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Graham Nicholson[*]
The title to this article is deliberately provocative. It asserts that the Commonwealth Constitution is based on racially discriminatory principles, both as originally devised and adopted in 1901, and as interpreted in more contemporary times. It questions whether this necessarily implies that Australians support a domestic legal and social system based on racism, given that the supreme legal document of that system, the Constitution, is based on these racist principles. It draws attention to the contradictions inherent in Australia’s international legal position in this regard, and raises the possibility of a constitutional change.
The first assertion involves not only the proposition that the Constitution does not prohibit racial discrimination in Australia, but that it is not even racially neutral. On the contrary, the view is taken that the Constitution promotes a race-based legal and social system in Australia. To support this assertion, it is necessary to refer briefly to the period leading up to the adoption of the Constitution in 1901, and then to some relevant events thereafter.
The Australian continent was settled and occupied in the 18th and 19th centuries by people of predominantly white-skinned Anglo-Irish extraction, being mainly English speaking and British subjects of the Crown. This is illustrated in the census of 1901. Of a total Australian population of 3,788,204 at that time, only some 29,907 were Chinese, with 9327 being Pacific Islanders in Queensland, otherwise called ‘Kanakas’, plus smaller numbers of other coloured minorities. The vast majority of the remainder were of this Anglo-Irish stock, apart from people of Aboriginal descent the numbers of whom had dramatically declined since European settlement.[1]
Notwithstanding the relatively small numbers of people of Asian and Pacific origins in Australia, the immigration to Australia of such people in the 19th century due to the gold rushes and other factors gave rise to considerable resentment among people of European descent. The colonial legislatures, under their recently acquired powers of self-government, reflected this concern by introducing laws to restrict Chinese immigration to their respective colonies. Some of this legislation met some opposition from the British Colonial Office, in the light of relevant international commitments by Great Britain. But the Australian colonies persisted. This led to litigation in Victoria, the outcome of which was a Privy Council ruling to the effect that no alien had an enforceable legal right, apart from legislation, to enter a British territory.[2] A number of the Australian colonies then legislated in 1895 to extend their restrictive immigration legislation to foreigners from all parts of Asia, but this legislation was reserved and not assented to. Instead, it was suggested to the colonies that the model of the Natal Act be adopted, which included a requirement of a written European language test for would-be new migrants. A number of the Australian colonies then legislated to adopt this model.[3]
The Colony of Queensland had the additional experience in the second half of the 19th century of the immigration to that Colony of a number of Pacific Islanders, often by way of forced abduction from their home islands. They met the intensive labour needs of the developing sugar industry. But considerable objection was taken to this practice by workers of European extraction and their new unions. As a result, reliance on Pacific Islander labour had begun to decrease as the turn of the century approached. The sugar industry had largely resigned itself to the fact that if Queensland joined the new Commonwealth of Australia, trade in Pacific Islander labour would have to come to an end.[4] Onetime Queensland Premier and Chief Justice and a leading delegate to the Constitutional Conventions of the 1890s and one of the draftsmen of the new Constitution, Sir Samuel Griffiths, supported an end to this trade, as did other leading politicians such as Sir Littleton Groom.
There were also pressures within the Australian colonies to legislate to restrict the rights and opportunities of people of non-European descent who had already migrated to those colonies. At least one of the colonies, Western Australia, had taken the step before 1901 of legislating in such a racially discriminatory way to prohibit people of Asian or African origin already in that Colony from obtaining certain mining tenements.
The relatively small numbers of non-European immigrants to the colonies in the 19th century has already been noted. But despite this, it is clear that fears of coloured labour were to some extent a factor in the lead up to federation in 1901. It is said that between 1880 and 1900, the fear of such labour degenerated into hysteria in the eastern colonies. This extended to an obsession with the perceived evils of miscegenation and with the problem of permitting Chinese, Japanese, Pacific Islanders or Indians to live in Australia where they were believed not to share in the political tradition of bourgeois or liberal democracy.[5] There was considerable racist sentiment in the colonies at that time, a factor that undoubtedly had an effect on the drafting of the new Constitution, although care needs to be taken not to grossly exaggerate the effect of this sentiment in the causal factors resulting in federation.[6]
Out of this colonial scenario was borne the concept of ‘White Australia’, the belief that Australia should be preserved for only the white skinned European races, primarily of Anglo-Irish stock. This was a conceptual term already in use before federation. It very quickly became the unchallenged national policy of the new federal government and Parliament after 1901. There is no doubt that the delegates to the Constitutional Conventions of the 1890s had this concept in mind and saw a need for a national approach to the issue. The fact that they did not excessively dwell on this concept in their debates does not indicate the strength of their sentiments in this regard. It was simply accepted that the proposal for federation was one of bringing together the English-speaking British subjects residing in the participating colonies in a new constitutional arrangement under the Crown within the British Empire, in a manner that left no room for aliens of coloured skin. That the new Constitution was to be drafted to meet these expectations did not need to be spelt out and debated by the delegates at length.
Consequently, the first draft of the new Constitution included a concurrent but very wide legislative power for the proposed Commonwealth Parliament to control immigration to Australia, as well as a similar power with respect to aliens already in Australia, capable in their terms of extending to members of coloured races, including the Pacific Islanders.[7] The new Commonwealth Parliament proceeded at an early date to enact the Immigration Restriction Act 1901 to restrict immigration to Australia, using the Natal Act model. It also legislated to provide for the deportation of Pacific Islander labourers from Australia, legislation that was unsuccessfully challenged in the High Court.[8]
The first draft of the Constitution also included an exclusive Commonwealth legislative power with respect to the affairs of people of any race for whom it was deemed necessary to make special laws, a power that was intended to deal with members of any coloured race already in Australia, including those who were British subjects.[9] By these means, full Commonwealth legislative power to deal with the matter of race was assured. However, this latter power expressly excluded the ‘aboriginal native race in Australia and the Maori race in New Zealand’, an exclusion designed to ensure that legislative power over the indigenous peoples remained with the component States in the new federation, and thereby ensuring that the States had wide legislative powers over them, unimpeded by any constitutional limitations. In addition, that first draft provided that the ‘aboriginal natives of Australia’ were not to be counted in any Commonwealth census.[10] The reference to the Maori race was of course deleted in later drafts when New Zealand indicated its unwillingness to enter the federation, but the exclusion of the Aboriginal race in the ‘race’ power remained. That ‘race’ power eventually became a concurrent Commonwealth legislative power in a later draft. Thus the indigenous people of this country were relegated by federation to the ignominious position of having only two express references to them in the Constitution, both in lower case letters, and both by way of exclusion. There were of course no Aboriginal delegates to the Constitutional Conventions of the 1890s, although a very few Aboriginal people on the roll may have voted for or against the draft Constitution in those colonies that permitted them the vote at that time.
Reflecting the limited nature of the right of Aboriginal people to vote in the 1890s, the first draft of the new Constitution contained a racially discriminatory provision, requiring in effect that people of any race not entitled to vote in State elections for the lower house of State Parliament were not to be taken into account for purpose of the population quota for the new House of Representatives.[11] This provision in slightly different terms still survives in s.25 of the Constitution, and provides clear support for the intention to facilitate racially discriminatory measures under the Constitution. That section may not have any current practical effect due to current State voting laws, but it continues as a discriminatory constitutional provision of potential future application.
In other respects, it is clear that the Constitution as drafted was designed to facilitate the enactment of Commonwealth legislation that had a racially discriminatory effect. This necessarily followed from the premise that a primary role envisaged for the new Commonwealth Parliament was to ensure the implementation of the ‘White Australia’ policy on a uniform national basis. Delegates accepted that this could never have been effectively achieved on a separate colony by colony basis.
Further, the Commonwealth Parliament’s power to enact special laws with respect to a particular race, as the relevant clause finally emerged from the Convention debates, was clearly intended to facilitate Commonwealth legislation that could either advantage or disadvantage people of any race. So much was accepted without contrary argument recently in the High Court,[12] a view that must be taken to have been endorsed by the majority of the Justices in that case.[13] There was some resistance by some of the delegates to the Constitutional Conventions of the 1890s to the idea that either the Commonwealth or the State Parliaments should have any power to legislate in a discriminatory manner on the basis of the race of people already lawfully in Australia,[14] and the first draft of the Constitution had contained a clause 17 in an earlier Chapter V, preventing the States from denying to any person within the jurisdiction the equal protection of the laws. But in later Convention debates, the expressed desire to preserve State legislative capacity as far as possible, including by way of State laws as to particular races, prevailed. The ‘race’ power was removed from the list of Commonwealth exclusive legislative powers to the concurrent list, and the equal protection clause was deleted, to be replaced by the present and much more limited provisions of s.117 of the Constitution.[15]
In summary, the Constitution as finally adopted contained a clear power for the Commonwealth Parliament to legislate in a manner that discriminated on the basis of race, both as to immigrants coming into Australia, as well as to people (whether British subjects or otherwise) of a particular race already in Australia. There was an expectation that the new Commonwealth would use these wide powers to implement the ‘White Australia’ policy, which it proceeded to do. That Constitution contained, and still contains, a direct constitutional requirement to discriminate on the basis of race in certain voting matters. There was no contrary constitutional limitation in the nature of an equal protection clause or a non-discrimination clause on the basis of race or the like, either at the Commonwealth or the State level. And the Constitution left Aboriginal people entirely under the control of the States and their Parliaments, with freedom to enact State laws that discriminated against them or otherwise. A number of discriminatory laws on the basis of Aboriginal race were thereafter enacted by the States, followed later, when the Northern Territory became a territory of the Commonwealth in 1911, by similar Territory laws. Such a summary must, it is submitted, lead to the conclusion that the Constitution was designed to promote a race-based legal and social system in Australia.
This position under the Constitution at 1901 has not since altered in any material degree. As a matter of national approach, the ‘White Australia’ policy has been dropped from the main party platforms, and at least at that policy level the Australian government proclaims that it no longer discriminates in its immigration programs on the basis of race. But this does not reflect any constitutional change. The only relevant constitutional change was the 1967 amendment by national referendum to delete all references to members of the Aboriginal race from the Constitution, and in the process giving the Commonwealth Parliament concurrent legislative power under s.51(xxvi) to make special laws for people of that race. An endeavour to use that constitutional amendment and the accompanying referendum material to reinterpret s.51(xxvi) to only permit Commonwealth laws that were beneficial to people of the Aboriginal race, and not to their disadvantage, clearly failed by a majority in Kartinyeri v the Commonwealth (Kirby J dissenting). It is submitted that on a correct reading of the majority High Court judgments in that case, and in the light of the racially discriminatory nature of the Commonwealth legislative amendment under consideration in that case, that the ‘race’ power continues to be one which can be used to discriminate for or against people of a particular race, subject only to a possible exception at the margins under the ‘manifest abuse’ test referred to by Gaudron, Gummow and Hayne JJ in that case. It is to be noted that Brennan CJ and McHugh J in that same case postulated that their view of s.51(xxvi) was subject to any prohibitions or limitations contained in the Constitution, but they discerned no such prohibition or limitation of relevance on the facts before them.
And of course, there continues to be no constitutional impediment to Commonwealth legislation of a racially discriminatory nature enacted other than in reliance on the ‘race’ power. Attempts by some members of the High Court to construct an implied constitutional doctrine of equal treatment under the law,[16] stalled in Kruger v Commonwealth.[17] In so far as there is a doctrine of equality under the law in Australia,[18] it is only operative at the common law level, and only applies to the law as recognised by the dominant legal system in Australia. At least in relation to Aboriginal people and Torres Strait Islanders, the common law has now extended legal recognition to surviving native customary title to land and seas and to matters incidental thereto,[19] subject to any relevant legislation such as the Native Title Act 1993 (Cth). But it is clear that this does not extend up to the present time to recognition of Aboriginal and Torres Strait Islander customary rights and entitlements generally.
From a State perspective, the enactment of the Racial Discrimination Act 1975 (Cth), making discrimination on the basis of race and related characteristics unlawful in Australia, has now limited the scope of State legislative power in this matter by virtue of the effect of s.109 of the Constitution. But from a Commonwealth perspective, this latter Act is simply ordinary legislation, capable of being overridden by later ordinary Commonwealth legislation, expressly or by necessary implication.
Arguably, there have already been some examples of later Commonwealth legislation that has contradicted the provisions of the Racial Discrimination Act. One example may well be the Hindmarsh Island Bridge Act 1997 (Cth), qualifying the operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in a manner that clearly disadvantaged particular Aboriginal people, as considered in Kartinyeri v Commonwealth. Another example may well be the 1998 amendments to the Native Title Act 1993 (Cth). The provisions of this Act, as originally enacted, were accepted by the Committee on the Elimination of Racial Discrimination as not being racially discriminatory, and the Act’s validity was subsequently upheld by the High Court.[20] However, the subsequent amendments made by the Native Title Amendment Act 1998 were found by that same Committee to be racially discriminatory in four respects in its decision handed down on 18 March 1999.[21] The Australian Government in turn has refuted the findings of that Committee, although it is to be noted that the 1998 amendments to s.7 of the Native Title Act now give the provisions of the Racial Discrimination Act a much more limited application to the Native Title Act than that applicable prior to those amendments. So while there may be a legal argument as to which view was correct in this regard — the Committee or the Australian government, the fact that the argument even exists points to the concern as to the legal potential for the valid enactment of Commonwealth domestic legislation with a racially discriminatory effect.
At an international law level, the events during World War Two, and in particular those of the Nazi holocaust, threw new light on the topic of racial discrimination and provoked a sense of international outrage, with demands for a new emphasis on international human rights, including in relation to racial discrimination. This was reflected in the Charter of the United Nations, calling for respect for human rights and for fundamental freedoms for all people without distinction as to race and other factors.
The new emphasis was carried over into the Universal Declaration of Human Rights, and into the International Covenant on Civil and Political Rights. In 1965, the International Convention on the Elimination of all forms of Racial Discrimination was opened for signature, and entered into force in 1969. Australia became a party to that Convention, and thereby assumed the international legal obligations under it to pursue by all appropriate means and without delay in eliminating racial discrimination and in promoting understanding among all races, so as to guarantee the right of everyone without distinction as to race, colour, or national or ethnic origin, to equality before the law in all fields of Australian public life.
Subsequently the Commonwealth Parliament legislated to implement in part this Convention in the Racial Discrimination Act 1975, supplemented later by the Racial Hatred Act 1995 (Cth), thereby rendering all forms of racial discrimination and racial hatred unlawful in Australian domestic law, applicable to all levels of government in Australia, although without creating new civil and criminal causes of action in respect of any breach. In this manner, the Australian government, as representing the nation in the international arena, has proclaimed its acceptance of the international community’s abhorrence of racial discrimination and has followed up this position with domestic legislation. It has also made discrimination on the basis of race one of the grounds for complaint under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), with the potential for a complainant to take the matter further in a federal court if the matter cannot be resolved before the Human Rights and Equal Opportunity Commission.
At international law, the illegality of all forms of racial discrimination is now firmly established. It seems inconceivable that this aspect of international law could be reversed at any time in the future. The fact that there have been a number of repeated cases of serious, widespread and systematic breaches of the Racial Discrimination Convention in recent decades, in many cases amounting to crimes against humanity, has only highlighted the international community’s abhorrence of this form of breach of fundamental human rights, and has lead to attempts to improve the international legal regime for dealing with such breaches. It is certainly not a reasonable argument in defence of Australia’s Constitution to assert that some other countries have a worse record than Australia in this regard. Arguably, the prohibition on racial discrimination is already part of customary international law even without the Racial Discrimination Convention, and has probably now reached the stage of a peremptory norm of international law, from which no derogation is legally possible in any circumstances by any member of the international community.[22]
But it continues to be the case that international agreements to which Australia is a party have no direct effect on Australian domestic law until implemented by Australian legislation. It appears that a similar legal principle also applies to the application of international customary law in Australian domestic law. It follows from this dualist position that although it is no longer legally possible at international law for any country (including Australia) to act in a racially discriminatory manner, domestically Australia is only legally bound by such prohibition in so far as the Commonwealth Parliament chooses from time to time to be bound by it. A Bill passed by a simple majority in both Houses of the Commonwealth Parliament will suffice for this purpose to alter the legal position in Australia. There is no significant constitutional limitation on any future Commonwealth legislation which permits racially discriminatory acts within Australian domestic law, even though in clear breach of international law and Australia’s international obligations.[23] The rebuttable presumption against domestic legislation contradicting fundamental human rights offers no guarantees. We are left with the future vagueries of political majorities in both Houses of the Commonwealth Parliament to determine the Australian legal position from time to time in this regard. It is a sad reflection on the state of Australian domestic law, and in particular the Constitution, that it has been unable to keep pace with contemporary international law developments in permanently and completely outlawing the very worst breaches of fundamental human rights, being those breaches of peremptory norms that are so outrageous that they should never be tolerated in any circumstances at any future time by any fair minded person or government.
In such a situation, it has to be asked how Australia as a nation can countenance a situation in the 21st century where its supreme domestic legal document, the Constitution, is designed to promote a system of racial discrimination, a position that constitutionally remains basically unchanged in Australia to this day, when Australia as a nation has voluntarily assumed international law obligations of a binding and permanent nature as to the prohibition on racial discrimination. Does this not necessarily imply that Australians still continue to support a form of legal racism in Australia, notwithstanding the contemporary international position of the Australian government and the fact that the Commonwealth Parliament has enacted ordinary legislation to make racial discrimination unlawful? Should not international law and Australian domestic law be fully consistent on such a fundamental issue? To be consistent with the present international position, a binding and permanent domestic legal ban on all forms of racial discrimination, of a non-derogable nature, would be required, capable of being judicially enforced by Australian courts in accordance with the rule of law. But on the present state of the domestic law as applied by Australian domestic courts, such a legal ban does not exist. Australians, it appears, are free to espouse and adopt the contradictory approach of an international legal position which does not at the same time necessarily accord with their domestic legal position. On any reasonable test, such a contradictory approach, in an increasingly interdependent world in which all people have certain inalienable minimum legal standards of human rights, is not tenable. Racial discrimination in all its forms is unjust and grossly offensive, is destructive of human solidarity, and is a major impediment to domestic and international peace and security. Its practice perpetrates too outrageous a violation of the dignity of human beings to be countenanced under any pretext.[24] If Australian courts are going to continue to insist on a strict dualist approach between international law and domestic law, even in the case of peremptory norms of international human rights law, then it is time that a prohibition on all forms of racial discrimination in Australian law was put beyond the reach of any politician in this country by an express constitutional amendment.
References
[*] Graham Nicholson is Adjunct Professor of Law, Northern Territory University and James Cook University.
[1] The Aboriginal population was estimated to have shrunk in numbers by 1901 to between 66,950 — see Rowley, C.D., Outcasts in White Australia, ANU Press, Canberra, 1971, pp.41-6 — and 94,564 — see Russell, Rosyln, and Chubb, Philip, One Destiny, Penguin, 1998, p.117.
[2] Chung Teong Toy v Musgrove [1891] UKLawRpAC 7; (1891) App Cas 272.
[3] Quick, Sir J. and Garran, R., The Annotated Constitution of the Australian Commonwealth, Legal Books, 1976, pp.623-7.
[4] Souter, Gavin, Lion and Kangaroo, Fontana, 1976, p.85.
[5] Clark, Manning, A Short History of Australia, MacMillan, 1982, p.163.
[6] Yarwood, A.T. and Knowling, M.J., Race Relations in Australia: A History, Methuen, 1982, pp.227-8.
[7] Original draft Constitution, ch.1, cl.52 (19) and (24), now to be found in s.51(27) and (19).
[8] Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395.
[9] Original draft Constitution, ch.1, cl.53(1), now to be found in s.51(xxvi). For the origins of this clause, see La Nauze, J.A., The Making of the Australian Constitution, Melbourne University Press, 1974, p.51.
[10] Original draft Constitution, ch.VII, cl.3, later to be found in s.127 until deleted in the 1967 national referendum.
[11] Original draft Constitution, ch. 1, cl.26.
[12] Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337.
[13] In Kartinyeri’s case, the main point was whether the 1967 referendum result amending s.51(xxvi) of the Constitution had changed the position in this regard, and not whether that head of power in its original form allowed racially discriminatory Commonwealth legislation. This case is discussed later in this article.
[14] Constitutional Convention Debates, Melbourne, 1898, Kingston, CC, pp.246-8, Symon, J.H., pp.248-50.
[16] Leeth v Commonwealth (1992) 174 CLR 455.
[17] Kruger v Commonwealth [1997] HCA 27; (1998) 190 CLR 1.
[18] Walker v NSW (1994) 182 CLR 45, Mason CJ.
[19] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.
[20] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, which decision also struck down the Land (Titles and Traditional Usage) Act 1993 (WA) as being inconsistent with the Racial Discrimination Act 1975 (Cth). The High Court held in that case the Native Title Act did not repeal the Racial Discrimination Act either retrospectively or prospectively — Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at pp.483-4. They added that the Native Title Act could be regarded either as a special measure under the Racial Discrimination Act, or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the Racial Discrimination Convention. They further added that even if there was inconsistency between the Racial Discrimination Act and the Native Title Act, the general provision of the former Act must yield to the specific provisions of the latter Act.
[21] Hoffman, Shane, ‘United Nations Committee on the Elimination of Racial Discrimination: Consideration of Australia under its Early Warning Measures and Urgent Action Procedures’, (2000) Aust J Human Rights 13.
[22] As to non-derogable peremptory norms generally, see Art 53 of the Vienna Convention on the Law of Treaties. As to the prohibition on racial discrimination being a peremptory norm of international law, see Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, Stephen J at 220, Nulyarimma v Thompson [1999] FCA 1192, Wilcox J at paras 18 and 21, Merkel J at para 78, and see Lineham, J, ‘The Law of Treaties’, ch.4 of Blay, Piotrowicz and Tsamenyi (eds), Public International Law: An Australian Perspective, Oxford University Press, 1997, p.107. There is widespread support for this view outside Australia.
[23] That Commonwealth legislation, within constitutional power, can validly operate domestically even though in breach of international law, has been clear since Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60. This principle, as presently enunciated by the Australian courts, apparently applies as much to peremptory norms of international law as to any other rule of international law.
[24] Universal House of Justice, The Promise of World Peace, CPN Publications, Canberra, 1986, p.15.
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