Should s. 51 (xxvi) of the Commonwealth Constitution be interpreted as authorising only legislation benefiting Aborigines?
Or Aborigines and Torres Strait Islanders?
Or “the peoples of any race”?
Why?
Should the question whether a law “benefits” such persons be justiciable?
If so, what criteria should be applied to determine it?

Introduction

The 1967 Constitutional amendment of s. 51 (xxvi) was not only the most successful referendum in Australian Constitutional history, but was also a significant moment in the history of relations between indigenous and non indigenous Australians. The referendum removed the words “other than the aboriginal race in any state” from s. 51 (xxvi), words that were perceived to discriminate against Aboriginal people.  Thirty years later however, the High Court in the Hindmarsh Island Bridge Case  raised the possibility that s51 (xxvi) could authorise laws which operate to disadvantage Aboriginal people.

The result of Hindmarsh is that the meaning and extent of the race power is still unclear. This paper argues that this uncertainty should be resolved and s51 (xxvi) should only be interpreted as authorising legislation for the benefit of Aborigines and Torres Strait Islanders. The first part of this paper will examine how the three most prevalent modes of constitutional interpretation: originalism, textualism and progressivism, all offer some support for a beneficial reading of s51 (xxvi). It will also consider the role of international law in interpreting the Constitution. The second part of this paper will address the question of whether a law which “benefits” a particular race should be justiciable, and suggests a proportionality test as criteria for determining such a question.

Constitutional Interpretation

Whether s51 (xxvi) should be read as only authorising legislation that benefits Aborigines and Torres Strait Islanders is a question of constitutional interpretation. Constitutional interpretation, like statutory interpretation, is a quest for meaning. It requires an examination of the constitutional text, and depending on the method employed, an inquiry into the social and historical context of a particular section of the Constitution. No particular manner of interpretation has been conclusively adopted by the High Court, although three main methods of interpretation have been embraced: originalism, textualism and progressivism.  Whilst it is beyond the scope of this paper to assess the merits of the various methods of interpretation, what is important is that a beneficial reading of the race power can find support in all three methods of interpretation, particularly originalism and progressivism.

1. Originalism

Originalism suggests meaning can be discovered from the text or original intent of the framers of the Constitution. Since 1988 the High Court has had recourse to the Constitutional Debates of the 1890s to help ascertain the original intent of the framers.   In interpreting s. 51 (xxvi) whose intent should be given greater weight: the original framers, or the Parliament who proposed the amendment and the voters who supported the 1967 referendum?

Pre-Federation and s. 51(xxvi)

In Hindmarsh Gaudron,  Gummow and Hayne JJ  concluded the intention of the framers of the Constitution was that s. 51 (xxvi) could be used to authorise laws that adversely discriminate against Aborigines. However, an examination of the Constitutional Convention debates of the 1890s reveals that no express reference was made to Aborigines in relation to this head of power.  Rather, Sir Samuel Griffith proposed the section to allow the Federal Government to control non-European migrant workers. At the Conventions particular concerns were raised about the Kanakas in North Queensland, Chinese factory workers and Asiatic miners.  Although the debates did highlight that the race power s. 51 (xxvi) (as it later became), would authorise laws that discriminated on the basis of race, no mention was made of the Aboriginal race. This absence of any discussion cannot be used as an expression of intent that laws under this section could be used to discriminate against Aborigines. Thus the intention of the Framers is not particularly relevant to the question of whether s. 51 (xxvi) should be interpreted as only authorising laws that benefit Aboriginal people.

1967 Referendum

In contrast, the intent of the Members of Parliament who unanimously supported the 1967 referendum and of the Australian public who voted for the amendment is relevant. The 1967 referendum had two aims: to remove words thought to discriminate and to allow Federal Parliament to enact laws for the Aboriginal race.  A crucial factor in the referendum’s success was that it enjoyed bipartisan support. Prime Minister Holt suggested the amendment would allow agreement between the Federal and State Governments to enact policy for “Aboriginal advancement”.  The Opposition Leader, Mr Whitlam, stressed the change would provide the opportunity to address Aboriginal disadvantage.  These comments indicate that the intent of the parliamentarians was that the amendment would allow the Commonwealth to legislate for the benefit of Aboriginal people.

Such intent can also be read into the amendment, when the referendum is considered in the context of the 1960s. In 1967 there was growing international awareness of the dangers and injustice of racial discrimination.  Not only were there new international conventions to address such issues,  but also the vote took place in the shadows of the memory of the terrors of the Third Reich and the reality of the apartheid laws in South Africa.  A concern for Australia’s international reputation, and a desire to eradicate the perception that the Constitution discriminated, were both justifications for the change.  Clearly the intent of both the parliamentarians and voters was that the amendment would authorise Federal Parliament to legislate only for the benefit of Aboriginal people as the tide of opinion had turned against race based discrimination. 

It is this more recent intent which should govern the interpretation of s. 51 (xxvi) not those of the original framers who did not consider Aborigines, because they believed they would die out.  To read s. 51(xxvi) as permitting laws that discriminate is to “make a mockery”  of the decision of nearly ninety per cent of the Australian electorate. Significantly, the High Court has suggested that the Australian people are the ultimate holders of sovereignty in the Constitutional sense.  Consequently, the 1967 referendum should be regarded as an “affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal people were to be at an end, and that the primary object of the power is beneficial”.  It is this intent, not that of the framer’s, that should govern the interpretation of s. 51 (xxvi).

2. Textualism

A textualist approach to constitutional interpretation seeks to understand the ordinary and natural meaning of a provision as revealed by the words of a section.  Although most textualist readings have concluded that s. 51 (xxvi) can be used for the advantage or detriment of a race,  a textualist interpretation can support a beneficial reading.

In Koowarta Murphy J suggested that “for” in s. 51 (xxvi) should be read as “for the benefit of” not “with respect to”.   He reasoned that had this been the intended meaning of the word “for”, then the words “with respect to” would have been expressly used as they had been in other parts of s. 51, namely paragraphs (xxxi) and (xxxvi).  This view has been endorsed by Gaudron J as “having much to commend it”,  although in Hindmarsh she appears to have retreated from that position.  Nevertheless, the proposition put forward by Murphy J still holds merit, as “for” can be interpreted in this way.

Another textualist interpretation of s. 51 (xxvi) supports a beneficial reading of s. 51 (xxvi). The plaintiffs in Hindmarsh asserted that the word “special” indicated a purposive element to s. 51 (xxvi). Spigelman QC argued that like the defence power, s. 51 (xxvi) had a purposive element, but the purpose is not identified in the section.  He implored the Court, as they did in Mabo,  to have regard to objective external factors, taking judicial notice of community values and international standards to assist in ascertaining the purpose of s. 51(xxvi).  Although the Court was reluctant to go down this path, fearing an imposition of the Court’s values over those of the legislature, a purposive reading of s. 51(xxvi) is compelling as the subject matter of s. 51(xxvi), unlike other paragraphs in s.51, is unclear. Moreover, a purposive reading of s. 51 (xxvi) has important implications as it places limits on legislation.

Thus, even adopting the more conservative textualist approach, without regard to the historical context of s. 51 (xxvi), provides some support for a beneficial reading of the race power. Because in their ordinary and natural meaning the words “for” and “special” suggest the race power cannot be used to authorise legislation to the detriment of a race.

3. Progressivism

Progressivism recognises that a Constitution is a “ living document” designed to serve future generations and as such should be read consistently with contemporary Australian values.  There has been support from the High Court in adopting this form of constitutional interpretation. In Cheatle  the Court unanimously held it would be “absurd” in “contemporary Australia” to read s.80 according to its Federation meaning as only allowing men who owned property to sit on juries to the “exclusion of females and unpropertied persons”.  This form of constitutional interpretation provides the strongest weight for reading s. 51 (xxvi) as only authorising beneficial laws.

Section s. 51(xxvi) should be read as conforming with contemporary Australian values. Australian values on the issue of race have changed significantly since 1900. Racially discriminatory laws, like the White Australia Policy, no longer have any place in the Australian polity. Developments in the law, from anti -discrimination legislation,  to the landmark decision of the High Court in Mabo,  have been accompanied by widespread community acknowledgment of the injustices dealt to the Aboriginal population. The heartfelt reaction to the “Bringing Them Home Report”,  detailing the sufferings of the Stolen Generation and support for Reconciliation, along with the 1967 referendum, are all indications of the unwillingness of Australian citizens to accept race- based discrimination. To suggest that the Australian Constitution permits legislation that discriminates detrimentally on the basis of race would be “absurd” as it is inconsistent with contemporary Australian values.

Interpretive principle

Finally a beneficial reading of s. 51 (xxvi) can be justified by reference to the interpretive principle. The interpretive principle suggests that when sections of the Constitution are ambiguous, regard should be had to international law, particularly universal and fundamental human rights.  Although judicial opinion in the High Court has been divided on the role of international law in interpreting the Constitution,  international law cannot be ignored when interpreting the Constitution on the issue of race, rather it is “a legitimate and important influence”.

It is a well-established principle of statutory interpretation that State and Commonwealth legislation should be read to conform with the rules of international law.  The Constitution is also a statute, though of a special kind, and should be subject to the same principle. Because s.  51 (xxvi) is ambiguous, as evidenced by the differing judicial interpretation of the meaning of the section,  it should be read as conforming with international law. Australia is a party to a number of international conventions that prohibit discrimination on the basis of race, including the CERD; the ICCPR; ICESCR and UDHR. In addition to these treaties, the International Court of Justice has suggested that non-discrimination on the basis of race is a rule of customary international law.  Thus extending the interpretive principle to constitutional interpretation, to take account of international law, as other countries have,  provides further strength to a beneficial reading of s. 51 (xxvi).

Benefit of Aborigines, or Aborigines and Torres Strait Islanders or “people of any race”

Although the 1967 referendum removed the words “other than the aboriginal race” from s. 51 (xxvi), the section should apply to both Aborigines and Torres Strait Islanders. In 1990 Torres Strait Islanders received official Federal Government recognition as being a distinct people to Aboriginal Australians.   However, since that time, legislative and policy responses to indigenous Australians have referred to both Aborigines and Torres Strait Islanders. For this reason s. 51(xxvi) should be read as benefiting both Aboriginal and Torres Strait Islanders.
 
Three primary reasons can be advanced for reading s. 51(xxvi) as only relating to legislation directed at Aborigines and Torres Strait Islanders, not “people of any other race”. Historically, s. 51 (xxvi) has only ever been used to authorise legislation concerning indigenous people, namely the Native Title Act 1993(Cth) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Secondly, a reading of s. 51(xxvi) that authorises laws that benefit Aborigines and Torres Strait Islanders can be justified, as they are the most disadvantaged people in Australian society.  Finally, “race” is an inherently difficult concept to define, as it has no objective basis.  This is particularly difficult in a country like Australia with historically large levels of migration.  Nevertheless, such a reading of s. 51 (xxvi) should not be assumed to authorise laws that discriminate against people of other races. Rather, as argued above, progressive and interpretive approaches to constitutional interpretation suggest no laws that adversely discriminate against people of any race should be constitutionally valid. However, for the above reasons s51 (xxvi) should be confined to authorising laws that benefit Aborigines and Torres Strait Islanders.

Should the question whether a law “benefits” such persons be justiciable?

The question of whether a law “benefits” Aborigines and Torres Strait Islanders should be justiciable because the High Court needs to retain a supervisory role over the legislature, especially on constitutional issues. It is a well settled principle that courts exercising judicial power of the Commonwealth should determine whether the legislature and the executive act within their constitutional powers.

The judiciary has shown an aversion to addressing the merits of legislation, due to a concern about the separation of powers, and the Court imposing its own political judgements in favour of those of the legislature. Such an aversion is ill-founded, as although addressing whether a law is “beneficial” may be classified as a political question, it does not follow that the issue is non- justiciable and beyond judicial review.  Indeed the Court has suggested reviewing the validity of legislation under s. 51 (xxvi) is appropriate. In Hindmarsh, whether legislation was “deemed necessary” was considered to be a political issue left to parliament,  however a role for judicial review was proposed by reference to the “manifest abuse” test.  Gummow and Hayne JJ outlined this test and suggested that if legislation were enacted in “manifest abuse” of s. 51 (xxvi) then it would be constitutionally invalid. Thus, whether a law “benefits” indigenous people should be justiciable because the High Court must exercise judicial review to ensure legislation is constitutionally valid.

What criteria should be applied to determine whether or not a law benefits Aborigines and Torres Strait Islanders?

In order to test the constitutional validity of legislation under s. 51 (xxvi) a test of proportionality should be adopted. This test can be justified on two bases: s. 51 (xxvi) can be interpreted as a purposive power, or alternatively, s. 51 (xxvi) can be read as operating an implied restriction on legislative power. Firstly, s. 51 (xxvi) can be interpreted as a purposive power. The High Court has adopted a test of proportionality in determining the validity of legislation under purposive powers. Such legislation must be characterised as being reasonably capable of being seen as “appropriate and adapted” to the execution of that purpose.

This paper has argued the purpose of s. 51 (xxvi) is to authorise laws that benefit indigenous people. “Benefit” in this context, can be understood to mean promote or enhance well being. So, for legislation to be constitutionally valid under s. 51 (xxvi) it would need to be characterised as appropriate and adapted to promote the well being of the indigenous population. Such a test is suitable for assessing legislation under s. 51(xxvi) as it would allow judicial review to determine if there is reasonable proportionality between the designated purpose of a law and the means embodied in the law to achieve it.

Alternatively, a test of proportionality can be justified on the grounds that s. 51 (xxvi) operates as an implied prohibition on legislative power, authorising only beneficial laws.  The High Court has adopted a proportionality test to assess whether legislation interferes with an implied or express right in the Constitution.  If s. 51 (xxvi) is interpreted as only authorising laws that benefit indigenous people then for legislation to be constitutionally valid under this head of power it must not be disproportionate to the guarantee of such a benefit.  Thus, the test would operate so that if the means by which the law adopts are disproportionate to the object to be achieved, the law would be invalid.

Aside from the proportionality test other safeguards could ensure legislation does not adversely discriminate on the basis of race. Gummow and Hayne JJ in Hindmarsh  suggested the common law presumption that unless expressed in clear and unambiguous language an intention to interfere with fundamental rights, freedoms and immunities will not be inferred into a statute, will ensure legislation is not mistakenly understood to authorise discrimination.  Secondly, Gummow and Hayne  JJ  quoted Dixon J in the Communist Party Case  who suggested the rule of law forms an underlying basis of the Constitution.  It is arguable that the notion of equality before the law forms part of the rule of law. These safeguards, alongside the test of proportionality, could be used as criteria to determine whether or not a law benefits indigenous people.
 
Conclusion

The ambiguity surrounding the meaning and scope of the race power after Hindmarsh highlights the lack of protection the Australian Constitution affords to fundamental human rights. A beneficial reading of s. 51 (xxvi) would go some way to protecting Aboriginal and Torres Strait Islanders from race based discrimination. Importantly, such a reading would be consistent with the main methods of constitutional interpretation as regard to the intent of the 1967 referendum, the words of the section and the contemporary values concerning racial discrimination, reveal that s. 51 (xxvi) should only authorise laws that benefit indigenous Australians. The importance of judicial review of whether legislation “benefits” Aborigines and Torres Strait Islanders is understood by the experiences of the Stolen Generation who were forcibly removed from their families purportedly for their own “benefit”. The High Court, by characterising laws to ascertain if they are appropriate and adapted to promote the well being of indigenous people will ensure the Commonwealth Constitution is not used to authorise laws that operate to the disadvantage of Australia’s indigenous population.

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