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The next step: a treaty and racism-free law

By George Williams - posted Wednesday, 27 February 2008


The women argued in the High Court that the Hindmarsh Island Bridge Act was invalid. They said that the races power only allowed Parliament to pass laws that were for the benefit or advancement of a particular race. Hence, the Parliament could pass legislation directed at providing health care for the specific needs of a racial group. On the other hand, the power could not support Nazi-style laws banning people of a race from working in certain professions or from attending particular schools.

The Commonwealth asserted that the power enabled it to do just that. It argued that there were no limits to the power so long as the law affixed a consequence based on race. In other words, it was not for the High Court to examine the positive or negative impact of the law.

As the federal solicitor-general, Gavan Griffith, QC, said for the Commonwealth, the races power ''is infected, the power is infused with a power of adverse operation''. He also acknowledged ''the direct racist content of this provision using 'racist' in the expression of carrying with it a capacity for adverse operation''. In this way the federal government argued that the Commonwealth still had the power to pass laws that discriminated against Australians on the basis of their race.

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This is obviously abhorrent to most Australians, and is also inconsistent with accepted community values such as equality under the law. On the other hand, this is exactly what the framers of our Constitution intended. A divided High Court handed down its decision on April 1, 1998. The result was that the Hindmarsh Island Bridge Act was upheld, with the court split on whether the races power can still be used to discriminate against Indigenous or other peoples. This fundamental question remains unresolved.

Faced with the great wrongs done to the Stolen Generations, an apology was the right place to start. However, it is only a start. This was recognised by Prime Minister Kevin Rudd, who said that work would begin towards a referendum to provide positive recognition of Aboriginal people in the Constitution for the first time.

However, even this further symbolic change will not be enough to remove the latent racism from our Constitution. The races power must also be deleted and replaced with a power to make only positive laws on behalf of Aboriginal people. A separate provision should also be added to outlaw racial discrimination against anyone in Australia. Until this has been achieved, laws can still be passed such as those that gave rise to the Stolen Generations.

This was recognised by the High Court in the 1997 decision of Kruger v Commonwealth, known as the Stolen Generations case. In rejecting the arguments of five members of the Stolen Generations as well as a mother who had lost her child, the High Court could find nothing in the Constitution inconsistent with laws such as the Aboriginals Ordinance of 1918.

While we are at it, we should delete section 25 of the Constitution. It recognises that state parliaments can disqualify people from voting on account of their race. It also has no place in a modern democracy. These constitutional changes are long overdue, as is an agreement with Australia's first people. This reflects the recommendations in 2000 by the Council for Aboriginal Reconciliation, which found that Parliament should enact legislation ''to put in place a process which will unite all Australians by way of an agreement, or treaty, through which unresolved issues of reconciliation can be resolved''. This could be the linchpin of the next stage in the reconciliation process.

In other countries such as New Zealand and Canada, a treaty is the accepted way of achieving a lasting settlement between Indigenous and non-Indigenous people. Australia is the only Commonwealth nation without an agreement.

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The framing of the Australian Constitution led to a pattern of discrimination against Indigenous people. It enabled the laws that brought about the Stolen Generations. While Parliament has said sorry, it needs to go further. It must tackle the unresolved problem of racism in our legal system and ensure that the wrongs done to the Stolen Generations can never be repeated.

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First published in The Canberra Times on February 16, 2008.



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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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