THE RACE POWER — ITS REPLACEMENT AND
INTERPRETATION
Anne Twomey
ABSTRACT
The Expert Panel on the Constitutional Recognition of Indigenous Australians has
recommended the repea l of the 'race power' in the Constitution and its replacement
with a power to make laws with respect to Aboriginal and Torres Strait Isla nder
peoples. This article analyses that recommendation, the assumptions that underlie it
and the way the new provision might be interpreted by the High Court. In doing so, it
uses archival material to shed new light on the 1967 referendum and whether it was
intended only to permit 'beneficial' laws. The article concludes that there is a
disjunction between the intention of the Expert Panel and the likely effect of its
proposed amendment.
I INTRODUCTION
The Expert Panel on the Constitutional Recognition of Indigenous Australians has
recommended the deletion of the race power in s 51(xxvi) of the Constitution and the
insertion of the following provision:
Section 51A Recognition of Aboriginal and Torres Strait Islander peoples
Recognising that the continent and its islands now known as Australia were first
occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Ab original and Torres Strait Islander
peoples with their traditional lands and waters;
Respecting the continuing cultures, lan guages and heritage of Aboriginal and
Torres Strait Islander peoples;
Acknowledging the need to secure the advancement of Aboriginal and Torres Strait
Islander peoples;
the Parliament shall, subject to this Constitution, have power to make laws for the peace,
order and good government of the Commonwealth with respect to Aboriginal and Torres
Strait Islander peoples.
1
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Professor of Constitutional Law, University of Sydney.
1
Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising
Aboriginal and Torres Strait Islander Peoples in the Constitution (Blue Star Print Canberra,
2012) 153.
414 Federal Law Review Volume 40
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In addition it recommended the inclusion of a constitutional guarantee against
racial discrimination in a new s 116A, although this expressly does not preclude the
making of 'laws or measures for the purpose of overcoming disadva ntage,
ameliorating the effects of past discrimination, or protecting the cultures, languages or
heritages of any group'.
2
This article addresses how the H igh Court might interpret s 5 1A, if it is successfully
inserted in t he Constitution. It focuses on s 51A as a stand-alone provision, rather than
in conjunction with the anti-discrimination provision. This is for two reasons. First, the
anti-discrimination proposal is particularly contentious and may not necessarily be
included in a future referendum, or may be the subject of a separate question, which
could fail. It is therefore important to see how s 51A would operate if it stood on its
own. Secondly, the relationship between proposed s 51A and proposed s 116A is
complex and contentious and deserves separate detailed treatment.
3
This article commences with consideration of how the High Court interprets
constitutional amendments, and in particular, the amendment to the race power in
1967. It sheds new light upon the contentious issue of whether it was intended that the
amended race power could only be exercised for the benefit of Aboriginal people and
Torres Strait Islanders. It then proceeds to consider how proposed s 51A might be
interpreted if the Court were to take a traditional textual approach to the section. It
contrasts this position with the view of the Expert Panel about how its proposed s 51A
would be interpreted. It then breaks down the vari ous assumptions upon which the
Expert Panel's view is based, analysing each of them and pointing to the various
uncertainties that arise.
The article concludes by noting that if particular outcomes are intended in terms of
the interpretation of s 51A, then efforts should be made to clarify the text of the
provision so that those outcomes are achieved. Currently, the text of the amendment
does not match the intention evinced by the Expert Panel. Furt her, if the intent of the
voters in approving an amendment is later to be taken into account by the High Court
in interpreti ng a provision, then these questions need to be ventilated and the issues
discussed so that the voters can make an informed choice in which the intended
outcome is clear to all and that intent can be used to interpret the provision in the
future.
II THE INTERPRETATION OF CONSTITUTIONAL AMENDMENTS
We have over 100 years of jurisprudence available to us on the interpretation of the
Commonwealth Constitution. Nearly all of this concerns the interpretation of words that
were written in the 1890s, approved by the people in referenda in 1899 and enacted by
the Westminster Parliament in 1900. In in terpreting the Constitution, the J ustices of the
High Court have in many cases looked to the original meaning of t he words,
4
drawing
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2
Ibid 173.
3
For a brief discussion of this issue see: Anne Twomey, 'Indigenous Constitutional
Recognition Explained — Th e Issues, Risks and Options' (Constitutional Reform
Commentary, Sydney Law School Constitutional Reform Unit, January 2012) 8.
4
Note the more detailed analysis by Heydon J which dr aws distinctions between different
types of originalist and non-originalist theories: Justice J D Heydon, 'Theories of
constitutional interpretation: a taxonomy' Bar News: The Journal of the NSW Bar Association
(Winter 2007) 12.
