HarvardCRCL.org continues to feature editorial posts written by CR-CL’s new General Board members. Today’s post contrasts the U.S. approach to constitutional equal protection with that available to protect Indigeneous Australians.

In 2010, the Australian Government announced the appointment of an expert panel to explore and present to government options for amendments to the Australian Constitution with a view to increase constitutional recognition of Indigenous Australians. However, the government did not proscribe whether the amendments should be preambular and symbolic, or textual and substantive. As a result, much of the debate regarding possible amendments has focused on whether any change should or should not grant particular or general civil rights to Indigenous Australians.

U.S. jurisprudence has dealt with constitutional rights since the enactment of the U.S. Constitution. In contrast, it was explicitly decided by the framers of the Australian Constitution to not include a similar Bill of Rights, although the American notions of judicial review, separation of powers, and federalism were incorporated. Accordingly, throughout Australian history courts have rarely acted to protect civil rights on the basis of constitutional interpretation. Any rights protections have either been based in legislation (often incorporating international law into domestic law) or on traditional common law presumptions.

I would argue that this method of rights protection has been largely inadequate to protect Indigenous Australians from breaches of their civil rights, particularly in regards to equal protection and racial discrimination. The federal government’s enumerated powers include the power to pass laws “with respect to… the people of any race for whom it is deemed necessary to make special laws.” s.51(xxvi). The High Court of Australia has read this provision as meaning the legislature may pass laws both for the benefit and to the detriment of Indigenous Australians or other races.  See Kartinyeri v Commonwealth (1998) 195 CLR 337). Former High Court Justice Michael Kirby has stated that this places Australia in the unenviable position of being the only country in the world that explicitly allows the legislature, under its constitution, to pass racially discriminatory legislation.

The Racial Discrimination Act 1975 (Cth) (RDA) incorporates key elements of the International Convention for the Elimination of All Forms of Racial Discrimination into Australian law. However, without constitutional force, the legislature may suspend the operation of the RDA if it wishes to pass otherwise racially discriminatory laws. While convention for a period restrained the legislature from doing so, in 2007 Parliament suspended the operation of the RDA in passing racially discriminatory legislation in the Northern Territory that, among other things, restricted the payment of welfare to and compulsorily acquired communal title from Indigenous people living in that area.

In conclusion, it may be worthwhile for the expert panel to examine the operation of the Equal Protection Clause of the US Constitution and to consider whether a similar provision should be inserted into the Australian Constitution so that legislation based on racial classifications is held to strict scrutiny.