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Racist laws are valid, court told

By Margo Kingston, Sydney Morning Herald
7 February 1998

The Australian people had unwittingly empowered the Federal Government to pass racially discriminatory laws against indigenous Australians at the 1967 referendum, despite their contrary expectations, the Government told the High Court yesterday. Dr Gavan Griffith, QC, for the Government, was defending the validity of the 1997 Hindmarsh Island Bridge law, enacted under the Constitution's power to make special laws for people of any race. Dr Griffith acknowledged that never before had a Federal Government used the "races power" to pass laws detrimental to a race, and that since the 1967 referendum only laws meant to benefit Aborigines had been passed until Hindmarsh.

Before 1967, Aborigines had been excluded from the races power, leaving all power over indigenous Australians to the States. But voters overwhelmingly supported the 1967 bipartisan referendum proposal to grant the Federal Government power to ensure Aboriginal advancement.

"There was an expectation that it [the new power] would be used beneficially," Dr Griffith said.

However, despite the expectations of the political parties and the people, the referendum gave the Government the new power to discriminate against Aborigines, and the High Court had no "supervisory role" to strike down extremist racist laws, he said.

Dr Griffith said neither the referendum nor the fact that Australia signed an international treaty banning racial discrimination in 1966 altered the fact that the races power was "absolutely rooted in prejudice". Several members of the court objected, with Justice Michael Kirby saying he could not accept that the Constitution was still "stamped with the prejudices" of 1901 (when the races power was intended to allow discrimination against Kanaka slaves and Chinese).

The Chief Justice, Sir Gerard Brennan, said that on one view the power to pass racially discriminatory laws directed to one race could only be "exercised reasonably, or having regard to contemporary values".

Asked by Sir Gerard if the court could stop a law providing for the removal of the hand of a thief of a particular race, Dr Griffith said only Parliament could decide if a race-based law was necessary.

The Aboriginal appellants argue that the Hindmarsh law is detrimental to Aborigines because it removes their right to use heritage protection laws so that a bridge to benefit a South Australian developer can proceed. They have argued that the people's overwhelming vote to grant the Federal Government power to legislate for Aborigines was intended to allow only laws benefiting indigenous Australians. The High Court reserved its decision, which is widely expected to help determine whether the Prime Minister's Wik bill is constitutional.