{"id":103271,"date":"2020-06-07T15:19:23","date_gmt":"2020-06-07T22:19:23","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=103271"},"modified":"2020-06-07T15:19:23","modified_gmt":"2020-06-07T22:19:23","slug":"does-the-races-power-still-have-a-place-in-the-australian-constitution","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2020\/06\/07\/does-the-races-power-still-have-a-place-in-the-australian-constitution\/","title":{"rendered":"Does the races power still have a place in the Australian constitution?"},"content":{"rendered":"

By <\/a>Jane Lee<\/a> for <\/a>The History Listen<\/a> Courtesy ABC Radio National<\/a><\/em><\/span><\/h2>\n\n\n
\"Australian
The\nfuture of the races power has been discussed in talks about how Indigenous\npeople should be included in the constitution.(Getty: Tracey Nearmy)<\/figcaption><\/figure>\n\n\n\n

Share\n<\/p>\n\n\n\n

Two retired judges say a section of the constitution which\nallows federal laws to be made for a particular race of people should be\nchanged, because it is a relic of Australia’s past and is potentially\ndangerous.<\/p>\n\n\n\n

The races power, in section 51(xxvi) of the constitution,\ngives parliament the power to make laws for “the people of any race for\nwhom it is deemed necessary to make special laws”.<\/p>\n\n\n\n

It was introduced into the 1901 constitution to regulate\nthe migration of particular races to Australia, amid concerns about Chinese and\nother Asian migrants after the gold rush period of the late 19th century.<\/p>\n\n\n\n

\"Front
The\nraces power was introduced to regulate the migration of particular races to\nAustralia.(Supplied:\nNational Archives of Australia)<\/figcaption><\/figure>\n\n\n\n

Retired NSW Chief Justice James Spigelman, QC, says when it was\nintroduced, “there was no doubt that it was a racist power”.<\/p>\n\n\n\n

He says the races power no longer has a place in the constitution.\n<\/p>\n\n\n\n

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

Robert French, a retired Chief Justice of the High Court of\nAustralia, says the term ‘race’ is a term of the past.<\/p>\n\n\n\n

“I think the term ‘race’ itself is a cultural construct\nwhose day has passed and has very little factual referent apart from what you\nfind in so-called cultural realities,” he says. <\/p>\n\n\n\n

“And I think we’d be better off without it.”<\/p>\n\n\n\n

The judges discussed the races power in interviews about\nthe 1998 Hindmarsh Island Bridge case <\/a>for Section\n71, an RN series about significant High Court cases. <\/strong><\/a><\/p>\n\n\n\n

In that case, the late Ngarrindjeri woman Doreen Kartinyeri\nunsuccessfully challenged a federal law based on the races power, which paved\nthe way for the South Australian bridge to be built on a site she said was\nsacred to Ngarrindjeri women.<\/p>\n\n\n\n

The future of the races power has been discussed in talks\nabout how Aboriginal and Torres Strait Islanders should be included in the\nconstitution.<\/p>\n\n\n\n

The Expert Panel on Constitutional Recognition of\nIndigenous Australians recommended in 2012 that the section be removed and\nreplaced with a new power to make laws for Aboriginal and Torres Strait\nIslander peoples, which recognised them as the first people of Australia and\nrespected their cultures and languages and heritage.<\/p>\n\n\n\n

Races\npower supports Aboriginal groups<\/h2>\n\n\n\n

Initially, the only race of people the federal parliament\ncouldn’t make laws for were Aboriginal and Torres Strait Islanders \u2014 this was a\npower reserved for state governments. <\/p>\n\n\n\n

But this changed in 1967, when most Australians voted in a\nreferendum to include Indigenous Australians in the federal power.<\/p>\n\n\n\n

\"Old\n
Since\nthe 1967 referendum, the races power has been used to help fund national\norganisations to support Aboriginal people.(Supplied: AIATSIS, State Library of\nSouth Australia)<\/figcaption><\/figure>\n\n\n\n

Indigenous barrister Tony McAvoy, SC, says since then,\nsuccessive federal governments have largely used the races power to help fund\nnational organisations specially formed to support Aboriginal people. <\/p>\n\n\n\n

This includes the Aboriginal Medical Service, Aboriginal\nand Torres Strait Islander Legal Services, Aboriginal housing companies and the\nnow-defunct Aboriginal and Torres Strait Islander Commission.<\/p>\n\n\n\n

“So [the races power] has made a significant change to\nthe way Aboriginal and Torres Strait Islander people have been able to access\nservices, to participate in society,” Mr McAvoy says.<\/p>\n\n\n\n

The federal government also used the races power to make\nlaws to implement the Northern Territory intervention in 2007, which has been widely criticised<\/a> by Indigenous groups.<\/p>\n\n\n\n

“That legislation I think remains a low point in terms\nof the relationship between the Commonwealth and Aboriginal people nationally\nbut particularly in the Northern Territory,” Mr McAvoy says.<\/p>\n\n\n\n

He says the races power is “entirely\nanachronistic” and should be changed. \n\n“The\nnotion of distinction between peoples upon the basis of race is something that\nhas generally been left behind internationally.”\n\n<\/p>\n\n\n\n

<\/h2>\n\n\n\n

Options\nfor changing the races power\n\n<\/p>\n\n\n\n

Justice French thinks the federal parliament should still\nhave the power to make laws for Aboriginal and Torres Strait Islanders \u2014 not\nbecause of their race, but to recognise their “antecedent ownership”\nof Australia.<\/p>\n\n\n\n

“I know people say that everybody should be treated\nthe same but it’s not just a distinction based on race,” he says.<\/p>\n\n\n\n

“It’s a distinction based upon their special status as\nthe first people of this country and a hugely important part of our national\nidentity now in a way we haven’t appreciated before.”<\/strong><\/a><\/p>\n\n\n\n

In the shadow of\nTerra Nullius<\/a><\/a><\/h3>\n\n\n\n
\"\"\/<\/figure>\n\n\n\n

<\/a><\/strong><\/p>\n\n\n\n

The story of the\nrelationship between Indigenous and non-Indigenous Australians is contested and\ncomplex. Over three programs, Rear Vision traces this journey.<\/a><\/strong><\/p>\n\n\n\n

Read more<\/a><\/strong><\/p>\n\n\n\n

Justice Spigelman says the races power could be replaced with a\npower that ensured federal funding for national Aboriginal organisations could\ncontinue to exist.<\/p>\n\n\n\n

“You could replace it with something which is focused\non the support of Aboriginal Australians and their culture and traditions or\nsome other language which was purposeful, which is what most of our\nCommonwealth powers are,” he says.<\/p>\n\n\n\n

Mr McAvoy says that while racially discriminatory language\nshould be removed from the constitution, it\u2019s difficult to know how to fix the\n“extraordinary injustice and disadvantage” colonisation has caused\nIndigenous Australians without a specific legal power.<\/p>\n\n\n\n

\"Indigenous
Tony\nMcAvoy SC says the races power is “entirely anachronistic”.(ABC\nNews: Xavier La Canna)<\/figcaption><\/figure>\n\n\n\n

“I tend to agree with those that have called for a specific\npower for the federal parliament to make laws benefiting Aboriginal and Torres Strait\nIslander people rather than simply repealing [the races power] and leaving\nnothing in its place,” he say.<\/p>\n\n\n\n

“There are some that would say that having a law\nidentifying Aboriginal and Torres Strait Islander people as potential\nbeneficiaries of [laws] is racist in itself.<\/p>\n\n\n\n

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

Justice Spigelman argued in the Hindmarsh Island Bridge\ncase that since 1967, the meaning of the races power had changed, so that\nparliament could only make laws for the benefit of Aboriginal people, and not\nto their detriment. <\/p>\n\n\n\n

The majority of the High Court did not rule on this issue\nin its decision, leaving the power open to ‘beneficial’ or ‘detrimental’ laws.<\/p>\n\n\n\n

The judges ruled for other reasons that the federal\ngovernment could change its law to remove the site of the Hindmarsh Island\nBridge from the cultural heritage protection of the Aboriginal Affairs\nMinister.<\/p>\n\n\n\n

The terms of the Australian constitution can only be\nchanged if the majority of people in the majority of states and territories\nsupport the change by voting in a referendum.<\/p>\n\n\n\n

More\nstories from The History Listen:<\/h2>\n\n\n\n