Discrimination and Difference: Race and Inequality in Australian Law
| Published date | 01 December 2000 |
| DOI | 10.1177/135822910000400402 |
| Date | 01 December 2000 |
| Author | Linda J. Kirk |
International Journal
of
Discrimination and the Law, 2000, Vol. 4, pp. 323-341
1358-2291/2000 $10
© 2000 A B Academic Publishers. Printed in Great Britain
DISCRIMINATION AND DIFFERENCE: RACE AND
INEQUALITY IN AUSTRALIAN LAW
LINDA
J.
KIRK*
University
of
Adelaide, Australia
ABSTRACT
The absence in Australia
of
any constitutionally entrenched protection against racial
discrimination allows the Commonwealth Parliament to legislate contrary to inter-
nationally recognised principles
of
equality. The Racial Discrimination Act 1975
(Cth) (RDA), which implements into Australian law the standards
of
the Conven-
tion on the Elimination
of
all Forms
of
Racial Discrimination (CERD), is merely
an Act
of
the Commonwealth Parliament which can be overridden and/or repealed
by a later Act. The High Court
of
Australia has not embraced the international
interpretation
of
CERD in its application
of
the RDA. Instead it has adopted a
formalistic approach which prohibits benign and invidious discrimination alike
unless the measures are seen as 'special measures'. Further, the High Court has
shown a reluctance to adopt an interpretation
of
the races power under the Aus-
tralian Constitution which is consistent with international standards
of
non-
discrimination. This article argues that it is open to the High Court to 'constitu-
tionalise' the principles
of
substantive equality through its application
of
the RDA
and its interpretation
of
the races power. This would provide Indigenous Aus-
tralians with protection against discriminatory Commonwealth legislation and assist
them in their struggle to achieve recognition
of
their unique cultural differences.
Australian constitutional and legal jurisprudence has struggled to find
an appropriate response to the serious disadvantage suffered by Indi-
genous Australians. It was not until 1992 that the native title rights
of
Indigenous Australians were recognised by Australian law. In the
landmark case Mabo v Queensland (No 2) (Mabo)1 the High Court
upheld the plaintiffs' claim to native title over their traditional lands,
thereby overturning the notion that Australia was
ever
terra nullius.2
Following Mabo the Commonwealth Parliament enacted the Native
Title
Act
1993 (Cth) which established a statutory framework for the
recognition
of
native title.
At
its fifty-fourth session in 1999, the United Nations Commit-
tee on the Elimination
of
Racial ·Discrimination recognised that the
effects
of
Australia's racially discriminatory land law
'had
endured as
an acute impairment
of
the rights
of
Australia's Indigenous commu-
nities'.
3 The Committee expressed its concern over the compatibility
324
of
recent amendments to the Native Title
Act
with Australia's interna-
tional obligations under the Convention on the Elimination
of
all
Forms
of
Racial Discrimination.
It
called upon the Australian Gov-
ernment to address its concerns urgently and to suspend implementa-
tion
of
these amendments. Unfortunately, the Committee's calls have
fallen on
deaf
ears.
This inaction by the Australian Government has been indirectly
sanctioned by uncertainty as
to
whether section
51
(xxvi)
of
the Aus-
tralian Constitution (the
"races"
power), which gives the Common-
wealth Parliament power to legislate for
'the
people
of
any
race',
authorises laws which adversely discriminate against Indigenous
people. This article surveys the approach
of
the High Court
of
Aus-
tralia to the application
of
the Commonwealth Racial Discrimination
Act
1975 (Cth) and the interpretation
of
the races power under the
Australian Constitution.
It
argues that the High
Court's
understanding
of
the requirements
of
the Racial Discrimination
Act
is underscored
by a theory
of
colour-blindness
or
formal equality which has under-
mined the struggle by Indigenous Australians to achieve substantive
equality as citizens.
The
jurisprudence
of
the High Court has encour-
aged and enabled Australian governments to argue that formal equal-
ity is all that is required by the Act.
The scope
of
the races power was recently considered by the
High Court in Kartinyeri v Commonwealth.4 Some members
of
the
Court showed a preference for an interpretation
of
the races
power
which has at its foundations a requirement
of
substantive equality con-
sistent with international standards. This article argues that
if
this
interpretation were to
be
accepted by a majority
of
the Court it would,
in
effect, 'constitutionalise' the principles
of
equality and non-
discrimination on the .ground
of
race and provide Indigenous Australians
with protection against discriminatory Commonwealth legislation.
I. EQUALITY AND NON-DISCRIMINATION UNDER
AUSTRALIAN LAW
Racial Discrimination
Act
1975 (Cth)
The
Commonwealth
of
Australia is a State Party to both the Interna-
tional Covenant on Civil and Political Rights (ICCPR) and the Con-
vention on the Elimination
of
All
Forms
of
Racial Discrimination
(CERD). In addition, the Commonwealth has accepted the jurisdic-
tion
of
the United Nations Human Rights Committee under the First
Optional Protocol to the
ICCPR
and the Committee on the Elimina-
tion
of
Racial Discrimination (CERD Committee) under Article 14
of
CERD. Accordingly, individuals (and groups in the case
of
the
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