What is the current legal position relating to the ambit of the Commonwealth’s legislative power pursuant to the “race power”, s 51 (xxvi)? Discuss with particular, but not exclusive, reference to Kartinyeri v Commonwealth. In your answer, consider the extent to which, if at all, it is true to say that the Commonwealth Parliament has plenary power to make laws with respect to the people of any particular race, irrespective of whether those laws are for their benefit or detriment.

The race power in s 51 (xxvi) of the Constitution confers on the Commonwealth the power to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”.[1] At stake in the interpretation of the power is the breadth of laws that can validly be enacted under it. Since Kartinyeri v the Commonwealth, the precise position of the power is uncertain, with the High Court yet to rule conclusively on its ambit.[2] Much of the uncertainty is grounded in the question as to which materials should be used in the power’s interpretation. That consideration includes calculating the weight to be accorded to the 1967 referendum, when the sub-section became the only original s 51 power to have been amended by the people at a referendum since Federation. Once plenary, the scope of the power today may be considerably more limited. This essay examines these considerations of constitutional interpretation, and three principal ways in which the race power can be said to operate: as a plenary power that possesses both a detrimental and beneficial scope; as a power to discriminate only beneficially in the interests of a race; and as a power of general application, but one which draws limitations from the Australian Constitution.

Removing the race power as a part of constitutional recognition

In early 2012, the Expert Panel on Constitutional Recognition of Indigenous Australians delivered its final recommendations to the Commonwealth Government to “give effect to Indigenous constitutional recognition”.[3]

Accepting the race power as discriminatory, the Panel proposed that Indigenous constitutional recognition necessarily included “removing those provisions from the Constitution [that] contemplate racial discrimination”.[4] The policy objective was separately explained by Professor George Williams: “Aboriginal people cannot meaningfully be recognised in the Australian Constitution unless the capacity to discriminate on the basis of their race against them is removed from the document.”[5] The precise legal position of the race power assumes its significance in this context: a power of only beneficial scope can be an effective mechanism for ameliorating disadvantage, but a race power that can be used to negatively discriminate reinforces the message that it is “acceptable to tolerate the disadvantage faced by Aboriginal and Torres Strait Islander peoples”.[6]

Kartinyeri v the Commonwealth: the uncertain status of the race power

Kartinyeri v the Commonwealth is the case often cited as having confirmed that the race power authorises laws that might discriminate to the disadvantage of a race.[7] The case concerned the validity of Commonwealth legislation that purported to vary the Heritage Protection Act[8] and prohibit the making of a declaration for the protection of Aboriginal land in the Hindmarsh area in South Australia. The plaintiff submitted that the Bridge Act,[9] was invalidly enacted under the race power as it negatively discriminated against the Ngarrindjeri people, and that power only permitted positive – or ‘beneficial’ – discrimination.

The exact content of the power after Kartinyeri must be described as uncertain. The High Court did not reach a conclusive majority on the plaintiff’s submissions, with Brennan CJ and McHugh J finding the Bridge Act a valid partial repeal of the Heritage Protection Act; Gummow and Hayne JJ favouring a plenary interpretation of the race power; and Kirby and Gaudron JJ finding that the power was, in effect, to be used for beneficial purposes only.[10] The Kartinyeri judgment contains “a three way division” on the character of laws valid under the power’s exercise, with Brennan CJ and McHugh J having considered it improper to address the scope of the power at all.[11] James Spigelman, who appeared for the plaintiff, has also recently expressed that while the existence of the ‘beneficial’ and ‘detrimental’ scope of the race power is an available interpretation of that case, the Kartinyeri “judgment is by no means clear in this respect”.[12]

Is the race power a plenary power?

The powers assigned to the Commonwealth Parliament in s 51 are, as has been received into Australian law from R v Burah,[13] plenary and “as large and of the same nature as those of the imperial Parliament itself”.[14] A law validly enacted within a s 51 power is “plenary, supreme and unchallengeable” and is subject only to the Constitution itself.[15] Heads of power contained in the section need to be construed “liberally, not narrowly and pedantically”, but with all the “generality that the words used admit”.[16] The race power is a s 51 power. It should, therefore, be construed liberally and generally.

This starting position lends itself inevitably to the conclusion that the Commonwealth can enact laws for beneficial purposes under the power.[17] However, the full scope of legislation that can be enacted is “very much at large”.[18] In Koowarta, Stephen J said that the content of laws permissible under the power might be “benevolent or repressive”.[19] Gibbs CJ in the same case said that the Commonwealth can “validly discriminate against, as well as in favour, of the people of a particular race”.[20] These judicial pronouncements echo the interpretation of Professor Sawer, who expressed in 1967 that while the original power denied Indigenous Australians the special protection of the Commonwealth, it “also saved them from the sort of laws against their interests” then in mind of the Convention delegates.[21] The power as adopted at Federation extended to enable the Commonwealth to “localise”, “restrict” and “confine” subjects of s 51 (xxvi) laws.[22] As Harrison Moore observed, the power permitted the Commonwealth to enact negatively discriminatory laws previously enacted by the colonial legislatures.[23] The essence of laws made under the power is discrimination.[24]

Is the race power limited to exclusively ‘beneficial’ discrimination?

It was submitted in Kartinyeri that, while once plenary, today the race power only operates to support advantageous racial discrimination. The Kartinyeri judgment illustrates the methods of constitutional interpretation the High Court may take into account in this respect in a future race power case. The plaintiff enlisted non-originalist methods of interpreting the Constitution, described by Heydon J as focused on trying to reconcile the “friction between [the Constitution’s] origins at a particular time and the need for it to operate in what are thought to be very different times”.[25]

The proposition that the race power today only extends to cover beneficial laws was then said in Kartinyeri to derive substantially from the 1967 referendum. The referendum removed from s 51 (xxvi) the parenthetical phrase: “the people of any race (other than the aboriginal race in any State) for whom it is deemed necessary to make special laws”. The plaintiff argued unsuccessfully, inter alia, that the race power had been infused with a new “founding intention” in 1967 that the power be used only to the benefit of a particular race.

The effect of the 1967 referendum

The interpretation advanced by the plaintiff in Kartinyeri had earlier received support from members of the Court in Koowarta. Murphy J noted obiter that in s 51 (xxvi) “for means for the benefit of. It does not mean with respect to, so as to enable laws intended to affect adversely the people of any race.”[26] Gaudron J later lent support to that view.[27] Brennan J also commented in Tasmania v Commonwealth that s 51 (xxvi) initially contemplated adverse discrimination, but that 1967 affirmed “the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial”.[28]

However, comments in support of the exclusive beneficial scope have only been provided obiter, and Gaudron J in Kartinyeri explicitly retreated from her earlier position.[29] Her Honour adopted an originalist interpretation of the section and looked at the discriminatory character of the power. If the conclusion of Gummow and Hayne JJ in Kartinyeri is correct, which Gaudron J shared, the 1967 referendum did not change the text or meaning of the Constitution as was advanced by the plaintiff, but only removed an exception from it.[30] The 1967 referendum did not then, in its functional effect, involve a reshaping of the power, but an enlarging of it; namely, to include in its scope Indigenous Australians.[31]

As a question of constitutional interpretation, the proposition that the race power today is an exclusively positive one remains on unstable ground. Professor Twomey has recalled that the methods of constitutional interpretation are well established, but: “when it comes to the interpretation of a constitutional amendment, matters are different. We have very little jurisprudence on how this should be done.”[32] In Kartinyeri, the plaintiff submitted that it was the parliamentarians enacting the relevant legislation[33] and an unprecedented and unrepeated 90.77 per cent of the population approving it in line with s 128 of the Constitution,[34] that restarted the race power with its new founding intention. It has been observed, however, that the ‘yes’ case submitted to the Australian people under the terms of the referendum act contained no clause to that effect.[35] Neither did the Bill passed by Parliament. Additionally, it is well-documented that the referendum campaign itself did not focus on the content of the race power and the notion that it should become a beneficial one only.[36] In fact, Professor Sawer warned that the inherent discriminatory character of the power warranted its removal altogether and not its extension to the Indigenous population. Imputing a particular intention to the Australian people in these circumstances could constitute a conclusion incompatible with the actual facts. It is also the case that the argument is plainly inconsistent with the constitutional text, which contains no such restriction.[37]

It is the foregoing arguments, and the outcome in Kartinyeri, that have prompted the Expert Panel and most supporters of the recognition movement to now call for the power’s removal.

Qualifications to the power: the race power today

The precise scope of the race power today is uncertain in several respects. Though earlier High Court judgments emphasise the strength of the plenary character of the power, the arguments as to the force of the 1967 referendum have not developed as significantly as they could in future cases, and were not conclusively rejected in Kartinyeri.

A more important set of qualifications to the race power concerns the accepted constitutional position that s 51 powers are ‘subject to the terms of the Constitution itself’. The High Court has long accepted that s 51 powers come with the gloss provided in the preambulatory words to that section, which confers the race power on the Parliament “subject to this Constitution”. French CJ, writing extra-curially post-Kartinyeri, summarised the characteristics of a law valid under s 51 (xxvi) as needing to be: a law with respect to the people of any race; a special law; deemed necessary; and, for the people of any race.[38]

Firstly, the High Court has observed that ‘race’ is not a precise term. It extends to capture groups with a shared identity, “common history, religion, spiritual beliefs or culture”, and may also be inferred by reference to biological origins and physical similarities.[39] Secondly, in order to be special, a law under s 51 (xxvi) must possess some “differential operation”.[40] In that way, “special qualifies law”; a law is special where it confers a benefit or imposes a disadvantage on a particular race.[41] Thirdly, the element of necessity is decided at the discretion of the Parliament.[42] Finally, legislation enacted for all races – rather than a race or races particularly – is not a valid exercise of the race power.[43] As per Stephen J in Koowarta, the power does not authorise the enactment of a general law like the Racial Discrimination Act that is about race, but not for a particular race.[44]

These qualifications were applied by Gaudron J in Kartinyeri and used to limit the plenary character of the race power. For example, her Honour concluded that a law that Parliament deems “expedient or appropriate” would not be a valid use of the race power; it must be “necessary”.[45] Her Honour also suggested that a race power law could not be used to alter rights or obligations which inhere in Australian citizens as citizens – for the question of race then has no relevant bearing.[46]

A further view considered in Leeth v the Commonwealth,[47] and echoed by Gaudron J in Kartinyeri, is that the race power is in effect a purposive power. Both judgments applied the test that legislation be “appropriate and adapted” to achieve the end in question.[48] Gaudron J drew a direct parallel between the race power and the defence power, the latter of which has been accepted as a power that fluctuates to meet needs.[49] This construction would add a further limitation to the race power. While the race power is plenary, her Honour acknowledged it would be difficult to conceive of how a law “operating to the disadvantage of a racial minority would be valid”. However, these interpretations – particularly on the submitted “purposive aspect” of the race power – were rejected by Gummow and Hayne JJ.[50]

Manifest abuse

The High Court has left open the question as to whether a law enacted in manifest abuse of the race power could be held as invalid, that is, whether the court retains some supervisory jurisdiction to make that determination.[51] While not yet adopted, the test could offer protection in the event that the race power is used in a seriously discriminatory manner. Kirby J in the minority in Kartinyeri rejected the manifest abuse test as unworkable. His Honour did not believe that the test was capable of invalidating incremental discriminatory legislation and, therefore, it would not prove an effective mechanism for limiting ‘seriously detrimental and prejudicial’ race laws.[52]

            It is clear that the limiting concepts considered have not been applied by the High Court as a coherent body of law regulating the exercise of the race power. French CJ was skeptical about the role of these limitations on the race power and instead advocated that the power be removed at a referendum.[53]

Conclusion

            The weight of judicial and scholarly pronouncements on the race power suggests that it appears to remain a plenary power, albeit subject to the limitations identified and those present within the terms of the head of power itself. This would permit the Commonwealth to enact legislation that not only benefits a particular race, but legislation that could also be of detriment. A different conclusion awaits reconsideration by the High Court of s 51 (xxvi) and the interpretations raised in argument in Kartinyeri. Alternatively, the question of the ambit of the power need not run coextensive with the debate on the power’s merits. The Expert Panel concluded that the power authorises beneficial and detrimental racial discrimination. Many High Court justices and academic commentators have also reached that conclusion. As recommended by the Panel, it is open to the Parliament to construct a new power and submit it for approval to the Australian people. A referendum on Indigenous constitutional recognition presents a challenge – and an opportunity – to adopt a new constitutional framework for securing Indigenous advancement and closing the gap in disadvantage, while excluding the prospects of institutional racial discrimination.