R v Maloney

[2012] QCA 105

Queensland Court of Appeal

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Interrogate

Catchwords

1. Human Rights
2. › Racial Discrimination
3. › Equality before the law
4. › Whether liquor restriction provisions applying to Indigenous community engaged s 10 Racial Discrimination Act 1975 (Cth)
5. › Whether provisions contravened rights in Article 5(a), 5(d)(v) and 5(f) of the Convention on the Elimination of All Forms of Racial Discrimination
6. › Racial Discrimination Act 1975 (Cth), ss 8, 10
1. Human Rights
2. › Racial Discrimination
3. › Special measures
4. › Whether alcohol restriction provisions constituted special measures under s 8 Racial Discrimination Act 1975 (Cth)
5. › Whether consultation with affected Indigenous community was adequate
6. › Whether consent of community was necessary
7. › Whether absence of temporal limit prevented provisions being special measures
8. › Racial Discrimination Act 1975 (Cth), s 8
9. › International Convention on the Elimination of All Forms of Racial Discrimination, Art 1(4), Art 2(2)
1. Constitutional Law (Cth)
2. › Inconsistency of laws
3. › Whether State liquor legislation inconsistent with Commonwealth Racial Discrimination Act
4. › Constitution, s 109
5. › Racial Discrimination Act 1975 (Cth), ss 8, 10
1. Statutes
2. › Construction
3. › International conventions and treaties
4. › Whether rights under Convention on the Elimination of All Forms of Racial Discrimination should be construed broadly
5. › Whether right to own property under Article 5(d)(v) is absolute
6. › Racial Discrimination Act 1975 (Cth), s 10

Quick Take

Alcohol restriction provisions applying to Indigenous communities in Queensland constitute special measures under s 8 of the Racial Discrimination Act 1975 (Cth) where enacted for the legitimate purpose of minimising alcohol-related harm, notwithstanding the absence of community consent and the lack of a specified termination date. Consultation with the affected community is highly desirable but not a mandatory legal prerequisite for the validity of a special measure. The right to possess liquor of any type and quantity is not a fundamental human right protected by s 10 of the RDA. However, the ongoing effectiveness of special measures is subject to review, and measures that prove ineffective may lose their character as special measures.