Making sense of indigeneity, aboriginality and identity: race as a Constitutional conundrum since 1983

Abstract

This article is a conversation and encounter between an Indigenous and a non-Indigenous constitutional law scholar attempting to make sense of ‘race’ as it is written and interpreted in the Australian Constitution through a close re-reading of the Tasmanian Dams Case and the race power in s 51(xxvi). The conversation is intended to perform a conduct of jurisprudence in which the experience of law and the interpretation of law as a matter of doctrine are brought into relation. We first try to make sense of the significance of 1967 as a constitutional moment shifting the meaning of race in the Constitution, before turning to a close reading of the judgments in Tasmanian Dams on the race power. We argue that through analysis of these judgments it is possible to understand better the constrictions of Australian canons of constitutional interpretation as applied to race, with its focus on ‘special’ characteristics, heritage and culture. We also argue that a close reading of Tasmanian Dams offers a good starting place from which to question the possibilities of what meaning race might carry if the political and social experiences of Indigenous peoples with the Constitution are joined to more easily accepted interpretative conventions.

Notes

³ This may be beginning to shift with new scholarly interest in Australian constitutional culture: see Arcioni and Stone (2015).

⁴ The symposia were convened by Associate Professor Ann Genovese at Melbourne Law School and were co-hosted by the Institute for International Law and the Humanities (IILAH), the Centre for Comparative Constitutional Studies (CCCS), and the Centre for Resources Energy and Environmental Law (CREEL): ‘Turning Points: Remembering Koowarta v Bjelke-Petersen (1982) 153 CLR 16’ held on Friday 11 May 2012 and ‘Turning Points: Remembering Commonwealth v Tasmania (1983) 158 CLR 1’ held on 28 June 2013.

⁵ Genovese (2014).

⁶ Dorsett and McVeigh (2012).

⁷ McMillan (2014), p 118.

⁸ Brennan and Davis (2014).

⁹ Genovese (2014).

¹⁰ Brennan and Davis (2014).

¹¹ Western Australia v Commonwealth (1995) 183 CLR 373 (Native Title Act Case).

¹² Kartinyeri v Commonwealth (1998) 195 CLR 337.

¹³ See Gaudron J in Kartinyeri v Commonwealth (1998) 195 CLR 337, an approach discussed and endorsed in, eg, Malbon (1999).

¹⁴ The argument that Tasmanian Aboriginals were extinct, and therefore no law could be passed for their benefit, was, however, raised by Mr Gleeson during argument in Tasmanian Dams: see Commonwealth v Tasmania [1983] HCATrans 24 (3 June 1986), p 361. See also the response of Tasmanian Aboriginal Centre disputing that suggestion: Commonwealth v Tasmania [1983] HCATrans 26 (8 June 1983) at 517–519.

¹⁵ See Koowarta (1982) 153 CLR 168, p 187 (Gibbs CJ): ‘may well be a law of the kind described in par (xxvi), if the definition of Aboriginal and Torres Strait Islander is not so wide as to include persons who are not of either race’. The comment might suggest that resolving a clear definition of a racial group is not an important question for the Court to resolve, and that in most instances it should defer to Parliament as the decider of what a racial group is.

¹⁶ See also Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 on standing being based on a custodianship interest held by the Aboriginal plaintiffs in that case.

¹⁷ Attwood and Markus (2007).

¹⁸ Attwood and Markus (2007).

¹⁹ See, eg, Sawer (1966).

²⁰ Kartinyeri v Commonwealth (1998) 195 CLR 337 as per Kirby J, p 403.

²¹ Sawer (1966) at p 20.

²² As in, eg, Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, p 507 (Menzies J).

²³ ‘Genocide’ was used in the draft report in the Bringing them Home inquiry, headed by Sir Ronald Wilson. It was removed as too harsh for the white audience. See Tatz (1999).

²⁴ See, eg, Williams and Bradsen (1997), pp 105–113; French (2010), pp 181–185; Castles(1982).

²⁵ Cole v Whitfield (1988) 165 CLR 360.

²⁶ Kartinyeri v Commonwealth (1998) 195 CLR 337 as per Kirby J, pp 386–422.

²⁷ Kartinyeri v Commonwealth (1998) 195 CLR 337 as per Kirby J.

²⁸ We raise this point briefly. An interesting and thorough reading of Kartinyeri that takes a perspective from Gadamer’s hermeneutics can be found in Reilly (1999).

²⁹ Kartinyeri (1998) 195 CLR 337, at 361.

³⁰ Kartinyeri v Commonwealth (1998) 195 CLR 337, at 363.

³¹ See eg Curthoys, Genovese and Reilly (2008); Dorsett and McVeigh (2007); Black (2011).

³² See Rajagopal (2003), p 233.

³³ See for example Bauman and Glick (2012), Genovese (2015) and Genovese (2014).

³⁴ Kartinyeri v Commonwealth (1998) 195 CLR 337 as per Kirby J.

³⁵ The Racial Discrimination Act 1975 (Cth) and the World Heritage Properties Conservation Act 1983 (Cth), respectively.

³⁶ Commonwealth v Tasmania (1983) 158 CLR 1, at 158.

³⁷ Commonwealth v Tasmania (1983) 158 CLR 1, at 159.

³⁸ Commonwealth v Tasmania (1983) 158 CLR 1, at 159.

³⁹ Commonwealth v Tasmania (1983) 158 CLR 1, at 159.

⁴⁰ Commonwealth v Tasmania (1983) 158 CLR 1, at 180. Indeed, the only reference to 1967 in Koowarta is an anodyne one by Gibbs CJ: Koowarta (1982) 153 CLR 168, p 186.

⁴¹ Commonwealth v Tasmania (1983) 158 CLR 1, at 181.

⁴² Commonwealth v Tasmania (1983) 158 CLR 1, at 272–273.

⁴³ Commonwealth v Tasmania (1983) 158 CLR 1, at 273–274. Citing, like Brennan J, King-Ansell v Police [1979] 2 NZLR 531 and Mandla v Dowell Lee [1983] QB 1.

⁴⁴ See, eg, Queensland v Wyvill (1989) 90 ALR 611, p 515 (Drummond J); Attorney-General (Cth) v Queensland (1990) 25 FCR 79, p 127 (Jenkinson J); p 132 (Spender J); pp 140, 146 (French J); Gibbs v Capewell (1995) 54 FCR 503, p 506ff; and recently in Eatock v Bolt (2011) 197 FCR 261, p 302 (Bromberg J).

⁴⁵ Commonwealth v Tasmania (1983) 158 CLR 1, p 275.

⁴⁶ This can be contrasted with the discussion of ‘custodian’ connections to relics in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 37.

⁴⁷ This ‘dual’ approach, had it been raised in Koowarta, might arguably support the Racial Discrimination Act as a law both for all Australians as well as having special significance to racial minorities which the law aims to protect; as a ‘special law’ aimed at races that, by virtue of their race, suffer an additional disadvantage of being subject to racial abuse than white Australians.

⁴⁸ Commonwealth v Tasmania (1983) 158 CLR 1, p 276.

⁴⁹ Commonwealth v Tasmania (1983) 158 CLR 1, at 242.

⁵⁰ Commonwealth v Tasmania (1983) 158 CLR 1, at 242–243. See Koowarta (1982) 153 CLR 168, 211 (Stephen J).

⁵¹ Commonwealth v Tasmania (1983) 158 CLR 1, at 243.

⁵² Commonwealth v Tasmania (1983) 158 CLR 1, at 244. Referring to King-Ansell v Police [1979] 2 NZLR 531, at 542ff (Richardson J).

⁵³ Commonwealth v Tasmania (1983) 158 CLR 1, at 245. See Koowarta (1982) 153 CLR 168, 211 (Stephen J).

⁵⁴ Commonwealth v Tasmania (1983) 158 CLR 1, at 245.

⁵⁵ Commonwealth v Tasmania (1983) 158 CLR 1, at 245.

⁵⁶ Commonwealth v Tasmania (1983) 158 CLR 1, at 245.

⁵⁷ Commonwealth v Tasmania (1983) 158 CLR 1, at 245–246.

⁵⁸ Commonwealth v Tasmania (1983) 158 CLR 1, at 110.

⁵⁹ Commonwealth v Tasmania (1983) 158 CLR 1, at 110.

⁶⁰ Commonwealth v Tasmania (1983) 158 CLR 1, at 110.

⁶¹ Commonwealth v Tasmania (1983) 158 CLR 1, at 111.

⁶² Commonwealth v Tasmania (1983) 158 CLR 1, at 203.

⁶³ Commonwealth v Tasmania (1983) 158 CLR 1, at 320.

⁶⁴ Commonwealth v Tasmania (1983) 158 CLR 1, at 321.

⁶⁵ French (2010) 180.

⁶⁶ See, eg, Commonwealth v Tasmania (1983) 158 CLR 1, p 243ff (Brennan J).

⁶⁷ See, eg, French (2010), p 181.

⁶⁸ See Kartinyeri v Commonwealth (1998) 195 CLR 337.

⁶⁹ Expert Panel (2012) ch 5.