The Australian Constitutional Race Powers Dilemma: ‘We are not racist, but our Constitution allows us to be racist.’

Race Powers Section 51(xxvi) of the Constitution

This article will highlight some of the main reasons why the exclusionary Aboriginal clause was added to Section 51(xxvi) which is often referred to as the Race Powers Section of Commonwealth of Australia Constitution Act 1901, and why the initial reasons for its creation are still relevant in the current debate about further amending this particular section and others of the Constitution for the Indigenous Constitutional Recognition goal to better accommodate the country’s precolonial origins and identity.

Why was section 51(xxvi) created with an Aboriginal exclusionary clause?

No one does more justice at answering this question then Geoffrey Sawer[1] in his paper the Australian Constitution and the Australian Aborigine. Sawer[2] highlights that the clause would appear to have been created predominately so the States could maintain absolute control of the Aboriginal population and restrict the Commonwealth government from interfering in the States assumed jurisdiction of its Aboriginal affairs. The first reference to implement the exclusionary clause was first drafted by Sir Samuel Griffith in the first printed draft of the Constitution which was considered at the National Australasian Convention Debates in Sydney in 1891, which read:

‘The affairs of the people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community, but so that this power shall not extend to authorize legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand.’[3]

The wording went on the change to it accepted form for The Act to Constitute the Commonwealth of Australian 1901 after numerous considerations requiring alterations. The final clause reads, with the bracketed section lined out being amended in the 1967 referendum:

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 51

Legislative powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

  (xxvi)  the people of any race,[ other than the aboriginal race in any State, ] for whom it is deemed necessary to make special laws;[4]

Various reasons as to why the clause was worded in its exact manner can be reflected in some of the views held by the people who created the draft constitution, and the more widely held social and cultural views of the time. Griffith the initial person to draft the clause served as the ninth Premier of Queensland from 1883 to 1888 and was said to have held the predominate view of the time that Aborigines were a dying race[5]. The other prevailing Australian cultural view of the time the Constitution was drafted claimed that Aboriginal people were not human beings but animals that were the most closely related to the ‘orang-otang and the other apes’ a view that was published in 1896 in the Australasian Anthropological Journal[6]. Therefore, it is possible the dominate social view of the time was that the inclusion of Aboriginal people in the Constitution was unnecessary because they were apparently a dying sub-human race of animals, defunct of any human rights and privileges that any common man might take for granted. One of the main reason that is well documented in the historical records is that the States wanted to maintain full rights over their Aboriginal population to control them, and that any rights that the Commonwealth may in some way attribute to them was to be rendered invalid through the creation of the restrictive race parliamentary powers of the Commonwealth[7].

Sawer[8] also concludes from his research that the States needed to impress an exclusionary clause for Aboriginal people into Section 51(xxvi) of the Constitution in the desire to prevent the Commonwealth from creating laws that may be for the benefit of Aboriginal peoples. He highlights, Mr Gordon Bryant, M.P., Vice-President of the Federal Council for the Advancement of Aborigines and Torres Strait Islanders as having this critical view in stating:

That because of their exclusion from (xxvi), the Aborigines ‘have not the full benefit of Commonwealth law or the fundamental protection available to any other person in the Australia, whether Australian born, migrant, or even illegal entry’.[9]

The creation of the exclusionary Aboriginal clause in the Race Powers section of the Constitution was most likely brought about by numerous factors that are not discussed to any great extent in the historical records of the time, which leaves researchers open to drawing speculative conclusions. It appears from the data available that it was created to prevent the Commonwealth from dabbling in the States affairs of dealing with and controlling the Aboriginal Peoples. Also at the same time as the drafting of the Constitution the dominant social and cultural thinking of the time perceived Aboriginal Peoples as less human and dying out and therefore unable to attain the same rights and recognitions as other fellow human beings.

WHY WAS THE RACES POWER IN THE CONSTITUTION CREATED?

It would appear that Section 51(xxvi) of the Constitution was created to accommodate the States concerns of a large influx of ethnic migrants. The States wanted to make sure that these ‘alien’ migrants as they referred to them were able to be controlled and dealt with by the Commonwealth government. According to Moore[10], and Quick and Garran[11]  the States felt that the ‘Indian, Afghan and Syrian hawkers, the Chinese miners, laundryman, market gardeners, and furniture manufacturers, the Japanese settlers and Kanaka plantation labourers, and any of the coloured races employed in the pearl fisheries’, required laws to localize them with defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came’. The Races Power was created to allow the Commonwealth government the right to create racist laws and infringe on the liberty of and control the migrants they felt were ethic to the Anglo-Saxon people from the United Kingdom now residing in Australia.

The Races Powers was created to enable the Commonwealth government to discriminate and control ethnic migrants and Aboriginal were excluded from the head of power because the States wanted to maintain the only right to make laws Aboriginal Peoples whom they believed they could best control and that they were mostly likely not human beings and a dying race. The creation of Section 127 of the Constitution also leads way to this view that Aboriginal people were not human in that the official Federal census was also prohibited from counted them. The inclusion of Section 127 in the Constitution was introduced by Griffith in the National Australasian Convention Debates in Sydney and not discussed to any great length as to why it was being included[12].

I967 Referendum removed the exclusionary Aboriginal clause: what happen then?

The 1967 Referendum ushered in a collective notion of good will and joy for many people. It stopped the States restrictive legislative control of Aboriginal people and allowed the Commonwealth government to create the State Grants (Aboriginal Advancement) Act 1968 which provided additional financial support for the States to accommodate its Aboriginal populations.

At face value the changes to the Race Powers seemed to allow mostly positive action from the Commonwealth government up until recent times when in 1997 Prof George Williams[13] highlights and recounts his personal experiences as a consultant on the court case in his paper Race and the Australian Constitution that the Howard government enacted the Hindmarsh Island Bridge Act 1997 to exclusively prevent the Ngarrindjeri women’s claim to have an ancient sacred women’s site protected under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The Howard government prevented the women from protecting their cultural heritage site by placing a disqualifying clause in it that prevents any further claim for its cultural heritage protection. 

Williams went on to explain that the women lodged a High Court challenge against the Howard government trying to prove that its actions to enact the negative Hindmarsh Island Bridge Act 1997 was unconstitutional according to Section 51(xxvi) of the Australian Constitution because the Commonwealth government created a law to the detriment and not the benefit of Aboriginal people. The High Court rejected their interpretation of the Constitutions Section 51(xxvi) and the Commonwealth Howard government argued that it is not up to the High Court to examine the positive or negative impact of law and that the race powers section of the Constitution gave the Federal government an absolute head of power right over any race based law in Australia[14]. William states that the women’s High Court challenge was left inconclusive as the court was spilt 2:2 on the scope of the races power. Williams’s states[15]:

In the High Court, the Commonwealth argued that there are no limits to the races power, that is provided that the law affixes a consequence based upon race, it is not for the High Court to examine the positive or negative impact of the law.

Williams goes on to conclude that Australia requires a Bill of Rights to protect people from racial discrimination and ensure that fundamental human rights of all people are protected from any form of government implemented tyranny[16].

One can also conclude from the High Court’s interpretation of the scope of Section 51 (xxvi) is that at present none of the human races are excluded from the races power law. As long as the Federal government creates a law pertaining to any particular race it can have unlimited power for any such actions it desires, be it deemed negative or positive. Therefore even the Anglo-Saxon race is not precluded from the Races Power either as they too are considered a particular human race of the world and would also qualify for its applicability. Of course the Federal government is unlikely to create discriminatory laws against the predominate social and cultural group of the nation; as most Politian’s are still in fact descendants of the Anglo-Saxon stock of the United Kingdom; and hold the Political power in the country and therefore would unlikely reign any form of overt tyranny on their own kind.

Why are the origins of Section 51(xxvi) relevant to the current move for constitutional recognition of First Peoples?

The creation of the Races Power section of the Constitution was to ensure that the country’s Federal government can create discriminatory laws for people it considers ethnic. In 1967 it removed the restrictive clause that prevented the Federal government from dabbling in States dealing of Aboriginal affairs. It also enabled the Federal government an ability to create exclusively discriminatory laws for Aboriginal people, such as the Hindmarsh Island Bridge Act 1997 that prevented Aboriginal people from having their heritage protected. And as Williams highlight in his conference paper the Races Powers also can allow the Howard government’s detrimental implementation of the ‘Ten Point Plan’ amendment for Native Title and if the Ngarrindjeri women’s High Court action was successful it would have shown that the Howard government didn’t have the ability to create detrimental race based laws. However, the court was spilt on its conclusion and the government still maintains an ability to create detrimental laws for Aboriginal people and any people of a particular race.

Prof Ann Twomey suggests in her paper Indigenous Constitutional Recognition Explained – The issues. Risks and Options[17] that the Expert Panels deliberations on the recommendations for referendum that an additional Section 51A was required as the Constitutional head of power if the existing Section 51(xxvi) was to be totally repealed because it is perceived that Commonwealth Native Title and Heritage Protection laws will be rendered invalid if it is totally repealed. This has become the main logic behind the rationale to create another exclusive Aboriginal Races Power in the constitution and it is flawed because at the conception of Section 51(xxvi) it was to restrict the Commonwealth from creating laws for Aboriginal people, because the States wanted to maintain absolute control and it did not exclusively empower the Commonwealth of Australia to make laws for Aboriginal Peoples, as the Commonwealth government was in fact making laws for the Aboriginal populations within its own Territories jurisdiction. The clause only prevented its applicability to the States Aboriginal populations.

In 1967 this restrictive clause was removed and allowed both the States and the Commonwealth to collectively create laws for Aboriginal people. The argument that the Races Power section is needed to maintain Aboriginal specific laws is unfounded as the Commonwealth already exercised legislative power to make laws for the Aboriginal people in its own Territories; and the Aboriginal exclusionary clause was the only thing restricting the Federal government from applying law in the States to Aboriginal people. In fact the Commonwealth created laws for Aboriginal peoples well before 1967 with the Commonwealth Franchise Act 1902 Section 4 which read:

No aboriginal native of Australia Asia Africa or the Islands of the Pacific except New Zealand shall be entitled to have his name on the Electoral Roll unless so entitled under section forty-one of the constitution[18].

This shows that the Commonwealth government does assume to maintain a power to make laws for Aboriginal people in general outside the Races Power clause and that if the Races Power section of the Constitution is totally repealed then an additional race power clause is not needed to ensure that the Federal government has an assumed  right to make laws for people of the Aboriginal race, and therefore, Aboriginal Heritage Protection laws and Native Title laws would remain intake.

Most of the prominent commentators, such as Twomey[19] Leibler[20], for the recent move to amend the Constitution to Recognise Indigenous people espouse the same irrational view that if the Races Power section of the Constitution is totally repealed then the power to make laws for Aboriginal people will revert back to the States for sole control to make laws for them. Twomey states[21]:

It is this debate which underlies the Panel’s recommendation to repeal s 51(xxvi) and insert a new s 51A. Ideally, there should be no provisions in the Constitution that permit laws to be enacted by reference to race. The simple repeal of s 51(xxvi) would therefore be acceptable to most people. The problem, however, is that this provision also supports existing federal legislation such as the Native Title Act 1993 and the heritage protection of sacred sites. The repeal of s 51(xxvi), without the substitution of a new power, would potentially render these laws invalid, leaving it to the States to legislate to deal with these matters and opening up the risk that lesser levels of protection might be given. Further, direct Commonwealth funding of programs that aid Indigenous Australians might be threatened if the Commonwealth did not have an express legislative power to make laws with respect to them.

And Mark Leibler comments in the Sydney Morning Herald:

But removing the race power without replacing it would have unintended consequences, as a number of current laws such as native title and heritage protection laws depend on it.[22]

Here Twomey and Leibler suggest that the power to make laws for Aboriginal people in Australia stems solely from the Races Power section of the Constitution and that if it’s gone then so is the Commonwealth’s power and ability to make laws for Aboriginal people. This is an incorrect assumption. This logic is contradicted by the fact that the Commonwealth was indeed making laws for Aboriginal people such as the Commonwealth Franchise Act 1902 long before the 1967 referendum which removed the States restrictive exclusionary clause for Aboriginal people from Section 51(xxvi) of the constitution. This clearly shows that legislative power is not derived from Section 51(xxvi) because the Commonwealth was enacting laws well before it was supposedly claimed to be allowed to in the Commonwealth of Australia.

Also, as outlined by Bartlett in his paper, The Mabo Decision he highlights that the High Court ruling on the concept of Native Title is that is exists at common law and that no recognition by legislation nor the executive is necessary to empower it to exist in law[23] . This High Court decision reflects the powers of the Royal Proclamation of 1763[24] which states that Aboriginal title to land exist at the expressed wished of the Crown and therefore is a supreme ruling law in all the lands in the dominion of the Crown, therefore, Section 51(xxvi) of the Australian Constitution is not needed to enable Native Title to exist in law. This would suggest that the only laws that would be rendered invalid in Native Title would be the detrimental amendments, if the Races Powers was totally repealed. Section 51(xxvi) the same year empowered the Howard government to create the Hindmarsh Island Bridge Act 1997 to prevent Aboriginal people from exercising powers from the Heritage Protection Act to save their sacred women’s site and that this Races Powers section too empowers the racist amendments to the Native Title Act of 1997.

Also, the irrational view held by prominent commentators that Aboriginal Heritage Protection laws would be rendered invalid if Section 51(xxvi) of the constitution is totally repealed is an oxymoron as highlighted by Williams[25] in the Hindmarsh Island case where the Races Power act of the Federal government enabled them to suspend the Heritage Protection Act and to allow the destruction of an Aboriginal sacred site for infrastructural development. The same way it enabled the Howard government to suspend the Racial Discrimination Act 1975 to maintain impunity from the law when it implemented the Northern Territory Emergency Intervention Act of 2001. All of these laws were created by the Howard government and misusing the Races Powers of the Constitution was something his government knew full well about as his Commonwealth defending lawyer in the Hindmarsh Island Case openly argued that ‘there are no limits to the races power, that is, provided that the law affixes a consequence based upon race’ and that the High Courts is prevented from examining the positive or negative impact of the law[26]. Williams explains that the High Court judges did not dismiss this claim the case was left unresolved and Justice Kirby dissenting judgement recommended ‘that the operation of Section 51(xxvi) ‘should be significantly altered’ so as to permit only positive or benign discrimination’[27].

Conclusion

The origins of Section 51(xxvi) are wrapped up the need to the States to restrict the Commonwealth government from interfering in its Aboriginal affairs and predominately for the Commonwealth to have a head of power right to discriminate against people it deemed ethnic to them and restrict their freedom and movements in the newly established federation.

The misnomer being widely held by commentators of the Indigenous Constitutional Recognition movement is that 1967 gave the Federal government the right to make laws for Aboriginal Peoples. This is incorrect in that the Commonwealth of Australia claimed to have a right to make laws for Aboriginal people within its own Territories since its beginning and is shown by early legislations that it created soon after Federation. It did not have the power to make laws in the States before the 1967 referendum, and only because of the restrictive exclusionary clause placed on them by the States in Section 51(xxvi) because they did not want the Commonwealth to interfere. If section 51(xxvi) is to be totally repealed in the proposed upcoming referendum to recognise Indigenous Peoples in the constitution then the power to make laws would not return to the States as it is incorrectly proclaimed.  The 1967 referendum removed the restrictive clause from the Races Power and the Commonwealth government universally claims to have the right to make laws for Aboriginal Peoples and is shown with its managing of its Aboriginal populations within its Territories.

Native Title exists in common law and does not require section 51(xxvi) to exist, however, the racist amendments made in 1997 to the Native Title act do require that the government maintain a Special Races Powers over Aboriginal people so they can enact this detrimental law and the same goes for the Hindmarsh Island Bridge Act, they both require that the government can discriminate based on race to remain valid. So the total repeal of section 51 (xxvi) and the prevention of creating another Special Races Power for the Federal government is the most favourable option for First Peoples in this country. Let us let the mistakes of the Howard government be learnt and let them fall where they may and prevent any Federal government from an ability to create detrimental racist laws in the future. The suggestion to create a Section 51a or amending Section 51(xxvi) and enabling the Federal government to have a Special Races Power over Aboriginal Peoples needs to be widely condemned, as it is and always will be fundamentally a racist move.

The best move for the country is to remove the right for the government to make detrimental racist laws in this country. And the option of providing them with another more specific right to make exclusive race based laws for Aboriginal and Torres Strait Islander people is to be rejected wholeheartedly by every decent person in the country. The right to make laws based on race is appalling and something that should never be repeated. In the words made famous by George Santayana ‘If we don’t learn from the mistakes of the past then we are condemned to repeat them’, rings most loudly here. We must as a modern society understand our past and learn from our mistakes and we must never repeat them. We must say good-bye to Special Race Power clauses in any Constitution and not recreate it.

The ideal movement for this country is to rectify its past mistakes. To go back to the start and find the root cause of what is ailing this nation when it comes to the lands First People, and identify the problem and remedy it.

From the team at WE OPPOSE RECOGNITION and from a First Peoples of the continents perspective, we can see that at the root of this colonial conundrum is the fact that basic human decency and respect has yet to be shown to First Peoples from the colonial institutions that now reside on this land. No treaty was ever agreed upon and not one of the First Nations Peoples have acquiesced their sovereignty to the Crown. This leaves the fundamental question to be asked: how can the Commonwealth claim to have the right to make laws for a separate sovereign groups of Peoples that have not been conquered nor acquiesced their sovereign right to govern themselves and their homelands? When was First Peoples’ consent to be governed obtained? Where is the social contract? Australia fundamental dilemma is that it has no legitimate claim to authority over First Peoples and their land. If the country is not looking to amend the root cause to its problems than why waste our time and energy on tinkering around the edges and potentially making things worse? And this is one of the reasons why WE OPPOSE RECOGNITION!

Our ancestors from the start fought for self-determination and human equality, from our frontier warriors to our legends like William Cooper and up to our present day freedom leaders. The dream of freedom must come to fruition in this country. Freedom, self-determination and basic human equality is the truth of all humanity. Until it’s realized and enacted on earth for all Peoples, humanity will struggle to reconcile with its collective-self. Truth and Freedom must prevail. Sovereignty Never Ceded!

[1] Sawer, Geoffrey. 1966. The Australian Constitution and the Australian Aborigine. Federal Law Review. Volume 2. p 17-36.

[2] Ibid.

[3] Ibid P19, as seen in. National Australasian Convention Debates, Sydney. 1891. P 953.

[4] Commonwealth of Australia Constitution Act. 1901.

[5] Joyce, B, R. 1983. Griffith, Sir Samuel Walker (1845–1920). Australian Dictionary of Biography, Volume 9, (MUP) URL :http://adb.anu.edu.au/biography/griffith-sir-samuel-walker-445 Accessed 2/09/2015

[6] Anonymous. The ethnology of the Australian Blacks. Australasian Anthropological Journal. 10 August 1896.

[7] Sawer, Geoffrey. 1966. The Australian Constitution and the Australian Aborigine. Federal Law Review. Volume 2. P 23

[8] Ibid.

[9] Ibid p 24, as seen in. Smoke Signals. 1965. Vol.4. No. 2, 13-14.

[10] Harrison Moore. 1910. 2^nd ed. The Constitution of the Commonwealth of Australian. p 462. As seen in Sawer, Geoffrey. 1966. The Australian Constitution and the Australian Aborigine. Federal Law Review. Volume 2. p 20.

[11] Quick and Garran. 1901. The Annotated constitution of the Australian Commonwealth. As seen in Sawer, Geoffrey. 1966. The Australian Constitution and the Australian Aborigine. Federal Law Review. Volume 2. p 20.

[12] Sawer, Geoffrey. 1966. The Australian Constitution and the Australian Aborigine. Federal Law Review. Volume 2. p 17-36.

[13] Williams, George. Conference Paper: Race and the Australian Constitution. Australasian Study of Parliament Group. National Annual Conference. Northern Territory Parliament, Darwin: 3 – 5 October 2012.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Anne Twomey, “Indigenous Constitutional Recognition Explained – The Issues, Risks and Options”,

Constitutional Reform Unit, University of Sydney Law School, p.6:

http://sydney.edu.au/law/cru/documents/2012/Indigenous_Recognition.pdf

[18] Commonwealth Franchise Act 1902. Museum of Australian Democracy.   http://www.foundingdocs.gov.au/item-sdid-88.html

[19] Anne Twomey, “Indigenous Constitutional Recognition Explained – The Issues, Risks and Options”,

Constitutional Reform Unit, University of Sydney Law School, p.5:

http://sydney.edu.au/law/cru/documents/2012/Indigenous_Recognition.pdf

[20] Leibler, Mark. Jan 20, 2012. Racism still shadows our history. The Australian constitution must abandon the 19th century idea that Aboriginal people’s identity is based on race. Sydney Morning Herald. URL: http://www.smh.com.au/it-pro/racism-still-shadows-our-history-20120119-1q8iq.html

[21] Anne Twomey, “Indigenous Constitutional Recognition Explained – The Issues, Risks and Options”,

Constitutional Reform Unit, University of Sydney Law School, p.5:

Click to access Indigenous_Recognition.pdf

[22] Leibler, Mark. Jan 20, 2012. Racism still shadows our history. The Australian constitution must abandon the 19th century idea that Aboriginal people’s identity is based on race. Sydney Morning Herald. URL: http://www.smh.com.au/it-pro/racism-still-shadows-our-history-20120119-1q8iq.html

[23] Bartlett, R.H. 1993. The Mabo Decision. Butterworths. Pp 5-26.

[24] King George III. Royal Proclamation of 1763. October 7, 1763.

[25] Williams, George. Conference Paper: Race and the Australian Constitution. Australasian Study of Parliament Group. National Annual Conference. Northern Territory Parliament, Darwin: 3 – 5 October 2012.

[26] Ibid.

[27] Ibid.