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IN THE FEDERAL COURT OF AUSTRALIA

BRISBANE REGISTRY

No. QUD 76/2006

ACCESS FOR ALL ALLIANCE (HERVEY BAY) INC

Applicant

AND

HERVEY BAY CITY COUNCIL

Respondent

SUBMISSIONS OF THE ACTING DISABILITY DISCRIMINATION COMMISSIONER APPEARING AS AMICUS CURIAE

SUMMARY

  1. The Acting Disability Discrimination Commissioner (the 鈥楥ommissioner鈥) seeks leave to appear as amicus curiae in these proceedings, pursuant to s 46PV(2) of Human Rights and Equal Opportunity Commission Act 1986 (Cth) (鈥榯he HREOC Act鈥). That application was made by notice of motion dated 11 August 2006.
  2. If granted leave, the Commissioner would seek to make the submissions set out below. In summary, the Commissioner says:
    1. the HREOC Act and the Disability Discrimination Act 1992 (Cth) (鈥楧DA鈥) create private rights in relation to the Disability Standards for Accessible Public Transport 2002 (Cth) (鈥楧SAPT鈥);
    2. as such, the traditional rules of standing applicable to the equitable enforcement of public rights and duties do not determine whether the applicant (鈥楢AA鈥) can properly bring these proceedings;
    1. what the respondent (the 鈥楥ouncil鈥) identifies as a question of 鈥榮tanding鈥 is better characterized as a question of whether AAA has met any conditions imposed by the legislation for the commencement of these proceedings;
    1. one such condition, which arises for consideration by this Court, is whether the applicant is a 鈥榩erson aggrieved鈥;
    2. when properly construed (having regard in particular to s 12 of the DDA), the DDA and DSAPT are valid; and
    3. in the circumstances of this case, s 12 of the DDA gives effect to the provisions of the DDA and DSAPT invoked by AAA.

A 鈥楽TANDING鈥 ISSUE

The authorities dealing with standing for the equitable enforcement of purely public rights do not apply in this matter

  1. The Council relies upon a number of authorities which reflect the traditional approach to 鈥榮tanding鈥 in matters involving the enforcement of statutes which created purely 鈥榩ublic鈥 rights or duties.[1] Under that approach, the Attorney-General was the only appropriate party to bring actions concerning such rights or duties, either in her or his own name or upon the relation of another. Even then, as the Council correctly observes, the law has long recognised that an exception to that general principle arose where the party seeking equitable relief could demonstrate a sufficiently affected interest in the subject matter of the dispute.
  2. The concept of 鈥榮tanding鈥 came to be used to describe the requisite interest to be demonstrated by a plaintiff in the absence of the Attorney鈥檚 fiat. [2] The current test for standing in such cases is whether the plaintiff has some 鈥榮pecial interest鈥 in the subject matter of the litigation.[3] The criterion of 鈥榮pecial interest鈥 is to be construed as an enabling, not a restrictive, procedural stipulation.[4]
  3. However, very different considerations apply where the statute does confer personal or private rights. For the reasons set out below, the DDA and the HREOC Act confer private rights to enforce disability standards, including the DSAPT. Accordingly, the legal capacity of a particular person to bring proceedings must be answered by reference to the terms, subject, scope and purpose of the statute, rather than the application of concepts derived from the general law of standing.[5]

The DDA and HREOC Act create private rights in relation to the disability standards

  1. In considering whether the DDA and HREOC Act create private rights in relation to disability standards, the starting point is s 32 of the DDA, which provides:

    It is unlawful for a person to contravene a standard.

  2. The Council contends that, in seeking relief in relation to a contravention of that section, AAA鈥檚 application involves a 鈥榖are attempt to assert a public right or duty鈥. The Commissioner submits that this approach is erroneous. The Council has failed to read s 32 in its statutory context and has misunderstood Parliament鈥檚 purpose in enacting that provision. In particular, the Council appears to have overlooked the fact that the right to bring a complaint of unlawful discrimination derives from the HREOC Act, not the DDA.[6]
  3. Parliament intended that a breach of s 32 of the DDA would create a private right to bring a complaint of unlawful discrimination. It gave effect to that intention by defining 鈥榰nlawful discrimination鈥 in s 3 of the HREOC Act as 鈥榓ny acts, omissions or practices that are unlawful under ... Part 2 of the DDA.鈥 This necessarily includes a breach of s 32.
  4. That definition then feeds into section 46P, which creates a right to lodge a complaint with the Commission alleging 鈥榰nlawful discrimination鈥.
  5. To the extent that there is any ambiguity in those provisions, their meaning can be confirmed by having regard to extrinsic materials and the drafting history of the HREOC Act and the DDA. The Commissioner has set out the relevant materials in Appendix A to these submissions.
  6. In light of the above, it is unnecessary for a person in the position of AAA to seek equitable remedies to restrain breaches of public rights. Rather, the HREOC Act provides a number of statutory remedies for a contravention of the standards (and other acts of unlawful discrimination) in s 46PO(4), which relevantly provides:

    If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

    (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

    (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant...

    (f) an order declaring that it would be inappropriate for any further action to be taken in the matter (emphasis added).

  7. It follows that a person may bring a complaint of unlawful discrimination in relation to a breach of a disability standard. What the Council identifies as a question of 鈥榮tanding鈥 is better characterized as a question of whether AAA has met any conditions imposed by the legislation for the commencement of these proceedings.

What conditions must be met by AAA to bring these proceedings?

  1. As AAA has noted,[7] certain conditions are imposed upon the lodging of a complaint of unlawful discrimination with the Commission under s 46P. In particular, the following conditions must be met:
    • (a) the complaint must be in writing;
    • (b) the complaint must allege unlawful discrimination;[8] and
    • (c) the complaint must be lodged by or on behalf of 鈥榓 person aggrieved by鈥 the .[9]
  2. The Commissioner agrees with AAA that it is possible for an application to be made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in connection with a decision made by the Commission to accept a complaint under those provisions.[10]
  3. However, AAA appears to go further and suggest that the only avenue open to a respondent to challenge whether a complainant has satisfied the requirements of s 46P is by bringing an application under the ADJR Act in relation to the Commission鈥檚 decision to accept the complaint.
  4. The Commissioner disagrees with this suggested construction of the HREOC Act, for the following reasons:
    • (a) this Court must be satisfied that there is a 鈥榗omplaint鈥 which was lodged under s 46P of the HREOC Act before the Court鈥檚 jurisdiction is enlivened; and
    • (b) the approach contended for by AAA is inconsistent with Parliament鈥檚 intention in enacting Part IIB of the HREOC Act (which deals with the President鈥檚 inquiry and conciliation powers).

    There must be a 鈥榗omplaint鈥 before the Court鈥檚 jurisdiction is enlivened

  5. Section 46PO(1) of the HREOC Act provides:

    If:

    (a) a has been by the under section 46PE or 46PH; and

    (b)  the has given a notice to any person under subsection 46PH(2) in relation to the termination;

    any person who was an in relation to the may make an application to the or the Federal Magistrates Court, alleging by one or more of the to the erminated .

  1. Subparagraphs (a) and (b) are conditions which must be met before the Court鈥檚 jurisdiction is enlivened. As such, the Court must be satisfied that there has been a 鈥榗omplaint鈥, being a complaint which has been terminated by the President.[11]
  2. 鈥楥omplaint鈥 is defined, in s 3 of the HREOC Act, to mean a complaint 鈥榣odged鈥 under Division 1 of Part IIB. As noted above, s 46P is the provision in Division 1 of Part IIB which deals with the lodgement of complaints. As such, the Court must satisfy itself that the complaint was in fact lodged in accordance with the requirements of s 46P. That is, the Court must satisfy itself that the complaint met the three conditions for lodgement set out in s 46P, including that the complaint was lodged by or on behalf of 鈥榓 person aggrieved by鈥 the .
  3. The Commission鈥檚 determination on the question of whether there is a person aggrieved (in accepting a complaint under s 46P) is not final and binding on this Court. It is well established that:

    Where, in a proceeding otherwise properly instituted in a Tribunal, there remains a condition upon whose fulfilment or existence the jurisdiction of the Tribunal exists [here, the existence of a person aggrieved] the fulfilment or existence of that condition remains an outstanding question until it has been decided by a court competent to decide it.[12]

When the Commission accepts a complaint under s 46P, it is merely forming 鈥榓n opinion鈥 as to the limits of its own authority, including the question of whether there is a person aggrieved. While that opinion 鈥榤oulds鈥 the Commission鈥檚 conduct in handling a particular complaint, it has no binding effect on the rights of the parties[13] and the issue arises afresh in this Court.

Parliament鈥檚 intention in enacting Part IIB of the HREOC Act

  1. The suggestion by AAA that the question of whether there was a 鈥榩erson aggrieved鈥 is a question which can only be addressed by some form of judicial review would also encourage unnecessary litigation and cause delays in the complaint handling process. This is inconsistent with Parliament鈥檚 intention to create a process for handling discrimination complaints which would be efficient and unburdened by technicality.[14]
  2. On AAA鈥檚 suggested construction of ss 46P and PO, a respondent will have a limited opportunity to agitate any questions regarding the existence of a person aggrieved.
  3. If a respondent relies upon the ADJR Act, it will need to commence proceedings within 28 days.[15] It may at that time have very little information about the nature or identity of the applicant and the circumstances of the claim. Indeed, as in the current case, it may be unclear from the correspondence between the Commission and the respondent that the ultimate application under s 46PO will be brought by a particular applicant.[16] This may well lead to the filing of 鈥榩rotective鈥 ADJR applications in any case where a respondent believes there may be an issue as to whether the requirements of s 46P have been satisfied.
  4. While the Commissioner concedes that it is possible for a respondent to seek judicial review of a decision to accept a complaint under s 46P, the Commissioner鈥檚 preferred construction of the relevant provisions will mean that respondents are not forced to take that course at an early stage. This will allow respondents, if they choose, to seek to avoid litigation altogether by participating in the conciliation process. That construction should be preferred as one which promotes efficiency and avoids technicality and thus accords with Parliament鈥檚 intention.
  5. The Commissioner submits that it would be open to a respondent to argue that the applicant has not met the relevant statutory conditions for bringing a complaint under s 46PO on the basis that the applicant is not a 鈥榩erson aggrieved鈥.

    鈥楶erson aggrieved鈥

  6. There is, as AAA observes, very little authority on what 鈥榩erson aggrieved鈥 means in the context of s 46PO. The Commissioner agrees with AAA that this Court may be assisted by authorities dealing with the repealed complaint handling provisions of federal discrimination legislation.[17]
  7. The Commissioner submits that the following conclusions can be drawn from Australian authorities considering the meaning of the phrase 鈥榩erson aggrieved鈥:
    • (a) whether a person is a 鈥榩erson aggrieved鈥 is a mixed question of law and fact;[18]
    • (b) a person does not qualify as a 鈥榩erson aggrieved鈥 merely because he or she feels aggrieved by the act. He or she must, in the opinion of the Court, in fact be aggrieved by that act;[19]
    • (c) a 鈥榩erson aggrieved鈥 is not limited to natural persons but also includes:
      • corporations;[20] and
      • unincorporated association, if one or more of its members satisfies the test of being a 鈥榩erson aggrieved鈥;[21]
    • (d) a representative organisation may be granted standing as a 鈥榩erson aggrieved鈥 where:
      • a matter adversely affects the special interests of its members;[22]
      • a matter impedes the organisation from carrying out its objects;[23] or
      • due to the organisation鈥檚 proximity to the alleged discriminatory conduct, the conduct impacts on its members to a greater extent than general members of the public;[24] and
    • (e) an individual representative of a particular section of society can be a 鈥榩erson aggrieved鈥 on account of that person鈥檚 representative status and role, even where the relevant conduct does not affect him or her personally.[25]
  8. Some assistance may also be derived from decisions regarding s 5 of the ADJR Act which also requires an applicant to be a 鈥榩erson aggrieved鈥 in order to bring proceedings.[26] These cases have emphasised the need to interpret the expression 鈥榩erson aggrieved鈥 liberally and beneficially.[27]
  9. The Commissioner does not seek to make submissions as to whether AAA is a 鈥榩erson aggrieved鈥 in these proceedings. As noted above, the question of whether an applicant is a 鈥榩erson aggrieved鈥 is a mixed question of fact and law. Accordingly, in the context of an application for summary dismissal made under Order 20(2), rule 2, it may be useful to have regard to the cautionary words of Gibbs CJ in Davis v Commonwealth,[28] where his Honour said:

    Having regard to the principles which govern applications of this kind it is not necessary for me to express any concluded view whether the plaintiffs have an interest sufficient to give them standing; it is enough to say that it seems to me that the plaintiffs鈥 argument cannot be dismissed as frivolous or hopeless 鈥 opinions may differ upon its acceptability and it is not plain and beyond debate that it must fail. It would therefore be wrong to strike out paras 6 and 41 of the statement of claim.[29]

B CONSTITUTIONAL VALIDITY AND RELATED QUESTIONS OF CONSTRUCTION

  1. The Council鈥檚 notice of a constitutional matter contemplates a challenge to the validity of ss 31(1)(d)(ii), (v) and (vii) of the DDA, which empowered the Minister to make the DSAPT. However, although not entirely clear, the Council appears to have confined itself in its submissions to the validity of the DSAPT. Of course, any question of validity can only relate to those parts of the DSAPT put in issue by AAA.[30]
  2. As a piece of delegated legislation made under a Commonwealth statute, the DSAPT is subject to the same constitutional limitations which apply to the DDA.[31] However, any question of validity requires attention to the broader context of the DDA, particularly s 12.

Purpose of Section 12 of the DDA

  1. Section 12 of the DDA is a legislative device intended to achieve a twofold purpose:
    • (a) to ensure that the unlawful discrimination provisions do not overreach the limits of the Commonwealth Parliament鈥檚 legislative power; and
    • (b) within those constitutional limits, to ensure that those provisions are given as extensive an operation as is possible.[32]
  2. The manner in which that twofold purpose should be understood in these proceedings is explained below.

Structure of Section 12 of the DDA

  1. Section 12(1) defines the term "limited application provisions" to mean the provisions of Divisions 1, 2 and 3 of Part 2 other than sections 20, 29 and 30. That includes:
    • (a) all of the provisions in the DDA proscribing discrimination in particular areas (with the nominated exceptions);
    • (b) the provisions of the DDA proscribing harassment on the ground of disability; and, most relevantly for current purposes
    • (c) the provisions of the DDA dealing with the disability standards (ss 31-34).
  2. Subsection 12(4) of the DDA provides:

    The have effect as provided in subsection (3) of this section and the following provisions of this section and not otherwise.

  3. Subsection 12(3) and the provisions which follow subsection 12(4) (subsections 12(5) to (14)) each reflect relevant heads of Commonwealth legislative power. For example, subsections 12(9)-12(10) seek to invoke the corporations power (s51(xx)).
  4. It appears that the parties consider that subsection 12(8) is the only provision of s12 which could give effect to the limited application provisions which arise for consideration in these proceedings.[33] Section 12(8) states:

    The have effect in relation to discrimination against a person with a to the extent that the provisions:

    1. give effect to the ; or
    2. give effect to the ; or
    3. give effect to the International Covenant on Economic, Social and Cultural Rights; or
    4. relate to matters external to ; or
    5. relate to matters of international concern.
  1. It is not entirely clear that s 12(8) is in fact the only provision which could give effect to the relevant limited application provisions in these proceedings. The Council is a body corporate.[34] If a 鈥榮ubstantial鈥 or 鈥榮ufficiently significant鈥 proportion of the Council鈥檚 activities constitute trade, the Council will be a 鈥榯rading corporation鈥 within the meaning of s51(xx) of the Constitution.[35] That is a question of fact, which is not addressed in the evidence currently before this Court. However, if the Council were found to be a trading corporation, the relevant limited application provisions would be given effect in this matter by s 12(9) of the DDA.[36] The Commissioner does not seek to address that matter further and merely draws attention to it to be of assistance to the parties and the Court.

Application of Section 12 to the provisions of the DDA dealing with standards

  1. The designation of s 31 as a limited application provision means that the Minister鈥檚 power to formulate standards is limited to standards that are supported by one or more of s 12(3) or ss 12(5)-(15). Otherwise, s 31 would have no effect (see s 12(4)) and the making of the standard would be ultra vires.
  2. How then does the Minister avoid overstepping the limits imposed by s 12? One possible means of doing so would be simply to reproduce s 12 in each standard. However, on closer analysis, that approach is unnecessary because the standards only operate through:
    • section 32 of the DDA, which makes their contravention unlawful; and
    • section 34 of the DDA, which provides a statutory defence to the remaining provisions of Part 2 of the DDA, provided a person acts in accordance with the relevant standard.
  3. As noted above, ss 32 and 34 are, like s 31, limited application provisions and only have effect in accordance with s 12. As such, Parliament has already qualified the operation of the standards by reference to s 12. That means that, provided the conditions for formulating standards set out in s 31 are met (note particularly that they must relate to one of the matters set out in s 31(1)), the standards can be expressed broadly and without seeking to tie them to the particular heads of constitutional power reflected in s 12. This is the approach which has been adopted in relation to the DSAPT.[37]
  4. In light of the above, there is a question of statutory construction which arises before the Court can consider any question of constitutional validity. That is, the Court must consider whether s 12 gives effect to s 32 in relation to the provisions of the standard alleged to have been contravened in this matter. If not, s 32 does not apply in the present case. However, the DDA and the DSAPT would nevertheless remain constitutionally valid. Section 12 operates to keep them within constitutional limits in the manner described above.

Section 12(8)

  1. Section 12(8) gives effect to the limited application provisions 鈥榯o the extent鈥 that those provisions:
    1. 鈥榞ive effect to鈥 one of the specified international instruments (s 12(8)(a)-(c)); or
    2. 鈥榬elate to鈥 a matter of international concern (s 12(8)(e)).

Operation of s 12(8)

  1. In Souliotopoulos v La Trobe University Liberal Club,[38] Merkel J described the operation of s 12(8) as follows:

    ...the limited application provisions are to have effect "in relation to discrimination against a person with a disability to the extent that the provisions" can be supported by the external affairs power...

His Honour also stated:

[Section] 12(8) is ambulatory in the sense that it intends to give the widest possible operation permitted by s 51(xxix).[39]

  1. As , the Commissioner agrees with AAA鈥檚 submissions regarding the test to be applied to determine whether s 32 gives effect to one of the specified international instruments. That is, the inquiry is whether s 32 is, in a particular case, capable of being considered appropriate and adapted to implementing the relevant international instrument. That test is taken from the statement on the limits of s51(xxix) of the Constitution in the five member judgment in Victoria v Commonwealth.[40] The Council also appears to suggest that that test (or a test of that nature) is the test that should be applied by this Court.[41]

A different approach?

  1. An apparently different approach has recently been taken at first instance in relation to the analogous provision of the Sex Discrimination Act 1984 (Cth) (鈥楽DA鈥). In AB v Registrar for Births Deaths and Marriages,[42] Heerey J stated:

    Giving effect in this context means giving legal effect, creating legally enforceable, rights, duties, powers and privileges... s22. The question is not whether Parliament has made a legislative judgment that a treaty obligation exists, in which case it is enough that "the legislative judgment could reasonably be made" (Richardson v Forestry Commission (1988) 164 CLR 261 at 295-296). Rather, as Ms Mortimer SC for the Registrar submitted, Parliament has made the legislative judgment. It is expressed in [the equivalent provisions to ss12(3) and 12(10) of the DDA], and s22 [which was the limited application provision in issue in that case]. The Court must construe the language of those provisions. There must be an examination of the Convention to ascertain to what Australia has undertaken to give effect by way of legislation.[43]

  1. His Honour did not refer to the earlier decision in Souliotopolous in his reasons.

The approach in Souliotopolous should be preferred

  1. The Commissioner submits that the approach taken by Merkel J in should be preferred, particularly given that Souliotoplous dealt with the DDA.
  2. In addition, Heerey J鈥檚 decision in AB appears to depart from a decision of the Full Federal Court in South Pacific Hotels v Trainor,[44] where at Black CJ and Tamberlin J (with whom Kiefel J agreed) stated at 406-7 [20]:

    An object of [s9(4) of the SDA, which is the equivalent of s12(3)in the DDA]...is to extend the operation of the prescribed provisions of the [SD Act] throughout Australia to the extent that the legislative powers of the Commonwealth Parliament may allow鈥 (emphasis added).

  3. Their Honours relied upon the explanatory memorandum to the SDA in arriving at that view. The explanatory memorandum to the DDA in relation to s 12 adopts a similar approach:

This clause provides that the legislation is to apply throughout Australia. The provision is also designed to ensure that all possible Commonwealth Constitutional power is relied upon to support the various provisions of the Act.

  1. It follows that Parliament intended to legislate right up to the limits of constitutional power. This Court should give effect to that intention. In relation to s12(8) the constitutional power in question is that in s 51(xxix) and its limits are therefore determined by applying the capable of being considered appropriate and adapted鈥 test discussed in Victoria v Commonwealth.[45]
  2. It is true that this involves the application of a test of 鈥榗onstitutional validity鈥 to a question of construction. However, this is by no means a novel occurrence in Courts exercising federal jurisdiction: see s 15A of the Acts Interpretation Act 1901 (Cth). It is also the approach Parliament has dictated in enacting s 12 of the DDA.

鈥楻easonably capable of being considered appropriate and adapted鈥

Application of this test

  1. The words 鈥reasonably capable of being considered appropriate and adapted鈥 indicate that the Court exercises restraint in this area. It is for the legislature to determine the means by which it gives effect to the treaty. Provided that the means chosen by Parliament are reasonably capable of being considered appropriate and adapted to give effect to the treaty, the relevant provision will be within the limits of s 51(xxix) (and thus have effect under s 12(8) of the DDA).[46]
  2. The Court does not, for example, inquire whether or not a particular provision can be seen as the best method of implementing the obligations in the treaty. Nor is it necessary that the law be a full and complete implementation of the treaty.[47]

    鈥楻easonable proportionality鈥 is not the test

  3. In approving the 鈥reasonably capable of being considered appropriate and adapted鈥 test, the High Court in Victoria v Commonwealth also rejected suggestions in some of the earlier authorities[48] to the effect that the Court should ascertain whether there is 鈥榬easonable proportionality鈥 between the object of implementing the treaty and the means which the law adopts to do it.[49] A proportionality test is suggested by the Council at paragraph 17 of its submissions. In Vasiljkovic v Commonwealth of Australia,[50] the High Court鈥檚 most recent decision on s 51(xxix), Gleeson CJ made the following comments regarding a proportionality test:

    In a context such as the present, inappropriate use of the concept of proportionality may amount to an invitation to the judicial branch of government to impose its own ideas of policy upon the legislature. The separation of powers works in more than one direction. It prevents the legislature and the executive from exercising judicial power. It also prevents the judiciary from exercising legislative power.[51]

  4. Some commentators have suggested that the current test of 鈥榬easonably capable of being considered appropriate and adapted鈥 involves a more 鈥榙eferential鈥 approach to the legislature on the part of the Court than an inquiry based upon proportionality.[52] Certainly, Parliament is given a measure of latitude in the means selected for implementation of a particular treaty.[53] However, as Gleeson J makes clear in Vasiljkovic, this is not for reasons of 鈥榡udicial deference鈥 - it merely gives appropriate regard to the separation of powers which is inherent in the Constitution.[54]

    The Treaty must express more than a mere 鈥榠deal鈥 or 鈥榓spiration鈥

  5. It is, however, not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of a mere 鈥榠deal鈥 or 鈥榓spiration鈥 expressed or embodied in a treaty.[55] The law must prescribe a regime that the treaty itself has defined with sufficient specificity to direct the general course taken by the signatory states. Nevertheless, lack of precision in a treaty does not mean lack of obligation.[56]

Relevant obligations in the ICCPR and ICESCR

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

  1. Section 12(8) states that the limited application provisions apply to the extent that those provisions give effect to, inter alia:
    1. the International Covenant on Civil and Political Rights (ICCPR): s 12(8)(b); and
    2. the International Covenant on Economic Social and Cultural Rights (ICESCR): s 12(8)(c).
  2. 59. The Commissioner agrees with AAA in its identification of the relevant obligations in those instruments.[57] The Commissioner makes the following additional points.

    ICESCR

  3. 60. General Comment 5 relating to ICESCR (referred to by AAA at paragraphs 123-124) was prepared by the United Nations Committee on Economic Social and Cultural Rights is the body of that monitors implementation of ICESCR by its States parties.[58] Australian courts have accepted that guidance as to the meaning and effect of international conventions may be had from the writings and decisions of learned authors, foreign courts, and expert international bodies such as CESCR.[59]
  4. At paragraph 124 of its submissions, AAA extracts and highlights the following passage from General Comment 5:

    The obligation of States parties to the Covenant to promote progressive realization of the relevant rights to the maximum of their available resources clearly requires Governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disabilities. The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities. This almost invariably means that additional resources will need to be made available for this purpose and that a wide range of specially tailored measures will be required.[60]

  5. The obligation in ICESCR underlying that passage is set out in article 2(1) of ICESCR, which provides:
  6. The requirement to achieve 鈥榩rogressively鈥 the rights in ICESCR provides some flexibility to states parties. However, this does not mean that article 2(1) imposes no relevant obligations or is expressed merely in 鈥榯erms of aspiration鈥.[61]
  7. In the jurisprudence of CESCR[62] and in the jurisprudence of states implementing their obligations under ICESCR,[63] it has been stated or held that the requirement for progressive achievement imposes concrete obligations upon states parties.[64] This was the intention of the drafters of ICESCR.[65]
  8. The jurisprudence of the CESCR also indicates that article 2(1) (read in conjunction with the various rights recognised in ICESCR) imposes obligations which can be identified with comparative specificity. Of particular relevance for current purposes, General Comment 5 makes reference to the provision of accessible transport as being 鈥榗rucial to the realization by persons with disabilities of virtually all the rights recognized in [ICESCR]鈥. This indicates that Australia鈥檚 obligations under article 2(1) includes taking 鈥榩ositive action鈥 to:
    • (a) ensure that transport is accessible to people with disabilities; and
    • (b) to provide special facilities or specially tailored forms of transport where necessary.

    ICCPR

  9. Article 26 of the ICCPR (which deals with discrimination, including on the ground of 鈥榦ther status鈥 which encompasses disability[66]) has also been said to require States to take positive acts to eliminate the conditions giving rise to discrimination, in addition to simply making discrimination unlawful.
  10. For example, the Human Rights Committee, which is the treaty body for the ICCPR,[67] has noted in relation to article 26:

    ... the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions.[68]

Section 32 is reasonably capable of being considered appropriate and adapted to giving effect to the ICCPR and ICESCR

  1. Having regard to the above, s 32, in its potential operation in this matter, is reasonably capable of being considered appropriate and adapted to implementing certain of Australia鈥檚 obligations under the ICCPR and ICESCR. Those are the obligations identified by AAA at paragraphs 121 and 122 of its submissions.
  2. Those obligations require more than the prohibition of discrimination on the ground of disability. Rather, they require that Australia take positive steps to ensure that people with disabilities can enjoy the rights guaranteed in the ICCPR and ICESCR on a basis of equality as compared to people who do not have a disability. Such positive steps include ensuring the accessibility of public transport through measures such as:
    • (a) legislating standards for public transport; and
    • (b) providing a means of redress where such standards have been breached.
  3. On that basis, for the purposes of s 12(8) of the DDA, s 32 has effect in the circumstances of this matter.

Matters of international concern

  1. There is an alternative basis for finding that s 32 has effect in this matter. Section 12(8)(e) provides that the limited application provisions have effect to the extent they 鈥榬elate to matters of international concern鈥. [69]
  2. The breadth of the Commonwealth鈥檚 legislative powers in relation to 鈥榤atters of international concern鈥 is not entirely clear. However, there is support in the authorities for a similar test to the test which applies to the implementation of a treaty - that is, whether the law is reasonably capable of being seen as appropriate and adapted to 鈥榙eal with鈥 the matter of international concern.[70]
  3. On the other hand, it may be argued that (unlike a treaty) a matter of international concern is of itself subject matter included in the term 鈥榚xternal affairs鈥 in s 51(xxix). That would mean that matters of international concern are simply subjects upon which the Parliament can legislate (subject to the usual direct characterization test applied in relation to non-purposive powers). [71]
  4. For the purposes of this submission, the Commissioner will assume that the 鈥榬easonably capable of being seen as appropriate and adapted鈥 test applies as a limitation on the 鈥榤atters of international concern鈥 aspect of the external affairs power. It is that limitation which will determine whether s 12(8)(e) gives effect to s 32 in the facts of this matter.

Disability discrimination is a matter of international concern

[t]hey imply a strong moral and political commitment on behalf of States to take action for the equalization of opportunities for persons with disabilities.[85]

  1. AAA has alleged that the relevant breaches of the DSAPT generally occurred in or around June 2003.[72] This is the relevant time for assessing the existence of matters of international concern.[73]
  2. AAA has outlined (at para [131]) the matters which establish that disability discrimination is a matter of international concern. In addition to those submissions, the Commissioner says that international concern about disability discrimination can be ascertained from:
    • (a) the development of an international convention on disability; and
    • (b) the existence of the 鈥楽tandard Rules on the Equalisation of Opportunities for Persons with Disabilities鈥.

    Development of an international convention on disability

  3. By June 2003 (the time of the alleged breaches), significant steps had been taken towards the development of an overarching treaty on disability. On 19 December 2001, the United Nations General Assembly established an Ad Hoc Committee to consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities.[74] The Ad Hoc Committee was open to the participation of all Member States and observers of the United Nations.
  4. Following the first session of the Ad Hoc Committee, the General Assembly requested the Secretary-General to seek the views of relevant bodies and organizations of the United Nations system on proposals for a convention including, inter alia, questions relating to its nature and structure and the elements to be considered.[75]
  5. The second session of the Ad Hoc Committee took place at United Nations Headquarters in New York from 16 to 27 June 2003. The Ad Hoc Committee recommended to the General Assembly that 鈥榓 convention be elaborated鈥. [76] To that end, the Ad Hoc Committee established a working group to prepare a draft text of the Convention.[77]
  6. It is also notable that one of the matters specifically raised during the second session of the Ad Hoc Committee was accessibility. In panel discussions, an expert asked by the Committee to give a presentation:

    ...addressed accessibility as a human rights issue and discussed how ensuring accessibility removes barriers and promotes equality through full participation and inclusion of persons with disabilities in society. [That expert also] discussed the rights of access to physical environments and to information and communication and how these rights can be implemented through universal design standards and effective communication. The presentation further elaborated how accessibility promotes non-discrimination and counters segregation, economic marginalization, and other human rights violations (emphasis added).[78]

  7. The General Assembly endorsed the Committee鈥檚 recommendation that a treaty be drafted in a resolution of 22 December 2003.[79] Unsurprisingly, given the interest of the Ad Hoc Committee in accessibility and the development of accessibility standards, the current draft of the Convention (promulgated in 2006) includes the following proposed obligations regarding those matters:

    To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia...buildings, roads, transportation and other indoor and outdoor facilities...

    States Parties shall also take appropriate measures...[t]o develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public...[80]

  8. In Koowarta v Bjelke-Petersen[81] Mason J observed that 鈥榓 topic of international debate, discussion and negotiation constitutes an external affair before Australia enters into a treaty relating to it鈥.[82] The progress towards a draft convention at the time of the alleged contraventions makes clear that the elimination of inequality in relation to people with disabilities was just such a topic at the relevant time.

    The 鈥楽tandard Rules on the Equalisation of Opportunities for Persons with Disabilities鈥

  9. The Standard Rules on the Equalisation of Opportunities for Persons with Disabilities (referred to by AAA at paragraph 131) (鈥榯he Standard Rules鈥) were contained in a resolution of the United Nations General Assembly on 20 December 1993.[83] Somewhat uniquely amongst resolutions of the General Assembly, Part IV of the Standard Rules provides for a monitoring mechanism, which is a similar approach to that adopted in treaties like ICESCR and the ICCPR.[84]
  10. Although the Standard Rules are not legally binding as a matter of international law (as compared to, say, a convention):
  11. The rules are also expressed with precision. Most relevantly for current purposes, they specifically contemplate the development of 鈥榮tandards鈥 and the enactment of legislation in the context of public transport. Under the heading 鈥淎ccess to the Physical Environment鈥, the Standard Rules state (in rule 5):

    States should initiate measures to remove the obstacles to participation in the physical environment. Such measures should be to develop standards and guidelines and to consider enacting legislation to ensure accessibility to various areas in society, such as housing, buildings, public transport services and other means of transportation, streets and other outdoor environments.

Conclusions regarding 鈥榤atters of international concern鈥

  1. Having regard to the draft convention on disability, the Standard Rules and the other materials referred to by AAA at paragraph 131, the elimination of inequality in relation to people with disabilities was a matter of international concern at the time of the alleged contraventions.
  2. That matter of international concern included the elimination of inequality in the area of transport and other services provided to the public by ensuring that such services are accessible to people with disabilities. More than that, the manifestations of international concern referred to above specifically contemplated the use of standards and legislation to address that concern. As such, section 32 is reasonably capable of being considered appropriate and adapted to deal with those matters of international concern in the circumstances of this case. It has effect accordingly.

Craig Lenehan

Counsel for the Acting Disability Discrimination Commissioner

5 St James Hall

Sydney

(02) 8257 2540

 

Brook Hely

Solicitor for the Acting Disability Discrimination Commissioner

133 Castlereagh Street

Sydney

(02) 9284 9783

 

29 August 2006

Appendix A- History of section 32 and associated complaint provisions

This clause provides that it is unlawful for a person not to abide by a disability standard established under clause 31and by making it unlawful this provides for a person to make a complaint under clause 69 (emphasis added).

  1. When the DDA was first passed by Parliament, s 32 appeared in its current form.
  2. In relation to s 32, the explanatory memorandum to the Disability Discrimination Bill 1992 stated:
  3. Until 1999, s 69 of the DDA provided that a person could lodge with the Commission a written complaint alleging that a person:

    鈥榟as done an act that is unlawful under a provision of Part 2鈥 (emphasis added).

    During that time, s 3(2) appeared in the DDA in its current form, such that reference to the doing of an 鈥榓ct鈥 in s 69 included the refusal or failure to do an act.

  4. The DDA also then included (as now), in Part 2 Divisions 1-3, provisions making 鈥榰nlawful鈥:
    1. discrimination on the ground of disability; and
    2. harassment in relation to disability in various specified areas of public life.
  5. It follows that the term 鈥榰nlawful鈥 was used by Parliament to identify the acts and omissions about which a person could make a complaint under s 69 of the DDA.
  6. Section 69 of the DDA was repealed by the Human Rights Legislation Amendment Act (No. 1) 1999 (HRLA Act), which introduced various amendments to the procedure by which complaints of contraventions of federal discrimination law were made. Those amendments were necessary by reason of the High Court鈥檚 decision in Brandy v The Human Rights and Equal Opportunity Commission.[86] After the passage of that act, such complaints were made under s 46P of the HREOC Act, which relevantly provides:
    1. A written may be lodged with the , alleging .
    2. The may be lodged:

             (a)  by a person aggrieved by the :

(i) on that person鈥檚 own behalf; or

(ii) on behalf of that person and one or more other persons who are also aggrieved by the ...

  1. The term 鈥榰nlawful discrimination鈥 (which is partially extracted in the body of these submissions) relevantly defined in s 3 of the HREOC Act as follows:

    "unlawful discrimination" means any acts, omissions or that are unlawful under...[p]art 2 of the ...and includes any conduct that is an offence under... Division 4 of Part 2 of the ...

  2. Those provisions do not manifest an intention to cut down the matters which were able to be complained of under former s 69 of the DDA. Indeed, if anything, the apparent intention of Parliament in enacting those provisions was to expand the matters which may be complained of by expressly including:
    1. discriminatory 鈥榩ractices鈥 (in addition to acts and omissions);[87] and
    2. conduct which constitutes an offence under Division 4 of Part 2 of the DDA, which includes victimization in s 43.[88]

Footnotes

[1] Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493; Boyce v Paddington Borough Council [1903] 1 Ch. 109; Gouriet v Union Post Office Workers [1978] AC 435 and Bateman鈥檚 Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247: See paras [6] 鈥 [9] of the Council鈥檚 submissions.

[2] Truth 黑料情报站 Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at 628-29.

[3] Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493.

[4] Bateman鈥檚 Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, [50] (Gaudron, Gummow and Kirby JJ).

[5] Allan v Transurban City Link Limited (2001) 208 CLR 167, 174 [15] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ).

[6] See, eg, Driver FM鈥檚 discussion of the relationship between the DDA and the HREOC Act in O鈥機onnor v Ross & Anor (No 1) [2002] FMCA 210 at [11].

[7] See AAA鈥檚 submissions at paras [36], [46], [47]-[53].[8] See Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 and Commonwealth v Sex Discrimination Commissioner [1998] 1607 FCA.[9] Additional conditions apply for the making of a representative complaint: see s46PB of the HREOC Act.[10] See eg Lawrance v HREOC [2006] FCA 100.

[11] Termination takes place under either s46PE(1) or 46PH(1) of the HREOC Act.

[12] De Lacey v Juunujuwarra People [2004] QCA 297, [18].

[13] Re Adams and the Tax Agents' Board (1976) 12 ALR 239, 242 (Brennan J).

[14] See, eg, the second reading speech of the Human Rights Legislation Amendment Bill 1998: 鈥楢s a result of [the decision in Brandy], an interim solution was introduced by the previous Government. However, it was inefficient and cumbersome. The bill therefore proposes to maintain the Commission's conciliation role, but to provide the parties with direct access to the Federal Court should conciliation prove unsuccessful. This will enable the parties to obtain a timely and enforceable determination of their respective rights...The Court will be able to adopt informal procedures as it will not be bound by technicalities or legal forms鈥: Commonwealth, Parliamentary Debates, House of Representatives, 3 December 1998, 1276 (Daryl Williams).

[15] See s 11(3) ADJR Act.

[16] See also, Stokes v Royal Flying Doctor Service [2003] FMCA where the respondents complained that the identity of the applicants commencing proceedings under s46PO differed from the person on whose behalf a complaint was made to the Commission. Note that McInnes FM appeared to feel unconstrained in inquiring whether the applicants in question were persons aggrieved: at [10], [18], [22].

[17] See para [48], [49] and [51] of AAA鈥檚 submissions.

[18] Cameron v Human Rights and Equal Opportunity Commission and Anor (1993) 46 FCR 509, 515 (Beaumont and Foster JJ, French J agreeing).

[19] Ibid.

[20] Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 236 (Mason J); Woomera Aboriginal Corporation UN reports, HREOC, Commissioner Nettlefold, 22 November 1993.

[21] Executive Council of Australian Jewry v Scully (1998) 79 FCR 537, 548-9 (Wilcox J).

[22] Ibid.

[23] Woomera Aboriginal Corporation Unreported, HREOC, Commissioner Nettlefold, 22 November 1993.

[24] Executive Council of Australian Jewry v Scully (1998) 79 FCR 537, 548-9 (Wilcox J).

[25] Ibid 549-50.

[26] See, eg, the decisions cited by Wilcox J in Executive Council of Australian Jewry v Scully (1998) 79 FCR 537, 544-6.

[27] See, especially, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79; (1981) 54 FLR 421, 437-438 (Ellicott J); United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520, 527 (Davies, Wilcox and Gummow JJ); Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124, 130-134 (Gummow J); Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, 72 (Davies J); Right To Life Association (NSW) Inc v Secretary, Department of Human Services and Health & Anor (1995) 56 FCR 50, 64-65 (Lockhart J).

[28] (1986) 68 ALR 18; (1986) 61 ALJR 32.

[29] Ibid 23-24; 36. See also the comments of Ellicott J in Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64, 79; 54 FLR 421, 437: 鈥楾he question whether an applicant is a person aggrieved is one of mixed law and fact and in many cases would best be determined at a final hearing when all the facts are before the court and the court has the benefit of a full argument on the matter.鈥

[30] AAA allege in its statement of claim that the Council breached the following Parts of the DSAPT: 2.1, 2.2, 3.1, 6, 7.1, 7.2, 8.1, 9.1, 10.1, 18.1, 18.2, 18.3, 23.1, 27.1. (See AAA statement of claim paras [26]-[63]). AAA also refers to the following Parts of the DSAPT as being relevant: 1.4(2), 1.7, 1.9, 1.18(1), 1.21, 1.22(1),  17.1, 33.1 (see AAA statement of claim paras [8] 鈥 [23]).

[31] See for example Bennett v HREOC (2003) 134 FCR 334; Commonwealth v Tasmania (1983) , 264-5 (Deane J).

[32] South Pacific Hotels v Trainor (2005) 144 FCR 402, [16] and [20].

[33] See AAA鈥檚 submissions at paragraph 112-117 and the Council鈥檚 submissions at paragraph 12.

[34] See s 35 of the Local Government Act 1993 (QLD).

[35] See Commonwealth v Tasmania (1983) , 156 (Mason J), 179 (Murphy J), 240 (Brennan J) and 293 (Deane J).

[36] Note that section 12(9) of the DDA appears to be drafted on the assumption that the 鈥榳ider view鈥 of the power in s51(xx) prevails: see, by way of example, Re Dingian; Ex Parte Wagner (1995) 183 CLR 323, 333-4 (Mason J), 352-3 (Toohey J), 364 (Gaudron J), and 368 (McHugh J). Section 12(10) appears to have been inserted by the Parliamentary draftsperson out of caution to provide for the possibility that the High Court ultimately prefers a narrower view of s51(xx): see, for example, Gibbs CJ in Actors and Announcers Equity Association v Fontana Films Pty Limited (1982) 150 CLR 169,183.

[37] See clause 1.4 (1) and (2) of the DSAPT.

[38] (2002) 120 FCR 584, 592.

[39] Ibid.

[40] (1996) , 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

[41] Albeit in relation to validity - council鈥檚 submissions at [15] and [17].

[42] [2006] FCA 1071.

[43] Ibid [17] 鈥 [19].

[44] (2005) 144 FCR 402.

[45] (1996) .

[46] Victoria v Commonwealth (1996) , 486-487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ); Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) ,136 (Menzies J); Commonwealth v Tasmania (1983) , 130-131 (Mason J), 172 (Murphy J), 232 (Brennan J), 259 (Deane J); and Richardson v Forestry Commission (1988) , 288-289 (Mason CJ and Brennan J), 303 (Wilson J), 311-312 (Deane J), 336 (Toohey J) and 342 (Gaudron J).

[47] Victoria v Commonwealth (1996) , 488-489 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

[48] See Commonwealth v Tasmania (1983) , 260-1 (Deane J) and Richardson v Forestry Commission (1988) , 311-312 (Deane J) and 346 (Gaudron J).

[49] Victoria v Commonwealth (1996) , 487-88 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

[50] [2006] HCA 40, [41].

[51] His Honour was there dealing with a different aspect of the power in s51(xxix) to which the 鈥reasonably capable of being considered appropriate and adapted鈥 test does not apply. Nevertheless, his Honour鈥檚 rejection of proportionality accords with statements to the effect that 鈥榠t is for the legislature to choose the means by which it... gives effect to the treaty...鈥: Victoria v Commonwealth (1996) . 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

[52] Hanks, P J Keyzer, P Clarke, J  7th Edition (2004) p190. The Court in Victoria v Commonwealth simply observed that the proportionality test 鈥榓ppears to restate the basic question鈥 (at 488). See generally J Kirk 鈥楥onstitutional Guarantees, Characterisation and the Concept of Proportionality鈥 (1997) 21 MULR 1 at 3-9 for a discussion of the manner in which the degree of scrutiny involved in a 鈥榩roportionality鈥 analysis varies with the nature of the test applied.

[53] Compare also the more stringent judicial scrutiny involved in the test enunciated by Barwick CJ in Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) at 86: 鈥...it is for this Court to determine whether particular provisions, when challenged, are appropriate and adapted to that end鈥.

[54] R v Kirby: Ex Parte Boilermakers鈥 Society of Australia (1956) 94 CLR 254.

[55] Victoria v Commonwealth (1996) , 486 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

[56] Ibid. For example, the Court referred to the ILO Minimum Wages Convention, concluding (at 496): 鈥楾hat the obligations of the Convention are expressed in broad general terms does not deny them the character of obligations.鈥 See also Commonwealth v Tasmania (1983) , 132 (Mason J), 178 (Murphy J), 261-2 (Deane J); Richardson v The Forestry Commission (1988) 164 CLR 261, 324 (Dawson J).

[57] See paras [121]-[122] of AAA鈥檚 submissions.

[58] The Committee was established under a resolution of the : of 28 May 1985. ECOSOC is the body given responsibility for those monitoring functions in Part IV of ICESCR.

[59] Povey v Qantas Airways Limited (2005) 79 ALJR 1215, [25]; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 392 (Mason CJ), 396-7 and 399-400 (Dawson J), 405 (Toohey J), 416 (Gaudron J), 430 (McHugh J); Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, 117 (Gummow J); Commonwealth v Hamilton (2000) 108 FCR 378, 388 (Katz J); Commonwealth v Bradley (1999) 95 FCR 218, 237 (Black CJ). Note also Fothergill v Monarch Airlines Ltd [1981] AC 251, 294-5 (Lord Scarman).

[60] Committee on Economic, Social and Cultural Rights, General Comment 5 (Persons with Disabilities) (1994), para 9 in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at 25.

[61] Victoria v Commonwealth (1996) , 486 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

[62] See para 9 of General Comment 3 where the CESCR Committee described the general nature of that obligation as follows: 鈥...the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d鈥櫭猼re, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.鈥:.

[63] See the decision of the South African Constitutional Court in Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 at paragraphs 20, 38, 45 and 94.

[64] See also M Craven 鈥淭he International Covenant on Economic Social and Cultural Rights鈥 (1995), Clarendon p131.

[65] Phillip Alston and Gerard Quinn, 鈥楾he Nature and Scope of State Parties鈥 Obligations under the International Covenant on Economic, Social and Cultural Rights鈥 Human Rights Quarterly Vol 9 (1987) 156-229 at 172 鈥 177.

[66] In its Concluding Observations, the Human Rights Committee made the following comments in relation to the state report of Ireland: 鈥楾he State party should ensure the full and equal enjoyment of Covenant rights by disabled persons, without discrimination, in accordance with article 26.鈥: Ireland, ICCPR, A/55/40 vol. I (2000) 61 at para. 450.

[67] The Committee is created under article 28 of the ICCPR. Amongst other things, the Committee hears complaints submitted by individuals under the Optional Protocol to the ICCPR. The Committee鈥檚 communications are of 鈥渃onsiderable persuasive authority鈥 (Nicholls v Registrar Court of Appeal [1998] 2 NZLR 385, 404 (Eichelbaum CJ)) or 鈥渉ighly influential, if not authoritative鈥 (E Evatt 鈥淭he Impact of International Human Rights on Domestic Law鈥 in G Hushcroft and R Rishworth Litigating Rights: Perspectives from Domestic and International Law Hart Publishing 2002 pp281-303 at 295) in relation to Australia鈥檚 legal obligations under the ICCPR.

[68] General Comment No. 18: Non-discrimination (paragraph 10).

[69] For authorities supporting the existence of the 鈥榤atters of international concern鈥 limb of the external affairs power, see Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 217, 220-1 (Stephen J), 234 (Mason J), 242 (Murphy J); Commonwealth v Tasmania (1983) 158 CLR 1, 131 (Mason J), 171-2 (Murphy J), 258 (Deane J), Richardson v The Forestry Commission (1987) 164 CLR 261, 322-4 (Dawson J); Polyukhovich v The Commonwealth (War Crimes Act case) 1991) 172 CLR 501, 560-62 (Brennan J), 604-5 (Deane J), 657-8 (Toohey). Merkel J applied those authorities in the context of s12(8)(e) of the DDA in Souliotopolous v La Trobe University Liberal Club (2002) 120 FCR 584, 592. It should be noted that Callinan and Heydon JJ recently indicated, in a dissenting judgment in XYZ v Commonwealth [2005] HCA 25 that they would be prepared to jettison 鈥榤atters of international concern鈥 as a separate limb of s51(xxix): at [224]-[225]. However, the majority expressly declined to express a view as to that issue: See Gleeson CJ at [18] and Gummow, Hayne and Crennan JJ at [53]. Kirby J expressed some doubts regarding the doctrine at [125]-[127], but did not find it necessary to resolve the issue.

[70] See particularly Deane J in Commonwealth v Tasmania (1983) 158 CLR 1, 259 and Polyukovich v Commonwealth (1991) 172 CLR 501, 605. See also Gaudron J in Richardson v The Forestry Commission (1987) 164 CLR 261, 345-6 and Kirby J in XYZ v Commonwealth [2005] HCA 25 at [124], but note his Honour鈥檚 comments at [127].

[71] Given that s 51(xxix) is not a purposive power but rather merely has a 鈥榩urposive aspect鈥 in so far as it concerns the implementation of treaties. See Victoria v Commonwealth (1996) , 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

[72] See paras [28] 鈥 [61] of AAA鈥檚 statement of claim. Note that AAA also alleges that breaches of the DSAPT occurred in or about August 2003 [para [26]), early 2005 (para [30]) and March 2005 (para [62]).

[73] Souliotopoulos v La Trobe University Liberal Club (2002) 120 FCR 584, 592 [31].

[74] Resolution 56/168.

[75] Resolution 57/229 of 18 December 2002.

[76] Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, New York, 16-27 June 2003, A/58/118 & Corr.1 3 July 2003, paragraph 20.

[77] Ibid, paragraph 15.

[78] Ibid, Annex II, Panel 2.

[79] 58/246. Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, para 3.

[80] Draft article 5, Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities Seventh session New York, 16 January-3 February 2006, A/AC.265/2006/2, Annex 2.

[81] (1982) 153 CLR 168.

[82] Ibid 234.

[83] GA 48/96, 20 December 1993.

[84] The purpose of the monitoring mechanism is 鈥渢o further the effective implementation of the Rules...[and] identify obstacles and suggest suitable measures that would contribute to the successful implementation of the Rules鈥: Part IV(1).

[85] See paragraph 14 of the Standard Rules.

[86] (1995) 183 CLR 245.

[87] See Howe v Qantas (2004) 188 FLR 1, 149, [123] regarding the implications of this inclusion.

[88] Note that it was apparently always intended that victimization would be able to be the subject of a complaint. In the EM it was said: 鈥楾his part also makes provision for certain offences such as victimization of a person who takes action under this Act. Actions which may be offences can also be the subject of a complaint under the provisions of Clause 68 [sic- the drafter apparently intended to refer to clause 69]鈥