In their 2012 Report, the Expert Panel on Constitutional Recognition of Indigenous Australians presents a compelling case for the repeal of section 51(xxvi) of the Constitution (the ‘race power’) and its replacement with a new head of power that would only enable legislation beneficial to Indigenous Australians.[1]

There are, nonetheless, good reasons that the current ambit of section 51(xxvi) should be examined. The most salient is that amendments to the Constitution are infrequent and cannot be relied upon: only eighteen percent of referenda have been successful and the last successful referendum was in 1977.[2] In addition, any alteration to the Constitution requires serious consideration as to how it would be effected and what formulation of words would be used.[3] It would therefore be preferable if s51(xxvi) did not require amendment.

As I will show in this essay, however, the ambit of the race power as held in Kartinyeri v Commonwealth[4] is very wide, and appears to have few effective limitations, such that it cannot really be said to hinder the plenary power of the Commonwealth Parliament to make laws with respect to the people of any particular race, irrespective of whether they are for their benefit or detriment. So long as a law is with respect to “the people of any race”, it is “deemed necessary”, and it is a “special law”, it will be valid, with the caveat that it must not be a “manifest abuse” of Parliamentary power. In addition, any suggestion that s51(xxvi) is limited to laws for the benefit of the race of people to whom they relate appears to have little basis.

“The People Of Any Race”

One set of criteria for a valid law under s51(xxvi) is the requirement that it is a law with respect to “the people of any race”. Several aspects of this limitation have been examined in the case law, with its full extent being recognised in Kartinyeri v Commonwealth.[5] The first real consideration of this was in Koowarta v Bjelke-Petersen.[6] There, the Court held that “the people of any race” meant any particular race rather than all races, and as a result, the Racial Discrimination Act 1975 (Cth) could not be supported by the race power as it applied to people of all races.[7] To hold otherwise would contradict the requirement that a law be deemed “special”.[8] In the Tasmanian Dam Case,[9] several justices examined in dicta the question of what was meant by “race”. There, Brennan J, with whom Deane and Murphy JJ agreed, contended with the inherent difficulty of defining “race”, but concluded that in any account, it is “not a precise concept”, and so is reasonably flexible.[10]

In Kartinyeri v Commonwealth,[11] the High Court addressed the question of race in response to the plaintiffs’ submission that “the people of any race” meant the entirety of that race, and thus, the Ngarrindjeri people who were the subject of the Bridge Act,[12] being a mere sub-group of the Aboriginal race, did not qualify as a race and the Act was invalid.[13] Gummow, Hayne, Gaudron and Kirby JJ all considered this and unanimously affirmed the statement of Deane J in the Tasmanian Dam Case that “race” is “apposite to refer to any identifiable sub-group among Australian Aborigines”[14], citing precedent from the Native Title Act Case[15] as well as concerns about how such a construction wound hinder the utility of the section and as a matter of textual construction made little sense.[16]

To conclude, the requirement that a law made pursuant to the race power must pertain to “the people of any race” has few implications for the plenary power of Commonwealth Parliament to make laws so long as they refer to people of a particular race.

“Deemed Necessary”

The requirement that a law pursuant to s51(xxvi) be “deemed necessary” appears on its face to be an important source of potential limitation of the plenary power of the Commonwealth Parliament to make laws with respect to the people of any particular race, but the history of its application demonstrates a reluctance to use this part as a check on Parliamentary power. The true approach, as taken in the Native Title Act Case[17] is that “it is clear that that judgment is for Parliament, not the Court”, and such sentiments were affirmed by Gummow, Hayne, Gaudron and Kirby JJ in Kartinyeri v Commonwealth.[18] The reasoning behind this is that if the Court directly involves itself in the business of deciding what is “necessary”, it will be forced to make a “political value judgment”, which is undesirable for two reasons.[19] Firstly, the Court is unsuitable to answer questions of a political nature. [20] The second is that the Parliament is a legitimate democratic institution with a right to make decisions such as this, while the Court is not.[21] The only limitation on this total deference to Parliamentary discretion is the “manifest abuse” test, which will be discussed later.[22]

“Special Laws”

In its approach to the requirement that laws under s51(xxvi) be “special”, the High Court has consistently construed the special requirement as a limitation on the Parliament’s power.[23] As we shall see, however, such a construction does not place particularly robust limits on the plenary power of the Parliament with respect to the people of any particular race.

In Karinyeri v Commonwealth,[24] the Court was called on to construe this part in response to an argument advanced by the plaintiff that “special” gave the subsection a “purposive aspect” similar to the defence power, and thus, a valid act pursuant to s51(xxvi) had to be one that did not discriminate against the race in question.[25] There, the majority affirmed[26] the construction of “special” taken in Koowarta v Bjelke-Petersen.[27] In that case, the Court held that the “special” quality referred to in s51(xxvi) pertained to the differential operation of the act in question, and therefore only a law which had a differential operation between races could be considered a “special” law.[28] To take the formulation of Stephen J, the law had to be special “in the sense of having some special connexion with the people of any race”, with the caveat that ‘any race’ must mean any particular race.[29] Thus, the balance of precedent suggests that this construction will be preferred. From the perspective of limiting the powers of the Commonwealth Parliament, such a construction does little. A special law may be advantageous or disadvantageous, and the sorts of discriminatory problems which reform of s51(xxvi) seeks to mend are in many respects a consequence of the creation of “special laws”. Thus, the requirement that laws pursuant to s51(xxvi) are “special laws” does not limit the plenary power of the Commonwealth Parliament to make laws with respect to the people of any particular race in any substantial manner.

The “Manifest Abuse” Test

In Kartinyeri v Commonwealth,[30] the “manifest abuse” test was elucidated somewhat, but the conclusions drawn by the Court do not suggest that it is particularly limiting to the powers of the Parliament. The test originated in the majority judgment in the Native Title Act Case,[31] but in those circumstances the Court did not consider it important enough to warrant more than a passing comment.[32] In Kartinyeri v Commonwealth[33] the majority positioned the “manifest abuse test” as a caveat to the discretion of the Parliament to “deem necessary” a law under s51(xxvi).[34] They held that although such deeming is a judgment for the Parliament, the Court still reserves a supervisory jurisdiction to strike down laws enacted in “manifest abuse” of the power granted.[35]

Given the nature of the “manifest abuse” test, it is fortunate that the Court has not been placed in the position where it has had to apply it, but the unfortunate corollary is that there has been little discussion of its extent. Suffice to say that in the circumstances of Kartinyeri v Commonwealth,[36] none of their Honours thought that the Bridge Act[37] was a “manifest abuse” of the race power.

Scholarship, however, provides some guidance. Stephen Gageler SC writing extra-judicially, begins, like their Honours in Kartinyeri v Commonwealth,[38] with the requirement that a s51(xxvi) law be “deemed necessary” by Parliament.[39] Parliament must identify the mischief and then regulate it with a law that it considers appropriate, using “necessity” as its guiding criterion. Accordingly, a law will only be a “manifest abuse” of s51(xxvi) “where the Parliament fails to form the necessary judgment at all or fails to form that judgment on rational grounds”, which he equates to Wednesbury unreasonableness.[40] Gageler’s comparison with Wednesbury unreasonableness suggests a very high burden to satisfy, and this is consistent with comments made in Kartinyeri v Commonwealth.[41] Gummow and Hayne JJ in their analysis of the operation of the Bridge Act,[42] for instance, showed a high deference to the Parliament and a preference not to intervene in its ability to deem legislation “necessary”.[43] Similarly, Kirby J conceived of its operation only where a law is “extreme”, “outrageous”, or “completely unacceptable”.[44]

Gaudron J gave a more developed analysis of the “manifest abuse” test. Although agreeing that the “deeming necessary” is for Parliament, her Honour argued that in order to form such a view:

“There must be some difference pertaining to the people of the race involved or their circumstances or, at least, some material upon which the Parliament might reasonably form a political judgment that there is a difference of that kind”.[45]

She concluded that as a consequence of this, the rights affected by a s51(xxvi) law must be relevant to the racial difference, and the law must be reasonably adapted to the purpose of correcting or managing that difference.[46] This analysis is consistent with Gageler’s conception of “manifest abuse”: if there is no basis whatsoever for the decision, then it must be so irrational that no reasonable person could reasonably have have made it.[47]

Whether “manifest abuse” is really so important or demanding a limitation, however, was seriously questioned by Kirby J in his dissent in Kartinyeri v Commonwealth.[48] There, Kirby J illustrated what he termed the “unworkability of the ‘manifest abuse’ test” by proposing that it would not be able to prevent certain discriminatory legislation passed in Apartheid South Africa and Nazi Germany.[49] Although the verity of such claims can be questioned, it is to at least some extent true that the “manifest abuse” test is only really capable of application in cases that are quite extreme, and also may be particularly vulnerable to being bypassed by “gradually escalating discrimination”.[50]

In continuing on from this criticism, “manifest abuse” also provides little basis for preventing the suspension or deprivation of rights where Parliament can point to some basis for it, even if such a basis is not acceptable to much of the public. One need only look to the Northern Territory National Emergency Response (‘the intervention’) to see that the deprivation of rights can quite easily be justified, and indeed can even be justified as beneficial for the group subject to the deprivation.[51] Therefore, if the aim is to prevent the suspension or deprivation of rights which should be inviolable, then “manifest abuse” is not an effective limitation on the power of the Parliament.

Only For Their Benefit?

The most promising limitation on the race power that has emerged pertains to whether the power will support laws that enact a detriment to the racial group in question. Such a thesis has been mentioned in dicta on multiple occasions,[52] and the textual basis lies in the word “for” in s51(xxvi) and whether it means “in respect of” or “for the benefit of”.[53] Nevertheless, Kirby J was correct when he remarked that before Kartinyeri v Commonwealth[54] “it is impossible to derive…any sure conclusion as to…whether [s51xxvi)] is confined to the benefit of the people of any race or to laws which do not adversely discriminate against them”.[55] What is very clear, based on the Convention Debates and Quick and Garran’s Annotated Constitution of the Australian Commonwealth, is that the original drafters of the Constitution had no intention to limit the race power to beneficial laws, so any serious attempt to advance this argument has relied on the thesis that the 1967 amendment of the Constitution somehow altered this.[56] Kartinyeri v Commonwealth,[57] was critical because the plaintiffs directly challenged the Hindmarsh Island Bridge Act 1997 (Cth) on the basis that s51(xxvi) only supported legislation supportive of the particular race of people in question because the 1967 amendment had evinced an intention that it should be so limited.[58]

On this question, her Honour Gaudron J examined the amendment, as well as the “yes” case and pamphlet put to the electorate.[59] Looking at the amendment, she concluded that the amendment was a “minimalist” one, and “operated to place [Indigenous Australians] in precisely the same constitutional position as the people of other races”, subject to both beneficial or detrimental laws under s51(xxvi).[60] In considering the “yes” case for the referendum, she concluded that the referendum did not evince an intention to alter the operation of the act in permitting both beneficial and detrimental legislation, with which Gummow and Hayne JJ concurred.[61] Kirby J rejected this view, holding that the 1967 amendment demonstrated “the will of the Australian Parliament and people that the race power should be significantly altered”, and therefore “to construe [s51(xxvi)] as authorizing the making of laws detrimental to, and discriminatory against, people on the ground of race, and specifically Aboriginal race, would be a complete denial of the clear and unanimous object of the Parliament in proposing the amendment.”[62]

Despite this strong dissent, the lack of support from the other judges, the “yes” case prepared for the 1967 amendment and the “minimalist” nature of the amendment itself are convincing evidence to the contrary. Thus, despite being very promising as a limitation of Parliamentary power while still allowing for beneficial legislation to be passed, something especially important in the case of Aboriginal Australians, the limitation is not one that has been accepted by the High Court.

Conclusions

In conclusion, the ambit of the race power since Kartinyeri v Commonwealth[63] is very wide. The elements of the power- that the law relate to any particular race, that it be a “special” law, and that it be “deemed necessary”- do not operate to limit the plenary power of the Parliament in any substantial way. In truth, the relation to particular races and “special” qualities is not just unhelpful, but out of step with Australian values. Furthermore, the “manifest abuse” test is also not robust enough to protect human rights when faced with intentional Parliamentary action prompted by a perceived problem. Finally, the argument that the 1967 amendment to s51(xxvi) altered it was shown in Kartinyeri v Commonwealth[64] to be ill-conceived. Without any such limiting mechanisms, the race power as it currently stands provides the Commonwealth Parliament with almost plenary power to make laws with respect to people of any particular race, irrespective of whether those laws are for their benefit or detriment, and if limitation is desired, it must be done by referendum.

Bibliography

Blackshield, Tony and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (The Federation Press, 5^th ed, 2010).

Commonwealth v Tasmania (1983) 158 CLR 1 (‘The Tasmanian Dam Case’).

Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel, 2012.

Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007 Explanatory Memorandum 2007 (Cth).

French, Robert, ‘The Race Power: A Constitutional Chimera’ in H.P. Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press 2003) 180.

Gageler, Stephen, ‘The Races Power Problem: The Case for Validity’ (1998) 9 Public Law Review, 270.

Hindmarsh Island Bridge Act 1997 (Cth).

Kartinyeri v Commonwealth (1998) 195 CLR 337.

Koowarta v Bjelke-Petersen (1982) 153 CLR 168.

Twomey, Anne, ‘The Race Power- Its Replacement and Interpretation’ (2012) 40 Federal Law Review 413.

Western Australia v Commonwealth (1995) 183 CLR 373 (‘The Native Title Act Case’).