#7103 - Race Power Theory - Constitutional Law

• Until 1967 the power excluded the Australian Aborigines as a group for whom the Cth could make special laws (s 127 preventing Aborigines being counted in the census was also repealed at that time).

• S 51(26) was originally enacted to allow power over workers of non-Anglo ethnicity like ‘Kanakas’.

• In 1967 a referendum deleting these sections was carried overwhelmingly. This was presumably an expression of support for general unspecified beneficial outcomes for Indigenous people.

• Murphy, Brennan and Deane JJ in obiter indicated the power could support only laws benefitting a particular race

• Gibbs CJ in obiter indicated the power could support both beneficial and detrimental laws.

• The Native Title Act was found to have been validly enacted for the benefit of Indigenous Australians (by clarifying the rights of native title holders and providing protection against further inconsistent State laws).

• No need to consider whether detrimental aspect exists.

• SA govt approved a tourist facility on Hindmarsh and a bridge from SA mainland to the island.

• Local Aboriginal women sought a declaration from the Cth minister preventing the bridge construction, claiming it would desecrate sacred sites. The minister commissioned a report and then made a declaration protecting the site and preventing the bridge being built.

• After legal challenges, the original report was found defective and a second reporter had her appointment invalidated.

• A new federal government passed the Hindmarsh Island Bridge Act 1997 (Cth) exempting the project from the ministerial approval process, allowing it to proceed.

The Aboriginal group challenged the law, arguing:

1. the race power did not authorise laws discriminating between members of a racial group (such as distinguishing the Ngarrindjeri from other Indigenous people as was done here).

2. That any law enacted under the race power had to be for the benefit or advancement of people of any race, or at least not detrimental to those people.

• The Bridge Act was detrimental as it deprived the plaintiffs of rights they might have been able to enjoy under the Heritage Protection Act.

3. Alternatively it was argued that at least the power did not authorise laws detrimental to Aboriginal people, considering the goodwill associated with the 1967 constitutional alteration

Decision

Five justices rejected the challenge (three did this on the basis that if Cth has the power to enact legislation, it necessarily has the power to repeal part of it). Four justices made statements on the race power, but there was no majority with regard to its scope. As to the arguments:

1. Four justices (Gaudron, Gummow, Hayne and Kirby JJ) found that s 51(20) can support a law with respect to a sub-group of a particular race.

2. The justices were split on whether laws authorised by s 51(20) must benefit a particular race

Gummow and Hayne JJ held that the power could be used to impose a disadvantage on Indigenous people or subgroups of Indigenous people; here there was no manifest abuse as it was simply an acceleration of process (even if a Minister had declared the area protected, the declaration was subject to disallowance by either House of Parliament. S 51 (26 permits all laws which single 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 and Gaudron JJ held that the power could not be used to impose a disadvantage on Indigenous...