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Benign Discrimination and the Right to Equality

Published online by Cambridge University Press:  24 January 2025

Gareth Evans
Gareth Evans*
Affiliation:
University of Melbourne
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Abstract

Governments have been increasingly preoccupied with the task of reconciling claims to preferential treatment with the principle of equality. The social and philosophical issues raised by this apparent paradox are considered, and the compatibility of benign discrimination with the concept of equality demonstrated by developing a complex normative notion of equality. An analysis is then undertaken of the various attempts made by lawyers, in nearly one hundred existing bills of rights, to give formal expression to these principles. Ultimately the problem of benign discrimination falls for resolution by the courts, and the jurisprudence developed in this respect by the Supreme Courts of Canada and the United States is critically discussed and compared. Having exhaustively developed an appreciation of world experience regarding the interaction of bills of rights equality clauses and benign discrimination, consideration is given to the formulation of the Australian Human Rights Bill—a bill of which Gareth Evans was one of the principal draftsmen.

Type
Research Article
Information
Federal Law Review , Volume 6 , Issue 1 , March 1974 , pp. 26 - 83
Copyright
Copyright © 1974 The Australian National University

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Footnotes

This is a revised version of a paper presented in August 1973 to the Annual Conference of the Australasian Universities Law Schools Association in Port Moresby.

References

1 Discussed infra pp. 80ff.

2 “Person” in this context, means “penis”: Evans v. Ewels [1972) 1 W.L.R. 671.

3 The only laws still on the books at either Commonwealth or State level which are considered to discriminate adversely against Aborigines are the Queens-land Aborigines Act 1971 and Torres Strait Islanders Act 1971, and even this legislation (with its mass of restrictive regulations concerning access to and conduct on reserves, and the control of Aboriginal finances) is considered by the Queensland Government to be benignly protective. See further Nettheim, Out Lawed: Queensland's Aborigines and Islanders and the Rule of Law (1973)Google Scholar— reviewed elsewhere in this Review—infra p. 211. Some of the problems involved in determining when “benign” discrimination is really benign are taken up infra pp. 29–33.

4 Infra pp. 42-44.

5 As it was, for example, in the context of Aborigines, by Professor (now Mr Justice) Wootten in evidence before the Senate Standing Committee on Constitutional and Legal Affairs in August 1972. “This argument seeks to perpetuate the effects of past handicaps to the advantage of those who did not suffer them... It would be the height of hypocrisy for white Australians now to say to Aborigines that from here on the race must be on equal terms, without taking into account the 180 years start which white Australians have given themselves.” Senate, Standing Committee on Constitutional and Legal Affairs, Hearing on Discrimination against Aborigines by and under Commonwealth and State law. Statement by Professor J. H. Wootten, Q.C., 31.

6 Kaplan, “Equal Justice in an Unequal World: Equality for the Negro— the Problem of Special Treatment” (1966) 61 N.W.U.L.R. 363, 364Google Scholar.

7 Marcuse, Equality (1965) 170: quoted in Kaplan, op. cit. 376.

8 John Rawls (whose general argument is taken up infra pp. 39-42) justifies such paternalism on the basis that the parties to his hypothetical contract would anticipate contingencies like congenital defects and injury—and infancy—and accordingly accept measures designed “to protect themselves against the weakness and infirmities of their reason and will in society”: A Theory of Justice (1971), 249. But “paternalistic principles are a protection against our own irrationality, and must not be intepreted to license assaults on one's convictions and character”, id. 250.

9 “Developments in the Law—Equal Protection” (1969) 82 Harv. L.R. 1065, 1115 (hereafter cited as “Developments”). Also Gross, “Indian Control for Quality Indian Education” (1973) 49 N.Dak.L.R. 237Google Scholar, where it is argued that integration can have negative educational and emotional effects for Indians.

10 There may be some exceptions to the latter point. Leigh suggests one in the important context of land rights. “If . . . land were conveyed to a group, only the members of which could occupy it, and none of whom were granted a separate interest which he could alienate, the restraint upon him would not amount to invalid discrimination. The right and the restriction arise uno flatu.“—”The Indian Act, the Supremacy of Parliament, and the Equal Protection of the Laws” (1970) 16 McGill L.J. 389, 396-397, cited in Canard v. Attorney-General of Canada (1972) 30 D.L.R. (3d) 9, 21.

11 Kaplan, op. cit. 390-391.

12 “Developments”, op. cit. 1117-1119. The constitutionality of such quotas in the United States remains unsettled.

13 Kaplan, op. cit. 379ff. “Developments”, op. cit. 1113.

14 Guideline issued by Commonwealth Ministry of Aboriginal Affairs. Clause 3(1) of The Racial Discrimination Bill 1974, propounds the following ethnic definitions: “'Aboriginal' means a person who is a descendant of an indigenous inhabitant of Australia but does not include a Torres Strait Islander”; “'Torres Strait Islander' means a person who is a descendant of an indigenous inhabitant of the Torres Strait Islands”.

15 “The Case of the Checker-Board Ordinance: An Experiment in Race Relations” (1962) 71 Yale L.J. 1787, 1422, cited in Kaplan, op. cit. 379.

16 Dicey, Introduction to the Study of The Law of the Constitution (10th ed. 1959) 193Google Scholar.

17 S. 51{ii) (taxes not to discriminate between the States). s. 51(iii) (bounties to be uniform). s. 99 (no preference to any State by trade, commerce or revenue laws). s. 102 (no preference or discrimination as to railways). s. 117 (no discrimination on the basis of State residence). Also infra text to nn. 23-24.

18 Parliament may make laws with respect to “The people of any race for whom it is deemed necessary to make special laws”. The phrase “other than the aboriginal race in any State” was deleted by referendum in 1967 to enable the Commonwealth to take over Aboriginal welfare from the States.

19 The Human Rights Bill, (the equality provisions of which are discussed infra pp. 81ff) is to have the status only of an ordinary Act of Parliament: its provisions are intended to override inconsistent State and existing Commonwealth law, but it will not bind future Commonwealth Parliaments. If a bill of rights were to be incorporated into the Constitution, on the other hand, it would have the effect—unless special provision were made—of being unamendable by any future Commonwealth Parliament.

20 Nauze, La The Making of the Australian Constitution (1972) 227-232Google Scholar, and Pannam, “Discrimination on the Basis of State Residence in Australia and the United States” (1967) 6 M.U.L.R. 105, ll1Google Scholar, 116.

21 There are, of course, innumerable other general and specific difficulties with bills of rights. For an account of some of them, e.g. see my “An Australian Bill of Rights?”, (1973) 45 Australian Quarterly 4.

22 Oxford English Dictionary.

23 Cameron v. Deputy Federal Commissioner of Taxation (1923) 32 C.L.R. 68, citing with approval the dictum of Higgins J. in R. v. Barger (1908) 6 C.L.R. 41, 131 that “Parliament may not discriminate … but the facts may, and often must”. Those cases which have suggested that certain laws which though not formally uniform as between the States may nonetheless still be constitutionally valid have been decided on the meaning of “preference” in s. 99 rather than “discriminate” in s. 51(ii): Crowe v. Commonwealth (1935) 54 C.L.R. 69, Elliott v. Commonwealth (1936) 54 C.L.R. 657. In the latter case Latham C.J. said that “Preference necessarily involves discrimination or lack of uniformity, but discrimination or lack of uniformity does not necessarily involve preference”. Id. 668.

24 Pannam, op. cit. 147. However, it is arguable that “discrimination” here would be coloured by the word “disability” which accompanies it. This section, is, in any event, a dead letter for other reasons, as the author shows,

25 A complete nexus between benign and adverse discrimination only holds in a zero-sum game situation, where gains for X can be translated directly into losses for Y, but there are many practical situations which approximate closely enough to this model to raise interpretation problems. Further infra p. 43 text to nn. 41-42.

26 Benn, “Egalitarianism and the Equal Consideration of Interests” in Bedau (ed.), Justice and Equality (1971) 160Google Scholar.

27 Honoré, “Social Justice” in Summers (ed.), Essays in Legal Philosophy (1968) 75Google Scholar. Rawls's list of “primary social goods” consists of “liberty and opportunity, income and wealth, and the bases of self-respect”, op. cit. supra n. 8, 303.

28 Benn, and Peters, , Social Principles and the Democratic State (1959) 123Google Scholar.

29 Lucas, The Principles of Politics (1966) 250Google Scholar.

30 Tawney, Equality (1951) 39. Also Stone, Human Law and Human Justice (1965) 334Google Scholar.

31 “Developments” op. cit. supra n. 9, 1164. Also Wasserstrom, “Rights, Human Rights and Racial Discrimination” (1964) 61 J. Philos. 628, 634-635CrossRefGoogle Scholar.

32 Lucas, op. cit. 245.

33 Rawls, op. cit. supra n. 8, 302.

34 There are considerable difficulties at many points in relating the ideal model to the imperfect world, and not all his conclusions are intuitively satisfactory, or at least would not be to a reader whose political perceptions were more socialist than mainstream liberal-democratic. Take, for example, the priorities specified: the equal liberty principle cannot for Rawls be at all compromised for the sake of either element of the second principle, that is, for either a more equal opporunity to occupy social positions or a more equal distribution of economic goods. But is it necessarily unjust for a government in certain circumstances to eliminate extreme economic inequalities at the cost of suspending some of the lesser basic liberties, e.g. by expropriating personal property without compensation? See Feinberg, “Justice, Fairness and Rationality”, (1972) 81 Yale L.J. 1004, 1030CrossRefGoogle Scholar. The best sustained critique of Rawls's work published to date is Barry, The Liberal Theory of Justice (1973).

35 Runciman, Relative Deprivation and Social Justice (1972) 325Google Scholarff., applying the Rawlsian model.

36 It will be apparent that “governmental distribution on a need theory aimed at achieving egalitarianism is the precise converse of a distribution according to numerical equality: the latter disregards private inequalities and focuses … on a numerically equal result and attempts to alleviate all private inequalities by appropriately differential distributions”. “Developments”, op. cit. supra n. 9, 1169 n. 39.

37 Id. 1169.

38 The concept of relative deprivation is more precisely defined in Runciman, op. cit. lOff.

39 Honoré, op. cit. supra n. 27, 64-66.

40 Kaplan, op. cit. supra n. 6, 366.

41 Cf. Wexler, “Special Preference for Oppressed Minorities” (l972) 7 Univ. Br. Columb. L.R. 71, 74Google Scholar. Wexler's own solution, which he builds upon a rebuttal of “the fallacy of assuming a limited pie”, is not particularly persuasive: in the real world, unfortunately, pies are limited.

42 Blackshield, “ 'Fundamental Rights' and the Institutional Viability of the Indian Supreme Court” (1966) 8 Jnl. Indian Law Inst. 139, 211Google Scholar, discussing minority quotas and Article 15(4) of the Indian Constitution.

43 “Developments”, op. cit. supra n. 9, 1085.

44 It must be conceded that to designate every kind of specific inequality which may at some time be socially or legally or naturally necessary, or morally justified, would probably require substantial additions to the list of criteria offered. If, for example, one focuses on penal laws—ones which impose burdens rather than distribute benefits—one might well find the concept of demerit more helpful than any of the criteria of need, merit or compensation. And there are numerous utilitarian criteria which cannot be rejected out of hand, including even the “squeaky wheel” argument, viz that it may be necessary to concede advantages to a vociferous and hostile minority group in order to avoid a social explosion: Kaplan op. cit. supra n. 6. 366-367.

45 Bedau, “Radical Egalitarianism”, in Bedau, op. cit. supra n. 26, 180.

46 An appreciation of the relative prevalence of bills of rights upon the international legal scene may be gained by recognition of the fact that, notwithstanding the political diversity among governments of the world, on New Year's Day 1973, there were 147 countries enjoying independent statehood, and 108 of them had bills of rights; of the 100 bills which the present writer was able to scrutinize, 91 contained equality guarantees of one kind or another. An annotated table listing the countries with and without bills of rights, and making some attempt to evaluate the status in practice of civil and political rights in both, may be found appended to my “Prospects and Problems for an Australian Bill of Rights” in the 1970-1973 Australian Yearbook of International Law (forthcoming).

47 An example of a provision which it is not possible to so classify is the Tongan assertion that “since all men are of one blood”, “there shall be but one law in Tonga for chiefs and commoners” (Arts. 1, 4). The other countries with equality provisions in the “miscellaneous” category are Algeria, Belgium, Cameroon, Chad, Czechoslovakia, Dominican Republic, Egypt, France, Gabon, East Germany, Hungary, Ivory Coast, Japan, Lebanon, Liberia, Liechenstein, Mauritania, Niger, Senegal, Spain, Tunisia, South Vietnam and the People's Democratic Republic of Yemen. It will become apparent from the lists in subsequent footnotes that it is common for a country's bill of rights to contain two or more differently formulated equality provisions.

48 Afghanistan, Albania, Argentina, Austria, Bangladesh, Brazil, Bulgaria, Canada, China, Taiwan, Costa Rica, Cuba, Cyprus, Egypt, El Salvador, Finland, East Germany, West Germany, Haiti, Hungary, India, Ireland, Ivory Coast, Khmer Republic, South Korea, Lebanon, Libya, Luxembourg, Malaysia, Mauritania, Monaco, Nicaragua, Niger, Pakistan, Paraguay, Portugal, Senegal, Sri Lanka, Trinidad and Tobago, Tunisia, Turkey, Uruguay, North Vietnam, Western Samoa and Yugoslavia.

49 Bangladesh, Canada, Cyprus, Ethiopia, India, Malaysia, Nepal, Pakistan, Philippines, Sri Lanka, Trinidad and Tobago, U.S.A. and South Vietnam.

50 R. v. Gonzales (1962) 32 D.L.R. (2d) 290, 294 per Tysoe I.A. (this being one of the few passages in Tysoe J.A.'s judgment not to be subsequently expressly overruled in R. v. Drybones, infra n. 19). Further infra, text to n. 54. Laskin J. has recently thrown doubt on this interpretation in the Lavell and Bedard cases (discussed infra pp. 74-78), but his views have not yet been accepted by a majority of the Supreme Court.

51 Most of the “new Commonwealth” bills of rights follow more or less closely the model originally laid down in the Nigerian Constitution, which enumerated and qualified the rights in considerable detail. The new Commonwealth constitutions which are, or were, most alike in their neo-Nigerian form are those of Barbados, Botswana, Fiji, Gambia, Guyana, Lesotho (until suspended), Malta, Mauritius, Nauru, Sierra Leone, Swaziland, Uganda (until suspended) and Zambia.

52 Barbados, Bolivia, Botswana, Canada, Cyprus, Denmark, El Salvador, Ethiopia, Fiji, Gambia, Guatemala, Guyana, Iran, Jamaica, Jordan, Kenya, North Korea, Kuwait, Malawi, Malta, Mauritius, Mongolia, Nauru, Netherlands, Poland, Romania, Rwanda, Sierra Leone, Swaziland, Trinidad and Tobago, U.S.S.R. and Zambia.

53 Bangladesh, Barbados, Botswana, Cuba, Fiji, Gabon, Gambia, West Germany, Guatemala, Guyana, Hungary, India, Ivory Coast, Jamaica, Japan, Kenya, Malta, Mauritius, Nepal, Nigeria, Pakistan, Sierra Leone, Swaziland, U.S.S.R., Venezuela and Zambia.

54 This reading is reinforced by the explicit disavowal of “privilege” which often accompanies an “equality before the law” formula: e.g. Austria, Art. 7.1: “All Federal citizens shall be equal before the law. Privileges based upon birth, sex, social position, class or creed shall be excluded.” Similar provisions appear in a dozen other constitutions. Also Tonga, supra n. 47. This is also the reading which lawyers reared in the British tradition most naturally give to “equality before the law”. E.g. Wells C.J.H.C. in R. v. Smythe (1911) 17 D.L.R. (3d) 389, 404 who said that the essence of the phrase would be conveyed in a jury direction to the following effect:

This man who is on trial on this charge, should not be prejudiced because of his race or his colour. He must receive exactly the same treatment as the highest man in the country would receive if he came before you on a criminal charge. The law makes no distinction between accused men who are in court in answer to a charge. The law is no respecter of persons.

Cf. the somewhat more stringent Diceyan view advanced by Ritchie J. in the Canadian Supreme Court in Lavell and Bedard discussed infra pp. 74-78.

55 Mittal, “Right to Equality in the Indian Constitution (Part II)” (1972) Public Law 232Google Scholar, n: 3. The.. “equal protection” clause has been construed along lines closely resembling the “passive .review” test adopted by the U.S. Supreme Court discussed infra pp. 61-62. Also Blackshield, op. cit. supra n. 42, 208, Huang-Thio, “Equal Protection and Rational Classification” (1963) Public Law 412Google Scholar, and for a full discussion, Seervai, Constitutional Law of India (1968) Ch. ix.

56 A good example is the clause appearing in the Constitution of Egypt (and to similar effect in those of Lebanon, East Germany, Yugoslavia, Hungary and Tunisia): “Citizens are equal before the law. They have equal public rights and duties without discrimination between them as to sex, race, language, religion or creed”. It is not clear whether the “rights” referred to are those contained in the Bill of Rights (thus becoming simply an expanded form of the “equal before the law” guarantee) or whether rather the reference is to legal rights and duties generally (thus amounting to a separate guarantee of the “equal protection” kind).

57 Supra n. 50.

58 In two cases, both concerning breathalyser legislation, the argument has been put, and rejected, that the guarantee of “the protection of the law” means that no law favourable to any person or class or persons can for any reason subsequently be changed to his or their detriment; R. v. Urchyshyn (1971) 4 C.C.C. (2d) 481: Curr v. The Queen (1972) 26 D.L.R. (3d) 603, 616 per Laskin I., “I find no merit in this … 'frozen statute book' theory”.

59 The clearest statement is by Allen I.A. in R. v. Urchyshyn (1971) 4 C.C.C. (2d) 481, 488: “I am of the opinion that this [subsection l(b)] must be interpreted to mean that everyone is entitled to equal treatment by the law and equally entitled to the protection of the law, without discrimination”. Also, to similar effect, Nemetz I.A. in R. v. Burnshine (1973) 13 C.C.C. (2d) 137, 164. Cf. Laskin J. in Curr v. The Queen (1972) 26 D.L.R. (3d) 603, 616, where he suggested, but did not decide, that s. 1(b) might be read “as wholly conjunctive so as to make the declaration of the protection of the law a reinforcement of the requirement of equality before the law”, and the same judge's dissenting opinion in Lavell and Bedard (1973) discussed infra pp. 76-78. It would clearly be more helpful, on the present analysis, if the conjunction were to work in the direction suggested by Allen I.A. rather than that suggested by Laskin J.

60 Tarnopolsky, The Canadian Bill of Rights (1966) 218Google Scholar. “If such an imprecise clause were deemed necessary in the Bill of Rights because of its noble sentiment, it would have been better to use the American wording, and then to rely for guidance upon some of the American experience.”

61 Seervai, op. cit. supra n. 55, 255.

62 Unless one regards adjectives like “peacable” (assembly) and “unreasonable” (searches) in Amendments I and IV of the U.S. Constitution as amounting to such, or of course the ability retained by the Canadian Parliament (by virtue of s. 2 of the Bill of Rights) to preface any new legislation with the directive that it is to apply “notwithstanding the bill of Rights”.

63 Similar policy considerations are reflected in the “special measures” clauses of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, sponsored by the U.N. Article 1.4 provides that:

Special measures taken for the sole 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 fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, 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.

This has been used as a basis for the qualifying provision with respect to Aborigines and Torres Strait Islanders in the Racial Discrimination Bill introduced into the Australian Parliament in November 1973: infra nn. 63-67.

64 E.g. Barbados, Art. 23(3)(e).

65 E.g. Id. Art. 21(2).

66 E.g. Id. Art. 23(6).

67 E.g. Id. Art. 23(3) (b).

68 The phrase also appears in Art. 6 of the French Declaration of 1789, and to that extent may be regarded as incorporated by reference in several other modern constitutions which “proclaim adherence” to that Declaration, i.e. those of the former French dependencies Cameroon, Ivory Coast, Mauritania and Niger.

69 Lang, “Private Law Aspects of the Irish Constitution” (1971) 6 Irish Jurist (N.S.) 237, 248Google Scholar.

70 Ross-Spencer v. Master of the High Court (1972) (unreported), discussed in Aguda, “Discriminatory Statutory Provisions and Fundamental Rights Provisions of the Constitutions of Botswana, Lesotho and Swaziland” (1972) 89 S.A.L.J. 299Google Scholar. Cf. the recent Canadian decision on similar legislative facts, Canard v. Attorney General of Canada (1972) 30 D.L.R. (3d) 9, discussed infra pp. 73-74.

71 Akar v. Attorney-General of Sierra Leone [1969] 3 All E.R. 384, 395 per Lord Guest. Lord Guest was in fact in a minority on this point, but the contrary majority opinion (389 per Lord Morris) was neither confidently nor forcefully expressed. See also Olivier v. Buttigieg [1966] 2 All E.R. 459.

72 14th Amendment, s. 1. There are additional guarantees relating specifically to voter equality in Amendments 15 (race), 19 (sex), 24 (wealth: failure to pay a poll tax is no bar) and 26 (age). At the time of writing a further (27th) amendment specifically guaranteeing equal rights for women was undergoing ratification by the States: “Equality of rights under the Jaw shall not be denied, or abridged by the United States or by any State on account of sex”. This has been argued to be necessary, nowithstanding the generality of the 14th Amendment, for three reasons viz“The failure of the Courts to apply the fourteenth Amendment vigorously to sex discrimination, the practical difficulties in relying on ordinary legislation to achieve equal rights quickly and uniformly, and the pervasiveness of sex discrimination in our country”, Bayh, “The Need for the Equal Rights Amendment: (1972) 48 Notre Dame Lawyer 80, 90-91. Also Martin, “The Equal Rights Amendment: an Overview” (1972) 17 St.L.U.L.J. 1Google Scholar.

73 There is a huge mass of case law and commentary on the 14th Amendment Equal Protection Clause. The following survey articles are particularly useful: Tussman and tenBroek, “The Equal Protection of the Laws” (1949) 37 Calif. L.R. 341; “Developments”, op. cit. supra n. 9 and, for more recent developments, Gunther, “Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection” (1972) 86 Harv. L.R. 1; “The Decline and Fall of the New Equal Protection: A Polemical Approach” (1972) 58 Va.L.R. 1489; and “Equal Protection in Transition: An Analysis and a Proposal”. (1973) 41 Fordham L.R. 605. A sound but somewhat laborious account of equal protection doctrine in both the U.S. and India may be found in Huang-Thio, op. cit., supra

74 Frank, and Munro, “The Original Understanding of 'Equal Protection of the Laws'” [1972] Wash.U.L.Q. 421, 471Google Scholar. This is an updated version of their well known earlier article in (1950) 50 Col.LR. 131.

75 This legislation, just as does the 14th Amendment itself, raises acute questions as to the conformity with it of “protective” legislation discriminating in favour of certain groups. E.g. Spritzer, “Equal Employment Opportunity versus Protection for Women: A Public Policy Dilemma” (1972) 24 Ala.LR. 567Google Scholar.

76 So far as federal legislation is concerned, it should be mentioned that although the 14th Amendment applies only to the States the essence of the equal protection clause has been applied to the Federal Government through the 5th Amendment due. process clause: Bolling v. Sharpe (1954) 347 U.S. 497.

77 Yick Wo v. Hopkins (1885) 118 U.S. 356, the Supreme Court invalidating an ordinance regulating wooden laundries which had been applied so as to discriminate systematically against Chinese proprietors. In the same year the Court accepted without discussion that corporations were persons within the meaning of the Amendment: Santa Clara County v. Southern Pacific Railroad Co. (1886)

78 (1896) 163 U.S. 537.

79 (1954) 347 U.S. 483.

80 United States v. Carolene Products Co. (1938) 304 U.S. 144.

81 Lindsley v. Natural Carbonic Gas Co. (1911) 220 U.S. 61, 78, “A classification having some reasonable basis does not offend against [the equal protection] clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality”.

82 (1938) 304 U.S. 144, 152-153, n. 4;

83 Thus Goesaert v. Cleary (1948) 335 U.S. 464, a decision which continues to infuriate feminists. The Supreme Court upheld a Michigan statute which denied bar-tending licences to all women except the wives and daughters of male bar owners. The most probable purpose was to monopolize jobs for men, but the Court attributed to the legislature the conceivable, but unlikely, purpose of avoiding social and moral problems which might be attendant upon having women serving in bars—or at least those women not already corrupted (or alternatively, better able to withstand the evils) by virtue of their family associations with the trade. Cf. the early West Australian arbitration decision raising barmaid's wages to barman's level. “ … if the effect of making no distinction between the wage is that barmaids are more or less abolished in hotels, I think the result would be a good one”, W.A.A.R. 112, cited in Sykes, and Glasbeek, , Labour Law in Australia (1972) 617Google Scholar.

84 “Developments”, op. cit. supra n. 9, 1081.

85 These terms are explained supra pp. 43-44.

86 “Developments”, op. cit. supra n. 9, 1084.

87 Morey v. Doud (1957) 354 U.S. 457. The Illinois statute here struck down required licences from firms issuing money orders, but exempted American Express.

88 Beginning with the opinion of Douglas J. in Skinner v. Oklahoma ex. rel. Williamson (1942) 316 U.S. 535 that a statute providing selectively for the sterilization of felons could not be justified: procreation was (541) “one of the basic civil rights of man”.

89 Id.

90 Reynolds v. Sims (1964) 377 U.S. 533.

91 Shapiro v. Thompson (1969) 394 U.S. 618.

92 Griffin v. Illinois (1956) 351 U.S. 12.

93 McLaughlin v. Florida (1964) 379 U.S. 184.

94 Takahashi v. Fish & Game Commission (1948) 334 U.S. 410, Graham v. Richardson (1971) 403 U.S. 365.

95 Harper v. Virginia State Board of Elections (1966) 383 U.S. 663 (voting), Griffin v. Illinois (1956) 351 U.S. 12 (refusal of appellate review to those unable to pay for a transcript).

96 Dunn v. Blumstein (1912) 405 U.S. 330, 363-364, per Burger C.J. dissenting.

97 Supra n. 76.

98 Hirabayashi v. United States (1943) 320 U.S. 81, Korematsu v. United States (1944) 323 U.S. 214. See also Tussman and tenBroek, op. cit. supra n. 73, 352.

99 “Developments”, op. cit. supra n. 9, 1174; and also supra pp. 38-42.

1 San Antonio Independent School District v. Rodriguez (1973) 36 L.Ed. 2d 16 discussed infra p. 66. Cf. 45ff. per Powell J. for the majority, 81ff. per Marshall J. dissenting,

2 Goesaert v. Cleary, supra n. 83, Hout v. Florida (1961) 368 U.S. 57. Also supra n. 72 on the proposed equal rights Amendment.

3 Dandridge v. Williams (1970) 397 U.S. 471 upholding such legislation on a cursory application of the passive test. Marshall J. in dissent (508ff.) showed, by employing both the criteria of over-inclusion and under-inclusion, that the challenged legislation was in fact irrationally discriminatory.

4 In DeFunis v. Odegaard (1974) 42 U.S. Law Week 4578, reported as this article was going to press, the Court once again avoided the issue by holding moot, in a 5/4 split decision, the challenge of an unsuccessful white applicant to a law school admissions procedure creating a special quota for blacks. At first instance the Washington Superior Court, applying active review Supreme Court style, had upheld the white student's challenge, but on appeal to the State's Supreme Court this was reversed by a majority decision holding that there was in fact a “compelling state interest” which would justify preference to blacks: 507 P. 2d 1169. On finally reaching the United States Supreme Court the case was declared technically moot because the petitioner, who had been tentatively admitted pending final judicial resolution of his claim, was due to complete his studies that term. Some remedial racial classifications have received judicial approval from some lower courts in jury selection and employment cases, and from the Supreme Court itself ( though not with any attention to analytical difficulties) in school integration cases (infra n. 5). Cf. also the statement in United States v. Jefferson County Board of Education (1966) 372 F.2d 836, 876 (cert. denied (1967) 389 U.S. 840):

The Constitution is both colorblind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is colorblind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination.

The cases are gathered in Young, “Compensatory Racial Reapportionment” (1972) 25 Stanford L.R. 84, 85-86CrossRefGoogle Scholar. Also MacMeekin, , “Red, White and Gray: Equal Protection and the American Indian” (1969) 21 Stan. L.R. 1236CrossRefGoogle Scholar, especially 1244.

5 E.g. Katzenbach v. Morgan (1966) 384 U.S. 641, discussed in “Developments”, op. cit. supra n. 9, 1110. Also Swann v. Charlotte-Mecklenburg Board of Education (1971) 402 U.S. 1, 18-19 and especially North Carolina State Board of Education v. Swann (1971) 402 U.S. 43, 46 where the court over-ruled a cynically colourblind anti-Busing statute with the words:

Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy. To forbid, at this stage, all assignments made on the basis of race would deprive school authorities of the one tool absolutely essential to fulfilment of their constitutional obligation to eliminate existing dual school systems.

6 (1971) 404 U.S. 71.

7 (1972) 406 U.S. 164.

8 (1972) 405 U.S. 438.

9 Royster Guano Co. v. Virginia (1920) 253 U.S. 412, 415.

10 Gunther, op. cit. supra n. 73, 21.

11 “Equal Protection in Transition.” op. cit. supra n. 73, 627.

12 “The Decline and Fall of the New Equal Protection.” op. cit. supra n. 73,

13 (1973) 36 L.Ed. 2d 16.

14 Vigorous dissents came from four Justices, led by Justice Marshall, the most prominent advocate for a “newer” equal protection approach.

15 In subsequent cases in the remainder of the 1972-1973 term the Court did not entirely retreat from ground already broken: Weber v. Aetna Casualty (supra n. 7) was followed in New Jersey Welfare Rights Orianization v,. Cahill (1973) 36 L.Ed. 2d 543, and four judges in Frontiero v. Richardson (1973) 36 L.Ed. 2d 583 followed the line taken in Reed v. Reed (supra n. 6), though another four judges in that case moved to the position that sex was a suspect classification. White J. made a clear statement of the “substantial relation” test in his dissenting judgment in Vlandis v. Kline (1973) 37 L.Ed. 2d 63. But the two-tier approach was undoubtedly reigning: see especially United States Dept. of Agriculture v. Moreno (1973) 37 L.Ed. 2d 782 and the two alienage cases, Sugarman v. Dougall (1973) 37 L.Ed. 2d 853 and In re Griffiths (1973) 37 L.Ed. 2d 910 following Graham v. Richardson (supra n. 94).

16 Dunn v. Blumstein (1972) 405 U.S. 330,335.

17 Per Wells C.J.H.C. in R. v. Smythe (1971) 17 D.L.R. (3d) 389, 408, Wells C.J.H.C. does not make it clear just how these differences are relevant. Laskin J. in Curr v. The Queen (1972) 26 D.L.R. (3d) 603, 615 seems to regard it as important that the 14th Amendment on its face governs state rather than federal law, whereas the Canadian Bill of Rights is applicable only to federal law.

18 Per Tysoe J.A. for the majority of the Court of Appeal of British Columbia in R. v. Gonzales (1962) 32 D.L.R. (2d) 290, 296.

19 (1969) 9 D.L.R. (3d) 473. The facts of this case are too well known to bear elaboration: briefly, the Court held, by a 6 to 3 majority, that s. 94(b) of the Indian Act which prohibited an Indian from being intoxicated off a reserve was inoperative as in conflict with the Bill of Rights s. 1 (b), as it was not an offence for anyone other than an Indian to be intoxicated otherwise than in a public place. A similar clause in this section—relating to the possession of liquor—had been litigated in Gonzales (supra n. 18). The Drybones case is important, of course, not only for its re-definition of “equality before the law”, but for its interpretation of s. 2 of the Bill of Rights as having a controlling force rather than merely stating canons of construction,

20 (1969) 9 D.L.R. (3d) 473, 484.

21 Id. 486-487. Hall's own view of the proper scope of the clause has often been thought to be more sweeping than that of Ritchie J. (quoted infra n. 22) but in fact he said no more than that all the fundamental rights should be enjoyed equally without discrimination, without tackling the point really in issue, viz the definition of the particular fundamental right to “equality before the law and the protection of the law”.

22 Id. 485-486:

It appears to me to be desirable to make it plain that these reasons for judgment are limited to a situation in which, under the laws of Canada, it is made an offence punishable at law on account of race, for a person to do something which all Canadians who are not members of that race may do with impunity; in my opinion the same considerations do not by any means apply to all the provisions of the Indian Act.

Just before this, however, he had said, “It may well be that the implementation of the Canadian Bill of Rights by the Courts can give rise to great difficulties, but in my view full effect must be given to the terms … thereof”, id. 485.

23 Id. 484.

24 Supra n. 22.

25 The reports available to the writer were the Dominion Law Reports to (1973) 38 D.L.R. (3d) Part 3, and the Canadian Criminal Cases to (1973) 13 C.C.C. (2d) Part 4; also an advance copy of the important recent Supreme Court decision in Attorney-General of Canada v. Lavell, Isaac v. Bedard, (1973) 38 D.L.R. (3d) 481. All the cases in question are cited in the text and notes following.

25 The cases are R. v. Chapman and Currie (infra n. 39), Canard v. Attorney-General of Canada (infra n. 43), Re Froman (infra n. 59), Isaac v. Davey (infra n. 46), R. v. Burnshine (infra n. 40) and R. v. Pudlock (1973) 9 C.C.C. (2d) 256. In Pudlock, the “denial of equality” point was something of an afterthought in an opinion cast primarily in terms of the guarantee of a “fair hearing”. Here the Crown was held to be entitled to no more jury challenges than was the accused. “Equality before the law” was construed in its traditional English sense as demanding, inter alia, impartiality in the administration of justice.

27 In R. v. Smythe (1971) 17 D.L.R. (3d) 389 the Ontario Court of Appeal rejected on this ground (in a brief oral judgment, semble adopting in its entirety the opinion of Wells C.J.H.C. at first instance), an argument based on the discretion of prosecutors to proceed either summarily or by indictment for certain Income Tax Act offences, with a greater possible penalty in the latter event. On appeal to the Supreme Court, (1971) 19 D.L.R. (3d) 480, 484 the argument was dismissed on a different ground, that the legislation by itself did not “place any particular person or class of persons in a condition of being distinguished from any other member of the community … “. Also R. v. Roestad (1971) 5 C.C.C. (2d) 564 where the Court of Appeal's decision in Smythe was applied to reject an argument based on differential punishments for “dangerous sexual offenders” and Re Shea [1970) 5 C.C.C. 107 (mentioned infra text to n. 29) where the view was expressed that Drybones was authority only for the particular provision of the Indian Act with which it dealt.

28 As Laskin J. put it in his leading majority judgment in Curr v. The Queen (1972) 26 D.L.R. (3d) 603, 611, “federal legislation which does not offend s. 1 in respect of any of the prohibited kinds of discrimination may none the less be offensive to s. 1 if it is violative of what is specified in any of the paras. (a) to (f) of s. 1. It is, a fortiori, offensive if there is discrimination by reason of race so as to deny equality before the law”. In the cases discussed below it will be seen that the Courts have been prepared to at least contemplate the possibility of the illegality of discrimination based on inter alia, age, citizenship, place of residence and the nature of the offence with which the person is charged, as well as the more obvious grounds of race and sex. In R. v. Natrall (1972) 32 D.L.R. (3d) 241 (leave to appeal to Supreme Court denied [1973) Supreme Court Bulletin (S.C.B.) 92), the British Columbia Court of Appeal indicated that it might be willing, in an appropriate case, to declare inoperative a law discriminating on the basis of wealth. The law there challenged, which provided for gaol in default of payment of fines in certain situations, was upheld because the wealth-discrimination this might entail was not “routinely” imposed: the courts were obliged by the legislation to take into account the defendant's capacity to pay.

29 Re Shea [1970] 5 C.C.C. 107, 115.

30 Re Schmitz (1972) 31 D.L.R. (3d) 117, 119 per Collier J.

31 Re C.F.R.B. Ltd and Attorney-General of Canada (1972) 30 D.L.R. 279, 283, perGrant J.

32 Re C.F.R.B. Ltd and Attorney-General for Canada (1973) 38 D.L.R. (3d) 335, 343, per Kelly J.A.

33 Also R. v. Boardwalk Merchandise Mart Ltd. (1972) 10 C.C.C. (2d) SO (leave to appeal to Supreme Court of Canada denied: [1972] S.C.B. 412), where the Appellate Division of the Alberta Supreme Court rejected the trial judge's decision that Sunday observance legislation discriminated against non-Christians, without giving any reasons at all, other than the citation of a pre-Drybones authority.

34 R. v. Lavoie (1970) 16 D.L.R. (3d) 647; R. v. Beaulne, ex parte Latreille (1970) 16 D.L.R. (3d) 657; R. v. Ferguson (1972) 7 C.C.C. (2d) 240. In 1972 the Criminal Code was amended, in the light of these cases, to provide that “Every person who solicits any person in a public place for the purpose of prostitution is guilty of an offence”. With extraordinary tenacity, however, an Ontario County Court Judge held, in R. v. Patterson (1972) 9 C.C.C. (2d) 364 that the new provision applies only to women. I am indebted to Leslie Katz, of Sydney University Law Faculty, for, inter alia, this esoteric information.

35 (1972) 31 D.L.R. (3d) 465.

36 (1972) 6 C.C.C. (2d) 385.

37 Id. 388.

38 Smith, “Regina v. Drybones and Equality Before the Law” (1971) 49 Can. Bar. Rev. 163Google Scholar, especially 185-187. McIntyre J. refers to this article in approving, but general, terms.

39 (1970) 2 C.C.C. (2d) 237.

40 (1973) 13 C.C.C. (2d) 137 (leave to appeal to Supreme Court granted).

41 Branca and Nemetz, JJ.A. Especially 155 per Branca J.A.

42 (1970) R.S.C., c.1-6. The first version of this legislation was enacted in 1868, the year after Confederation.

43 (1972) 30 D.L.R. (3d) 9 (leave to appeal to Supreme Court granted).

44 A difficulty with this, given that the Canadian Bill of Rights applies only to Federal laws, is that the discrimination in question only became apparent by comparing the federal Indian provision with provincial (not other federal) legislation. The question of what laws it is legitimate to compare for the purpose of discovering inequalities is a vexed one, not yet authoritatively resolved. Also R. v. Whiteman (No. 1) (1971) 13 C.R.N.S. 178 (Sask. Dist. Ct) and the discussion thereon in Katz, “The Indian Act and Equality before the Law” (1973) 6 Ottawa L.R. 277Google Scholar; also Sanders, “The Indian Act and the Bill of Rights” Ottawa L.R. (forthcoming). I am grateful to Professor Sanders for the opportunity to read this paper, which is relevant to a number of matters discussed in this section, prior to its publication.

45 (1972) 30 D.L.R. (3d) 9, 21 per Dickson J.A. for the Court.

46 (1973) 38 D.L.R. (3d) 23.

47 Id. 37.

48 Attorney-General of Canada v. Lavell, Isaac v. Bedard (1973) 38 D.L.R. (3d) 481.

49 Re Lavell and Attorney-General of Canada (1971) 22 D.L.R. (3d) 188.

50 Bedard v. Isaac (1971) 25 D.L.R. (3d) 551.

51 Ritchie J., Fauteaux C.J.C., Martland and Judson JJ.—with Pigeon J. concurring in the result; Laskin, Abbott, Hall and Spence JJ. dissenting.

52 The Court did not seem to be moved by the consideration that if Parliament chose to expressly declare that its Indian legislation was to “operate notwithstanding the Canadian Bill of Rights” (in accordance with the formula specified in s. 2 of the Bill of Rights), then it could exercise its constitutional authority without any hindrance at all.

53 Attorney-General of Canada v. Lavell, Isaac v. Bedard (1973) 38 D.L.R. (3d) 481, 494.

54 Id. 495.

55 Id. 507.

56 Id. 502.

57 As put to the Court by Professor Sanders, counsel for the National Indian Brotherhood and other intervenant Indian organizations, and foreshadowed by him in “The Bill of Rights and Indian Status” (1972) 7 U.Br.Columb.L.R. 81.

58 See Reed v. Reed (1971) 404 U.S. 71, 76 (supra text to n. 6) where the United States Supreme Court agreed that some kind of priority classification in determining who should administer estates was legitimate, but held that automatically favouring men over equally qualified women was “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause … “.

59 Cf. Re Froman (1973) 33 D.L.R. (3d) 676 the only Canadian case (albeit one of somewhat lowly authority) where a reasonable classification doctrine has really been applied. Here another of the complex status-definition provisions of the Indian Act was in question. Illegitimate children of status Indian males had Indian status, but illegitimate children of status Indian women were subject to a protest and liable to be deregistered if it was determined that the father was a non-Indian. Fanjoy Co.Ct.I., held that although this was discrimination on the basis of sex, it was not unlawful: “The fact that the protest procedure is available with respect to paternity and not with respect to maternity is simply recognition of the facts of life. Maternity is always identifiable. Paternity always has a degree of uncertainty, even for legitimate issue. No Legislature can change the fundamental biological difference between men and women”, 682-683. It is arguable, however, that the biological considerations here applied were not the relevant ones, since the scheme of the Act is to preserve Indian status not by blood but by kinship ties; using the male rather than the female to determine status thus has to be justified, again, by possibly unjustifiable administrative and sociological considerations. Further Sanders op. cit. supra n. 44 p. 74.

60 Attorney-General of Canada v. Lavell, Isaac v. Bedard (1973) 38 D.L.R. (3d) 481, 510.

61 Id. 492-493, Ritchie J. (e contra Laskin J. 510-511) makes it clear that discrimination, to be actionable, must be tied to a denial of one or more of the specific rights laid out in sub-sections (a) to (f) of s. 1. Also discussion supra pp. 48, 52-53.

62 Human Rights Bill 1973, introduced into the Senate, 21 November 1973. This bill lapsed upon the proroguing of the 2nd Session of the 28th Parliament. It is anticipated that the bill will be re-introduced, with some modifications, during the 29th Parliament.

63 Racial Discrimination Bill 1974, read a first time in the Senate, 4 April 1974, being the re-introduction with some modifications of a bill introduced into the Senate, 21 November 1973. This bill lapsed upon the dissolution of the 28th Parliament. It is anticipated that the bill will be re-introduced during the 29th Parliament, 2nd (Budget) Session.

64 Discussion supra pp. 48-49.

65 Clauses 9(1) and 10(1) respectively.

66 This reads, in the relevant part, as follows:

10(1) If, by reason of, or a provision of, a law of Australia 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 … or enjoy a right to a more limited extent … then, nowithstanding anything in that law, persons of the first-mentioned race … shall, by force of this section, enjoy that right to the same extent …

67 The relevant provision, based on Article 1.4 of the Racial Discrimination Convention supra n. 63 p. 55 reads as follows:

8(1) This Part does not apply to, or in relation to the application of, special measures (including provisions of laws of Australia or of a State or Territory or any acts done under such provisions) conferring rights on, or providing benefits for, Aboriginals or Torres Strait Islanders.

68 Though something might be made, in this respect, of clause 9 of the Bill, which provides that “Persons belonging to ethnic or linguistic minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture or use their own language”.

69 The Australian Parliament has no constitutional power to legislate with respect to human rights or civil liberties as such. For legislation of the kind here under consideration it is obliged to rely on the s. 51(xxix) external affairs power, which has been held capable of supporting the domestic implementation of certain international treaty obligations: R.v. Burgess; Ex Parte Henry (1936) 55 C.L.R. 608. The treaty here being relied upon is the 1966 International Covenant on Civil and Political Rights, which Australia signed in December 1972. For the Human Rights Bill to have a chance of surviving constitutional challenge, it must be seen to be conforming to the general terms—if not the exact letter—of that Covenant. Similar considerations apply, it may be noted, with respect to the Racial Discrimination Bill, which is largely based on the 1965 Convention on the Elimination of All Forms of Racial Discrimination, though gaining some additional support from s. 51(xxvi) and (xxvii) of the Constitution.

70 Supra p. 48.

71 “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,”