Labor, the External Affairs Power and the Rights of Aborigines David Lee* Rights of Aborigines The Australian Constitution gave the Commonwealth not a “treaty power” but a vague power over “external affairs,” the precise meaning of which was elusive for most of the twentieth century. From the 1930s, Labor judges and politicians such as H. V. Evatt saw its potential to extend Commonwealth power by legislating interna- tional agreements throughout Australia. The non-Labor parties rejected the idea of using the “external affairs” power to legislate in areas formerly the responsibility of the states but the federal Labor Party continued in the Evatt tradition. After significant uncertainties, the Whitlam government used the external affairs power to pass the Racial Discrimination Act 1975, the first significant human rights legislation in the country, which in turn had a profound effect on the law of the land in the country by making the second Mabo Case possible. Keywords: External Affairs; Racial Discrimination; Racial Discrimination Act; Aborigines; Constitution; Australian Labor Party; Whitlam Government; Native Title; Mabo Since the High Court’s overturning of the doctrine of terra nullius in the early 1990s, historians, lawyers and political scientists have given considerable attention to the struggle that led to that landmark decision. Taking a longer view, several historians have charted the struggle for rights for Aborigines in Australia. Constitutional lawyers, too, have demonstrated the importance of the Constitution’s external affairs power in allowing the Australian government to use treaty commitments to override the states in areas such as the environment and human rights. The purpose of this article is to bring together historical and legal scholarship about some of the most important rights for Aborigines. Specifically, this article traces the thread from the Commonwealth’s “external affairs” power to the gradual development in the Australian Labor Party (ALP) of a radical view about how the power could * The author would like to thank Labour History’s two anonymous referees as well as Adam Henry, James Cotton, Frank Bongiorno and Roderic Pitty, who all participated in a conference on the Whitlam Legacy at the Whitlam Institute on 21 November 2018. Labour History, Number 120 (May 2021): 49–68 https://doi.org/10.3828/jlh.2021.4 © 2021 Australian Society for the Study of Labour History ISSN 0023-6942 50 Labour History • Number 120 • May 2021 be used. It then demonstrates the importance of the Whitlam government’s Racial Discrimination Act 1975 in establishing protection against discrimi- nation in Australian law and in paving the way for the Mabo decision of the early 1990s. Thus, the establishment of some of the most important rights for Australian Aborigines in the period since 1975 has come from international human rights agreements, the Commonwealth of Australia’s adherence to them and the federal ALP’s determination to override the Australian states in legislating for them. Without these international agreements and Labor’s use of the external affairs power to convert them into law, these rights may never have been won. Federation and the Commonwealth’s Power over “External Affairs” When the six British colonies in Australasia federated in 1901, the Commonwealth of Australia became a self-governing dominion. While fully self-governing in respect of internal matters, the Commonwealth of Australia was dependent on the UK in making treaties from which, like the colonies earlier, it could opt in or out. In the debates on the making of the Constitution in the 1890s some had suggested giving the Commonwealth of Australia a treaty power.1 The Colonial Office thought that this would be unwise and inconsistent with Australia’s status as a dependency. Edmund Barton, who was to be Australia’s first Prime Minister, agreed.2 In the end, the view of the Colonial Office and Barton won. The Australian Constitution, drafted by Australian delegates and enshrined in an imperial Act, gave the Commonwealth of Australia in s 51(29) power to legislate with respect to “external affairs.” What this phrase meant was not clear and Quick and Garran, in their commentary on the Constitution, observed that: There is nothing in it indicative of an intention of the Imperial Parliament to divest itself of all authority over the external affairs of Australia and to commit them exclusively to the Parliament of the Commonwealth, any more than it divests itself absolutely of any other of its supreme sovereign powers.3 On 28 May 1901 Alfred Deakin, Attorney-General in Barton’s government, gave an opinion on the “external affairs” arguing that: 1. See generally Gunther Doeker, The Treaty-Making Power in the Commonwealth of Australia (The Hague: Nijhoff, 1966). 2. J. A. La Nauze, The Making of the Australian Constitution (Carlton: Melbourne University Press, 1972), 184, 251–52. 3. John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth Part 1 (Sydney: Angus and Robertson, 1901), 631. Lee • Rights of Aborigines 51 The Empire as a sovereign independent state possesses full contracting powers which are exercised by the Imperial Government alone. The Commonwealth has no treaty powers of any kind under its Constitution and being a dependency can acquire none save those with which it may be specially endowed from time to time.4 Deakin’s main point was that henceforth only the Commonwealth and not the states could speak for the nation and that the “Colonial Office should think in terms of the Commonwealth, rather than the separate states, when designating dependencies as adherents to a treaty entered into by the Imperial government.”5 For Barton and his colleagues, the phrase “external affairs” implied little more than Australia’s relations with the UK.6 Over the course of the twentieth century, Australia gradually became a nation state with its own “international personality,” gaining legislative independence, the capacity to make international agreements, and the wherewithal to exchange diplomatic representatives with foreign powers.7 Australia’s progress toward national independence, however, left uncertain the scope of the external affairs power until as late as the 1980s. There were three reasons for this uncertainty. One was that Australia’s national independence came about more from the evolution of public opinion than legal device.8 Some of Australia’s first independent foreign policy actions, such as appointing diplomats to foreign countries, making treaties or declaring war, were executive and not dependent on legislation.9 4. Attorney-General’s Department, Opinions of Attorneys-General of the Commonwealth of Australia: Volume 1, 1901–1914, Opinion 2 (Canberra: Australian Government Publishing Service, 1981), 2. 5. Colin Howard, Australian Federal Constitutional Law (Melbourne: The Law Book Company, 1985), 496. 6. W. G. McMinn, Nationalism and Federalism in Australia (Melbourne, Oxford University Press, 1994), ch. 14; W. J. Hudson and M. P. Sharp, Australian Independence: Colony to Reluctant Kingdom (Carlton: Melbourne University Press, 1988), 30–33. 7. Hudson and Sharp, Australian Independence; D. P. O’Connell, “The Evolution of Australia’s International Personality,” in International Law in Australia, ed. D. P. O’Connell (Sydney: Law Book Co., 1966); K. C. Wheare, The Statute of Westminster and Dominion Status (London: Oxford University Press, 1953); Melissa Conley-Tyler, Emily Crawford and Shirley V. Scott, “The Emergence of Australia’s International Personality: Historical, Legal and Policy Perspectives,” in International Law in Australia, ed. Donald R. Rothwell and Emily Crawford, 3rd edn (Pyrmont: Thomas Reuters Professional, 2017); Leslie Zines, “The Growth of Australian Nationhood and its Effect on the Powers of the Commonwealth,” in Commentaries on the Australian Constitution, ed. L. Zines (Sydney: Butterworths, 1977), 1–49. 8. The exception was the Statute of Westminster 1931 but this was not ratified by Australia until 1942 largely because of Commonwealth–state disputation. See David Lee, “States Rights and Australia’s Adoption of the Statute of Westminster,” History Australia 13, no. 2 (2016): 258–74. 9. Howard, Australian Federal Constitutional Law, 490–91. 52 Labour History • Number 120 • May 2021 Australia became an independent nation state by the 1940s without the Commonwealth’s constitutional power over “external affairs” needing to be tested. A second reason for the continuing uncertainty was that treaties did not themselves change laws. If a change in the law was required by a treaty it had to be done by the appropriate parliament.10 When the UK and later the Commonwealth of Australia made treaties, their subject matter was often within the jurisdiction of the states. It was for this reason that the South Australian Premier argued in the 1902 Vondel Case that while the treaty power resided in London, its mechanical operation was through the states.11 A third reason was that for many decades after federation, the states argued that they retained at least some powers to make international agreements. They also continued to appoint agents-general in London and other representatives overseas.12 Even in the period of the Whitlam Labor government from 1973 to 1975, the scope for states to make international agreements was raising problems for the Commonwealth. This was evident when a senior official from the Department of Foreign Affairs found it necessary to recommend to the Prime Minister’s Department