AURUKUN and Kowanyama are remote places in Queensland. So remote that no-one can even make a go of running pubs there.
Usually, someone can make a go of a pub in the most desolate settlements in outback Australia.
Aurukun and Kowanyama are both on the western side of Cape York, each has about 1200 people. Aurukun is all Indigenous; Kowanyama about 95 per cent Indigenous. Each is a local government area. And because no-one wants to run a commercial pub, the local governments ran pubs (or at least canteens) and put their profits into the community.
At least they did until the Queensland Government put a stop to it with legislation cancelling the liquor licences.
The licencees went to court. They asserted the Queensland legislation was racially discriminatory, offended the Federal Racial Discrimination Act and was therefore invalid.
The first judge rejected that, so they appealed. The Queensland Court of Appeal brought down its decision last week.
The case highlights the huge difficulty of determining what is racial discrimination. Are governments allowed to be paternalist or to be cruel to be kind? Are they required to give self-determination or at least consult before acting? Are they required to look at the practical effect of what they do not merely the hypothetical legal operation of what they do?
Can governments act in a way that lets them say, “We are treating everyone equally here; the law applies to all,” when all along the practical effect of the law is that one race is treated differently from another, so that, artfully, the government is being discriminatory.
Can governments say, “Look, we are going to have to have special laws for Indigenous people to protect them from themselves”?
The changes to the Queensland Liquor Act raised all these questions.
The Act merely prohibited local government bodies from holding liquor licences across the whole of Queensland – treating everyone exactly the same. It is still open to any private person or company to apply for a licence anywhere in Queensland.
Unfortunately, Aurukun and Kowanyama are the only local government entities in Queensland with liquor licences. And all of their councillors and all, or virtually all, of the customers in the liquor canteens are Indigenous people.
So the practical effect is a law which applies only to Indigenous people.
The President of the Court of Appeal, Justice Margaret McMurdo, so found. She said it would be a breach of the Racial Discrimination Act but for the fact that that Act allowed for provisions for the advancement of a race – positive discrimination. She found that responsible drinkers would find the licence revocations an “offensive, racially discriminatory inconvenience”, but the aim was to protect the vulnerable “from violence and bodily harm inflicted by others of their members when heavily intoxicated”.
She rejected the contention that without licensed canteens sly grog would result in a continuation of the violence. She accepted the positive discrimination because it had been reasonable and done after consultation, which she thought legally necessary.
The other two judges, Justice Patrick Keane and Justice Anthe Philippides, however, found there had been no discrimination in the first place. It shows how difficult the questions are.
Justice Keane held that permitting local governments to hold liquor licences in the first place was an act of positive discrimination to help remote places where no commercial outfit would open a pub. If you could give an advantage you could take it away without it being discriminatorily illegal.
In any event, the two judges held, going to the pub was not a right protected by Section 9 of the Racial Discrimination Act which makes it illegal to discriminate so as to impair “the 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 in public life”. Going to the pub was not, they said, a human right or fundamental freedom.
Further, the revocation of the licences did not offend the provision on equality before the law (Section 10).
That provision nullifies laws that result in a lesser enjoyment of rights enjoyed by people of other races, colour or national or ethnic origin.
Justice Keane said that the Queensland law applied equally across Queensland. All local governments were prohibited from selling liquor. Private concerns could apply for liquor licences across Queensland. No-one, black or white, was prevented from seeking a licence or from buying liquor from a licensed premises anywhere in Queensland.
The practical effect that there would be nowhere to buy liquor in the communities was a result of economic and geographic facts, not an effect of the law.
In any event, the majority judges held, the licence revocations were provisions for advancement because they helped remove alcohol-induced violence in Aboriginal communities.
Further, they said, consultation was not necessary, despite an earlier pronouncement by former Chief Justice Gerard Brennan to the contrary. It was a matter of political judgment. Consultation was often unsatisfactory because of often irreconcilable competing claims. It was not for a court to decide whether measures would actually achieve their aims.
We have a mix of approaches here, some incompatible and some in conflict with earlier judicial pronouncements.
Meanwhile, the lessees in Queensland lose their income and women and children feel safer in a dry community, but who knows when the sly grog merchants might pounce.
One thing the case shows, however, is that, once again, Australian courts, when dealing with human rights, do not create bizarre new rights with sweeping consequences. They tend to balance competing rights with a great deal of thought and diligence.
In this case, no judge declared a new human right to drink in pub, or that racial discrimination law prevented a state from regulating the flow of liquor. And the judges shied away from second-guessing policy decisions about legislation.
There are no simple answers here.
CRISPIN HULL
This article first appeared in The Canberra Times on 6 March 2010.