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Benign Racial Discrimination: Equality and Aborigines

Published online by Cambridge University Press:  24 January 2025

David Partlett
David Partlett*
Affiliation:
Law School, Australian National University
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Abstract

Mr Partlett is concerned to review the theoretical and practical place of government programs which positively discriminate in favour of groups on racial lines. He reviews the justification of this benign discrimination in relation to the notion of equality. He finds that the justification of benign discrimination depends upon its social realities. With reference to recent United States constitutional law developments he concludes that programs of benign discrimination must be closely justified to ensure that they do not trespass on certain fundamental rights and freedoms of the individual.

Australian government initiatives are then reviewed together with an appraisal of their legal standing under the various pieces of anti-discrimination legislation in Australia.

The author attempts to synthesise out of this discussion a strategy under which benign programs may be encouraged for the promotion of equality for aborigines, while at the same time the individual human rights of others are protected.

Type
Research Article
Information
Federal Law Review , Volume 10 , Issue 3 , September 1979 , pp. 238 - 286
Copyright
Copyright © 1979 The Australian National University

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Footnotes

I thank Dr Ross Cranston, Dr Paul Finn, Professor Charles Rowley and Professor Leslie Zines for their invaluable comments on an earlier draft. I have been persuaded by many of their comments but, of course, any shortcomings are solely mine.

References

1 (1978) 57 L. Ed. 2d 750, 844 (hereinafter referred to as Bakke).

2 Evans, “Benign Discrimination and the Right to Equality” (1974) 6 F.L. Rev. 26 (hereinafter referred to as Evans).Google Scholar

3 No. 52 of 1975 (Cth). A Bill to amend the Act has recently been introduced. The Bill is complementary to the Human Rights Commission Bill, 1979.

4 See Evans, “New Directions in Australian Race Relations Law” (1974) 48 A.L.J. 479.Google Scholar

5 The Opposition was able to use its strength in the Senate to dilute many provisions of the Bill, S.Deb. 1975, Vol. 64, 1978-1986, 2018-2041.

6 Kelsey, “A Radical Approach to the Elimination of Racial Discrimination” (1975) 1 University of New South Wales Law Journal 56Google Scholar but cf. Partlett, “The Racial Discrimination Act 1975 and the Anti-Discrimination Act 1977: Aspects and Proposals for Change” (1977) 2 University of New South Wales Law Journal 152.Google Scholar

7 This is borrowed from Dworkin, Taking Rights Seriously (1977).

8 Evans, 26; also Sandalow, “Racial Preferences in Higher Education: Political Responsibility and the Judicial Role” (1975) 42 University of Chicago Law Review 653CrossRefGoogle Scholar; Note, “Reverse Discrimination-A Summary of the Arguments with Further Consideration of Its Stigmatizing Effect” (1977) 16 Washburn Law Review 421.

9 Evans, 45-83.

10 Act No. 48 1977.

11 Act No. 108 1976.

12 Wasserstrom, “Racism, Sexism, and Preferential Treatment: An Approach to the Topics” (1977) 24 UCLA Law Review 581, 583 ff.Google Scholar

13 Id. 583.

14 Rawls, A Theory of Justice (1972) 97 (hereinafter referred to as Rawls) uses “equal citizenship”; the term “members of society” is preferable in ensuring that equality is accorded to non-citizens in the technical sense.

15 Ibid.

16 Wilson, Equality (1966).

17 Stone, Human Law and Human Justice (1965) 341Google Scholar, regards the precept “generally all action should respect the principle of equality between persons” as one of the “quasi-absolute precepts of material justice in our own time and place”.

18 Rawls, 101 points to the role of education in providing for each individual a secure sense of his own worth.

19 Rawls, 83: “fair equality of opportunity”.

20 Stone, op. cit. 335; Wechsler, “Toward Neutral Principles of Constitutional Law” (1959) 73 Harvard Law Review 1.CrossRefGoogle Scholar

21 See s. 10 of Commonwealth Act.

22 In the United Kingdom the latest in a line of enactments is the Race Relations Act 1976 (1976 c. 74); New Zealand has enacted the Race Relations Act 1971 (1971 No. 150); Ontario the Human Rights Code, 1961-1962 (Stats Ont. 1961-1962 c. 93).

23 Slaughter-House Cases (1872) 83 U.S. 36.

24 (1895) 163 U.S. 537.

25 For historical aspects Frank, and Munro, “The Original Understanding of 'Equal Protection of the Laws'” (1950) 50 Columbia Law Review 131.CrossRefGoogle Scholar

26 (1954) 347 U.S. 483.

27 Gunther, “The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection” (1972) 86 Harvard LaYt Review 1, 8.CrossRefGoogle Scholar

28 Ely, “The Constitutionality of Reverse Racial Discrimination” (1974) 41 University of Chicago Law Review 723CrossRefGoogle Scholar and Brest, “The Supreme Court, 1975 Term-Foreword: In Defense of the Antidiscrimination Principle” (1976) 90 Harvard Law Review 1.CrossRefGoogle Scholar

29 Brest, op. cit. 2.

30 Ibid.

31 Fiss, “The Fate of An Idea Whose Time Has Come: Antidiscrimination Law in the Second Decade after Brown v. Board of Education” (1974) 41 University of Chicago Law Review 742, 764.CrossRefGoogle Scholar

32 Ibid. Ball, Cf. “Judicial Protection of Powerless Minorities” (1974) 59 Iowa Law Review 1059.Google Scholar

33 Sandalow, op. cit. 654-655. Reference omitted.

34 Stone, op. cit. 330-331 writes that on one view equality is present in the idea of justice as “fairness”, “the ideal is thought to involve a maximum of liberty of each compatible with like liberty of all, except where inequality will work out to everyone's advantage”. But cf. Bedau, “Egalitarianism and the Idea of Equality” in Pennock, and Chapman, (eds), Equality: Nomos IX (1967) 3, 9Google Scholar: “there is no such principle as fairness implies equality, at least, none by which we can override a known inequality declaring that the inequality is an equality merely because it is justified”.

35 Rawls, 100-101. Cf. Fried, Right and Wrong (1978) 116.

36 Id. 105.

37 Ibid. Cf. Fried, op. cit. 118 who uses the term “common humanity”.

38 Nagel, “Equal Treatment and Compensatory Discrimination” in Nagel, Cohen and Scanlon, (eds), Equality and Preferential Treatment (1977) 3.Google Scholar

39 Id. 14.

40 This is brilliantly drawn out in Terrill, R.H. Tawney and His Times (1973) 121-137. Most of Tawney's thinking on equality is contained in Tawney, Equality (1931).

41 Terrill, op. cit. 131.

42 Id. 128.

43 Id. 130.

44 Id. 137.

45 Dworkin, “DeFunis v. Sweatt” in Cohen, Nagel and Scanlon (eds), op. cit. 63, 67.

46 Ibid.

47 Id. 68.

48 Ibid.

49 Id. 73.

50 Rawls, op. cit. 107.

51 Terrill, op. cit. 124.

52 Id. 125.

53 Id. 128.

54 Ibid.

55 Dworkin, “DeFunis v. Sweatt”, op. cit. 14.

56 Id. 82-83.

57 Wasserstrom, op. cit. 617.

58 Ibid.

59 Id. 618.

60 This is described as the “assimilationist ideal”. Id. 603-615.

61 (1974) 416 U.S. 312.

62 (1978) 57 L.Ed. 2d 750, 98 S.Ct. 2733.

63 Greenawalt, “Judicial Scrutiny of 'Benign' Racial Preference in Law School Admissions” (1975) 75 Columbia Law Review 559, 571CrossRefGoogle Scholar; Goodman, “De Facto School Segregation: A Constitutional and Empirical Analysis” (1972) 60 California Law Review 275, 336CrossRefGoogle Scholar; Tatz, Race Politics in Australia (1979) 59-60.Google Scholar

64 Kaplan, “Equal Justice in an Unequal World: Equality for the Negro-The Problem of Special Treatment” (1966) 61 Northwestern University Law Review 363, 378.Google Scholar

65 Posner, “The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities” (1974) Supreme Court Review 1, 7-9Google Scholar, (hereinafter referred to as Posner). For stereotyping of Aborigines see generally Report on Inquiries by the Office of the Commissioner for Community Relations into the Existence of Racial Discrimination in Northern New South Wales and North Queensland and the Combat of that Discrimination (June 1976) and Royal Commission on Human Relationships: Final Report Vol. 5, 74: “There is evidence that many white people have stereotyped attitudes towards Aboriginals, regarding them as lazy, dirty, irresponsible, lacking in drive and unwilling to work.”

66 Posner, op. cit. 9.

67 Id. 10.

68 Id. 11.

69 Kaplan, op. cit. 379.

70 Brest, op. cit. 18, Greenawalt, op. cit. 571.

71 Greenawalt, op. cit. 512; Perry, “The Disproportionate Impact Theory of Racial Discrimination” (1977) 125 University of Pennsylvania Law Review 540, 550.CrossRefGoogle Scholar

72 (1979) 47 L.W. 4224 (No. 77-1119).

73 Id. 4228.

74 Tatz, op. cit. 59-60. These costs are set out in Posner, op. cit. 11-12.

75 This very resentment is voiced in a letter included in Commissioner for CoJIUDunity Relations, Third Annual Report 1978, 108. An ethnic groups program in the U.K. has drawn the same criticism: The Economist Vol. 270 No. 7072 (March 17, 1979) 25.

76 Evans, 43-44.

77 Id. 44. See also Rowley, A Matter of Justice (1978) 184.

78 Fiss, “Groups and the Equal Protection Clause” in Cohen, Nagel and Scanlon (eds), op. cit. 84, 140-141.

79 Greenawalt, op. cit. 572: “[T]here is something offensive in the notion”. Posner, op. cit. 12-14; for an excellent discussion of this problem see Bittker, The Case for Black Reparations (1973) 93-104.CrossRefGoogle Scholar

80 Bittker, op. cit. 97-100.

81 Posner, op. cit. IS. For comment on the unlawfulness of using sex as a proxy for need: Orr v. Orr supra n. 72, 4227 per Brennan J.

82 Posner, op. cit. 15.

83 Commission of Inquiry into Poverty, Second Main Report (1975) 262; Rowley, op. cit. 184; but cf. Bittker, op. cit. 134-135 whose argument obviates under- and over-inclusiveness problems by viewing rights to “reparations” as justified by race; such reparations are “not a poverty program”.

84 Karst, and Horowitz, “Affirmative Action and Equal Protection” (1974) 60 Virginia Law Review, 955, 960-961.CrossRefGoogle Scholar

85 The educational and promotional functions of the Commissioner for Community Relations under s. 20 of the Act are designed to combat this institutionalised discrimination.

86 Bakke per Marshall J. at 832-833.

87 Rowley, op. cit. 184; Sedler, “Racial Preference, Reality and the Constitution: Bakke v. Regents of the University of California” (1977) 17 Santa Clara Law Review 329, 354-358;Google Scholar but cf. Brest, op. cit. 50.

88 See generally Fiss, “Groups and the Equal Protection Clause”, op. cit.; Brest, op. cit. 49.

89 Glazer, “Individual Rights Against Group Rights” in Kamenka, and Tay, (eds), Ideas and ldealogies, Human Rights (1978) 87-103.Google Scholar

90 For brief resume Evans, 54-55. See also discussion of Indian constitutional affirmative action in Katz, “Benign Preferences: An Indian Decision and the Bakke case” (1977) 25 American Journal of Comparative Law 611.CrossRefGoogle Scholar

91 Van Dyke, “Justice as Fairness: For Groups?” (1975) 69 American Political Science Review 607.CrossRefGoogle Scholar

92 Id. 614. See also Kelsey, “The Role of Law in Achieving Racial Equality” University of New South Wales Quarterly Vol. 1 No. 4 September 1976, 3.Google Scholar

93 Glazer, op. cit. 103.

94 This clash with the common law tradition is observed with respect to Aborigines in Rowley, op. cit. 22-48.

95 Posner, op. cit. 15.

96 Id. 18.

97 This general thesis is made out in Posner, Economic Analysis of Law (2nd ed. 1977). But an adoption of the implications of Posner's later “wealth maximization” thesis may produce a different result: Posner, “Utilitarianism, Economics, and Legal Theory” (1979) 8 Journal of Legal Studies 103.CrossRefGoogle Scholar

98 Bonfield, “The Role of Legislation in Eliminating Racial Discrimination” (1965) 7 Race 107, 108.CrossRefGoogle Scholar

99 Posner, “Utilitarianism, Economics, and Legal Theory”, op. cit. 108.

1 Id. 125.

2 Id. 126.

3 Infra text at pp. 279-284.

4 Note, “Proportional Representation by Race: The Constitutionality of Benign Racial Redistricting” (1976) 74 Michigan Law Review 820, 839: “[W]hether or not proportional representation schemes can promote minority access, they should be found impermissible because the purpose (and possible effect) of such schemes is to dilute the voting power of non minority members and thereby diminish their constitutional right of political access”; Note, “Reverse Discrimination—A Summary of the Arguments with Further Consideration of Its Stigmatizing Effect”, supra n. 7, 425.

5 Rowley, The Destruction of Aboriginal Society (1970)Google Scholar; see generally Clark, A History of Australia Volumes I-IV; Vol. II, 143-146; Vol. III, 114, 122-123, 149, 255, 279, 289, 429-430; Vol. IV, 211-219, 221, 319-324; and Hartwig, “Aborigines and Racism: An Historical Perspective” in Stevens, (ed.), Racism: The Australian Experience Vol. 2 (1972) 9-24.Google Scholar

6 Kaplan, supra n. 64, 364; Wasserstrom, supra n. 11, 584 ff.

7 Supra n. 55.

8 Karst and Horowitz, op. cit. 957-961.

9 Contra Rowley, A Matter of Justice (1978) 82.

10 Bittker, The Case for Black Reparations (1973)CrossRefGoogle Scholar; Hughes, “Reparations for Blacks?” (1968) 43 New York University Law Review 1063Google Scholar; in the Australian context Rowley, A Matter of Justice (1978) 82-83CrossRefGoogle Scholar.

11 But cf. Glazer, op. cit. 102-103 who sees no half-way house.

12 The right for members of discriminated groups “to clarify, value and appreciate, without apology, the uniqueness of their own cultural experience” is fundamental. Reisman, , “Responses to Crimes of Discrimination and Genocide: An Appraisal of the Convention on the Elimination of Racial Discrimination” (1971) 1 Denver Journal of International Law and Policy 29, 54Google Scholar; for discussion of psychological importance of group membership generally: Honore, “The Human Community and the Principle of Majority Rule” (1979) 8 Sydney Law Review 599, 611.Google Scholar

13 Rowley, The Destruction of Aboriginal Society (1970).

14 Rowley, A Matter of Justice (1978) 34. Similarly the point has been made with respect to American Indians that individualisation is counter-cultural: Bittker, op. cit. 77.

15 Kassiola, “Compensatory Justice and the Moral Obligation for Preferential Treatment of Discriminated Groups” (1978) 11 Polity 46.CrossRefGoogle Scholar

16 Taylor, “Reverse Discrimination and Compensatory Justice” Analysis Vol. 33, No. 6 (1973) 177.CrossRefGoogle Scholar

17 Brest, supra n. 27, 42.

18 Fiss, “The Fate of An Idea Whose Time Has Come ... “ supra n. 30, 769-770; Posner, supra n. 65, 16; Thomson, “Preferential Hiring” in Nagel, Cohen, and Scanlon, (eds), Equality and Preferential Treatment (1977) 19, 35Google Scholar but cf. “The Supreme Court, 1977 Term” (1978) 92 Harvard Law Review 5, 138-141.

19 Regents of the University of California v. Bakke (1978) 57 L.Ed. 2d 750,778-779.

20 Swann v. Charlotte-Mecklenburg Board of Education (1971) 402 U.S. 1.

21 Perhaps the American Indian experience is more akin to the Australian Aborigine experience, see Kaplan, op. cit. 377.

22 Commission of Inquiry into Poverty, loc. cit.

23 Cf. Dworkin, supra n. 44.

24 Thomson, “Preferential Hiring”, op. cit. 22-24, casts some doubt on the legitimacy of this ground, but cf. Rowley, A Matter of Justice (1978) 176-177, 211-215.

25 (1974) 416 U.S. 312, 342, but cf. Sandalow, n. 8, 687, supra p. 239.

26 Posner, supra n. 65, 17, but cf. O'Neil, Discriminating Against Discrimination (1975) 94-99Google Scholar and Strickland, “Redeeming Centuries of Dishonour: Legal Education and the American Indian” (1970) University of Toledo Law Review 847, 861-866Google Scholar. But there is a need for a “significant number of members of a minority group”, Posner, 17; cf. Sandalow, op. cit. 689 n. 106.

27 Edwards, “A New Role for the Black Law Graduate-A Reality or an Illusion?” (1971) 69 Michigan Law Review 1407; O'Neil, Discriminating Against Discrimination, op. cit. 93-94.CrossRefGoogle Scholar

28 Brest, op. cit. 41.

29 See especially 176-178.

30 Id. 206-209.

31 ld. 212.

32 The writer thanks Professor Rowley for this point; he also makes the telling point that in Papua New Guinea under the “localization” program training went on under the Colonial regime without fitting recruits for jobs outside. A similar observation is made in respect of training on Aboriginal reserves. For statement on Government objectives see: Public Service Board, Employment of Aboriginals in the Australian Public Service with P.S.B. circulars (1973/6 20 February 1973, 1973/46 5 August 1973).

33 Id. attachment 3.

34 For a plea for Aboriginal lawyers see Rowley, A Matter of Justice (1978) 176.Google Scholar

35 Id. 84-109.

36 Kaplan, supra n. 64, 366-367.

37 Report of the National Advisory Commission on Civil Disorders (1968).

38 O'Neil, “Racial Preference and Higher Education: The Larger Context” (1974) 60 Virginia Law Review 925, 953.CrossRefGoogle Scholar

39 But cf. Posner, supra n. 65, 26-28, who describes this as the “realpolitik.” argument and views it as improper extortion.

40 Tatz, supra n. 63, 103.

41 See Report of the Australian Delegation to the U.N. Commission on Human Rights 35 Session, Geneva (1979). Australia is now a member of the Commission.

42 Press Release, “Human Rights Legislation”, Attorney-General, Senator P. Durack, Canberra, 23 July 1978, 36/78, and Press Release 11 February 1979, 10/79. The place of human rights in International Law is discussed in Starke, “Human Rights and International Law” in Kamenka, and Tay, (eds) Ideas and ldealogies, Human Rights (1978) 113.Google Scholar

43 Glazer, Affirmative Discrimination: Ethnic Inequality and Public Policy (1975) 193: “At the base of the conflict [between groups in housing] ... are less racist attitudes as such than perceived differences in behaviour, differences which are seen as threatening”. Evans, 42; but cf. Rowley, A Matter of Justice (1978) 83.

44 Perhaps the best example of this was the reaction of the forced busing of school children in the United States to promote integration, Glazer, op. cit. 77-129.

45 The writer thanks Professor Rowley for this observation. See also Royal Commission on Human Relationships Final Report Vol. 5, 74; Rowley, A Matter of Justice (1978) makes consistent reference to the problem of white backlash; 82, 83, 99, 123, 145, 208, 214 and 232; see also Commissioner for Community Relations, Third Annual Report (1978) 108.

46 Glazer, (1975) op. cit. 188.

47 Rowley, A Matter of Justice (1978) 76.Google Scholar

48 Id. 79.

49 Australian Mining Industry Council, Comments on Aboriginal Land Rights Legislation (March 1979).

50 Id. 10.

51 Jd. 3.

52 Glazer, op. cit. 220.

53 The Commissioner for Community Relations appointed pursuant to the Commonwealth Act has noted specific instances of backlash in his Third Annual Report (1978) 108-110.

54 (1978) 57 L.Ed. 2d 750.

55 Supra n. 26.

56 (1974) 416 U.S. 312; for detailed discussion see O'Neil, Discriminating Against Discrimination (1975).

57 “The Supreme Court, 1977 Term” (1978) 92 Harvard Law Review 5, 132.

58 For instance the Universities of Columbia, Harvard, Stanford and Pennsylvania, the Association of American Law Schools and B'nai B'rith Anti-Defamation League filed briefs. The briefs are reproduced in Allan Bakke versus Regents of the University of California (Council on Legal Education Opportunity, 1978) Vols. I-VI.

59 Howard, “The High Court's Road in the Bakke Case” Washington Post Outlook; October 9, 1977, Cl. C2.

60 Dworkin, “The Bakke Decision: Did it Decide Anything?” New York Review of Books August 17, 1978, 20Google Scholar; Freund, “Bakke: The Choices that Remain” New York Times Weekly Review July 9, 1978, E7Google Scholar; Lewis, ,” 'Bakke' May Change A Lot While Changing No Law” New York Times Weekly Review July 2, 1978, ElGoogle Scholar; Bork, ''The Unpersuasive Bakke Decision” Wall Street Journal July 21, 1978, 8Google Scholar; Sindler, Bakke, DeFunis and Minority Admissions (1978). The issues of two prestigious law reviews have been devoted to symposiums on the Bakke case: “A Symposium: Regents of the University of California, Bakke” (1979) 67 California Law Review No. 1 and “Bakke Symposium: Civil Rights Perspectives” (1979) 14 Harvard Civil Rights Civil Liberties Law Review No. 1.

61 See Editorial, “The Bakke Case and Reverse Discrimination” (1978) 52

62 See Howard, op. cit.; C2.

63 Watson, “Comparative Law and Legal Change” (1978) 37 Cambridge Law Journal 313CrossRefGoogle Scholar; Tatz, Race Politics in Australia (1979) 59Google Scholar: “[T]he outcome [of Bakke] may well influence the thinking on affirmative action in many societies, including Australia.”

64 Cf. Ely, “The Supreme Court, 1977 Term-Foreword: On Discovering Fundamental Values” (1978) 92 Harvard Law Review 5, 9CrossRefGoogle Scholar, for discussion of the Court's views on this point.

65 But cf. ibid.

66 (1978) 57 L.Ed. 2d 750, 793.

67 Id. 788-790.

68 Id. 790.

69 Appendix to Powell J.'s judgment, id. 790-792.

70 Id. 776, references omitted.

71 Id. 816, reference omitted.

72 Id. 816, 819.

73 Id. 826; cf. Blackmun J. at 843-844; Dworkin, ''The Bakke Decision: Did it Decide Anything?” op. cit. 22, trenchantly criticises this aspect of Powell J.'s judgment, thus: “If race counts in a flexible program then there will be some individual white applicant who loses a place but who would have gained one if race did not count. However that injury is described it is exactly the same injury— neither more nor less—that Bakke suffered.” See also Tribe, “Perspectives on Bakke: Equal Protection, Procedural Fairness or Structural Justice?” (1979) 92 Harvard Law Review 864, 867-873.CrossRefGoogle Scholar

74 Id. 840.

75 Id. 837.

76 For criticisms of this reasoning see Dworkin, “The Bakke Decision: Did it Decide Anything?” op. cit.; “The Supreme Court, 1977 Term”, op. cit. 142-148, but cf. Tribe, op. cit. 873-877.

77 (1954) 347 U.S. 483.

78 Cf. Rowley, Outcasts in White Australia (1971) 384Google Scholar.

79 Aboriginal Land Rights (Northern Territory) Act 1976 (No. 191) as amended by Aboriginal Land Rights (Northern Territory) Amendment Act 1978 (No. 21), Aboriginal Land Rights (Northern Territory) Amendment Act (No. 2) 1978 (No. 83), Aboriginal Land Rights (Northern Territory) Amendment Act (No. 3) 1978 (No. 70).

80 Australian Mining Industry Council, op. cit. supra n. 49, p. 260.

81 Ss. 4(1) and 24.

82 Milirrpum v. Nabalco Pty Ltd (1971) 17 F.L.R. 141; for comment see Hookey, “The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?” (1972) 5 F.L. Rev. 85Google Scholar; Q.C., Priestley “Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case” (1974) 6 F.L. Rev. 150Google Scholar; Hookey, “Chief Justice Marshall and the English Oak: A Comment” (1974) 6 F.L. Rev. 174Google Scholar.

83 Ss. 49, 50.

84 Housing will not be separately discussed. This is adequately covered in the Department of Aboriginal Affairs Annual Report 1977-1978 23-25.

85 Aboriginal Employment: Report of the Interdepartmental Working Party, July 1976, Parliamentary Paper No. 123/1977, 7.

86 Department of Aboriginal Affairs, op. cit. 19.

87 Ibid.

88 Aboriginal Employment Newsletter, March 1979 No. 4.

89 Report of Anti-Discrimination Board: Discrimination in Government Policies and Practice (1978) (hereinafter referred to as Report of Anti-Discrimination Board), Chapter 4, Section B; for full statistical analysis of Public Service employment see Volume 2 Appendix 5 of Report of Anti-Discrimination Board; see also Statistical Bulletin, Employment of Aboriginals in the Australian Public Service, at 1 October 1977, Public Service Board, Canberra, A.C.T.

90 Media Release, Department of Aboriginal Affairs, 26 May 1977.

91 The Honourable Tony Street, Minister for Employment and Industrial Relations, News Release, 6 June 1978.

92 For example, Applied Ecology Pty Limited, see 5th Annual Report 1977-1978.

93 Department of Aboriginal Affairs, Annual Report 1977-1978 20.

94 Details of other programs, id. 20-22.

95 Royal Commission on Human Relationships, Final Report Vol. 5, 75.

96 Report of Anti-Discrimination Board paras 7B.10-7B.13.

97 Public Service Board Paper, Employment of Aboriginals in the Australian Public Service.

98 Report of Anti-Discrimination Board paras 7B.1-7B.7.

99 Department of Aboriginal Affairs, Annual Report 1977-1978 31.

1 Id. 31-33; see also Aboriginal Study Grants Scheme and Aboriginal Secondary Grants Scheme, 1979.

2 Id. 40.

3 Id. 42.

4 Rowley, A Matter of Justice (1978) 115Google Scholar; Rowley, Outcasts in White Australia (1971) 426-433 and 483-487; for excellent study of the Aboriginal child in the educational system see Report of Anti-Discrimination Board Chapter 7 Section B.

5 See generally Royal Commission on Human Relationships, Final Report, Vol. 5, 77-78.

6 House of Representatives Standing Committee on Aboriginal Affairs, Aboriginal Health (Canberra) 1979. (Hereinafter referred to as Aboriginal Health). See also House of Representatives Standing Committee on Aboriginal Affairs, Report on Aboriginal Health and Related Matters in the South-West of Western Australia 1975, Parliamentary Paper No. 296/75.

7 Report of Anti-Discrimination Board paras 7C.l-7C.6 and paras 7C.20-7C.24.

8 Aboriginal Health 37-54.

9 Id. 55-62.

10 Id. 63-74.

11 Id. 11.

12 Report of Anti-Discrimination Board para. 7C.7 citing Population and Australia. A Demographic Analysis and Projection, First Annual Report of the National Population Enquiry, Vol. 2, 1975.

13 House of Representatives Standing Committee on Aboriginal Affairs, Alcohol Problems of Aboriginals, Final Report, 1977, especially 17-19; see also Royal Commission on Human Relationships, Final Report Vol. 5, 78 and Report of Anti-Discrimination Board paras 7C.17-7C.19.

14 Report, 26-30; see also Assistance to Australian Aboriginals, Department of Aboriginal Affairs, March 1978, 5-7.

15 Report of Anti-Discrimination Board para. 7C.37.

16 See also Law and Poverty in Australia at 264 ff. and Rowley, A Matter of Justice (1978) 48-49Google Scholar and Report of Anti-Discrimination Board para. 7E.1-7E.12; this is not an endemically Australian problem; see Law Reform Commission of Canada: The Native Offender and the Law 1974.

17 Report of Anti-Discrimination Board para. 7E.16-7E.18.

18 No. 103 of 1974.

19 S. 25; for a description and extent of activities see Aboriginal Loans Commission, Annual Report 1977-1978.

20 No. 159 of 1974.

21 Aboriginal Hostels Limited, Annual Report 1978.

22 For extent of discrimination against migrants see Report of Anti-Discrimination Board, Chapter 4 Section A.

23 Migrant Services and Programs, Report of the Review of Post-arrival Programs and Services for Migrants, May 1978.

24 See In Re Griffiths (1973) 413 U.S. 717. The U.S. Supreme Court held unconstitutional under the 14th Amendment a Connecticut State court rule which made aliens ineligible to take the State Bar examination.

25 Report of Anti-Discrimination Board paras 4B.20-4B.22.

26 Ranger Uranium Environmental Inquiry: Second Report.

27 Id. 40, 46, 225-228.

28 Royal Commission on Human Relationships, Final Report Vol. 5, 75.

29 For a short discussion in the context of sex discrimination see Creighton, “The Equal Opportunity Act-Tokenism or Prescription for Change” (1978) 11 Melbourne University Law Review 503, 532-533Google Scholar.

30 S. 7(d); cf. s.1, Race Relations Act 1976 (Eng.) (1976 c. 74) (hereinafter referred to as the U.K. Race Relations Act).

31 See infra text at n. 63, p. 281.

32 See Lester, and Bindman, Race and Law (1972) 214-217Google Scholar; New Zealand Race Relations Act 1971, s. 5(3), U.S. Civil Rights Act 1964, s. 2000e(l), 42 U.S.C.A.

33 S. 14(d). The Tasmanian Anti-Discrimination Bill 1978 echoes ss. 14 and 21 of the New South Wales Act.

34 See infra text at n. 63, p. 281.

35 See Keith, “The Race Relations Bill 1971” in McKean, (ed.), Essays on Race Relations and the Law in New Zealand (1971) 57, 11.CrossRefGoogle Scholar

36 See remarks of Messrs Chakravarty of India and Benites of Ecuador, U.N. Doc. E/CN. 4/SR. 786.

37 The United States Supreme Court in United Steelworkers of America v. Weber (1979) 47 L.W. 4851 (No. 78-432) decided, by a 5 to 2 majority, that an affirmative action program instituted by Kaiser Aluminium & Chemical Corp did not infringe Title VII of the Civil Rights Act 1964.

38 Drafted by the National Conference of Commissioners on Uniform State Laws, extracted in (1967) 4 Harvard Journal on Legislation 224.

39 Partlett, “The Racial Discrimination Act 1975 and the Anti-Discrimination Act 1977: Aspects and Proposals for Change” n. 6, supra p. 239. Creighton, op. cit. 535.

40 New York Times Weekly Review, July 9, 1978 E7.

41 Equality for Women Cmnd 5724 5; Dror, “Law and Social Change” in Aubert (ed.), Sociology of Law (1969) 90.Google Scholar

42 Supra p. 259.

43 Supra p. 248.

44 Supra p. 273.

45 The Commissioner for Community Relations under the Commonwealth Act; the Counsellor for Equal Opportunity under the New South Wales Act.

46 The need for judicial review of benign discrimination was noted by both the majority and minority of the United States Supreme Court in the Bakke case. Supra p. 263.

47 See New South Wales v. Commonwealth (1975) 135 C.L.R. 337 and Re Judges of the Australian Industrial Court and Another; ex parte C.L.M. Holdings Pty Ltd and Another (1977) 13 A.L.R. 273, 278 per Mason J.

48 Kutner v. Phillips [1891] 2 Q.B. 267, 272 per A. L. Smith J. Cf. Travinto Nomineeir Pty Ltd v. Vlattas [1972-73] A.L.R. 1153, 1174 per Gibbs J.

49 Dicey, Introduction to the Study of the Law of the Constitution (10th ed. 1961) by E. C. S. Wade. Judicial authority: Vauxhall Estates Ltd v. Liverpool Corporation [1932] 1 K.B. 733; Ellen Street Estates Ltd v. Minister of Health [1934] 1 K.B. 590. See also Laskin, “Canada's Bill of Rights: A Dilemma for the Courts?” (1962) 11 International and Comparative Law Quarterly 519, 528.CrossRefGoogle Scholar

50 1960 (Can.) 8-9 Eliz. II c. 44.

51 (1970) 9 D.L.R. (3d) 473.

52 Id. 484-485 per Ritchie J.

53 R. v. Gonzales (1962) 32 D.L.R. (2d) 290. See generally Cavalluzzo, “Judicial Review and the Bill of Rights: Drybones and Its Aftermath” (1971) 9 Osgoode Hall Law Journal 511.CrossRefGoogle Scholar

54 S. 5(2): “Unless the contrary intention appears, whether by express inference or necessary implication, each law of the Territory, whether made before or after the commencement of this Ordinance, shall be read and construed as being subject to the provisions of this Ordinance.” This Ordinance has been repealed: Statute Law Revision (Independence) Act 1975 (No. 92). The protections are now contained in the Papua New Guinea Constitution.

55 (1973] P.N.G.L.R. 461.

56 Wade, and Phillips, Constitutional and Administrative Law (9th ed. 1977) by A. W. Bradley, 74.Google Scholar

57 Ibid.

58 Dixon, “The Law and the Constitution” (1935) 51 L.Q.R. 590, 604.Google Scholar

59 Wade and Phillips, op. cit. 74.

60 Glazer, Affirmative Discrimination: Ethnic Inequality and Public Policy (1975) 194-195.

61 Cf. Dworkin, “Hard Cases” (1975) 88 Harvard Law Review 1057CrossRefGoogle Scholar. Generally, on principled judicial decision-making, Greenawalt, “The Enduring Significance of Neutral Principles” (1978) 78 Columbia Law Review 982.CrossRefGoogle Scholar

62 Bentham, Of Laws in General (Hart ed. 1970), 2-3 note a.

63 Programs of positive encouragement of employment of Aborigines in the Australian Public Service-supra n. 89 prima facie may be thought to infringe the political rights of White Australians in equal access to the Public Service as set out in para. (c) of Article 5 of the Convention, but “public service” seems to be used in a wider sense.

64 Dworkin, “Hard Cases”, op. cit. 1070.

65 See Evans, “The Most Dangerous Branch? The High Court and the Constitution in a Changing Society” in Hambly and Goldring (eds), Australian Lawyers and Social Change (1976) 13, 36-48.Google Scholar

66 (1942) 65 C.L.R. 373.

67 Id. 429.

68 But cf. Blackshield, “Judges and the Court System” in Evans (ed.), Labor and the Constitution 1972-1975 (1977) 105, 113Google Scholar: “it might be doubted how .much constructive sympathy its [the High Court} judges would bring to a Bill of Rights task”.

69 S. 92 of the Australian Constitution constantly raises these questions of an abstract kind: Zines, “Commentary on Paper by Evans” in Hambly and Goldring, (eds), op. cit. 81; for importance of this experience and quality of judiciary in judicial review see Cappelletti, “Judicial Review in Comparative Perspective” (1970) 58 California Law Review 1017CrossRefGoogle Scholar, cf. Okudaire, “The Japanese Court and Judicial Review” (1972) 3 Lawasia 67.Google Scholar

70 Attorney-General for Australia ex rel. McKinlay v. Commonwealth (1975) 135 C.L.R. 1 and Attorney-General (N.S.W.) ex rel. McKellar v. Common- wealth (1977) 51 A.L.J.R. 328. For perceptive prediction of direction of the High Court on these questions: Lindell, “Judicial Review and the Composition of the House of Representatives” (1974) 6 F.L. Rev. 84Google Scholar; for comment on McKinlay's case see Hanks, “Parliamentarians and the Electorate” in Labor and the Constitution, op. cit. 166; for an analysis of the justiciability of the double dissolution controvery see Zines, “The Double Dissolutions and Joint Sitting” id. 217. Generally Sexton, “The Role of Judicial Review in Federal Electoral Law” (1978) 52 A.L.J. 28.Google Scholar

71 Clark King and Co. Pty Ltd v. Australian Wheat Board and New South Wales (1978) 52 A.L.J.R. 670, 683 per Barwick C.J., 689 per Stephen J., 676 per Mason and Jacobs JJ. But cf. critical editorial, (1979) 53 A.L.J. 7.

72 Evans, '“The Most Dangerous Branch? ... “, op. cit. 74-75.

73 Bickel, The Least Dangerous Branch (1962) 55.

74 Ely, '“The Supreme Court, 1977 Term-Foreword: On Discovering Fundamental Values”, op. cit. 54-55. For similar analysis Greenawalt. '“The Enduring Significance of Neutral Principles”, op. cit. 1013-1021.

75 Dworkin, “Hard Cases”, op. cit. 1083.

76 (1973) 410 U.S. 113.

77 Cox, The Role of the Supreme Court in American Government (1976) 113-114CrossRefGoogle Scholar. See also criticism of High Court, Evans, '“The Most Dangerous Branch?...”,op.cit. 36-51.

78 Cox, op. cit. quoted in Bakke by Powell J., 776-777.

79 This argument is articulated in Sandalow, n. 8, 693-703, supra p. 239 and more fully in his later article “Judicial Protection of Minorities” (1977) 75 Michigan Law Review 1162, 1187: “A consensus achieved through a broadly representative political process is, thus, as close as we are likely to get to the statement of a norm that can be said to reflect the values of the society.”

80 Ely, “The Constitutionality of Reverse Racial Discrimination”, op. cit. 735-736.

81 Sandalow, “Judicial Protection of Minorities”, op. cit. 1188.

82 Id. 1188-1189.

83 Ely, “The Supreme Court, 1977 Term-Foreword: On Discovering Fundamental Values” 22-43, supra p. 263.

84 Posner, “Utilitarianism, Economics, and Legal Theory”, op. cit. 119-127, supra p. 252.

85 The inherent “anti-democratic” nature of this judicial review has been the subject of protracted debate in the United States: for review of the literature see Gunther, and Dowling, Cases and Materials on Constitutional Law (8th ed. 1970) 15-23Google Scholar; Bickel, The Least Dangerous Branch (1962)Google Scholar; Cox, The Role of the Supreme Court in American Government (1976) 99-118CrossRefGoogle Scholar and Dworkin, “Hard Cases”, op. cit. 1061-1062. In the Australian context see Bailey, “Fifty Years of the Australian Constitution” (1951) 25 A.L.J. 314, 325-326.Google Scholar

86 Some of the arguments used by the Queensland Government regarding the regimes existent on Aboriginal Reserves in Queensland meet this point; in the United States Glazer, Affirmative Discrimination: Ethnic Inequality and Public Policy passim has argued that affirmative action programs may not benefit those to whom they are directed.

87 Sandalow, “Judicial Protection of Minorities”, op. cit. 1191 citing Hook, The Paradoxes of Freedom (1962) 66.CrossRefGoogle Scholar

88 Ibid.

89 Wright, “Professor Bickel, the Scholarly Tradition, and the Supreme Court” (1971) 84 Harvard Law Review 769, 789.CrossRefGoogle Scholar

90 The locus classicus is the judgment of Jackson J. in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638 but cf. dissent of Frankfurter J. at 646 where his Honour makes a plea for judicial restraint.

91 This same point is made in relation to the ethnic communities in the U.K. in comparison with those in the U.S.A., Select Committee on Race Relations and Immigration, The Organisation of Race Relations Administration Vol. I, July 1975 (H.M.S.O. 448) para. 43.