Editors --- "Legal Studies" [2000] AltLawJl 83; (2000) 25(5) Alternative Law Journal 215

• LEGAL STUDIES
• Discussion questions
• References and resources

LEGAL STUDIES

In his article, 'A Racist Constitution for a Nation: A Nation of Racists', Graham Nicholson argues that the Constitution was framed in a racially discriminatory manner and allowed the Commonwealth parliament to pass racially discriminatory legislation. Following are a series of questions and discussion topics based on that article. They are aimed at enhancing students' understanding of the constitutional history of Australia and the way that history has shaped our legal system.

• Why, according to Nicholson, did the Constitution include the power to make laws 'for the people of any race'?

• Can you think of any laws that Nicholson might be referring to when he states: '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.'

• Nicholson discusses the 1967 Referendum, which allowed an amendment to s.5l(xxvi) of the Constitution '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'. This amended section has since been interpreted by the High Court as allowing the Commonwealth parliament to make laws for the benefit or the detriment of the people of any race.

1. Do you think this was the intention of the Australian people when the referendum was passed?

2. Should the High Court take into account the intention of the people passing a referendum when they later interpret that amended section?

3. If so, how can they 'discover' that intention?

• Can the Commonwealth parliament make laws contrary to those that it has already passed?

• What is the impact of international agreements to which Australia is a party in Australian domestic law?

• Can a law be passed in Australia that contradicts fundamental human rights?

• What is a Bill of Rights? Could such an instrument ensure 'a binding and permanent domestic legal ban on all forms of racial discrimination, of a non-derogable nature' which Nicholson says is required? Would anything less than a Bill of Rights do the job?

Discussion questions

• It is the role of the executive arm of the government to enter into treaties. Signing a treaty does not make the treaty binding in Australian law. Given this, how seriously should the executive take its treaty-making obligations? Should the executive be required to take them into account when making an administrative decision?

• Should the parliament have the power to 'veto' the signing of treaties or have any say in the treaty-making process at all? If so, what ramifications would this have for the separation of powers doctrine?

• The power of the Commonwealth parliament has been expanded by the interpretation by the High Court of s.51(xxix), the External Affairs power. How does this power effect the concept of 'Federalism'?

References and resources

Kartinyeri v Commonwealth [1998] HCA 22; (1998) 72 ALJR 722.

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

Attwood, B., Markus, A., Edwards, D. and Schiiling, K, The 1967 Referendum or When Aborigines Didn’t Get The Vote, AIATSIS, 1997.

Marcus, A., Australian Race Relations 1788-1993, Allen & Unwin, 1993.

Chesterman, J. and Galligan, B., Citizens Without Rights, Cambridge University Press, 1997.

Links to Constitutional Law materials can be found at: <http://www.australianpubliclaw.com/HomePage/genwebsites.htm>