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Published online by Cambridge University Press: 24 January 2025
In the context of proposals to amend the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, the Expert Panel established by the Australian Government recommended the insertion of a prohibition of racial discrimination. Canadian experiences may assist when exploring the potential implications of prohibiting discrimination in the Australian Constitution and when considering the various options that are available. With this in mind, in this article I discuss the constitutional ideas regarding equality and non-discrimination that have already begun migrating from Canada to Australia and could continue to inform Australian consideration of the numerous issues that may arise. I start with an appraisal of the perceived problems surrounding s 51(xxvi) of the Australian Constitution and the reform options that have already been identified, before considering what Canadian approaches could offer Australia, if anything. My view is that the utility of the transplantation of constitutional provisions depends on the starting point. Its usefulness may be less when the focus is a parochial issue. While it may be possible to draft a tighter prohibition, there could remain a risk that focusing on non-discrimination could overshadow the Aboriginal rights dimensions underlying many calls for recognition.
The views expressed in this article do not necessarily represent the views of the Australian National University, nor of the Attorney-General's Department. I would like to thank Dr Katharine Young, Brendan Lim, Jeff Murphy, Leonie Young and the anonymous referees for their helpful suggestions.
1 Expert Panel on Constitutional Recognition of Indigenous Australians, ‘A National Conversation Aboriginal and Torres Strait Islander Recognition’ (Discussion Paper, May 2011) 18 ('Expert Panel Discussion Paper’).
2 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (2011) xviii ('Report of the Expert Panel’).
3 Commonwealth, Parliamentary Debates, House of Representatives, 15 February 2012, 1330 (Julia Gillard). Although the Government announced on 20 September 2012 that, in the Government's view, ‘there is not yet enough community awareness or support for change to hold a successful referendum at or before the next federal election', the Government reaffirmed its support for constitutional change that includes ‘removal of references to race, reflecting the nation's fundamental belief in the importance of equality and non-discrimination': Jenny Macklin, ‘Progressing Indigenous Constitutional Recognition’ (Media Release, 20 September 2012) <http://www.jennymacklin.fahcsia.gov.au/node/2098>.
4 See especially Choudhry, Sujit, ‘Migration as a New Metaphor in Comparative Constitutional Law’ in Choudhry, Sujit (ed), The Migration of Constitutional Ideas (Cambridge University Press, 2006) 1Google Scholar Unlike Choudhry, my intention is to keep the concepts ‘transplantation’ and ‘migration’ somewhat distinct (the former being a subset of the latter). I consider ‘transplantation’ to involve the deliberate adoption or modification of the approach of another jurisdiction as a means of reform; whereas I use ‘migration’ in a looser sense to mean the movement of ideas from one jurisdiction to another.
5 Indeed the Report of the Expert Panel notes that ‘[t]he most commonly referenced comparative example of recognition at consultations and in submissions was Canada': above n 2, 52.
6 Davis, Megan, ‘A Culture of Disrespect: Indigenous Peoples and Australian Public Institutions’ (2006) 8 University of Technology Sydney Law Review 135, 139.Google Scholar
7 These ideas are canvassed in Expert Panel Discussion Paper, above n 1, 18.
8 Australian Constitutional Commission, Final Report of the Constitutional Commission (1988) vol 2, 720 ('Constitutional Commission Report’).Google Scholar
9 Ibid vol 2, 717.
10 French, Justice Robert, ‘The Race Power: A Constitutional Chimera’ in Lee, H P and Winterton, George (eds) Australian Constitutional Landmarks (Cambridge University Press, 2003) 180, 190.CrossRefGoogle Scholar
11 Constitutional Commission Report, above n 8, vol 2, 718.
12 Report of the Expert Panel, above n 2, xviii.
13 Ibid.
14 Constitutional Commission Report, above n 8, vol 1, 536.
15 See above n 4.
16 Constitutional Commission Report, above n 8, vol 1, 545.
17 Canada Act 1982 (UK) c 11, sch B pt I ('Canadian Charter of Rights and Freedoms’).
18 Ibid s 32(1).
19 RSC 1985, app III.
20 Macklem, Patrick, Indigenous Difference and the Constitution of Canada (University of Toronto Press, 2001) 210Google Scholar; Monahan, Patrick J, Constitutional Law (Irwin Law, 3rd ed, 2006) 428Google Scholar; Hogg, Peter W, Constitutional Law of Canada (Thomson Carswell, 5th ed, 2007) vol 2, 28.Google Scholar
21 [1970] SCR 282.
22 RSC 1952, c 149.
23 See Hogg, above n 20, vol 2, 606.
24 Ibid.
25 Ibid vol 2, 606–7.
26 See Bayefsky, Anne F ‘Defining Equality Rights’ in Bayefsky, Ann F and Eberts, Mary (eds), Equality Rights and the Canadian Charter of Rights and Freedoms (Carswell, 1985) 1, 3Google Scholar; Macklem, above n 20, 201.
27 Hogg, above n 20, vol 2, 619–20.
28 Ibid vol 2, 621 (citations omitted).
29 [1989] 1 SCR 143.
30 [1999] 1 SCR 497.
31 [2008] 2 SCR 483.
32 See also Ermineskin Indian Band v Canada [2009] 1 SCR 222 and Alberta (Aboriginal Affairs and Northern Development) v Cunningham [2011] 2 SCR 670. Ermineskin Indian Band v Canada is discussed at page 15 below. In Alberta (Aboriginal Affairs and Northern Development) v Cunningham the Supreme Court found that the exclusion of the claimants from membership in a Métis settlement did not constitute discrimination under s 15.
33 [2008] 2 SCR 483, 502 [17] (citations omitted).
34 Hogg, above n 20, vol 2, 654 (emphasis in original).
35 Macklem, above n 20.
36 (1987) 50 Man R (2d) 92 ('Manitoba Rice Farmers’).
37 (1995) 22 OR (3d) 552.
38 [2000] 1 SCR 950.
39 [2008] 2 SCR 483.
40 An examination of the extent to which Charter rights apply to First Nations or the issues that arise in disputes between Aboriginal peoples falls beyond the scope of this article.
41 (1987) 50 Man R (2d) 92.
42 Macklem, above n 20, 216–19.
43 (1987) 50 Man R (2d) 92, 101–2 [54].
44 Ibid 102 [59].
45 Ibid 102 [61].
46 (1995) 22 OR (3d) 552.
47 Macklem, above n 20, 219.
48 Ibid.
49 (1995) 22 OR (3d) 552, 570.
50 Ibid 571.
51 Ibid 562. See also Macklem, above n 20, 220.
52 [2000] 1 SCR 950.
53 Ibid 963 [11], 972 [32] (Iacobucci J).
54 The terms for distributing the casino's proceeds were negotiated between the Province of Ontario and the Chiefs of Ontario. They were distributed only to Ontario First Nations communities registered as bands under the Indian Act, RSC 1985, c I-5: ibid 959–60 [1].
55 Ibid 959 [6].
56 Ibid 994–8 [74]–[83].
57 Ibid 1007 [100].
58 Ibid 1004 [93].
59 Ibid 1007 [100]. See Macklem, above n 20, 220–1.
60 [2008] 2 SCR 483.
61 Ibid 495–6 [1]–[3] (McLachlin CJ and Abella J).
62 For a more comprehensive summary of the factual background see Nouvet, Dominique, ‘R v Kapp: A Case of Unfulfilled Potential’ (2010) 8 Indigenous Law Journal 81, 83.Google Scholar Nouvet was counsel for the T'Sou-ke, Beecher Bay, Songhees, Malahat and Snaw-naw-as First Nations who intervened in R v Kapp in the Supreme Court of Canada.
63 R v Kapp [2003] 4 CNLR 238. See the summary at [2008] 2 SCR 483, 499 [10].
64 R v Kapp (2004) 31 BCLR (4th) 258.
65 R v Kapp (2006) 56 BCLR (4th) 11.
66 R v Kapp [2008] 2 SCR 483.
67 Nouvet, above n 62, 83.
68 R v Kapp [2008] 2 SCR 483, 511 [37] (emphasis in original).
69 Nouvet, above n 62, 85.
70 R v Kapp [2008] 2 SCR 483, 514–15 [46]–[48].
71 Majury, Diana, ‘Equality Kapped: Media Unleashed’ (2009) 27 Windsor Year Book of Access to Justice 1, 5.CrossRefGoogle Scholar In her article Majury also argues that in Canada ‘public understanding of equality, reinforced by mainstream media, remains firmly tied to the notion that equality is about sameness': at 3. The same may be true of Australia.
72 Nouvet, above n 62, 86.
73 Ibid 90.
74 Majury, above n 71, 5 (citations omitted).
75 Nouvet, above n 62, 93–4.
76 (Imp), 30 & 31 Vict, c 3 ('Constitution Act 1867’).
77 Hogg, above n 20, vol 2, 112.
78 [1986] 1 SCR 103.
79 R v Chaulk [1990] 3 SCR 1303, 1335–6.
80 (2011) 245 CLR 1, 212–13 [550]. As Crennan and Kiefel JJ explained at 209 [541], ‘the [Victorian] Charter was drafted with an eye to legislative and constitutional instruments in other countries which have the general object of protection and promotion of human rights'.
81 See, eg, Eisen, Jess, ‘Rethinking Affirmative Action Analysis in the Wake of Kapp: A Limitations–Interpretation Approach’ (2008) 6 Journal of Law and Equality 1.Google Scholar
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83 Hogg, above n 20, vol 1, 810.
84 Ibid.
85 [1999] 2 SCR 203.
86 RSC 1985, c I–5.
87 [1999] 2 SCR 203, 216 [6] (McLachlin and Bastarache JJ); 253–4 [62] (L'Heureux-Dube J).
88 Hogg, above n 20, vol 1, 810.
89 [1999] 2 SCR 203, 248 [52] (L'Heureux-Dube J). See also at 224 [20] (McLachlin and Bastarache JJ).
90 [2008] 2 SCR 483, 521 [65] (McLachlin CJ and Abella J).
91 Ibid 548 [123].
92 Nouvet, above n 62, 91.
93 Ibid.
94 See Hogg, above n 20, vol 2, 164.
95 See ibid, vol 2, 167. See also Edward Greenspan, ‘Split Verdict!’ Globe and Mail (online), 13 May 2011 <http://www.theglobeandmail.com/news/arts/books/mighty-judgment-how-the-supreme-court-of-canada-runs-your-life-by-philip-slayton/article2021470/print/>. See further Goldsworthy, Jeffrey, ‘Judicial Review, Legislative Override and Democracy’ (2003) 38 Wake Forest Law Review 451.Google Scholar Goldsworthy explains that while the provision has been used more often than is often thought, ‘the fact remains that it has been used very rarely': at 466.
96 Goldsworthy, above n 95, 453 citing Russell, Peter H, ‘Standing Up for Notwithstanding’ (1991) 29 Alberta Law Review 293, 294.CrossRefGoogle Scholar
97 Goldsworthy, above n 95, 470.
98 Ibid quoting Constitutional Commission Report, above n 8, vol 1, 494–5.
99 Subsections 35(3) and (4) were added by the Constitution Amendment Proclamation 1983, RSC 1985, Appendix II, No 46.
100 Chief Justice Beverley McLachlin ‘Reconciling Sovereignty: Canada and Australia's Dialogue on Aboriginal Rights’ in Cane, Peter (ed), Centenary Essays of the High Court of Australia (LexisNexis Butterworths, 2004) 101, 106.Google Scholar
101 See McNeil, Kent, ‘What is the Inherent Right of Self-Government?’ (Paper presented at the Hul'qumi'num Treaty Group and National Centre for First Nations Governance, Governance Development Forum, Parksville, British Columbia, 3 October 2006) 2.Google Scholar
102 Aboriginal Communal Fishing Licences Regulations, SOR/93-332: see R v Kapp [2008] 2 SCR 483, 498 [7].
103 (Imp), 30 & 31 Vict, c 3 ('Constitution Act 1867’).
104 Hogg, above n 20, vol 2, 661 (citations omitted).
105 Ibid.
106 [2009] 1 SCR 222.
107 Sections 61 to 68 of the Indian Act, RSC 1985, c I–5.
108 See above n 33 and accompanying text.
109 Ermineskin Indian Band v Canada [2009] 1 SCR 222, 286 (Rothstein J for the Court). Jonnette Watson Hamilton and Jennifer Koshan are critical of the Court's decision. They explain that although ‘[t]he Court tries to frame the money management rules and Crown practice as matters of “Aboriginal self-determination and autonomy“', ‘[i]f the broader social, political and legal context had been considered, Crown control over Indian moneys could have been seen as part of the long history of paternalism and colonialism under the Indian Act, harms that are surely based, at least in part, on stereotyping and prejudice': Hamilton, Jonnette Watson and Koshan, Jennifer, ‘Courting Confusion? Three Recent Alberta Cases on Equality Rights Post-Kapp’ (2010) 47 Alberta Law Review 927, 937.CrossRefGoogle Scholar
110 Kingsbury, Benedict, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law’ (2001) 34 International Law and Politics 189, 199.Google Scholar
111 Ibid.
112 Nouvet, above n 62, 94.
113 See Wong v Commonwealth (2009) 236 CLR 573, 583 (French CJ and Gummow J).
114 (1985) 159 CLR 70.
115 See ibid 76 (Gibbs CJ).
116 Ibid 87–8 (Gibbs CJ), 104 (Mason J), 108 (Murphy J), 113 (Wilson J), 143 (Brennan J), 154 (Deane J), 162 (Dawson J). Section 8 of the Racial Discrimination Act 1975 (Cth) cross-refers to art 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).
117 Nettheim, Garth, ‘International Law in Context’ in Peterson, Nicolas and Sanders, Will (eds), Citizenship and Indigenous Australians. Changing Conceptions and Possibilities (Cambridge University Press, 1998) 196, 200.CrossRefGoogle Scholar
118 Nettheim, Garth, ‘Special Measures: A Response’ in Race Discrimination Commissioner (ed), Racial Discrimination Act 1975: A Review (Australian Government Publishing Service, 1995) 233, 224.Google Scholar See also Hunyor, Jonathon, ‘Is it Time to Re-Think Special Measures under the Racial Discrimination Act? The Case of the Northern Territory Intervention’ (2009) 14(2) Australian Journal of Human Rights 39, 47.CrossRefGoogle Scholar
119 Committee on the Elimination of Racial Discrimination, General Recommendation No 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of All Forms Racial Discrimination, 75th sess, UN Doc CERD/C/GC/32 (24 September 2009).
120 Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, 1995) 7.CrossRefGoogle Scholar
121 See above n 3.
122 Expert Panel Discussion Paper, above n 1, 18.