POSITIVE DISCRIMINATION AND THE HIGH COURT - AustLII

POSITIVE DISCRIMINATION AND THE HIGH COURT

1. Introduction One of the healthier developments in recent times has been the

growing awareness of the evils of racial discrimination. With this development has come the realization that, because extra-legal measures by themselves are inadequate to deal with the problem, legislative intervention is required. Restricting attention to com- mon law jurisdictions, the United States, where arguably the matter was most acute, led the way in 1964 with the Civil Rights Act. ' The United Kingdom followed suit with the Race Relations Act in the following year.* In Australia, South Australia was the first jurisdiction to introduce anti-discrimination legislation when it pass- ed the Prohibition ofDiscrimination Act in 1966.3 New South Wales,' VictoriaLnd Western Australia,%ave since brought in their own provisions, leaving Queensland and Tasmania' as the only states without such legislation. At the federal level, the Racial Discrimina- tion Act was enacted in 1975. This Act aimed to give effect to the

* LL.B., B.A., M.A. , Ph D. Lecturer in Law. University of Melbourne

1. See in particular Title VII, and also the Equal Employment Opportuntty Act, 1972 2 This Act was substant~ally amended by the Race Relattons Act,1968. These Acts were

repealed and replaced by the Race Relattons Act, 1976, which was modelled on the Sex Dtscrzmtnatzon Act, 1975.

3. Repealed and replaced by the Racial Dtscrzmtnatton Act, 1976. This Act was in turn repealed together with the Sex Dzscrtmtnation Act, 1975 and Hand~capped Persons Equal Oppor- tunity Act,I981, all three Acts being replaced by the Equal Opportuntty Act, 1984.

4 . Antt-Dzscrtmtnatton Act, 1977. 5 Equal Opportuntty Act, 1977, repealed and replaced by the Equal Opportuntty Act, 1984. 6 . Equal Opportuntty Act, 1984. 7 . An Equal Opportuntty Btll was introduced into the Tasmanian parliament in 1978 but

not proceeded with.

19871 POSZTZVE DISCRZMINA ?'ION 129

International Convention on the Elimination of All Forms of Racial Discrimination (hereafter "the Convention"), which Australia had ratified the same year. 'The Act has subsequently survived constitutional challenge, being upheld is a valid exercise of the Com- monwealth's external affairs power.'

Perhaps the most serious issue that divides those who in general support anti-discrimination measures is the justifiability of positive discrimination or affirmative action programmes. Proponents of such programmes argue that it is not sufficient merely to prohibit discrimination, whether direct or indirect." Where racial prejudice is deep-seated, it is totally inadequate merely to try to establish a narrow formal equality between different racial groups, and expect that minorities will outgrow the effects of longstanding discriminatory practices. If substantive equality is to be achieved, stronger action in the form of measures which discriminate positively in hvour of minorities is required."' Despite its controversial nature," the principle of positive discrimination has been widely accepted in the United States, and affirmative action programmes have bccn introduced by universities, government departments, and corporations. In Australia, there is presently considerable interest being shown in such measures, in particular in the area of discrimination against women. "

Opponents of positive discrimination argue, however, that affirmative action programmes are ineffective in that they tend to

8 Cornmonwcalth Constitution s.5 l(29). Scc: Koowarta u &lke Petersen (1982), 39 A.L.R. 41 7, Commonwealth ofAustralza o. State of 7 h ~ m a n i a (The Dams Ca.re) (1983), 46 A.L.R. 625, V ~ ~ h a u s k a s u Niland (1983), 47 A.L R . 32. O n the joint operation of federal and statr discrinlination laws, scc Onzuerrzp of Wollon~ongr u Metwally (1985), 56 A.L.K. 1.

9. Consider, for instance, the view of Anlrrlcan constitutional lawyer J .H. Ely: "If we arr to have even a chance ol'curing our society of the sickness of racism, wc will need a lot niore Black professionals. And whatever thc complex of reasons, it seems we will not get them in the foresccablc futurc unless we take blackness into account and weight it positively when we allocate opportunities. Rut that must mean denying opportunities to some people solely bccausc they were born white". "The Constitutionality of Rcverse Racial Discrimination" (1974), 41 U.Chi.L.Rev. 723, 723.

10. Note that this way of prcscnting the case for positive discrimination is restricted to the restitutive, as opposed to the compensatory argument for such discrimination.

11. Scr Regrentc ofthe Unzuarzp ofCal?fornza u Bakke (1978), 438 U . S . 265. Cf R.M. Dworkin, "Why Rakke Has No Casr", (Nov. 10, 1977) New York Keuzew of Books 11, Richard A Posner, "The Bakke Case and the Future Affirmative Action" (1979), 67 Calif.L.Rev. 171.

12. Cf. Affirrnatzue Adzonfor Women (Department of Prime Minister and Cabinet, Australian Government Publishing Srrvice, Canberra, 1984), Afirmatiue Action (Equal Gpportunily

,for Women) Act, 1.986 (C'th).

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benefit only individual members of the group discriminated against (and the better off members at that), rather than the group as a whole. The objection is also raised that those who benefit usually do so at the expense of the worst off members of the majority group. For instance, it is contended that university preferential admission schemes in the United States have in the main favoured middle- class blacks at the expense of working-class whites. Another objection is that affirmative action programmes generate resentment on the grounds that they interfere with the principle of merit. It is argued that as a consequence such measures exacerbate interracial ill feeling and tension, and hence are counter-productive. Further- more, radicals claim that affirmative action programmes merely have the effect of institutionalizing racism, and giving it a quite undeserved respectability.

The most serious objection to such programmes, however, is that they are themselves discriminatory, for they aim to fight discrimination with di~crimination.'~ Positive discrimination transgresses the very principle that its proponents, as well as opponents of racial discrimination in general, strive to uphold, namely the principle of racial equality, or what could perhaps better be called "the principle of racial indifference". This is the principle that race is totally irrelevant in the distribution of benefits and burdens throughout society. It is only possible to discriminate in favour of members of a minority group by discriminating against someone else. If, for instance, as the result of an affirmative action programme a black candidate is awarded a place in a law school instead of a white candidate, then the white candidate can justly claim (so it is argued) to be a victim of racial discrimination.

The issue of positive discrimination has been debated widely in the United States both inside and outside the courts. Until the High Court's recent decision in Gerhardy u. Brown, however, the debate in Australia has been entirely extra-judicial.'Wot only is this the first High Court positive discrimination case, it is also one of its first discrimination cases generally. Gerhardy's case arose out of the

13. For argument that this is not the case, see W. Sadurski, "The Morality of Preferential Treatment" (1984), 14 Melb.U.L.Rev. 572.

14. With perhaps the sole but hardly illuminating exception of Gerhardy's case when before the South Australian Supreme Court: (1983), 49 A.L.R. 169.

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appellant's attempt to prosecute the respondent under the Pitjant- jatjara Land Rights Act for having entered the Pitjantjatjara lands without written permission, as required under the Act. The respondent challenged the prosecution on the grounds that the section under which the prosecution was brought (s. 19) was invalid by reason of inconsistency with the federal Racial Discrimination Act . He claimed that this section discriminated against him on grounds of his race. Had he been a Pitjantjatjara he would not have required such written permission. The central question in the case was whether Section 19 of the Pitjantjatjara Land Rights Act constituted part of a "special measure" under the Racial Discrimination Ac t , and therefore was exempt from the anti-discrimination provisions of that Act.

This paper examines some important issues concerning positive discrimination in the context of Gerhardy? case. It is divided into three substantive sections. Section 2 sets out the facts and central legal issues of the case. This section concentrates on the discussion of the various indicia of a special measure. The major questions here concerned first, whether the measure was genuinely undertaken for the purpose of improving the position of a disadvantaged group; secondly, whether it was necessary to achieve this purpose; and thirdly, the danger of its persisting once its purpose had been achieved. These indicia give rise to a number of questions of a political nature, for instance, whether the group to be benefit- ted by the measure is actually discriminated against, and whether the measure is in fact necessary to overcome such discrimination. We examine the way in which the High Court faced, or rather side- stepped, these questions, treating them as the proper domain of the legislature or executive. We look briefly at two proposals, put forward by Gibbs, C.J., and Brennan, J . , respectively, as to when the Court would be prepared to challenge the judgment of the political branches of government.

Section 3 takes up what is arguably the most interesting aspect of the case, namely Brennan, J.'s appeal to the notion of substantive equality. Brennan, J . , argues that such equality must be given priority over formal equality. Insofar as they genuinely advance substantive equality, the fact that positive discrimination measures such as Aboriginal land rights schemes diminish formal equality can be overlooked. However, the question arises as to the significance of this appeal to substantive equality. It has no bear-

WESTERN AUSTRALIAN LAW REVZE W [Vol. 17

ing on determining the indicia of a special measure, for these are firmly laid down by the specific wording of the relevant provision of the Racial Discrimination Act . It is argued, however, that the no- - tion of substantive equality becomes relevant where what could be called a "benign discrimination" approach to positive discrimination is adopted. O n this approach, rather than making explicit provision for positive discrimination measures, appeal is made to a distinction between "benign" and "malign" discrimination. It is further contended that anti-discrimination legislation is only intended to apply to discrimination of the latter type. It is argued that although there is no practical significance in appealing to substantive equality where there is explicit provision for positive discrimination, such appeal may be of considerable help where this is not the case, and it is necessary to adopt a "benign discriminationn approach to the legislation in question.

Finally, section 4 takes up a wider issue raised by the foregoing discussion. A contrast is suggested between two broad strategies in the general area of human rights and anti-discrimination legislation. According to what we refer to as the "particular" strategy, attention is focused on specific types of discrimination, for instance, discrimination according to race or sex. However, if the "universal" approach is adopted, it is sufficient that some basic right has been violated. There is no further requirement that the complai- nant belong to a recognized class of victims of discrimination. It is argued both in the context of Gerhardy's case and quite generally that the universal approach is preferable to the particular on various grounds. For instance, one serious problem concerning the particular strategy is that it can be a matter of mere chance whether one's case falls within a recognized category of discrimination. We consider various objections to the universal approach, and show how they can be overcome. Specifically, it is argued that the need for positive discrimination measures such as land rights does not mean that the particular approach should be preferred. Appealing to the notion John Rawls develops in A Theory of Justice l 5 of the worst-off or least advantaged gr.oup in society, it is contended that membership of this group can be determined purely by the extent of infringement or violation of basic human rights.

15. See A Theory of Justzce (Oxford, 1972), 95-100

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2. Gerhardy u. Brown In Gerhardy v. Brown ' the Full High Court was required to

decide whether Section 19 of the Pitjantjatjara Land Rights Act, 1981 (S.A.) ("the State Act") is "invalid or restricted by reason of the Racial Discrimination Act, 1975 (C'th)" ("the Commonwealth Act").' As Gibbs, C .J., pointed out, "[tlhe main purpose of the [State] Act is to vest the titles to a large tract of land in the north west of South Australia in the Aboriginal people who are said to be its traditional owners." ' The land or "lands7' in question consisted of 102,630 square kilometres, about one tenth of the total area of South Australia.' Most of these lands had comprised an Aboriginal reserve. The Aboriginals in question, estimated in 1978 to number about 2,000, consisted of members of the Pitjantjatjara, Yungkutat- jara, and Ngaanatjara tribes, although in the State Act they are referred to jointly as "Pitjantjatjara".~ The Act constitutes a body corporate, called "Anangu Pitjantjatjaraku", of which all Pitjant- jatjaras (in the broad sense) are members." Under sub-section 15(1) the South Australian Governor may issue to Anangu Pitjan- tjatjaraku a land grant in fee simple of the whole or any part of the lands defined in the Act. A grant of the whole of the lands was made on October 30, 1981 .' Section 18 provides that "[all1 Pitjan- tjatjaras have unrestricted right of access to the lands". Sub-section 19(l) provides that any person who is not a Pitjantjatjara can only enter the lands with the written permission of Anangu Pitjantjat- jaraku. The remainder of Section 19 sets down, inter alia, penalties

1. Brought down February 28, 1985. References are to thc booklet ofjudgments available fro111 the Higti Court Mclbou~-nc Office. Numerals in square brackets indicate page numbrrs of this booklet. The case has since been reported. See (1985), 59 A.L.J.R. 31 1. For other discussions of this case, see: J.A. Thomson, "Human Rights Treaties as 1,egislation: Gerhardy v. Brown, Kcvcrse Discrimination and the C:onstitution", 119851 A.C.L. 36057; Charles N.H. Bagot, "Aboriginal Idand Rig-h~s in South Australia and the Racial L)z.rcrzmination Act 1975", 1,985 AMPLA Yearbook 435; W . Sadurski, (1986), I 1 Sydney I, Rev 5.

2. [title pagcj

3. [ I ] 4. State Act s.4, and First Schedule 5. S.4 6. Pitjantjatjaras also have to fulfil the qualification of being "traditional owner(s) of the

lands, or a part of thern" By a "traditional owner" is meant "an Aboriginal person who has, in accordance with Aboriginal tradition, social, econoniic and spiritual af- liliations with, and responsibilities for, the lands or part of then^": State Act s.4.

7 [21

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for the breach of sub-section (1) (s-s. 19(2)), the mode of application for permits (s-s. 19(3)), and certain categories of exemptions, for instance, police officers acting in the course of their duties, and members of parliament and parliamentary candidates (s-s. 19(8)).

As stated by the Chief Justice, "[tlhe respondent, Robert John Brown, was charged on the complaint of David Alan Gerhardy that on or about 27 February 1982 he committed a breach of s-s. 19(1) of the [State] Act. The complaint was heard by a special magistrate in Oodnadatta who, after making certain findings, stated a case which raised a number of questions of law for the opinion of the Supreme Court of South Australia." ' Millhouse, J . , held that section 19 was invalid because it was in conflict with section 9 of the Racial Discrimination Act and Article 5(d)(i) of the Convention. Appeal from this judgment to the Full Court of the Supreme Court was removed into the High Court under section 40 of the Judiciary Act.

Sub-section 9(1) of the Commonwealth Act states: "It is unlawful for a person to do any act involving a distinc-

tion, 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 right or fundamental freedom in the political, economic, social, cultural, or any other field of public life." According to sub-section 9(2). "[tlhe reference in sub-section (1)

to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes a reference to any right of a kind referred to in Article 5 of the Convention". One of the "human rights" listed in Article 5 is "[tlhe right to freedom of movement and residence within the border of the State". (Arti- cle 5(d)(i).) Millhouse, J . , held section 19 of the State Act to be invalid because it "interferes with 'the right to freedom of movement' on the basis of race: it prohibits anyone who is not a Pitjant- jatjara from entering freely a very large part of the State. .."

The High Court, however, did not consider the possibility of conflict only with section 9 of the Commonwealth Act, but also

8. [ 5 ] , per Gibbs C.J. For a more detailed account, see the judgment of Millhouse J . 1 when the case was before the Supreme Court of South Australia: (1983) 49 ALR 169.

9. [8], per Gibbs C.J. See also: (1983) 49, A.L.R 169.

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with Section 10. Sub-sections lO(1) and (2) read as follows: "lO(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 sub-section (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention." Under section 18 of the State Act, all Pitjantjatjaras (who are

also traditional owners) have a right of unrestricted access to the lands covered by the Act, and therefore the right to freedom of movement over these lands. If section 10 of the Commonwealth Act applies, all people other than Pjtjantjatjaras, including the respondent, must enjoy the same right as well.

The High Court had little difficulty in upholding the validity of section 19 of the State Act, and thus allowing Gerhardy's appeal. The Court thus denied that there was any constitutional obstacle to his prosecution of the respondent arising out of conflict with the Commonwealth Act. Irrespective of possible inconsistency with either sections 9 or 10 of this Act," the High Court held

10. Gibbs, C.J. found no inconsistency with s.9, but held that s.19 was inconsistent with s. 10 unless s. 19 could be saved as part of a special measure (which, like all other members of the Court, he held it could be). [8-151 Mason, J . , held that the question of inconsistency with s.9 did not arise since this section did not apply to laws. [22] Like the Chief Justice, he held that s. 19 would be inconsistent with s. 10 if it could not be saved as part of a special measure. [36] In a very brief judgment, Murphy, J., considered only the possibility of conflict with s.9, and held that s.19 was inconsistent with this section unless it was part of a special measure. [41] Wilson and Dawson, JJ., thought it was unnecessary to reach a firm conclusion regarding inconsistency with either ss.9 or 10 because they regarded the State Act as a special measure. [46, 1041 Brennan, J. , held that s.19 would be inconsistent with ss.9 and 10 were it not part of such a measure. [60] Deane, J . , likewise held that unless s.19 could be saved as part of a special measure, there was a "fundamental and pervading inconsistency" [87] between this section and s.9 of the Commonwealth Act. H e thought it was unnecessary to consider the possibility of inconsistency with s. 10, because inconsistency with s.9 could be established. [87]


unanimously that section 19 of the State Act constituted part of a "special measure"." The Commonwealth Act clearly states that sections 9 and 10 do not hold in the case of "special measures". Sub-section 8(1) says that Part I1 of the Act, which contains these two sections, "does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Con- vention applies.. ." According to this paragraph, "special measures" do not constitute racial discrimination for the purposes of the Con- vention. It states that:

"l(4) Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved". As just stated, the High Court had little difficulty in holding

unanimously that section 19 of the State Act constituted part of a special measure. Gibbs, C . J. , concluded that "[tlhe Act as a whole may be upheld as a special measure within s.8(1) of the Racial Discrimination Act"." Mason, J . , stated that "in my opinion, the State Act should be regardedas amounting to a special measure within the meaning of Article 1.4 of the Convention, as provided by s.8(1) of the Commonwealth Actn.'l In Wilson, J.'s opinion also, "the State Act bears upon its face the clear stamp of special measure such as is contemplated by the Convention"." Brennan, J . , held that "[tlhe Land Rights Act is a special measure and therefore it is not inconsistent with or affected by Part I1 of the Racial

11 Surprisingly, when the case was befbre Millhouse, J . , of the South Australian Supreme Court, the question of whether s 19 of the State Act, or the State Act generally, constituted a special measure, seems hardly to have been discussed. The defence appears to have ignored this question, concentrating on the contention that the definition of "Pitjantjatjara" in the State Act is based on traditional ownership rather than race. See s.4, and (1983), 49 A.L.R. 169, at 177.

12. [I71 13. [36-71 14. [47]

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Discrimination Act." ' j Dawson, J . , similarly concluded that "[tlhere can, I think be no doubt that the Pitjantjatjara Land Rights Act is a special measure the object of which is the advancement of certain racial or ethnic groups". 'Wnly Deane, J.,li questioned whether section 19 constituted part of a "special measure", or at least, whether the High Court was in a position to decide this question. He said that if the matter were solely for his decision, he would be inclined to remit the case to the magistrate so that the factual material could be supplemented.'"itting as a member of a Full Court, however, he felt it encumbent on him "to deal with the matter on the material presently before the Court, inadequate though I consider that material to be"." He said that "[ilf the relevant question were whether it had been shown that the rigid formality of s. 19 of the State Act is necessary to achieve a purpose of the kind referred to in Article l(4) of the Convention, I would be of the view that it had not been shown that it was." 'Nevertheless, he came to the conclusion "on balance" that "the provisions of s. 19 of the State Act should be accepted as constituting part of the 'special measures' of the kind referred to in Article 1(4) of the Convention and as therefore enjoying the protection of s.8(1) of the Com- monwealth Act." "

Given that the Court unanimously held that the State Act constituted a "special measure", the question arises of how it reached this decision.

What did members of the Court understand to be the indicia of a special measure, and why did they conclude that section 19 of the State Act satisfied them? Given the wording of Article l(4) of the Convention, three main issues had to be considered. The first was whether the measure was undertaken only in order to im-

15. [83] 16. [ lo41 17. Murphy, J , did not consider the issue of whether s. 19 constituted a "special measure".

He held s.19 to be valid on far broader grounds that there is a general presumption that legislation is valid, and furthermore that there exists the facts and circumstances necessary to validity. He stated that there was no evidence to rebut these presump- tions. [41]

18. [93] 19. Ibzd 20. [93-41 21. [94]

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prove the position of a disadvantaged group. The second issue concerned the necessity of the measure for attaining this purpose; and the third, the possibility of the measures being maintained after its purpose had been achieved.22

The first requirement is that to constitute a special measure under the Convention and therefore the Commonwealth Act, the measure must be taken for the "sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals.. ." '3 This requirement caused the Court few difficulties. The submission that "the [State] Act discloses at least three purposes - to make a land grant (s. 15), to grant a power to control access to the lands (s. 19) and to restrict alienation of the lands granted (s. 17)" " found little favour. The Court made it clear that it was prepared to interpret the expression "sole purpose" broadly. As, for instance, the Chief Justice pointed out, the view stated in this submission is "too narrow . . . [ t]he Act obviously adopts a number of measures to achieve its purposes, but nevertheless has the sole purpose of securing the advancement of the ethnic groups in question." ''

The second requirement is that the measure in question must be "necessary in order to ensure" the groups or individuals intended to be benefited, "equal enjoyment or exercise of human rights and fundamental f r e e d o m ~ " . ~ T w o elements of this indicium need to be distinguished. First, the groups or individuals in question must experience less than "equal enjoyment or exercise" of such rights and freedoms. They must genuinely be victims of racial discrimination. This element is obviously necessary to exclude measures designed to further enhance the position of an already privileged group, and avoid the paradoxical conclusion that apar- theid provisions could be defended as special measures. According

22. It should be noted that the following classification of indicia was not necessarily followed by every judge. It is suggested by Gibbs, C.J.'s judgment. See 15-7. In contrast, Bren- nan, J . , sets out the following indicia: "A special measure (1) confers a benefit on some or all members of a class (2) the membership of which is based on race, colour, descent, or national or ethnic origin (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freed6ms (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms." [72-31

23. Convention, Art. l(4). Emphasis added.

24. [16-71, per Gibbs, C.J. 25. [I71 26. Convention, Art. l(4).

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to the second element of this indicium, it must be the case that the groups or individuals to be benefited can only be raised to a position of equality with some sort of special measure, if not the special measure specifically proposed. Adequate advancement can- not be achieved merely through attempting to eliminate direct and indirect discriminatiop. Neither would it be sufficient if the proposed measure only assisted in attaining the goal of equality.

It should be pointed out that, in theory, a third element of this indicium can be distinguished. This is the requirement that the measure is not so powerful as to bring the groups or individuals in question not merely up to a level of equality, but beyond it. As Brennan, J., said: "The purpose of a special measure must not be to convert the beneficiaries from a disadvantaged class to a class that enjoys greater privileges than are necessary to ensure their 'equal enjoyment of human rights and fundamental freedom^'."^' However, although one can distinguish in the abstract between a measure's continuing for too long, and its being too powerful in the first place, there seems little point in doing so. This element is too similar to the third indicium (which will be considered shortly) to warrant separate treatment.

Neither of these elements of the second indicium gave rise to any difficulties in the present case. No member of the Court doubted that the Pitjantjatjaras, and Aboriginals generally, had been and continued to be the victims of deep-seated racial prejudice. Fur- thermore, no member questioned the need for special measures to raise the Pitjantjatjaras to a position of equality with white Australians.

The third indicium of a special measure is the requirement that the measure must not "lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved".>' Once a group has been raised to a position of equality in the enjoyment and exercise of humans rights and fundamental freedoms, the special measure must be discontinued. The State Act contained no such discontinuance or "sunset" provision, but the Court was not perturbed by this fact. It recognized that the chances of the

27 . [74] 28. Convention, Art. l(4)


Pitjantjatjaras, and Aboriginals in general, being raised to a position of equality within the foreseeable future was highly remote. For instance, Gibbs, C.J., noted that although "it is a matter of concern that the [State] Act has an obvious air of permanency.. . it is obvious from the nature of things that a considerable time may elapse before it can be hoped that the special measures will be effective."'That "protection may degenerate into discrimination" is, however, "a matter for the future"."'

None of these three indicia, then, caused the Court any serious problems in the present case. It needs to be asked, however, under what circumstances difficulties can be expected to arise. Granted the willingness of the Court to interpret widely the term "sole purpose"." it seems that the first will not be at issue. We need, then, to concentrate on the second and third indicia. Given the two elements of the second indicium, three important questions in all may have to be considered. The first is whether the group in question is genuinely in a disadvantaged position in.comparison with white Australians. The second is whether, assuming the first question has been answered in the affirmative, special measures are in fact necessary to raise the group to a position of equality. As already noted, it is not sufficient that they are merely appropriate. The third question is whether, assuming an affirmative reply to the previous two questions, the measure at issue is not too powerful, threatening to raise the group to a more favourable position than that of equality with white Australians.

These questions are, of course, highly political in nature. Regar- ding the first question, there is a regrettably sizeable body of opi-

29. [17]

30. Ibid. Mason, J . , also noted the "air of permanence" [38] about the Statc Act, but wen1 on to say that "[tlhat the State Act is expressed to operate indefinitely is not a problem. It would be impracticable for the legislation to specify a terminal point in the operation of the regime which it introduces." 1391 Wilson ,J. held that although the absence of any sunset provision in the State Act "may pose a problem at some time in the future", such absence "does not deny its present character as a special measure." 1481 Brennan, J . , too was unconrrrncd by the absencc of a 'sunset' provision. Nothing more can be asked for than that such measures be kept under review, as "it is impossi- ble to determine in advance when the objective of a special measure will be achicv- ed ..." [79] In similar vein, Deane, J., said: "All that the proviso (in Art. l(4) conccrn- ins maintenance of special rights] does is to deprive 'special measures' of the protection of Article l(4) if and when the circumstances referred to in the proviso have come about. Plainly those circumstances have not come about in the present case." [95]

31. Note that Brennan, ,I., saw the "sole purpose" indicium as raising certain substantive problems.

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iiion which subscribes to the view that Aboriginals have not genuinely been disadvantaged in the past. Even if it is conceded that they have been treated differently from white Australians, it is denied that they have been treated unequally. Concerning the second question, another body of opinion must be noted which acknowledges the existence of both past and continuing discrimination against Aboriginals, but claims that it is sufficient merely to render unlawful direct and indirect discrimination. Some members of this school of thought hold that positive discrimination is never justified in principle. Others contend that the particular position of Aboriginals is not sufficiently serious to warrant the introduction of such measures. Turning to the third question, there is a significant body of opinion that land rights measures have gone too far, threatening to elevate those intended to benefit from them into the position of a privileged minority. Needless to say, powerful mining interests have done all they can to encourage such opposition. ""

Although the High Court gave few indications as to how they might handle the above three questions treating these as political issues not properly within their domain, their stance did not amount to a complete capitulation to the political branches of government. At least two judges indicated that they would not accept the opinion of the legislature without hesitation. Gibbs, C .J., appealed to a distinction drawn by Dixon, C.J., between matters of ordinary and constitutional fact. Whereas the Court would not normally en- quire into the former it would investigate "matters of fact upon which the constitutional validity of some general law may depend".j2 As Dixon, C .J., said in Commonwealth Freighters Pty. Ltd. v. Sneddon, "if a criterion of constitutional validity consists in a matter of fact,

3 la . In Western Australia, in part~cular, there has been a tremendous change of heart. The Bourke Labor Government was elected in February 1983 on a platform which includ- ed thr introduction of Aboriginal land rights. It moved quickty to establish the Seamen Inquiry to investigate how this could best be done. Searnen delivered his report in Septcmbcr 1984, and the Aborzgznal Land Rz&s Bill and Minzng Amendment (No 2) Rill were introduced in 1985. However, follow in^ thc defeat of these Rills in the Legislative Council, where opposition parties were in thr majority, and what appeared to be growing public opposition to land rights measures, the Rourke Government's support for such measures rapidly fadcd. Indeed, more recently, it has strongly opposed the Federal Government's plans for unifbrm Aboriginal land rights. See, for example, Michael W. Hunt, "Aboriginal Land Rights in Western Australia", 1985 AMZ'LA Yearbook 448, 448-9, and referrnces contained therein.

32. [16], cf. Been u Sneddun (lShl), 106 C.L .R. 406, 411-2. See also P. Brazil, "The Ascer- tainment of Facts in Australian Constitutional Cases" (1970), 4 Fed. L.Rev 65.

142 WESTERN AUSTRALIAN LA W REVZE W [Vol. 17

the fact must be ascertained by the Court as best it can, when the Court is called upon to pronounce upon validity"." "That state- ment", Gibbs, C.J . , said, "is in my opinion applicable to the present case and we must determine as best we can whether the [State] Act is a special measure within Art. 1(4)".j4 The Chief Justice had, of course, no difficulty in holding that the State Act is such a measure: "We may take judicial notice of facts that are notorious and may rely on the material placed before us... In the light of that material it can hardly be doubted that the three ethnic groups do require special protection within the meaning of Art. 1(4)"."

Brennan, J . , also referred to this Dixonian distinction, but appealed more generally to the reasonableness of the "political assessment inherent in"3b a special measure. In general, "[ilt is the func- tion of a political branch to make the assessment"." However, it may be necessary for the Court to decide "the limits within which a political assessment might reasonably be made".'Vor instance, one matter stressed by Brennan, J . , is that a special measure is not to be imposed upon a racial group against its will. "The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their ad~ancement".~ ' Whether a particular special measure is being forced upon its supposed beneficiaries against its wishes is, then, a question the Court may have to consider.

3. Formal and Substantive Justice, Special Measures and Benign Discrimination

The previous section set out the basic facts and major legal issues in Gerhardy's case, concentrating on the various indicia of a special measure. Three questions of a political nature in particular arose concerning such measures: whether the group to be benefited has genuinely been discriminated against; whether the measure is

33. (1959), 102 C.L.R. 280, 292. Cited by Gibbs, C.J., at [I61 34. [16] 35. Ibtd 36. [78] 37. [77] 38. [78] 39. 1741

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necessary in order to raise the group to a position of equality with the rest of the community; and whether the measure has not been kept in place once its purpose has been served, thus threatening to turn its beneficiaries into a privileged minority.

In this section we turn to what is perhaps the single most strik- ing feature of Gerhardy's case, namely Brennan, J.'s attack on the relative importance of formal equality, or strict equality before the law, as opposed to substantive or real equality. This attack constitutes not just a further indication of the Court's moving away from Dixonian strict legalism, but perhaps the most forthright assault on this doctrine to date.

According to Brennan, J . , "[flormal 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' ". He adds that "[fjormal equality must yield on occasions to achieve 'effective, genuine equality' ","' and goes on to claim that "[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".41

Many would regard Brennan, J., as merely stating the obvious. That it is surprising to have a High Court judge making such claims perhaps indicates how steeply the Court, if not the Australian legal profession generally, is imbued in formalism not merely as a philosophy, but worse still as an ideology. It is beyond the scope of this paper to enter into the general jurisprudential issue of formal versus substantive consideration^.'^ We must focus on Bren- nan, J.'s use of the contrast. He attempts to approach the issue of positive discrimination not as a narrow exercise in statutory interpretation, but on a broader footing. Brennan, J . , appeals to the importance of substantive equality to meet the charge that special measures are themselves discriminatory. He certainly recognizes

42. There is, of course, a huge literature on this subject. See, for instance, R.M. Dworkin, "The Forum of Principle", (1981) 56 N.Y.U.L.Kev. 469, David Lyons, "On Formal Justice" 58 Cornell L.Rev. 833.


legal equality as a human right: "[a] distinction etc, based on race that is required by law nullifies the enjoyment of the human right to equality before the law." 43 Such equality is, as Brennan, J . , quotes the international law scholar Lauterpacht saying, "in a substantial sense the most fundamental of the rights of man ..." "

But, Brennan, J . , argues, although special measures are discriminatory in the formal sense that they contravene this equality, they are nevertheless justified if they advance substantive equality." As we have seen, he claims that establishing formal equality is insufficient to eliminate racial discrimination. The substantive end of the elimination of racial discrimination must be given priority over the unimpaired maintenance of formal equality, and hence special measures can be justified even where they are contrary to such equality.

What, then, is the significance of Brennan, J.'s appeal to substantive equality? The notion of substantive equality is not relied upon to help determine the indicia of a special measure. These indicia are, as we have seen, laid down by the wording of the relevant provision of the Convention. This notion does assist, however, in defending positive discrimination measures if no explicit provision is made for them. Where no such provision exists it could be argued that anti-discrimination measures do not apply in the case of "benign discrirnination",'~hat is, discrimination designed to benefit a disadvantaged group. The strategy of defending positive discrimination by appealing to the concept of benign discrimination is taken up by Brennan, J . , and also mentioned by Wilson, J.47 Such a strategy, it could be argued, allows for a jurisprudentially more satisfying and illuminating defence of positive discrimination measures, a defence which does not depend on the vagaries of each individual anti discrimination statute.

Through the concept of benign discrimination, direct appeal can be made to the notion of substantive equality. Any form of

43. [65] 44. Ibld. 45 The issue of the extent to which they must advance substantive justice, of the relative

weight of formal as against substantive equality, I discuss in my Ph.D. thesis, supra n. 3 . 46 See D. Partlett, "Benign Racial Discrimination: Equality and Aboriginals" (1979), 10

Fed. L.Rev. 238; W.A. McKean, Equality and Dzscrtmznation Under Internattonal L a w (Oxford, 1983).

47. [48-91

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discrimination can in principle be justified providing that it ad- vances substantive equality, even if at some expense to formal equality. This approach gives far greater freedom to judges to develop a coherent jurisprudence of positive discrimination. It can- not be denied, however, that there are dangers associated with such freedom, especially given the general conservative composition of most Australian benches. The fact that positive discrimination pro- motes substantive equality at some price to formal equality gives rise to the question of the terms of the trade-off between the two. Conservative judges will tend to favour formal equality at the expense of substantive equality, if they do not ignore the latter altogether.

It is disappointing to note, however, that Brennan, J . , is forced to concede that the explicit provision for special measures in the Racial Discrimination Act excludes any possibility of appealing to the concept of benign di~crirnination.~"his does not mean, however, that discussion of the notions of substantive equality and benign discrimination is without point. They could well be treated as ideas whose time has yet to come. For instance, the notion of benign discrimination could prove invaluable if any challenge similar to Brown's were to be made against an anti-discrimination Act which contained no provision similar to the special measures provisions in the Racial Discrimination Act.

4. Particular and Universal Approaches to Human Rights and Anti-Discrimination Legislation

The previous section examined what this author understood to be the most interesting feature of Gerhardy's case, namely Brennan, J.'s trenchant defence of substantive equality. It was argued that although this defence was not materially important in this case the Racial Discrimination Act made explicit provision for special measures, the notion of substantive equality may be highly relevant where anti-discrimination legislation lacking such provision is at issue, and therefore a benign discrimination approach is required in order to accommodate any need for positive discrimination measures.

Apart from Brennan, J.'s discussion of the relative importance of substantive and formal equality, however, it must be conceded

48 [69], cf. [49], prr Wilson, ,)

146 WESTERN AUSTRALIAN LA W REVIEW [Vol. 17

that the case offers little of genuine jurisprudential interest, for it is primarily concerned with questions of statutory interpretation raised by the legislative concept of a special measure. The case can scarcely be regarded as the Australian equivalent to Bakkek case.'g In this final, and more speculative section, we venture further afield. In order to see the previous discussion in a broader perspective, a contrast is offered between two broad types of legislation in the area of human rights and anti-discrimination law, and what shall be termed the "universal" approach as opposed to the "particular" approach is advocated.

The particular approach focuses on discrimination on specific grounds, such as race, sex, religion, physical impairment, political belief, choice of life-styles. On this approach it is not sufficient that human rights have been violated or infringed. The further condition must be satisfied that the victim falls within a group acknowledged as requiring protection. His rights must have been violated as a result of, for example, racial, sexual, or religious discrimination. But this approach seems to be initially suspect. The fact that human rights have been violated should, it seems, be sufficient grounds for providing redress. Such redress should be based upon the seriousness of those violations alone, and not on the satisfaction of some further criterion, for instance, membership of a recognised class of victims of discrimination.

Quite apart from it being morally irrelevant to require any such further condition, there are a number of weaknesses inherent in the particular approach. Probably the most important is that there is simply no way of drawing up a list of discrete categories of discrimination which can exhaust the field of human rights violations. There is also the danger of the law being one step behind existing social practices, it seems that the particular approach may not be dynamic enough to cope with the possibility of rapidly changing patterns of discrimination.

There is, however, not only the risk that new forms of discrimination will be ignored. Existing forms of discrimination will receive recognition and their victims protection from such discrimination only if they either are socially in favour, or have considerable political muscle. To take the clearest example, one does not need

49. Regents of the University of Caltjornia u Bakke (1978), 438 U.S. 265, 57 L.Ed. 2d 750.

19871 POSIT1 VE DZSCR ZMINA TZON 147

to be a Marxist to recognize that the most deep-seated and virulent form of discrimination is class discrimination. This is the case even in as comparatively an egalitarian society as Australia's. However, in the current spate of anti-discrimination legislation, this form of discrimination has been totally overlooked. Of course, the Marx- ist puts this neglect down to the class-divided nature of capitalist society: in such a society, as in any society based on the domina- tion of one class by another, class discrimination is an inescapable fact of life. But a more obvious explanation which does not presup- pose the Marxist theoretical framework is at hand. According to this explanation, there is no reason in principle why class discrimination could not be tackled. The reason this does not occur is, quite simply, that the problem is too big to handle. T o take adequate steps to eliminate this form of discrimination would require too great a disruption to ordinary life. The easier course of action is to concentrate on less extensive and more manageable forms of discrimination.

For all these various reasons, therefore, it is argued that the universal approach is to be preferred to the particular. The former acknowledges certain basic rights, and aims to protect these rights as such. It is qua human person that violations count, not qua member of a certain race or religion, etc. Granted the broad distinction between these two approaches, the particular is exemplified by much anti-discrimination legislation, the universal by much human rights legislation.

The case for the universal approach could certainly be developed further. Here we shall restrict ourselves to briefly considering three possible objections. According to the first, the particular and universal approaches have different territories in which to operate. The particular approach is in order where, although it is the case that a person has been discriminated against, no fundamental human right has been infringed. For instance, he or she has been denied employment in a specific area, where no underlying human right to work in that area is acknowledged. The answer to this objection lies in recognizing that the right to treatment as an equal is itself a basic right."' It is the denial of this right, rather than the denial of, for instance, any more specific right to work, that is significant.

50. Sec R.M. Dworkin, Tukin.? Rtghts Seriously (1978), Chapter 12.


The second objection starts from the premise that specific forms of discrimination must be spelt out to prevent anti-discrimination measures from being so vague as to be worthless. Of course, it is a truism that every decision involves discrimination. The term discrimination is generally used as shorthand for unjustified or in- defensible discrimination. According to this objection, it is necessary to specify what these forms of discrimination are; for instance, discrimination on grounds of race, sex, or religion. In reply to this objection, it must be recognized that all these forms have a general principle underlying them, namely that they involve taking irrelevant considerations into account. Unjustified forms of discrimination can be isolated through the notion of relevance, or, where this fails, through direct appeal to human rights. Such an appeal can replace resorting to discrete categories of discrimination.

These two objections have been considered very briefly. Given our present concerns, we must concentrate on the third objection. This concedes that the universal approach is quite adequate when dealing with either direct or indirect discrimination, but contends that it is quite inappropriate when it comes to positive discrimination. As far as this form of discrimination is concerned, it is necessary to clearly define the group to be benefited. In answer to this objection, it needs to be pointed out that targeting a group requiring special protection is not just perfectly possible on the universal approach, but far more easily achieved than on the particular approach. The universal approach, in fact, provides the most natural way of selecting those individuals who should receive the benefit of positive discrimination measures. The individuals most deserving of such benefit are, quite simply, those suffering from the greatest human rights violations. T o use Rawls's phrase, the relevant group is simply the worst-off group in society, where being worst-off is understood in terms of human rights violations." The universal approach also has the advantage of being able to adapt to changing circumstances. Allowance can be made not just for variations across times, but across countries. This approach is

51. See A Theory ofJuslice (Oxford, 1972), especially Ch . 2 . It is, of course, a question of degree to what extent a person's human rights must be violated before he becomes a member of the worst-off group. Note that Rawls does not define this group in terms of human rights violations, but rather in terms of possession (or rather, lack of possession) of what he terms "basic goods". His difference principle itself could be regarded as a positive discrimination measure in favour of the worst-off group in society.

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flexible enough to accommodate the fact that whereas in one country the worst-off group may be constituted by individuals of a certain race (for instance, blacks in the United States), in another country this group consists of mernbers of a religious caste (for example, untouchables in India).

Finally, to summarize this discussion in the context of Gerhardy's case, two main points are in order. First, on the universal approach, what justifies special measures such as land rights is not the fact that Pitjantjatjaras are Aboriginals, but the fact that they are members of the worst-off group. Undoubtedly, they have this status because of discrimination against then1 as Aboriginals. But their being Aboriginal enters into the justification of land rights legislation in a different way than it does on the particular approach. This fact enters not directly, in virtue of an explicit legislative provision, but indirectly, as a result of such discrimination against Aboriginals. Irrespective of the existence of the Pitjantjatjura Land Rights Act, Pitjantjatjaras, and Aboriginals generally, are members of the worst-off group, and thus are entitled to the benefit of positive discrimination measures. These measures may, but need not necessarily, take the form of a land rights scheme. Secondly, with reference to Brennan, J.'s endorsement of the importance of substantive reasoning, such reasoning should not be confined to what may be arbitrarily restricted categories of persons requiring positive discrimination measures, as occurs where the particular approach is adopted. The universal approach in contrast permits direct appeal to considerations of substantive equality. This approach allows for the fact that legal formalism is at best a grossly inadequate legal ideal, and at worst, no ideal at all.

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POSITIVE DISCRIMINATION AND THE HIGH COURT - AustLII