A Racist Constitution for a Nation: A Nation of Racists?

The Aboriginal population was estimated to have shrunk in numbers by 1901 to between 66,950 — see Rowley C.D. , Outcasts in White Australia, ANU Press, Canberra, 1971, pp.41–6 — and 94,564 — see Russell Rosyln , and Chubb Philip , One Destiny, Penguin, 1998, p.117.

Chung Teong Toy v Musgrove (1891) App Cas 272.

Quick Sir J. and Garran R. , The Annotated Constitution of the Australian Commonwealth, Legal Books, 1976, pp.623–7.

Souter Gavin , Lion and Kangaroo, Fontana, 1976, p.85.

Clark Manning , A Short History of Australia, MacMillan, 1982, p.163.

Yarwood A.T. and Knowling M.J. , Race Relations in Australia: A History, Methuen, 1982, pp.227–8.

Original draft Constitution, ch.1, cl.52 (19) and (24), now to be found in s.51(27)and(19).

Robtelmes v Brenan (1906) 4 CLR 395.

Original draft Constitution, ch.1, cl.53(1), now to be found in s.51(xxvi). For the origins of this clause, see La Nauze J.A. , The Making of the Australian Constitution, Melbourne University Press, 1974, p.51.

Original draft Constitution, ch.VII, cl.3, later to be found in s.127 until deleted in the 1967 national referendum.

Original draft Constitution, ch. 1, cl.26.

Kartinyeri v Commonwealth (1998) 195 CLR 337.

In Kartinyeri's case, the main point was whether the 1967 referendum result amending s.51(xxvi) of the Constitution had changed the position in this regard, and not whether that head of power in its original form allowed racially discriminatory Commonwealth legislation. This case is discussed later in this article.

Constitutional Convention Debates, Melbourne, 1898, Kingston CC , pp.246–8, Symon J.H. , pp.248–50.

Constitutional Convention Debates, Melbourne, 1898, Vol IV(1), pp.227–43, 245–56, 664–91, Vol IV(2), pp.1780–1802, La Nauze, above ref 9, pp.229–32.

Leeth v Commonwealth (1992) 174 CLR 455.

Kruger v Commonwealth (1998) 190 CLR 1.

Walker v NSW (1994) 182 CLR 45, Mason CJ.

Mabo v Queensland (No 2) (1992) 175 CLR 1.

Western Australia v Commonwealth (1995) 183 CLR 373, which decision also struck down the Land (Titles and Traditional Usage) Act 1993 (WA) as being inconsistent with the Racial Discrimination Act 1975 (Cth). The High Court held in that case the Native Title Act did not repeal the Racial Discrimination Act either retrospectively or prospectively — Mason CJ Brennan Deane Toohey Gaudron and McHugh JJ at pp.483–4. They added that the Native Title Act could be regarded either as a special measure under the Racial Discrimination Act, or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the Racial Discrimination Convention. They further added that even if there was inconsistency between the Racial Discrimination Act and the Native Title Act, the general provision of the former Act must yield to the specific provisions of the latter Act.

Hoffman Shane , ‘United Nations Committee on the Elimination of Racial Discrimination: Consideration of Australia under its Early Warning Measures and Urgent Action Procedures’, (2000) Aust J Human Rights 13.

As to non-derogable peremptory norms generally, see Art 53 of the Vienna Convention on the Law of Treaties. As to the prohibition on racial discrimination being a peremptory norm of international law, see Koowarta v Bjelke-Petersen (1982) 153 CLR 168, Stephen J at 220, Nulyarimma v Thompson [1999] FCA 1192, Wilcox J at paras 18 and 21, Merkel J at para 78, and see Lineham J , ‘The Law of Treaties’, ch.4 of Blay Piotrowicz and Tsamenyi (eds), Public International Law: An Australian Perspective, Oxford University Press, 1997, p.107. There is widespread support for this view outside Australia.

That Commonwealth legislation, within constitutional power, can validly operate domestically even though in breach of international law, has been clear since Polites v Commonwealth (1945) 70 CLR 60. This principle, as presently enunciated by the Australian courts, apparently applies as much to peremptory norms of international law as to any other rule of international law.

Universal House of Justice, The Promise of World Peace, CPN Publications, Canberra, 1986, p.15.