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Michael Legg

Excerpted from: Michael Legg, Indigenous Australians and International Law: Racial Discrimination, Genocide and Reparations, 20 Berkeley Journal of International Law 387-435, 393-397 (2002) (192 Footnotes)

The starting point for any consideration of Australia's treatment of its indigenous population is the Australian Constitution. The Constitution gives the Federal Parliament power to legislate for Indigenous Australians pursuant to section 51(xxvi), or what is colloquially known as, "the race power." Under the race power, Parliament has power to make laws with respect to: "The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws."

In 1967, the Australian people passed a referendum amending section 51(xxvi) by deleting the words in italics. Prior to the referendum, only the States could legislate regarding Indigenous Australians. The force of international opinion in helping to foster the amendment was clearly expressed by the "Vote Yes Campaign," which stated that, "Australians are held collectively responsible for the treatment and conditions of the Aboriginal people by world opinion." The comments of the President of the Aborigines Advancement League that, "The image of Australia throughout the world is at stake. If it is not passed, Australia will be held up to ridicule," indicate that Indigenous Australians campaigning for the amendment recognized the force of international opinion.

On May 27, 1967, the Australian people as a nation, and in each of the six states, voted overwhelmingly to amend section 51(xxvi) and delete section 127 (which explicitly excluded Aborigines from the census). It was, and still is, the referendum that attracted the most support from voters of all the referenda in the history of Australia.

Since the amendment of section 51(xxvi), the High Court has had to interpret whether the race power authorizes laws prohibiting racial discrimination, establishing native title legislation, and, most recently, the validity of the Hindmarsh Island Bridge Act 1997 ("Bridge Act"). In doing so, the Court considered but did not have to decide whether section 51(xxvi) could be used for adverse discriminatory laws against Aboriginal people or could only be used in a beneficial manner. The Judge's opinions were largely dicta up until considering the Bridge Act as they chiefly relied on the external affairs power.

In Koowarta v. Bjelke-Petersen, the High Court rejected the Queensland Government's constitutional challenge to the enactment of Federal anti-racial discrimination legislation. Justice Wilson in dicta noted that:

The existence of racial barriers is repugnant to the ideals of any human society. In substance the preamble [of the International Convention on the Elimination of All Forms of Racial Discrimination] testifies to the view that it is essential to the peace and well-being of the international community that the laws of a community apply to all the members of that community regardless of race. In these days, one would not readily contemplate the use of the [race] power to the detriment of the people of a race.

Of the other judges that considered the race power, Justice Stephen saw the power as allowing laws which could be either benevolent or repressive, but commented that there was a new global concern for human rights and the suppression of racial discrimination. Justice Murphy interpreted the word "for" in section 51(xxvi) as meaning "for the benefit of." Chief Justice Gibbs felt that it would be a mistake to think that the race power could only be used for the protection of a particular race.

In The Commonwealth v. Tasmania (Tasmanian Dam case), the Court considered the Federal Parliament's ability to enact legislation to prevent a World Heritage listed piece of wilderness being flooded by the State of Tasmania damming the Franklin River. Justice Murphy spoke strongly for the race power being interpreted on the basis that the 1967 amendment took place so that Parliament could legislate for the maintenance, protection and advancement of the Aboriginal people, that is, for their benefit. Justice Brennan commented that the 1967 Referendum demonstrated "an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial." The dicta from Koowarta and the Tasmanian Dam case thus formed the precedent for the crucial case of Kartinyeri v. The Commonwealth (Hindmarsh Island Bridge case), where the race power was the central question.

In the Hindmarsh Island Bridge case, a group of the indigenous Ngarrindjeri people sought to prevent the construction of the Hindmarsh Island Bridge by invoking the Aboriginal and Torres Strait Island Heritage Protection Act 1984 (Cth) (Heritage Protection Act) to protect a sacred site. The Heritage Protection Act gave the Minister power to make declarations that preserved significant Aboriginal areas and objects. The Bridge Act prevented the Minister from declaring the area associated with the Hindmarsh Island Bridge.

The question for the High court was whether the Bridge Act was invalid because it was not supported by the race power or any other head of power. In the Hindmarsh Island Bridge case, the High Court found that the passing of the Bridge Act, which amended the Heritage Protection Act, was a valid exercise of power.

Chief Justice Brennan and Justice McHugh held in a joint judgment that, because Parliament had the power to enact the Heritage Protection Act under section 51(xxvi) of the Constitution, it had power to amend or restrict the operation of that same Act. That, they held, was what the Bridge Act did. They reasoned that "the power to make laws includes a power to unmake them," or repeal them.

Justice Gummow and Justice Hayne found that the enactment of the Bridge Act was a valid use of the race power. They found that the power could support laws that conferred both benefits and disadvantages. It was for Parliament to determine what measures were necessary for a particular race. The very nature of the power was discriminatory in that the requirements for special laws meant that a particular race would be subject to a law that had a differential operation on them as opposed to other races. Parliament's ability to make such a decision may be limited where the law is enacted in manifest abuse of the power or is in conflict with the rule of law. Justice Gummow and Justice Hayne agreed with Chief Justice Brennan and Justice McHugh on the operation of the Bridge Act on the Heritage Protection Act.

Justice Gaudron decided the question on the same basis as Chief Justice Brennan and Justice McHugh. The judgment reviewed both the original constitutional conventions that produced the Constitution as well as the surrounding materials from the 1967 referendum. In conducting this review, Justice Gaudron pointed out that the original intent of the race power was to authorize Parliament to make laws that discriminated against people of colored and alien races. Justice Gaudron considered that the effect of the 1967 referendum, as a minimalist change, was only to place Aboriginal people in the same constitutional position as people of other races.

However, Justice Gaudron also observed that the words "for whom it is deemed necessary to make special laws" limits the scope of the race power. The race power is broad enough to authorize laws that operate either to the advantage or disadvantage of the people of a particular race. The test of constitutional validity is not whether it is a beneficial law, but rather whether the law in question is reasonably capable of being viewed as appropriate and adapted to a real and relevant difference, which the Parliament might reasonably judge to exist. Whether a law would be necessary requires consideration of the current circumstances in which Aboriginal Australians find themselves. Justice Gaudron described these circumstances as being "circumstances of a serious disadvantage, which disadvantages include the material circumstances and the vulnerability of their culture." As a result, only laws directed to remedy that disadvantage could reasonably be viewed as appropriate and adapted to the current circumstances of Aborigines.

Justice Kirby found that the law was outside of the race power because it was detrimental to, and adversely discriminatory against, people of the Aboriginal race of Australia by reference to their race. Justice Kirby conducted a similar analysis to Justice Gaudron's by reviewing the historical enactment and amendment to the race power. Justice Kirby differed from Justice Gaudron in finding that the 1967 referendum required that the power only be used to benefit a particular race. Justice Kirby further expressed his view that the manifest abuse test, which was the mechanism by which the court was to protect the people from racist laws, was unworkable. Justice Kirby viewed the manifest abuse test as inadequate to prevent the enactment of laws such as those in Germany during the Third Reich or in South Africa during Apartheid.

Justice Kirby went on to state that, where the Constitution is ambiguous, the Court should adopt a meaning that conforms to principles of universal and fundamental rights. Justice Kirby pointed out that the international law of fundamental rights prohibits detrimental distinctions on the basis of race. The Constitution should not allow the enactment of laws that violate fundamental human rights and human dignity. Justice Kirby's approach to constitutional interpretation does not appear to have the support of any of the other members of the Court.

The Court's propensity to state fundamental values that oppose racism towards Aborigines, which was present in Koowarta and the Tasmanian Dam case, gave way in the Hindmarsh Island Bridge case to the simple repeal argument. In phrasing the question in terms of power rather than rights and by adopting a traditional interpretation of the relationship between constitutional heads of power and international law, the majority of the High Court avoided the explicit determination of rights. However, the Court's decision also proved immensely significant in the context of native title and its extinguishment by legislation, which is discussed below. The Australian Constitution's race power thus remains inherently discriminatory in nature and with the limits of allowable discrimination still to be determined.

[FNa1]. B.Com (Hons) (UNSW '93), M.Com (Hons) and LLB (UNSW '96), LLM (UC- Berkeley '01). Solicitor of the Supreme Court of New South Wales, Australia. An earlier draft of this paper was presented at a Berkeley Journal of International Law seminar February 28, 2001.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law