Submission to the Expert Panel on Constitutional Recognition of Indigenous Australians
RE: Does the constitutional head of power for the Commonwealth to legislate with
respect to the people of any race mean that the Australian Constitution is racist?
SECTION 51(XXVI): THE RACE POWER EN ROUTE TO REPEAL
The Constitution was drafted more than a century ago to deny Indigenous Australians their
rights, their voice and even their identity as peoples.1The 1967 referendum supposedly rid the
Constitution of racist connotations with the amendment to remove “other than the aboriginal
race in any State”. However, the deletion of eight words is surely an inadequate gesture in
ensuring that racially discriminatory laws cannot be passed by the Commonwealth
government. It is argued that 1967 referendum actually opened up the possibility for
detrimental laws to be enacted for the Indigenous Peoples of Australia. Further, the continued
retention of the race power in Australia’s founding document demonstrates an apparent
transition from explicit manifestations of racism to more deep-seated institutional racism. The
nature of this ‘unofficial, unnoticed and unintended’ form of racism2 is among the reasons
that the potential for abuse of a racially-based head of power has gone largely undetected
over the years.
Submission Outline
In order to understand my proposal in context, this submission will first present an
examination of section 51(xxvi) in its’ historical context, and assess the implications of the
1967 referendum for subsequent interpretation. The terms of its construction has caused
ambiguity and uncertainty as to the appropriate High Court interpretation. Gaps in the
existing constitutional framework for protection of Indigenous Australians are identified for
which repeal of s 51(xxvi) is advocated.
Defining key terms
For present purposes, the collective term, ‘Indigenous Australians’ will be used to refer to the
First Nations’ people of Australia – Aboriginal and Torres Strait Islander peoples – no
1
2
Chapple, above n 17, 12.
Hollinsworth, above n 12, 47.
Submission to the Expert Panel on Constitutional Recognition of Indigenous Australians
offence intended.3Too many researchers on the topic of ‘racism’ assume that the phenomenon
is self-evident, so to clarify, the working definition for the purposes of this paper is:
Racism…the attempt by a dominant group to exclude a subordinate group from the material and
symbolic rewards of status and power.4
Consequently, ‘institutional racism’ is attempts to explain this shifting yet often denied
feature of modern societies. Jan Pettmandefines it as a ‘pattern of distribution of social goods,
including power, which regularly and systematically advantages some ethnic and racial
groups and disadvantages others’.5
Racist Beginnings: Section 51(xxvi) at Federation
In 1901, the only two references to Indigenous Australians in the body of the Australian
Constitution were couched in language of exclusion. Section 51(xxvi) denied Federal
Parliament power to make laws with respect to people of ‘the aboriginal race in any
State’6; and section 127 provided that aboriginal natives shall not be counted in reckoning
the numbers of the people in Australia.7 It is an undeniable fact that, despite the great
achievements of the founders in building a new nation, the Australian Constitution was
drafted at the Convention Debates of the 1890s against a background of explicit racism in
Australia. That racism was by no means directed solely at indigenous people, but they
were the victims, along with Chinese, South Sea Islanders and others whom Sir Edmund
Barton, Australia’s first Prime Minister and one of the first Judges of the High Court,
described at the 1898 Constitutional Convention as “people of coloured or inferior
races”.Rather the framers had in mind that Parliament should be able to deal with the
3
I understand that Aboriginal peoples and Torres Strait Islanders constitute many nations, language groups and
cultures, each with separate and distinct identities. The diversity of the cultures, languages, kinship structures
and ways of life of Aboriginal and Torres Strait Islander peoples is also recognised.
4
Peter Jackson, ‘The Idea of Race and the Geography of Racism’ in Peter Jackson (ed), Race and Racism:
Essays in Social Geography (Routledge, 1987) 3, 12.
5
Jan Pettman, ‘Whose Country is it Anyway? Cultural Politics, Racism and the Construction of being
Australian’ (1988) 9 Journal of Intercultural Studies 1, 3.
6
Australian Constitution s 51(xxvi) provided Federal Parliament with 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”.
7
On the background to s 127, see Greg Sawer, ‘The Australian Constitution and the Australian Aborigine’
(1966) 2 Federal Law Review 17, 25-30.
Submission to the Expert Panel on Constitutional Recognition of Indigenous Australians
members of any “alien race” after they had entered the Commonwealth.8 Sophie Chapple
suggests that perhaps the exclusion of Australia’s First People from s 51(xxvi), as
originally drafted, was not intended to be discriminatory- and in one sense advantageous
to them (although they remained at the mercy of the States).9 What is evident from the
convention debates is that the motivation and purpose for section 51(xxvi) was to control
and limit the rights of non-whites in Australia, and reflected an institutional presumption
that all non-white races were inferior to those of white Anglo-Saxon descent10 – it was
and is a racist provision.
1967 Constitutional Amendment
The response from the voters to the proposed amendments was an overwhelming ‘Yes’ vote
of 90.77%, and was seen as a turning point in Indigenous Australian relations with the
Commonwealth.11 Whilst the referendum was highly symbolic of a cultural change from
racial exclusion in Australia, the power’s continued retention also represented the
preservation of institutional racism because it simply extended the scope of the race power to
now include Indigenous Australians.12 The ambiguity that has resulted from varied
interpretations by the High Court post-1967, seem to substantiate the call for repeal of s
51(xxvi).
Construction and Judicial Interpretation of s 51(xxvi)
Section 51(xxvi) has received little use since federation, and has been almost exclusively
used in relation to Indigenous Australians,13 people originally excluded from operation of the
8
John La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972) 49-52; Official
Record of the Debates of the Australasian Federal Convention, Melbourne, 3 March 1898, 1788 (Isaacs).
9
Sophie Chapple, Race Power or Racist Power?S 51(xxvi) and Indigenous Australians (Honours Thesis, The
Australian National University, 1998) 9.
10
Official Record of the Debates of the Australasian Federal Convention, Melbourne, 3 March 1898, 1801
(Higgins). George Williams, ‘Race and the Australian Constitution: From Federation to Reconciliation’ (2000)
38 Orgoode Halle Law Journal 643, 649-650.
11
Attwood, above n 4, 54-70.
12
Robert French, ‘The Race Power: A Constitutional Chimera’, in HP Lee, & George
Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 180-208.
13
Aboriginal and Torres Strait Islander Act 2005 (Cth); Corporations (Aboriginal and Torres Strait Islander)
Act 2006 (Cth); Native title Act 1993 (Cth), Native Title Amendment Act 1998 (Cth); Native Title Amendment
Act 2007 (Cth); Racial Discrimination Act 1975 (Cth).
Submission to the Expert Panel on Constitutional Recognition of Indigenous Australians
law.14 Despite the deletion of eight significant words, an express power to make raciallybased laws should have no place in a Constitution. This stance is strengthened by the
demonstrable ambiguity resulting from the fracture of judicial opinion on the proper
interpretation of s 51(xxvi). In particular, the problematic areas of construction involve the
interpretation of ‘race’, ‘special law’ (to a lesser extent) and ‘for the people’, which serve as
barriers to the preferred interpretation as being solely ‘beneficial’ laws instead of ‘detrimental’
laws.
Does the method of interpretation determine the outcome?
To ascertain meaning of a constitutional provision, the High Court routinely utilises a number
of interpretative methods.15 It is often argued that the fractured outcomes from interpreting s
51(xxvi) can be attributed to the employment of different methods of constitutional
interpretation. Perhaps the most likely rationale for a more conservative approach to s
51(xxvi) (that is, that the power can be used for laws which discriminate both for and against
Indigenous Australians) is a legalistic, textual approach to interpretation. However, in the
Hindmarsh Island Bridge Case, Gaudron J and Gummow and Hayne JJ relied heavily on a
textual interpretation of s 51(xxvi), yet arrived at opposite conclusions on the scope of the
power. 16Additionally, Williams and Bradsen applied three different modes of constitutional
interpretation 17 - originalism (to give effect to the original intent of the law-makers that
enacted the subject matter), textualism (to give effect to the literal meaning of the words), and
the living force approach (to interpret the law in accordance with contemporary community
standards and expectations). They concluded that ‘under each of the three interpretative
models it appears there is a strong indication that the power can be used solely for the
‘benefit’ of Aboriginal people’.18 In contrast, Gummow and Hayne JJ came to a different
conclusion in the Hindmarsh Island Bridge Case, despite their use of orthodox methods of
constitutional interpretation. This supports the argument that the same method can be used,
and still result in varied outcomes.
Michael Detmold, ‘Original Intentions and the Race Power’ (1997) 8 Public Law Review 244.
Leslie Zines, The High Court and the Constitution (Federation Press, 5th ed, 2008) 341-386.
16
Although perhaps Gummow and Hayne JJ’s reluctance to limit s 51(xxvi) is just an example of the application
of the general principle that grants of legislative power in the Constitution should be construed broadly, as in
Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309.
17
John Williams and John Bradsen, “The Perils of Inclusion: The Constitution and the Race Power” (1997) 19
Adelaide Law Review 97, 99.
18
Ibid 120.
14
15
Submission to the Expert Panel on Constitutional Recognition of Indigenous Australians
This divergence and uncertainty of opinion points to removal of this subsection from the
Constitution. On its’ face, there is not the smallest warrant for any such interpretation. It is
moreover historical fact that the power was originally intended to be anything but beneficial.
Until amended in 1967, the race power could not support Commonwealth legislation with
respect to Aboriginal Peoples. Further, s 51(xxvi) is not, and can never be, a rational basis for
making laws. A practical, as opposed to logical, consequence of that situation is a high
likelihood that, contrary to the High Court’s aspirations, such a power will promote discord in
the general community rather than a somewhat mystical reconciliation. It is inherent in this
concept that, if the law confers a benefit on a group identified as a race, by whatever
characteristics are thought relevant, it simultaneously disadvantages everyone else. Exactly
the same thing happens the other way round if the law is oppressive; everyone else is
disadvantaged. Not discarding the good intentions or moral dimension in which so much
racial debate is immersed, it is time to acknowledge that as a basis of rational law-making,
race is of no practical utility whatsoever; it is inherently self-contradictory. An intended
benefit along racial lines cannot exist in a vacuum, any more than can an intended oppression.
Each immediately creates the other.
Loopholes in the Current System of Protection for Indigenous Peoples
Absence of a National Bill of Rights
Australia’s international standing as the only western democracy in the world without a
national Bill of Rights, 19 in combination with an almost limitless head of power that
authorises the enactment of racially discriminatory legislation, provides a recipe for manifest
abuse. 20 The 2007 Howard government legislative initiative is illustrative. The Northern
Territory National Emergency Response Act21was enacted and supplemented by several other
Larissa Behrendt, ’60 years of the Declaration of Human Rights’ (Speech delivered at the Amnesty
International Public Forum, Melbourne Town Hall, 4 July 2008).
20
United Nations Human Rights: Office of the High Commission for Human Rights (OHCHR), Report of the
Committee on the Elimination of Racial Discrimination, UN GAOR, 54thsess, UN Doc/A/54/18, 6-7.
21
Northern Territory National Emergency Response Act 2007 (“NTERA”) (Cth).
19
Submission to the Expert Panel on Constitutional Recognition of Indigenous Australians
Acts.22 While the ‘territories’ power was principally used to enact this legislation, 23 ‘race’
was the core issue involved since it exclusively targeted Aboriginal communities in the NT.24
Supposedly, the legislation’s purpose was to ‘improve the wellbeing of certain
communities’, 25 on the basis of findings from ‘systemic child abuse’ in Aboriginal
communities. 26 Interestingly, the legislation did not include any protection provisions
concerning children or Indigenous Australians. The NTERA was unprecedented because for
the first time since the enactment of the RDA, it expressly excluded the operation of the
RDA 27 and NT anti-discrimination legislation. 28 Additionally, the speedy passing of
Commonwealth bills to progress the NT ‘intervention’ demonstrated the potential for the use
and abuse of ‘race’-based authority against non-white groups of people, something that
caused both domestic29 and international uproar.30
Use of Alternate Heads of Power
Regarding the deletion of s 51(xxvi), several commentators raised concern that this would
remove existing protection provided to other racial groups. However, it is considered the
removal would actually enhance protection of racial groups by removing the constitutional
basis for the enactment of racist legislation. Removal would leave available to the Federal
Parliament the external affairs power31– and through it the International Convention on the
Elimination of All Forms of Racial Discrimination – as a source of power for the enactment
of non-discriminatory laws in respect of other racial groups. The scope of external affairs
power was once stated by Professor Howard to ‘enable the Commonwealth to legislate on an
indefinite number of subjects not otherwise within its powers provided that it is doing so
22
Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth); Families,
Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National
Emergency Response and Other Measures) Act 2007 (Cth).
23
Australian Constitution s 122.
24
Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 89 (Melham).
25
Northern Territory National Emergency Response Act 2007 (Cth) s 5.
26
Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 89 (Melham).
27
Northern Territory National Emergency Response Act 2007 (Cth) s 132.
28
Northern Territory National Emergency Response Act 2007 (Cth) s 133.
29
Wurridjal v Commonwealth of Australia [2009] HCA 2.
30
Daniel Flitton, ‘Australia to defend ‘racist’ Northern Territory Intervention at the UN’, The Age (online), 10
August 2010 <http://www.theage.com.au/national/australia-to-defend-racist-northern-territory-intervention-atthe-un-20100809-11u6b.html> 4.
31
Australian Constitution s 51(xxix).
Submission to the Expert Panel on Constitutional Recognition of Indigenous Australians
pursuant to an external affair’ (emphasis added).32 Furthermore, other heads of power could
be relied upon to implement laws concerning the treatment of Indigenous Australians.33
Conflict between section 51(xxvi) and International Legal Concern
In the international sphere, Australia’s retention of the race power directly contradicts the
principles of ‘dignity and equality’ and the requirement to eliminate all forms of racial
discrimination without delay34, promoted in the ICERD35to which Australia is a signatory.
The possibility of the race power authorising adverse discrimination of people of any race is
surely captured by the definition of ‘racial discrimination’ provided in the ICERD.36 The fact
that Australia became a signatory to the ICERD in 1969, relevantly demonstrates Australia’s
political intent to eliminate racism at the time of the 1967 Referendum. 37 However,
Australia’s repeated refusal to implement such international principles into domestic law
supports the overarching theme that historical events have propagated the institutionalised
concept of racism in existence today.
Concluding comments: Recommendation for Repeal of s 51(xxvi)
The Constitution was drafted more than a century ago to deny Indigenous Australians their
rights, their voice and even their identity as peoples.38The 1967 referendum supposedly rid
the Constitution of racist connotations with the amendment to remove “other than the
aboriginal race in any State”. However, the deletion of eight words is surely an inadequate
gesture in ensuring that racially discriminatory laws cannot be passed by the Commonwealth
government. It is argued that 1967 referendum actually opened up the possibility for
detrimental laws to be enacted for the Indigenous Peoples of Australia. Further, the continued
retention of the race power in Australia’s founding document demonstrates an apparent
32
Colin Howard, Australian Federal Constitutional Law, (2nd edition, Sydney, 1972) 442.
33
For example, the appropriations power (s 81) enables the Commonwealth to spend money `for the purposes of
the Commonwealth’. Funding for the assistance of interpreters, training programs, or aboriginal community
development projects generally could thus be legislated for.
34
Convention on the Elimination of All Forms of Racial Discrimination (ICERD),opened for signature on 21
December 1965, 982 UNTS 357 (entered into force 4 January 1969) art 2.1.
35
Ibid.
36
Convention on the Elimination of All Forms of Racial Discrimination (ICERD),opened for signature on 21
December 1965, 982 UNTS 357 (entered into force 4 January 1969) art 1.1.
37
French, above n 26, 199-204.
38
Chapple, above n 17, 12.
Submission to the Expert Panel on Constitutional Recognition of Indigenous Australians
transition from explicit manifestations of racism to more deep-seated institutional racism. The
nature of this ‘unofficial, unnoticed and unintended’ form of racism 39 is among the reasons
that the potential for abuse of a racially-based head of power has gone largely undetected
over the years. Accordingly it is clear that, with limited exceptions, the Commonwealth has
constitutional power to legislate with respect to Indigenous matters with the support of other
powers.The preservation of the races power has no place in the Constitution of a modern
democratic nation such as Australia. The only remedy in this country for the harm done to
our social and constitutional fabric by s 51(xxvi) is to complete the job of repealing it.
39
Hollinsworth, above n 12, 47.