriminatory.[110] Justice Murphy drew from the word ‘for’ in s 51(26) the conclusion that only beneficial, as distinct from adversely discriminatory, legislation could be passed under that power.[111] The view that ‘discriminatory treatment on the basis of race or colour … does not inhere in’ s 51(26)[112] is confirmed by the High Court’s decision in Commonwealth v Tasmania.[113] It was not suggested that s 8 and 11 of the World Heritage Properties Conservation Act 1983 (Cth), which protected Aboriginal sites in the World Heritage Area in Tasmania, were racially discriminatory. However Justices Wilson and Brennan in Koowarta’s case were not concerned with the concepts of equality before the law and non-discrimination, which are not protected by the Constitution. Discussion of these concepts, at least in the context of racial discrimination, has occurred only in decisions under the Racial Discrimination Act 1975 (Cth).

152. The Racial Discrimination Act 1975 (Cth). The Racial Discrimination Act 1975 (Cth) was passed specifically to implement, as part of Australian law, the Racial Discrimination Convention.[114] Part II of the Act, entitled ‘Prohibition of Racial Discrimination’, provides in part that:

8. (1) This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Art I of the Convention applies…

9. (1) It is unlawful for a person to do any act involving a 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 any human fight or fundamental freedom in the political, economic, social, cultural or any other field of public life.

10. (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 fight 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.

It is clear that s 8(1), by its direct incorporation of Art 1(4) of the Convention, allows ‘special measures’ in favour of particular racial or ethnic groups, within the limits laid down by Art 1(4). Section 10(1), which according to its sidenote establishes ‘rights to equality before the law’, must thus be read subject to s 8(1).[115]

153. The Racial Discrimination Act 1975 and the High Court: Gerhardy v Brown. In Gerhardy v Brown,[116] the High Court appears to have accepted the second of the two interpretations of the Convention outlined in para 150. On this view, measures for the recognition of Aboriginal customary laws and traditions will usually, if not necessarily, have to be justified as ‘special measures’ under Art 1(4) of the Convention (s 8(1) of the Commonwealth Act). The case involved an appeal from a single judge of the South Australian Supreme Court, who had held that s 19 of the Pitjantjatjara Land Rights Act 1981 (SA) was invalid because inconsistent with the Racial Discrimination Act 1975 (Cth).[117] Section 19 of the South Australian Act provides that a person, other than a Pitjantjatjara as defined,[118] may not enter upon Pitjantjatjara land except with the permission of the corporate body representing the Pitjantjatjara people. The defendant, an Aborigine but not a Pitjantjatjara, entered upon the land without such permission, and was prosecuted under the Act.[119] Justice Millhouse held that provisions excluding persons from land on grounds which included grounds of race (because to be a Pitjantjatjara was, amongst other things, to be a member of the Aboriginal race) were racially discriminatory under the Commonwealth Act. The argument that the South Australian Act established distinctions based upon traditional affiliation to land, which were not therefore discriminatory, was rejected.[120] On appeal, a majority of the High Court accepted the view that s 19 of the Act, at least, involved a discrimination ‘based on race’ contrary to Art 1(1) of the Convention. Thus Art 1(1) was interpreted as guaranteeing formal equality before the law: any legal provision, no matter what its content, which confers or defines rights in the public arena by reference to criteria with some racial or ethnic element, is on this view discriminatory under Art 1(1). This conclusion was most clearly expressed by Justice Brennan:

Whatever may be the connotation of the term ‘discrimination’ in international law generally, in the context of the Convention Art 1(4) expresses an exception to what otherwise falls within Art 1(1) … Section 9(1) picks up the general conception of discrimination in Art 1(1), but not the exception expressed in Art 1(4) … Section 9(1) therefore prohibits all acts involving a distinction, exclusion, restriction or preference based on race that denies formal equality before the law. And so, an act done in performance of a duty imposed by a State law which involves a distinction based on race that denies formal equality falls within s 9(1). Such an act must be held to be unlawful and the State law that purports to command the doing of the act is invalid unless it satisfies the description of a special measure.[121]

154. The ‘Reasonable Classification’ Doctrine. Although some of the justices referred to the ‘reasonable classification’ doctrine and to the comparative and international law materials, only Justice Wilson thought that doctrine might be consistent with the language of Art 1(1).[122] But, as a corollary of an interpretation of Art 1(1) embodying the notion of formal equality only, the whole Court was prepared to take an expansive view of Art 1(4) and s 8(1) as authorising reasonable measures for the recognition of Aboriginal claims or needs. Thus Art 1(4) was not concerned only with questions of economic, social or educational advancement, but could properly include measures for the recognition and protection of the culture and identity of minority groups. In Justice Brennan’s words:

Human rights and fundamental freedoms may be nullified or impaired by political, economic, social, cultural or religious influences in a society as well as by the formal operation of its laws. Formal equality before the law is an engine of oppression destructive of human dignity if the law entrenches inequalities ‘in the political, economic, social, cultural or any other field of public life’ … A legally required distinction, exclusion, restriction or preference based on race nullifies or impairs formal equality in the enjoyment of human rights and fundamental freedoms, but it may advance effective and genuine equality. In that event, it wears the aspect of a special measure calculated to eliminate inequality in fact.[123]

155. The Pitjantjatjara Land Rights Act as a Special Measure. In applying this conception of the Convention and the Racial Discrimination Act 1975 (Cth) to the State Act, there were, despite the unanimity of result, some important differences in emphasis. The difficulty was that, while s 19 of the State Act dealt only with access rights of non-Pitjantjatjara, that provision was plainly part of a larger statutory scheme involving the control both of rights to land, and control over access to land, upon the Pitjantjatjara people.

  • Traditional Land Rights as a Special Measure. The Land Rights Act assumed that the only persons who were ‘traditional owners’ of the lands were Aborigines who were members of the ‘Pitjantjatjara, Yungkutatjara or Ngaanatjara people’, and that these people, or most of them, were ‘traditional owners’ of all or part of the land. Neither assumption was strictly necessary to the scheme of the Act, and if either proved to be wrong in any significant way then serious problems of equal protection could arise. In the absence of evidence on either point the Court was prepared to treat both assumptions as broadly correct. On this basis the two justices who expressly discussed the land rights provisions themselves had no difficulty in treating them as a ‘special measure’. Thus Justice Deane said:

Those central provisions were, plainly enough, special measures taken for the purpose of adjusting the law of South Australia to grant legal recognition and protection of the claims of the Pitjantjatjaras to the traditional homelands on which they live. Until those special measures were enacted, the doctrine that this continent was terrae nullius at the times when British sovereignty was imposed had combined with the narrowness of the notions of ownership and occupation under the imported law to make the Pitjantjatjaras a disadvantaged racial or ethnic group as regards one of the ‘human rights’ which the Convention specifically identifies, namely, the ‘right to own property alone as well as in association with others’ (Art 5(d)(v)). That ‘right to own property’ extends to what Art 11 of Convention No 107 of the International Labour Organisation identified as the ‘right of ownership, collective or individual, of the members of [indigenous and other tribal and semi-tribal populations] over the lands which [those] populations traditionally occupy’, It embraces the right to preserve such lands as homelands upon which sacred sites may be safeguarded and traditional customs and ways of life may be pursued in accordance with the ordinary law.[124]

  • Restrictions on Access as a Special Measure. The restrictions on access under s 19 raised more difficult questions. Except for various exemptions for opal miners and their families, and for law-enforcement and other officials, any non-Pitjantjatjara wishing to enter the lands had to apply in writing for a permit. Anangu Pitjantjatjara, the corporate body established by the Act, was of course bound not to discriminate on the grounds of race in issuing permits, but the effect of the provisions was to set up a corporate licensing authority between the Pitjantjatjara and ‘outsiders’. Thus individual Pitjantjatjara could not invite non-Pitjantjatjara to visit them without permission. More seriously, perhaps, a non-Pitjantjatjara married to a Pitjantjatjara who wished to live on the lands would have to obtain a permit to do so.[125] Section 19 could therefore give rise to situations of individual estrangement not unlike that in the Lavell case.[126] For these reasons several justices (especially Justice Deane) were critical of the access provisions.[127] Nonetheless the whole Court (Justice Deane reluctantly) was prepared to treat s 19 as a ‘special measure’, in the context of the Act as a whole. The point was again most clearly made by Justice Brennan:

By definition all Pitjantjatjaras have a traditional relationship with the lands or with some parts of the lands. It may be inferred that they have no other home. Homelessness is a disadvantage sadly suffered by people of all races, but Aborigines with traditional relationships with their country may reasonably be thought to need protection from an inundation of their culture and identity by those who embrace different values and who constitute a majority in Australian society. That may not be the view of all Australians, but it is a view that the Parliament of South Australia could reasonably hold. It is a view which might reasonably be held by a mature and humane society, desiring to respect the culture and identity of any peaceful minority group and to accord dignity to the members of that group. It is a view that a court could not hold to be unreasonable. The political assessments evidenced by the enactment of the Land Rights Act, being reasonably made, establish the indicia of a special measure.[128]

156. The Duration of Special Measures. The Court, consistently with this broad view of Art 1(4), rejected the argument that legislative ‘special measures’ had to be temporary either in nature or in terms (for example through incorporating a ‘sunset clause’). As Justice Mason said:

In the present case the legislative regime has about it an air of permanence. It may need to continue indefinitely if it is to preserve and protect the culture of the Pitjantjatjara peoples. Whether that be so is a question which can only be answered in the fullness of time and in the light of the future development of the Pitjantjatjara peoples and their culture. The fact that it may prove necessary to continue the regime indefinitely does not involve an infringement of the proviso. What it requires is a discontinuance of the special measures after achievement of the objects for which they were taken. It does not insist on discontinuance if discontinuance will bring about a failure of the objects which justify the taking of special measures in the first place.[129]

But the difficulties with the access provisions were such that some justices at least doubted that they could be maintained in force indefinitely, whatever the position with the land rights provisions themselves. There remains therefore a continuing avenue for judicial review of special measures if, in the light of changed circumstances, they no longer meet the requirements of the Convention.

157. The Present Australian Law. It follows from Gerhardy v Brown that laws, especially those enacted with the consent of the Aboriginal people affected, which are intended to ‘respect the culture and identity of [an Aboriginal group] and to accord dignity to the members of that group’, and which do not deny members of the protected group basic rights, will be held to be ‘special measures’ in this extended sense and therefore not discriminatory under the Racial Discrimination Act 1975 or the Convention. Such laws need not be temporary: they may be expressed to apply only in the circumstances which justify the law as a special measure, or they may be kept under review by the Parliament (or by a body established by the Parliament) to ensure that they continue to qualify as reasonable measures.[130] In the latter case there remains the possibility of further review by the Court, if the measures prove to be no longer necessary or adapted to the needs of the relevant group.[131]

[108](1982) 39 ALR 417, 475.

[109]id, 489.

[110]id, 428-9 (Gibbs CJ); 447-8 (Stephen J).

[111]id., 473. Mason J did not discuss s 51(26).

[112]Attorney-General of Canada v Lavell (1973) 38 DLR (3d) 481, 511 (Laskin J, diss); see para 140.

[113](1983) 46 ALR 625.

[114](1982) 39 ALR 417. The validity in principle of the Act under the external affairs power was upheld in Koowarta v Bjelke-Petersen (1982) 39 ALR 417.

[115]The Act reverses the order of the Convention, under which Art 1(4) is relevant only with respect to measures which do constitute racial discrimination under Art 1(1).

[116](1985) 57 ALR 472. For comment see JA Thomson, ‘Human rights Treaties as Legislation: Gerhardy v Brown, Reverse Discrimination and the Constitution’ [1985] ACL AT 16.

[117](1983) 49 ALR 169 (Millhouse J).

[118]Under s 4, a ‘Pitjantjatjara’ is defined as a ‘member of the Pitjantjatjara, Yungkatatjara or Ngaanatjara people’ who is also ‘a traditional owner of the lands, or a part of them’, and ‘traditional owner’ was defined to mean an Aboriginal with ‘social, economic and spiritual affiliations with and responsibilities for the land in accordance with Aboriginal tradition’.

[119]For some factual background to the case see P Toyne and D Vachon, Growing up the Country, Penguin, Ringwood, 1984, 148-51.

[120](1983) 49 ALR 169, 177. Millhouse J held Art 1(4) of the Convention inapplicable because the grant of land rights was not temporary but permanent: id, 178. As he hinted, this reasoning would invalidate not merely the access provisions of the Pitjantjatjara Land Rights Act, but possibly the initial grant of land itself.

[121](1985) 57 ALR 472, 518. To similar effect see id, 479, 481-2 (Gibbs CJ), 494, 496 (Mason J), 499 (Murphy J), 528-9 (Deane J). Dawson J did not deal with the issue (id, 542) and Wilson J left it open (id, 502-3).


[123]id, 516-7. To similar effect id, 497-8 (Mason J), 532 (Deane J).

[124]id. 532-3. Similarly id. 519-27 (Brennan J).

[125]Unlike an opal miner or pastoral leaseholder under the Act (s 19(11)).

[126]See para 140. See also the Lovelace case, discussed in para 176.

[127](1985) 57 ALR 472, 483 (Gibbs CJ), 498 (Mason J), 507, 518-21 (Brennan J), 533-4 (Deane J).

[128]id, 527. See also id, 483-4 (Gibbs CJ), 498-8 (Mason J), 500 (Murphy J, by application of a presumption of validity in the absence of adequate evidence), 504 (Wilson J: ‘the clear stamp of a special measure’), 530-6 (Deane J), 541-2 (Dawson J: ‘no doubt’).

[129]id, 498. Similarly id, 484-5 (Gibbs CJ), 525 (Brennan J), 536 (Deane J). Murphy, Wilson and Dawson JJ did not deal with the point expressly.

[130]cf id, 525 (Brennan J).

[131]Several other Australian cases have rejected arguments that provisions for the protection of Aboriginal or other groups constituted discrimination under the Act. See esp R v Sampson, Herbert and Wurrawilya (1984) 53 ALR 542, arming O’Leary J (1983) 23 NTR 22, where A was suggested that the sentencing discretion then available under the Criminal Law Consolidation Act (NT) s 6A, 6(1C) should be read as limited to ‘native custom’ rather than as a general discretion, so as to comply with the ‘spirit’ of the Racial Discrimination Act 1975 (Cth). The Full Court rejected the argument: id, 545-6. See further para 518-522. See also Lewis v Trebilco (1984) 53 ALR 581; Murray Meats (NT) Pty Ltd v Northern Territory Planning Authority (1982) 18 NTR 13, 34 (Toohey J); Viskauskas v Niland (1983) 57 ALJR 414. cf Australian Telecom Commission v Hart (1982) 43 ALR 165, 173-4 (Fox J).