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Indigenous Rights Under the Australian Constitution

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Indigenous Rights Under the Australian Constitution INDIGENOUS RIGHTS UNDER THE AUSTRALIAN CONSTITUTION: A Reconciliation Perspective PhD Thesis Justin Malbon August, 2002 Thanks I am indebted to my supervisor Professor Garth Nettheim for the advice and assistance he has provided me in the writing and researching of this thesis. His advice that I take a reconciliation approach to the topic was particularly valuable. I wish also to thank a number of my colleagues at the Law School, Griffith University for the ideas they have helped me to develop over cups of coffee, and the suggestions for revisions they have provided to draft chapters. In particular I am truly grateful to Dr John Touchie for our many conversations on constitutional rights which assisted me in the writing of the final two chapters. He also introduced me to Hayek, who is someone I would otherwise not have thought to have been a useful source for this topic. I also thank Shaunnagh Dorsett who helped me formulate ideas in the early stages of the thesis, again over a number of cups of coffee. Thanks also go to Dr Geoff Airo-Farulla for reading and commenting on an early draft of chapter 4. Special thanks go my family; Juliet, Ben, Isaac and Joel. They frequently asked whether I had finished yet, and I regularly responded by saying “It will be soon”! Page iii Abstract This thesis examines the possibilities for building a reconciliatory jurisprudence for the protection of indigenous rights under the Australian Constitution. The thesis first examines what could be meant by the term “reconciliation” in a legal context and argues that it requires (1) acknowledgement of and atonement for past wrongdoing, (2) the provision of recompense, and (3) the establishment of legal and constitutional structures designed to ensure that similar wrongs are not repeated in the future. The thesis focuses on the last of these three requirements. It is further argued that developing a reconciliatory jurisprudence first requires the courts to free themselves from the dominant paradigm of strict positivism so that they are liberated to pay due regard to questions of morality. Given this framework, the thesis then sets out to examine the purpose and scope of the race power (section 51(xxvi)) of the Australian Constitution, with particular regard to the case of Kartinyeri v Commonwealth in which the High Court directly considered the power. The thesis concludes that the majority of the Court had not, for various reasons, properly considered the nature of the power. An appropriate ruling, it is argued, should find that the power does not enable Parliament to discriminate adversely against racial minorities. The thesis then proceeds to consider whether there are implied terms under the Constitution that protect fundamental rights. It is argued that these rights are indeed protected because the Constitution is based upon the rule of law. In addition constitutional provisions are to be interpreted subject to the presumption that its terms are not to be understood as undermining fundamental rights unless a constitutional provision expressly states otherwise. The thesis also considers whether Page 1 there is an implied right to equality under the Constitution. The conclusion drawn is that such a right exists and that it is both procedural and substantive in nature. Page 2 Statement of Candidate I hereby declare that this submission is my own work and to the best of my knowledge it contains no material previously published or written by another person, nor material which to a substantial extent has been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project’s design and conception or in style, presentation and linguistic expression is acknowledged. Signed Justin Malbon Page 3 Table of Contents Abstract..................................................................................................................................1 Statement of Candidate........................................................................................................3 Table of Contents..................................................................................................................4 Chapter 1: INTRODUCTION..........................................................................................7 PART 1: SETTING THE SCENE................................................................................19 Chapter 2: Reconciliation.................................................................................................21 1. Introduction......................................................................................................... 21 2. The law’s interest in reconciliation............................................................. 23 3. What is reconciliation?.................................................................................... 31 (a) Acknowledgement and Atonement...................................................................................35 (b) Reparation .................................................................................................................................37 (c) Establishing constitutional structures and rights....................................................45 4. Conclusion........................................................................................................ 55 Chapter 3: Natural and Positive Law Influences on the Law Affecting Australia’s Indigenous People ..............................................................................................................57 1. Introduction......................................................................................................... 57 Degree of influence...........................................................................................................................59 2. Defining terms: natural law / positivism.................................................. 61 (a) “Natural law”.................................................................................................................................62 (b) “Positivism” ...................................................................................................................................64 3. Natural law influences at time of colonial acquisition ........................ 71 (a) Natural law influences on the development of international law ..........................71 (b) An analysis of Blackstone’s influence...............................................................................76 (c) Natural law influences during early Australian colonisation...............................80 4. The rise of the positivist influence............................................................. 85 Positivist influences on concept of sovereignty.....................................................................89 5. Positivist and natural law influences in Mabo (No.2) ............................ 96 6. Conclusion............................................................................................................ 102 Page 4 PART 2:.............................................................................................................................103 Chapter 4: Avoiding the Hindmarsh Island Bridge Disaster: Interpreting the race power..................................................................................................................................105 1. Introduction....................................................................................................... 105 2. Interpretation methods and canons ......................................................... 112 (a) Originalism ..............................................................................................................................114 (b) Extreme originalism.............................................................................................................115 (c) Textualism ...............................................................................................................................116 (d) Extreme Textualism.............................................................................................................118 (e) Progressivism..........................................................................................................................119 3. Brennan CJ and McHugh J’s application of an interpretation canon in Kartinyeri.............................................................................................................. 120 (a) A strange turn of logic: The use and abuse of the Amending Rule..................121 (b) A restricted characterisation of the Bridge Act.........................................................125 (c) Conclusion...............................................................................................................................128 4. Interpreting the meaning and scope of s 51(xxvi)........................... 129 (a) The Reasoning of Gummow and Hayne JJ: A retreat into textualism............130 (b) Gaudron J – A minimalist amendment........................................................................138 (c) Kirby J – Putting the words in social and historical
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