The Native Title Act of 1993 posed specific problems for the Paul Keating Federal Labor government.
The Government sought to overcome this “racial discrimination” problem of a Native Title Act by legal engineering and subterfuge.
Certainly, if the same legislation had been attempted by a State Government, it undoubtedly would have come to the fate suffered by Queensland in 1988 when on 8 December that year, the High Court in Mabo v Queensland (No 1) found that the Queensland Coast Islands Declaratory Act 1985, which sought to deal with a matter on the bases of race was not valid according to the principles of the Commonwealth’s Racial Discrimination Act 1975, thus in conflict with Commonwealth legislation and under the Commonwealth constitution, was therefore unlawful.
Without the facility of an exemption, the application of the Native Title Act would have, not only been “actual racial discrimination” but, would have been ‘unlawful racial discrimination’ under Australian law.
The only problem with this solution was that the chosen method had a fatal flaw.
The provisions that were used to “exempt native title” from “unlawful racial discrimination” had their roots in Article 1 Paragraph 4 the International Convention on Racial Discrimination (Convention) to which Australia became a signatory in 1975.
The problem for Australia was that while Section 8 of the Racial Discrimination Act made a racial discrimination action, lawful (in accordance with the exemption provision of the Convention) the type and reason for the racial discrimination that resulted from the proclamation of the Native Title Act - did not fit with the exemptions, provided for by the Convention.
Let us now go through the process step by step
The Australian Labor Government in 1993 inserted Section 7 into the Native Title Act
This section did 3 things:
AND
(2) *Charity activities
*This portion of subsection 1 of Section 8 and subsection 2 are not relevant to the application of the exemptions directed to Native Title Act - So I will not discuss them any further.
Convention means the International Convention on the Elimination of All Forms of Racial Discrimination that was opened for signature on 21 December 1965 and entered into force on 2 January 1969, A copy of the English text is set out in the Schedule to the Act together with a preamble.
Australia become a signatory to the Convention in 1975 when the Racial Discrimination Act was proclaimed.
Let's now have a forensic look at what type of the ‘discriminatory activities’ enjoy the ‘exemptions’ provided for by the Convention.
In Paragraph 4 of Article 1 in the Convention ‘special measures’ is defined as thus:
So, in order to elicit exemption status special measures must exhibit 3 components
(1) They must be directed SOLELY to the purpose of securing advancement of equality in ONLY two defined areas:
(a). human rights and
(b). fundamental freedoms and
(2) They must not result in the maintenance of separate rights and
(3) They must not continue after meeting the objectives for which they were introduced
So! In 1992 the High Court of Australia proclaimed that under the common law of Australia, land title existed prior to the colonising event of the British Empire of 1879 AND remained in place until lawfully removed by the crown and thereby demonstrated that, providing the requisite standard of proof can be displayed, the common law of Australia, will acknowledge title of land to those in possession of that land, prior to colonisation.
When making that determination the High Court made no statement as to ‘race’ being a requisite for land ownership but did identify that, in the case before it, the plaintiffs were identified as “members of the Meriam people”.
The court also labelled ‘native title’ as the name awarded for that type of land title.
A title which would stand alongside all the other types of land title, evolved over the long history of British common law.
In 1993, at the time the Native Title Act was proclaimed, there was no ‘lawful discrimination’ of the ownership of land under ‘native title’ for any Australian. (The High Court had just disposed of that issue) Nor was there any discrimination specifically peculiar to those Australians with aboriginal heritage from obtaining such outcomes
The only descrimination in existence in this area was that which all Australians faced in exercising legal rights, that of:- ·
The Commonwealth government in 1993 had at its disposal the non-discriminatory option of funding ‘legal aid’ sufficiently to allow ALL Australian of limited financial resources to have access to sufficient funds required for the purposes of litigation.
This would have had the same result in achieving the objectives of the Commonwealth Native Title Act legislation
In 1993 what were the HUMAN RIGHTS and the FUNDAMENTAL FREEDOMS that the ethnic/racial group of ‘Australian aboriginals’ did not legally enjoy equally with all other Australians and WHICH could form the basis for an argument that there needed to be special measures to support just this group, in order to place them on an equal footing with ALL other Australian regarding the litigation of legal rights that could not be remedied by a policy to enhance the support, in general, for underprivileged Australians.
Now even if an argument could be mounted that the ethnic/racial groups of Australian's aboriginal and the humans that settled some of the Torres Strait island made as a consequence of rising oceal levels a few thousand years age, were exclusively ‘disadvantaged’ in relation to ‘litigation’ and thereby ‘discrimination’ in their favour was not only necessary but the only option to advance their circumstances, where is the application of the required provisions to ensure that the special measures WILL NOT “result in the maintenance of SEPERATE RIGHTS ” and WILL be automatically removed when the objective of the special measures has been achieved.
In other words where were the caveat and sunset clauses in the NATIVE TITLE legislation?
The same situation applies to the current legislation to change the Constitution to give special right in the constitution to two races of people.
So, it just again demonstrates what you can do when you have the ultimate power and how in the final analysis the ‘might is right’ principal is still alive and well even to this day
Warren Bolton Tuesday, 20 June 2023