How do you decide in advance whether complex legislation is going to help or harm a particular group of people? It is a decision the High Court could face every time that the Federal Parliament approves legislation that affects Aborigines, for when it rules on the Hindmarsh Island appeal in the next few months the court may find that the Constitution's "race power" only allows parliament to pass laws that benefit Aborigines.
If the court adopts the controversial "beneficial legislation" interpretation, the judges will need to be wiser than Solomon when assessing all the factors that might determine whether or not a particular law actually damages Aboriginal interests. Supporters of the interpretation would probably respond to this caution by stating that the court could apply a relatively objective test which would examine the overall effect of a law on the legal rights and obligations of Aborigines.
In a strictly legal sense this may well be true. But any such test would necessarily involve a fairly high level of abstraction. It might have little, if any, relationship to the question of whether the law would actually benefit or harm all, or many, or some members of the very diverse Aboriginal population, either immediately, or at some time in the future.
If social scientists have learnt anything from their researches over the past century, it is that laws and policies which are widely praised when they are introduced can eventually have outcomes that disadvantage many of the people they are supposed to assist. Take the Aboriginal and Torres Strait Islander Commission (ATSIC) as an example.
When this was established by the former Hawke Labor Government in 1989, it was hailed as a wonderful "revolution in Aboriginal Affairs" and a major step towards self-determination. Certainly, some Aborigines have done extremely well out of ATSIC, particularly those who are paid handsome salaries to work for the organisation, or who have benefited from its often very generous handouts for overseas travel and similar activities.
But there are also many Aborigines who regard ATSIC as a disastrous venture, which in some ways has left the indigenous population as a whole worse off than it was before.
They complain about money wasted on worthless projects that have helped ATSIC representatives and their mates; money that has been redirected away from providing crucial health, housing, and other services for Aboriginal settlements, or from helping to reduce Aboriginal incarceration rates and deaths in custody. They also point to the way that some individuals have been able to misappropriate ATSIC resources to build up personal fiefdoms which they use to intimidate rivals and dissenters.
The extent to which Aborigines and Torres Strait Islanders reject ATSIC is graphically illustrated by the seldom publicised figures for voter participation in its elections. Despite expensive campaigns designed to bring out the vote, turnout has declined from around 33 per cent of indigenous people over 18 in the 1990 ATSIC poll, to around 25 per cent in the most recent poll in 1996.
This latest figure is about the same as the percentage of Aborigines who say that they do not recognise any particular area or region as their homeland. But while there would be outrage if anyone suggested that the one in four Aborigines with no specific attachments to country could be taken as representing the attitudes of all Aborigines to land or native title, there is silence about the equally unrepresentative ATSIC claiming to speak for all indigenous people.
From the beginning it should have been obvious that ATSIC was unlikely to succeed. ATSIC combines the functions of a parliament, an executive in which commissioners have portfolio responsibilities, and an administration, which is hardly the kind of structure which can provide the checks and balances which might help to prevent abuses.
But does anyone really think that a High Court committed to the "beneficial legislation" interpretation of our Constitution would strike down the ATSIC Act on the grounds that, on balance, it did not benefit, and even harmed, the interests of Aborigines as a whole?
Indeed, the whole thrust of any "beneficial legislation" provision would most probably be self-defeating.
Acceptance of the "beneficial" interpretation would give the High Court greater power over laws relating to Aborigines than it has over laws applying to other sections of the population. But if the Commonwealth Parliament can pass legislation that could conceivably harm the interests of union officials, the aged, Anglo-Celtic males, non-English speaking migrants, or left-handed bird lovers, why should Aborigines be given such special protection?
Giving indigenous people the privilege of substantial rights that are unavailable to other citizens might be thought of as beneficial from a legal perspective. But like all forms of racially or ethnically based preferential treatment, in social and political terms it is most likely that it would turn out to be counter-productive and harmful, both for Aborigines and the nation as a whole.
Perhaps more than anything else, a High Court ruling in favour of the "beneficial" interpretation would signal a return to the thinking of the past, when people really believed that there were two fundamentally different kinds of people in Australia, Aborigines and non-Aborigines. It would almost certainly cause a considerable degree of resentment and weaken the sense of fairness that underpins the tolerance which is widespread in contemporary Australia -- self-serving denials from the race-relations industry notwithstanding.
The best way to achieve beneficial outcomes for all Australians -- both Aboriginal and non-Aboriginal -- would be to set aside all laws and programs dealing with specific racial or ethnic groups as such, rather than with individual members of these groups who might require special assistance or consideration for whatever reason. The first step should be a referendum to remove the offensive and outdated "race power" provision from our Constitution.
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