Racial Discrimination Act

The belief that the federal governments would use their legislative power only for the benefit of Indigenous people was to prove to be misplaced. One example of the way in which federal governments have failed to use the power benevolently was in the passing of the Native Title Amendment Act 1998 (Cth) – legislation that prevented the Racial Discrimination Act 1975 (Cth) from applying to certain sections of the Native Title Act 1993 (Cth). Similarly, the legislation that implemented the Northern Territory intervention in 2007 suspended the operation of the Racial Discrimination Act 1975 (Cth) so that it didn’t protect Aboriginal people who were at risk of losing their land or being discriminated against in relation to their welfare payments.

Consideration as to whether the races power can be used only for the benefit of Aboriginal people, as the proponents of the ‘yes’ vote had intended, was given some residual attention by the High Court in Kartinyeri v Commonwealth (the Hindmarsh Island Bridge case). This case arose when, in order to resolve a dispute between Aboriginal people and developers over the construction of a bridge, the federal government passed legislation that stopped heritage protection legislation from applying to the contested area. That is, the government simply repealed the protections contained in the heritage protection legislation so that the Aboriginal people who claimed the contested area was sacred to them had no ability to attempt to protect it from being destroyed by the construction of the bridge.

It was argued by the legal representatives of the Aboriginal people as part of the case that, when the 1967 referendum was passed, it was with the clear intention that the federal government should only use the power to protect Aboriginal people. Therefore, they reasoned, the federal government was not given the power to act in a way that would disadvantage Aboriginal people. A majority of the High Court rejected this argument and reaffirmed that if the federal government has the power to make a law; it has the power to repeal it.