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Common(wealth) Knowledge #69: The 'race power' redefined

Why Australian legislation can be used to affect a particular race.

At a time when Australian political discourse is dominated by the Voice, CLP senator Jacinta Price’s comments about no ongoing negative impacts of colonisation, and the discovery of likely unmarked Aboriginal graves on three Western Australian missionary sites, the anniversary of one of Australia’s most important native title cases has gone by unnoticed.

Friday 15 September marked the 28th anniversary of Western Australia v Commonwealth (1995), otherwise known as the ‘Native Title Act Case,’ where the High Court unanimously upheld the legitimacy of the Native Title Act 1993 (Cth), which allowed Aboriginal communities to claim rights over certain land, based on their traditional laws and customs.

Following the landmark ruling in Mabo v Queensland (No 2) (1992), which established the concept of native title, the Commonwealth government, under Prime Minister Paul Keating, passed legislation to protect native title.

In stark contrast to the Western Australian government of today, whose controversial Aboriginal cultural heritage laws were seen by many as going too far, the Western Australian government in 1993 was appalled by the creation of native title.

Western Australia, Australia’s largest state by size but fourth in terms of population, had vast swathes of ‘unalienated land,’ meaning that it had not been leased to any landholders, and so could be claimed by Aboriginal communities under native title.

By this time, the agreed approach was that native title rights could only be granted if they were not inconsistent with any existing rights in the land by other landholders.

The Western Australian government decided upon a two-pronged approach.

Firstly, they passed the Land (Titles and Traditional Usage) Act 1993 (WA). This legislation extinguished any and all native title that may exist. In its place, it created a system of statutory rights that could be granted to Aboriginal communities.

Working in tandem, the Racial Discrimination Act 1975 (Cth) and Native Title Act 1993 (Cth) sought to make native title a matter of federal regulation, rather than by the states. However, Western Australia believed that their statutory scheme would place it firmly under their control.

But a state trying to extinguish native title by legislation had been tried before. Under Premier Joh-Bjelke Petersen, the Queensland government did this to prevent Eddie Mabo’s lawsuit. However, in Mabo v Queensland (No 1) (1988), the High Court ruled that this law singled out the Torres Strait Islanders and discriminated against them, in violation of the RDA. Section 10(1) of the RDA and Section 109 of the Australian Constitution were used to strike down the Queensland law.

Western Australia believed they had learned from this. To protect their new legislation, and prevent a repeat of Mabo (No 1), they challenged the constitutional legitimacy of the NTA.

However, just like Queensland, they had no success.

All 6 judges who had ruled in favour of native title in Mabo (No 2) also ruled in favour of the Commonwealth government, and invalidated the Western Australian legislation.

The validity of the RDA was already a settled matter. In another case, Koowarta v Bejelke-Petersen (1982), the High Court said that it was supported by Section 51(xxix) of the Australian Constitution, the external affairs power, as it adopted an international treaty into law.

In that case, the High Court ruled that the RDA was not supported by Section 51(xxvi) of the Australian Constitution, the race power, as the race power had to apply to a specific race, whereas the RDA applied to all races.

Given Mabo (No 1), it was pretty straightforward that the Western Australian legislation violated the RDA. Although the RDA isn’t supported by the race power, as it applies to all races, it nonetheless applies to discrimination against a particular race, such as the Aboriginals of Western Australia.

At the time, it had already been established that native title is secondary in importance to other forms of property rights. More recent cases, such as the judgments of Chief Justice French and Justice Keane, joined by Justice Gageler, in the High Court case Queensland v Congoo (2015), and the Federal Court in Yunupingu v Commonwealth [2023], have sought to treat native title as equivalent to other forms of property title, but these are newer developments.

Regardless, the High Court agreed that because the Western Australian statutory scheme prevented Aboriginals from enjoying property rights, including compensation, to the same extent as Aboriginals outside of Western Australia enjoyed under native title, it was discriminatory.

More importantly, the High Court also upheld the legitimacy of the NTA, this time under the race power.

The race power grants the Commonwealth the power to make laws about “the people of any race, for whom it is necessary to make special laws.”

Relying on judgments from Koowarta and the Commonwealth v Tasmania (1983), the court said “the special quality of a law must be ascertained by reference to its differential operation upon the people of a particular race. … The law may be special even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race.”

This was a revolutionary ruling. The race power could now be used to pass legislation that specifically benefits a particular race, in this case the benefit being the protection of their native title.

While the court said it would leave it up to Parliament to determine whether such a law was ‘necessary,’ for the purposes of the race power, as it is a political question, the court did leave open the possibility of a judicial “supervisory jurisdiction” to ensure that there was no “manifest abuse” of this power by Parliament.

Justice Dawson, the lone dissenter in Mabo (No 2), demonstrated his respect for the established law, by writing a separate judgment that agreed with the general decision of the other 6 judges. Although he was not a supporter of native title, he recognised that native title was part of the law now, and so he acted accordingly.

The scope of the race power, including what exactly can be considered a benefit, is an ongoing question.

In Kartinyeri v Commonwealth (1998), Justice Gaudron found it difficult to find a way that this power could validly be used to discriminate against a particular race. Her Honour saw the definition of ‘benefit’ as something that remedies a deficiency or disadvantage. The Native Title Act 1993 (Cth) remedied the disadvantage that native title would suffer if it only existed at common law.

In Kartinyeri, Justices Gummow and Hayne, with whom Justice Kirby, the lone dissenter, agreed on this point, said that ‘the people of any race’ does not mean that it must apply to all people of that race; instead, it can be directed at particular ‘sub-groups’ of that ‘race.’

If the Voice referendum fails, Prime Minister Anthony Albanese has said that he will pass a legislative version of the Voice, which doesn’t have the same constitutional entrenchment. This legislation will likely rely on the race power, and will definitely see a return to the discussion of a law benefiting a particular race.

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Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21.

Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 52.

Koowarta v Bejelke-Petersen (1982) 153CLR 168.

Mabo v Queensland (No 1) (1989) 166 CLR 186; [1988] HCA 69.

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23.

Queensland v Congoo (2015) 265 CLR 239; [2015] HCA 17.

Western Australia v Commonwealth (1995) 183 CLR 373; [1995] HCA 47.


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