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The following blog-post has been contributed by CRU Intern Tim Craven:

It is generally agreed that the Commonwealth’s power to legislate ‘with respect to the people of any race for whom it is deemed necessary to make special laws’ (s. 51(xxvi)) should be repealed in any future constitutional referendum. Not only is repeal justified on the basis of its unclear scope but also the very existence of a power predicated on race - extra-judicially described by Chief Justice Robert French as a ‘harmful taxonomy of humanity’ - upsets contemporary Australian standards of equality. If the race power is repealed but not replaced, there is a risk that a number of present and future Commonwealth laws beneficial to Aboriginal people and Torres Strait Islanders would not find support within other heads of power. There are different views as to what exactly should replace s. 51(xxvi), with many of the suggested formulae bringing with them the problems that compel its repeal in the first place. A less commonly explored approach is to consider how current and future Indigenous-related legislation could draw on what remains in the Constitution so that a replacement head of power could be a more limited and nuanced power that is based upon need.

Proposed replacement heads of power generally allow the Commonwealth to legislate with regard to ‘Aboriginal and Torres Strait Islander peoples.’ This arguably perpetuates problems associated with s. 51(xxvi) related to its characterisation as a ‘people’s power’, that is, one that enables the government to make laws with respect to a specific group of people. Any form of differential operation, even if confined to positive measures, is itself a ‘false taxonomy’ by continuing to rely on racial classification as a criterion of legislative validity. This is inconsistent with notions of the legal equality of the people. Additionally, difficult questions of characterisation arise under a ‘people’s power.’ According to former NSW Chief Justice James Spigelman, a power based on making distinctions between people ‘may enable discriminatory laws to be enacted pursuant to [it].’

A proposed cure is to include qualifiers designed to clearly exclude discrimination from the purposes of the power, such as confining laws to Indigenous ‘benefit’ or ‘advancement’ or clarifying that laws should be passed ‘so as not to discriminate against them on the basis of their race.’ However, these terms bring with them interpretive difficulties, involving normative judgments for a branch of government designed to be apolitical. This may lead to the court declining to make such judgments and deferring to the legislature. Another suggestion has been to include a broad racial discrimination prohibition in the Constitution, but this is likely to muddy the issue of Indigenous recognition at referendum, jeopardizing the success of positive reforms.

An alternative worth considering is replacing the ‘race power’ with one still allowing the Commonwealth to legislate in relation to Indigenous issues, but on the basis of ‘subject-matters’ as opposed to ‘peoples.’ This does not deny that the Commonwealth should still have the power to ameliorate the effects of past inequality but attempts to avoid the pitfalls of a peoples power. This would not only remove the problematic connotations of ‘race’ as a constitutional fact but would also be less fraught with interpretive difficulties. Indeed, Justice Spigelman contended that ‘a subject matter power is…more likely to be read down in accordance with contemporary requirements of the rule of law and the rights of citizenship than a peoples power.’

What then should these subject matters be? Drafting a head of power that simultaneously upholds present indigenous-related legislation and ensures the validity of unknown future laws is no easy task. Any constitutional amendment should be formulated on the basis of need. As such, one avenue worth considering could be to determine what laws may stand up or be passed under the Constitution as is, and then to fill in the gaps with a subject matter power.

Importantly, the Commonwealth has already made use of the grants power (s. 96) to address indigenous issues relating to health, education, economic development and welfare through the provision of tied federal grants to the States. Repeal of the race power will not affect the status quo in that regard. The Commonwealth also has direct welfare powers in s 51(xxiiiA), including benefits to students, medical and dental services, unemployment benefits and family allowances.

The other provision the Commonwealth could rely upon is its power to legislate with respect to ‘external affairs’ (s. 51(xxix)). This power is particularly attractive as, owing to the High Court’s prevailing liberal interpretation, it is one that allows the Commonwealth to legislate on an expansive range of topics not confined within section 51. The mere existence of a treaty to which Australia is a party is, itself, enough to support a Commonwealth law that implements obligations under that treaty. With this in mind, it is important to consider what international agreements canvass indigenous-related issues. At present though, the utility of these treaties lies only in their potential to activate the external affairs power, as few are explicitly relevant to indigenous issues and Australia is yet to ratify those that are. Indeed, while some such as the World Heritage Properties Conservation Act have already been acknowledged judicially as relevant to Indigenous-related laws, only one treaty to which Australia is a party, the Convention on the Rights of the Child, makes direct reference to indigenous peoples (Article 30). Importantly though, Australia has previously indicated that it is considering ratification of the International Labor Organization’s Convention No. 169, the current most comprehensive formal treaty related to indigenous issues. Ratification would support domestic legislation on cultural heritage (Article 5), customary laws (Article 8), land rights (Article 14), and representative bodies (Article 6).

Reliance on the external affairs power would still bring with it some uncertainty, though, as any putative indigenous-related legislation must ‘conform’ to the provision of the treaties which it is intended to implement. Indeed, whilst it is not necessary to implement all provisions of a treaty, nor is it necessarily desirable to do so, the Commonwealth cannot pick and choose from them as it likes. According to the majority in the Industrial Relations Act case ‘a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention.’

The inability of the Commonwealth to ‘cherry pick’ for fear of rendering legislation constitutionally invalid is potentially problematic for a number of reasons. First, the legislature is confined to implementing obligations imposed by the treaty and cannot stray too far outside their terms. Secondly, any indigenous-related legislation would be vulnerable to legal challenge. For example, a seemingly essential condition of ILO No 169 is the requirement for consultation prior to passing indigenous-specific laws (Article 6), rendering any legislation relying upon this Convention susceptible to challenge if these procedures aren’t sufficiently followed or included within its provisions. The extent and nature of this ‘consultation’ may itself be subject to interpretational difficulties.

Whilst this feature of the external affairs power may be viewed as a disadvantage to the Commonwealth, it may be advantageous from the perspective of Aboriginal people and Torres Strait Islanders. Importantly, the requirement of conformity militates against issues of characterisation raised earlier. Given that these treaty obligations have been drafted solely for indigenous benefit, relying on s. 51 (xxix) to give effect to them means that the High Court is likely to assess any disadvantageous or detrimental legislation as not reasonably appropriate and adapted to implementing the terms of a treaty. Additionally, Aboriginal and Torres Strait Islanders may see particular benefit in a requirement of genuine consultation before laws affecting their interests are made. This, however, is likely to be a politically contentious issue.

The broadest international instrument significant to Aboriginal and Torres Strait Islanders is the United Nations Declaration on the Rights of Indigenous Peoples, which Australia has formally endorsed. It is unlikely that a mere declaration would currently be regarded as sufficient to support the enactment of legislation under the external affairs power, but it remains possible that the High Court might expand its interpretation of the power in this manner in the future, opening up a broader Commonwealth legislative power with regard to Indigenous affairs.

Clearly, formulating a replacement to the ‘race power’ is fraught with many challenges. Those drafting a constitutional amendment should explore a number of different avenues, ranging from a people power to a subject-matter power, taking into account the range of other powers upon which the Commonwealth may rely.

SUGGESTED CITATION: Tim Craven, 'Filling the gaps - Options for replacing the race power', Constitutional Critique, 1 June 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).