Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
Ordinarily, land is only acquired for a public purpose on payment of just terms, whatever may be the precise statutory language employed (659). If the defendant sought to interfere with the Meriam people's enjoyment of the Islands which their traditional title gives them and failed to do so on just terms, a question arises whether that action could be in contravention of ss.9 or 10 of the Racial Discrimination Act .
Section 9 relevantly provides:
" (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 right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
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(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in. Article 5 of the Convention."
Section 10 reads:
" (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 subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.
(3) Where a law contains a provision that:
(a) authorises property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;
not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person."
In Mabo v. Queensland Brennan, Toohey and Gaudron JJ. said of s.9 (660):
" Section 9 proscribes the doing of an act of the character therein mentioned. It does not prohibit the enactment of a law creating, extinguishing or otherwise affecting legal rights in or over land: Gerhardy v. Brown (661). It is arguable that the operation of a law which brings into existence or extinguishes rights in or over land is not affected by s.9 merely because a consequence of the change in rights is that one person is free to do an act which would otherwise be unlawful or another person is no longer able to resist an act being done."
But, as the judgment continued, s.10 relates to the enjoyment of a right, not to the doing of an act and the right referred to in s.10(1) need not be a legal right. Rights referred to in Art.5 of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention referred to in s.10(2), include:
" (d) (v) The right to own property alone as well as in association with others;
(vi) The right to inherit."
The right to be immune from arbitrary deprivation of property is a human right, if not necessarily a legal right, and falls within s.10(1) of the Act, even if it is not encompassed within the right to own and inherit property to which Art.5 refers.
The question here is whether extinguishment of the traditional title of the Meriam people without the compensation provided for in the Acquisition of Land Act 1967 (Q.) means that, by reason of a law of Queensland, 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 those persons. If the traditional title of the Meriam people may be extinguished without compensation, they do not enjoy a right that is enjoyed by other titleholders in Queensland or, at the least, they enjoy a right to a more limited extent. A law which purported to achieve such a result would offend s.10(1) of the Racial Discrimination Act and in turn be inconsistent with the Act within the meaning of s.109 of the Constitution. The Racial Discrimination Act would therefore prevail and the proposed law would be invalid to the extent of the inconsistency.