Race Power: Constitutional Interpretation

Critically assess the applicability of this statement as an analysis of the current approach of the judiciary to statutory interpretation in Australia.

In the dissenting judgment made by Callinan J in the landmark New South Wales v Commonwealth (“Workchoices’ Case”), a strong criticism was mounted against constitutional interpretation methods employed in the judicial forum. Explicitly, this conjecture was focused at Isaacs J’s judgement in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ Case”), where a textualism approach to constitutional interpretation was adopted. Callinan J expressed the Engineers’ Case as “less than satisfactory”, using “detached language” to discredit its literal methodology of interpreting the constitution.

Vickie Lee Roach was a prisoner whose ability to vote had been taken away by Commonwealth legislation. She argued that the legislation breached her constitutional rights and argued her case in the High Court. Roach’s disqualification from voting violated both the Australian Constitution’s requirement that parliament be “directly chosen by the people” (s7 and s24) and the Constitution’s implied freedom of political communication. The constitutional phrase ‘the people’ was intended to be as broad

The referendum campaign effectively focused public attention on the fact that Aboriginal and Torres Strait Islander Australians were second class citizens with all sorts of limitations - legislative and social - on their lives. This decade-long campaign to change the Constitution came to symbolise the broader struggle for justice being fought during these years. Activists presented the case for a Commonwealth government

“[t]he trial judge found that an aboriginal right could not be claimed unless it was supported by a special treaty and that s. 35(1) of the Constitution Act, 1982 accordingly had no

In 1962, Electoral Act (Section 41) was amended to give those Aborigines their right to vote. Furthermore, in order to reduce racial discrimination towards indigenous community, 1967 Referendum was hold in which Section 51(xxvi) was amended and Section 127 was repealed (Bailey 2008). 1967 has become the landmark as indigenous affair became a concurrent power shared between the Commonwealth and the states (Bailey 2008; Freehollows 2003). Besides, they are also included in the census after 1967 and were given the same rights as other Australians and enjoy the same rights. (History of the Aborigines n.d.; Freehollows 2003).

recognize Negro rights taught that people could bypass those rights to establish the laws and regulations they wanted. For example, if the southern states wanted to secede just because they felt like it would the best for them, they would be able to do it, because other illegal laws going against the Constitution were being upheld. Southerners such as Alexander Stephens made the argument that, “When the Founding Fathers wanted to ratify the Constitution, they went to the individual states to do so, therefore it is obvious that states’ rights precede Federal Powers.” These southern citizens made up lies that they believed could be used to bypass the Constitution and be ratified. This was the biggest cause of the Civil War and how Lincoln made

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

The Eddie Mabo v the State of Queensland [No. 2] (Mabo) case has had a deep impact on the legal, social and political reality of Indigenous-non-Indigenous relations in Australia. It’s established a long term consequences may require considerable litigation, or maybe a Federal Legislation. The Mabo case is the means of which the sovereign rights of Indigenous Nations to their ancestral lands. The result in the case was a recognition by the Australian legal system that the Meriam people hold rights to their land under their own system of law, and that those rights should enjoy the protection of the Australian Law.

Bakke (Respondent), a white applicant to Davis Medical School, California sued the University, alleging his denial of admission on racial grounds was a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution

Despite the echoed understanding that white and black shared the same law, the introduction of legal procedures such as coronial inquiries into Aboriginal deaths on Queensland’s pastoral frontier highlighted that justice for Aboriginals in the criminal law institution would not be achieved (Nettelbeck, 2013, 358). Today Indigenous Australians are severely over-represented as a group in the criminal justice system. It is well documented that Indigenous Australians are more likely to be sentences to a period of imprisonment, less likely to receive bail and are frequently overcharged (Allard et al., 2010 and Carpenter & Ball 2012,97)

In the early 1890’s, protectionism gave way to state and commonwealth government regimes of segregation. In the development of the constitution, politicians included sections specifically excluding Indigenous Australians, such as the white Australia policy, ensuring that racism became entrenched in the new nation’s future. Reserves and missions were set up far from white settlements, to exclude and control Indigenous Australians, especially those of mixed descent (Hampton & Toombs, Racism, colonisation/colonialism and impacts on indigenous people, 2013).

This article gives the reader an inequitable view of Indigenous Australians, defending Tony Abbot’s point of view and the audience is encouraged to agree with mainstream media in regards to whether or not Tony Abbott is racist. Article B from the Koori Mail condemns Tony Abbott’s viewpoint as not only racist but he is insulting the very culture that he is representing. Article B states that Tony Abbott does not understand Indigenous culture and how important land is to them “Connection to country is everything to Aboriginal people – defines Aboriginal people and sustains us in a cultural and spiritual sense and can play a vital role in building economic independence, self-determination and healing” (Greg Cromelin, Article B). With Article B the audience is encouraged to get angry at Tony Abbott’s comments and make him out to be racist.

Let's take it back to the 27th of May, 1967. The Australian Referendum, called by the Holt Government is about to decide whether or not citizens of Australia believe that Indigenous Australians should be given the right to vote. Although this was a successful referendum, in the government's eyes, this was going to give the recognition that the Indigenous Australians wanted. But it didn’t. The goal was to achieve a transformative lobby to concede the adverse wrongs of our colonial past. If that is so, how is it that 50 years later, this multicultural country and its government are still continuing to fail the First Australians, and ignoring the recognition they deserve - to be recognised in the Constitution.

The enactment of both interim and final Constitutions ushered in a new approach to statutory interpretation. In this essay I argue that the statement made by the court in Daniels v Campbell 2003 (9) BCLR 969 ( C ) at 985 is TRUE.