Interpreting Commonwealth legislation which incorporates provisions of an International Convention produces novel problems of statutory interpretation.[1]
Both the Racial Discrimination Act, in conjunction with the Human Rights and Equal Opportunity Commission Act 1986 Act, and the Equal Opportunity Act prohibit racial discrimination, and provide certain exceptions to that prohibition, as well as mechanisms for persons to make complaints of unlawful discrimination, and remedies to address breaches. However, the scope of the exception contained in s 65 of the Equal Opportunity Act would appear to be materially broader and more liberal than the “special measures” exception section 8(1) of the Racial Discrimination Act.[53][2] As earlier observed Section 65 of the Equal Opportunity Act provides:
This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race. Conduct, that would otherwise be unlawful discrimination on the basis of race under both the Racial Discrimination Act and the Equal Opportunity Act, would fall within the exception in section 65 of the Equal Opportunity Act but not the special measures exception in section 8(1) of the Racial Discrimination Act, because it would not be for the: 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 fundamental freedoms...[3][54] Brennan J in Gerhardy v Brown[56][4] noted that the objects and purposes of the Convention “appear in the preambles to the Convention”.[5][57]
The “objects of the Convention” include the promotion of human rights and fundamental freedoms, the elimination of all forms of racial discrimination, the provision of effective protection from and remedies for acts of racial discrimination that violate human rights and fundamental freedoms and the securing of 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 fundamental freedoms, through “special measures”.
Part 4 of the Equal Opportunity Act is designed to achieve substantially the same aim as the Convention – that is the elimination of racial discrimination. The purpose of the Equal Opportunity Act is made clear by the long title of the Act which reads:
An Act to promote equality of opportunity between citizens of this State; to prevent certain kinds of discrimination based on sex, sexuality, marital status, pregnancy, race, physical or intellectual impairment or age; to facilitate the participation of citizens in the economic and social life of the community...
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