#7099 - Race Power - Constitutional Law

Under CC s 51(26), the Cth has the power to make laws with respect the people of any race for whom it is deemed necessary to make special laws.

Under this power, a law will be valid if it relates to a race of people, discriminates between one or more groups and other groups, and the law is deemed necessary for that group.

The law must be deal with a particular race or races. A law dealing with the subject matter of race in general (eg Racial Discrimination Act) would not satisfy this requirement (Koowarta).

• The law can relate to a particular sub-group of a particular race (such as a particular community) (Kartinyeri).

• It is likely that the HCA would consider membership of a race as based on more than simply biology.

  • For example the legal definition of an Indigenous person is a person of indigenous descent who identifies as Indigenous and is accepted as such by the Indigenous community.

The law must discriminate by treating the group the subject of the law differently to other groups. [Discuss on facts]

The law must be deemed necessary by Parliament (WA v Commonwealth).

Kartinyeri

• Gaudron J (and in a less direct way Kirby J) indicated in Kartinyeri v Commonwealth that there is a purposive element to the race power in that laws had to be ‘necessary’ and therefore appropriate and adapted for the needs of a particular race.

• Gummow and Hayne JJ in Kartinyeri disagreed, stating that if a law was deemed necessary, the only time the law might not be valid under the race power is if it amounted to a manifest abuse of power.

  • This indicates that if Parliament did not actually think it necessary, this would be a manifest abuse.

  • It may be safer for the Cth to state in the preamble or purpose clause to the law what the purpose of the law is and why it is deemed necessary to make the law (to avoid being accused of a manifest abuse of power.

It is uncertain whether this is required, or whether a detrimental law could also be authorised.

Tasmanian Dam case: Murphy, Brennan and Deane JJ in obiter indicated the power could support only laws benefitting a particular race, while Gibbs CJ in obiter indicated the power could support both beneficial and detrimental laws.

WA v Commonwealth (the Native Title Act Case): The race power was permitted to enact beneficial native title law; there was no consideration of whether it would also permit detrimental laws.

The four judges of the HCA in Kartinyeri who addressed the scope of the race power came to different conclusions.

Gummow and Hayne JJ indicated s 51 (26) permits all laws singling out a specific race, with the possible exception of laws that are so prejudicial and irrational as to amount to a manifest abuse of public trust.

Kirby J held that the power could not be used to impose a disadvantage on Indigenous people for two type of reason.

• Originalist: the intention or purpose of the voters behind the 1967 amendment was to benefit Aboriginal people.

  • Problems with this argument (* points probably most important in why other judges disagreed)

    • There is a presumption in favour of a broad interpretation

    • Awkward interpretation to say the section has one effect (beneficial) for Aborigines, and another effect (beneficial + detrimental) for all others.*

    • All that was deleted was an exception of Aborigines, leaving the substantial part of the section intact: this indicates its meaning could not have been changed. *

    • The motivation for conferring power on the Cth is not necessarily the same as the nature of the power conferred: may entrust wide power to a person and expect them to use it for good purposes

    • The government made statements that it did not want to change the nature of the power

    • Whether a law is beneficial or detrimental to Aboriginal people may be a non-justiciable matter (it should not be decided in courts), therefore it may be better that all laws be allowed

• Non-originalist: the meaning of the power should depend upon contemporary values and IL/human rights. The CC should be interpreted so as not to permit laws like the ‘Nuremberg laws’ targeting Jewish people in Nazi Germany, and interpreting the race power as permitting detrimental discriminatory racial laws opens up the possibility of these laws being passed.

  • Problems with argument

    • Allows the courts to change the constitution without following the process in CC s 128, based on their own subjective ideas of contemporary values

    • Denies the plenary power of the Commonwealth conferred by the ‘POAGG’ phrases in ss 51 and 52; cannot insert a bill of rights judicially.

    • The content of the Constitution should not vary according to changes in

      • public opinion (Gleeson CJ in Singh)

      • international law (McHugh J in Al-Kateb v Godwin). If it did the executive could simply change the Constitution by entering treaty obligations.

    • ‘Nuremberg’ argument

      • unhelpful ‘horror hypothetical’ argument since narrowing the race power is not going to prevent a tyrannical government passing laws; if judges object a government who passes such laws would simply remove them. Parliament must be trusted to act responsibly.

      • Other powers such as the Territories power would still authorise tyrannical discriminatory laws

Gaudron J (in obiter, as she accepted a separate ‘repeal’ argument as deciding the case) held that the power could not be used to impose a disadvantage on Indigenous people.

• the 1967 amendment did not restrict s 51(26).

• S 51(xxvi) does not authorise special laws affecting rights and obligations in areas in which there is no relevant difference between the people of the race to whom the law is directed and the people of other races

• The law must be reasonably capable of being viewed as appropriate and adapted to the difference asserted

  • She noted only laws directed towards remedying disadvantage were likely to be authorised on this basis, since imposing disadvantage on a racial minority could not be viewed as appropriate and adapted to addressing their different circumstances.

• A law that did not pass her test would be a ‘manifest abuse’ (disproportional laws seen as manifest abuse; wider definition that Gummow and Hayne JJ).

Original usage

• As enacted, the race power was intended to authorise laws to the detriment of people of certain races (such as restricting the freedom of ‘Kanakas’, people from China or the Pacific Islands brought in to work).

Literal interpretation

• A literal interpretation of the power could lead to the conclusion that it was intended to be used beneficially (the word “for” can indicate doing something for benefit); however this is inconsistent with the original intended purpose of the section and therefore would likely be unsustainable in court.

Overall, it is highly uncertain whether a detrimental law may be authorised under the race power. If a preferable approach must be chosen, I would prefer Gaudron J’s approach in Kartinyeri. While it was distinctive and not approved by other judges, this seems to be a tenable interpretation of the power that may be accepted by future High Court justices and that may largely prevent discriminatory laws affecting minorities.

• However, contrary to her assertion, it is easy to imagine instances where her approach would not prevent disadvantage being imposed on minorities. To give an example, the Cth may decide that the relevant difference is that one race or racial sub-group is more prone to criminal acts than another, and therefore place discriminatory restrictions on the freedoms of that group to reduce the occurrence of this (this has arguably already been done by the legislation authorising the Northern Territory Intervention, though argument could also be made that the legislation is beneficial; and as was the intended original use of the power).

The Federal Government’s Expert Panel last year recommended a number of recommendations for constitutional amendments. While there are no plans to implement them immediately, it may be necessary to consider whether these changes would affect the validity of laws passed under the race power in future.

• Repeal of s.51(xxvi)

  • The panel recommended this repeal as the power is not appropriate in a modern constitution, particularly if it includes power to legislate for the detriment of races

• Insertion of a new section 51Aentitled ‘Recognition of Aboriginal and Torres Strait Islander peoples’ with text as below
  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...