Removing Racism from Australia's Constitutional DNA

For the text of the agreements on this point, see www.alp.org.au/federal-government/government-agreements/.

For information on the panel and its work, see www.youmeunity.org.au.

Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (January 2012).

Official Record of the Debates of the Australasian Federal Convention: 1891–1898 (hereafter Convention Debates), vol 4, Melbourne 1898, at 228–229.

Convention Debates, vol 5, Melbourne 1898, at 1784 per Dr Quick.

Convention Debates, vol 4, Melbourne 1898, at 665 per Sir John Forrest. See Goldfields Act 1895 (WA), sections 14, 92; Goldfields Act (Amendment) Act 1898 (WA), s 4.

Convention Debates, vol 4, Melbourne 1898, at 666.

Convention Debates, vol 5, Melbourne 1898, at 1801.

Kartinyeri v Commonwealth (Hindmarsh Island Bridge Case) (1998) 195 CLR 337. The author appeared as counsel for the plaintiffs in this case.

Kartinyeri v Commonwealth (Hindmarsh Island Bridge Case) (Transcript of Argument, High Court of Australia, 5 February 1998).

Ibid.

Ibid.

Justice Callinan had previously advised the Commonwealth that the Act was constitutionally valid. See Tilmouth Sydney and Williams George , ‘The High Court and the Disqualification of One of its Own’ (1999) 73 Australian Law Journal 72.

Kartinyeri v Commonwealth (1998) 195 CLR 337 at 376.

Western Australia v Commonwealth (1995) 183 CLR 373 at 460.

5 US (1 Cranch) 137 (1803).

Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193.

Kartinyeri v Commonwealth (1998) 195 CLR 337 at 411.

Ibid at 413.

Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 at 56.

Kartinyeri v Commonwealth (1998) 195 CLR 337 at 366.

Ibid at 367.

Ibid at 367.

See generally French Robert , ‘The Race Power: A Constitutional Chimera’ in Lee HP and Winterton George , Australian Constitutional Landmarks (Cambridge University Press, 2003), 180.

The general approach to interpreting the scope of such heads of power by the High Court is that the text is to be construed ‘with all the generality which the words used admit’ (R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225–6).

Spigelman Jim , ‘A Tale of Two Panels’ (Speech delivered at Gilbert + Tobin Centre of Public Law Constitutional Law Dinner, 17 February 2012) www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/dinner_speech_j_spigelman.pdf.

See s 51(13) of the Constitution, which enables federal legislation with respect to ‘Banking, other than State banking’. In Bourke v State Bank of New South Wales (1990) 170 CLR 276 it was held that the words ‘other than State banking’ are a limit not only on the ‘banking’ power, but also on other heads of power in s 51. The guarantee of ‘just terms’ for any ‘acquisition of property’ in s 51(31) applies in the same way.

But see Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 and Wurridjal v Commonwealth (2009) 237 CLR 309.

Williams George , A Charter of Rights for Australia (UNSW Press, 2007), 16–17.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Wik Peoples v Queensland (1996) 187 CLR 1.

Northern Territory National Emergency Response Act 2007 (Cth).

Report of the Expert Panel, above n 3, xviii.