Maloney v. The Queen

The appellant was an Indigenous resident of Palm Island in Queensland who was charged with possession of more than a prescribed quantity of liquor in a restricted area on Palm Island contrary to section 168B of the Liquor Act 1992 (Q) (“Liquor Act”). Palm Island was a “community government area” within the meaning of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984, and the nature and quantity of liquor which people could have in their possession in the area was restricted. The community was composed almost entirely of Indigenous people. 3

The police had intercepted the appellant’s motor vehicle and found a black backpack in the vehicle containing one bottle of  bourbon and one bottle of rum that was three-quarters full. The appellant admitted to being the owner of the liquor. A fine of $150 was imposed. The appellant appealed against the conviction arguing that s 168B of the Liquor Act, regulations made under the Act, and the restrictions which they imposed relating to possession of alcohol on Palm Island were invalid by reason of inconsistency with section 10 of the Racial Discrimination Act 1975 (Cth) (“RDA”). Section 10 provided that if a State law has the effect that persons of a particular race do not enjoy a right enjoyed by persons of another race or enjoy it to a more limited extent, the person adversely affected shall enjoy that right to the same extent as the persons of that other race. The appellant argued that the Liquor Act deprived her of rights set out in Articles 5(a) (equal treatment before the tribunals and all other organs administering justice), 5(d)(v) (right to own property) and 5(f) (right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theaters and parks) of the International Convention on the Elimination of All Forms of Racial Discrimination (“Convention”).

The Court of Appeal held that section 10 did not apply and that the legislation was a “special measure” taken for the sole purpose of securing the adequate advancement of the Indigenous people of Palm Island.

The High Court dismissed the appeal, holding that the Liquor Act did not violate section 10 of the RDA of violate any of the appellant's rights under the Convention. The Court reasoned that The Liquor Act was a "special measure" that was enacted to deal with a serious social problem affecting Indigenous communities. The Parliament and the Executive Government of Queensland had to make judgment calls about to best address that problem, and the Liquor Act could thus be properly characterized as a special measure for the purposes of section 8(1) of the RDA. Section 8(1) provided that provision of the RDA did not apply to "special measures" to which Article 1(4) of the Convention applied. Article 1(4) of the Convention provides that "special measures" may be taken for the 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 that such special measures shall not be deemed racial discrimination, provided, that such measures do 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.

"The Liquor Act, the Liquor Regulation and Sched 1R to the Liquor Regulation were respectively enacted and proclaimed to deal with a serious social problem affecting Indigenous communities in North Queensland, including the Palm Island community. There were difficult judgments to be made about what was necessary to address that problem. Within the boundaries set by the provisions of the RDA, those judgments were a matter, in this case, for the Parliament and the Executive Government of Queensland. The impugned provisions were properly characterised as a special measure for the purposes of s 8(1) of the RDA." Para. 47.