Does the races power still have a place in the Australian constitution?
Posted on June 7th, 2020

By Jane Lee for The History Listen Courtesy ABC Radio National

Australian Aboriginal flag held up in
                              front of Canberra's Parliament House.
The future of the races power has been discussed in talks about how Indigenous people should be included in the constitution.(Getty: Tracey Nearmy)


Two retired judges say a section of the constitution which allows federal laws to be made for a particular race of people should be changed, because it is a relic of Australia’s past and is potentially dangerous.

The races power, in section 51(xxvi) of the constitution, gives parliament the power to make laws for “the people of any race for whom it is deemed necessary to make special laws”.

It was introduced into the 1901 constitution to regulate the migration of particular races to Australia, amid concerns about Chinese and other Asian migrants after the gold rush period of the late 19th century.

Front cover of Australian
The races power was introduced to regulate the migration of particular races to Australia.(Supplied: National Archives of Australia)

Retired NSW Chief Justice James Spigelman, QC, says when it was introduced, “there was no doubt that it was a racist power”.

He says the races power no longer has a place in the constitution.

“A power with respect to people is I regard a very dangerous power to confer on any legislature, even the Commonwealth parliament … because it can be focused on particular groups by reason of their presumed characteristics, rather than what their behaviour is or what their needs are, but just because of who they are,” he says.

Robert French, a retired Chief Justice of the High Court of Australia, says the term ‘race’ is a term of the past.

“I think the term ‘race’ itself is a cultural construct whose day has passed and has very little factual referent apart from what you find in so-called cultural realities,” he says.

“And I think we’d be better off without it.”

The judges discussed the races power in interviews about the 1998 Hindmarsh Island Bridge case for Section 71, an RN series about significant High Court cases.

In that case, the late Ngarrindjeri woman Doreen Kartinyeri unsuccessfully challenged a federal law based on the races power, which paved the way for the South Australian bridge to be built on a site she said was sacred to Ngarrindjeri women.

The future of the races power has been discussed in talks about how Aboriginal and Torres Strait Islanders should be included in the constitution.

The Expert Panel on Constitutional Recognition of Indigenous Australians recommended in 2012 that the section be removed and replaced with a new power to make laws for Aboriginal and Torres Strait Islander peoples, which recognised them as the first people of Australia and respected their cultures and languages and heritage.

Races power supports Aboriginal groups

Initially, the only race of people the federal parliament couldn’t make laws for were Aboriginal and Torres Strait Islanders — this was a power reserved for state governments.

But this changed in 1967, when most Australians voted in a referendum to include Indigenous Australians in the federal power.

                                  black and white poster with an
                                  Indigenous Australian baby on the
                                  front that says right wrongs write
Since the 1967 referendum, the races power has been used to help fund national organisations to support Aboriginal people.(Supplied: AIATSIS, State Library of South Australia)

Indigenous barrister Tony McAvoy, SC, says since then, successive federal governments have largely used the races power to help fund national organisations specially formed to support Aboriginal people.

This includes the Aboriginal Medical Service, Aboriginal and Torres Strait Islander Legal Services, Aboriginal housing companies and the now-defunct Aboriginal and Torres Strait Islander Commission.

“So [the races power] has made a significant change to the way Aboriginal and Torres Strait Islander people have been able to access services, to participate in society,” Mr McAvoy says.

The federal government also used the races power to make laws to implement the Northern Territory intervention in 2007, which has been widely criticised by Indigenous groups.

“That legislation I think remains a low point in terms of the relationship between the Commonwealth and Aboriginal people nationally but particularly in the Northern Territory,” Mr McAvoy says.

He says the races power is “entirely anachronistic” and should be changed. “The notion of distinction between peoples upon the basis of race is something that has generally been left behind internationally.”

Options for changing the races power

Justice French thinks the federal parliament should still have the power to make laws for Aboriginal and Torres Strait Islanders — not because of their race, but to recognise their “antecedent ownership” of Australia.

“I know people say that everybody should be treated the same but it’s not just a distinction based on race,” he says.

“It’s a distinction based upon their special status as the first people of this country and a hugely important part of our national identity now in a way we haven’t appreciated before.”

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Justice Spigelman says the races power could be replaced with a power that ensured federal funding for national Aboriginal organisations could continue to exist.

“You could replace it with something which is focused on the support of Aboriginal Australians and their culture and traditions or some other language which was purposeful, which is what most of our Commonwealth powers are,” he says.

Mr McAvoy says that while racially discriminatory language should be removed from the constitution, it’s difficult to know how to fix the “extraordinary injustice and disadvantage” colonisation has caused Indigenous Australians without a specific legal power.

Indigenous man sits in a court
                                  room, with a laptop in front of him,
                                  and with a vibrant blue tie on.
Tony McAvoy SC says the races power is “entirely anachronistic”.(ABC News: Xavier La Canna)

“I tend to agree with those that have called for a specific power for the federal parliament to make laws benefiting Aboriginal and Torres Strait Islander people rather than simply repealing [the races power] and leaving nothing in its place,” he say.

“There are some that would say that having a law identifying Aboriginal and Torres Strait Islander people as potential beneficiaries of [laws] is racist in itself.

“But that is the argument that is thrown up by people who it seems to me [are] frequently interested in playing that particular race card that goes something like ‘Well we’re all here and we’re all equal now and we should get on with it’, as opposed to many of the people in Australia who understand the injustices that have gone on in the past and the need to take steps to remedy those injustices.”

Justice Spigelman argued in the Hindmarsh Island Bridge case that since 1967, the meaning of the races power had changed, so that parliament could only make laws for the benefit of Aboriginal people, and not to their detriment.

The majority of the High Court did not rule on this issue in its decision, leaving the power open to ‘beneficial’ or ‘detrimental’ laws.

The judges ruled for other reasons that the federal government could change its law to remove the site of the Hindmarsh Island Bridge from the cultural heritage protection of the Aboriginal Affairs Minister.

The terms of the Australian constitution can only be changed if the majority of people in the majority of states and territories support the change by voting in a referendum.

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Former Commonwealth solicitor-general Gavan Griffith QC, who represented the Howard government in the 1998 case, says there is “no obvious appetite” to change the races power.

“Firstly there’s not much purpose — it’s part of our history and one would expect, particularly with the abandonment of white Australia, that it’s not in the future going to be exercised in a racist manner,” he says.

The second aspect is there’d be 100 percent no prospect of having such an amendment.”

Justice Michael Kirby, the dissenting judge in the Hindmarsh Island Bridge case, says the races power probably won’t be misused often because of Australia’s traditions and politics.

“But politics can sometimes be tricky in protecting minorities and the plain fact of the matter is that over the history of the Australian nation back to settlement, we have not by our legislation adequately protected the Aboriginal people of Australia,” he says.

Therefore we have a warning — and that warning should make us careful about the interpretation of our constitution, especially where it says you can make special laws on the basis of race.

They can be good or bad [laws] according to the majority in the Hindmarsh Island Bridge case.”

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