Notwithstanding the discourse in Kartinyeri v Commonwealth  HCA 22, the issue of whether the Parliament can invoke section 51(xxvi) of the Constitution to pass laws that are detrimental to the Aboriginal people remains unresolved. Gone is an unwavering judicial proclivity for the “strict and complete legalism” adverted to by Sir Owen Dixon. The interpretive exercise presently holds, for better or worse, “few certitudes”. Broadly speaking, three interpretive methodologies are evident, described generally as originalism (which construes the meaning of the constitutional text as fixed from the time of its construction); textualism (which demands a strict adherence to the express terms of the Constitution); and progressivism (which stresses the need to read the Constitution as a “living force”, relevant to “contemporary social and political circumstances and perceptions” ). The following analysis contends that the scope of the race power is broad, and authorises legislation detrimental to people of all races, including Aborigines. It approves of the “appropriate and adapted” test advanced by Gaudron J in Kartinyeri, which retains textual fidelity without retreating into the uncritical certainty of a textualist interpretation advanced without recourse to moral deliberation. This discussion also argues that the beneficial quality of a law is not something that the Court could possibly determine. Questions of justiciability turn rather on the viability of the manifest abuse and rule of law limitations approved of by Gummow and Hayne JJ.
DETERMING THE SCOPE OF SECTION 51(XXVI)
The Convention Debates reveal that section 51(xxvi) was originally intended to allow for the passing of detrimental and (to a lesser extent) beneficial laws against particular racial groups. However, the 1967 excision of the words “other than the aboriginal race in any state” conceivably instituted a “second set of founding intentions” which envisaged an exclusively beneficial reading of the power, at least with respect to Aborigines. The proponents of this restrictive view claim that to hold otherwise “would be to make a mockery” of the stated purpose of the 1967 referendum and the comprehensive affirmation therein that the “odious policies of oppression and neglect of Aboriginal people were to be at an end.” This argument is furthered by the historical events that informed Australian constitutional development. The physical decapitation of the monarch in 1688 was also a metaphorical decapitation, insofar as the fount of legal legitimacy thereafter vested in the citizenry. It follows that as the ultimate holders of sovereignty, the people justifiably commandeered the founding intent of section 51(xxvi) through the operation of section 128.
Nevertheless, this restrictive view of the race power – as advanced most recently by Kirby J in Kartinyeri – exaggerates the beneficial intent of the 1967 amendment. There is a significant distinction between “showing an intention to use the power for beneficial purposes and an intention to only use it for such purposes.” As Gaudron J notes, the amendment actually removed the specific reference to Aborigines in section 51(xxvi). The text now places indigenous people in an identical position to people of other races. This might suggest that either an exclusively beneficial reading was intended to apply generically, or that the power can now be used only to the detriment of “alien” races (other than Aborigines) because of the clear discriminatory intent of the constitutional framers. Notably, an argument that the subsection gives rise to a “special relationship” between the Aborigines and the Commonwealth was rejected by the Supreme Court of Western Australia. In the absence of further legislative clarification, these contingencies cannot be preferred to the greater certainty provided by the broad view.
Discerning an agreed meaning from the constitutional text can sometimes prove surprisingly difficult. Interpretations are arguably moulded – consciously or unconsciously – to coincide with the personal proclivities of the interpreter. A textualist examination of the word “for” in section 51(xxvi) evinces no exception. Murphy J – whose conclusion found later (though admittedly sparse) judicial support – held that “for” means “for the benefit of”. Accordingly, the power (after 1967) disavowed an intention to adversely affect the people of any race. The majority of the High Court however, has espoused the view advanced by Gibbs CJ that “‘for’ in para.(xxvi) means ‘with reference to’ rather than ‘for the benefit of’ – it expresses purpose rather than advantage.” Indeed, the weight of judicial opinion, recourse to the Convention Debates, and the Parliamentary rhetoric surrounding the 1967 referendum suggests that Murphy J’s view is unsustainable.
“people of any race”
Other text is less controversial. Deane J’s view that “the people of any race” has a “wide and non-technical” meaning has been generally accepted by the Court. The power also authorises laws relating to racial sub-groups.
The scope of “special” was considered in the Native Title Act case. The Court held that “special qualifies law” and that a “special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of particular race.” Indeed, a law – such as the Racial Discrimination Act 1975 (Cth) – which applies equally to the people of all races is not a special law. In Kartinyeri, Gaudron J stated that a “law must be reasonably capable of being viewed as appropriate and adapted to the difference asserted.” Like the defence power in section 51(vi), the ambit of section 51(xxvi) could be affected by external circumstances, such as changing cultural mores. This approach undermines the possibility of disadvantageous legislative action on the basis of race, (particularly, her Honour relates, with respect to Aborigines) while remaining faithful to both the text and the broad intent of the subsection.
In Cheatle v R (1993) 177 CLR 541 at 560, the Court deemed as absurd the notion formulated in 1900 that section 80 debarred “females and unpropertied persons” from sitting on a jury. Arguably, the view that a power within the Constitution allows for adverse racial discrimination is similarly insensible. As Windeyer J stated in Victoria v Commonwealth (1971) 122 CLR 353 at 397:
In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based on the interpretation of a written constitution may vary and develop in response to changing circumstances.
The constitutional founders evinced no intention to undermine common law rights. Andrew Inglis Clark hoped for the Constitution to remain relevant to the “social conditions and the political exigencies” that would inevitably change through time. We might therefore consider as formative Brennan J’s assertion that “the common law should neither be nor be seen to be frozen in an age of racial discrimination,” and assert, by virtue of the reasoning of Windeyer J, that the race power should be construed as similarly fluid. Kirby J has related additionally that in the event of constitutional ambiguity, the “Court should adopt that meaning which conforms to the principles of fundamental rights rather than to an interpretation which would involve a departure from such rights.”
The above argument is compelling. Less so, it seems, is the interpretive principle advanced by Justice Kirby. His Honour contends that constitutional provisions should conform with customary international law, which relevantly includes “the norm of non-discrimination … on the basis of race”. This is because the Constitution “not only speaks to the people of Australia … [it] also speaks to the international community as the basic law of the Australian nation which is a member of that community.” However, this argument introduces values from a source beyond the constitutional text. It also detracts from the sovereignty vested in the Australian people by invoking substantive changes in constitutional meaning without their mandate. Gaudron J and Gummow and Hayne JJ rejected the contention in Kartinyeri. Their position accords with the weight of precedent, and is preferable.
QUESTIONS OF JUSTICIABILITY
(i) Evaluating benefit
The High Court has noted that the beneficial quality of a law is not something that it can readily evaluate. Section 51(xxvi) particularly, lacks a guiding principle such as the federalism that enlightens sections 92 and 117. What is beneficial to some may be detrimental to others, even amongst the citizens of a particular racial group. We might imagine, for example, a law that offered free but compulsory vocational training for Aborigines and Torres Strait Islanders. Some would view the intention and operation of the law as beneficial, while others would consider it as reflective of a detrimental paternalism. With beneficial intent, the States previously passed legislation that undermined the most basic rights of indigenous people. Notwithstanding that legislative mistake, the Federal Parliament already possesses extensive powers to enact laws for the benefit of Aborigines, most notably through the use of the grants power in section 96.
Detmold has advanced an alternative argument. While the Court cannot judge benefit, it can judge the constitutional respect imbued within the proposed legislation. For example, Mabo v Queensland (No 2) was not decided on the basis of the beneficial contingencies that would arise from the recognition of native title, but on the lack of constitutional respect engendered by the principle of terra nullius. Similarly, a law made under the race power that treated Aborigines as members of an alien race would deconstitute their entitlement to be treated as persons of constitutional status. His argument suggests that the mere possession of Australian citizenship prohibits the operation of a law that is inconsistent with that notion. This is reminiscent of Gaudron J’s “appropriate and adapted” test, though the position requires further judicial development to be tenable. The chief incoherence of the restrictive view flows from a judicial inability to judge objectively whether a law is beneficial.
(ii) Manifest abuse and the rule of law
The Native Title Act case established (contra to Stephen J in Koowarta) that the “necessity” of a law with respect to the people of a race was a political value judgment for Parliament and not for the Court. Nevertheless, the Court retained a “supervisory jurisdiction” to restrain a manifest abuse on the part of the Parliament. In Kartinyeri, Gaudron J (at 42) equated manifest abuse with the failure to form a rational basis for enacting a law. Gummow and Hayne JJ (at 89) noted similarly that the principle in Marbury v Madison requires that the legislature conform with the Constitution. However, Kirby J persuasively argued (at 163) that the test may wither in the face of exigent circumstances. The Parliaments of Nazi Germany and apartheid South Africa circumvented judicial review by gradually passing increasingly racist laws. In the heightening radicalism, the Court became an amoral lackey of tyranny; not only incapable of finding a manifest abuse of power, but complicit in advancing the political goal of racial segregation.
More promising is Gummow and Hayne JJ’s reference to Dixon J’s statement in Australian Communist Party v Commonwealth (1951) 83 CLR 1 that the rule of law formed a deep-delved assumption in the framing of the Constitution. As Dixon J understood it, the rule of law is compromised where a Parliament uses implied or incidental powers to make itself the ultimate arbiter of its own constitutional authority. The enaction of a law that fails to respect the rule of law should be justiciable. Admittedly, this limitation – which would prevent any abuse that might arise under a broad interpretation of the race power – awaits further judicial enquiry.
Premised as it was on a “false taxonomy of humanity”, the initial onus of section 51(xxvi) sought to detrimentally discriminate against “alien” (viz. non-Anglo) peoples. However, the governing notion of racial hierarchy has been supplanted by the reality of racial equality. This is not to suggest that the beneficial intent of the 1967 amendment informs “the language of the power with a benign limiting spirit.” The power continues to apply adversely to the people of any race, and, as French suggests, may in some future time turn away from its recent indigenous proclivities to justify a heavy-handed legislative response to a “problem” or “threat” associated with the religious extremism of a particular racial group. Whatever future contingencies arise, it is hoped that both Gaudron J’s quantification that a “special” law be “appropriate and adapted” and the rule of law limitations tentatively sketched by Gummow and Hayne JJ augur the development of “a platform on which to construct a wide ranging limitation on the abuse of the race power”. Of course, as Brennan J has noted, there remains a danger in one branch of government assuming the functions of another in order to remedy a perceived injustice. However, this risk is marginal when compared with that which arises from judicial recourse to an exceedingly narrow textualist or originalist interpretation that would permit discrimination on the arbitrary basis of race. Nietzsche, in his perception, warned against such intellectual laxness: “woe to the thinker who is not the gardener but merely soil to the plants that sprout within him.”
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