The Indigenous Voice: Equal treatment and the race power

A topical question around the Indigenous Voice proposal is why only Aboriginal and Torres Strait Islander peoples should have an enshrined Voice to Parliament and no other non-Indigenous groups within Australia.

In this article, Leanne CollingburnJonathan Fulcher and Tom Kelman discuss this question in the context of the race power, (s51(xxvi)) of the Australian Constitution).

Of course there is the ‘special status of First Peoples in their own territories’ as recently recognised by Tony McAvoy SC1.This is supported by Australia’s 2009 endorsement of United Nations Declaration  on the Rights of Indigenous Peoples (UNDRIP), the most comprehensive international instrument on the rights of Indigenous peoples. Importantly, for the purpose of this paper, UNDRIP includes:

Article 18: “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

It is also important to consider this question in the context of equality and equity and to understand the difference between the two. While equality is about sameness and giving everybody the same thing, equity is about fairness and making sure barriers to participation are removed for all people so that they can access the same opportunities2.

Many commentators believe that equality and sameness will not close the gap between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians on issues like life expectancy, educational outcomes and employment because Aboriginal and Torres Strait Islander peoples have not been on an even playing field with non-Indigenous Australians throughout history.

We recently had cause to look at this issue in the context of the race power, (s51(xxvi)) of the Australian Constitution).

What is the race power?

The race power provides Parliament the power to make laws for “the people of any race whom it is deemed necessary to make special laws.” This power can be exercised extremely broadly, as long as it is for the “…peace, order, and good government of the Commonwealth…”3.

This broad scope and (initial) lack of limitations was intentional. The race power was originally drafted as a tool to limit the number of Asian and ethnic migrants seeking their fortunes in the gold rush of the late 1900s4. The race power was explicitly restricted from being used to make laws about Aboriginal and Torres Strait Islander peoples, initially reading as: “The people of any race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws”5. While later legislation (such as the Racial Discrimination Act 1975) would limit the scope of Parliament’s power to legislate purely on the basis of ‘race’6, many believe the foundations of the race power were firmly rooted in early Australia’s desire to maintain a ‘white’ image7.

1967 amendment to the race power

The 1967 referendum represents an important shift in the relationship between Aboriginal and Torres Strait Islander peoples and the rest of Australia. The overwhelming success of the ‘Yes’ vote showed that public sentiment had well and truly shifted in favour of recognition and reconciliation. By removing the words “other than the aboriginal race in any state”, the Federal Government, not just state governments, now had jurisdiction to make laws and policies impacting Aboriginal and Torres Strait Islander peoples.

How has the race power been used since 1901?

Interestingly, there is no evidence that the race power was used to make special laws for the people of any race, prior to 19678.

Since 1967, the race power has been relied upon to make laws for Aboriginal and Torres Strait Islander peoples in areas such as cultural heritage, native title and the creation and regulation of Indigenous corporations. Legislation like The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) established statutory authorities that promote the social, economic and cultural development of Indigenous Australians, while legislation like The Aboriginal Land Rights (Northern Territory) Act 1976 confirmed Indigenous ownership of inalienable freehold title to certain lands in the Northern Territory. And of course, there is the Native Title Act 1994 (Cth).

Importantly though, since 1967, there is no evidence that the race power has been relied upon to make special laws for the people of any race other than Aboriginal and Torres Strait Islander peoples9. This may be due to the fraught concept of ‘race’ itself.  But the reality is, though in theory the race power could be relied on to make special laws for non-Indigenous people groups within Australia, since its inception in 1901 it has only ever been used to make special laws for Aboriginal and Torres Strait Islander peoples.

Also important, the 1998 Hindmarsh Island Bridge High Court decision suggests that the race power is not confined to making laws for the benefit of Aboriginal and Torres Strait Islander peoples10.

Equal treatment

Though in theory the race power can be relied upon to make special laws for non-Indigenous Australians it has only ever been used to make laws for Aboriginal and Torres Strait Islander peoples. So, on this basis, our Constitution already facilitates a departure from equal treatment only for Aboriginal and Torres Strait Islander peoples.

And, to the point on equality and equity, this is arguably good and necessary. That is, to be equitable – to provide an even playing field - it is necessary for special laws to be made that impact only Aboriginal and Torres Strait Islander peoples.

Yet, despite the race power, Aboriginal and Torres Strait Islander peoples still don’t have an even playing field, as evidenced by the gap in life expectancy, education outcomes and employment opportunities, among other things.

Those behind the Indigenous Voice suggest that this is because there has been no mechanism through which Aboriginal and Torres Strait Islander peoples can have a say on the laws and policies that impact them11. Their hope is that a departure from equality - through an enshrined Voice to Parliament - will give Aboriginal and Torres Strait Islander peoples a say on the laws and policies that impact them, including those laws and policies made under the race power, to the exclusion of all others.

1. McAvoy, T, ‘Framing the voice debate in terms of ‘special treatment’ is race-baiting – we must call it out’, The Guardian (2023) https://www.theguardian.com/australia-news/commentisfree/2023/mar/01/framing-the-voice-debate-in-terms-of-special-treatment-is-race-baiting-we-must- call-it-out.
2.Roger M. Jones Journal., ‘Who said it was going to be easy?’, Roger M. Jones Journal (2017) https://rogermjones.wordpress.com/2017/11/18/who-said-it-was-going-to-be-easy/.
3. Section 51(xxxvi) Australian Constitution https://www.aph.gov.au/constitution.
4. Sarah Pritchard, “The ‘Race’ Power in Section 51(XXVI) of the Constitution” (2011) 15(2) Australian Indigenous Law Review 44,45 https://www.austlii.edu.au/au/journals/AUIndigLawRw/2011/18.pdf.
5. Constitution Alteration (Aboriginals) 1967 https://www.legislation.gov.au/Details/C1967A00055.
6. We acknowledge that the concept of ‘race’ in itself is perceived by many as an archaic social construct with no place in contemporary Australia but acknowledge the inherent legal complexities associated with the potential repeal and replacement of this provision. Expert Panel on Constitutional Recognition of Indigenous Australians “Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution” (Final Report, January 2012) 84, 139, 148 https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/resources/files/12-01-16-indigenous-recognition- expert-panel-report.pdf. P124 Referendum Council Report; p2018 Cth Final Report Joint Select Committee on Constitutional Recognition.
7. Join Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples (Final Report, November 2018) 
https://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/024213/toc_pdf/Finalreport.pdf;fileType=application%2Fpdf.
8. Kartinyeri v The Commonwealth (1998) 156 ALR 300, Kirby J, 41.
9. Lisa McAnearney, “Indigenous Recognition, Race And Section 51(XXVI): Constitutional Law Conundrums And Possibilities paper” (2014) 18(2)
Australian Indigenous Law Review, 90
http://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/AUIndigLawRw/2015/17.html.
10. Megan Davis, “Competing notions of constitutional 'recognition': truth and justice or living 'off the crumbs that fall off the White Australian tables” (Speech, Senate Occasional Lecture Series at Parliament House), 11 July 2014, 10 https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/pop62/c06; Kartinyeri v The Commonwealth (1998) 156 ALR 300
11. McAvoy, T, ‘Framing the voice debate in terms of ‘special treatment’ is race-baiting – we must call it out’, The Guardian (2023) https://www.theguardian.com/australia-news/commentisfree/2023/mar/01/framing-the-voice-debate-in-terms-of-special-treatment-is-race-baiting-we-must- call-it-out.

|By Jonathan Fulcher & Leanne Collingburn

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