Terry, John --- "Damned Wilderness & Special Laws" [1983] AboriginalLawB 15; (1983) 1(8) Aboriginal Law Bulletin 2

• Damned Wilderness &Amp; Special Laws

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Damned Wilderness & Special Laws

by John Terry

That the Commonwealth has the power to prevent the construction of the Gordon below Franklin dam will now be well known.

Under the Constitution, the federal government may only pass laws where it is specifically authorised to do so. It needs to. have a constitutional peg on which to hang its legislative hat.

As the area in which the dam was to have been constructed is included in the World Heritage List and is therefore the subject of a United Nations convention, one of the heads of power that the Commonwealth relied upon was its capacity to make laws with respect to external affairs. By a majority of 4 to 3 the High Court found that this was a valid exercise in accordance with the principles expounded in Koowarta v Bjelke-Petersen.[1] The same four Justices, Mason, Murphy, Brennan and Deane JJ., held that the proposed laws were valid under another head of power which by s.51(xxvi) enables the Commonwealth to legislate with respect to "the people of any race for whom it is deemed necessary to make special laws". The remaining three Justices, Gibbs C.J., Wilson and Dawson JJ. were of the contrary view.

Since the referendum of 1967 which allowed the deletion of the words "other than people of the Aboriginal race in any State" following the word "race" in the paragraph, this power has been of particular relevance to the Aboriginal people. During the Fraser years, the Commonwealth steadfastly refused to intervene in the Queensland and Western Australian governments' dealings with Aborigines on the basis that it did not know if it had the power to do so. The Tasmanian Dams Case gives guidance in this regard.

All the members of the High Court appear to have agreed on the essential character of a law whose validity is to be dependent on the paragraph. First, it must be a law made with respect to people of a particular race and secondly it must be a special law - it must have some special connection to the people of the race concerned. It is outside the power if the law applies generally to people of all races. (Thus the Race Discrimination Act (1975) was found to be invalid under this head in the Koowarta Case as that is a law of general application.) Brennan J., in the majority, briefly traced the history of paragraph (xxvi) noting that in its original form it was conceived to authorize the Commonwealth to make laws discriminating adversely against particular racial groups. (It was indeed used by the early parliaments to repatriate former indentured labourers and their descendants to the islands of Melanesia in pursuance of the White Australia policy.)

The Chief Justice expressed his view that history supports an interpretation of the word "for" in the paragraph as meaning "with reference to" rather than "for the benefit of' - that it is purposive in effect rather than proposive of advantage. It underlies the judgment of Murphy J., however, that the proposed law is to be for the benefit of the persons of the race and it is stated by Brennan J. that the effect of the 1967 referendum was

an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial.

The meaning of the word "race" was considered at some length by Brennan J. who noted the difficulty in arriving at any precise definition in the light of current scientific thinking. Having had regard to the New Zealand and English precedents he concluded that actual proof of descent from ancestors who were acknowledged members of a race is admissible to prove an assertion of membership of a race but it is not exhaustive - physical similarities, a common history, common religion and common culture tend to create a sense of identity among members of a race and are matters to which others have regard in identifying people as members of a race. Deane J. also noted that the word had a wide, non-technical meaning and that any doubt that Aborigines were a "race" for the purposes of the Australian Constitution was removed by reference to the original wording of the paragraph. Murphy J. found that to decide otherwise would make a mockery of the 1967 referendum. The remaining Justices appear to have had no difficulty in accepting this nor in rejecting the assertion that the Tasmanian Aborigines are extinct.

The crux of the differences of opinion between the members of the High Court is the nature of what is properly to be regarded as a "special law".

There was evidence before the Court that the area subject to the proposed flooding is an extraordinarily rich archeological site including two limestone caves - Kutikina Cave and Deena Reena Cave - which contain evidence of human habitation from over 20,000 years ago. It was alleged that further investigation was likely to transform the archeological knowledge of the stone tool technology of the Ice Age in Tasmania. There is evidence of economic and cultural systems of the inhabitants who, in prehistoric times, were the most southerly dwelling human beings on earth.

The combined effect of sections 8 and 11 of the World Heritage Properties Conservation Act (1983) is to protect proclaimed sites from damage or destruction.

The minority accepted the argument of the Tasmanian government that, as the sites must be of outstanding universal value since otherwise they cannot form part of the cultural or natural heritage which is the subject of the Act, the proposed law was not a special law. The prohibitions in the Act are directed to the protection of the sites generally and not to the preservation of any particular feature of the sites which gives them significance to Aborigines. Because the sections confer no rights and impose no duties on members of the Aboriginal race as such, or on other persons in relation to their dealings with members of the Aboriginal race, they are not a law with respect to the people of the Aboriginal race. Moreover, Gibbs C.J. found that the artefacts and relics to be protected were of such antiquity that they are of significance to all humankind and so a law for their protection is not a special law for the people of any one race. Wilson J. found strength in this reasoning as the sections which were said to bear a special character are embedded in a statute which exhibits in all its parts the indelible imprint of the general law. He felt that for a law to be valid under paragraph (xxvi) it must of its very nature be discriminatory - that it address itself to a problem that is peculiar to the particular race.

The majority of the court rejected this narrow view. Mason J. found that the cultural heritage of a people is so much a characteristic or property of the people to whom it belongs that it is inseparably connected with them. The contrary view fails to acknowledge that something of significance to all humankind may have a special and deeper significance to a particular people because it forms part of their cultural heritage. Brennan J. agreed and added that a law which does not discriminate on its face may nevertheless be valid if it has a particular significance to people of a race in its operation. Murphy J. found further that such a law may not only strengthen the common understandings that make Aboriginal people conscious of their identity but may promote tolerance of their position among the general community. A law aimed at the preservation or uncovering of evidence about the history of the Aboriginal people was therefore a special law.

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[1] [1982] HCA 27; (1982) 56 ALJR 625; [1982] AboriginalLB 27; 1(4)g8.