Scope and Limits of Constitutional Power

1012. The ‘Races’ Power. Section 51 of the Constitution provides that the Commonwealth Parliament has power ‘to make laws for the peace order and good government of the Commonwealth with respect to’ an enumerated list of topics. For present purposes, the most important source of power is the ‘races’ power (s 51(26)), although the recommendations for the recognition of traditional Aboriginal marriage may also rely on s 51(21), the marriage power. It is also necessary to consider the scope of any other relevant powers, the express or implied prohibitions on Commonwealth power, including the scope of any implication protecting the structure of State courts or authorities, and the express guarantee of freedom of religion (s 116).

1013. Scope of the ‘Races’ Power.[1917] Section 51(26) of the Constitution gives the Commonwealth Parliament:

power to make laws for the peace, order, and good government of the Commonwealth with respect to … the people of any race for whom it is deemed necessary to make special laws.

This power has existed in its present form only since 1967, when there was overwhelming support for a change to the Constitution to delete the words ‘other than the Aboriginal race in any State’, which specifically excluded ‘the Aboriginal race in any State’ from its operation.[1918] Since 1967 the Commonwealth Parliament has had concurrent power with the States to make laws with respect to Aborigines, although, as with other Commonwealth powers, the exercise of this power is subject to other limitations within the Constitution.[1919] Only in very recent times has the High Court provided guidance on the scope of s 51(26). This is a reflection of the very limited extent to which the Commonwealth had (until recent years) made use of the power. It is also significant that in the two cases, Koowarta v Bjelke-Petersen[1920] and Commonwealth v Tasmania (the Tasmanian Dam Case)[1921] which have considered the races power in any detail, the legislation which was the subject of challenge was upheld in reliance on the external affairs power rather than the races power. In Koowarta, Queensland challenged the constitutional validity of the Racial Discrimination Act 1975 (Cth). The Commonwealth, intervening, relied not only on the external affairs power[1922] but also on the races power to support the legislation. The Court, Justice Murphy dissenting, rejected s 51(26) as a source of power for the 1975 Act, on the basis that the Act was not a special law for a particular race, but a general law dealing with discrimination against persons of any race. For example, Chief Justice Gibbs stated:

a law which applies equally to the people of all races is not a special law for the people of any one race.[1923]

In the Tasmanian Dam Case the High Court had to consider whether Commonwealth legislation seeking to prevent the construction of the Gordon-below-Franklin Dam by the Tasmanian Government was valid. The Commonwealth relied primarily on its powers to make laws with respect to external affairs, races and corporations, and members of the Court accordingly considered in detail the scope of each of these powers. The primary basis for the majority decision upholding the legislation was the external affairs power. However the majority also interpreted the races power widely. Justices Mason, Murphy, Brennan and Deane held that s 8 and s 11 of the World Heritage Properties Conservation Act 1983 (Cth) were a valid exercise of the races power.[1924] Chief Justice Gibbs and Justices Wilson and Dawson (dissenting) found the provisions invalid because they did not constitute special laws for the people of the Aboriginal race, but were of their nature general laws.[1925]

1014. ‘Special laws’. The view of the majority in the Tasmanian Dam Case was that provisions based on s 51(26) need not be limited to dealing with special rights, special protection or special duties of a particular race. A law which protected and preserved matters relating to the history, culture or religion of a race, things which had a special significance to the people of the race, would be valid, even if the law was addressed to persons generally. Justice Mason said:

A law which protects the cultural heritage of the people of the Aboriginal race constitutes a special law for the purpose of para (xxvi) because the protection of that cultural heritage meets a special need of that people … [S]omething which is of significance to mankind may have a special and deeper significance to a particular people because it forms part of the cultural heritage. Thus an Aboriginal archaeological site which is part of the cultural heritage of people of the Aboriginal race has a special and deeper significance for Aboriginal people than it has for mankind generally … [T]here is a special .need to protect sites for them [the Aboriginals], a need which differs from, and in one sense transcends the need to protect it for mankind.[1926]

Similarly Justice Deane said:

A law protecting [Aboriginal sites] is, in one sense, a law for all Australians. It appears to me, however, on any approach to language, that a law whose operation is to protect and preserve sights of universal value which are of particular importance to the Aboriginal people is also a special law for those people.[1927]

1015. ‘… With respect to the People of any Race’. In the Tasmanian Dam Case, it was argued that the Act was not a law ‘with respect to the people of’ the Aboriginal race because it protected relics and artefacts which were primarily of archaeological significance. However the majority regarded the relics and artefacts as part of the cultural heritage of the Aboriginal race, something which was inseparable from a power to legislate for the people of the Aboriginal race. In the words of Justice Mason:

The cultural heritage of a people is so much of a characteristic or property of the people to whom it belongs that it is inseparably connected with them, so that a legislative power with respect to the people of a race, which confers power to make laws to protect them, necessarily extends to the making of laws protecting their cultural heritage.[1928]

Similarly Justice Brennan said:

The kinds of benefits that laws might properly confer upon people as members of a race are benefits which tend to protect or foster their common intangible heritage or their common sense of identity. Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide. The advancement of the people of any race in any of these aspects of their group life falls within the power.[1929]

Justice Deane observed that the relationship between Aboriginal people and the land which they occupy lies at the heart of traditional Aboriginal culture.[1930] He continued:

In my view, a law which protects those — and only those — endangered Aboriginal sites included in the ‘cultural heritage’ which satisfy the requirement that they are of particular significance to people of the Aboriginal race is not only a law with respect to Aboriginal sites. It is a law of a character which comes within the primary scope of the grant of legislative power to make laws with respect of people of any race for whom it is deemed necessary to make special laws … A power to legislate ‘with respect to’ the people of a race includes the power to make laws protecting the cultural and spiritual heritage of those people by protecting property which is of particular significance to that spiritual and cultural heritage.[1931]

1016. ‘For Whom it is Deemed Necessary’. With the exception of Justice Murphy[1932] all members of the Court in Koowarta and the Tasmanian Dam Case who discussed the matter were of the view that s 51(26) could be used either for the benefit or to the detriment of members of a race, although Justice Brennan suggested that the principal object of the power was to confer benefits:

The passing of the Racial Discrimination Act manifested the Parliament’s intention that the power would hereafter be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make special laws. Where Parliament seeks to confer a discriminatory benefit on the people of the Aboriginal race, para (xxvi) does not place a limitation upon the nature of the benefits which a valid law may confer, and none should be implied.[1933]

Chief Justice Gibbs in the Tasmanian Dam Case expressed the generally accepted view that:

‘for’ in para (xxvi) means ‘with reference to’ rather than ‘for the benefit of’ — it expresses purpose rather than advantage.[1934]

It appears to be settled that it is for Parliament to deem it necessary to make the law, and that the courts’ role is limited to determining whether the law answers the description of a ‘special law for the people of any race …’. This is supported by the High Court’s general approach to constitutional interpretation which emphasises that judgments about, the desirability or policy of legislation are a matter for Parliament, and by the word ‘deemed’ in s 51(26).[1935]

1017. ‘Any Race’. The question of what constitutes a ‘race’ was not considered in any detail by the Court in either Koowarta or the Tasmanian Dam Case. However there is no doubt that the Aboriginal people are a ‘race’ within the meaning of s 51(26). As Justice Murphy put it in the Tasmanian Dam Case:

Whatever technical meaning ‘race’ might be given in other contexts, in the Australian Constitution it includes the Aborigines and Torres Strait Islanders and every sub-division of those peoples. To hold otherwise would be to make a mockery of the decision by the people to delete from s 51(26) the words ‘other than the aboriginal race in any State’ … which was manifestly done so that Parliament could legislate for the maintenance, protection and advancement of the Aboriginal people.[1936]

Justice Deane expressed the broad and non-technical meaning of the words ‘people of any race’ which is implicit in the majority’s view of the power, in the following way:

The reference to ‘people of any race’ includes all that goes to make up the personality and identity of the people of a race: spirit, belief, knowledge, tradition and cultural and spiritual heritage. A power to legislate ‘with respect to’ a people of a race includes the power to make laws protecting the cultural and spiritual heritage of those people by protecting property which is of a particular significance to their spiritual and cultural heritage.[1937]

1018. The Content or Subject Matter of Special Laws. It is not yet clear what, if any, limits there are on the content or subject matter of a law based on the races power. Justice Stephen in Koowarta’s Case implied that there are limits.[1938] Chief Justice Gibbs stated in Koowarta that the Parliament could make laws prohibiting discrimination against Aboriginal people based on race,[1939] and he has expressed the view extrajudicially that the races power would support a bill of rights for the people of a particular race.[1940] The subject matter of the legislation in the Tasmanian Dam Case, Aboriginal sites containing relics and artefacts, was such as to attract the ‘races’ power. The Senate Standing Committee on Constitutional and Legal Affairs in its Report, Two Hundred Years Later …, which considered the feasibility of a compact or ‘Makarrata’ between the Commonwealth and Aboriginal people, concluded that the power extended to:

for example, laws dealing with the language and culture of Aboriginal communities; laws for the protection of Aboriginal sacred sites and artefacts; laws recognising and giving effect to Aboriginal law; and laws protecting language rights so as to guarantee the assistance of interpreters to Aboriginal people involved with police, the courts or government departments. All such laws would be special laws for the Aboriginal people.[1941]

Having regard to the breadth of the majority view in the Tasmanian Dam case,[1942] this broad view of the power is clearly justified.

1019. Other Commonwealth Powers. Although the power to make special laws for people of the Aboriginal race under s 51(26) is the most important legislative power for present purposes, other Commonwealth powers may also be available, and should be briefly mentioned.

  • The Marriage Power (s 51(21)). In terms of the Commission’s recommendations the most important of these is the marriage power. The scope of the Commonwealth’s marriage power has been the subject of extensive litigation in recent years, but all of it has related to the Family Law Act 1975 (Cth) and the scope of the Family Court’s jurisdiction with respect to Marriage Act marriage and its consequences. It is not clear whether the recognition of Aboriginal traditional marriages in Australian law, as recommended in Chapters 13 and 14, would be within the scope of the marriage power. It can be argued that the term ‘marriage’ in s 51(21) of the Constitution is not to be limited to marriage in the sense of permanent monogamous ceremonial marriage. The Commonwealth Parliament can certainly legislate under s 51(21) for the recognition of foreign marriages, which may have none of these characteristics. It seems an excessively refined view of the single word ‘marriage’ in the Constitution s 51(21) that it has different meanings in relation to foreign, as distinct from local, marriages. It would follow that the term ‘marriage’ extends to socially legitimised arrangements such as Aboriginal traditional marriages, a view supported by Justice Windeyer in the Marriage Act Case.[1943] On the other hand this view has only limited support in the literature.[1944] The drafters of the Constitution probably did not intend to give the Commonwealth legislative power over a vital aspect of Aboriginal social life through s 51(21), while denying it the power to make ‘special laws’ for Aboriginal people, under s 51(26), at all. But that is hardly relevant to the present legal meaning of the marriage power. If Aboriginal traditional marriages do come within the marriage power, then it would be no objection that the recommended legislation recognises traditional marriage as marriage under the general law for specific purposes only. The extent of recognition must be a matter for the Parliament. An analogy is void marriages, which are presently treated as ‘marriages’ for certain purposes under the Family Law Act 1975 (Cth), but as void or non-existent for other purposes.[1945] But even if traditional marriages were held not to be within the marriage power, it is clear that legislation recognising such marriages would be valid as a ‘special law’ within the races power.

  • The Territories Power (s 122). Under s 122 the commonwealth has a general power to legislate for federal Territories. This power is plenary and is not limited to the subject matters set out in s 51 of the Constitution. Thus the Commonwealth can make laws for the Territories which would normally be within the power of State legislatures.[1946] It can also, as it has done for example in the Northern Territory and on Norfolk Island, create a local legislature with its own legislative powers, although without limiting the Commonwealth’s overriding authority. But while the Commonwealth’s powers to legislate for a Territory are not limited by subject matter they are limited by certain other provisions in the Constitution.[1947] It is likely that s 116, preventing the Commonwealth from establishing a religion or prohibiting the free exercise of a religion, would apply with respect to a Territory.[1948] But it has been held that the Commonwealth may acquire property in a territory without providing ‘just terms’ (s 51(31)) as it would be required to do if it acquired property in a State.[1949] Clearly the Commonwealth’s powers to pass laws under s 122 are very broad. From a constitutional point of view the proposals contained in this Report could be enacted for the Northern Territory in reliance on that power alone.[1950]

  • Other Powers. Other powers could be relied on to implement specific proposals in this Report. These include taxation (s 51(2)), and social security (s 51(23)), in relation to the recommendations for the recognition of Aboriginal traditional marriages for the purposes of taxation and social security. The appropriations power (s 81) enables the Commonwealth to spend money `for the purposes of the Commonwealth’. Hence the Commonwealth could provide funding for the interpreters, training programs, or aboriginal community development projects generally.[1951]

1020. Constitutional Prohibitions or Guarantees. for the purposes of the recommendations in this Report the most important constitutional restrictions are those imposed by the separation of judicial power, and its associated guarantees. These would prohibit or substantially restrict the Commonwealth from legislating directly for Aboriginal justice mechanisms in the States, other than mechanisms of a conciliation or mediation mind. The limitations imposed by Chapter III were discussed in detail in Chapter 31.[1952] Local justice mechanisms, if they were established in any State, would have to rely on State legislation for their implementation, although the commonwealth could provide funding for such mechanisms.[1953] The only other relevant guarantee is s 116 of the Constitution, which provides that:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Section 116, and in particular the prohibition on establishment of any religion, has been very restrictively interpreted.[1954] It is most unlikely to present any problems, even if some aspects of Aboriginal customary laws constitute a ‘religion’ within the meaning of s 116 (as is no doubt the case).[1955]

1021. Conclusion. Accordingly it is clear that, with limited exceptions, the Commonwealth has constitutional power to implement the recommendations in this report under s 51(26) of the Constitution, if necessary supplemented by other powers (s 51(2), s 51(21), s 51(39), s 122). The exceptions derive from the prohibitions or limitations on judicial power in Part III of the Constitution, rather than from any lack of power in s 51. They relate to:

  • The Commonwealth’s incapacity to establish bodies exercising judicial power in a State other than in accordance with Chapter III. In practice this excludes from Commonwealth legislative control proposals for ‘independent’ justice mechanisms such as Aboriginal courts or bodies performing equivalent functions, since none of these proposals envisages the appointment of a judge or judicial officer with the tenure required by s 72 of the Constitution.[1956]

  • The question whether the Commonwealth can confer powers on or regulate the procedures of State courts exercising State jurisdiction. The better view is that this does not present a problem.[1957]

  • The incapacity of the Commonwealth under s 77(iii) of the Constitution to alter the ‘structure’ of State courts exercising federal jurisdiction. With one possible exception this does not present a problem in relation to the recommendations summarised in Chapter 37.[1958]