International Review of Indigenous issues in 2000: Australia-3. National constitutional arrangements contributing to racism/racist practices/race related discrimination

International Review of Indigenous issues in 2000: Australia

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3. National constitutional arrangements contributing to racism, racist practices and/or race related discrimination

Australia is a federation comprised of a Federal (or Commonwealth) Government, six state and two territory governments. For convenience, in this chapter references to states include references to territories.

In Australia there is no entrenched guarantee preventing the states enacting racially discriminatory legislation and no guarantee at all preventing the federal government from enacting racially discriminatory legislation.

Racial discrimination and the Commonwealth Government

The Australian Constitution contains an express power that gives the Commonwealth power to enact legislation 'with respect to ... the people of any race for whom it is deemed necessary to make special laws.' [45]

The High Court examined this power under the Constitution (the race power) in the case of Kartinyeri v The Commonwealth [1998] HCA 22. The question before the High Court in Kartinyeri was whether the race power authorised the Commonwealth legislature to enact the Hindmarsh Island Bridge Act 1997 (Cth), a statute that sought to withdraw the protection of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in relation to a particular site in order to facilitate the building of a bridge. The majority of the High Court held that the Commonwealth legislature did have the power under the Constitution to enact this law. The members of the bench gave differing reasons for this finding, with no clear majority deciding the point solely on the basis that the constitution authorised racially discriminatory legislation. Thus the question of whether the Australian Constitution authorises legislation that is disadvantageous to, or discriminatory of, Aboriginal people has not been finally decided.

Racial discrimination and State and Territory Governments

The Racial Discrimination Act 1975 (Cth) (RDA) is a Commonwealth law that implements Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. It operates to invalidate racial discrimination. [46] Where state legislation is racially discriminatory, section 109 of the Australian Constitution ensures that the Commonwealth legislation, the RDA, overrides the discriminatory state legislation.

However, the RDA's guarantee against racial discrimination is not entrenched in Australian law. The principle of parliamentary sovereignty enables the Federal Parliament to pass legislation that overrides its own previous legislation. Consequently, the Commonwealth can override the protection of the Racial Discrimination Act (RDA) through subsequent legislation. The Commonwealth government can thus specifically authorise states to legislate in ways inconsistent with the provisions of the RDA. If the federal Parliament authorises states to act pursuant to this subsequent federal legislation then state parliaments will not be bound by the RDA.

An example of such federal legislation is the Native Title Act (the NTA). The NTA contains provisions that discriminate on the basis of race. Some of these provisions also permit the states to conduct activities that are in breach of the RDA. Yet as the High Court of Australia noted in 1995:

If the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both acts emanate from the same legislature and must be construed so as to avoid absurdity and to give each of the provisions a scope for operation. The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. [47]

Section 7 of the NTA does provide that the NTA is to be read and construed subject to the provisions of the RDA. Nevertheless, the effect of this section is limited. Section 7 will only operate where the provisions of the NTA are ambiguous. In such a case the ambiguous provision will be read, so far as possible, consistently with the RDA. Where, however, the meaning of a provision is not ambiguous, its meaning will not be changed as a result of the operation of section 7 or the operation of the RDA.

International Commentary on national constitutional arrangements

(1) Commentary by CERD Committee

In March 2000 the CERD Committee released its Concluding Observations from its consideration of Australia's tenth, eleventh and twelfth periodic reports. The CERD Committee stated:

6. The Committee is concerned over the absence from Australian law of any entrenched guarantee against racial discrimination that would override subsequent law of the Commonwealth, states and territories. [48]

The Committee noted the lack of any entrenched guarantee that would override the subsequent law of the Commonwealth, states and territories, particularly in relation to the amended Native Title Act. Significantly, the Country Rapporteur noted in her comments that the government could have made it unequivocal that the RDA would apply to the operation of the NTA, as they had done in relation to social security legislation under section 4 of the Social Security Legislation Amendment (Newly arrived resident's waiting periods and other measures) Act 1997. The Committee was fully aware that the Parliament had not adopted this option.

Several members of the Committee were clearly troubled by the government's ability to override a guarantee against racial discrimination on the one hand, and the failure of the Commonwealth to ensure compliance of the states and territories on the other. Accordingly, they asked a series of questions about potential mechanisms for entrenching a guarantee of non-discrimination through constitutional means. In response, the government stated that Australia had the 'right culture/climate for protection of rights'. The Committee expressed concern, however, that the practices of the government (in relation to native title, mandatory sentencing and so forth) indicate that Australia does not have the right culture to protect rights.

The March 2000 Concluding Observations further stated:

7. The Committee reiterates its recommendation that the Commonwealth Government should undertake appropriate measures to ensure the consistent application of the provisions of the Convention, in accordance with article 27 of the Vienna Convention on the Law of Treaties, at all levels of government, including states and territories, and if necessary by calling on its power to override territory laws and using its external affairs power with regard to state laws. [49]

The Country-Rapporteur, in her introductory comments, asked the government to explain how it meets its obligations to ensure compliance with the Convention at all levels of government. She raised the issue of the 'discriminatory impact of state and territory laws in matters which, at that level, they have almost … primary jurisdiction [50] drawing particular attention to the mandatory detention laws in the Northern Territory and Western Australia. In its response to the Rapporteur, the Australian Government delegation did not at any time acknowledge its obligation under the Convention to ensure the states' and territories' compliance. Nor did it mention the power of the Commonwealth under the Constitution to ensure compliance of the states and territories with international obligations. It is unquestionably the case under section 51(xxix) of the Constitution (in relation to external affairs) and potentially under other heads of power in section 51 of the Constitution (depending on the issue), that the Commonwealth Government has the Constitutional power to require such state and territory compliance with international obligations. In relation to territory laws, section 122 offers a further alternative for ensuring compliance.

It is further worth noting that so long as state legislation is authorised by federal legislation, there is no domestic requirement for any subsequent state or territory legislation to comply with Australia's obligations under the RDA or CERD. This does not, however, relieve the states and territories themselves of their international obligations under the Convention.

While the power to enter into international treaties and conventions on behalf of Australia resides with the federal government, the states and territories of Australia are bound to act in compliance with Australia's international obligations. Article 27 of the Vienna Convention on the Law of Treaties, to which Australia is a party, provides that 'a party may not invoke provisions of its internal law as justification for its failure to perform a treaty.'

(2) Consideration by Human Rights Committee

The Human Rights Committee also expressed its concern at the lack of a Constitutional entrenchment of covenant rights under ICCPR, including the right to racial equality, at paragraph 13 of its Concluding Observation in relation to Australia in July 2000.

The Committee is concerned that in the absence of a constitutional Bill of Rights, or a constitutional provision giving effect to the Covenant, there remain lacunae in the protection of Covenant rights in the Australian legal system. There are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the Covenant have been violated.

The State party should take measures to give effect to all Covenant rights and freedoms and to ensure that all persons whose Covenant rights and freedoms have been violated shall have an effective remedy (article 2).

And at paragraph 14 the Committee stressed the responsibility of the both the States and the Commonwealth in ensuring that covenant obligations are met:

While noting the explanation by the delegation that political negotiations between the Commonwealth Government and the governments of states and territories take place in cases in which the latter have adopted legislation or policies that may involve a violation of Covenant rights, the Committee stresses that such negotiations cannot relieve the State party of its obligation that Covenant rights will be respected and ensured in all parts of its territory without any limitations or exceptions (article 50).

The Committee considers that political arrangements between the Commonwealth Government and the governments of states or territories may not condone restrictions on Covenant rights that are not permitted under the Covenant.

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45 Australian Constitution s51(xxvi) 
46 The RDA is Australia's domestic implementation of its obligations under CERD. It binds both state and federal governments.
47 Western Australia v Commonwealth (1995) 183 CLR 373 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, p484.
48 CERD Committee, Concluding Observations 2000, op. cit., para 8
49 Ibid.
50 Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, p3
 

Last updated 7 October 2003.