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ABSTRACT
The constitutional identity of a ‘people’ is sometimes assumed to contain an ethno-cultural or racial element. In light of potential constitutional change in Australia to recognise Aboriginal and Torres Strait Islander peoples, this article traces the extent to which the Australian constitutional ‘people’ have such an identity. Historically, those ‘people’ were assumed to be British and ‘white’. However, that assumption has not been incorporated into the constitutional jurisprudence of Australia. There remain some textual traces of a racial identity which can only be removed by referendum. Recent jurisprudence puts in doubt the ability of Parliament to exclude individuals from ‘the people’ on the basis of race for some purposes, but textual change is necessary to remove all remaining vestiges of a negative racial component of Australian constitutional identity.
Notes
1 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (2012); Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015).
2 Sujit Choudhry and Cheryl Saunders (eds), ‘Symposium: The Evolving Concept of Citizenship in Constitutional Law’ (2010) 8 International Journal of Constitutional Law 6; Deborah Hellman and others, ‘Symposium: Comments on Michel Rosenfeld’s The Identity of the Constitutional Subject’ (2012) 33 Cardozo Law Review 1839. The most recent World Congress of Constitutional Law, held in Oslo, June 2014, included a workshop on constitutional identity: <http://www.jus.uio.no/english/research/news-and-events/events/conferences/2014/wccl-cmdc/index.html> accessed 26 January 2016.
3 José Luis Martí, ‘Two Different Ideas of Constitutional Identity: Identity of the Constitution v. Identity of the People’ in Alejandro Saiz Arnaiz and Carina Alcoberro Llivina (eds), National Constitutional Identity and European Integration (Intersentia 2013) 17.
4 Elisa Arcioni, ‘That Vague but Powerful Abstraction: The Concept of “The People” in the Constitution’ (Gilbert & Tobin Constitutional Law Conference, Sydney, February 2009) <http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/mdocs/469_ElisaArcioni.pdf> accessed 26 January 2016; Elisa Arcioni, ‘Australian Constitutional Identity: Complexity and Fluidity’ (2014) Sydney Law School Research Paper 14/66 <http://ssrn.com/abstract=2467407> accessed 26 January 2016; Elisa Arcioni and Adrienne Stone, ‘Australian Constitutional Culture and the Social Role of the Constitution’ (2016) International Journal of Constitutional Law (forthcoming).
5 These conceptions are the most prominent. For discussion of others, see Elaine R Thomas, ‘Who Belongs? Competing Conceptions of Political Membership’ (2002) 5 European Journal of Social Theory 323. For discussion of the democratic or political identity of the Australian ‘people’ see Elisa Arcioni, ‘The Core of the Australian Constitution People – ‘the people’ as ‘the electors’’(2016) 39 University of New South Wales Law Journal (forthcoming).
6 Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Routledge 2010) 150; Gary Jeffrey Jacobsohn, Constitutional Identity (Harvard University Press 2010) ch 6.
7 Zoran Oklopcic, ‘Three Arenas of Struggle: A Contextual Approach to the Constituent Power of “The People”’ (2014) 3 Global Constitutionalism 200, 207.
8 Bernhard Schlink, ‘The Constitutional Subject and Its Identity: My German Experience’ (2012) 33 Cardozo Law Review 1869; Liav Orgad, ‘“Cultural Defence” of Nations: Cultural Citizenship in France, Germany and the Netherlands’ (2009) 15 European Law Journal 719.
9 Laura E Gómez, ‘Understanding Law and Race as Mutually Constitutive: An Invitation to Explore an Emerging Field’ (2010) 6 Annual Review of Law and Social Science 487, 490–91.
10 Raymond Williams, Keywords: A Vocabulary of Culture and Society (rev edn, OUP 1983) 87.
11 Susan Marks and Andrew Clapham, International Human Rights Lexicon (OUP 2005) 35.
12 See criticisms of ‘culture’ in: Nicholas B Dirks (ed), In Near Ruins: Cultural Theory at the End of the Century (University of Minnesota Press 1998); Jacqueline Mowbray, ‘Ethnic Minorities and Language Rights: The State, Identity and Culture in International Legal Discourse’ (2006) 6 Studies in Ethnicity and Nationalism 2, 20–24.
13 Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (University of Minnesota Press 1996).
14 Helen Irving, To Constitute a Nation: A Cultural History of Australia's Constitution (CUP 1999) ch 6.
15 Stephen Tierney, ‘“We the Peoples”: Constituent Power and Constitutionalism in Plurinational States’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (OUP 2007) 229.
16 See the discussion of the ‘French model’ in Rosenfeld (n 6) 156–57. Note the complications in identifying the demos: Geneviève Nootens, ‘On the Feasibility of Plurinational Democracies: The Problem of the Demos’ in Igor Filibi, Noé Cornago and Justin O Frosini (eds), Democracy With(out) Nations? Old and New Foundations for Political Communities in a Changing World (University of the Basque Country Press 2011) 109.
17 Elisa Arcioni, ‘Historical Facts and Constitutional Adjudication: The Case of the Australian Constitutional Preamble’ (2015) 30 Journal of Constitutional History (forthcoming).
18 Rowe v Electoral Commissioner [2010] HCA 46 [21] (High Court of Australia).
19 Helen Irving (ed), The Centenary Companion to Australian Federation (CUP 1999) 364.
20 Douglas Cole, ‘“The Crimson Thread of Kinship”: Ethnic Ideas in Australia, 1870–1914′ (1971) 14 Historical Studies 511, 521.
21 Irving (n 14); George Williams, ‘Race and the Australian Constitution: From Federation to Reconciliation’ (2000) 38 Osgoode Hall Law Journal 643; Mary Crock and Laurie Berg, Immigration, Refugees and Forced Migration: Law, Policy and Practice in Australia (Federation Press 2011) 22–26.
22 Myra Willard, History of the White Australia Policy to 1920 (2nd edn, Melbourne University Press 1967) 189.
23 Alexander Turnbull Yarwood, Asian Migration to Australia: The Background to Exclusion 1896–1923 (Melbourne University Press 1964).
24 Willard (n 22) 92–93.
25 John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Australian Book Co 1901) 626.
26 Willard (n 22) 107–109.
27 Commonwealth of Australia Constitution Act 1900 (Imp), sub-ss 51(xix), (xxvi) and (xxvii) respectively.
28 Quick and Garran (n 25) 623.
29 Brian Galligan and John Chesterman, ‘Aborigines, Citizenship and the Australian Constitution: Did the Constitution Exclude Aboriginal People from Citizenship?’ (1997) 8 Public Law Review 45, 51; Geoffrey Sawer, ‘The Australian Constitution and the Australian Aborigine’ (1966) 2 Federal Law Review 17.
30 National Australasian Convention Deb 31 March 1891, 525. The power was intended, Griffiths said, ‘to deal with the affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand’.
31 Changes were later made in the United Kingdom, but none touching on the identity of ‘the people’. For details of the drafting process see John M Williams, The Australian Constitution: A Documentary History (Melbourne University Press 2005).
32 Kartinyeri v Commonwealth [1998] HCA 22 [135] (Kirby J).
33 Australasian Federal Convention Deb 19 April 1897, 831.
34 Australasian Federal Convention Deb 27 January 1898, 228–29.
35 ibid 232.
36 The relevant debate began in Adelaide on 19 April 1897 and resumed in Melbourne on 27–28 January 1898.
37 Australasian Federal Convention Deb 27 January 1898, 240 (John Forrest).
38 ibid 228 (Isaac Isaacs).
39 ibid 233 (Edward Braddon, referring to Alfred Deakin's objections to the exclusive nature of the Commonwealth power).
40 National Australasian Convention Deb 3 April 1891, 701–704; Australasian Federal Convention Deb 19 April 1897, 831–32; Australasian Federal Convention Deb 27 January 1898, 227–42, 245–56.
41 Williams (n 31) 650.
42 Australasian Federal Convention Deb 28 January 1898, 247 (Charles Kingston), 250 (Josiah Symon). See further Sarah Pritchard, ‘The “Race” Power in Section 51(xxvi) of the Constitution’ (2011) 15 Australian Indigenous Law Review 44, 46; Robert French, ‘The Race Power: A Constitutional Chimera’ in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (CUP 2003) 180.
43 Robert Dubler, ‘Race and the Constitution’ (2002) 76 Australian Law Journal 456, 460; Irving (n 14) ch 6; Williams (n 21); Margaret Davies, ‘Exclusion and the Constitution’ (2000) 25 Australian Journal of Legal Philosophy 297.
44 ‘From Federation to Opening of the First Commonwealth Parliament’ (2001) 16 Australasian Parliamentary Review 100, 113–15.
45 Willard (n 22) 119.
46 Other relevant legislation includes the Post and Telegraph Act 1901 (Cth), Pacific Island Labourers Act 1901 (Cth), Contract Immigrants Act 1905 (Cth), and Naturalization Act 1903 (Cth).
47 On Canada, see W Peter Ward, White Canada Forever: Popular Attitudes and Public Policy towards Orientals in British Columbia (3rd edn, McGill-Queen's University Press 2002). On the United States, see Erika Lee, ‘The Chinese Exclusion Example: Race, Immigration, and American Gatekeeping, 1882–1924’ (2002) 21(3) Journal of American Ethnic History 36.
48 Immigration Restriction Act 1901 (Cth), s 3(a). Alternative definitions of ‘prohibited immigrants’ are contained in the remainder of s 3.
49 Crock and Berg (n 21) 27.
50 Commonwealth of Australia HR Deb 7 August 1901, 3503 (Edmund Barton).
51 Commonwealth of Australia HR Deb 6 September 1901, 4626 (William McMillan).
52 ibid 4628–30 (William McMillan).
53 ibid 4631 (Samuel Mauger), 4633 (Chris Watson).
54 Immigration Restriction Act 1898 (New South Wales), s 3; Immigration Restriction Act 1898 (Tasmania), s 4; Immigration Restriction Act 1897 (Western Australia), s 3(a). These were discussed in Commonwealth of Australia HR Deb 7 August 1901, 3499 (Edmund Barton).
55 Willard (n 22) 110.
56 ibid 110–13.
57 Immigration Restriction Act 1897 (Natal). New Zealand had also imposed a dictation test in 1899: Immigration Restriction Act 1889 (New Zealand), s 3(1).
58 Marilyn Lake, ‘From Mississippi to Melbourne via Natal: The Invention of the Literacy Test as a Technology of Racial Exclusion’ in Ann Curthoys and Marilyn Lake (eds), Connected Worlds: History in Transnational Perspective (Australian National University Press 2006) 209. The United States laws sought to impose a literacy test with respect to the franchise as a device to disenfranchise African-Americans. See also Daniel S Goldman, ‘The Modern-Day Literacy Test?: Felon Disenfranchisement and Race Discrimination’ (2004) 57 Stanford Law Review 611, 616–18.
59 Commonwealth of Australia HR Deb 7 August 1901, 3500–501.
60 Commonwealth of Australia HR Deb 6 September 1901, 4626.
61 ibid 4627.
62 [1908] HCA 63, (1908) 7 CLR 277.
63 [1923] HCA 39, (1923) 32 CLR 518.
64 [1925] HCA 6, (1925) 36 CLR 404.
65 [1925] HCA 53, (1925) 37 CLR 36.
66 Potter v Minahan (n 62) 286.
67 ibid 303.
68 In Re Tootal's Trust (1883) 23 ChD 532, 534 (Chancery Division) (Chitty J), as quoted by Isaacs J in Potter v Minahan (n 62) 316.
69 Potter v Minahan (n 62) 318.
70 ibid 324.
71 Higgins J died in office on 13 January 1929. Isaacs J went on to serve as Chief Justice from 1930 to 21 January 1931, after which he became Governor General: ‘Former Justices’ (High Court of Australia) <http://www.hcourt.gov.au/justices/former-justices> accessed 26 January 2016.
72 MacFarlane (n 63) 531 (Knox CJ), 552 (Isaacs J, with whom Rich J agreed at 578), 576 (Higgins J).
73 ibid 557–58.
74 ibid 562.
75 Between Potter v Minahan and Donohoe v Wong Sau, O’Connor J died and was replaced by Rich J (1912–13), Barton J retired and was replaced by Starke J (1920) and Griffith CJ was replaced by Knox CJ (1919). Isaacs J became the most senior puisne judge on the Court. See ‘Former Justices’ (High Court of Australia) <http://www.hcourt.gov.au/justices/former-justices> accessed 26 January 2016.
76 Donohoe v Wong Sau (n 64) 408.
77 ibid 409.
78 ibid.
79 [1926] HCA 46, (1926) 39 CLR 95.
80 Zelman Cowen, ‘Isaacs, Isaac Alfred’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP 2001) 359, 361; Graham Fricke, ‘Knox Court’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP 2001) 359, 403; Michael Kirby, ‘Sir Isaac Isaacs—A Sesquicentenary Reflection’ (2005) 29 Melbourne University Law Review 880, 893–94.
81 R v Davey [1936] HCA 58, (1936) 56 CLR 381, 386–87 (Evatt J); Re Patterson [2001] HCA 51 [149] (Gummow and Hayne JJ).
82 An example is the Migration Amendment Act 1983 (Cth), which came into effect on 2 April 1984. The long title of the primary Act (the Migration Act 1958 (Cth)) was changed as follows: ‘The title of the Principal Act is amended by omitting “Immigration, Deportation and Emigration” and substituting “the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons”.’ The word ‘alien’ does not then appear in the substantive provisions of the primary Act. Instead, the Act operates on the category of ‘non-citizens’. By implication, aliens are understood legislatively to be non-citizens.
83 Explanatory Memorandum to the Migration Amendment Bill 1983, 1.
84 See ss 24, 89, 93 and 105.
85 For a full analysis of s 127 and the related sections see Elisa Arcioni, ‘Excluding Indigenous Australians from “The People”: A Reconsideration of Sections 25 and 127 of the Constitution’ (2012) 40 Federal Law Review 287.
86 National Australasian Convention Deb 31 March 1891, 523.
87 National Australasian Convention Deb 2 April 1891, 637 (John Cockburn); Australasian Federal Convention Deb 13 September 1897, 453 (Edmund Barton).
88 Anne Twomey, ‘An Obituary for s 25 of the Constitution’ (2012) 23 Public Law Review 125, 141.
89 ibid 126–29.
90 ibid 129.
91 National Australasian Convention Deb 2 April 1891, 638 (Samuel Griffith).
92 Dylan Lino and Megan Davis, ‘Speaking Ill of the Dead: A Comment of s 25 of the Constitution’ (2012) 23 Public Law Review 231.
93 Commonwealth Franchise Act 1902 (Cth), s 4.
94 Brian Costar, ‘Odious and Outmoded? Race and Section 25 of the Constitution’ in John Chesterman and David Philips (eds), Selective Democracy: Race, Gender and the Australian Vote (Melbourne Publishing Group 2003) 89, 93.
95 Arcioni (n 85) 305–306.
96 Australasian Federal Convention Deb 13 September 1897, 453. The use of the word ‘aboriginal’ changed over time. In the colonial era, it was used to refer to the original inhabitants of a place, while ‘native’ was used to refer to someone born in Australia—usually a reference to white Australians of British heritage: John Chesterman and Brian Galligan, Citizens Without Rights: Aborigines and Australian Citizenship (CUP 1997) 87; Irving (n 14) ch 7. In the context of the debate on s 25, and given the wording of the colonial franchise legislation, it is likely that Carruthers was referring to Aboriginal people.
97 For details regarding the franchise in place at various times see Murray Goot, ‘The Aboriginal Franchise and Its Consequences’ (2006) 52 Australian Journal of Politics and History 517. Queensland was the last State to remove its racially discriminatory franchise legislation, in 1965. However, it was not compulsory for Aboriginal and Torres Strait Islander electors to enrol to vote in Queensland until 1971: Margaret Reid, ‘Caste-ing the Vote: Aboriginal and Torres Strait Islander Voting Rights in Queensland’ (2004) 30 Hecate 71, 77. At the Commonwealth level, while all Aboriginal people were granted the federal vote by the Commonwealth Electoral Act 1962 (Cth), enrolment for Aboriginal voters was not compulsory until two decades later: Commonwealth Electoral Legislation Amendment Act 1983 (Cth).
98 For detailed explanation of the interaction between these sections see Arcioni (n 85).
99 [1975] HCA 53, (1975) 135 CLR 1.
100 ibid 20. See also 44 (Gibbs J), 58 (Stephen J), 62 (Mason J). But see in relation to the State franchises Rowe (n 18) [353] (Crennan J); Kruger v Commonwealth [1997] HCA 27, (1997) 190 CLR 1, 64 (Dawson J), 113 (Gaudron J), 155 (Gummow J).
101 [2004] HCA 43 [107].
102 [1992] HCA 29, (1992) 174 CLR 455, 487. This has remained a minority position.
103 Mulholland v Australian Electoral Commission [2004] HCA 41 [215].
104 Twomey (n 88) 136.
105 For analysis and rejection of arguments that s 25 is a dead letter and cannot be brought into practical operation see Arcioni (n 85) 310ff.
106 ibid 306–307.
107 [1906] HCA 58, (1906) 4 CLR 395.
108 That Act, in the words of its long title, was to ‘provide for the regulation, restriction and prohibition of the introduction of labourers from the Pacific Islands’.
109 Robtelmes (n 107) 415.
110 Koowarta v Bjelke-Petersen [1982] HCA 27, (1982) 153 CLR 168; Commonwealth v Tasmania [1983] HCA 21, (1983) 158 CLR 1; Western Australia v Commonwealth [1995] HCA 47, (1995) 183 CLR 373.
111 n 32.
112 ibid [137]–[147] (Kirby J); Williams (n 31) 655–57; Sarah Joseph and Melissa Castan, Federal Constitutional Law: A Contemporary View (3rd edn, Lawbook Co 2010) 487.
113 Justice Kirby was in dissent. Justice Callinan disqualified himself because he had earlier given advice to the Commonwealth regarding the validity of the legislation in question: George Williams, ‘Hindmarsh Island Bridge Case’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (OUP 2001) 359, 324–25.
114 Kartinyeri (n 32) [82].
115 ibid [41].
116 ibid [157], [163]. See also the earlier brief reasoning (in obiter) of Murphy J in Koowarta (n 110) 242.
117 Gwenda Tavan, The Long, Slow Death of White Australia (Scribe Publications 2005).
118 Especially in ss 7 and 24.
119 [2007] HCA 43.
120 n 18.
121 Commonwealth Electoral Act 1918 (Cth), s 93(8AA). The effect of this regime was to disenfranchise all those in ‘detention on a full-time basis’. The previous regime, upheld as valid in Roach (n 119), disenfranchised only those serving a sentence of three years or longer.
122 Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), which inserted s 102(4) and (4AA) into the Commonwealth Electoral Act 1918 (Cth).
123 Roach (n 119) [6] (Gleeson CJ), [48] (Gummow, Kirby and Crennan JJ); Rowe (n 18) [1], [17] (French CJ), [121] (Gummow and Bell JJ), [264] (Hayne J), [292]–[304] (Heydon J), [325] (Crennan J), [405] (Kiefel J).
124 Roach (n 119) [95] (Gummow, Kirby and Crennan JJ).
125 See for example Rowe (n 18) [78] (French CJ).
126 ibid [22]–[25].
127 Roach (n 119) [83], [85] (Gummow, Kirby and Crennan JJ).
128 Rowe (n 18) [356], [366]–[367] (Crennan J).
129 Roach (n 119) [83], [85] (Gummow, Kirby and Crennan JJ).
130 While the interim federal franchise was based on the State franchises in place at 1901, that was overtaken by a uniform federal franchise under Commonwealth legislation in 1902. In any event, s 25 allowed for race-based disenfranchisement under State laws but imposed a numerical disadvantage on any State which adopted such a disqualification.
131 For discussion of this notion of representation see Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (CUP 2009), 224–37.
132 For discussion of the issue of representation, together with arguments as to how it is unlikely that the Constitution would impose restrictions on the legislative power of the States with respect to their franchises, see Arcioni (n 85), 308–13.
133 Alexander Reilly, ‘Reading the Race Power: A Hermeneutic Analysis’ (1999) 23 Melbourne University Law Review 476; John Gardiner-Garden, ‘The Origin of Commonwealth Involvement in Indigenous Affairs and the 1967 Referendum’ (Parliamentary Library 1997) 19–20; Jennifer E Eastick, ‘The Australian Aborigine: Full Commonwealth Responsibility under the Constitution’ (1980) 12 Melbourne University Law Review 516, 523ff; Pritchard (n 42) 49; Expert Panel (n 1) 146–47.
134 For discussion of the interplay of amendment and interpretation see Michael Coper, ‘Judicial Review and the Politics of Constitutional Amendment’ in Rosalind Dixon and George Williams (eds), The High Court, the Constitution and Australian Politics (CUP 2015) 38, 42–44; Michael Coper, ‘The People and the Judges: Constitutional Referendums and Judicial Interpretation’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (The Federation Press 1994) 73; Anne Twomey, ‘Constitutional Alteration and the High Court: The Jurisprudence of Justice Callinan’ (2008) 27 University of Queensland Law Journal 47.
135 On the question of ‘reading down’ one power because of its interaction with other parts of the Constitution, compare the approaches of the majority and dissenting Justices in New South Wales v Commonwealth [2006] HCA 52, as discussed in: Nicholas Aroney, ‘Constitutional Choices in the Work Choices Case, or What Exactly is Wrong with the Reserved Powers Doctrine?’ (2008) 32 Melbourne University Law Review 1.
136 Davies (n 43); Tom Clarke and Brian Galligan, ‘“Aboriginal Native” and the Institutional Construction of the Australian Citizen 1901–48’ (1995) 26 Australian Historical Studies 523; Tom Clarke and Brian Galligan, ‘Protecting the Citizen Body: The Commonwealth's Role in Shaping and Defending an “Australian” Population’ (1995) 30 Australian Journal of Political Science 452.
137 Joint Committee on Constitutional Review, Report (1959) 18–19; Expert Panel (n 1).
138 See the surveys conducted by the Expert Panel regarding support for the repeal of s 25: Expert Panel (n 1) ch 6.
139 Arcioni and Stone (n 4).
140 Jeffrey Goldsworthy, ‘Constitutional Cultures, Democracy, and Unwritten Principles’ (2012) 3 University of Illinois Law Review 683.