Part I: History

TABLE OF CONTENTS

Introduction

Part I:  History

• Beginnings -- Commonwealth Role
• Beginnings -- The UN Convention
• Adoption of Act 1973-75
• Early Period 1976-1982
• Growing Status 1982-1995
• The Unamendable Act
• Conclusion

Part II:  Rhetoric and Reality

• Models of Indigenous Policy
• Land Rights and Native Title
• Conclusion

Appendix I:  Official "Yes" Case

Appendix II:  Statistics

Appendix III:  Commonwealth Anti-Discrimination Legislation and International Instruments

Appendix IV:  High Court Decision Summaries

References

---

INTRODUCTION

The principle of anti-discrimination is widely endorsed in Australia.  This endorsement is expressed through various Acts of State, Territory and Federal Parliaments, through ratification of various international human rights instruments, through the operation of tribunals and Commissions established under those Acts and through the rhetoric of politicians and other public figures.

The principle of anti-discrimination is that people be judged and treated -- at law;  in the workplace;  as citizens in the discharge of civic responsibilities;  in the provision of social services;  in public places -- on their merits as individuals not according to (certain specified types of) group membership

• one of the continuing issues in anti-discrimination policy is, which group memberships are to be deemed to be unacceptable grounds for systematic distinction, and where exceptions are appropriate.

The anti-discrimination principle suggests that all will share in the operation of a common set of rules and a common set of reasonable expectations about public behaviour.  Indeed, in the Koowarta case, the High Court ruled (5:1) that placitum (xxvi) of Section 51 of the Constitution -- which enables the Commonwealth to make laws for the

"peace, order and good government....with respect to any race for whom it is deemed necessary to make special laws"

-- was not an appropriate head of power for the Commonwealth Racial Discrimination Act precisely because the Act applied equally to all individuals regardless of their racial membership.

Nevertheless, vast public funds have been, and are, expended on the basis of specific racial criteria.  There is now established a particular form of title to property -- native title -- that only members of a particular race can possess.  Representative bodies and forms of property management have been established which are specific to particular racial groups.  The operation of laws – "tribal law" -- specific to particular groups of particular races has been, in part, accepted into the operation of Australian law.  Indeed, there seems to be a strong operating presumption that Aboriginal and Torres Strait Islander affairs be conducted in ways quite different from mainstream Australia such as

• use of communal and inalienable title for Aboriginal legal interest in land, both under native title and in various Land Rights Acts.
• despite the continuing secularisation of public policy and the law elsewhere, indigenous religious belief ⁽¹⁾ being deliberately incorporated into public policy
• Commonwealth programs restricted to those of Aboriginal and Torres Strait Islander descent enacted under its power to legislate for specific races.

One might be forgiven for thinking that the actual principle is "race is not a principle for public action, except where it is".  A proper understanding of these apparent contradictions, and their effects, is clearly vital for the development of effective and fair public policy.  Some differentiations may be justified on cultural grounds

• indeed, it is a major argument of this paper that, while race is not a useful concept for analysis or, apart from the barring of racial discrimination, public policy, culture is

there are major contradictions and inconsistencies in Australian public policy.

ABORIGINAL AND TORRES STRAIT ISLANDER AUSTRALIA

In Australia, the prime, though hardly sole, area for concern with racial discrimination is the circumstances of Aboriginal and Torres Strait Islander Australians.  In the 1991 Census, 282,979 Australians identified themselves as Aboriginal or as Torres Strait Islanders, making up 1.6% of the Australian population (22.7% in the Northern Territory).

The significant increase in such identification over recent Censuses (see Table 1), clearly in excess of natural increase, prompted the Australian Bureau of Statistics to release a discussion paper examining the demographic characteristics of those identifying as Aboriginal or Torres Strait Islander.

Table 1:  Aboriginal and Torres Strait Islander Population
Census Results

	ATSI population				Australia
		increase (% p.a.)	share (% Aust.)		(OOOs)	increase (% p.a.)
1966	85,610	..	0.74	c	11,550.5	..
1971	115,953	6.3	0.87	c	13,303.7	2.9
1976	160,915	6.8	1.13	c	14,192.2	1.3
1981	159,897	-0.1	1.05	c	15,184.2	1.4
1986	250,738	9.4	1.54	c	16,263.9	1.4
1991	282,979	2.4	1.62	c	17,489.1	1.5
1994	303,261	2.3	1.71	s	17,752.7	0.5

Sources:  ABS Census data and Survey of Aboriginal and Torres Strait Islander population.

c = census
s = survey

A consistent result over the Censuses were major differences between the age profile of those identifying as Aboriginal and Torres Strait Islanders and the general Australian population.  This consistency was one of the key points leading to the Statistician's conclusion that the identification was overwhelmingly valid.  In other words, the "new" identifiers as indigenous Australians had the same life expectancies as those already identifying in previous Censuses as indigenous Australians:

• Aboriginal and Torres Strait Islander male life expectancy at birth is 16 to 18 years lower than the general Australian male population, with a slightly larger gap for females.

While there are other social pathologies that, on average, distinguish the descendants of the indigenous population of Australia from the rest of the population (higher rates of unemployment, higher rates of incarceration, etc. than the Australian average), none speaks more starkly than this.

It is precisely these manifestly (on average) unequal social outcomes which provide much of the continuing justification for special remedial public action.  However, their continuing persistence after vast amounts of public expenditure and policy action raises major questionsabout the appropriateness and efficacy of public policy in this area.

The Triumph of the Nomads Political discourse about the current situation of indigenous Australians is largely constructed in terms of disadvantage, discrimination and poor social outcomes.  But this is far from all that can be said.  The opening passage of Geoffrey Blainey's classic study The Triumph of the Nomads provides a balancing perspective. "Long before the rise of Babylon and Athens, the early Australians had impressive achievements.  They were the only people in the world's history to sail across the seas and discover an uninhabited continent.  They bred a brave procession of coastal and inland explorers.....The aboriginals who occupied Australia also found, over a long stretch of time, many edible plants, valuable mines which they worked, new medicines and drugs, manufacturing techniques and a miscellany of resources ranging from the raw materials of their cosmetics to the hidden pools of water in deserts.  They succeeded in adapting their ways of life to harsh as well as kind environments;  several large regions of Australia supported more people in ancient times they have supported in recent times." (2)

THE RACIAL DISCRIMINATION ACT

The Racial Discrimination Act (RDA) was passed by the Federal Parliament on 3 June 1975 and received Royal Assent on 11 June 1975.  The Act came fully into effect by Proclamation on 31 October 1975.  Its operation was intended to rest on three placita of Section 51 of the Commonwealth Constitution:  the power of the Commonwealth to make laws for the "peace, order and good government of the Commonwealth with respect to"

• any racial group it is deemed necessary to do so (xxvi) (the RDA was later declared not to be a valid use of this power)
• immigration (xxvii), and
• external affairs (xxix).

The use of the external affairs power comes from the International Convention on the Elimination of All Forms of Racial Discrimination which was adopted by the General Assembly on 21 December 1965, opened for signature on 7 March 1966 and came into operation on 4 January 1969. ⁽³⁾  Australia became signatory to the Convention on 13 October 1966 and ratified the Convention on 30 September 1975. ⁽⁴⁾  The Convention is incorporated as a schedule to the Racial Discrimination Act.

The purpose of the Act is to prohibit racial discrimination and to give effect to the Convention.

The Act has been amended by 13 subsequent Acts by 31 October 1995.

Though the Act has not been the subject of a considerable amount of litigation in its 21 years of operation, ⁽⁵⁾ it has had an extraordinarily disproportionate significance in the development of Australian law:

• in the Koowarta case of 1982, a challenge to the validity of the Act by the Queensland Government provided a narrow High Court majority (4:3) for a relatively narrow interpretation of the external affairs power though one judge (Stephen J) ruled in favour of both a narrow interpretation and that the Act fell within the interpretation, thereby upholding its validity.  A wider interpretation of the external affairs power was then established in the Franklin Dam case (1983), following the replacement of Sir Ninian Stephen (upon his appointment to the Governor-Generalship) with Sir William Deane.
• the operation of the RDA was held in the Mabo (No.1) case (1988) to restrain any State from extinguishing property specific to a particular race from 31 October 1975 onwards.  This gained major significance from the establishment of native title as a recognised form of common law property in Mabo (No.2) (1992).  The significance was reinforced in the so-called "Second Native Title Case" (WA v Commonwealth [1995]) where the Western Australian Land (Titles and Traditional Usage) Act was deemed invalid due to inconsistency with the RDA because the treatment of native title under the Act gave such title less security than other forms of property.
• in the Brandy case of 1995, a challenge to the validity of sections of the Act was upheld.  The sections ruled invalid allowed decisions of the Human Rights and Equal Opportunities Commission to be "lodged" with the Federal Court.  The High Court ruled 7:0 that the invalid sections breached the separation of judicial power in Chapter 3 of the Federal Constitution.  This decision also rendered invalid any wielding of judicial power by Commonwealth tribunals over private citizens.
• in the Wik case handed down on December 23 1996, a majority of 4:3 found native title could coexist with pastoral leases.  A response suggested from many quarters was extinguishment of native title.  However, unless done by Commonwealth statute, this would require amendment of the RDA.

The RDA thus sits at the intersection of some of the most profound political and constitutional questions facing Australia

• the limits of Commonwealth power
• the nature of the European settlement of Australia
• the nature of the Australian federation
• the proper understanding of current consequences of past actions
• the proper forms of public action
• how cultural and legal identity is to be understood
• how and whether public policy reflects culture, particularly whether it impedes or distorts cultural evolution ⁽⁶⁾
• how individual responsibility and social action are to be understood and to interact
• the efficacy of various forms of policy -- particularly whether policy should be judged on intentions or results
• whether resources should be made available for use or "locked up"
• whether political action is subordinate to the purposes of a basically sound, wider society or whether political action is an efficacious and necessary corrective to a deeply flawed, society. ⁽⁷⁾

At the centre of anti-discrimination policy is how individuals and groups are to be regarded and treated.  These questions demonstrably have very wide implications.

So important are these issues to what is sometimes called "the culture wars", it is reasonable to ask whether the descendants of indigenous Australians are treated as full "flesh and blood" people, or whether they are often seen as "stick figures" in some public morality play.  There seems to be some tendency, for example, to assume a single Aboriginal culture, a single Aboriginal interest, a single Aboriginal view. ⁽⁸⁾

Such tendencies of assuming blanket commonality are quite antipathetic to concepts of respect for individuals and human diversity (and demonstrably false).  It is also reasonable to ask how current public policy and political incentives affect how:

• Aboriginal and Torres Strait Islander people see themselves
• political interests are mobilised and articulated.

In many ways, how we think of ourselves and others, and our society, is at the heart of anti-discrimination and Aboriginal and Torres Strait Islander policy.  A confused and muddled public debate about these issues cannot be other than damaging for Australia.  Only clear understanding can be expected to lead to good public policy.  As the figures on Aboriginal and Torres Strait Islander life expectancy show starkly, these are matters of great importance.

This study looks at the history of the Commonwealth Racial Discrimination Act (1975), which is one of increasing legislative complexity and unintended consequences.  It critically examines the development of public policy towards indigenous Australians.  In particular, examines the profound problems with the use of communal and inalienable title to express indigenous legal interest in land.  The paper does not attempt to answer legal questions, such as what constitutes a sufficient act by the possessor of the radical title in land, the Crown, sufficient to extinguish native title, or how continuing interest in the land is to be determined, or similar questions.  Rather, it is an attempt to contribute to better development of policy in an area which has been far more notable for policy failure than success.

---

PART I:  HISTORY

BEGINNINGS -- COMMONWEALTH ROLE

The greatest act of political consensus in Australian history occurred on 27 May 1967 when, with a majority of 91% of formal votes cast, the Australian electorate ⁽⁹⁾ voted "yes" to the following question

DO YOU APPROVE the proposed law for the alteration of the Constitution entitled -

"An Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population?"

The effect of which was, first, to delete from the Constitution Section 127 which read

"In reckoning the numbers of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."

barring indigenous Australians from being counted in the Census.  The second change amended placitum xxvi of Section 51 by the following deletion

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:

(xxvi.) The people of any race, other than the aboriginal race in any State, for whom it is necessary to make special laws."

thus allowing the Commonwealth government to legislate about indigenous Australians.  The overwhelming "Yes" vote was greater even than the proportion of voting Australians who had endorsed the Federation referendums of the 1890's that provided popular approval of the proposed Commonwealth Constitution.  (A proposal to break the requirement that the House of Representatives be, as near as practicable, twice the number of the Senate was put at the same time and gained only a 40% "Yes" vote, carrying only New South Wales.)

The amendments had passed both Houses of the Commonwealth Parliament without a single "no" vote and the case for a "Yes" vote was prepared and endorsed by the Prime Minister, Harold Holt, the Deputy Prime Minister, John McEwan and the Leader of the Opposition, Gough Whitlam (see Appendix I).  The "Yes" case explicitly stated that passage of the amendment would give the Commonwealth power to make laws for the Aboriginal people.  In arguing for the repeal of Section 127, appeal was made to "our personal sense of justice, our commonsense and our international reputation in a world in which racial issues are being highlighted every day".  It followed a review of immigration policy which had led to an announcement the previous year that the migration program would no longer be limited to people of European descent, the first major step in the abandonment of the White Australia policy.

The path to this constitutional change had taken some time.  In 1957, Jesse Street, wife of the NSW Chief Justice, had proposed a constitutional referendum to remove the discriminatory references to Australian aborigines from the Constitution. ⁽¹⁰⁾  In 1959, a Committee of the Commonwealth Parliament had recommended various constitutional amendments, including the deletion of Section 127.  It did not, however, make any recommendation about Section 51 (xxvi).  Indeed, it was the view of the Menzies Government that placitum (xxvi) was not discriminatory -- on the contrary, it actually forbad discriminatory legislative action by the Commonwealth. ⁽¹¹⁾  In 1963, a petition with hundreds of thousands of signatures advocating deletion of Section 127 was presented to the Commonwealth Parliament.  The then Prime Minister, Sir Robert Menzies, agreed that such an amendment should be put.  However, the wish to ensure maximum support, to consider what other amendments might be put at the same time, debate over Section 51 (xxvi) and a lack of any particular sense of urgency, meant it was not until 1967, under Menzies' successor, that the question was finally put -- including, unlike in the lapsed Menzies bill, an amendment to Section 51 (xxvi).

Table 2:  Constitutional Referendum
Recognition of Aborigines, 27 May 1967, Formal Votes

	Yes		No
	Votes	(%)	Votes	(%)
NSW	1,949,036	91	182,010	9
Vic	1,525,026	95	85,611	5
Qld	748,612	89	90,587	11
SA	473,440	86	75,383	14
WA	319,823	81	75,282	19
Tas	167,176	90	18,134	10
Aust.	5,183,113	91	527,007	9

Source:  Commonwealth Parliamentary Handbook

Commonwealth policy

Race, like gender, is a (usually) easily physically discerned feature of a person.  It is, however, far more biologically trivial than gender.  Even more than gender, it has been subject to ludicrous claims of importance in behaviour, capacity and moral quality.

One of the major campaigners for the Constitutional amendments on Aboriginal matters was Faith Bandler, the daughter of a "blackbirded" South Sea Islander.  Brought up in poverty, she suffered the public slights and discrimination meted out to Aboriginal people without actually being legally caught within the provisions. ⁽¹²⁾  Her own life expressed how unconnected to culture and identity "race" can be.

Race provides an obvious point of difference between peoples.  European dominance of the globe in the nineteenth century needed some explanation.  Europe was a continent of different cultures, of different forms of Christianity (Catholic, Protestant, Orthodox), of different languages.  Race seemed a distinguishing feature which could explain why Europeans were dominant.  It could also provide a buttressing legitimisation of empire.  Darwin's ideas of natural selection were easily adapted to the purpose of supporting such notions.  In the early part of the twentieth century, eugenics was a very powerful, and pervasive, idea as, for example, the plays of the (socialist) playwright George Bernard Shaw attest.  In the Australian context, the Aborigines could be, and often were, seen as an "inferior" race who were doomed to pass away.

The horrors of the Nazi holocaust, the retreat from Empire and Asian economic success have provided, respectively, an horrific example of the results of serious racism, the collapse of the need to legitimise dominance and demonstration of the irrelevance of race to social outcomes.  European success is now much more clearly understood as being based on institutional arrangements which fostered the development of commercially effective, and technologically innovative, societies administered by stable, competitive, polities.  This mix generated a range of strengths and advantages, mostly unintended.  For example, Europeans were generally, and increasingly, far more disease experienced, and thus diseased-resistant, than the isolated indigenous populations with which they came into contact.  Disease was regularly a far greater killer of the indigenous population than European official or unofficial military effort. ⁽¹³⁾

It is an easy enough point to make that the indigenous people of the Commonwealth of Australia consist of two groups, Torres Strait Islanders -- who are Melanesian in culture and descent -- and Aboriginals -- who are Australoid in culture and descent.  Hence the phrase "Aboriginal and Torres Strait Islander". ⁽¹⁴⁾  But this can, in fact, be profoundly misleading.  There is, in fact, no single Aboriginal people or Aboriginal culture:  there are Aboriginal peoples and Aboriginal cultures;  without common languages, common institutions or common cultural beliefs.  Over 300 languages were spoken by Aboriginal peoples at the time European invasion and settlement began

"throughout the continent were....barriers of language, geography, mythology or blood which divided the land into hundreds of fluid republics." ⁽¹⁵⁾

It is an outsider's perspective that they are a single people with a single culture.  The reality of intermarriage and mixed descent complicates questions of commonality and identity even further.

The only experiences Aboriginal peoples have shared have been their attempts to survive and prosper in the Australian continent and to deal with the settler-arrivals and their state.  The former experience did not create a single people with shared culture, languages and institutions.  The latter experience did encompass their descendants within a single set of general institutions and a common language, but neither the language nor the general institutional structure was specific to the Aboriginal peoples.

There were certainly specific institutions created for the purpose of administering public policy towards Aboriginal people.  However, they were not Aboriginal institutions in the sense that they were created by, and out of the experience of, Aboriginal peoples. ⁽¹⁶⁾  Instead, they have been imposed from outside that experience in pursuit of policy goals decided by others.

In the first half of the twentieth century, that policy goal was "protection".  In each State and the Northern Territory, a single public agency existed which managed Aborigines on reserves and, indirectly, elsewhere.  Except where "exempt" status was granted, Aborigines were excluded from such major general institutions as the social security and award wage systems and, in some States, the franchise.  Aborigines were deemed to be profoundly different from other Australians:  even those deemed "exempt" could have their exemption revoked. ⁽¹⁷⁾

In postwar Australia, the highly paternalistic "protection" regimes began to be replaced by a notion of equal rights and assimilation.  Gradually, regulations were re-written in a non-racial way or simply abolished.  Aborigines were given the franchise in the Northern Territory in 1962, in Western Australia in 1963 and in Queensland in 1965, though their exemption from compulsory voting lingered on in Commonwealth legislation until 1984. ⁽¹⁸⁾  By contrast, Aborigines were never excluded from the franchise in South Australia, male Aborigines gaining the vote in 1857 and female Aborigines in 1894.  Aborigines were thus able to vote in South Australia for the 1897 Australasian Federal Convention delegates and the Federation referenda. ⁽¹⁹⁾

The policy of "protection" posited that Aboriginal people were different, a difference marked and transmitted by descent, and so had no automatic right of full participation in Australian social and public life.  The policy of "assimilation" posited that Aboriginal people were no different, or at least should not be in the eyes of public policy, and so had no collective, specific place in Australian social and public life -- except as might be created by private and voluntary action.

Absorption into the mainstream was the avowed aim.  The removal of children from Aboriginal families and placement in non-Aboriginal families was the simultaneous expression of confidence that Aboriginal Australians were entirely capable of being part of the full life of mainstream Australia and a lack of confidence in many existing Aboriginal families and communities to provide opportunities for such participation.

One of the last "triumphs" of assimilation was the 1966 Northern Territory Cattleman's Award decision.  In this, the Conciliation and Arbitration Commission, presided over by Sir Richard Kirby, required that Aboriginal cattlemen be paid at the same rate as other cattlemen.  The result was a vast increase in Aboriginal unemployment, since they were not interested in permanent, full-time employment, nor were many pastoralists in a position to pay for such employment.  Equal treatment in different circumstances does not represent justice.  There was no need for a specifically racial criteria:  insertion of an appropriate casual or part-time category in the award could have satisfied non-discriminatory criteria.  But such clauses were still anathema to a union movement not yet prepared to concede to the burgeoning, largely female, demand for such employment. ⁽²⁰⁾  Instead, an easy "one size fits all" formal equality could be (and still is) seen as a triumph of inclusion regardless of real consequences.

The policy of assimilation's lack of specific place could easily be construed as a form of denial;  a denial of specific history and cultural legacy.  Assimilation saw mainstream Australian society as manifesting a great civilisation, whose benefits would be available to all, regardless of race.  Indigenous history and culture were something to be moved away from, to a better future.  Indigenous history and culture could thus easily be seen as being part of the jetsam of history, to be discarded on the path to absorption in the Australian mainstream.  On the other hand, it is clearly true both that hunter-gatherer cultures cannot be preserved in toto in the modern world ⁽²¹⁾ and that aspects of those cultures can be positively harmful to achieving the life expectancies and standards of living of modern industrial societies. ⁽²²⁾

The next wave of policy which evolved went under the rubric of "self-determination".  Aborigines and Torres Strait Islanders were now full Australian citizens, with all the rights of public and social participation, but public policy was also going to take extra, specific steps to provide specific assistance to bring their social outcomes, in many areas demonstrably below that of mainstream Australia, up to the same level.  There would also be acknowledgment of specific contributions to Australian history.  The Reconciliation Process, the Aboriginal and Torres Strait Islander Commission and the Mabo judgements represent manifestations of this evolving policy.

As a result of the 1967 referendum, the Commonwealth acquired specific legal power over Aboriginal affairs outside Commonwealth Territories for the first time.  The result was a noticeable growth in Commonwealth expenditure (see Appendix II), though the growth in real expenditure per head peaked under the Whitlam Government, declined and levelled off thereafter before climbing again under the later Hawke and Keating Governments (see Graph 1).  While the annual sums per head of population have not been startling, the amount spent over the years has been very considerable.

Total expenditure on ATSI programs per head of the Aboriginal and Torres Strait Islander population has become equal to about two-thirds of total Commonwealth expenditure per head of population.  However, comparisons are complicated because much Commonwealth expenditure is for activities (such as defence) which also cover the Aboriginal and Torres Strait Islander population, while much ATSI expenditure consists of general programs repackaged (such as Abstudy).

Graph 1:  Total Commonwealth Outlays Per Head and
ATSI Expenditure Per Head of ATSI Population
1968-69 to 1994-95

Source:  Gardner-Garden (1996), ABS, Budget Papers.

It is damning comment on the lack of serious attention to actual social outcomes that, despite significant Commonwealth expenditures on Aboriginal and Torres Strait Islander programs for three decades, the quality of statistical data on the circumstances of indigenous Australians is still extremely patchy. ⁽²³⁾  The failure to look past intent and resources to actual results, based on systematic development of statistical and other measures, even given the admitted particular difficulties in this area, indicates policy too concerned with appearing to do the right thing and not sufficiently concerned with actual effects.  It is only relatively recently that serious attempts have been made to develop useful and comprehensive data on the circumstances of indigenous Australians.

Counting Who?

As Thomas Sowell has noted, race is just one of various "ways of collectivising people in our minds", in this case a visibly different group with different traditions. ⁽²⁴⁾  The difficulty of race as a category becomes particularly clear when attempts are made to decide who belongs in which race.  There is no full consistency in definition across Australian jurisdictions and legislation.  In 1978, a Federal Cabinet decision adopted the following administrative definition of Aboriginal and Torres Strait Islander for the Commonwealth, having already been in widespread use among Commonwealth and State bodies since 1968:

An Aboriginal or Torres Strait Islander is a person of Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he (she) lives.

The definition has since entered legislation and was accepted by the High Court in 1983 as giving meaning to the expression 'Aboriginal race' in Section 51 (xxvi) of the Constitution in the case of Commonwealth v Tasmania. ⁽²⁵⁾  This is a three part definition encompassing descent, identification and acceptance -- in other words, parentage and the attitude of oneself and those lived amongst.

But that is a perfectly reasonable definition of cultural membership.  Culture is primarily transmitted by family:  so descent matters.  It is basic to how one views the world:  so identification matters, and is created and maintained from social interactions:  so acceptance by other members of the culture matters.  "How Aboriginal is person x?" is properly construed as a question about family, and therefore cultural, background.

When we talk about Aboriginal and Torres Strait Islanders we are talking about members of, or descendants of members of, a group of cultures one of whose features was a range of shared visible physical features, features which have become diluted over time by intermarriage and other cross-cultural parentings.  The cultures have also become diluted by intermingling, foreign influences, war, death, loss of knowledge as well as withdrawal from the patterns of life which the cultures were constructed in response to and to maintain.

The variety of definitions, and delay in coming to a widely agreed definition, itself indicates the complexity and fluidity of identity in this regard.  In particular, it indicates the incompleteness of such identification -- that cultural identity can be mixed, and is far from a complete identification of any individual.

In attempting to count Aboriginal and Torres Strait Islanders in each Census, the Australian Bureau of Statistics has relied on self-identification coupled with the normal processes of cross-checking household returns.  Graph 2 shows the results of the Census counts, plus the 1994 survey of Aboriginal and Torres Strait Islander people.  Interpolated between the census and survey results are estimates of the Aboriginal and Torres Strait Islander population in the intervening years.

Graph 2:  Aboriginal and Torres Strait Islander Population:
1966-67 to 1994-95

Source:  ABS, Tasman.

The anomalous nature of the 1981 Census result is quite clear.  It is even more striking in Graph 3, which sets the Aboriginal and Torres Strait Islander population as a percentage of the total Australian population.

Graph 3:  Aboriginal and Torres Strait Islander Population
as a Proportion of Australian Population:
1966-67 to 1994-95

Source:  ABS, Tasman.

The ABS discussion of the 42 per cent increase in the Census count of the Aboriginal and Torres Strait Islander population from 1981 to 1986 (ABS 1989) notes that natural increase could only account for 14,000 of the nearly 68,000 person increase in measured population.  While it identifies various collection and other procedural changes which are likely to have increased the accuracy of the count, it concludes that increased willingness to identify as Aboriginal and Torres Strait Islander on the part of respondents was the main cause of the 1981 to 1986 increase.

This is hardly a satisfactory explanation in itself.  That the ABS recorded a decline in the number of Aboriginal and Torres Strait Islanders from the 1976 to the 1981 Census, when the rates of growth between the 1971 and 1977 and the 1981 to 1991 Censuses have been high and comparable, indicates clear difficulties with the 1981 result.  It is not the 1986 result which needs explaining, but the 1981 result.

Prior to the 1986 Census, the ABS published an Occasional paper (Choi and Gray 1985) which analysed the fall in the estimated Aboriginal (and Torres Strait Islander) population between the 1976 and 1981 Censuses.  It concluded that the 1976 result was anomalous, a conclusion which was not supported, as indicated above, by subsequent Census results.

It is, however, striking that the number of people identifying as Aboriginal and Torres Strait Islanders has grown over the period:  noticeably faster than the growth in general population.  Indeed the proportion of Aboriginal and Torres Strait Islanders has doubled from 0.8% in 1966 to 1.6% in 1991, considerably in excess of what would be accounted for by natural increase.

A range of reasons have been cited for this growth.  A common claim is that it has been induced by the growth of programs for which Aboriginal and Torres Strait Islanders are eligible.  There are a range of problems with such claims.  First, the Census is confidential and has no connection to program eligibility and delivery:  though respondents may not believe this, of course.  Second, much of the increased identification was among urban Aboriginals, who are not eligible for many Aboriginal and Torres Strait Islander programs.  Interestingly, the Choi and Gray paper notes that

• the 1981 results were consistent with figures for recipients of Aboriginal student grants and identified Aboriginal secondary students, and
• the 1976 results were anomalous with the voting in the National Aboriginal Conference elections, ⁽²⁶⁾

both of which may suggest that those apparently not enumerated by the 1981 Census generally did not participate in Aboriginal programs.

Thirdly, the difference in payments between, say Austudy and Abstudy, are generally fairly small -- though, if there is no significant cost in such identification, even small benefits have value.  (The eligibility criteria, particularly income and asset tests, are looser in the latter.  Abstudy also provides a range of extra payments.  On the other hand, the criteria for both programs are so complex that the incentive effects are very unclear.)

There has also been a considerable upsurge, not only in political activism -- over issues such as land rights, a treaty -- but also in popular culture:  rock bands, festivals, community activity.  Such identification is a cultural matter, coming off a low base with considerable discriminatory State legislation still operating in late 60s to 70s which placed Aboriginals on reserves under state control for income, marriage, and other issues.  Until relatively recently, there were considerable legal dangers and disadvantages in identifying as an Aboriginal or Torres Strait Islander in many States.  For those of mixed ancestry, denial of the Aboriginal or Torres Strait Islander part of their heritage may well have been an entirely understandable decision.  Once those legal dangers no longer applied, a re-affirmation, or even rediscovery, of that heritage is entirely understandable, and likely.

Moreover, a similar phenomena of increased identification has been reported amongst indigenous Americans ⁽²⁷⁾ and has also occurred in NZ with the Maori, due to cultural renaissance.  In the case of native Americans, a recent study (Nagel [1996]) noted a range of reasons for increased indigenous identification in the US

• increased funding of federal Indian programs and claims awards enhanced the perceived worth of Indian ethnicity and provided an incentive structure for increased Indian ethnic identification
• American ethnic politics during the civil rights era legitimated ethnicity in general as a valued component of social status and fostered ethnic pride, increasing individuals' motivation to assert or rediscover their ethnicity
• Federal assimilation and urbanisation policies laid the groundwork for Indian ethnic mobilisation during the 1960s, which blossomed during the civil rights era.

Clearly, a similar range of reasons applies in Australia.  The "freedom bus" and Aboriginal "tent embassy" played similar roles to US civil rights marches and the occupation of Alcatraz by "Indians of all Nations".  Nagel reports young adults as particularly likely to change identification, a phenomena also noted in Choi and Gray.

But the key counterargument to any suggestion that the increase is somehow spurious is the one identified by the ABS itself.  The noted differences in life expectancy and age-profile between the Aboriginal and Torres Strait Islander population and the general Australian population have not been significantly diluted by the increased identification.  In other words, the "extra" people displayed the same life expectancy and consequent age profile as the formerly identifying population. ⁽²⁸⁾  The identification is demographically consistent.  The question is, where does that demographic consistency come from?  From the consequences of common patterns of life. ⁽²⁹⁾

What the experiences in Australia, New Zealand and the USA show, however, is that group identification is not an automatic process.  There are many circumstances in which it is chosen, particularly in the cases of mixed ancestry.  The formation and maintenance of groups is based on a complex matrix of individual choices.  We all belong to many overlapping groups, the salience of which varies greatly depending on individual and social circumstances.  The proper purpose of anti-discrimination policy is to ensure respect for the individual rather than the diminishing of human dignity involved in judging people on their group membership.

Counting How?

The arrival of the First Fleet at Botany Bay represented the early Industrial Revolution meeting the Old Stone Age.  This is probably the greatest cultural gulf between two peoples that have suddenly confronted each other in all of human history. ⁽³⁰⁾  The effects of this continue to reverberate throughout the interaction between indigenous and other Australians.  Difficulties involved in counting indigenous Australians highlight particularly effectively the cultural distance between Aboriginal and other Australians.

ABS census enumeration techniques assume relatively stable, generally nuclear family based, households.  They also assume that people are used to dealing in a formal (impersonal) way with requests for information.

A paper by the Centre for Aboriginal Economic Policy Research (Martin and Taylor 1995) explains in some detail how far these assumptions are from the daily lives of indigenous Australians in remote areas.  Following the importance of sociality in hunter-gatherer cultures, whole families typically visit on a regular basis, leaving some houses completely empty and others with a host of temporary visitors.  Small children are likely to be with maternal grandmothers rather than either parent.  Disputes are handled by the nomadic response of moving away, resulting in regular household fission.  Census respondents may also be reluctant to state who is present to avoid drawing attention to results of disputes.  Residences typically have a core of permanent residents and a shifting periphery of temporary residents.  And so on.  All this makes accurate enumeration according to the assumed norms of a long evolved sedentary society quite problematic.

It is only by focusing on questions of cultural (including informal institutional) differences and adaptation that a full understanding of the issues in indigenous participation in social, economic and political life can be reached.

BEGINNINGS -- THE U.N. CONVENTION

The decade of the 1960's had barely started when, on 21 March 1960, the Sharpeville Massacre occurred in South Africa.  South African police fired on a crowd of people protesting against the pass laws;  69 protesters were killed and 180 wounded.  The pass laws were one of the buttresses of the system of apartheid that the National Party regime in South Africa had been constructing since it came to power in 1948.  A hemisphere away, by 1967, race riots had disfigured many US cities.  Race, racial harmony, racism, race-based advantage and discrimination were major international issues.

The United Nations had its beginnings with the Atlantic Charter signed by President Roosevelt and Prime Minister Churchill on 14 August 1941.  The Charter was later adopted as a "Declaration by United Nations" by the Allies on 1 January 1942, the first use of the term "United Nations".  The United Nations was born out of stirring statements of international principle.  It has since been very willing to issue such statements, expressing the moral authority which it claims but which is not tempered by actual responsibility.

Revulsion at the grisly evidence of Nazi megacide against the Jews, Gypsies and others deemed "racial inferiors" had helped fuel international adoption of the American concept of explicit rights in the Universal Declaration of Human Rights (1948). ⁽³¹⁾  This has subsequently been followed by other Declarations and Conventions (some of those relevant to anti-discrimination law are listed in Appendix III).  The process of de-colonisation created new nations with significant sensitivities about racial discrimination.  Racial discrimination was one of the first of such Declarations and Conventions.

The International Convention on the Elimination of All Forms of Racial Discrimination was adopted by the UN General Assembly on 21 December 1965.  It followed the earlier Declaration on the Elimination of All Forms of Racial Discrimination adopted by the UN General Assembly on 20 November 1963.  The Convention opened for signature on 7 March 1966.  In accordance with Article 19.1, which stated the Convention would enter into force 30 days after the 27th instrument of ratification or accession had been deposited with the UN Secretary-General, the Convention entered into force on 4 January 1969.

Australia signed the Convention on 13 October 1966.  Australian practice at the time was not to ratify international conventions until such time as practice in the Commonwealth and States was in conformity with it:  an entirely proper way for a federal polity to proceed.

The Convention defines 'racial discrimination' as (Article 1.1)

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of life.

The Convention permits distinction between citizens and non-citizens (Article 1.2).  It explicitly does not apply to nationality, citizenship and naturalisation laws, provided they do not discriminate against any particular nationality (Article 1.3).  Article 1.4

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

permits special measures to achieve equal enjoyment or exercise of rights, but only, as is clearly stated, if that

• is their sole purpose,
• they do not create special rights and
• terminate with the achievement of the objectives for which they were taken.

Article 2 commits signatories to condemn racial discrimination, to pursue a policy of ending such discrimination and promoting understanding, to not engage in racial discrimination, not to sponsor, defend or support such discrimination, to end discrimination, if necessary by legislation, to encourage appropriate integrationist organisations, movements and other means of ending barriers between races and to discourage anything which tends to strengthen racial division.

The Article also permits special measures, provided

"these measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved".

While more loosely worded than section 1.4, the phrasing again deems special measures to have a "use by" date.

Article 3 condemns racial segregation and apartheid.  Article 4 requires making it an offence to promulgate racial superiority or hatred and bans organisations promulgating the same.  Article 5 proclaims rights to equal treatment in administration of justice, security of person, political, civil rights, economic, social and cultural rights, rights of access to public spaces.  Article 6 requires means of redress be available.  Article 7 requires encouragement of understanding, tolerance and friendship amongst peoples.

Part II of the Convention creates a Committee on the Elimination of Racial Discrimination, which receives reports on progress by signatories, who may refer other signatories to the Committee for investigation.  The Committee may create investigative Commissions.  Article 14 allows signatories to permit individuals and organisations to have access to the Committee to consider alleged cases of violation of the Convention.  States can declare the Committee competent to hear cases of individuals or groups of individuals.  The Committee also has the right to comment, and make recommendations on, petitions from inhabitants of colonial territories and reports of relevant UN bodies on such territories.  Part III of the Convention deals with procedural matters.

The Convention displays some tension between

1. the concept of a set of rules ensuring that all can go about their daily business as they choose and relying on their merits as individuals not according to (certain specified types of) group membership, and
2. enjoining specific action to eliminate disadvantage.

However, the Convention clearly envisages the former as an end point, with specific action clearly intended to have a "use by" date.  The Convention also displays some significant illiberal elements, notably Article 4 (which requires making it an offence to promulgate racial superiority or hatred and bans organisations promulgating the same).  Generally speaking, however, it is a relatively liberal document.

ADOPTION OF ACT 1973-75

Elected in December 1972, the Whitlam Government was highly activist in many areas.  One of the first acts of the Whitlam Government was to sign the International Covenant on Civil and Political Rights (ICCPR).  In 1947, the UN Commission on Human Rights decided to draft a treaty based on the Universal Declaration of Human Rights.  The ICCPR was presented to the UN General Assembly in 1954, adopted in 1966 and came into force in March 23, 1976.  On the basis of the ICCPR, the Whitlam Government presented the Human Rights Bill to Parliament on 21 November 1974.  The Bill was to apply to the States and Territories and to override Commonwealth law, unless specific exemption was given.  The Bill created a Human Rights Commissioner to settle disputes and gave the Australian Industrial Court legal jurisdiction, able to give enforceable rulings and award damages.  The Bill was highly controversial in its enforcement procedures, in the overriding of common law concepts in favour of explicit statutory rights and in its centralising nature, and was abandoned after the 1974 election.

The Whitlam Government introduced a Racial Discrimination Bill four times.  The first was introduced into the Senate by Attorney-General Senator Lionel Murphy on 21 November 1973 in conjunction with the Human Rights Bill.  The second was introduced on 4 April 1974 and

• provided further detail about rights covered,
• specifically included immigrants,
• reduced the originally proposed compulsory powers for the intended Race Relations Commissioner,
• provided a research and education role for the proposed Race Relations Council and
• invested judicial coverage in the proposed Superior Court of Australia.

No debate occurred on either Bill.  A third Bill, which had been further amended to

• create a Community Relations Commissioner,
• give the Commissioner power to call compulsory conferences,
• give the Commissioner a research and education role and
• rely on civil rather than criminal law

was introduced into the Senate on 31 October 1974.  This Bill was withdrawn and an identical Bill was introduced into the House of Representatives by Attorney-General Kep Enderby on 13 February 1975. ⁽³²⁾

In his Second Reading Speech, the Commonwealth Attorney-General

• criticised the common law for providing few effective remedies against discrimination,
• explained that the Bill was based on the UN Convention, which was attached as a schedule to the Bill, and
• argued that legal sanctions against discrimination were desirable, not least because of the important educative role he held that such sanctions provided on the hurtful consequences of discrimination.

The Attorney further argued that it was easier to resist social pressures to discriminate if such acts were unlawful. ⁽³³⁾

When debate resumed on 6 March, Jim Killen, who lead the debate in the House for the Opposition, described the Bill as "momentous".  He emphasised the Opposition's opposition to racial discrimination, making reference to the events of the century, and queried the ambit of the external affairs power, noting differing judicial opinions of Justices Evatt and McTiernan, on one hand, in the Burgess case of the 1930s and of Justice Sir Douglas Menzies in one of the airline cases on the other. ⁽³⁴⁾  He then got to the crux of the Opposition's criticism of the Bill, arguing that its means of enforcement was a case of "putting in peril the safety of our institutions".  The first Part of the Bill, which defined and proscribed racial discrimination, he held to be unexceptional.  He argued, however, that the Community Relations Commissioner was given power by the Bill

"never given to any person in this country.  Not even in wartime".

He was particularly critical of the fact that the complainant's identity could be kept secret and that, in the first part of any proceedings, the respondent was not entitled to legal representation. ⁽³⁵⁾

The continuing theme of Opposition concerns and amendments of the Bill in both Houses was concurrence with the purpose of the Bill, but strong opposition to some of the means chosen.  Some Opposition speakers went further, doubting whether legislative action was appropriate, and could even be counterproductive. ⁽³⁶⁾  In particular, concerns were raised that it could create a "racial industry" with a vested interest in finding and exaggerating problems. ⁽³⁷⁾

Senator Greenwood, the shadow Attorney-General, criticised features of the Bill as "repugnant to the rule of law and to freedom of speech", particularly the powers given to the Commissioner to institute legal proceedings and the restrictions on free speech.  Sen. Greenwood said, of the constitutional basis of the Bill

"What the Government is doing is relying upon the fact that there is an international convention......One says that if that be the position the external affairs power is become a plenary power of virtually no limit whatsoever.  It would mean that the external affairs power could be invoked to virtually ignore or repudiate the divisions of power which are contained in the Commonwealth Constitution."

Sen. Greenwood thought it would be challenged before the High Court in due course.  He also noted that the Convention on which the Bill was based on one hand guaranteed anti-discrimination in freedom of speech and on the other restricted advocacy of racial discrimination. ⁽³⁸⁾

Government responses to concerns about the powers granted to the Commissioner and restrictions on speech were to argue that Opposition concerns were exaggerated, that the main emphasis was on conciliation and that discrimination was very widespread and needed to be combated vigorously.  The ends-means distinction that the Opposition wished to draw was sometimes held to imply a lack of good anti-discrimination faith on the part of the Opposition. ⁽³⁹⁾  Much reference was made in the debates in both Houses to overseas models, particularly the UK Race Relations Board and to Canadian experience.  References in the debate to acts of discrimination or risks of discrimination were predominantly, but far from exclusively, to the experiences and situation of Aboriginal Australians.

The Bill was mildly amended in the House of Representatives and heavily amended in the Senate.  The Senate amendments were accepted by the Government "with a total lack of enthusiasm", in the words of the Attorney-General.  The main effects of the Senate amendments were to remove

• the power of the Commissioner to initiate legal proceedings
• the power of the Commissioner to use a judge to obtain evidence
• offences of incitement and promotion of racial hatred
• employer's vicarious liability for actions of employees
• the offences created from the jurisdiction of the Industrial Court (the Bill had set that jurisdiction to be transferred to the Federal Superior Court if that was created).

Clauses to similar effect were to be the subjects of later amendments to the Act.  In his speech reluctantly accepting the Senate amendments, the Commonwealth Attorney-General cited the compulsory evidentiary powers of the Commissioners of Taxation and of Patents, the Registrar of Trade Marks, the Director-General of Social Security, the Public Accounts Committee, the Industries Assistance Commission and of Royal Commissions as indicating that the proposed powers given to the Community Relations Commissioner were by no means extraordinary.  He also held that the conciliation proceedings of the UK Race Relations Board had been rendered ineffective by lack of such power. ⁽⁴⁰⁾  The amended Bill passed the House of Representatives on 3 June 1975 and was given Royal Assent on 11 June 1975.

The Parliamentary debates expressed conflicting views of society, individuals and the state.  Clearly on display was the perennial divide between those who view the structure of society as basically sound, with action by the state being a matter of cautious consideration and subject to significant possible dangers, and those who view society as suffering deep flaws, which the state can readily rectify, if sufficiently and appropriately empowered.

Debate over discrimination and affirmative action captures this divide particularly vividly -- as is very clear in, for example, the US debates over affirmative action, particularly the debate over the 1996 Californian Civil Rights Initiative which was passed 54% to 46% in California in November 1996.

Is discrimination deeply endemic in society?  Are the likely victims of discrimination in a dramatically weaker position than those likely to discriminate against them?  Can organs of the state reliably operate on their behalf?  Government members argued, either explicitly or in effect, that the answer to each of these propositions was "Yes".  Thus, the use of a specialist tribunal with significant powers was an appropriate mechanism.  Anything less would not be effective.  Indeed, if discrimination is deeply endemic in society, the likely victims of discrimination are in a dramatically weaker position than those likely to discriminate against them and the organs of the state can, in practice, operate reliably on their behalf, then moving to a policy of affirmative action, of active measures on behalf of those likely to suffer discrimination, is entirely logical.

One opposing position is that, in a free society, people should be entirely free to discriminate if they choose.  Discriminatory or racially motivated action that breaks other laws should still be prosecuted, while offensive remarks are best handled as are other objectionable practices and manners through social pressure, ostracism and the setting of better examples of good behaviour.  This view was not articulated in the debate.  It does raise serious questions about the exercise of rights and freedoms whose effect may be to dramatically reduce the opportunities of others.  Another position is that, even if discrimination is wrong, legislative action is not appropriate:  because the problem is not serious enough warrant it, because it is not usefully amenable to legislative action, because legislative action against verbal actions might be counter-productive and give racists the publicity they seek or because many discriminatory actions already broke other laws.  Some Opposition Senators expressed, or at least inclined to, such a view.

The official Opposition view was that it was a problem, and legislative action was appropriate, but not measures or judicial processes of a significantly different calibre than was normal for other laws.  In part, this was a simple scepticism about the reliability of political mechanisms, about the level of power officers of government should be trusted with.  Such scepticism is, however, generally easier to maintain if the problem itself is not judged to be of a profound nature.  (Even though it was logically possible to maintain that there was an endemic problem but not believe officers of government should be trusted with such extensive power.)

The Act finally passed was, due to the lack of Government control of the Senate, generally closer to the Opposition view than the spirit of the original Bill.

Original Content of Racial Discrimination Act

The Racial Discrimination Act (No. 52 of 1975) came fully into effect by Proclamation on 31 October 1975.

As previously stated, as originally passed, operation of the Act rested on three placita of Section 51 of the Commonwealth Constitution:

• the power of the Commonwealth to make laws for any racial group it is deemed necessary to do so (xxvi),
• the immigration power (xxvii)
• and on the external affairs power (xxix).

As has also been previously stated, the use of the external affairs power comes from the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by Australia on 30 September 1975, approval for ratification being incorporated in the Act (Section 7).  The Convention was incorporated as a schedule to the Act.

Part II of the Act prohibited racial discrimination.  Excluded from its ambit were acts to which the special provisions (Article 1, paragraph 4) of the Convention were held to apply -- with the exception of a provision, Section 10(3), which barred laws restricting the capacity of Aboriginal and Torres Strait Islander persons to manage their own property.  Also excluded were deeds done for charitable benefit (Section 8).  It declared discrimination based on race, colour, descent or national or ethnic origin (summarised as racial discrimination in the title) to be unlawful (Section 9) using the language of the Convention, with the rights or fundamental freedoms whose restriction on discriminatory grounds is unlawful including all the rights referred to under Article 5 of the Convention.  It guaranteed equality before the law, overriding laws of other effect (Section 10).  It barred denial of access to places and facilities on the basis of race, colour, national or ethnic origin (Section 11), barred racial discrimination in treatment for land, housing and other accommodation (Section 12), barred racial discrimination in provision of goods and services (Section 13), barred racial discrimination for trade union membership (Section 14) in employment (Section 15), barred advertisements indicating an intention to do an act unlawful by reason of Section 12 or 15 (Section 16), made unlawful the incitement or assistance of acts of racial discrimination (Section 17), covered within its ambits acts done for reasons which included racial discrimination provided that was the dominant reason (Section 18).

Part III of the Act dealt with inquiries and civil proceedings.  The position of Commissioner for Community Relations was created (Section 19).  The Commission was given functions of

• inquiring into, and attempting to settle, infringements of Part II,
• promoting understanding, acceptance and compliance with the Act,
• developing, conducting and fostering research and educational programs combating racial discrimination, promoting tolerance and propagating purposes and principles of the Convention.

The Act detailed how the Commissioner was to inquire into acts, upon receipt of written complaint, believed unlawful under Part II and endeavour to have them settled (Section 21).  The Commissioner could direct attendance at a conference (Section 22).  Reconciliation committees could be established which could perform the conciliation functions of the Commissioner (Section 23).  Persons aggrieved by acts unlawful under Part II could seek redress via the courts (Section 24) who could grant various remedies (Section 25).

Part IV of the Act created various offences.  Section 26 stated that only unlawful acts expressly stated to be offences are offences under the Act.  Section 27 made it an offence to obstruct operation of Act.

Part V of the Act created the Community Relations Council with various advisory functions to the Minister and the Commission.

Part VI of the Act covered various administrative provisions principally to do with the appointment of the Commissioner (Sections 29-40) and the operation of the Community Relations Council (Sections 41-43).

Part VII of the Act covered miscellaneous items such as investing State and Territory Courts with jurisdiction under the Act (Section 44), a person instituting proceedings could apply to the Attorney-General for assistance (Section 45), requiring the Commissioner to report to the Attorney-General annually (Section 46) and enabled the Governor-General to make regulations for the purposes of the Act (Section 47).

The first Community Relations Commissioner appointed under the Act was, as expected, Al Grassby.

EARLY PERIOD 1976-1982

The Commonwealth Racial Discrimination Act was preceded by the South Australian Prohibition of Discrimination Act (1966) and has since been followed by other anti-discrimination acts (see Table 3).

During this period, the RDA was amended by the Administrative Changes (Consequential Provisions Act) 1976 (No. 91 of 1976), the Racial Discrimination Amendment Act 1980 (No. 18 of 1980) and by the Racial Discrimination Amendment Act 1981 (No. 25 of 1981).

The first Act merely replaced "Attorney-General" with "Minister".  The second incorporated the establishment, in 1980, of the Human Rights Commission into the Act, the Commission being given functions under the Act previously exercised solely by the Commissioner, and delineating relations between the Commission and the Commissioner.  It also protected claimants from civil action.  The third Act simply substituted references to the Human Rights Commission Act of 1980 ⁽⁴¹⁾ with the Human Rights Commission Act of 1981. ⁽⁴²⁾

The Commissioner was not enthusiastically resourced by the Fraser Government, ⁽⁴³⁾ and there were few cases and little litigation.  The Act neither fulfilled the grander hopes of its proponents of being some great engine of social justice -- though whether it had a silent educative effect is hard to say -- nor the more dire fears of its opponents.

New South Wales, Victoria and South Australia passed their own Acts during the period;  South Australia replacing its 1966 Act, which had resulted in 4 cases in 10 years of operation. ⁽⁴⁴⁾  The RDA itself generated 86 compulsory conferences until 30 June 1984, from which 30 certificates detailing official findings were issued. ⁽⁴⁵⁾

Table 3:  Selected Anti-Discrimination Legislation in Australia

Commonwealth 1975 Racial Discrimination Act 1984 Sexual Discrimination Act 1986 Human Rights and Equal Opportunity Commission Act 1986 Affirmative Action (Equal Employment Opportunity for Women) Act 1992 Disability Discrimination Act New South Wales 1977 Anti-Discrimination Act Victoria 1977 Equal Opportunity Act 1984 Equal Opportunity Act South Australia 1966 Prohibition of Discrimination Act 1976 Racial Discrimination Act 1984 Equal Opportunity Act Western Australia 1984 Equal Opportunity Act Queensland 1991 Anti-Discrimination Act Australian Capital Territory 1991 Anti-Discrimination Act Northern Territory 1992 Anti-Discrimination Act

Sources:  Thorton (199O), SINO database, NT Govt. Homepage,
Univ. of SA database, TaslnLaw database.

The Queensland Government in particular had refused to accept the validity of the Commonwealth Act.  This eventually led to a High Court case which was to begin a revolution in Australian constitutional jurisprudence.  This was the Koowarta case of 1982.  An Act with no apparent special constitutional status, and which had been a litigation and administrative backwater, suddenly began its march to political and constitutional centre stage.

GROWING STATUS 1982-1995

Koowarta

It was Queensland Government policy, stated in a Cabinet decision of September 1972, that

"the Queensland Government does not view favourably proposals to acquire large areas of additional freehold or leasehold land for development by Aborigines or Aboriginal groups in isolation" ⁽⁴⁶⁾

it being deemed that "enough" land was already set aside for Aboriginal use.  John Koowarta had requested of the Commonwealth Aboriginal Land Fund Commission that it acquire a particular pastoral property for use by himself and others.  Premier Bjelke-Petersen, in his capacity as Minister for Lands, had refused permission for the transfer of the lease to the Commission, citing, in a statement in December 1976, the above policy of the Queensland Government.  Mr Koowarta brought an action against the Minister under the Racial Discrimination Act.  This led, in 1982, to the validity of the Act being tested before the High Court in what became known as the Koowarta case.

All the Justices, with the exception of Murphy J, ⁽⁴⁷⁾ ruled that the Racial Discrimination Act was not a valid use of the race power of the Constitution, because of the general nature of the Act -- it was not an enactment for a particular race.  The Justices were thereby required to wrestle with what the limits of the external affairs power actually were (the immigration power clearly being irrelevant to the case).  In particular, what boundaries were imposed by the federal nature of the Australian polity (see Appendix III for a fuller discussion of the High Court decision).

The Racial Discrimination Act was found to be a valid use of the external affairs power, and thus a valid Act, only by a 4:3 majority.  The expansive construction of the external affairs power enunciated by Justices Mason, Murphy and Brennan -- that the external affairs power was a full plenary power not subject to major limitation by the federal structure of the Constitution -- became the majority interpretation of the Court, following the appointment of Sir Ninian Stephen as Governor-General and his replacement on the Court by Sir William Deane, in the Franklin Dam case.  Koowarta proved to be a marker in a significant expansion in the legislative power of the Commonwealth Parliament, as predicted by Senator Greenwood.

Three of the Justices in the majority which found the Racial Discrimination Act a valid use of the external affairs power (Mason, Stephen, Murphy JJ) cited the UN Charter and instruments as indicators of the international character of concern with racial equality, and Brennan J concurred with Stephen J on this point.

Viskauskas

The existence of both Commonwealth and State anti-discrimination Acts created the possibility of conflict between such Acts.  Section 109 of the Constitution gives valid Acts of the Commonwealth priority to the extent of any inconsistency.

Three persons were refused service on the grounds of their race at a hotel in Kempsey in New South Wales on 27 November 1980.  The incident was the subject of both an inquiry by the Commissioner for Community Relations and proceedings under the New South Wales Anti-Discrimination Act 1977.  The High Court was asked to rule on whether sections of the NSW Act were inconsistent with the RDA and so invalid by reasons of that inconsistency.

The High Court ruled, in a joint judgement by the presiding judges, Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ, on 18 May 1983 that the Racial Discrimination Act was "exhaustive and exclusive" and that the NSW Act was therefore, in so far as it dealt with racial discrimination, invalid. ⁽⁴⁸⁾

The Racial Discrimination Act was subsequently amended to permit the operation of State and Territory acts:  an admission, perhaps, that the Commonwealth was not the fount of all wisdom on the subject.

Gerhardy

Laws against discrimination are enacted because it is judged that some identifiable group or groups are subject to unfair treatment in some systematic way.  The ideal behind anti-discrimination is that we will all live under one set of formal and informal rules.

If such a group is in distinctive circumstances and public policy takes cognisance of those circumstances, then measures specific to that group are likely to be undertaken.  The Commonwealth Constitution explicitly grants the Commonwealth Parliament power to do that under the race power -- at least for groups conceived in racial terms.

There is an obvious tension between the presumption of living under a single set of rules and measures specific to a particular group.  Both the UN Convention and the RDA acknowledge this tension, and permit special measures.

A few months short of ten years after the passing of the RDA, the High Court delivered a judgement, on 28 February 1985, which confronted precisely this issue.

Robert Brown had been charged on the complaint of David Gerhardy that, on or about 27 February 1982, he had committed a breach of the South Australian Pitjantjatjara Land Rights Act 1981.  Robert Brown, a Baptist pastor and an Aboriginal, but not a Pitjantjatjara, was charged with having been in an area covered by the SA Act without appropriate permission:  the area in question constituting more than one tenth of South Australia.  The question the High Court had to answer was whether Section 19 of the SA act was in breach of the Racial Discrimination Act.  Section 19 barred people, other than Pitjantjatjara, ⁽⁴⁹⁾ from being in land covered by the Act without appropriate permission.

The High Court unanimously upheld the validity of Section 19 of the SA Act (see Appendix IV for a fuller discussion of the High Court decision).  Deane J's comments on native title (see Appendix IV) hinted at things to come, while the discussion of several Justices of the limitation on special measures under the Convention indicated that such approaches would not necessarily remain indefinitely valid.

Amendments

Having been subject to 3 amending Acts in 7 years of operation, either of a trivial nature or as a result of the establishment of the Human Rights Commission, the RDA was now subject to 10 amending Acts in its next 12 years of operation under the Hawke and Keating Governments.

The first, the Racial Discrimination Amendment Act 1983 ⁽⁵⁰⁾ amended the Act so that it did not exclude or limit the operation of any State or Territory Act which furthered the object of the Convention and was capable of operating concurrently with the RDA, nor allowed double complaints or double prosecution by use of both the Commonwealth and the relevant State or Territory Act.  It thus regularised the interaction between the Commonwealth Act and various State and Territory Acts in the light of the Viskauskas ruling of the High Court.

The second Act, the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 ⁽⁵¹⁾ amended the RDA so as to incorporate the effects of the establishment of the Human Rights and Equal Opportunity Commission, change the title of the Community Relations Commissioner to Race Discrimination Commissioner, to limit the operation of the ban on discrimination in housing and employment so as not to pertain to acts done by, or on behalf of, someone residing in accommodation to be shared.  Trade unions were able to make complaints and the operation of inquiries was regulated in greater detail, with expanded powers to require attendance and gather evidence and increased penalties.

The next amending Act, the Statute Law (Miscellaneous Provisions) Act 1988, ⁽⁵²⁾ removed the requirement on the Commissioner to write to complainants in cases where the Commissioner does not proceed further where such a decision was made at the request of (all) of the complainants and protected the Commission and agents of the Commission from civil action in the course of duties undertaken in good faith.

The Law and Justice Legislation Amendment Act 1990 ⁽⁵³⁾ expanded the definition of unlawful racial discrimination to include requirements to comply with a condition or requirement not otherwise reasonable given the circumstances and which had the purpose or effect of impairing the enjoyment of some right by people of a particular race, colour, descent or national or ethnic origin.  It included within the range of the Act acts done for two or more reasons one of which pertained to race, colour, descent or national or ethnic origin and also made employers liable for discriminatory acts of employees unless reasonable steps had been taken to stop them:  a major extension of the ambit of the Act.

The increased liability of employers for the actions of employees raised the risks involved in hiring new workers.  Increasing employer obligations via statute (whether in racial and other discrimination, in superannuation, etc) has been a particularly notable feature of more recent Australian employment law.  When coupled with increased difficulty in dismissing people due to unfair dismissal legislation, the effect in increasing the costs and risks of employing new staff, particularly permanent full-time, have been very significantly increased.

The Human Rights and Equal Opportunity Legislation Amendment Act 1992 ⁽⁵⁴⁾ amended the provisions pertaining to conditions of the Commissioner and of delegations under the Act.

The Law and Justice Legislation Amendment (No. 3) Act 1992 ⁽⁵⁵⁾ granted the President of the Commission greater powers to review decisions of the Commissioner.

The Sex Discrimination and other Legislation Amendment Act 1992 ⁽⁵⁶⁾ amended the RDA to allow representative actions (also known as "class actions").  More fatefully, it allowed registration of a determination of the Commission with the Federal Court.  Such registration having, subject to certain conditions (mainly allowing for possible review provided application was made within 28 days of lodgement) the effect as if it were a determination of the Federal Court.  Determinations involving Commonwealth agencies were not included, but Commonwealth agencies which were respondents of a determination by the Commission were required to comply with same.  The Commission was clearly being given a quasi-judicial function.

The Law and Justice Legislation Amendment 1994 ⁽⁵⁷⁾ revised the above procedures.  Amongst other amendments, it permitted the Federal Court to give leave for a review of a registered determination only in exceptional circumstances.

The Human Rights Legislation Amendment Act 1995 ⁽⁵⁸⁾ repealed the sections ruled invalid in the Brandy case (see below) and regulated proceedings in the Federal Court to enforce determinations by the Commission.  It also incorporated transitional procedures to deal with determinations made after the commencement of the relevant sections of the Sex Discrimination and other Legislation Amendment Act 1992 subsequently ruled invalid.

The Racial Hatred Act 1995 ⁽⁵⁹⁾ extended further the ambit of the RDA.  It inserted a new Part IIA prohibiting offensive behaviour based on racial hatred.  (The proposed criminal sanctions did not pass the Senate.)

During this period, Queensland, the Northern Territory and the ACT all anti-discrimination laws (see Table 3 above).

Mabo No.1

In 1982, an action was commenced by Eddie Mabo and others to establish that the Meriam people, of the Murray Islands in the Torres Strait, had "since time immemorial" enjoyed rights in the ownership of land, to the sea and seabed to the edge of the fringing coral, which had persisted after the annexation of those islands to Queensland in 1879 and were enforceable rights under current Australian law.

In 1985, the Queensland Parliament passed the Queensland Coast Islands Declaratory Act, which retrospectively extinguished any such rights.  The question before the High Court in the first Mabo case (1988) was whether this Act was a valid use of legislative power.

In the end, the question turned on whether the Queensland Act was inconsistent with the Commonwealth Racial Discrimination Act, and therefore invalid.

The Queensland Act was ruled as inconsistent with the RDA by a 4:3 majority.  However, all the minority judges left open the possibility that the Queensland Act might be found to be inconsistent with the RDA, and thus invalid, if there were found to be traditional rights in land and if they had the appropriate content (see fuller discussion of High Court decision in Appendix IV).

The difference between the joint judgement of Brennan, Toohey and Gaudron JJ -- who held that all forms of property were subject to general protection of property even if a particular form was held only by members of a particular race -- and that of Wilson J -- who held that a form of property held only by members of a particular race was not protected by the RDA since it was not a right enjoyed by members of another race -- expressed precisely later disagreements over native title.  Was native title a property right pertaining only to members of a particular racial group, and thus inherently discriminatory, or was it simply a property right, extinguishment of which was discriminatory, since it happened to pertain to a particular racial group?  Was native title something given to people because they were of a particular racial group ⁽⁶⁰⁾ or a form of property that, as a matter of historical happenstance, pertained only to members of a particular racial group?  Discrimination occurs along some particular dimension.  How a matter is characterised changes the dimension along which comparison is made.  If the relevant dimension is "property" without further elaboration, then extinguishing property belonging to a specific group is discriminatory.  If the dimension applied is less general, or construed as "how many sets of rules there shall be pertaining to property?", then permitting a form of title restricted to particular racial group, operating according to specific rules and content, is discriminatory.

Precisely because of the complexity of life, and the range of not necessarily compatible values deemed desirable, prescriptive judgment must always be a matter of balancing different principles, none of which has automatic primacy.

Mabo No.2

The High Court having ruled the Queensland Act invalid due to inconsistency with the RDA, the native title claim proceeded and was dealt with in a decision given on June 3 1992.

Six justices, with Dawson J dissenting, found that the common law of Australia protected native title, with Brennan J writing the lead judgement (see Appendix IV for a fuller discussion of the High Court decision).

That the June 1992 judgement of the High Court constituted a revolution in Australian law of property in land is plain, although it took a while for the importance to become apparent ⁽⁶¹⁾ and the implications have still not been worked through.  In particular, the suggestion in the lead judgement in Mabo No 2 that a pastoral lease extinguished native title was reversed in the Wik case a mere 3 years later.  Mabo was a judgement which heard evidence about the, quite distinctive, circumstances of the agrarian cultures of the Murray Islands in the Torres Strait yet ruled on matters applying also to the continent and the hunter-gatherer cultures which had resided there.  It was also the High Court making law not to fill in blank areas not previously covered, but massively overturning previous law.  These points were much remarked upon by critics of the decision.

The Racial Discrimination Act played a crucial role in this judgement, as it was the only barrier against States and Territories taking action to extinguish native title without compensation.

Native Title Case

Traditionally, the States had had responsibility for land management.  There were some exceptions where the Commonwealth had made its policy presence felt, notably in forestry issues, but land law was essentially a State matter.  The role of the RDA in the Mabo case changed that.

After the re-election of the Keating Government in March 1993, Mabo began to dominate Australian politics.  The Keating Government decided upon a legislative response to Mabo, with what became the Commonwealth Native Title Act growing out of an intensive round of negotiations in which Prime Minister Keating was personally deeply involved.  The Native Title Act commenced operation on 1 January 1994.

Various States undertook their own legislative initiatives, with the lead role being taken by Western Australia, which passed its own Act, the Land (Titles and Traditional Usage) Act 1993 which came into operation on 2 December 1993.  This came under judicial challenge in what became known as the "Second Native Title Case".

The central question in the case was, whether the Western Australian Act was in breach of the RDA.

In March 1995, the High Court unanimously decided it was.  Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ brought down a joint judgment.  Dawson J brought down a separate but concurring judgment.  (See Appendix IV for a fuller discussion of the High Court decision.)

The Western Australian Act abolished native title and replaced it with statutory rights of traditional usage within a regime prescribed by the Act.  By the time of the decision, many determinations of rights had been made under the WA Act.  (By contrast, the Commonwealth Act had failed to provide a single determination of native title on the mainland, and was not to do so until 7 April 1997, ⁽⁶²⁾ 3 years and 4 months after it was passed.)

The "Second Native Title Case" effectively confirmed the supremacy of the Commonwealth in native title legislation as well as confirming the key role played by the Racial Discrimination Act in the jurisprudence of native title in Australia.

Brandy

The RDA had achieved a rather unexpected centre stage in Australian law and politics.  It now went on to play a central role in a major Constitutional decision by the High Court in a situation rich with ironies.

A (white) officer of the Aboriginal and Torres Strait Islander Commission, John Bell, took ATSIC to the Human Rights and Equal Opportunity Commission (HREOC) claiming racial discrimination.  The Commission found in his favour, using the quasi-judicial powers granted to it by the Sex Discrimination and other Legislation Amendment Act 1992.  The unsuccessful (Aboriginal) defendant, Harry Brandy, in the HREOC action appealed the case, alleging that the quasi-judicial powers of the Commission were a breach of Chapter III of the Constitution.

The decision of the High Court on 23 February 1995 in the Brandy case confirmed and clarified the operation of the principle of the separation of powers with respect to the Commonwealth judiciary.

Two joint judgements were delivered;  by Mason CJ, Brennan and Toohey JJ, and by Deane, Dawson, Gaudron and McHugh JJ.  Both judgements ruled the sections of the RDA giving the Commission quasi-judicial powers to be invalid.

In their joint judgement, Mason CJ and Brennan and Toohey JJ discussed what constituted judicial power ⁽⁶³⁾ and found that the operation of determinations by the Commission "as if they were a determination of the Federal Court" was an exercise of judicial function by an executive body which was impermissible under Chapter III of the Constitution as only a body constituted under that Chapter could exercise judicial power.  Nor did it find the exercise of review power by the Federal Court sufficient to validate the original provision. ⁽⁶⁴⁾

In their joint judgement, Deane, Dawson, Gaudron and McHugh JJ noted that the Commission was not constituted as a court under Chapter III of the Constitution and so could not exercise judicial power, ⁽⁶⁵⁾ considered what constituted judicial function ⁽⁶⁶⁾ and found that many of the functions of the Commission were judicial. ⁽⁶⁷⁾  They also concluded that the review procedure in the Act did not stop the Act from invalidly giving the Commission judicial power. ⁽⁶⁸⁾

The effect of the Brandy case was to put a major barrier on the exercise of power by special purpose authorities.  The division between judicial and other arms of government was more clearly enunciated.

The entire question of specialist tribunals and quasi-judicial powers again raises the issues of whether what is needed is a framework of general law, enforced through general courts, with the inherent tendency towards consistency that that promotes, or whether issues are so specialised or serious that special action is needed.  If an issue is serious enough, it raises the question of whether that provides grounds for reform of the general procedures.  Specialised action can very easily become an area for zealotry, special interests, narrow perspectives or avoidance of more rigorous scrutiny.

THE UNAMENDABLE ACT

"The difference between informal and formal constraints is one of degree" observed Douglass North in his Nobel-prizing winning writings on the historical development and evolution of institutions. ⁽⁶⁹⁾

In legal theory the Racial Discrimination Act is simply an Act of the Commonwealth Parliament, amendable by that Parliament as it sees fit, with no higher status than any other Act and subject to the same challenges of being valid or not depending on its ruled adherence to the legislative powers granted the Commonwealth Parliament by the Constitution.

Indeed, as we have seen, it has been amended several times, sometimes quite substantially, generally (but not always) in a way to extend its operation.  It has also been ruled, when quasi-judicial power was given to the Commission, to have been beyond the Constitutional power of the Commonwealth to so legislate.

But the RDA has proved to be far from being "just an Act".  Subsequent to the native title decisions of the High Court, the RDA acquired iconic, even quasi-constitutional status.  Not only was it the barrier -- until the passing of the Commonwealth Native Title Act the sole barrier -- to State and Territory action to extinguish native title, thus creating a quite unparalleled Commonwealth impediment to the basic operation of State and Territory land law, it suddenly became a point of widespread political demand, even faith, that it not be subject to amendment (at least on this point). ⁽⁷⁰⁾  It does not seem too much to say that the RDA had acquired iconic, even quasi-constitutional status.  Douglass North's point is very apt.

This implied consensus was suddenly to come unstuck with the next major decision of the High Court on native title.

Wik

It was a common view, based on Brennan J's lead judgment in Mabo No.2 and incorporated into the preamble of the Native Title Act, that pastoral leases extinguished native title, though the commentary in the official published version of the Act was far more equivocal.  On 23 December 1996, the High Court ruled, by a majority of 4:3 that this was not so (see Appendix IV for a summary of the High Court judgement).

The Wik peoples and the Thayorre people claimed native title over areas covered by validly granted pastoral leases.  The operation of the Racial Discrimination Act was not directly germane to the case, as the leases in question were granted at the turn of the century.

The 4:3 decision of the High Court that native title rights were not extinguished by granting of a pastoral lease, despite the implication of comments in Mabo No. 2 and the preamble of the Native Title Act indicating to the contrary, dramatically altered the importance of native title, as pastoral leases cover roughly 40% of the continent.

Toohey J was at pains to point out the High Court decision did not reduce the existing rights of pastoral leaseholders. ⁽⁷¹⁾  Formally, this might be so.  In practice, the addition of further rights holders, where previously none had been recognised, inevitably raised the complexity of dealing with land under lease.  On the principle that one person's rights stop where another's begins, use of the land in a way which could reduce the benefit of native title rights would presumably be actionable, since native title rights are enforceable under the law.  Thus decisions over land use by lessees suddenly acquired a potential extra negotiating partner.

To say that pastoral lease rights prevail over native title rights is to merely assert an abstract relationship between two unknowns -- the true extent of thousands of pastoral leases, and innumerable native titles of unknown content on the other.  It does not get us very far in determining anything.  That terms such as "native title", "native title owner" "compensation for native title" and "continuing connection with the land" are yet to be interpreted by the High Court provides further layers of uncertainty. ⁽⁷²⁾

Faced with a dramatic increase in uncertainty over land use, and in transaction costs in dealing with the land, there were calls to extinguish native title rights over pastoral leases.  Amendment of the Racial Discrimination Act therefore immediately became an item for serious political discussion -- it was very quickly raised by acting Prime Minister National Party Leader Tim Fischer, for example, followed later by various State Premiers.

There is also a further consideration -- what might a future High Court rule?  If international law is seen as inevitably, even desirably, developing as a more elaborate and significant body of authority, and anti-discrimination is seen as a key norm and principle in this body of law, then might not a future High Court read such principles into Australian law in a quite fundamental way?  It has been accepted legal doctrine that international instruments are not incorporated into Australian law until some valid legislative Act by an Australian (generally Commonwealth) Parliament does so.  But the Teoh case indicated that acts of the Executive are required to take cognisance of such instruments. ⁽⁷³⁾  Reading implied rights into the Australian Constitution indicates the direction possible.  Could anti-discrimination be read into the nature of a liberal and democratic society?  And what constraints operate on the High Court in this regard?

The issue is not whether anti-discrimination is an important principle or not, the issue is matters of responsible authority, including questions such as popular sovereignty.  Indeed, incorporation of the writings of foreign jurists into the common law has a venerable tradition -- dating back to Chief Justice Lord Mansfield in the mid eighteenth century ⁽⁷⁴⁾ and beyond.  The concern is not that foreign authority be incorporated into common law, but that such authorities could acquire constitutional authority without the consent of the Australian electorate.

Current Content of Racial Discrimination Act

The tendency of statute law to become more extensive and complex is clearly seen in the content of the RDA. ⁽⁷⁵⁾  An Act which ran to 36 pages and 47 Sections when passed in 1975 by October 1995 ran to 60 pages and 106 Sections. ⁽⁷⁶⁾  A largely unquestioned confidence in the operation of legislative mechanisms naturally leads to resort to more law when desired results are not achieved, or when further purposes are added to existing policy.

Statute is frequently touted as a way of "updating" the common law.  Yet the common law has the advantage both of centuries of experience and an inbuilt process, based on observed effects, for adjustment and a working towards consistency.  Statute, on the other hand, can easily "put in concrete" standards of a particular time and principles of action inconsistent with other legislation.  The tendency of statute law to increase in size and complexity ⁽⁷⁷⁾ is not evidence of it being an efficient mechanism.

The Racial Discrimination Act has wider ambit than when originally passed, though most of the original Act remains.  The Act currently contains the following.

Part II of the Act prohibits racial discrimination.  The Act excludes from its ambit acts to which the special provisions (Article 1, paragraph 4) of the Convention is held to apply as well as deeds done for charitable benefit (Section 8).  It declares discrimination based on race, colour, descent or national or ethnic origin (summarised as racial discrimination in the title) to be unlawful (Section 9) using the language of the Convention, with the rights or fundamental freedoms whose restriction on discriminatory grounds is unlawful including all the rights referred to under Article 5 of the Convention.  It guarantees equality before the law, overriding laws of other effect (Section 10).  It bars denial of access to places and facilities on the basis of race, colour, national or ethnic origin (Section 11), bars racial discrimination in treatment for land, housing and other accommodation (Section 12) except acts done by, or on behalf of, someone sharing accommodation, bars racial discrimination in provision of goods and services (Section 13), bars racial discrimination for trade union membership (Section 14) in employment (Section 15) except acts done by, or on behalf of, someone sharing accommodation, bars advertisements indicating an intention to do an act unlawful by reason of Section 12 or 15 (Section 16), makes unlawful the incitement or assistance of acts of racial discrimination (Section 17), covers within its ambits acts done for reasons which include racial discrimination (Section 18) and makes employers liable for the acts of their employees unless reasonable steps were taken to prevent the discriminatory act (Section 18A).

Part IIA of the Act prohibits offensive behaviour based on racial hatred.  This prohibition covers acts done for more than one reason including racial discrimination (Section 18B).  The Act prohibits acts done in public likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group of people on the basis of race, colour, national or ethnic origin (Section 18C).  Exceptions are granted for artistic, scientific or fair reporting purposes (Section 18D), while employers are liable for the acts of their employees unless reasonable steps were taken to prevent the discriminatory act (Section 18E).  The operation of complementary State or Territory legislation is not affected (Section 18F).

Part III of the Act deals with inquiries and civil proceedings.  The position of Racial Discrimination Commissioner is created (Section 19).  The Commission is given functions of

• inquiring into, and attempting to settle, infringements of Part II or Part IIA,
• promoting understanding, acceptance and compliance with Act,
• developing, conducting and fostering research and educational programs combating racial discrimination, promoting tolerance and propagating purposes and principles of the Convention
• preparing and publishing guidelines for the avoidance of infringements of Part II and Part IIA
• with leave of court, intervening in proceedings involving racial discrimination issues
• inquiring into, and making determinations on, matters referred to the Commissioner by the Minister or the Commissioner.

The first of the above functions is performed by the Commissioner on behalf of the Commission (Section 21).  Sections 22 and 23 cover how complaints may be lodged.  Sections 24-24E deal with inquiries by the Commissioner.  Sections 24F to 25ZB deal with inquiries by the Commission:  evidence can be taken in private (Section 25H) and evidence kept secret (Section 25J);  the Commission is not bound by rules of evidence (Section 25V).  Sections 25ZC to 25ZCF deal with determinations where the respondent is not a Commonwealth Agency.  It contains a subdivision (Subdivision B:  Sections 25ZCB to 25ZCF) which deals with determinations made after the High Court brought down the Brandy decision on 13 January 1993 until the time that the entire Division began operating.  Sections 25ZD to 25ZI deal with determinations involving Commonwealth Agencies.

Part IV of the Act creates various offences.  Section 26 states that only unlawful acts expressly stated to be offences are offences under the Act.  Sections 27 to 27F create various offences pertaining to proceedings under the Act;  obstructing operation of Act (Section 27), failing to attend (Section 27A), failing to furnish information (Section 27B), or similar relating to the Commission (Section 27C).  Section 27D removes self-incrimination as a reason not to provide evidence, but such evidence is not admissible in court except for proceeding under 27E (false or misleading information).

Part V of the Act creates the Community Relations Council with various advisory functions to the Minister and the Commission.

Part VI of the Act covers various administrative provisions principally to do with the appointment of the Commissioner (Sections 29-40) and the operation of the Community Relations Council (Sections 41-43).

Part VII of the Act covers miscellaneous items such as investing State and Territory Courts with jurisdiction under the Act (Section 44), protecting from civil action the Commissioner, Commission and persons acting on their behalf (Section 45), requiring the Commissioner to furnish information on operation of the Act as the Commission requires (Section 45A) and enabling the Governor-General to make regulations for the purposes of the Act (Section 47).

CONCLUSION

There are discernible principles in the Australian Constitution.  One is that Constitutional sovereignty ultimately rests with the people because only they, through the approval of a majority of people in a majority of States at a referendum, can change the words of the Constitution.  This sovereignty is somewhat limited by both the role of the Commonwealth Parliament as sole gatekeeper ⁽⁷⁸⁾ for constitutional proposals and also the operation of judicial interpretation, but the principle of ultimate popular sovereignty is clear enough.

Popular sovereignty has no political expression except through the institutions of national sovereignty.  Thus, the use of international instruments as authorities, particularly through a strong interpretation of the external affairs power, must diminish the weight given to such popular sovereignty. ⁽⁷⁹⁾

Another principle of the Constitution is that power is divided:  between the Commonwealth and the States;  between judiciary and, to a lesser extent, executive and legislative branches of government;  between the two houses of the Commonwealth Parliament.

In the Brandy case, the Racial Discrimination Act, as amended, was unanimously determined by the High Court to have breached the separation of power involved in the operation of a distinct judicial function.  Otherwise, the constitutional history of the Act has been one of tending to concentrate power.  In the Koowarta case, the external affairs power was clearly established as a growth point for Commonwealth power.  This has now extended, through the operation of native title, to giving the Commonwealth a new and extensive role in domestic Australian land law.  The history of the Racial Discrimination Act is surely rife with unintended consequences.  Did those passing the Act realise they would be part of overturning the land law of Australia and passing major land management powers to the Commonwealth?

That the RDA should be a device for concentrating power is not so surprising.  It has as its fundamental assumption the proposition that the operation of civil society can be significantly improved by activist officials;  not merely through the administration of general laws, but by undertaking of further special measures.  If social justice is taken to be achieved through the operation of political power acting under intentions deemed to be appropriate, then the ambit of political power must be expected to expand.  In particular, the division of power must tend to be seen as an inefficiency or break on the operation of that approved intention.  The belief that the division of power is desirable can only be grounded in scepticism about the operation of power.  Without such scepticism, the division of power itself cannot be other than a formal concept subject to decay through interpretation, neglect and policy activism.

The creation of specialist tribunals to deal with particular areas of the law should always be a matter of careful judgement.  It may be an excuse not to deal with broader failings in the regular courts.  It may create an organisation prone to capture by interest groups or dominated by individuals with a narrow perspective.  Its decisions may tend to drift away from more generally applicable norms.  It may avoid more rigorous scrutiny.  Conflicts of interest may be set up with legal practitioners with specialist practices being under pressure to keep "in" with the tribunal.

In the case of racial discrimination, and discrimination more broadly, one may wonder whether a specialised, centralised tribunal really is the appropriate way to proceed.  Is local bigotry really likely to be swayed by being dragged off to a tribunal in a faraway city, served by officials whose attitudes and social experience may be quite removed from that of either complainant or respondent?

The legislatures of Australia have effectively created a new legal wrong, or tort -- that of discrimination.  While the use of special laws and tribunals may have been a reasonable way of clearly stating the incorporation of discrimination as a legal wrong, we may also wonder whether continuing special treatment is appropriate, or whether discrimination should be incorporated more directly into general tort law.

An alternative approach is to place the tort of discrimination fully in the legal mainstream by inclusion in the relevant Acts (such as the Wrongs Act, South Australia) with damages, restitution, etc (continuing to) be enforceable through the courts.  This would involve replacing the current specialist anti-discrimination Acts.

An alternative model for handling racial discrimination complaints at a prior stage to court action is to replace the current specialist Commissioners and Bureaux with a network of local part-time conciliators, paid on retainer.

By placing discrimination fully within the ambit of normal common law actions, one in fact takes discrimination sufficiently seriously that it becomes a more consistent and central part of the fundamental legal structure of the land.  By being explicitly part of the general framework of tort law, it also becomes part of the stability and consistency of that framework.  It also becomes less prone to capture or amendment for the benefit of special interests.

The suggested network of conciliators is partly based on past uses of, for example, justices of the peace as local notables in touch with local attitudes and able to more effectively enforce the law.  By using people of genuine local standing, who can "speak the language", it is more likely that effective communication will be possible with likely discriminators.  A quiet word at the local pub seems much more likely to be effective, at least as a first step, than an alien bureaucratic procedure:  and much more readily accessible to complainants.

The research function of the current structure could be incorporated into the general research funding programs.

Such an approach would create an accessible network of conciliation and information genuinely part of local communities while also treating discrimination as a matter of serious and central law. ⁽⁸⁰⁾

The Concept of Race

What is the proper role of "race" as a concept in law and policy?  If one takes the view that "race" is a concept with no ethical value, with no useful scientific or causal explanation value (apart from belief by some people that it matters), then surely the only useful role for the concept of "race" in law and policy is to bar discrimination on racial grounds.

It is true that indigenous Australians, as documented in this paper and elsewhere, have disproportionately social outcomes.  But, the thesis of this paper is that the explanation is not racial, it is in no sense genetic, but comes from a mixture of the legacy of past discrimination and problems of cultural adaptation.  Apart from the barring of discrimination, the concept of race has no useful role to play in improving those conditions.  On the contrary, by characterising the issue as one of race and racism, attention is systematically drawn away from key issues.  This is one of the more destructive effects of using accusations of racism to police public debate -- it makes race again the salient issue, rather than the actually operating causes and real issues.  It dangerously and destructively simplifies what are much more complex and fluid matters of identity.  People of mixed race should feel able to easily identify with all their heritage, not be subject to policy or other social incentives to embrace one part while denying another. ⁽⁸¹⁾

On this basis, the continuation of the race power within the Australian Constitution must be regarded as an anomaly.  If race really does not matter, then there is no need to have it as policy or legal category.  It is demonstrably not needed to empower anti-discrimination law:  the High Court ruled in the Koowarta case that the race power was of no use in making the RDA constitutionally valid.  Nor have attempts to provide a legal definition of race been a happy experience. ⁽⁸²⁾  Indeed, the difficulties in defining "race" are very good evidence for the emptiness of the concept As discussed earlier, the accepted definition of "race" is actually rather better understood as a definition of cultural membership.

Nor has the experience of the policy attitude of "we must ban discrimination, but we must have racially based policies" been a happy one, either in Australia or elsewhere.  If race is made the basis of policy, then the saliency of race is inevitably increased.  If the goal is to have a society where people are not judged or treated on the basis of their race -- which it surely should be -- then the law and the state should not do so either, not matter how benign the intention.  Either the principle of action is that race does not matter or it is not.  It cannot usefully be "it is not, except when it is".  One is simply not being consistent in the application of the principle that people not be judged or treated on the basis of their race.  One is not acting to abolish race as a category believed to be functional.

There are issues distinctive to Aboriginal and Torres Strait Islander Australians.  But they are issues of culture, of beliefs, of social and human capital.  They are not racial and it is not useful to characterise them in those terms.  Indeed, it is positively harmful to do so.  If specific Commonwealth action on indigenous matters remains a continuing necessity, then it would be far better that some other head of Constitutional power be found to do so -- such as, if necessary, amendment of the Constitution to replace placitum xxvi of Section with a power to legislate with respect to indigenous peoples of Australia -- than race continue to be an operating legal, constitutional and policy principle.

The Economics of Discrimination

It is sometimes suggested that simple operation of market forces make serious discrimination unsustainable -- that profit seeking firms will not fail to use labour or supply consumers where gains can be made by doing so.  However, people economise in their allocation of time and mental effort to choosing employees, suppliers and so on, using habits, routines, prejudices as rough guides.  The latter in particular are not likely to be picked up randomly, but "piggyback" on common judgements.  Experienced changes in circumstances are far more likely to engender calculation than the continuation of familiar circumstances.  Hence, there clearly is such a thing as social inertia.  Thus, discriminatory behaviour can persist even when gains exist to be captured by hiring "out group" staff if pressure to realise those gains is low:  the more "invisible" such gains are to prevailing attitudes, the higher the pressure to realise gains has to be before they will be acted upon.  Expectation of exploitation may also reduce incentives for minority groups to invest in education and training.  Such under-investment would serve to perpetuate a situation where the perceived gains from hiring the "out group" remain low.  If there are what economists call "principal-agent" problems -- where decisions are made on behalf of others -- the pressure on the decision-makers to realise such gains may be very low.

Discrimination can be viewed as a form of (male, white, Protestant, etc.) cartel.  Like all cartels, there is a financial incentive to break it.  Indeed, in the case of both apartheid South Africa and the American South in the era of "Jim Crow", massive state and other action, including violence, was required to enforce discrimination despite significant levels of discriminatory attitudes in the dominant group.  Such cartel behaviour is made easier when general beliefs support it or circumstances (e.g. living in a small town) make enforcement easy.

Divining what is discrimination, and what is not, is not necessarily a simple matter.  Members of "outgroups" initially may be less productive, due to lower education, skills and experience.  Unless they have compensating features (e.g. the strong family networks of Chinese communities), they may also represent higher credit risks.  Information flows, for example about business reputation, may be much stronger within rather than between groups.  There may be significant information costs -- such as differing use of language and social cues -- in transacting with members of other groups.  Disadvantage arising out of, for example, poor quality local public schools, can affect the level of skills, making members of a group disproportionately less competitive in the labour market.  What looks like discrimination may be sensible, even fair, market behaviour -- albeit based on unfair, or at least unequal, prior discrimination.

To complicate matters further, during periods of transition away from endemic discrimination there are cohort effects.  Taking the example of gender, if one assumes that the idea that women would have full careers similar to men became widespread by, say, 1975, then the distribution of positions typically involving long lead times (e.g. senior management) currently occupied by people over 45 are going to reflect the career assumptions of 1965 or 1955, not those of 1995.  As the post 1975 cohort moves through the workforce, the distribution of positions can be expected to change accordingly.  Average gender incomes will also be affected.  Separating cohort effects from discrimination is also not always an easy matter, though it is often not done at all, particularly in public commentary (Rimmer 1995).

We can therefore see several levels at which policy to tackle discrimination needs to operate

• to stop explicitly discriminatory behaviour, either through statute or development of common law remedies
• to sensitise people to issues of fair treatment -- the existence of legal remedies and dissemination of information has a role here -- and
• to address the human capital issues.

However, the latter is not properly a matter of discrimination law, but of education and other opportunities.  Once discrimination is no longer acceptable behaviour, and is not legally supported, there is a lag before past effects can be adjusted for, but there are also natural social pressures to ameliorate the effects.  If policy is adopted which requires more and more effort, then that policy is fundamentally flawed.

Individualism

The argument against tolerating discriminatory behaviour and institutions is that a decent society places no unreasonable or unfair barriers on the pursuit of self-chosen purposes by its members.  It is an argument for individual freedom and opportunity.

Individualism is the claim that no shared characteristic defines us, in the sense of summing up ethically central characteristics;  that we are autonomous beings with intentions and preferences.  Individualism recognises that people belong to groups -- we belong to many groups with varying degrees of overlapping or divergent membership.  For there are no identifiable fixed "classes" -- just changing coalitions of interest (broadly defined) formed to achieve many different ends, including expressing aspects of identity, through joint or cooperative action.

Individualism does not claim that members of a population cannot share some characteristics, that such characteristics do not matter, that they do not affect social outcomes, or that they cannot be constraints or advantages.  Nor does individualism claim that social relations do not matter, that we are not social beings, that social influences do not matter, or that they do not help form us.  Individualism does hold that seeing any particular characteristic as defining diminishes and dehumanises us and that such a diminution, such dehumanising, is why serious collectivist reasoning -- on the basis of race, gender, class, sexuality or whatever -- is so intimately tied to oppression, tyranny and mass murder.  For if ethical collectivism is accepted, we cease to be individual people, with all the complexity, diversity and specificity that entails and become mere integers of categories with pre-assigned moral status.  The search for a benign ethical collectivism is a search for the impossible:  the thing contradicts itself.

Individualism gets its moral power precisely from the fact that once people are not seen as merely integers of particular categories, then one is irretrievably committed to taking individual wants, responsibilities, preferences and claims seriously.  One is committed to the complexity, diversity and autonomy of people, to their worth-in-themselves.  One is also committed to the existence, at least potentially, of a moral and social space in which all can interact as persons, not be trapped into irredeemable separation as members of mutually exclusive categories.

Anti-discrimination legislation seeks to bar restrictions from public life (broadly defined) on the basis of specifically enumerated shared characteristics.  It restricts the autonomy of some actors (those who would so discriminate) in order to increase the opportunities of other actors (those who would be discriminated against).

There is an immediate difficulty in that we differentiate and discriminate in our behaviour constantly.  Discrimination is essential to any serious concept of friendship or family.  We differentiate between sellers in our ordinary shopping.  However, that is discrimination in favour of particular individuals for reasons which are utterly tied to their individuality.  Anti-discrimination legislation seeks to bar discrimination on the grounds of general characteristics.  Those general characteristics are declared to be irrelevant as a basis for judgement, to be ignored (except insofar as some specific exceptions may be allowed).  Anti-discrimination legislation is thus consistent with individualism where it is restricted to protecting individuals from deliberate exclusion or unfair treatment.

Government actions are not well suited to achieving individualistic outcomes precisely because governments cannot be allowed to discriminate, in the sense of treating different people differently where it is appropriate to do so.  Government must treat people as members of legally defined classes.  Formalism, not individualism, is the basis of government action.

An individualist approach to anti-discrimination policy, rather than replacing one collectivist approach with another, affirms that individuals be treated on their merits, and that this is a principle worth public re-iteration, to ensure that discriminatory routines or prejudice do not continue to operate as selection devices.  An individualist approach is entirely willing to examine institutional arrangements to ensure that they do not unfairly exclude or disadvantage certain classes of people, but makes no presumption that groups shall be evenly distributed throughout all aspects of society.  On the contrary, it seeks to provide means for individuals to gain redress for discriminatory action through the mainstream courts rather than providing targets based on some notion of a "proper" distribution (regardless of individuals interests or preferences) to be achieved through the actions of some activist agency.

Affirmative action, or other group-specific programs, by contrast, assert that those general characteristics are a basis for judgement.  Either in terms of simple eligibility, or in terms of judging processes by their group-distributional results.  Evidence suggests that anti-discrimination is a popular principle, affirmative action and group-specific programs much less so.  This is an entirely consistent position.

The Limits of Judicial Politics

The constitutional history of the RDA raises another fundamental question.  Given the difficulty of Constitutional amendment, in practice requiring substantial agreement across the political spectrum (see box below), and given there is no higher judicial body, what limits are placed on the power of a majority of the High Court once a legal or constitutional question has been put to them?  Legal theory previously operated via the fiction that judges did not make, they merely revealed, the law.  This restricted the range it was deemed legitimate for a judge to operate over.  Legal theory no longer does so.

Experience suggests power will tend to expand until it comes up against some clear, continually operating, constraint.  It is not clear, in the case of the High Court undertaking its role of judicial review at a constitutional level, what the constraint is.  In the case of the common law, the supremacy of statute gives the capacity of Parliament to override the Court, if it so chooses;  though the abolition of appeals to the Privy Council makes common law decisions of the High Court otherwise final.

Where lies popular sovereignty?  A federal, liberal democratic state represents a balancing of institutions and principles.  Judicial review is a central element, not the least as a constraint against "tyrannical majorities".  The question is not whether judicial review is appropriate;  the question is striking, and maintaining, an appropriate balance.

International instruments are not approved by delegates elected to the task, nor are they (normally) subject to popular ratification, either by referenda or the (more indirect) processes of general election.  Indeed, many international instruments have been approved by international forums, a majority of whose delegates did not represent democratically elected governments.  The massive expansion in the number, range and ambit of international instruments may have some liberalising effects, but they are not inherently democratic in their operation.  Indeed, they tend to operate to increase the constraints on democratic decision-making processes.

Similarly, an activist Court may have liberalising effects, but its operation is far closer to the concept of Platonic Guardians than democratic processes.  Further, these are Guardians surely inherently isolated from the range of opinions and experiences in the Australian federation, particularly since the Court ceased to travel around the Federation and became permanently resident in the isolated, and profoundly unrepresentative, provincial city which is the national capital.  One can also reasonably wonder whether the Federal Court, a Court which is a patchwork of federal jurisdictions and before which the Commonwealth is a frequent litigant, is an appropriate training ground for High Court Judges, given that the High Court is constitutionally supposed to be the "keystone of the Federal arch", not simply a vehicle for the ratification, without popular consent, of ever-expanding Commonwealth power.

Constitutional Amendments

Proposed amendments with bipartisan approval have a high success rate (8 out of 12 approved).  The low rate of successful amendments, 8 out of 42, comes from Commonwealth Governments believing that they can garner, without ihe support of the Opposition of the day, equal or greater electoral support for fundamental changes to Constitutional rules than they managed to achieve for the question of who should be the Government for the next Parliamentary term -- specifically, "primary" votes constituting a majority of votes in a majority of States.  Without exception, they have been disappointed in this belief.

Table 4:  Constitutional Referendum Ranked by "Yes" Vote

Title	Year	"Yes" Vote (%)	States		Passed?	Govt.	Held with General Election?	Oppositition Support?	Senate Votes (a)
			Yes (%)	No (%)
Recognition of Aborigines	1967	90.77	6	0	Yes	LCP	No	Yes	98.80
Senate elections	1906	82.65	6	0	Yes	Prot.	Yes	Yes	97.67
Retirement of judges	1977	80.10	6	0	Yes	LNCP	No	Yes	92.60
Referendums (Territories)	1977	77.72	6	0	Yes	LNCP	No	Yes	92.60
State debts	1928	74.30	6	0	Yes	NatCP	Yes	Yes	99.41
Senate casual vacancies	1977	73.32	6	0	Yes	LNCP	No	Yes	92.60
Simultaneous elections	1977	62.22	3	3	No	LNCP	No	Yes	92.60
State debts	1910	54.95	5	1	Yes	Liberal	Yes	Yes	95.85
Social services	1946	54.39	6	0	Yes	ALP	Yes	Yes	95.38
Aviltion	1937	53.56	2	4	No	UAP-CP	No	Yes	89.5l
Terms of senators	1984	50.64	2	4	No	ALP	Yes	No	49.80
Organised marketing of primary products	1946	50.57	3	3	No	ALP	Yes	No	52.06
Industrial employment	1946	50.30	3	3	No	ALP	Yes	No	52.06
Trusts	1913	49.78	3	3	No	ALP	Yes	No	48.72
Legislative powers	1919	49.65	3	3	No	Nat.	Yes	No	55.17
Powers to deal with Communists & Communism	1951	49.44	3	3	No	LCP	No	No	49.69
Trade & commerce	1913	49.38	3	3	No	ALP	Yes	No	48.72
Nationalisition of monopolies	1913	49.33	3	3	No	ALP	Yes	No	48.72
Industrial matters	1913	49.33	3	3	No	ALP	Yes	No	48.72
Corporation	1913	49.33	3	3	No	ALP	Yes	No	48.72
Railway disputes	1913	49.13	3	3	No	ALP	Yes	No	48.72
Finance	1910	49.04	3	3	No	Liberal	Yes	No	45.56
Nationalisation of monopolies	1919	48.64	3	3	No	Nat.	Yes	No	55.17
Simultaneous elections	1974	48.30	1	5	No	ALP	Yes	No	50.90
Mode of altering constitution	1974	47.99	1	5	No	ALP	Yes	No	50.90
Democratic elections	1974	47.20	1	5	No	ALP	Yes	No	47.30
Interchange of powers	1984	47.06	0	6	No	ALP	Yes	No	49.80
Local government bodies	1974	46.85	1	5	No	ALP	Yes	No	47.30
Post-war reconstruction & democratic rights	1944	45.99	2	4	No	ALP	No	No	55.09
Prices	1973	43.81	0	6	No	ALP	No	No	53.30
Industry & commerce	1926	43.50	2	4	No	NatCP	No	Yes	99.83
Essential services	1926	42.80	2	4	No	NatCP	No	No	54.8O
Rents & prices	1948	40.66	0	6	No	ALP	No	No	52.06
Parliament (Nexus)	1967	40.25	1	5	No	LCP	No	Yes	90.40
Monopolies	1911	39.89	1	5	No	ALP	No	No	50.29
Legislative powers	1911	39.42	1	5	No	ALP	No	No	50.29
Fair elections	1988	37.59	0	6	No	ALP	No	No	51.30
Marketing	1937	36.26	0	6	No	UAP-CP	No	No	48.20
Incomes	1973	34.42	0	6	No	ALP	No	No	53.30
Local government	1988	33.61	0	6	No	ALP	No	No	51.30
Parliamentary terms	1988	32.91	0	6	No	ALP	No	No	51.30
Rights & freedoms	1988	30.79	0	6	No	ALP	No	No	51.30

Nat. = Nationalist Party.

Prot. = Protectionist Party.

^(a) Of Federal Parliamentary Parties at simultaneous or previous Senate election whose Parliamentary Leaders voted for the amendment.

Sources:  Parliamentary Handbook, Hansard, Hughes & Graham, AEC.

The judicial method is one with considerable limitations.  Judges may only take action when matters are brought to them for judgment;  they are fundamentally reactive.  Judicial action lacks almost entirely the consents and compromises which are the stuff of ordinary politics.  On the contrary, political issues which are placed within the arena of judicial action have a natural tendency towards being cast in terms of moral absolutes, of unbreakable values rather than negotiable interests.  One is not only dealing with ultimate authority, in an explicitly adversarial structure where one wins or loses, but that authority is itself structured around enforcement of, and appeal to, general norms.  Judicial action is in fact a dangerous area to place political issues which involve major interests and arouse passions, not least because the losers have, only in the most tenuous of senses, consented to the outcome.  The abortion issue in the United States illustrates this problem well.

The Racial Discrimination Act sits at the centre of some very hard and difficult questions about freedom, democracy, authority and participation in society.  It is far from clear that either the Act or its consequences represent a satisfactory resolution of those questions.

---

ENDNOTES

1.  Particularly via the Aboriginal and Torres Strait Islander Heritage Protection Act.  In the case of the Hindmarsh Island bridge, this extended to alleged belief.  Arguments that, for example, Christian theology should be a major determinant of public policy would seem a bizarre throwback, yet, in the case of Aboriginal religion, is accepted as an entirely reasonable basis for proceeding.  Indeed, many treated questioning of claims about those beliefs as being an indicator of racist attitudes.

2.  Blainey (1976), Pp v-vi.

3.  The Racial Discrimination Act says (twice) that the Convention opened for signature on 21 December 1965 and came into force on 2 January 1969.  The Convention was passed by the General Assembly on 21 December 1965 but, according to the UN on-line Treaty database, it did not open for signature until 7 March 1966 and came into force on 4 January 1969.

4.  Section 7 of the RDA ratified the Convention.

5.  It has been relevant in 17 High Court cases and 32 reported Federal Court cases according to the SINO database as at 17 June 1997.

6.  Free provision may "freeze" cultural habits in an inappropriate way (e.g. continuing the tradition of abandoning a dwelling if a death occurs in it).  Alternatively, public policy may encourage particular characterisations of culture regardless of what traditions actually are -- as occurred with the Hindmarsh Island bridge.

7.  The debate over affirmative action in the US, particularly the public debate leading to the successful passage of the Californian Civil Rights Initiative, brings out these contrasting perspectives very strongly.

8.  One interpretation of "cultural relativism" is that cultural identity overwhelms other aspects of human capacity, nature and experience.  Adoption of such a perspective creates a natural tendency to see people in cultural terms in a way which quite obscures other aspects of their existence (both commonality across, and diversity within, cultures).  (One is reminded of Sen. Bob Collins reported comment that NT Aborigines were generally much more interested in "match of the day" than "Aboriginal" broadcasting.)

9.  Outside the Territories.  Prior to 1977, Territory voters did not count for Constitutional referenda.  There is evidence to suggest that voters were somewhat confused about what they were voting for (e.g. to give Aborigines the vote they already had) but equality was the accepted idea.

10.  Cohen (1997).

11.  Sanders (1995).

12.  Cohen (1997).

13.  McNeill (1989).  Both Cortez, conqueror of Mexico, and Pizzaro, conqueror of Peru, were saved at crucial moments when besieging armies melted away from disease unwittingly carried by the European invaders.  Such disease was also the great killer in Australia, see Crosby (1993).  One estimates put the indigenous population of Oceania at 3.5 million in 1522 and 2 million by 1939 (McNeill [1989] P.318).

14.  A term which came into official use in the early 1990s, starting with the Aboriginal Torres Strait Islander Commission in 1989.

15.  Blainey (1976), P. 31.

16.  This perspective is based on the work of "Jack" Powelson (1994).

17.  Sanders (1995).

18.  Sanders (1995).

19.  Information supplied by South Australian Parliamentary Library.

20.  Kerr (1986).

21.  Interaction with the demands and offerings of the modern state, the material abundance and variety of modern life, the interaction with other ways of seeing the world, all undermine traditional forms.

22.  For example, the complete or near-complete non-existence of formal relations and obligations (which permeate modern society and are particularly important in effective asset management), kin demands hostile to individual effort (through demands to share proceeds of such effort), attitudes to health and sickness, particularly beliefs about causality, incompatible with effective hygiene and health management.

23.  ABS (1997) Pp 114ff.

24.  Sowell, Thomas, Race and Culture:  A World View, Basic Books, New York, 1994 P. xiii, quoted in Sandell (1996).

25.  ABS (1989), P.2.  ABS (1997) P. 115.

26.  Choi and Gray (1985), Pp 25-27.

27.  Cited in ABS (1989).

28.  The age profile is sufficiently different from the mainstream population that it is unlikely to be accounted for by income effects alone.  (That is, the change in identification is not simply a matter of low income Australians choosing to identify as indigenous.)

29.  There is no suggestion that the life expectancy difference is genetically determined.  Life expectancy is something which has shown significant changes over time.

30.  Blainey (1976) P. 230.

31.  A focus on racism also had the advantage of making it easier to treat differently the megacide of the Nazi Holocaust compared to the megacide of Lenin's and Stalin's famines and Stalin's purges (and the later megacides of Mao's China, Pol Pot's Kampuchea and Mengistu's Ethiopia).  It also accorded with the interests and concerns of Jewish and Afro-American lobbies in the US.  Opposition to racism has also been elevated in the US as if it were the sole reason for the US Civil War (allowing other motives, such as disputes over trade policy, raises doubts about the legitimacy of the Northern suppression of Southern secession).  Compared to racism, all other sins pale into insignificance.  Accusations of racism have often proved to be expedient in restricting public debate.

32.  House of Representatives Hansard, Vol. R93 P. 285.  Senate Hansard, Vol. S64 P. 1513.

33.  House of Representatives Hansard, Vol. R93 Pp 285-6.

34.  House of Representatives Hansard, Vol. R93 Pp 1220-1.

35.  House of Representatives Hansard, Vol. R93 P. 1222.  That former Whitlam Government Minister Al Grassby was to be the first Community Relations Commissioner was a not irrelevant factor.

36.  E.g. Mr Hunt, House of Representatives Hansard, Vol. R94 Pp. 1296-8, Senator Shiel, Senate Hansard, Vol. S64 Pp 1526-8, Senator Laucke, Pp 1535-7, Senator Wood Pp 1541-4, 1791-3.

37.  E.g. Sen. Sir Magnus Cormack, Senate Hansard Vol. S64 P. 1797.

38.  Senate Hansard, Vol. S64 Pp 1513-7).

39.  E.g. Mr Clayton, House of Representatives Hansard, Vol. R93 P. 1223, Mr Isaacs, Vol R94, Pp 1293-4.

40.  House of Representatives Hansard, Vol. R95 P. 3248.

41.  No 18 of 1980

42.  No 24 of 1981.

43.  Thornton (1990).

44.  Thornton (1990).

45.  Human Rights and Equal Opportunity Commission Annual Report, 1984-85.

46.  Quoted in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 176 judgement of Gibbs CJ.

47.  153 CLR at 242, judgement of Murphy J.

48.  Viskauskas v Niland, 153 CLR 280 at 292, judgement of Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ.

49.  Defined by the Act to include the Yungkuatjara and Ngaanatjara peoples.

50.  No 38 of 1983.

51.  No 126 of 1986.

52.  No 38 of 1988.

53.  No 115 of 1990.

54.  No 132 of 1992.

55.  No 165 of 1992.

56.  No 179 of 1992.

57.  No 13 of 1994.

58.  No 59 of 1995.

59.  No 101 of 1995.

60.  Or groups, the Torres Strait Islanders being Melanesians rather than Australoids.

61.  It played no major role in the campaigns leading up to the March 1993 general election, for example.  The Liberal-National Party Opposition decided not to make it an issue.

62.  Information supplied by the Native Title Tribunal.

63.  Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 256-59 judgement of Mason CJ, Brennan and Toohey JJ.

64.  183 CLR at 260-64 judgement of Mason CJ, Brennan and Toohey JJ.

65.  183 CLR at 267 judgement of Deane, Dawson, Gaudron and McHugh JJ.

66.  183 CLR at 267-69 judgement of Deane, Dawson, Gaudron and McHugh JJ.

67.  183 CLR at 269 judgement of Deane, Dawson, Gaudron and McHugh JJ.

68.  183 CLR at 269-70 judgement of Deane, Dawson, Gaudron and McHugh JJ.

69.  North (1990) P. 46.

70.  The Coalition also implied support to this proposition prior to the March 1996 elections.

71.  Wik Peoples v Queensland (1996) 141 ALR 129 at 185 judgement of Toohey J.

72.  Comments to author by John Forbes.

73.  It hardly seems unreasonable that the Executive should be bound by instruments it chooses to sign.

74.  North (1990), P.128.

75.  Krueger and Duncan (1993).

76.  Some of the subsequent amendments added elements in line with the original Bill but which failed to pass the Senate.

77.  In the 5 years 1990-94, the Commonwealth Parliament passed as many pages of legislation as it did in the years 1901 to 1970.  Warby (1994).

78.  The approval of at least one House and the Governor-General (acting on the advice of the Executive Council) is required for a constitutional amendment to be put to the people for decision.

79.  The global market represents a form of expression of popular consumer sovereignty;  protectionism being the deliberate restriction, via taxes, quotas or prohibitions, of such consumer preferences.

80.  The effect on the ability of State Governments to affect native title could be dealt with by appropriate amendment to the Commonwealth Native Title Act.

81.  The difficulty of mixed race people in social situations were race is treated as important is well known.  One wonders if some of the popular resentment at indigenous spokespeople with significant European ancestry is not resentment at the denial of things shared, or a feeling of dishonesty.  If matters were thought of in cultural, rather than racial, terms, the question of appearance would become much less important.

82.  See Howard (1997).