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The White, Upper/Middle Class, Elderly Male & Unconstitutional High Court Bench

I intend to prove that there is a constitutional basis for enforcing a policy of affirmative action in the make-up of the High Court of Australia’s bench. I will first establish not only that there is such a basis, but that this policy is imperative to the proper function of contemporary Australian society under the Commonwealth Constitution. To demonstrate this, I will first look at the purported role of the High Court in the framework of Australia’s legal system and will then be examined in comparison to Australian jurisprudence which highlight a failure to live up to this role, a failure, it will be contended, that would have been remedied if affirmative action informed the appointments to the High Court bench. The constitution itself will be constantly referred to throughout, drawing from it elements that imply a need for affirmative action in the constitution of the High Court bench.

The Role of the High Court

Generally:

The High Court of Australia is the supreme judicial tribunal. It has jurisdiction to decide matters in a number of vitally important areas and their decisions invariably have widespread ramifications for Australian society. Very generally, the High Court is needed to justify and to correct the democracy of Australia(1).

First and foremost, the High Court is the final, “authoritative interpreter”(2) of the commonwealth constitution(3). When performing this role, the High Court in a sense sits above legislatures and governments(4), as all branches of Government must conform to the constitution and, therefore, also to the High Courts interpretation of it. The constitution is difficult to amend(5) (requiring the referendum proposal to be passed by both houses of parliament and then approved by a majority of people and a majority of states(6)) and as such the High Court’s role in interpreting it – to give it new meanings at different historical points in time(7)[and to apply it to a constantly evolving the society – is all the more important and has all the more impact upon the Australian society. The constitution often uses language, which is abstract and general, and therefore is open to be interpreted by the High Court in several different ways. The High Court’s adoption of one or the other interpretations can therefore have great political, social, and economic consequences(8).

In addition to this responsibility, the High court also has jurisdiction over matters; arising under any treaty(9), affecting consuls or other representatives of other countries(10), in which the commonwealth is a party(11), involving more than one state or residents from more than one state(12), where either a writ of mandamus, prohibition or injunction is sought against an officer of the commonwealth(13), arising under any laws made by parliament(14), of Admiralty and maritime jurisdiction(15).

Further to all this, the High Court is the final tribunal for appeals; of any Justice or Justices exercising the original jurisdiction of the High Court(16), from any federal court or court exercising federal jurisdiction; or the Supreme Court of any State, or any other court where an appeal lies to the Queen in Council(17), and of the Inter-State Commission on matters of law only(18). All appeals decisions made by the High Court under one of these heads is, under the constitution, “final and conclusive”(19).

It then is clear to see that the power vested in the High Court is very significant, and the responsibility then given to those who constitute the High Court is heavy. To use a tribal analogy, those who make up the High Court Bench are something of a supreme ‘council of elders’, who use their wisdom to decide on matters of the utmost importance and of the most fundamental ramifications for the tribe. Theoretically, it is their legal wisdom, presumed to be unrivalled by anyone not in the council, which directs Australia down the most appropriate course as she inevitably changes with the passing of time.

It is this presumption – that our High Court Bench is made up with the most able and appropriate personnel to fulfill the roles outlined above which, without affirmative action, historically has and will continue in the future to be proven sadly and consistently false. Through no fault of any individual Justice, they collectively have fallen short of this expectation simply because of the homogeneity of the race and gender, which has been an enduring feature of the line of High Court Justices from 1903 to the present that have made up the High Court of Australia.

Separation of Powers:

The separation of the judiciary, legislature and executive arms of Government was one American feature that the drafters of the Australian constitution wholeheartedly adopted, and it can be seen in the structure of the document itself, where the first three chapters are focused on each arm respectively(20). Baron de Montesquieu fathered the modern conception of the separation of powers. Montesquieu thought that the liberty of the people was protected when the power of government was divided into three branches:

The legislature – the Parliament which made the laws.

The executive – The Monarch, represented by the Governor General, who enforced or executed the laws.

The judiciary – the courts which judged, or interpreted the laws in cases of disagreement.

In Montesquieu’s view, if each branch of government had its duties and powers clearly defined, and if each branch were kept separate from the other, no one branch would dominate another – each acting as a check on the power of the other two. In this way, government would run smoothly and the liberty of the people would be protected from the abuse of power by a tyrant or dictator(21).

Further to the overall structure being designed as an internal system of natural checks and balances, so too has this ideal been transferred to the workings of the High Court. Section 71 of the constitution requires that the High Court have a minimum of three Justices at any one time on the bench. It seems more than merely coincidental that this number was used as the bare minimum. By inference, this numerical requirement implies into the constitution that the High Court should be made up of Justices that behave as a check on the reasoning of the others. In other words, the perspectives of three separate Justices was hoped to provoke sufficiently robust debate such that the appropriate decisions invariably be made with a Millsian(22) “crystallization of the truth”. Law progresses not through unanimity between an internally confirming elite, but rather through significant argument caused by significantly different, clashing perspectives. It is now clear, that without affirmative action, the High Court fails this implied requirement too often to be tolerated. This is especially stark in cases which require a certain detachment or transcendence from one’s own conceptual paradigm (tied so inextricably to one’s race, gender, and economic background), such as cases involving the elusive tapestry that is Aboriginal spirituality – a transcendence, rendered unnecessary had affirmative action been a policy in the constitution of the High Court bench.

Although it is recognised that it is difficult to summarise the spirituality of the many and diverse traditional aboriginal tribes, there are some recurring themes which are worth mentioning. Firstly, Aboriginal spirituality has an inextricable connection to the land. It is a commonly held belief amongst aboriginal communities that the landscape was “from and through the activities of spirit beings”(23). The land, it can be said for the aborigines, serves as a kind of nexus between the physical and the spiritual, the real and ‘the dreaming’. The knowledge of the land was handed to the aborigines and was kept, from generation to generation, sacred and precious.

This affinity with the land is crucial for the health of Aboriginal spirituality:

“In honoring the mother [earth] we come closer to appreciating the Aboriginal laws and cultures of this land.”(24)

Further to this, secular society has a very different conception of the surrounding world to the Aboriginal conception. Where secular society seeks to differentiate individuals from individuals, people from the land, society from people, religion from society and so on, Aboriginal traditional conceptions view the law, land, people and religion as one integrated whole. There is no separation and to conceive that there is a separation is a potentially dangerous development(25).

The secular law’s continuing struggle to appropriately understand aboriginal spirituality was foreshadowed in 1971 with the decision of Milirrpum v Nabalco(26). The aboriginal claimants attempted to apply under the secular law to have declared native title over certain areas and failed. Blackburn J ruled that the aboriginal application failed because they had failed to demonstrate a ‘proprietary’ or an ‘economic’ interest. Blackburn J also noted that a system of property law needed clearly defined boundaries. In a strict sense, Blackburn J is correct. Aborigines do not have a concept of ownership over land such as what lies at the cornerstone of every self-respecting capitalist economic system. They did not use and enjoy the land in any proprietary sense, they made no attempt to exclude others from the land and they were certainly incapable of alienating themselves from the land. To alienate themselves from the land would be to deny who they were. Blackburn’s analysis is also parallel to the idea that economics is essential to the concept of property(27). Typified by the philosophical father of the US constitution, John Locke:

“Through the earth, and all inferior creatures by common to all men, yet every man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state of nature hath provided, and left it in, he hath mixed his labour with it and joined it to something that is his own, and thereby makes it his property.” (28)

In other words, if someone uses his resources to utilize the land for an economic benefit, then property rights over that land should be recognised. No such provision is made for people who expend their energy to (according to their beliefs) preserve and enhance the land in a spiritual sense. In any case what the secular law cannot understand is unlikely to be respected and far less likely to be rewarded with proprietary rights. Indeed, as will be seen in the analysis of the Hindmarsh Island case, “The transformation of land and space through cartographers and the introduction of British notions of property have meant that Aboriginal peoples wishing to demonstrate their cultural heritage links to tracts of land must do so through the medium of [these] introduced concepts [eg Locke]”(29).

Further, Aboriginal mythology has at its center the concept that the land has been held on trust for humanity(30). In addition to this, European society maps the land in a very literal way, from God’s perspective in the air; the western conception of land still results in the mapping of the world according to what it looks to God Almighty. Aboriginal cultures map the world in a distinctly different way, according to the way they believe it was weaved into existence by their ancestral spirits(31). Blackburn was sadly “incapable”(32) of appreciating this in any real sense, trapped in the western legal discursive thought to the detriment of his ability as a Judge.

For Blackburn J however, history will condemn his decision as one lacking in foresight, courage and even correctness and is symptomatic of his inability to escape his own biases and perspectives of the universe around him(33)[- he should not be blamed for this, it is after all a difficult (if not impossible) thing to achieve. However, if an Aboriginal had shared his perspectives with Blackburn, as an equal on the court’s bench, such a transcendence would have been completely unnecessary.

The Hindmarsh Island Bridge Case: Kartinyeri v The Commonwealth (1998) 195 CLR 337

This was a controversial claim where, a group of Aboriginal women sought to prevent the development of a Marina and a bridge connecting an island of purported spiritual significance to the mainland under the Heritage Protection Act(34). The true spiritual significance of the site was in dispute. The significance required for heritage protection was outlined by Justice Brennan in the Tasmanian Dam Case(35), “the site must be of a significance which is neither minimal nor ephemeral, and that the significance of the site may be found by the Aboriginal people in their history, in their religion or spiritual beliefs, or in their culture.” Unfortunately, the High Court in this case saw fit to take stock in the fact that evidence of “secret women’s business” had not come up previously in any anthropological studies(36). What the bench failed to realize, and something that a bench constituted using affirmative action would have realized, is that anthropological work is not aboriginal history. Aboriginal history is oral and in their own language, and even the most neutral anthropologists would be unable to avoid painting a “white gloss” over the studies(37).

A Royal Commission was formed to establish the ‘truth’ in terms of whether there were real spiritual links to the land in question. According to Watson, “The establishment of a Royal Commission to establish the ‘truth’ is an example of the extent to which the legal system attempts to control the very identity and nature of Aboriginal law and spirituality in Australia and is an example of the continuing colonialism.”(38) With such official investigations, there comes inherent within them a “presumption that knowledge or truth are only available through…the insistence upon the production of knowledge in alphabetical writing that had previously been handed down in oral form for countless generations.”(39) This reveals the western bias that “informs” judges of the legitimacy of Aboriginal spiritual claims. This can be seen in Brunton’s work, where great stock was put in the Berndt’s anthropological studies, which made no mention of secret women’s business on Hindmarsh Island(40). However, just because these practices were not documented does not by any means prove that it does not exist. Brunton however remains convinced. Further to this, inconsistencies, uncertainties and contradictions in the testimony of the aboriginal women was considered “proof” of fabrication rather than proof that the secular law is incapable of dealing with these issues(41)[without, of course, the help of an Aboriginal perspective on the High Court itself.

Ultimately, the process, which was so publicly scrutinized in the Hindmarsh case, reveals the continuing imperialism over indigenous peoples, in that “any future recognition of Aboriginal cultural heritage will be dependent upon Aboriginal people surrendering control of their beliefs and for these beliefs to be rendered into some syncretic form that is acceptable to the courts.”(42) The judges in the Hindmarsh case failed to understand the subtleties of Aboriginal women’s business the secrecy of which was no insignificant part of their claim’s downfall.

In addition, if this case is to be considered as a clash between the interests of native Aborigines and the interests of developers then there was a double standard within the case as well. The private interests of the developers were not scrutinized in any sense(43). There was an implicit assumption in the proceedings that the private interests of the developers were always going to be legitimate, real, and worthy. This is part and parcel of the unconscious acceptance of the seemingly deeply entrenched capitalism in the Australian secular law. To make money, at the expense of almost anything is a perfectly legitimate exercise, which fits neatly into the traditional western paradigm and was thus not scrutinized by the Justices of the High Court. Whereas to preserve the “cosmological efficacy”(44)[of a place of spiritual significance to a group of Aboriginal women was questioned and scrutinized at great length.

Further to this, it appears overly onerous for “aboriginals to validate their own law in a foreign law system, which is based on the 1788 declaration of terra nullius.”(45) This may appear a trivial point on the face of it but there is a case to be made for it. Aboriginal people were legally not human until the 1967 Referendum, finally recognising Aboriginal people as citizens in the country they have belonged to for 40,000 years. Is it really surprising that the law has struggled to come to terms with the customs, perspectives and spirituality of these until recently invisible people?(46) Four years later Blackburn, an elderly white male presumably from an orthodox Christian background is expected to grasp aboriginal thinking that has developed over the eons in considerably different ways than how Western thinking evolved. Without legal peers who could somewhat tap into the Aboriginal paradigm to debate with, Blackburn was doomed to make a wholly erroneous decision.

These people, according to terra nullius, did not exist.

Back to the Constitution: Equality and Sovereignty

Although this argument has previously been run and failed, there seems sufficient evidence that there is an implied right of equality for citizens living under the constitution and therefore the Australian society.

Deane and Toohey JJ asserted in Leeth(47)[that the common law recognised a constitutional doctrine of legal equality(48).[This had two aspects: the subjection of all persons to the law and the ‘theoretical equality of all persons under the law and before the courts’(49).[Three considerations were said to support the incorporation of the doctrine into the Constitution(50). The first was the ‘conceptual basis’(51)[of the Constitution — manifested in the preamble to the Constitution’s enacting Act, and in covering clause 3 — that ‘the people’ had agreed to unite(52). The ‘inherent equality of the people as the parties to the compact’ was implicit in that ‘free agreement’(53). Secondly, notions of legal equality were implicit to a significant extent in the separation of judicial power. Thirdly, the doctrine was manifested by the range of provisions prohibiting particular types of discrimination or inequality; most notably by ss 51(ii), 51(iii) and 99, which prevent the Commonwealth discriminating between States or parts thereof in laws relating to taxation, bounties, revenue, trade and commerce, by s 117, which limits government discrimination on the basis of residence, and by s 92, which prohibits protectionist discrimination against interstate trade(54).[Further, they argued that in accordance with Melbourne Corp v The Commonwealth(55), a case where the Commonwealth was prevented from discriminating against the states, that, by implication, equality exists. The states are ‘artificial’ entities and the people constitute the states. Therefore it would seem somewhat ‘somewhat surprising’ if the constitution protected the artificial entities and not the (real) people that constituted them. Gaudron J also found a principle of equal justice before the courts(56).

Further to these reasons, further evidence can be found in sections 7, 24 and 8 of the constitution. The term people, implies that the Australian law should be blind to your race, gender, ethnicity and economic status. If you are person, then you are equal under the law to every other person. Section 8, through the requirement that no one can vote more than once, implies the utilitarian notion of equality that everyone counts for one and no more than one(57).

While Deane, Toohey and Gaudron were in the minority in Leeth, there is sufficient jurisprudence from other cases – via recognition of ‘the people’ as the sovereign force behind the constitution – to infer that equality should be recognised in the constitution. Mason CJ suggested in Australian Capital Television Pty Ltd v Commonwealth(58),[that the Australia Act (1986) UK “marked the end of the legal sovereignty of the Imperial Parliament and recognised that ultimate sovereignty resided in the Australian people”. Similarly, in Theophanous v Herald & Weekly Times Ltd(59)[Deane J argued that the present legitimacy of the Constitution “lies exclusively in the original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people”(60).[Or, as McHugh J stated in McGinty v Western Australia: “Since the passing of the Australia Act (UK) in 1986, notwithstanding some considerable theoretical difficulties, the political and legal sovereignty of Australia now resides in the people of Australia.”(61)[61]

If this is the case, then it hardly seems likely that the people, as the sovereign power legitimizing the constitution, would consent to a document that didn’t have at its core, some notion of equality for all ‘the people’. If, as according to Mason CJ, the legal sovereignty of the Imperial parliament has been replaced, taking with it the colonial, imperial subjugation of Australia and its subjects, and allowing representative democracy by the people and for the people to fill the power vacuum, it follows and seems elementary that such a system of representative democracy should have inherent in it a notion of equality(62).

OK, suppose you are right, what has this got to do with affirmative action?

While the Racial Discrimination Act (1975), Sexual Discrimination Act (1984) and the Disability Discrimination Act (1992) all prohibit direct and indirect discrimination to individuals and groups, they fail to recognise and therefore reach the much harder to remedy systemic form of discrimination(63).

The Hindmarsh case demonstrated that the legal system is inherently, if not deliberately, discriminatory towards those whose perspectives fall outside the systemic legal paradigm which for so long has been dominated the thinking of white, upper/middle class males. Aboriginal people wanting to hold on to their traditions, culture and spiritual beliefs have been shown to be the classic example of such a group whose perspectives do not fit neatly into the legal systems’ discourse.

Styles v Commonwealth of Australia(64)[is another case, which highlights how systemic discrimination can slip through the legal net. A requirement for a job, which precluded the complainant from having any chance of landing the position, had a disproportionate effect on women due to the entrenched gender bias in the industry’s structural hierarchy. This was ruled not to be discriminatory because it was a substantive qualification derived from meritorious use of effort and ability. But this is an example of how easily “merit” can be used to disguise the entrenched discrimination existing in white, male dominated hierarchies. As Thornton puts it, “The focus on individual worth means that the appearance of justice in allocations is maintained while major structural impediments to equality, such as the sex segregation of the labour market, wage discrimination and inequality of access need not be addressed.”(65)[65]

Those who doubt the existence or extent of this systemic inequality need only look as far as the obvious contradiction between the assumption of neutrality in a liberal legal system, and the recognition of social structures of disadvantage based on race, sex disability through anti-discrimination legislation(66). Such a contradiction proves the assumption of neutrality to be false.

But wouldn’t affirmative action just amount to reverse discrimination?

Affirmative action, as some contend(67), is not reverse discrimination. If the laws and structures that enshrine it were truly neutral to gender, race and economic status, then Moens and those who support his position may have a point. But the reality is, as cases such as Hindmarsh and Style highlight, the laws and legal institutions are inherently geared towards one group in society, and as such affirmative action(68)[programs would serve only to remedy this institutionalized discrimination, and therefore promoting equality in the judicial sphere of power.

As Delgado points out, whites have been the beneficiaries of history’s largest ever affirmative action program(69). What is more, claims of reverse discrimination may simply indicate that people are ignorant to the structural inequality so firmly in place that it is hard to see. Further, it fails to recognise that the affirmative action programs implemented so far in Australia is precisely the sort of tokenism, which is loved by the dominant class as it gives them an equity, that these programs will fix sexual and racial discrimination, without really having to give up anything in return.

While for women, the door for remedial action came with their political enfranchisement(70), it wasn’t really until Mabo that there was, from a racial perspective, really a clear avenue to clearly articulate this call for affirmative action in the High Court, such that it would not be dismissed out of hand.

Mabo

Mabo was one of the most significant judicial decisions in Australia’s history in reversing the convenient assumption that the non-Indigenous settlement of Australia could proceed without any acknowledgment of the pre-existing rights of the Indigenous Peoples in relation to land and waters(71).

There was also Australian jurisprudence drawing on experience under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). While that Act was predicated on the earlier denial of native title(72), it established a claim process whereby Aboriginal rights in respect of `claimable’ land might be recognised by Australian law if established under Aboriginal law. Justice Brennan ruled that where continuing, unbroken traditional links remained native title exists. Where colonization has broken these links, so to has native title been “washed away”(73). Therefore one immediate criticism of the ruling becomes evident: In deciding that Aboriginal law was the source of native title, the High Court should have concluded that Aboriginal law was also its only source of extinguishment(74).[This internal inconsistency is yet another example of the structural discrimination in the Judicial Hierarchy that is so rarely called into question but has such a great impact on those seeking justice. Doreen Kartinyeri puts it well by saying, “to address oneself to the other in the language of the other is, it seems, the condition of all possible justice.”(75)[Nonetheless, by the time of the decision in Mabo, the essence of the Aboriginal relation to land had become understood in Australian law together with the processes by which Aboriginal rights and interests might be established and asserted.

Mabo’s real breakthrough, however, in terms of affirmative action for Aboriginal people, came with the final and unequivocal declaration of Aboriginal citizenship within the commonwealth of Australia. This was demonstrated by the courts declaration that Aboriginal people are no longer (and never were) “nullius”(76). So, if the legal barriers to affirmative action to promote racial equality weren’t removed with the 1967 referendum, or upon the conferral of sovereignty to the Australian people with the Australia Acts of 1986, then it definitely happened in 1992 with Mabo. More than this however, it seems the substantive recognition of citizenship opened the door for affirmative action within the structures of the legal system, including the High Court bench itself. Only such action giving Aboriginal people meaningful participation in the legal process could begin to remedy the two hundred and fifteen years of imperial dominance over the first Australians.

However, Hindmarsh showed that for all intents and purposes, colonialism continues on this country(77), and colonialism is a war of language and it attacks indigenous people through the assimilation of identity and culture such that a perennial advantage over native people becomes entrenched(78). Section 52 of the commonwealth constitution demands that laws are to be made for the “peace, order and good government of Australia”, and as such this war must stop. Self-determination through the elimination of inequality is the only thing that will ensure “peaceful co-existence” between indigenous and non-indigenous people(79), and self-determination can only be achieved through a policy of cementing meaningful participation of aboriginal people in all the institutions of secular power and that includes the High Court itself.

Custer’s Last Stand and the Politics of Denial: A Conclusion

The High Court’s recent evolution, towards of a culture of strict legalism might provide for some an argument against implementing affirmative action in the High Court Bench. People may ask, if the ‘black letter lawyer’ is today’s archetypal Justice of the High Court what difference does it make if that black letter lawyer is male, female, black or white? There should be, it is contended, no difference in the result and thus affirmative action would be a waste of time.

However, this would only be an argument clinging to the coat tails of the politics of denial. This tactic is summed up by rhetoric where the ugly past is swept away, and you claim no responsibility for it and then go on to assert that racism no longer exists in this day and age(80). Prime Minister John Howard is a master of the politics of denial, claiming no responsibility for the policies that brought about the stolen generation, while at the same time claiming racism no longer exists today as sufficient reason to slash the budget of the Human Rights and Equal Opportunity Commission by forty percent(81). But the politics of denial is just that, denial of what is: discrimination is still prevalent in our society and its power structures and this is in contravention of the highest law in the land – the Commonwealth Constitution. Similarly, strict legalistic approaches are the judgments of denial. Legalism is false, you cannot escape your biases inherent in your race, gender, status and upbringing and anyone that says they can is merely “hiding political views behind the misleading rhetoric of detached legalism.”(82)[Ironically, it is a High Court Judge that says it best when he says:

“The belief that the law is a certain, definite and discoverable rule, which brooks no personal or idiosyncratic interpretation by the Judge, is one that dies hard.(83)”3]

This essay calls for the immediate suspension of Justices of the High Court on the grounds of “incapacity” as written in section 72(ii) of the Commonwealth Constitution. Specifically, because all the High Court Justices are white, male and upper middle class, there is an insufficient breadth of perspective on the bench to fulfill its role as a council of elders, able to debate with sufficient robustness in order arrive at appropriate decisions on matters of the utmost importance in Australian society. Constitutionally entrenched notions of equality and peace dictate that the makeup of the future High Court be done using a policy of affirmative action to ensure that, unlike the current High Court bench, the future benches of the High Court are capable of making appropriate decisions often enough such that all Australians can trust the High Court with its powerful role in Australian society. Since strict legalism is false and to escape you own conceptual framework is a nigh on impossibility, it is hereby considered that a policy of having at least one female, one male, one indigenous Australian, one non indigenous Australian, and at least one other minority, the most appropriate to ensure the High Court functions as it should, in accordance with the constitution and the principles it enshrines, either expressly or by implication.

Footnotes
[1] (1) Campbell, “Democracy, Human Rights and Positive law” v16 (1994) Sydney Law Review, p 195.

[2] (2) Galligan B, 1987, Politics of the High Court: A Study of the Judicial Branch of Government (University of Queensland Press), p249.

[3] (3) Per s76(i) of the Commonwealth Constitution (CC).

[4] (4) Zines L, 1997, The High Court and the Constitution (Butterworths), p xi.

[5] (5) Only 8 of 44 attempts have been successful. See http://www.aph.gov.au/library/handbook/referendums/

[6] (6) Per s128 CC

[7] (7) Galligan, n2, p249.

[8] (8) Zines, n4, p xi.

[9] (9) Per s75(i) CC.

[10 (10) Per s75(ii) CC.

[11](11) Per s75(iii) CC.

[12](12) Per s75(iv) CC.

[13](13) Per s75(v) CC.

[14](14) Per s76(ii) CC.

[15](15) Per s76(iii) CC.

[16](16) Per s73(i) CC.

[17](17) Per s73(ii) CC.

[18](18) Per s73(iii) CC.

[19](19) Per s73 CC.

[20](20) This was confirmed by Deane & Toohey JJ in Nationwide News (1992) 177 CLR 1.

[21](21) Montesquieu, 1989, The Spirit of the Laws (Cambridge University Press), p 21-31.

[22](22) Mill, 1982, On Liberty (Harmondsworth: Penguin), Ch. 2.

[23](23) Edwards W (1994) ‘Living the Deaming’ Ch. 5 in Bourke, C. Bouke, E & Edwards W, (Eds.) Aboriginal Australia (Brisbane: University of Queensland Press) p 68.

[24](24) Watson, “Law and Indigenous Peoples” 14(1) Law in Context, 1996, p 107.

[25](25) Ibid. at 107.

[26](26) (1971) 17 FLR 141.

[27](27) See A.Posner, “Economic Analysis of the Law”, Little Brown & Co, (1973), p 10-15.

[28](28) Locke, (1988) Two Treatise On Government. P Laslett (ed) Cambridge: Cambridge University Press, p 288-289.

[29](29) Harris, “The Narrative Law in the Hindmarsh Island Royal Commission” 14(2) Law in Context 1996, p 119.

[30](30) Taubman, “Protecting Aboriginal Sacred Sites: The Aftermath of the Hindmarsh Island Dispute” 2002 19(2) Environmental and Planning Law Journal p 147.

[31](31) Ibid. p 147.

[32](32) A breach of his requirement to live up to s72(ii)

[33](33) This condemnation is evident with Calder p 326, Hall J refers to it as a ‘wholly wrong decision’. For further criticism, see Lester & Parker (1973) “Land Rights. The Australian Aborigines Have Lost a Legal Battle But…” Alberta Law Review v.11 p 189; Hookey (1972), “The Gove Land Rights Case : A Judicial Dispensation For the Taking of Aboriginal Lands in Australia?” Federal Law Review v5, p 85.

[34](34) Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

[35](35) Commonwealth v State of Tasmania (1983) 158 CLR 1

[36](36) Brunton, “Blocking Business, An Anthropological Assessment of the Hindmarsh Island Dispute” (Melbourne: Tasman Institute, 1995) (UWA), p 2.

[37](37) Taubman, n.30, p 145.

[38](38) Watson, n.24 at 109.

[39](39) Harris, n.29 at 122.

[40](40) Brunton, n.36, p 2.

[41](41) Bourke, “Women’s Business: Sex, Secrets and the Hindmarsh Island Affair” (1997) 20(2) University of New South Wales Law Journal, p 349.

[42](42) Harris, n 9 at 136.

[43](43) Bourke, n41, p 337.

[44](44) Brunton, n36, p 2.

[45](45) Wingfield, “Kungkas” (2000) 5(1) Indigenous Law Bulletin p25.

[46](46) This concept of invisibility is explored in J Scutt, “Invisible Women? Projecting White Cultural Invisibility on Black Australian Women” (1990) 46(2) Aboriginal Law Bulletin.

[47](47) v The Commonwealth (1992) 174 CLR 455, 486.

[48](48) (1992) 174 CLR 455, 486.

[49](49) Ibid 485.

[50](50) Ibid 486–7.

[51](51) Ibid 486.

[52](52) Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

[53](53) Leeth (1992) 174 CLR 455, 486.

[54](54) Cole v Whitfield (1988) 165 CLR 360.

[55](55) (1947) 74 CLR 31.

[56](56) Kirk, “Constitutional Implications (II): Doctrines Of Equality and Democracy” [2001] MULR 2.

[57](57) As espoused by Bentham in 1996, An introduction to the principles of morals and legislation / Jeremy Bentham ; an authoritative edition by J.H. Burns and H.L.A. Hart ; with a new introduction by F. Rosen, and an interpretive essay by H.L.A. Hart (Oxford : Clarendon Press).

[58](58) (1992) 177 CLR 106 at 138. See also University of Wollongong v Metwally (1984) 158 CLR 447 at 476-477 per Deane J; Leeth v Commonwealth (1992) 174 CLR 455 at 486 per Deane and Toohey JJ; Nationwide News at 70 per Deane and Toohey JJ.

[59](59) (1994) 182 CLR 104 at 171.

[60](60) See Williams, G, “The High Court and the People” in Selby, H (ed), Tomorrow’s Law (Federation Press, 1995), 271.

[61](61) McGinty v Western Australia (1996) 134 ALR 289 at 343-344. See also ibid, at 378-379 per Gummow J.

[62](62) Hence in 1988 the Constitutional Commission recommended non-discrimination principles be adopted (at 536).

[63](63) Gaze, “The Ambiguity of Affirmative Action in Australia” 15(2) Law in Context 1997, p 138.

[64](64) [1995] HREOCA 12 (4 May 1995)

[65](65) Thornton, “Affirmative Action, Merit and the Liberal State” 2 Australian Journal of Law and Society 1985, p37.

[66](66) Gaze, n63, p153.

[67](67) Moens, “Affirmative Action: The New Discrimination” (Sydney: Center for Independent Studies) 1985.

[68](68) Bell rightly points out the term “Affirmative Action” is inappropriate because it implies action that is charitable rather than what it really is: remedial (in Bell, “Bakke, Minority Admissions and the Usual Price of Racial Remedies” in Chin (ed.) Affirmative Action and the Constitution: Judicial Reaction to Affirmative Action (New York: Garland Publishing) 1998, p 102.)

[69](69) Delgado, “Affirmative Action as a Majoritarian Device” in Chin (ed.) Affirmative Action and the Constitution: Judicial Reaction to Affirmative Action (New York: Garland Publishing) 1998, p 118.

[70](70) First granted in SA in 1894 (WA granted women the vote in 1899). See www.isis.aust.com/iwd/broadsheet/history.htm

[71](71) Mabo & Ors v Qld (No. 2) (1992) 175 CLR 1.

[72](72) Milirrpum v Nabalco (1971) 17 FLR 141.

[73](73) Mabo at 50-51.

[74](74) Watson, n24, p116.

[75](75) Quoted in McGeough, “Unfinished Business” Sydney Morning Herald, 27 May 1995, p27.

[76](76) Detmold, “The New Constitutional Law” v16 Sydney Law Review 1994, p 237.

[77](77) Watson, n24, p 109.

[78](78) Long (ed.) 1984, Pathways to Self Determination (University of Toronto Press) p 7.

[79](79) Watson, n24, p 110.

[80](80) Morris K, “Through the Looking Glass: Recent Developments in Affirmative Action” in Chin (ed.) Affirmative Action and the Constitution: Judicial Reaction to Affirmative Action (New York: Garland Publishing) 1998, p 86.

[81](81) Gaze, n 63, p 141.

[82](82) Hutchinson, 1988, Dwelling on the Threshold: Critical Essays in Modern Legal Thought (Toronto : Carswell ; London : Sweet & Maxwell)

[83](83) As quoted in Galligan, n2, p 253.

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