Social powers marriage and divorce: pensions, benefits and health services: people of any race

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1 PART C ADDENDUM 1 Social powers marriage and divorce: pensions, benefits and health services: people of any race KEY CONCEPTS The Commonwealth Parliament has power to make laws with respect to marriage and divorce and has exercised those powers. There are many complications about the custody of children who are not the children of both parties to a marriage, but these complications have been largely resolved by the states referral of power to the Commonwealth. There are dicta both for and against the proposition that the Commonwealth could make laws recognising same-sex marriage. The Commonwealth Parliament also has power to make laws for the provision of a wide range of pensions, benefits and health services. In so far as its laws affect the provision of health services, the Commonwealth cannot impose civil conscription, but it can impose many conditions on practitioners by way of providing benefits to their patients. The Commonwealth Parliament also has power to make laws for the people of any race for whom it is deemed necessary to make special laws. An exception for the aboriginal race in any State was removed by referendum in The power does not extend to the making of a general law to prevent racial discrimination (that was done under the external affairs power) but laws made under this power to protect Aboriginal cultural sites, and to recognise and regulate the grant of native title, have been held to be valid. Whether the power could still be used, as was originally intended, to make laws to the detriment of the people of a race is a matter on which, so far, the High Court has not reached agreement. 1.1 Context and overview The next group of powers are what could be called social powers ; they regulate the social institution of marriage or provide benefits, services or protection for people. The drafters of the Constitution left most of the social functions of 1

2 CONSTITUTIONAL LAW government public schools, hospitals and health clinics to the states (not that they reserved them; they just did not give relevant powers to the new Commonwealth). There were two exceptions: they gave powers to make uniform marriage and divorce laws to the Commonwealth, because the lawyers among them knew how much chaos the existence of separate (and widely different) state laws had created in the United States and they gave the Commonwealth the power to pay old age and invalid pensions. Pensions were quite a recent social innovation at the time and their inclusion in the Commonwealth powers was seen as a very progressive step. The inclusion of a power to make special laws for the people of any race, however, was not intended to be progressive, except in that it might increase wages for white workers; it was expected that it would be used to limit the rights of Chinese and South Sea Islanders to work in Australia and perhaps to deport them. Laws about the Aboriginal race in any state were excluded from the race power because it was believed at the time that state Aboriginal protection laws were working quite well. By the mid- to late twentieth century, the Australian people were persuaded that they needed to give the Commonwealth Government a wider range of helping powers. In two of the more significant amendments that have been approved by referendum, paragraph (xxiiia) was added in 1946, to add to the list of pensions and other benefits and services that the Commonwealth could provide. The exception as to the aboriginal race was removed from the race power in 1967 in the hope that Commonwealth laws would be more beneficial to the indigenous people than the state laws, which by then were seen as inadequate Marriage, divorce and matrimonial causes Section 51 includes the following paragraphs: (xxi) marriage; (xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants. Despite the expectations of the drafters, the Commonwealth did not use these powers for half a century, until it enacted the Matrimonial Causes Act 1959, creating uniform divorce laws, and the Marriage Act The central provisions of the two Acts, providing respectively for divorce and marriage, are clearly valid, but there have been doubts, and therefore case law, about some of the incidental provisions. The first case gave the Commonwealth some cause for confidence in the breadth of these powers. The Marriage Act included sections legitimating children born to a couple before their marriage and creating an offence of bigamy. Victoria promptly challenged those sections, not, so it said, out of a petty concern for its powers, but to set at rest as soon as may be doubts which may now or years hence affect or attend the title to proprietary rights and other private rights ( Attorney-General (Vic) v Commonwealth [1962] HCA 37; (1962) 2

3 PART C ADDENDUM CLR 529 (the Marriage Act case ) per Dixon J at 539). By majorities of 4:3 and 6:1 respectively the sections were held valid, establishing that the power extends not just to capacity to marry and the forms of celebration of marriage, but to the consequences of the marriage. Menzies J observed at 572: The [marriage] power must extend to the mutual rights and obligations of spouses It would be quite unrealistic to construe s. 51 (xxi.) and (xxii.) together as according power to provide for the vows with which marriage shall begin and the grounds for divorce to bring it to an end but as having nothing to do with the obligations one to another of those who marry, the disregard of which obligations is the basis for divorce Interaction of the two paragraphs and gaps in the jurisdiction over custody 1 of children There are some complications caused by the overlaps between, and within, the two powers. In both the Matrimonial Causes Act 1959 and its replacement the Family Law Act 1975, the drafters tried to give courts the widest possible jurisdiction over a range of matrimonial causes without paying sufficiently pedantic attention to the words of the two paragraphs. Unfortunately, the phrase in relation to in para (xxii) suggested to the High Court that jurisdiction can only be given over custody and guardianship in reliance on that paragraph if it is incidental to a principal application for divorce or some other matrimonial cause ( Russell v Russell [1976] HCA 23; (1976) 134 CLR 495). The Court qualified the inconvenience of this ruling by also holding that para (xxi) is not limited by para (xxii), so jurisdiction over custody and guardianship matters could be created under the marriage power but then only if the children were children of the marriage. This created immense jurisdictional problems for couples having custody disputes over blended families (unless the non-biological parent had formally adopted a child) and even in a case where an apparent child of the marriage turned out, after blood-group testing, not to be the biological child of the father; Re F; Ex parte F [1986] HCA 41; (1986) 161 CLR 376. These problems could possibly have been avoided; it seems that once the emphasis had been placed on the marriage power, the legislative drafters did not exploit the full possible range of the divorce power. One might have thought, for example, that once the parents were divorcing, a dispute over the custody of any child who had been part of the household would be in relation to the divorce proceedings, but the jurisdictional provisions in the Act did not clearly pick this up as a separate basis of jurisdiction, and in Re F the High Court refused to read down an over-broad section to fit within the para (xxii) power. Even under the marriage power, the Court could have adopted the view expressed in dissent 1 T he Family Law Act 1975 now refers to parenting orders, dealing with the person or persons with whom a child is to live, as custody suggests ownership as one would own a chattel. However, custody will be used here as it is the word used in the Constitution and in the constitutional cases. 3

4 CONSTITUTIONAL LAW in Re F by Mason and Deane J, where their Honours suggested that there had been too much emphasis in the cases on whether there was an independent connection between marriage and children of [a] particular description and not enough on whether laws operated upon or affected the relationship or institution of marriage by creating rights and obligations arising directly from and by reference to that relationship or institution. Eventually, the problems were causing so much unnecessary distress to so many couples that they were largely resolved by references of power by the states for example the Commonwealth Powers (Family Law Children) Act 1990 (Qld). 2 A special aspect of parental custody was raised in Marion s case, Department of Health & Community Services v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218. The parents of an intellectually disabled child wanted to have her sterilised in her own interests (the word sterilised seems inadequate because a hysterectomy and ovariectomy were proposed, not just to prevent her from having children but also to prevent her from having to cope with all the bodily changes of adolescence). The Court held that: (i) under the law of tort and crime, parents could not make such a decision without a court order, (ii) that a provision of the Family Law Act gave the Family Court parens patriae jurisdiction under which the Court could approve the operation, and (iii) that the above provision was constitutionally valid as an exercise of the marriage power. This was confirmed in P v P [1994] HCA 20; (1994) 181 CLR 583; (1994) 120 ALR 545. As the parents in this case were divorced, the Court observed that the jurisdiction to make the orders might be based on either the marriage power or the divorce and matrimonial causes power Jurisdiction to adjust property rights The other kind of order frequently made in conjunction with divorce proceedings is one to adjust property rights between couples. Again the relevant clause of the definition of matrimonial causes in the Act was drawn without sufficient attention to the words of the Constitution, and in Dougherty v Dougherty [1987] HCA 33; (1987) 163 CLR 278, the High Court held that it must be read down to apply only to a claim based on circumstances arising out of the marriage relationship and not to cover claims grounded solely in contract or tort or equity or otherwise arising by reason of a relationship, for example of partnership, where the marriage relationship is purely coincidental. In that case, the jurisdiction was held to potentially extend to a claim by the son of the marriage for recognition of an agreement that he would take certain property, as long as 2 Western Australia is the exception; as allowed by the Family Law Act 1975 (Cth), it has established its own Family Court, which exercises jurisdiction over all family matters whether regulated by Commonwealth or state law. 4

5 PART C ADDENDUM 1 he could establish that his claim arose out of, or had sufficient connection with, the marriage relationship. Unless the marriage power can be interpreted even more broadly than the broadest suggestion in Part C: Addendum below, it does not extend to defining the consequences of an informal marriage-like relationship, and divorce and matrimonial causes presupposes the existence of a formal marriage. So for some time there was a difference between the rights of couples in or after the break-up of a de facto relationship and those in or after a formal marriage. For divorcing couples the Family Court could adjust property rights, to reflect the fact that one spouse may have been accumulating property while the other kept house and/or cared for children, while all that the state courts could do after the break-up of a de facto relationship was to declare who owned what at law or in equity. In the 1980s and 1990s, some states enacted their own laws about property disputes between de factos, 3 making provisions similar to those in the Family Law Act, and in all states except Western Australia referred power to the Commonwealth, 4 so that de factos property disputes are now dealt with in the Family Court Can the Commonwealth change the definition of marriage? It is still taken for granted in our legal system that marriage is the voluntary union for life of one man and one woman, to the exclusion of all others. Lord Penzance stated this in Hyde v Hyde (1866) LR 1 P&D 130 at 133 and then cut some of the ground out from under his conclusion by saying But there is no magic in a name. His Lordship s definition is restated in s 5 of the Marriage Act When the drafters included the word in the Constitution, they were no doubt thinking only of monogamous, heterosexual marriage. However, we saw in that the meaning of aliens has changed and that of patents of invention has expanded as the world has changed; could the power now extend to laws for same-sex marriage? Brennan J presented the conservative argument in Fisher v Fisher [1986] HCA 61; (1986) 161 CLR 438 at 456: Marriage is a social and legal institution. For many, marriage is also, and primarily, a sacrament or an institution of religious significance, but it is in the character of a legal institution that marriage is a subject of legislative power conferred on the Parliament by s.51(xxi) of the Constitution. A power to make laws with respect to a legal institution is not like a power to make laws with respect to many of the other heads of power contained in s.51. Although the nature and incidents of a legal institution would ordinarily be susceptible to change by legislation, constitutional interpretation of the marriage power would be an exercise in hopeless circularity if the Parliament could itself 3 E.g. the Property (Relationships) Act 1984 (NSW). 4 E.g. the Commonwealth Powers (De Facto Relationships) Act 2003 (Qld). 5

6 CONSTITUTIONAL LAW define the nature and incidents of marriage by laws enacted in purported pursuance of the power. The measure of the legislative power cannot be determined by reference to the occasions of its purported exercise. The nature and incidents of the legal institution which the Constitution recognizes as marriage and which lie within the power conferred by s.51(xxi) are ascertained not by reference to laws enacted in purported pursuance of the power but by reference to the customs of our society, especially when they are reflected in the common law, which show the content of the power as it was conferred. However, the customs of our society are changing and indeed have been changing ever since the European settlement of Australia. Clearly the for life part of the Hyde v Hyde definition is not a timeless part of the meaning, because divorce has been possible for over a century in Australia. The restatement of the definition in the Marriage Act 1961 was an empty, or even hypocritical, gesture because the Commonwealth s own Matrimonial Causes Act 1959 had commenced a few months earlier in The actual decision in Hyde v Hyde, that a Mormon marriage could not be recognised by the English courts (even for the purpose of dissolving the marriage) because it was potentially polygamous (even though it was the first marriage for both parties) has been subverted by s 7 of the Family Law Act 1975, which provides that the Act applies to polygamous 5 unions entered into outside Australia. In cases where general principles of interpretation have been discussed, marriage has been used as an example of a concept that is changing. Even in 1908, Higgins J used the marriage power as an example of a power that should not be limited by earlier understandings of what constituted a legal marriage ( Union Label Case [1908] HCA 94; (1908) 6 CLR 469). In Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511, McHugh J observed at [45] that: many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered. In [some] cases, the test is simply: what do these words mean to us as late 20th century Australians? Such an approach accords with the recognition of Isaacs J in The Commonwealth v Kreglinger & Fernau Ltd that our Constitution was made, not for a single occasion, but for the continued life and progress of the community. 46 The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus, in 1901 marriage was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably marriage now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others. (Emphasis in original) 5 At the time, polygamy was part of the Morman doctrine and was current custom in the state of Utah, where the Hyde marriage had taken place. 6

7 PART C ADDENDUM 1 In Grain Pool of WA v Commonwealth [2000] HCA 14; 202 CLR 479, Kirby J claimed at [125] that it would be astonishing if expressions such as bankruptcy and insolvency, marriage and divorce and matrimonial causes were to be limited to the understanding which such concepts enjoyed amongst lawyers in 1900 or even [if] such concepts would be taken as an important point of reference for contemporary understandings. In Attorney-General (Cth) v Kevin and Jennifer [2003] FamCA 94; (2003) 172 Fed L Rep 300, the Full Court of the Family Court examined the meaning of man in the definition of marriage and held that it included a post-operative transsexual, but also opined at [100] that it is within the power of Parliament to regulate marriages within Australia that are outside the monogamistic Christian tradition. Now that civil partnerships can be registered in New South Wales, Tasmania, and Victoria, and the Australian Capital Territory and Queensland have registration systems that include the possibility of making a declaration before a notary 6 ( almost a marriage ceremony), it seems likely that the Commonwealth Parliament will eventually be bold enough to legislate to recognise same-sex marriage. Whether that will be held valid is, obviously, arguable either way Various pensions and benefits and the provision of health services 6 E.g. Civil Partnerships Act 2011 (Qld), s 11. Section 51 includes the following paragraphs: (xxiii) invalid and old-age pensions; (xxiiia) the provision of maternity allowances, widows pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances. The second paragraph was added by constitutional amendment in 1946, after the High Court had ruled the original Pharmaceutical Benefits Scheme invalid in Attorney-General (Vic); Ex rel Dale v Commonwealth [1945] HCA 30; (1945) 71 CLR 237, for reasons noted in Chapter Scope of the powers Most of the provisions above authorise the payment of money, described as pensions, endowment or allowances. There are few problems about the scope of these phrases; as long as Parliament has passed an appropriation, the Commonwealth can pay money and impose eligibility conditions for the receipt of the money ( Higgins v Commonwealth [1998] FCA 39; 79 FCR 528). The two provisions that refer to benefits seem to have a broader 7

8 CONSTITUTIONAL LAW scope than the provision of money. As Latham CJ suggested in British Medical Association v Commonwealth [1949] HCA 44; (1949) 79 CLR 201 (the BMA case, or Pharmaceutical Benefits case ) at 230, sickness and hospital benefits could include the supply of eye droppers, syringes, bandages or any necessary instrument or appliance. On the same argument the provision of books or even accommodation could be a benefit to students. It seems unlikely, however, that the latter phrase would extend to the provision of educational services to students; the phrase assumes that there are people who are students and then the Commonwealth can provide benefits to them. Medical and dental services is quite different. On the broadest possible reading, out of its context, it could enable the regulation of the provision of these services by all doctors and dentists, as long as the regulation fell short of civil conscription. However, as Dixon J observed in the BMA case at 261: The purpose of the constitutional amendment was to enable the Commonwealth to provide the pensions allowances endowments benefits and services which par (xxiiia.) mentions. That is shown by the character of the things for the provision of which laws may be made, which are recognized social services the establishment of which is now considered to be within the province of government. The conclusion is confirmed by the history of the matter; and it is supported by the placing of the new paragraph after s. 51 (xxiii.), which deals with invalid and old age pensions. The meaning appears to me to be the same as if the power had been expressed as one to make laws to provide &c. [Emphasis added] The other Justices agreed on this point. In Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6; (1987) 162 CLR 271, the Court noted that this was one of the points about para (xxiiia) that was settled. If the Commonwealth can provide medical and dental services it follows that it can establish clinics and hospitals in which services are provided, and that the provision of the services is a purpose in respect of which the Parliament has the power to make laws for which the Commonwealth can acquire property under para (xxxi). That is, it could take over the public hospital systems from the states as long as it paid just terms for the property and did not civilly conscript staff to work in the hospitals. 7 The only thing preventing it from doing so, it seems, is the fear that a government risks getting more criticism than praise from running a hospital system The limitation civil conscription The part of the paragraph under which the Commonwealth has regulated the behaviour of doctors and hospitals is the provision of pharmaceutical, sickness and hospital benefits. It has been generally agreed, except for Latham CJ s 7 Andrew Podger recognises this as a Constitutional possibility, while advocating a more cooperative method of establishing a regionalised health system; see Reconceiving Federal-State-Regional Arrangements in Health, Ch 9 of AJ Brown and JA Bellamy, Federalism and Regionalism in Australia; New Approaches, New Institutions? (ANU E Press, 2006) at < australia-and-new-zealand-school-of-government-anzsog-2/fra_citation >. 8

9 PART C ADDENDUM 1 judgment in the BMA case, that the qualification (but not so as to authorise civil conscription) qualifies only the medical and dental services part of the paragraph, but it is also recognised that that if medical or dental services are provided as part of the provision of sickness or hospital benefits, possible breaches of the prohibition would still need to be considered ( Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth ). So there have been cases where doctors and owners of hospitals have alleged that regulations imposed upon them as a condition of their patients access to pharmaceutical, sickness or hospital benefits have amounted to civil conscription. The argument succeeded in the first case: the BMA case. 8 By majority, the Court held that a section requiring doctors to use a prescribed form when prescribing a medicine listed in the official Formulary was imposing civil conscription. Latham CJ used a somewhat exaggerated floodgates argument at 215: If this is not a form of civil conscription, it would equally not be a form of civil conscription in relation to medical services to prescribe by law that a doctor should carry on his practice at a particular place, or at a particular time, or for a particular class of patients and not for other patients, and that he should follow a prescribed routine in dealing with his patients. On the other hand, Dixon J, dissenting along with McTiernan J, suggested at 278: But compulsion to serve seems to be inherent in the notion conveyed by the words. [Here] there is no compulsion to serve as a medical man, to attend patients, to render medical services to patients, or to act in any other medical capacity, whether regularly or occasionally, over a period of time however short, or intermittently. [Emphasis added] Later cases have followed the dissenters view. In 1972 the Commonwealth virtually took over control of nursing homes by enacting amendments to the National Health Act 1953, providing that the patients sickness and hospital benefits would be paid directly to the homes, as long as they complied with strict conditions. In Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth, the Court held that the regulations were incidental to the provision of the benefits. The plaintiffs had not pursued a civil conscription argument, which had been foreshadowed in the pleadings. In General Practitioners Society v Commonwealth [1980] HCA 30; (1980) 145 CLR 532, a requirement that pathologists must be approved by an authority before benefits were payable for pathology services was held valid. In Wong v Commonwealth of Australia [2009] HCA 3, the Court reconsidered the meaning of civil conscription. The majority paid more attention to the parliamentary and public debate at the time of adoption of the section by 8 The name of the plaintiff reflects the fact that doctors in Australia were still living in the colonial age. In 1962 the state branches of the British Medical Association finally created the Australian Medical Association. In the 1940s the BMA opposed the health schemes of the Labor government more vigorously than the opposition, led by Robert Menzies see Warwick Neville, Healing the Nation; Access to Medicines under the Pharmaceutical Benefits Scheme, PhD thesis at < WarwickNeville_Thesis.pdf >. 9

10 CONSTITUTIONAL LAW referendum, but came to a conclusion not very different from that of Dixon J above. Kirby J started from two premises that the relationship between a patient and a practitioner is essentially a private contractual relationship, and that the Commonwealth has an interest in spending its money wisely. From the need to balance these factors, he concluded at [151] that: The test for attracting the prohibition contained in s 51(xxiiiA) is whether the impugned regulation, by its details and burdens, intrudes impermissibly into the private consensual arrangements between the providers of medical and dental services and the individual recipients of such services. He agreed with the majority that the sections of the Health Insurance Act 1973 dealing with inappropriate practice, held to have been breached by the appellants, were valid. It seems that, despite the greater sophistication of his formulation, it will work out in practice fairly close to the older distinction between regulating the details of something done voluntarily and compelling a person to provide a service. (Heydon J, dissenting, held that some parts of the Act amounted to civil conscription.) 1. 4 Special laws for the people of any race Paragraph 51(xxvi) gives the Parliament the power to make laws with respect to: the people of any race for whom it is deemed necessary to make special laws. It originally referred to the people of any race other than the aboriginal race in any State and was clearly intended to empower the Commonwealth to make detrimental laws, for example, for the Chinese and South Pacific Islander races. Immediately after Federation, the Parliament enacted the Pacific Island Labourers Act 1901, under which Pacific Island labourers, not employed under a current agreement, could be deported before 31 December 1906 and any such labourer still found in Australia after that date could be deported. In Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395, the High Court declared that the Act was valid, mainly on the basis of the aliens or immigration powers, but Barton J also noted that it was possibly authorised by sub-sec 26. (The power was not used, however, to implement the White Australia policy; that was done, in the Immigration Restriction Act 1901, by the use of the notorious dictation test. 9 ) The words other than the aboriginal race in any State were removed in After a campaign in which it was emphasised that the amendment was intended to empower the Commonwealth to make laws for the benefit of Aboriginal people, it was approved by per cent of the formal votes. 9 For a reminiscence of a customs officer about his experiences administering the test, see < stories/dictation_test.asp >. 10

11 PART C ADDENDUM Special laws for the people of a race (or a sub-group thereof) In Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, the High Court held, with Murphy J dissenting, that a law generally prohibiting racial discrimination was not a special law for the people of any race. It may, on that logic, have been possible to pass a series of laws prohibiting discrimination against the Chinese race, the Indian race, the Aboriginal race and so on, and this may have called for further discussion of the identification of the races into which the human species may be divided and how broadly or finely they can be defined. However, that was not necessary as the majority held (as discussed in Chapter 11 ) that the Racial Discrimination Act 1975 was valid under the external affairs power. The law challenged in the Dam case (Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR) was the World Heritage Properties Conservation Act Some sections of the Act were declared by s 8 to be special laws for the people of the Aboriginal race, and despite division about the validity of the laws the Justices appear to have agreed that it was meaningful to refer to such a race. As Brennan J noted: 79 Race is not a term of art; it is not a precise concept. There is, of course, a biological element in the concept. The UNESCO studies on race and racial discrimination reveal some difficulty in giving a precise definition even to this element. Senor Hernan Santa Cruz, the Special Rapporteur on Racial Discrimination, in his report to the United Nations traces some of the findings of experts: all men living today belong to a single species and are derived from a common stock; pure races in the sense of genetically homogeneous populations do not exist in the human species. 83 Membership of a race imports a biological history or origin which is common to other members of the race Actual proof of descent from ancestors who were acknowledged members of the race, or actual proof of descent from ancestors none of whom were members of the race, is admissible to prove or to contradict, as the case may be, an assertion of membership of the race. Though the biological element is an essential element of membership of a race, it does not ordinarily exhaust the characteristics of a racial group. Physical similarities, and a common history, a common religion or spiritual beliefs and a common culture are factors that tend to create a sense of identity among members of a race and to which others have regard in identifying people as members of a race. As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par. (xxvi). 11

12 CONSTITUTIONAL LAW Murphy J held: whatever technical meaning race might be given in other contexts, in the Australian Constitution it includes the aborigines and Torres Strait Islanders and every subdivision of those peoples. To hold otherwise would be to make a mockery of the decision by the people to delete from s. 51(26) the words other than the aboriginal race in any State ( Constitution Alteration (Aboriginals) Act 1967 (Cth)). No laws have been enacted referring specifically to any other race, so the only live issue is what is a special law with respect to Aboriginals and Torres Strait Islanders. In the Dam case, sections protecting sites containing Aboriginal artefacts or relics were held by 4:3 to be supported by the power (though Deane J held that they were invalid because they imposed so many restrictions on what the Hydroelectric Commission could do with the land that they acquired from Tasmania without providing just terms see Chapter 13 ). Mason J remarked: 117 A law which protects the cultural heritage of the people of the aboriginal race constitutes a special law for the purpose of par. (xxvi) because the protection of that cultural heritage meets a special need of that people. However, it is argued that ss.8 and 11 do not answer the description of such a law because the law only protects a site which is of significance to the whole of mankind and to the people of the aboriginal race. This argument fails to acknowledge that something which is of significance to mankind may have a special and deeper significance to a particular people because it forms part of their cultural heritage. In Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (the Native Title Act case ), it was argued that the Act conferred a benefit on some indigenous people only those who still held native title under Mabo principles. The joint judgment of six Justices held at [98] that: A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race. The law may be special even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race. Applying these observations, the Native Title Act is special in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the people of any race ) a benefit protective of their native title. Perhaps the Act confers a benefit on all the people of those races. The special quality of the law thus appears. In Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337, Gummow and Hayne JJ confirmed at [76] that the power includes special laws for any members of that class identified by the expression the people of the race in question. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984, partial repeal of which was at issue in the case, had the purpose to preserve and protect the body of traditions, observances, customs, and 12

13 PART C ADDENDUM 1 beliefs not only of Aboriginals generally but also of a particular community or group of Aboriginals which relate to particular areas, and was therefore a special law Deemed necessary by whom? In the Native Title Act case, the joint judgment noted at [97]: If the requirement that a law enacted under s.51(xxvi) be special were held to evoke a judicial evaluation of the needs of the people of a race or of the threats or problems that confronted them in order to determine whether the law was, or could be deemed to be, necessary, the Court would be required to form a political value judgment. Yet it is clear that that judgment is for the Parliament. If the Court retains some supervisory jurisdiction to examine the question of necessity against the possibility of a manifest abuse of the races power, this case is not the occasion for an examination of that jurisdiction. The removal of the common law general defeasibility of native title by the Native Title Act is sufficient to demonstrate that the Parliament could properly have deemed that Act to be necessary. (Citations omitted) Their Honours did not explain how a manifest abuse would be detected. Presumably an abuse could be constituted either by a severely discriminatory law or by a law bestowing an unjustifiable benefit. The issue seems therefore to merge into the next one Beneficial or detrimental laws? Clearly para (xxvi) was inserted in the first place to enable the Commonwealth to make laws discriminating against the non-european labourers whom many Australians wanted to deport. Equally clearly, the 1967 amendment was sold to the electors as part of a package that also removed the former s 127, which had provided that the aboriginal natives were not to be counted in a census on the basis that the power would now be used by the Commonwealth for the benefit of the indigenous people. However, this intention was not reflected in the words of the amendment. This has caused disagreement in the High Court as to the effect of the section since the amendment. In the Dam case, Mason J observed that the power s terms are wide enough to enable the Parliament (a) to regulate and control the people of any race in the event that they constitute a threat or problem to the general community; and (b) to protect the people of a race in the event that there is a need to protect them, while Murphy J claimed that A broad reading of this power is that it authorizes any law for the benefit, physical and mental, of the people of the race for whom Parliament deems it necessary to pass special laws. Brennan J stated: The approval of the proposed law for the amendment of par. (xxvi) by deleting the words other than the aboriginal race was an affirmation of 13

14 CONSTITUTIONAL LAW 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. (Emphasis added) Whether the power might have a secondary object, his Honour did not say. In Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337 the plaintiffs were challenging the validity of the Hindmarsh Island Bridge Act 1997, which prevented the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 from applying to the site of the proposed bridge. They submitted that, since the amendment in 1967, para (xxvi) would only support special laws that were for the benefit of the Aboriginal race, and that the Bridge Act was therefore beyond power. The Bridge Act clearly had the effect of a partial repeal of the latter Act, and all Justices except Kirby J agreed that whatever the Parliament could enact it could partly or wholly repeal, and that therefore the Act was valid. Therefore it was not necessary for the majority Justices to make any remarks as to the scope of the power; as Brennan CJ and McHugh J said The Bridge Act exhibits no feature to which it is necessary to apply one of the opposing views of s 51(xxvi) in order to answer the question reserved. However, the other four Justices did express their views. Gummow and Hayne JJ expressly rejected the plaintiffs submission: 91 The text is not limited by any implication such as that contended for by the plaintiffs. This is so whether one has regard alone to the terms of the Constitution after the 1967 Act took effect or also to that statute. The circumstances surrounding the enactment of the 1967 Act, assuming regard may properly be had to them, may indicate an aspiration of the legislature and the electors to provide federal legislative powers to advance the situation of persons of the Aboriginal race. But it does not follow that this was implemented by a change to the constitutional text which was hedged by limitations unexpressed therein. They did, however, note the qualification expressed in the Native Title Act case : it may be that the character of a law purportedly based upon s 51(xxvi) will be denied to a law enacted in manifest abuse of that power of judgment. They held that there was no manifest abuse here; Parliament could disallow a declaration made by the Minister under the Heritage Protection Act and the Bridge Act had merely accelerated matters. Kirby J, in dissent, held that there were grounds for construing even the section as originally drafted as now authorising only laws for the benefit of a race and that the stated purpose of the 1967 amendments had been to remove two provisions in the Constitution which, it had ultimately been concluded, discriminated against Australian Aboriginals. He therefore held at [157] that: To construe the resulting power in par (xxvi) as authorising the making of laws detrimental to, and discriminatory against, people on the ground 14

15 PART C ADDENDUM 1 of race, and specifically Aboriginal race, would be a complete denial of the clear and unanimous object of the Parliament in proposing the amendment to par (xxvi). As to the argument that whatever the Parliament could enact it could repeal, his Honour held at [175] there is undoubtedly some force in this argument. But in my view, the maxim cannot be sustained in the face of a constitutional provision that does not permit laws made to the detriment of, or which discriminate against, a people by reference to their race. This would have the consequence that a class of irrepealable laws would develop and, presumably, the class would grow indefinitely. With respect to Kirby J, one can understand why the other Justices did not agree. While agreeing with the majority s conclusion on the repeal ground, Gaudron J took a different approach to the extent of the power. She emphasised at [39] that the criterion for the exercise of the power is that the law be deemed necessary and that, in the first instance,it is for the Parliament to make that decision. However, her Honour qualified that as follows: To form a view as to that necessity, however, there must be some difference pertaining to the people of the race involved or their circumstances or, at least, some material upon which the Parliament might reasonably form a political judgment that there is a difference of that kind. Were it otherwise, the words for whom it is deemed necessary to make special laws would have no operation and s 51(xxvi) would simply be a power to make laws for the people of any race. By analogy with the jurisprudence that has developed with respect to antidiscrimination law, her Honour held that it followed that: i the power does not authorise special laws affecting rights and obligations in areas in which there is no relevant difference between the people of the race to whom the law is directed and the people of other races (for example, the rights associated with citizenship) and ii where there was a difference pertaining to the people of a race, the law must be reasonably capable of being viewed as appropriate and adapted to the difference asserted. She concluded: 44 Although the power conferred by s 51(xxvi) is, in terms, wide enough to authorise laws which operate either to the advantage or disadvantage of the people of a particular race, it is difficult to conceive of circumstances in which a law presently operating to the disadvantage of a racial minority would be valid. It is even more difficult to conceive of a present circumstance pertaining to Aboriginal Australians which could support a law operating to their disadvantage. To put the matter another way, prima facie, at least, the circumstances which presently pertain to Aboriginal Australians are circumstances of serious disadvantage, which disadvantages include their material 15

16 CONSTITUTIONAL LAW circumstances and the vulnerability of their culture. And prima facie, at least, only laws directed to remedying their disadvantage could reasonably be viewed as appropriate and adapted to their different circumstances. We will see in Chapters 14, 18, and 19 that the Court has adopted an approach based on the jurisprudence that has developed with respect to antidiscrimination law when interpreting sections of the Constitution that prohibit discrimination on various grounds. To apply it to a section that appears to permit discriminatory laws when they are considered necessary seems, with respect, a logical extension. Though, taking it at face value, Kartinyeri seems to be a decision with no discernable ratio decidendi (except that in exactly similar circumstances a similar outcome should follow), 10 it may be anticipated that the approach taken by Gaudron J will attract support from other Justices in future. Chapter summary The Commonwealth Parliament has power to make laws with respect to marriage and divorce and has used those powers to enact the Marriage Act 1961 and the Family Law Act Complications about the custody of children in blended families have been largely resolved by the states having referred power to the Commonwealth. There are dicta both for and against the proposition that the Commonwealth could make laws recognising same-sex marriage, but the tendency of the more recent ones is to suggest that it could do so. The Commonwealth Parliament also has power to make laws for the provision of a wide range of pensions, benefits and health services. In so far as its laws affect the provision of health services, the Commonwealth cannot impose civil conscription, but it can impose many conditions on practitioners in the course of providing benefits to their patients. The power over the provision of medical and dental services would almost certainly allow the Commonwealth to establish a national system of public hospitals, as long as it paid just terms for any property that it compulsorily acquired from the states, and did not impose civil conscription on the personnel of the hospitals. The Commonwealth Parliament also has power to make laws for the people of any race for whom it is deemed necessary to make special laws. An exception for the aboriginal race in any State was removed by referendum in The power does not extend to the making of a general law to prevent racial discrimination; that was done instead under the external affairs power, as discussed in Chapter 11. Laws have been made under this power to protect aboriginal cultural sites, and to recognise and regulate the grant of native title, and these have been held valid. Whether the race power could still be used, as was originally intended, to make laws to the detriment of the people of a race is a matter on which, so far, the High Court 10 For a discussion of cases without a ratio see Alastair MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, 1998) [10.23] [10.40], especially the conclusion in the last-cited paragraph. 16

17 PART C ADDENDUM 1 has not reached agreement. The approach suggested by Gaudron J, that the power only authorises laws that respond to a real difference in the position of the races, and must then be appropriate and adapted to that difference, is consistent with the High Court s approach to other provisions in the Constitution, and has much to commend it. Masterclass REVIEW QUESTIONS 1 Suppose the Commonwealth Parliament has amended the Marriage Act 1961 to provide that people of the same sex can now marry each other under the Act. Prepare outlines of arguments for both sides in the High Court challenge, which would inevitably follow. 2 One of your friends, who is not studying constitutional law but who knows a bit about our federal system, has an elderly parent who has just been admitted to a nursing home. On chatting to the staff, the person is surprised to hear that the home is regulated by the Commonwealth Government bound hand and foot is the way one of the staff members puts it. Your friend asks you: How come the Commonwealth controls nursing homes when the states still run the public hospitals? Explain it to them and explain what else the Commonwealth could do if it wanted. 3 In its recent Report 10 to the Prime Minister, the Expert Panel on Constitutional Recognition of Indigenous Australians, says at p. 137: In post-1967 High Court jurisprudence relating to section 51(xxvi), culminating in Kartinyeri v Commonwealth, the so-called Hindmarsh Bridge decision, the proposition that the power may be used to discriminate against or for the benefit of the people of any race is now reasonably established. Is this accurate? How else could you sum up the recent decisions culminating in Kartinyeri? 4 Section 25 of the Constitution provides: For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted. The Expert Panel s report says section 25 is a racially discriminatory provision that contemplates the disqualification of all persons of any race from voting in State elections. It certainly contemplates that as a possibility, but read it in conjunction with s 24 and work out its intended effect. Supposing a state disqualified a significant fraction of its citizens from voting on racial grounds; what would be the 10 The recommendations of the Report will be discussed in Chapter

18 CONSTITUTIONAL LAW Constitutional consequences for the state? You might like to research the similar Article of the United States Constitution and discover when and why it was inserted. What else would now stop the states from imposing racially-based disqualifications (and how do we know that is valid)? FURTHER READING Thomas Faunce, Constitutional limits on federal legislation practically compelling medical employment: Wong v Commonwealth; Selim v Professional Services Review Committee (2009) 17 Jnl of Law & Medicine 196. Charlotte Frew, The social construction of marriage in Australia: implications for same-sex unions (2011) 28 Law in Context 78. Justin Malbon, Avoiding the Hindmarsh Island Bridge disaster: interpreting the race power (2002) 6 Flinders Journal of Law Reform 41. Melissa Perry, Expanding horizons: international law and native title (1998) AMPLA Yearbook 498. John Seymour, The role of the Family Court of Australia in child welfare matters ( ) 21 Fed L Rev 1. Adiva Sifris and Paula Gerber, Same-sex marriage in Australia: a battleground for equality (2011) 25 AJ Fam L 96. Lisa Strelein, The courts of the conqueror : the judicial system and the assertion of indigenous peoples rights (2000) 5 Australian Indigenous Law Reporter 1. Christopher Tran, Wong v Commonwealth: missed opportunities, contemporary meaning and the people (2011) 13 Con Law & Policy Rev 76. Karen Wheelwright. Commonwealth and state powers in health a constitutional diagnosis (1995) 21 MonULR

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