Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Sydney, 1997
The Aboriginal and Torres Strait Islander Social Justice Commissioner is required under s. 209 of the Native Title Act 1993 (Cth) to report annually to the Federal Attorney-General on the operation of the Native Title Act 1993 (Cth) and its effect on the exercise and enjoyment of human rights of Aboriginal and Torres Strait Islander peoples. The Social Justice Commissioner's fourth report covers the period from 1 July 1996 to 30 June 1997. It was presented to the Attorney-General on 19 September 1997 and tabled in Parliament on 21 October 1997.
The reporting period was a tumultuous one, with the High Court releasing its decision in Wik Peoples v Queensland (1996) 187 CLR 1; 2(1) AILR 35; 71 ALJR 173; 141 ALR 129 in December 1996, and the Commonwealth Government reconsidering their proposals for amending the Act, which they had initially released in October and November 1997. By June 1996 the Government had released its "ten point plan" on native title and a working draft of the Native Title Amendment Bill 1997.
The Social Justice Commissioner's Native Title report has six chapters. Chapter 1 is an introduction, and indicates that the focus of the report is on the Wik decision, the constructive potential of co-existence and the human rights implications of the government's proposed response to it. Chapter 2 places the Wik decision into its historical context by examining the history of co-existence between Aborigines and pastoralists and the essential role played by Aboriginal people in the development of the pastoral industry, dating back to the 19th century. Chapter 3 then analyses the key elements of the High Court's decision in Wik, and argues that the decision should be taken as an imprimatur for Australians to take up the notion of co-existing interests, rather than focusing on extinguishing native title.
Chapters 4 and 5 critique specific provisions of the "ten point plan" and Native Title Amendment Bill 1997. Chapter 4 focuses on those aspects of the Bill providing for the extinguishment of native title, such as the validation of potentially invalid non-native title interests, confirmation of extinguishment of native title by certain acts, the provisions for the upgrading of pastoral activities to primary production levels and for the compulsory acquisition of native title. Chapter 5 deals with the proposed amendments to the future acts regime of the Act and the right to negotiate in particular.
Chapter 6, "Discrimination and Uncertainty", is extracted here and evaluates the Bill against international standards of non-discrimination to determine whether the Bill is detrimentally discriminatory against indigenous Australians.
Since publication of the report, the Native Title Amendment Bill 1997 has been debated and amended by the Parliament on three occasions. The Bill finally passed through Parliament on 8 July 1998 as the Native Title Amendment Act 1998 (Cth) and most provisions of the Act came into operation on 30 September 1998. The provisions of the Act are not the same as the originally proposed amendments. However, they are substantially similar to the proposed amendments considered in the report.
The Aboriginal and Torres Strait Islander Social Justice Commissioner's full 1996-97 report can be obtained from the Human Rights and Equal Opportunity Commission, or can be downloaded from the internet at www.hreoc.gov.au.
The Commonwealth Government asserts its amendments to the Native Title Act 1993 (Cth) ("NTA") are non-discriminatory. However, the Prime Minister has also expressly discounted the provisions of the Racial Discrimination Act 1975 (Cth) ("RDA") as having nothing "sacrosanct" about them. [1] He maintains that the amendments somehow comply with the "principles" of the RDA. [2]
In this chapter I review the principle of non-discrimination and conclude that the Native Title Amendment Bill 1997 (Cth) ("NTAB") [3] violates this principle as it is understood in international jurisprudence. The Government's benchmark of "formal equality" results in the substantially adverse treatment of the interests of native title holders. The Bill is discriminatory.
I turn then to the practical criterion of "certainty" which the Government considers will be achieved through its amendments. The slogan of "certainty" has been employed to justify the need for a broad legislative response to the Wik decision. In reality, this objective is camouflage for a wide-ranging assault on native title and the balance of interests currently embodied in the NTA. If passed into law, the Government's amendments will fail to meet its own objective. The only certainty will be protracted litigation.
While I consider the principle of non-discrimination and the criterion of "certainty" separately, they are inter-linked. The greater the degree of discrimination, the more vulnerable the legislation will be to challenge. The Bill is objectionable on the grounds of both principle and practicality.
The Wik judgment and the Government's proposed extinguishment of native title over pastoral leases needs to be seen in the context of the world-wide struggle for recognition of indigenous peoples' land rights and the persistence of "doctrines of dispossession" in the legal treatment of indigenous peoples. Developments in Australia and elsewhere in the world have recently been the subject of debate and comment at the UN Working Group on Indigenous Populations. It is worthwhile examining some of that commentary as it places in perspective the actions contemplated by the Australian Government.
Madame Erica-Irene Daes, Special Rapporteur, UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, in a preliminary working paper titled Indigenous People and Their Relationship to Land, highlights the persistence of "doctrines of dispossession", such as the doctrine of conquest and terra nullius, in the legal and administrative systems of many States. Madame Daes notes that there persists in many States with Indigenous populations a power to extinguish the land rights of indigenous peoples without consent and, sometimes, without compensation.
In respect of Australia's recognition of indigenous peoples' rights to land, despite recent positive developments, the very basis of recognition contains discriminatory biases. Madame Daes notes:
... the High Court of Australia in its 1992 decision in Mabo v Queensland discussed the legal and other effects of the doctrine of Terra Nullius. The Court essentially denounced the doctrine by concluding that this "unjust and discriminatory doctrine ... can no longer be accepted. This decision gave rise to the Native Title Act ... Australian Aboriginal people have reported to the [United Nations Indigenous Populations] Working Group that they have great difficulties with the [Native Title] Act, and are concerned at the assumed and unfounded State authority to extinguish land rights recognised in the Mabo decision. This demonstrates that Eurocentrism continues to be evident in legal theory and thought and that such attitudes have trapped indigenous peoples in a legal discourse that does not embrace their distinct cultural values, beliefs, institutions or perspectives. [4]
Madame Daes goes on to observe that many of the criteria established to assist in the bringing of claims to land in Australia "are wrought with discriminatory and colonial biases". [5] The Special Rapporteur particularly notes reports of the proposed extinguishment of native title over pastoral leases as an example of the persistence of "doctrines of dispossession" in the legal and administrative arrangements dealing with the recognition of the land rights of indigenous peoples. [6]
One of the matters that has become clear through the work of international bodies such as the UN Working Group on Indigenous Populations is that indigenous peoples' legal treatment and relationships with government remain permeated by discrimination. Many of these discriminatory practices are historical and systemic. In many states, discrimination is reflected in the legal structures that indigenous peoples are forced to deal with when seeking recognition of their rights to land. In the Australian context, the doctrine of terra nullius was long used to deny indigenous people land rights. But there are also more subtle forms of discrimination. Overt or "blanket" extinguishment of property rights is not necessary to raise the issue. Any actions that detrimentally affect native title raises the issue of racial discrimination. Indigenous peoples' historical disadvantage and dispossession further compounds the importance of the recognition of native title and the form of that recognition.
The principle of non-discrimination is generally considered to be one of the fundamental doctrines of the international legal order. Article 55 of the UN Charter states that one of the objectives of the UN is to promote:
... c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
The principle of non-discrimination is contained in all major human rights treaties and declarations [7] and there is a specific treaty dealing with racial discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Furthermore, the International Court of Justice (ICJ) and eminent publicists have repeatedly observed that the principle of racial non-discrimination has the status of customary international law and is jus cogens and non-derogatable. [8]
The non-derogatable nature of non-discrimination derives from the principle's status as jus cogens. The principle of non-discrimination is considered a norm of such significance that states cannot derogate from it even in time of war or national emergency. In the Barcelona Traction case (second phase) the majority of the ICJ, supported by 12 judges, described the prohibition against racial discrimination as an obligation that arises independently from specific treaty obligations and is owed "towards the international community as a whole". The ICJ observed:
Such obligations derive, for example, in contemporary international law from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. [9]
Accordingly, the principle of non-discrimination provides inviolable parameters within which governments must act. The principle cannot be set aside merely because it is inconvenient and does not accord with the policy of the day.
The Commonwealth of Australia is a state party to both the International Covenant on Civil and Political Rights (ICCPR) and CERD. Accordingly, Australia is internationally accountable for breaches of the principle of non-discrimination, including by State or Territory governments. Importantly, the Commonwealth has accepted the jurisdiction of the UN Human Rights Committee under the First Optional Protocol to the ICCPR and the Committee on the Elimination of Racial Discrimination (CERD Committee) under Article 14 of CERD. The significance of Australia's acceptance of the jurisdiction of these two international bodies is that individuals (and groups in the case of the CERD Committee) may make complaints to one of these bodies if their rights under CERD or the ICCPR have been violated and there is no adequate remedy within the Australian legal system.
A breach of the principle of non-discrimination in relation to indigenous land rights would likely offend both CERD and the ICCPR and give rise to a capacity for indigenous people to lodge complaints to either the UN Human Rights Committee or the UN Committee on the Elimination of Racial Discrimination. Such a breach will expose Australia to direct international scrutiny.
It is necessary to examine the principle of non-discrimination in detail.
The principle of non-discrimination is broader than the prohibition of racial discrimination. International law's treatment of non-discrimination involves the setting of standards and positive obligations in terms of the treatment which states must accord minorities and indigenous peoples. In this context, it is useful to examine the genesis of the principle of non-discrimination.
At the conclusion of World War I, the newly established League of Nations adopted a treaty system which sought to protect racial, religious and linguistic minorities. [10] From this system, a principle of non-discrimination, or equal treatment, emerged. Accordingly, public international law's treatment of discrimination is closely tied to the protection of the social, political, cultural and economic situation of minorities and the preservation of their distinct entitlements and identity.
The Permanent Court of Justice tackled this issue in its famous advisory Opinion concerning the Minority Schools in Albania in which it stated that the underlying object of the League of Nations' treaties protecting minorities was to ensure members of racial, religious or linguistic minorities are "in every respect on a footing of perfect equality with the other nationals of the State" and were able to preserve "... their racial peculiarities, their traditions and their national characteristics". [11] The desire to protect the integrity of minorities necessarily gives rise to questions about the various possible forms of discrimination. The most obvious ways that members of a minority will not be protected is if they are subject to different treatment that disadvantages them as individuals. A further, and more subtle form of persecution, comes from measures which deny members of a minority the capacity to be different from the majority, namely they are forced, to their disadvantage, to be the same as the majority.
The relationship between non-discrimination and minority rights was further refined in the South West Africa case. [12] In Judge Tanaka's famous dissenting judgment, three basic principles were stated that have shaped understanding of the principle of non-discrimination. The three principles are:
Accordingly, the principle of non-discrimination requires equal treatment of equals and consideration of difference in assessing the need for different treatment. Different treatment is appropriate when it allows groups to maintain their own traditions and practices. Additionally different treatment can be an important element in the provision of effective or substantive equality.
It is widely accepted that the principle of non-discrimination in international law is concerned with substantive inequality rather than formal inequality as "the principle of equality of individuals under international law does not require a mere formal or mathematical equality but a substantial and genuine equality in fact". [16]
CERD defines racial discrimination in art 1(1) as:
... 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 public life.
The definition of racial discrimination at s. 9 of the RDA replicates the art 1(1) of racial discrimination with some very minor rewording.
One of the important features of CERD is that it contains positive obligations to assist racial groups that are disadvantaged. The rationale for imposing such obligations is that historical patterns of racism entrench disadvantage and more than the prohibition of discrimination is required to overcome the resulting racial inequality.
The main example of the concern with positive measures expressed in CERD is the notion in art 1(4) of "special measures". Article 1(4) states:
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 of which they were taken have been achieved.
CERD also contains other provisions that demand positive actions by states parties in eradicating racial discrimination as defined by art 1. Article 2 comprises the central obligation in CERD in relation to the eradication of racial discrimination. For example, art 2(1)(d) requires states parties "to undertake to pursue by all appropriate means and with out delay ... to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists." This obligation is not a special measure but a distinct treaty-based obligation. Article 2(2) of CERD requires:
States parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. 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.
Mr Michael O'Flaherty, Secretary, CERD Committee, observed:
Article 2(1) comprises the Convention's central obligation on States Parties to eradicate all vestiges of racial discrimination (as defined by Article 1) within their jurisdiction. ... While Article 1(4) [special measures] allow for the continuation in a State Party of certain affirmative programs for groups which have suffered from discriminatory practices, Article 2(2) actually imposes an obligation to undertake such affirmative actions. [17]
Article 2 measures, special measures, and the relationship of these practices with unlawful racial discrimination, have been a source of confusion in Australian law. Special measures and art 2 measures are not racially discriminatory. This does not mean special measures and art 2 measures are the only way that distinctions based on race can be lawfully maintained. The recognition of native title involves accepting a form of land title that derives from the traditional laws and customs of indigenous people. The protection of native title must reflect the substance of those traditional rights and customs. Different rights require different forms of protection to achieve substantive equality of treatment. Much confusion, both legally and politically, stems from the High Court's judgment in Gerhardy v Brown [18] that deals with the character of special measures.
It is widely recognised that CERD is concerned with substantive equality rather than just formal equality. The United Nations Committee on the Elimination of All Forms of Racial Discrimination (CERD Committee) in its general recommendations XXIV observed recently:
Significantly, the CERD Committee in this general recommendation acknowledges that differential treatment, if appropriate, does not constitute racial discrimination and does not have to be a "special measure".
What should be clear from this brief discussion of the principle of non-discrimination is that there is a significant and established body of law in this area. The Commonwealth of Australia has ratified both CERD and the ICCPR. Accordingly, there is an issue of state responsibility and Australia's compliance with CERD and the ICCPR in the current debate over native title and pastoral leases. The government can criticise indigenous leaders for going overseas and raising human rights issues at international conferences and fora but the Commonwealth of Australia has accepted the jurisdiction of bodies such as the UN Human Rights Committee precisely because it is committed to respect the human rights of persons within Australia's territorial competence. The human rights standards discussed in this report are not changeable in response to the demands of interest groups. The principle of non-discrimination is widely considered as having the status of jus cogens. Any derogation from the principle of non-discrimination is a matter of both domestic and international concern.
It is useful to examine some of the principles that the current Commonwealth Government sees as applicable to indigenous people.
The current debate over native title and pastoral leases is occurring in a political climate that is increasingly antagonistic to any perception that "special rights" are being given or maintained for any group within Australia. There is much emphasis on the desirability of equality without a clear understanding of what equality actually means.
One of the most disturbing aspects of the current debate over native title and pastoral leases is the use of concepts borrowed from equality and non-discrimination law to justify the extinguishment and impairment of indigenous peoples' property rights. Some have even gone so far to say that native title is inherently discriminatory as only indigenous people can possess it. [20]
The Government has repeatedly stated that it considers itself only bound to observe that formal equality is complied with. The desire to achieve formal equality has been expressly stated by the Government as the justification for dismantling the right to negotiate. [21] In defending amendments put forward in 1996 - in particular, those that curtailed the right to negotiate - the Government argued that in order to honour its promise to respect the RDA, it was merely required to ensure that native title holders were left in a situation of formal equality with other title holders. On this basis, it was suggested, the "special right" provided by the right to negotiate scheme could be wound back or removed without giving rise to racial discrimination. [22]
One of the Government's chief legal advisors has stated that whether a matter is a special measure, or consistent with formal equality, provides the test as to compliance with the RDA. Mr Robert Orr, General Counsel, Attorney-General's Department, observed in his evidence to the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund last November:
In assessing the current government amendments, therefore, and advising in relation to them, the approach has been taken that the amendments need to leave the [Native Title] Act either as a special measure or provide formal equality. Provided that the amendments maintain provisions as special measures or provide formal equality, they comply with the Racial Discrimination Act. [23]
Significantly, this approach provides no secure way to recognise indigenous peoples' unique relationship to land and land rights. The Government's misunderstanding of the content of the notion of equality and how the principle of non-discrimination applies is a fundamental flaw in its current approach to native title.
There is genuine doubt whether formal equality has any relevance to native title. As the High Court has repeatedly stated, native title is an interest sui generis and by implication native title cannot be directly compared with other interests in land. The Government's equality jurisprudence relies heavily on the High Court decision in Gerhardy v Brown [24] that conceptualises the RDA as involving a generalised prohibition of measures that are formally racially discriminatory with an exception for matters capable of characterisation as "special measures".
There has been persistent criticism of the High Court's approach to racial discrimination in Gerhardy v Brown as being broadly out of step with accepted international approaches to non-discrimination and providing no clear way to recognise the unique position of Australia's indigenous peoples other than through charitable "special measures". [25]
In subsequent cases, the High Court has employed a less formalistic approach to equality. A more sophisticated approach to native title and discrimination issues occurs in Western Australia v Commonwealth. [26] It is noted that the High Court has not made definitive pronouncements concerning how native title "fits in" to racial discrimination law. The unsettled nature of the law in this area is illustrated by the majority in Western Australia v Commonwealth that observed "the Native Title Act can be regarded as either a special measure under the RDA or a law which, though it makes racial distinctions, is not racially discriminatory." [27]
In Gerhardy v Brown, the Court was dealing with a legislative scheme to "give" the Pitjantjatjara people rights to their traditional land. This was done in a context where indigenous people had no recognised right to land independent of a crown grant. After Mabo (No. 2), [28] the situation fundamentally changed. Native title is a common law right and not a political "gift" of government. Native title exists because of indigenous peoples' continuous and unbroken connection with their land. The High Court of Australia as early as 1988 in Mabo (No. 1) acknowledged that in the case of native title "it is not the source or history of legal rights which is material but their existence". [29]
Accordingly, the Commonwealth government is seeking to rely on Gerhardy v Brown when the case is of dubious authority and little relevance to native title. Gerhardy v Brown provides no answers in the current debate over native title and pastoral leases. The Bill, if enacted, will be a subsequent specific enactment to the RDA. The RDA will not apply to the Government's amendments. The main issue in terms of racial discrimination is the Bill's compliance with Australia's international obligations concerning non-discrimination and most significantly CERD. It is the Bill's compliance with international human rights law that the Government must address if it is concerned with acting in a non-discriminatory manner.
As a distinct interest in land that is racially based, native title must be accorded "full respect" on a par with other interests in land. The fact that native title is a unique type of proprietary interest that non-indigenous people cannot hold does not mean that it, or its protection, is a "special measure" or racially discriminatory. It must be stressed that the principle of non-discrimination does not require that the interests of all groups in society be formally the same. One feature of the principle of non-discrimination is that it is designed to accommodate different groups having different practices and rights that flow from their particular histories. This is obviously relevant to indigenous Australians who because of their unique history and cultural traditions, possess sui generis entitlements. The incidents of native title are determined by traditional laws and customs and warrant full protection according to the particular terms of those laws and customs.
One further matter that must be stressed is that the principle of non-discrimination is more than just about prohibiting discriminatory acts. It seeks to set the acceptable standard of treatment for preserving the distinct status of racial, ethnic, religious and linguistic minorities. This feature of the principle of non-discrimination is illustrated by its genesis in the League of Nations' treaty system that sought to protect racial, religious and linguistic minorities as discussed above.
The Commonwealth Government has ignored this feature of the principle of non-discrimination. It appears to believe that non-discrimination is merely the prohibition of invidious discriminatory acts and that somehow everything else is permissible as long as formal equality is satisfied. International law's treatment of racial discrimination does not neatly fall into a negative rights analysis because racial discrimination law imposes positive obligations on governments. The obligations contained in art 2 of CERD spell out this aspect of racial discrimination law.
The CERD Committee in its general recommendation XXIV acknowledges that differential treatment, if appropriate, does not constitute racial discrimination. Accordingly, special measures are not the only way that lawful distinctions can be made on the basis of race. The principle that the Government has sought to extract from Gerhardy v Brown, and apply generally to native title, is beside the point.
There are a number of senses in which the Government's proposals for native title are discriminatory. I have already noted in this report many of the specific features of the Bill and how they will seriously disadvantage and discriminate against indigenous people. It is important to realise that there are broader discrimination issues in the Commonwealth's general approach to native title. I want to talk about some of the general elements of the Commonwealth's current treatment of native title and how it can be characterised as discriminatory. In this context, there are two themes that I wish to develop.
The Native Title Amendment Bill:
A central issue for indigenous people world-wide is the ease with which their traditional rights to lands can be expropriated and extinguished by governments. In her preliminary working paper on Indigenous People and Their Relationship to Land, the United Nations' Special Rapporteur, Madame Erica-Irene Daes, observes:
The problem of extinguishment is related to the concept of aboriginal title. The central defect of so-called aboriginal title is that it is, be definition, title that can be taken at will by the sovereign - that is, by the colonial government, or nowadays, by the state. Like aboriginal title, the practice of involuntary extinguishment of indigenous land rights is a relic of the colonial period. It appears that, in modern times, the practice of involuntary extinguishment of land titles without compensation is applied only to indigenous peoples. As such, it is discriminatory and unjust ... [30]
The discriminatory biases that Madame Daes notes relate to the conceptualisation of indigenous peoples' interests as subsidiary and capable of being displaced arbitrarily in favour of non-indigenous land owners. Madame Daes in the working paper observes:
... it is critical to underscore the cultural biases that contributed to the conceptual framework constructed to legitimize colonization and the various methods used to dispossess indigenous peoples and expropriate their lands, territories and resources. It is safe to say that the attitudes, doctrines and policies developed to justify the taking of lands from indigenous peoples were and continue to be largely driven by the economic agendas of States. [31]
In Australia, the fragility of native title is clearly evident in the common law's approach to the recognition of indigenous rights to land. At common law, native title is extinguished by an inconsistent crown grant. In Mabo (No. 2), Justices Deane and Gaudron in their joint judgment highlighted the historically vulnerable situation of indigenous people:
... common law native title holders in an 18th century British colony were in an essentially helpless position if their rights under their native title were disregarded or wrongfully extinguished by the Crown. Quite apart from the inherent unlikelihood of such title-holders being in a position to institute proceedings against the British Crown, the vulnerability of the rights under native title resulted in part from the fact that they were personal rights susceptible to extinguishment by inconsistent grant by the Crown, and in part from the [then] immunity of the Crown from court proceedings. [32]
For most of the post-1788 history of Australia, native title was purportedly "extinguished" in complete ignorance of its existence. One of the purposes of the NTA was to protect native title from potential extinguishment by according it a status equivalent to freehold titles. [33] The NTA sought to stop the parcel-by-parcel dispossession of Indigenous Australians and apply to their proprietary interests the same effective protection accorded to other Australians who own land.
In the Mabo case, a number of the Justices in the majority did seek to accord native title equal status. For example, Justice Deane and Gaudron noted that native title rights are "true legal rights" and can be "vindicated, protected and enforced by proceedings in the ordinary courts." [34]
One of the positive features of the Wik decision was the approach of the majority to the issue of extinguishment. As Professor Richard Bartlett has noted, the majority approach in Wik is to accord native title "equal status". Professor Bartlett observes:
The Justices [Gaudron, Toohey, Gummow and Kirby] formed a majority of four in concluding that a Crown grant can only unilaterally terminate native title by virtue of inconsistency if legislation has manifested a clear and plain intention that extinguishment should result from the grant. The majority applied the principles governing expropriation of all other rights and interests to native title. They rejected the application of a unique and arcane jurisprudence that relies upon a lesser unequal status for native title. [35]
The Bill signifies a return to the colonial and discriminatory practice of according native title lesser status than interests in land which emanate from the Crown.
The Commonwealth Government's current actions are in the colonial tradition of treating native title as a subsidiary and inferior type of land-holding. In Australia today, indigenous peoples rights as determined by the courts and the Commonwealth Parliament are being arbitrarily altered to accommodate the interests of other property owners. In the case of the proposed validation provisions, indigenous peoples' rights are being disregarded because a law of the Commonwealth Parliament was not obeyed by some State governments.
Indigenous people did give up something when the NTA was enacted in 1993. The provisions of the NTA that discriminate against native title holders were portrayed as being "balanced" by "beneficial" provisions such as the right to negotiate which accommodated the particular needs of native title holders. The notion that the NTA constitutes a compromise has some legal recognition. The High Court in Western Australia v Commonwealth very clearly acknowledged that underscoring this mixture of detrimental and beneficial treatment in the NTA is a non-discriminatory standard. The Court noted:
The Native Title Act provides the mechanisms for regulating the competing rights and obligations of those who are concerned to exercise, resist, extinguish or impair the rights and interests of the holders of native title. In regulating those competing rights and obligations, the Native Title Act adopts the legal rights and interests of persons holding other forms of title as the benchmark for the treatment of the holders of native title. [36]
The Court's general approach in Western Australia v Commonwealth exhibits a willingness to allow governments some margin of appreciation in dealing with native title. As long as native title is treated fairly and equally, there are a number of permissible strategies that governments can use when dealing with the land management issues raised by the existence of native title.
In Australia, such an approach to native title is completely undermined by the character of the amendments which have been put forward since the Wik decision.
A prime example of the Bill's lack of balance and fairness is its proposed validation regime. The Bill's validation of all non-indigenous titles granted between the commencement of the NTA and the handing down of the Wik decision is fundamentally unfair and has no legitimate justification.
The current future act provisions of the NTA were designed to protect native title and provide procedures to allow dealings in land where native title exists. Accordingly, there have been clear and fair procedures that governments could use when dealing with land where native title exists. As long as governments complied with the procedures in the NTA they were not restricted in their dealings in land. The need for this current round of validation arises because certain State and Territory governments ignored the future act provisions of the NTA and continued to grant titles without reference to it. This blatantly favours Crown-granted titles over native title and fails to provide native title with any protection at all, let alone equal protection.
The validation proposed by the Bill also seeks to absolve government from a failure to comply with explicit statutory provisions. Accordingly, the use of validation provisions in this context is discriminatory as it favours the interests of government and those individuals who were granted titles post-1 January 1994 over native title holders. It is unjust, deeply objectionable and damages the rule of law in Australia. The provision of compensation to native title holders does not remedy the clear preference conferred on non-indigenous titles granted during the validation period. Human rights require respect: not obliteration followed by compensation.
Further, the Bill contains few positive provisions for native title holders to "balance" its detrimental aspects. On the contrary, the amendments allow native title holders to be treated less favourably than other title holders in a range of situations and wind back the right to negotiate to a point where it is rarely applicable and virtually unusable in practice. [37]
It is impossible to see how the NTA, once amended in this fashion, could be characterised as a "special measure" for the benefit of indigenous peoples or as a balanced approach to the land management issues raised by the existence of native title.
One feature of the principle of non-discrimination is that it does not suppose all groups and individuals in society to have identical interests but requires that different interests be accorded full respect and equality before the law. Equality before the law is a fundamental component of international human rights law and common law. Equality before the law is about procedural rights and recognition, and critical in the context of native title.
Article 26 of the ICCPR states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Appreciation of a specific right to equality in relation to property is found in art 17 of the Universal Declaration of Human Rights:
In CERD's definition of racial discrimination, enjoyment of equality before the law is noted as the pre-eminent human right. Article 5 of CERD prefaces its list of specific rights and fundamental freedoms with a general statement concerning the need for respect for equality before the law.
The notion of equality before the law is also recognised as part of the common law of Australia. In Leeth v Commonwealth, Justices Deane and Toohey in their joint judgment note:
The essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government. [38]
In Australian racial discrimination law, the primacy of equality before the law is reflected in s. 10 of the RDA that provides a specific guarantee of equality before the law. Further, equality before the law has played a significant role in determining the standards that State and Territory governments must meet in dealing with indigenous peoples' rights and entitlements. In Mabo (No. 1), the majority found the attempt by the State of Queensland through the Queensland Coast Island Declaratory Act 1985 to extinguish the native title rights of the Miriam people of the Murray Islands was inconsistent with s. 10 or the RDA and inoperative. The majority characterised the effect of the Queensland Coast Island Declaratory Act 1985 as an arbitrary deprivation of property in terms of art 17 of the Universal Declaration of Human Rights. The majority observed:
... the 1985 Act destroys the traditional legal rights in and over the Murray Islands possessed by the Miriam people and, by an arbitrary deprivation of that property, limits their enjoyment of the human right to own and inherit it. ... It is the arbitrary deprivation of an existing legal right which constitutes an impairment of the human rights of a person in whom any legal right is vested. [39]
In Mabo (No. 1), the type of arbitrary deprivation of property that the court was concerned with was the extinguishment of native rights without consent or compensation. It is important to realise that the notion of an arbitrary deprivation of property is wider that just the illegal (without compensation) deprivation of property and encompasses the "unjust" extinguishment of native title. In Western Australia v Commonwealth, the Court observed that the RDA "precludes both a bare legislative extinguishment of native title and any discrimination against the holders of native title which adversely affects their enjoyment of their title in comparison with the enjoyment by other title holders of their title". [40]
Equality before the law is central to the notion of non-discrimination and equal treatment. For most indigenous peoples equal recognition and protection of the law has been historically denied. In Australia, the application of the doctrine of terra nullius is the glaring example of the manner in which the Australian legal system condoned discrimination and dispossession. Recently, there have been positive developments in Australian judicial methods and the Commonwealth Parliament's approach to indigenous rights.
The current Government's actions signal very clearly a rejection of this trend towards institutionalising non-discrimination in Australian law and practice in relation to native title and indigenous rights generally.
In a basic sense, the Government's response to the High Court Wik decision exhibits an unwillingness to give to native title the same respect that the law accords other interests in land. The NTA did not represent the final and definitive statement as to the content and extent of native title in Australia. Many important issues were deliberately left unresolved with the expectation that in the course of time they would be resolved by the courts within the broad parameters set up by Parliament. There is nothing unusual in this approach.
One of these unresolved issues was the extent of native title's continued existence on land that had been the subject of a grant of a pastoral lease.
The Australian newspaper's legal correspondent recently observed:
Many conservative lawyers do not find activism in Wik. Look at the judges' methods they say, it is arguably good old-fashioned black letter law. But the state premiers such as Borbidge are not interested in the method, they are dismayed by the awkward politics and the economics of the result. [41]
In many respects the High Court's Wik judgment is a very ordinary one. Wik involved the construction of a lease so as to determine the true extent of parties' legal interests in a piece of land. Except here the government and some pastoralists have refused to accept the umpire's decision and one group, pastoralists, will potentially receive a huge windfall benefit not only at the expense of indigenous Australians but Australians generally.
Equality before the law demands that the interests of all groups and individuals be accorded full respect and that government should not intervene to massively advantage one group at the expense of others when that group did not get the decision it would have liked. Adjustments to accommodate an unexpected decision are one thing. The substantial reworking of the entire system is another. The Bill will completely alter the native title process in Australia.
Procedural equality is a basic component of equality before the law. In the context of native title, this does not involve obliterating the ways in which it is different from other interests in land but according it equal respect in terms of procedural rights required for its protection.
As already discussed, one of the cornerstones of the NTA is that it applies an "ordinary title" test to future actions involving native title. The NTA applies the same standards and procedures to native title as would be applied to ordinary titles to land. The whole purpose of incorporating this test in the NTA is to ensure that the principle of non-discrimination is applied.
The proposed provisions governing future acts over native title land are no longer built around a guarantee of procedural equality with ordinary title holders. The Bill proposes to restructure the future act regime so that a long list of proposed acts will be valid, regardless of whether or not they can be done over ordinary title or whether native title holders have been provided with equivalent procedural protections to ordinary title holders. In fact, the theme of the amendments is a move away from a non-discriminatory approach to native title to one characterised by varying State and Territory procedures and pragmatism. Native title holders are potentially offered less protection than other title holders and are merely offered compensation for the impact of acts on their rights. [42]
There are other aspects of the Bill that fail to accord native title holders equality before the law. The "confirmation" of exclusive tenures is one such example.
To avoid "uncertainty" the Government intends to declare that certain types of land tenure provide "exclusive possession". A grant of an interest in land that is deemed to give exclusive possession will extinguish native title.
Apart from the validation provisions of the NTA, the current NTA does not deem any interest as extinguishing native title. The NTA relies on accepted principles of land law and statutory interpretation to determine whether native title exists over particular pieces of land. Currently there needs to be judicial determination of whether an interest actually extinguishes native title. This is what happened in the Wik case. Given the diversity of pastoral and leasehold interests in Australia, many other types of interest in land will need to be construed by the courts to conclusively determine whether native title has been extinguished.
The Government's proposed provisions will allow the deeming of certain interests to give exclusive possession when, on proper construction, this might not be the result of the interest. This possibility is obviously contemplated by the Government as the exposure draft of the Bill contains a provision for compensation for extinguishment resulting from this supposed "confirmation" of the common law. [43]
This bogus act of "confirmation" proposed by the Government denies indigenous people equality before the law. It denies native title claimants access to the courts and the opportunity to present their native title claims. Any "exclusive tenure" will function as a bar to indigenous groups registering claims and will allow for existing claims to be struck out where the claim involves land where the tenure has been declared "exclusive". This is not about "certainty" but denying indigenous people access to procedures designed to facilitate the determination of native title.
If tenures are declared "exclusive", one group's rights to have their interests determined by the courts is abrogated. Confirmation will only affect native title. The discrimination is plain. No other title holder will be adversely affected by confirmation, only indigenous people who possess native title over land where a co-existent interest is declared to be "exclusive" with consequential extinguishment of the native title.
The Bill also favours Crown-granted titles over native title by clearing the way for leaseholders to perform very broad-ranging "primary production" activities, regardless of whether or not they were originally granted such rights under their leases. It allows the rights of leaseholders to be increased at the expense of native title holders, without native title holders having any ability to object or negotiate. This framework clearly fails to provide native title holders with equality before the law.
Further, the Bill allows States and Territories, with respect to certain lands or waters, to establish legislative regimes to facilitate the compulsory acquisition of native title rights for the benefit of third parties. By contrast, legislative schemes applying to the compulsory acquisition of other forms of title do not generally authorise land to be acquired for private purposes. [44] These amendments will place the property rights of native title holders in a particularly vulnerable position - which, again, is inconsistent with the principle of equality before the law.
The discriminatory nature of the amendments as a package, as outlined above, significantly increases their vulnerability to legal challenge and prevents them from providing "certainty". This issue is discussed in more detail immediately below. Even if the amendments were to survive the inevitable legal challenges in our domestic courts, however, they will very likely not survive international scrutiny. Australia faces the shameful probability of being found to have breached the fundamental, jus cogens principle of racial non-discrimination under international law.
Contrary to the Government's claim, the Bill will not produce "certainty". Many of the amendments are impractical and will disrupt the current evolution of procedures for recognition of native title. Under the guise of providing certainty, the Government"s proposals are so essentially punitive to native title holders that only one result is certain; the provisions will be challenged.
The two concerns that I wish to raise relate to workability and the Bill's constitutional validity. Both matters go to the very core of the issue of certainty.
The NTA is, of necessity, a revolutionary statute. It seeks to provide an orderly and balanced procedure to accommodate native title into Australian land law. That the native title process has had some teething problems is inevitable. Whilst indigenous people welcomed the Wik decision it is understandable that pastoralists were dismayed by it.
The Wik decision is part of the process of recognition of native title that was started in the Mabo judgment and continued with the NTA. Fundamental to the recognition of native title is the incorporation of native title into the land law and practices of Australia. This is a complex process but not beyond the capabilities of the legal and political systems of Australia. "Working through" the recognition of native title should not be confused with "workability" which achieves its end by neutralising native title rights.
The notion of the original NTA as a settlement between indigenous and non-indigenous peoples is important in terms of the practical working of the native title process. The 1993 Act sought to provide parameters within which the process of incorporation of native title into Australia's legal and land management systems could take place. In order to achieve certainty the system set up by the 1993 Act needs time to develop and work itself out. Some amendments are necessary (for example to accommodate the High Court decision in Brandy [45] ) but the structural principles of the 1993 Act should remain.
What the Bill will do is radically change the rules before they have been given time to become settled. The principle of co-existence expressed by the Court in Wik may require some changes for the legislation to work efficiently but not a complete over-turning of the system. The Bill does not make minor technical amendments to the NTA but fundamentally alters it. The rewriting of the future act provisions is a glaring example of this fundamental shift. Established native title processes will be derailed. The Bill will detrimentally affect many people - not just indigenous people - involved in native title procedures. Moreover, the Bill will force indigenous people into protracted litigation because it denies them equality before the law. The Bill, if enacted, will be challenged.
The Bill has constitutional problems. It is obviously difficult to say with any degree of certainty what the High Court will decide one way or another. It is nevertheless possible to say that there are distinct constitutional issues arising from the degree to which it detrimentally affects the rights of indigenous Australians. The constitutionality of the Government's proposed amendments, if enacted, will be litigated with one inevitable result - in the immediate future there will be uncertainty in relation to the native title process.
I will examine two distinct constitutional issues:
It needs to be asked under what constitutional head of power can the Bill be characterised. The Bill is clearly not a proposed law with respect to external affairs. There is no treaty or international concern that the Bill gives effect to. Accordingly, the only remaining head of power is s. 51(xxvi) - the race power.
The original s. 51(xxvi) of the Constitution stated that the Parliament shall have power to make laws with respect to "[T]he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws." The exclusion concerning Aboriginal people was deleted as a result of the 1967 referendum.
The original purpose of the power was explained by Quick and Garran as enabling "the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined area, to restrict their migration, to confirm them to certain occupations, or to give them specific protection and secure their return after a certain period to the country whence they came." [46]
So in its original form, s. 51(xxvi) empowered the Commonwealth to make laws which would adversely impact or affect a particular racial group. [47] The question today is whether the race power would support a law adversely discriminating against Aboriginal people.
This issue will turn on the approach the Court takes in interpreting the scope of s. 51(xxvi). In this respect the 1967 amendment is significant. The 1967 referendum repealed both s. 127 of the Constitution and deleted the exclusion concerning Aboriginal people in s. 51(xxvi) of the Constitution. In 1965, a bill was introduced into the Commonwealth Parliament to give effect to the desire to remove discriminatory references in the Constitution to Aboriginal people. The 1965 bill initially sought only to repeal s. 127. [48] During the Parliamentary debate that proceeded the 1967 referendum, it was decided it would be desirable for the Commonwealth Parliament to have the power to legislate "special laws" for the benefit of Aboriginal people throughout Australia. As Sadler notes, the Parliamentary debates show that the principal object of the Referendum was to enable the Commonwealth to overcome an inequality in the treatment of Aboriginal people by the States. [49]
In the context of the current debate over equality and "privilege" it is interesting to note the views, in 1967, of, the Hon Billy Wentworth MP, [50] concerning why the Commonwealth Parliament should have the power to pass "special laws" for Aboriginal people. The Liberal member for McKellar noted:
Some people say -- I think wrongly -- that no discrimination is necessary in regard to the Aboriginal people. I think that some discrimination is necessary. But I think it would be favourable, not unfavourable. ... it is not right to say to these people: "we will treat you as we would treat any other Australian". To do this would submerge and destroy their culture. ... I do not mean to say they are worse people than we are. What I am saying is that they have a background which is different from ours. Ours is the dominant background in Australia and they are compelled, as it were, to fit into it. [51]
The scope of s. 51(xxvi) has never been conclusively determined by the High Court although the Prime Minister, the Hon John Howard MP, noted recently when ruling out blanket extinguishment of all native title in Australia that the High Court "as currently constituted could well decide that the race power as currently phrased does not support a detrimental act in relation to one particular race within the Australian community". [52]
Father Frank Brennan SJ has noted that since the 1967 there are three possible interpretations of the race power. These are:
In Koowarta v Bjelke Petersen, Justice Murphy considered that the race power would not support laws intended to adversely affect the people of any race. [54] Justice Stephen observed that the s. 51(xxvi) requires the law to be necessary for people of a particular race. He said:
I regard the reference to special laws as confining what may be enacted under this paragraph to laws which are of their nature special to the people of a particular race. It must be because of their special needs or because of the special threat or problem which they present that the necessity for the law arises, without this particular necessity as the occasion for the law, it will not be a special law such as s. 51(26) speaks of ... [55]
This approach was endorsed by Justices Mason, Deane and Murphy in the Tasmanian Dams Case in relation to legislation that protected the cultural heritage of Aboriginal people. [56] In the Tasmanian Dams case, Justice Brennan acknowledged that the original s. 51(xxvi) authorised the making of laws which could adversely discriminate against a particular racial group. He then addressed the effect of the 1967 amendment and said:
The approval of the proposed law for the amendment of para. (xxvi) by deleting the words "other than the aboriginal race" was an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial. The passing of the Racial Discrimination Act manifested the Parliament's intention that the power will hereafter be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make special laws. [57]
In Western Australia v Commonwealth, the Court considered the scope of s. 51(xxvi) in relation to the NTA. It confirmed that the NTA was a valid law supported by the race power because it conferred a benefit on Aboriginal and Torres Strait Islander native title holders. The Court noted that the race power is a general power which may support laws which discriminate against or benefit the people of any race but did not examine the issue in any detail. At best the extent to which the race power may be used to legislate to the detriment of Aboriginal people is not certain.
With respect to the interpretative approach of the Court to this issue, Justice Kirby emphasised as recently as 14 August 1997 that where the Constitution is ambiguous, the Court should adopt that meaning which conforms to the principles of fundamental rights, as recognised in international law, rather than an interpretation which would involve a departure from such rights. He said:
Where there is an ambiguity in the meaning of the Constitution, as there is here, it should be resolved in favour of upholding such fundamental and universal rights. ... The Australian Constitution should not be interpreted so as to condone an unnecessary withdrawal of the protection of such rights. At least it should not be so interpreted unless the text is intractable and the deprivation of such rights is completely clear. 58
In that case, his Honour considered the scope of the Commonwealth's power to legislate under s. 51(xxxi) - the acquisition of property power - and construed the provision having regard to art 17 of the Universal Declaration of Human Rights which provides that everyone has the right to own property alone as well as in association with others and that no one shall be arbitrarily deprived of his property.
If one takes into account the purpose of the 1967 amendment, judicial comment in Koowarta and Tasmanian Dams and the interpretative approach of Justice Kirby, there is powerful argument that the race power would not support the withdrawal of the protection of the rights of Aboriginal people. Accordingly, the race power would only support beneficial laws.
The whole issue of the scope and meaning of s. 51(xxvi) is currently under consideration in a case before the High Court concerning the validity of the Hindmarsh Island Bridge Act 1996. [59] The significance of the argument that the race power must be exercised beneficially is that, in the absence of another head of power, the Commonwealth Parliament would not be able to make a "special law" for a racial group that is detrimental to that group.
This argument has a number of important implications for native title and the Commonwealth's ability to amend the NTA. Essentially, it supports the contention that if the NTA, as amended, cannot be characterised a law for the benefit and or advancement of indigenous Australians, it is invalid or any such parts severable are. It is my view that because of the detrimental nature of the Bill, it can not be characterised as a "special law" for indigenous people. In view of the undeniable uncertainty in this area of the law, the Bill cannot deliver certainty.
When considering constitutional issues it is important to note, without considering them in detail, that there may be other restraints on the Commonwealth's power to enact laws under s. 51(xxvi) in form of other express or implied guarantees in the Constitution. In Kruger v Commonwealth, Justice Gaurdon suggests that the heads of power in the Constitution do not extend to laws authorising gross violations of human rights and dignity, as recognised in international human rights instruments and the common law. [60]
The guarantee of equality of all people, which arises either expressly through the operation of s. 117 or by implication in the Constitution, remains the subject of debate. In Leeth, Justices Deane and Toohey in a dissenting judgment considered that there was a guarantee of equality of all persons under the common law and by necessary implication in the Constitution. The guarantee operates as a restraint on the Commonwealth's power to legislate in a way which undermines equality. They said that laws which discriminate may do so only to the extent that there are rational and relevant grounds for discrimination. [61] In the same judgment, Justices Brennan and Gaudron also recognised the importance of the principle of equality before the law. [62]
Despite criticism by fellow judges, [63] Justice Toohey continues to assert the inherent equality of people governed under the Australian Constitution in Kruger v Commonwealth.64 He specifically referred the operation of the race power and noted that s. 51 (xxvi) necessarily authorises discriminatory treatment of members of a particular race to the extent that the discriminatory treatment is reasonably capable of being seen as appropriate and adapted to the circumstances of that particular racial group. He said that this proposition is one which supports the enactment of laws which discriminate beneficially. [65] A law which is appropriate and adapted is one which is proportional to achieving the object or purpose of the legislative head of power. [66] The "proportionality" issue should be considered where an enactment interferes with an implied constitutional guarantee. In the context of the NTA and recognition of equality before the law, it must be asked if the proposed amendments to the NTA are reasonably capable of being seen as necessary, appropriate and adapted to the circumstances of Aboriginal people.
Generally, all the measures contained in the Bill, if enacted, will be subsequent specific enactments and will override the RDA. Section 7(1) of the NTA currently states "[n]othing in this Act affects the operation of the Racial Discrimination Act 1975." Subsection 7(2) contains an exception in relation the validation of "past acts".
In Western Australia v Commonwealth the High Court observed that subs. 7(1) provides no basis for interpreting the NTA as subject to the RDA and that both Acts:
... emanate from the same legislature and must be construed so as to avoid absurdity and to give to each of the provisions a scope for operation ... The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. [67]
What subs. 7(1) of the NTA ensures is that the Act is not construed as impliedly repealing the RDA. The NTA covers the field in matters pertaining to native title while the RDA continues to operate on matters outside the scope of the NTA.
Currently, the NTA and the RDA are complimentary pieces of legislation insofar as both provide legal protection and standards for dealing with native title. The NTA provides more elaborate protection than the RDA as it is "purpose built" to deal with native title and the issues around it. The majority of the High Court observed in Western Australia v Commonwealth that the regime established by the Native Title Act is "more specific and more complex than the regime established by the Racial Discrimination Act." [68]
One matter that has been raised by a number of eminent lawyers is that the discriminatory nature of an enactment (such as the Bill) could affect the enactment's constitutionality and that of the RDA. Mr John Basten QC observed last year in his evidence to the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund that:
... the Racial Discrimination Act ... does not arise under any specific constitutional head of power in Section 51 [of the Constitution]. It relies on the external affairs power and gives effect to the Convention [on the Elimination of All Forms of Racial Discrimination]. As I am sure you all are aware, that is a very special form of legislative power, because the Parliament does not in effect have power to enact laws with respect to racial discrimination but only to give effect to the Convention. Immediately one starts to interfere with the scope, purpose and the intent of the Racial Discrimination Act, there is a very live danger that the High Court will at some stage say, "the Act no longer accords sufficiently closely to the terms of the Convention and, therefore either the amendments to it express or implied will be invalid or the whole Act itself will be invalidated." So that is my concern about fears arising in relation to implicit amendment to the RDA by later legislation. It is not a fear which would arise normally in relation to a principle which we all accept, that later legislation can impliedly repeal or vary earlier legislation. [69]
Currently, Indigenous peoples in Australia are looking at the possibility of losing many protections necessary for the recognition of our rights to land. If the Bill is enacted it will be a severe set back for the indigenous peoples of Australia. It is no exaggeration to say that it will signify a return to terra nullius and the institutionalisation of discrimination in Australia's legal and administrative systems.
The current debate over pastoral leases highlights the precarious situation of indigenous peoples' rights and the need for their effective protection. If the Bill is enacted without substantial ameliorating amendments, the Australian political process will be shown to be deficient in a fundamental sense as it will have allowed the abrogation of the human rights of Australia's indigenous peoples. It would diminish Australia's standing as a nation and send a clear message, both domestically and internationally, concerning our national values.
This possibility emphasises the need for entrenched constitutional protection of human rights and indigenous rights. Perhaps it is ironic to note that a former Chief Justice of the High Court, Sir Harry Gibbs, considered the race power would allow the Parliament to enact a bill of rights for people of a particular race. [70] Such use of the race power would fulfill the purpose of the 1967 Referendum. It would be the bitterest irony if the power were used to strip Aboriginal and Torres Strait Islander peoples of their legitimate rights.
[2] The Prime Minister, the Hon. J. Howard, MP, stated in reply to a question from Mr Daryl Melham MP, "the Government has no intentions to introduce amendments to the RDA": Hansard, House of Representatives, 6 May 1996, p. 346.
[3] Working draft of 25 June 1997.
[4] Daes E, Human Rights and Indigenous peoples - Indigenous Peoples and Their Relationship to Land, preliminary working paper, 20 June 1997, E/CN.4/Sub.2/1997/17, para. 24.
[5] Ibid, para 48.
[6] Ibid, para 37.
[7] For example: Universal Declaration of Human Rights, Articles 2, 7 and 17; International Covenant on Civil and Political Rights, Articles 2, 26 and 27; Proclamation of Tehran, Item 1; International Convention on the Elimination of All Forms of Racial Discrimination, Article 2; Convention on the Rights of the Child, Article 2.
[8] Brownlie I, Principle of Public International Law, 4th ed, Clarendon Press, 1990, p. 513; McKean W, Equality and Discrimination under International Law, 1st ed, Clarendon Press, 1983, p. 277; Judge Tanaka, South West Africa case (second phase) ICJ Reports (1966) 298; Judge Ammoun, Barcelona Traction case (second phase) ICJ Report (1970) 304; Judge Ammoun, Namibia Opinion ICJ Report (1971) 78-81.
[9] ICJ Reports (1970) 3, p. 32.
[10] See generally: McKean W, Equality and Discrimination under International Law, op cit, Chs 1 and 2; Vierdag, The Concept of Discrimination in International Law, Martinus, The Hague, 1973, Ch 6.
[11] Minority Schools in Albania PCIJ Series A/B No. 64 (1934), p.17.
[12] ICJ Reports 1966 248.
[13] ICJ Reports 1966 305.
[14] ICJ Reports 1966 305.
[15] ICJ Reports (1966) 305.
16. McKean W, Equality and Discrimination under International Law, op cit, p. 288; see also Vierdag, The Concept of Discrimination in International Law, op cit, p. 165.
[17] O'Flaherty M, The International Convention on the Elimination of All Forms of Racial Discrimination: the Substantive Provisions, paper presented at the "United Nation Human Rights Procedures and Indigenous Australians" Conference, Sydney, 28-30 June 1995, p. 8.
[18] [1985] HCA 11; (1985) 159 CLR 70.
[19]
Report of the Committee on the Elimination of All Forms of Racial
Discrimination, Official Records of the General Assembly,
48th Session,
Supplement No. 18 (A/48/18), p. 115.
[20] Mr P P McGuinness stated "[N]ative title is inherently discriminatory, since it can only be vested in Aboriginal communities. By contrast, individual title to land, like Torrens title ... is non discriminatory ... the race discrimination legislation as it now stands makes it impossible to make general rules regarding native title which may be seen as in any way restrictive of it.": "Native Title and discrimination", Sydney Morning Herald, 25 January 1997, p. 36.
[21] Senator the Hon Nick Minchin, Sydney Morning Herald, 1 June 1996, p. 138.
[22] The Attorney-General and Minister for Justice, the Hon Daryl Williams AM QC MP, Second Reading Speech, Native Title Amendment Bill 1996, p. 17. This is discussed further in Ch 5 of the report.
[23] Hansard, Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Wednesday, 27 November 1996, p. NT3599.
[24] [1985] HCA 11; (1985) 159 CLR 70.
[25] See: Brownlie I, "The Rights of Peoples in International Law", op cit, p. 9; Nettheim G, "Indigenous Rights, Human Rights and Australia", (1987) 61 Australian Law Journal 291, p. 299; Sadurski W, "Gerhardy v Brown: Reflections on a landmark case that wasn't", (1986) 11 Sydney Law Review, p. 30; Pritchard S, "International Law" in Aborigines and Torres Strait Islanders, Laws of Australia, Law Book Company, 1993, pp. 34-5.
[26] [1995] HCA 47; (1995) 183 CLR 373.
[27] [1995] HCA 47; (1995) 183 CLR 373 at 483.
[28] Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1; 2(1) AILR 35; 71 ALJR 173; 141 ALR 129.
[29] Mabo v Queensland (No. 1) (1988) 166 CLR 186 at 218.
[30] Daes E, Human Rights and Indigenous peoples - Indigenous Peoples and Their Relationship to Land, op cit, para. 33.
[31] Ibid, para 16.
[32] Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 at 112.
[33] For a discussion of the recognition and protection afforded native title by the NTA see Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 452-63.
[34] Mabo (v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 at 112.
[35] Bartlett R, "Wik: Equality and the fallacy of "extinguishment", Indigenous Law Bulletin, vol. 4, Issue 1, April 1997, p. 12. This issue is discussed further in Ch 3 of the report.
[36] Western Australia v Commonwealth, [1995] HCA 47; (1995) 183 CLR 373 at 483.
[37] See Ch 5 of the report for a discussion of these issues.
[38] Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455.
[39] Mabo v Queensland (No. 1) (1998) 166 CLR 218 at 218.
[40] Western Australia v Commonwealth, [1995] HCA 47; (1995) 183 CLR 373 at 418.
[41] Lane B, "Reserving Judgment", The Weekend Australian, 16-17 August 1997, p. 24.
[42] See the discussion of the proposed amendments to the future acts' regime in Ch 5, above.
[43] Section 80, Native Title Amendment Bill 1997.
[44] This issue is discussed in Ch 4 of the report.
[45] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.
[46] Quick J and Garran R, The Annotated Constitution of the Australian Commonwealth, Legal Books, Sydney, 1976, p. 622.
[47] See Sadler R J, "The Federal Parliament's Power to make Laws `with Respect to ... the People of any Race ... .'" [1985] SydLawRw 6; (1982) 10(2) Sydney Law Review 591.
[48] Constitution Alteration (Repeal of Section 127) Bill 1965.
[49] Sadler R J, "The Federal Parliament's Power to make Laws `with Respect to ... the People of any Race ...'", op cit, note 45 at 594.
[50] Later, the Hon Billy Wentworth MP was the Minister for Social Services and the first Minister for Aboriginal Affairs between 1968-72.
[51] Hansard, House of Representatives, 1967 pp. 54, 281.
[52] As cited in F Brennan, "The Will of the People in 1967 and the Law of the Land in 1997", paper prepared for Aboriginal Nations and the Australian Constitution Conference, Old Parliament House, Canberra, 23 May 1997, p. 8.
[53] F Brennan, "The Will of the People in 1967 and the Law of the Land in 1997", op cit, p. 3.
[54] (1982) 158 CLR 168 at 242 and noted by Gaudron J in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 56.
[55] Koowarta, at 210. In Western Australia v Commonwealth[1995] HCA 47; , (1995) 183 CLR 373, at 460, the Court noted Stephen J's comments and qualified the extent to which the Court was required to evaluate the needs of the people of a race or of the threats or problems of the people of a particular race in determine whether the law was "necessary". The Court considered that this would involve a political judgment and that was a matter for the Parliament not the Court.
[56] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 ("Tasmanian Dams" case).
[57] Tasmanian Dams case.
[58] Newcrest Mining (WA) Ltd v Commonwealth (unreported 14 August 1997, High Court of Australia, Kirby J at 160).
[59] Doreen Kartinyeri and Neville Gollan v Commonwealth, High Court of Australia, No. A29 of 1997.
[60] Kruger v Commonwealth [1997] HCA 27; (1997) 146 ALR 126 at 190 ("Kruger v Commonwealth") where her Honour's discussion was in the context of the operation of s. 122 of the Constitution and whether it could support a law authorising acts of genocide. She said that acts of genocide are so fundamentally abhorrent to the principles of common law, that it would be impossible to construe s. 122 as extending to laws of that kind. While she did not discuss other legislative powers, but it is open to argue that this principle would apply to all heads of power in the Constitution, especially s. 51(xxvi).
[61] Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455 at 488-9.
[62] Ibid at 475 and 502.
[63] Kruger v Commonwealth, [1997] HCA 27; (1997) 146 ALR 126 at 155-9 per Dawson, J, 227-8 per Gummow J; although Gaudron J does provide some support for a limited guarantee of equality at 194-5.
[64] Ibid at 179.
[65] Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455 at 489 and repeated in Kruger v Commonwealth, op cit, at 181.
[66] See Leask v Commonwealth [1996] HCA 29; (1996) 140 ALR 1 at 9 per Brennan CJ, 13-17 per Dawson J, at 24-6 per Toohey J, 41-2 per Kirby J.
[67] Western Australia v Commonwealth, op cit, p. 62.
[68] Ibid, at 41.
[69] Hansard, Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Wednesday, 27 November 1996, p. NT3609.
[70] Sadler at 612 referring to Sir Harry Gibbs, "The Constitutional Protection of Human Rights" (1982) 9 Monash Law Review 1 at 9.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1998/34.html