LWB242 Constitutional Law

LWB242 Constitutional Law • Lecture 6: Race Power Photo: “Recognise Logo” by Recognise AU on Flickr http://www.flickr.com/photos/93094022@N02/8466449957/ For more information visit http://www.recognise.org.au/

Overview • Reading: textbook • Podcast: Overview of the race power • Reading: Kartinyeri v Commonwealth(the Hindmarsh Islandcase) • Online quiz • Reading: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution • Survey: Referendum

Race Power 51. The Parliament [has] power, subject to this Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to:- … (xxvi) the people of any race, other than the aborginal race in any State, for whom it is deemed necessary to make special laws;

Introduction • Under this head of power, the Commonwealth can legislate with regard to specific classes of people who fall within the category of race. • In 1901 the Commonwealth Parliament enjoyed no specific legislative power over indigenous Australia. The original wording of this power included the words “other than the aboriginal race in any State”. • The 1967 referendum removed the specific reference to aboriginal people and repealed s 127, which provided that “In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.” • There are currently several proposals to amend the Constitution again: • In December 2010, following nominations by the public, the Australian Government announced the membership of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples. • After a period of consideration, discussion and consultation with all Australians, the Panel developed options for formally recognising Aboriginal and Torres Strait Islander peoples in the Constitution. They provided their Report to government on 19 January 2012.

Introduction • In Kartinyeri v Commonwealth (the Hindmarsh Islandcase), Gummow and Hayne JJ identified the three elements of this power: • that the laws were made for the “people of any race”; • that there laws were “deemed necessary”; • that they were “special laws”.

“people of any race” • Treating “race” as conclusively identifying a discrete group of people is highly problematic. • However, in Commonwealth v Tasmania (the Tasmanian Damcase), Brennan J considered at 243-4 how the word “race” should be approached: • “‘Race’ is not a term of art; it is not a precise concept … There is, of course, a biological element in the concept.” • Brennan J went on to quote a report on several findings from UNESCO studies on race and racial discrimination: • “all [people] living today belong to a single species and are derived from a common stock”; • “pure races in the sense of genetically homogenous populations do not exist in the human species”; • “there is no national, religious, geographic, linguistic or cultural group which constitutes a race ipso facto”. • Therefore, “[t]he biological data … stand in open contradiction to the tenets of racism. Racist theories can in no way pretend to have any scientific foundation ...” • “Popular notions of 'race' … have frequently disregarded the scientific evidence. Prejudice and discrimination on the ground of race, colour or ethnic origin occur in a number of societies, where physical appearance – notably skin colour – and ethnic origin are accorded prime importance.” • A purely technical approach is accordingly not appropriate.

“people of any race” • Tasmanian Dam case per Brennan J at 243-4: • “Race” is accordingly given a wide, non-technical meaning. • “Though the biological element is … an essential element of membership of a race, it does not ordinarily exhaust the characteristics of a racial group. Physical similarities, and a common history, a common religion or spiritual beliefs and a common culture are factors that tend to create a sense of identity among members of a race and to which others have regard in identifying people as members of a race. As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par. (xxvi).” • Tasmanian Dam case per Deane J at 273-4 : • “people of any race” includes “all that goes to make up the personality and identity of the people of a race: spirit, belief, knowledge, tradition and cultural and spiritual heritage”. • See also Shaw v Wolf(1998) 83 FCR 113.

“deemed necessary” • For a law to be supportable under s 51(xxvi) it must be”deemed necessary”. • In Western Australia v Commonwealth(the Native Title Actcase), the High Court held at 462 that “Whether it was ‘necessary’ to enact that law was a matter for the Parliament to decide and, in the light of Mabo [No 2], there are no grounds on which this Court could review the Parliament's decision, assuming it had power to do so. ” • See also the Hindmarsh Islandcase.

“special laws” • Section 51(xxvi) does not provide power to make laws with respect to race generally. • Since the 1967 amendment, there have been four main cases that considered the purpose of the race power: • Koowarta v Bjelke-Petersen; • Commonwealth v Tasmania (the Tasmanian Damcase); • Western Australia v Commonwealth (the Native Title Actcase); • Kartinyeri v Commonwealth(the Hindmarsh Islandcase).

“special laws” • Koowarta v Bjelke-Petersen • Queensland refused to sell a lease of Crown land to an Aboriginal group pursuant to state policy. Koowarta brought a claim under the Racial Discrimination Act 1975(Cth). Queensland challenged the validity of the Racial Discrimination Act. • Held, the Racial Discrimination Actwas not supported by the races power. • Gibbs CJ at 187: • “It is not possible to construe par. (xxvi) as if it read simply ‘The people of all races’.” • “a law which applies equally to the people of all races is not a special law for the people of any one race.” • Stephen J at 209: • “Although it is people of "any" race that are referred to, I regard the reference to special laws as confining what may be enacted under this paragraph to laws which are of their nature special to the people of a particular race. It must be because of their special needs or because of the special threat or problem which they present that the necessity for the law arises; without this particular necessity as the occasion for the law, it will not be a special law.”

“special laws” • Tasmanian Damcase • One of the purposes of the legislation (which prevented Tasmania from building a dam in a world heritage site) was to protect important Aboriginal sites. One of the questions before the High Court was whether the races power extends to protecting the cultural heritage of a particular race, even if it was also of significance to the rest of humanity. • Held, by a majority, that it was sufficient that the laws dealt with matters of “particular significance” to the Aboriginal people. • Brennan J at on the scope of the power at 242: • “As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par. (xxvi). The kinds of benefits that laws might properly confer upon people as members of a race are benefits which tend to protect or foster their common intangible heritage or their common sense of identity. Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide. The advancement of the people of any race in any of these aspects of their group life falls within the power.”

“special laws” • Native Title Act case • The Western Australian Government sought to challenge the Native Title Act 1995 (Cth) on the ground that it was not supported by s 51(xxvi) because it was really a law interfering with the states’ powers over land. • Held, that a law supported by the races power need not give special rights or impose special obligations on the people of a particular race. Mason CJ, Brennan, Deane, Toohey, Gaurdon and McHugh JJ at 460-1: • “A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race. The law may be special even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race .” • The Native Title Act was clearly “‘special’ in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the ‘people of any race') a benefit protective of their native title. Perhaps the Act confers a benefit on all the people of those races. The special quality of the law thus appears. ”

Can parliament make detrimental laws? • Section 51(xxvi) was created to allow the Commonwealth to control migrant workers. • Power as originally conceived “was thought to authorise the making of laws discriminating adversely against particular racial groups” (Tasmanian Damcase per Brennan J at 243). • “[Section 51] (xxvi.) was intended to enable the Commonwealth to pass the sort of laws which before 1900 had been passed by many States concerning 'the Indian, Afghan and Syrian hawkers; the Chinese miners, laundrymen, market gardeners, and furniture manufacturers; the Japanese settlers and Kanaka plantation labourers of Queensland, and the various coloured races employed in the pearl fisheries of Queensland and Western Australia.' Such laws were designed 'to localize them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came'.” (Geoffrey Sawer, "The Australian Constitution and the Australian Aborigines" (1966) 2(1) Federal Law Review 17). • In Koowarta, Murphy J at 242 expressed the view that “[i]n par (xxvi) ‘for’ means ‘for the benefit of’ ... not ... ‘with respect to’”. • Similarly, in the Tasmanian Damcase, Murphy J stated at 180 that the section "‘authorises any law for the benefit, physical and mental, of the people of the race for whom Parliament deems it necessary to pass special laws”. • In the Tasmanian Dam case, Brennan J at 243 considered that the 1967 amendment of s 51(xxvi) was “an affirmation of the will of the Australian people ... that the primary object of the power is beneficial”. • See Kartinyeri v Commonwealth(the Hindmarsh Islandcase), where the High Court had an opportunity to deal with the question directly.

Activity Reading: Kartinyeri v Commonwealth (the Hindmarsh Islandcase)

Activity Online quiz

Activity Reading: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution

Activity Survey: Referendum

Referendum • That section 25 be repealed. • That section 51(xxvi) be repealed. • That a new ‘section 51A’ be inserted, along the following lines: Section 51A Recognition of Aboriginal and Torres Strait Islander peoples Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples; the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

Referendum • That a new ‘section 116A’ be inserted, along the following lines: Section 116A Prohibition of racial discrimination (1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin. (2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group. • That a new ‘section 127A’ be inserted, along the following lines: Section 127A Recognition of languages (1) The national language of the Commonwealth of Australia is English. (2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.

LWB242 Constitutional Law