23 November 2015


'The Racial Discrimination Act and Inconsistency under the Australian Constitution' by George Williams and Daniel Reynolds in (2015) 36(1) Adelaide Law Review 241-256 comments
The Racial Discrimination Act 1975 (Cth) has assumed a special place on the federal statute book in the forty years since its enactment. This is due to it operating as a national guarantee that rights shall be enjoyed equally by all people regardless of their race. This guarantee has, by virtue of s 109 of the Constitution, overridden inconsistent state legislation that detracts from such rights, and on one occasion has had a like effect on subsequent federal legislation. However, most such attempts to invoke inconsistency with state laws have failed due to limitations contained within the Act. Further, the effectiveness of the Act is limited at the federal level because the federal Parliament has the power to amend or suspend the Act’s operation, something Parliament has done on two occasions. Stronger protection – such as by entrenching the principle of non-discrimination on the basis of race in the Constitution – is required to bring about a stronger form of protection against racial discrimination.
 The authors argue
The Racial Discrimination Act 1975 (Cth) (‘RDA’) is in many ways just another federal statute. It may be repealed or amended by the federal Parliament at will and has no special constitutional status. Despite this, Sir Harry Gibbs, a former Chief Justice of the High Court, went so far as to say that in the RDA ‘we may already have what appears to be a bill of rights, limited it is true in scope, which is effective[ly] entrenched against the States.’
Sir Harry’s comment no doubt had a rhetorical tone to it, but it nonetheless highlights how the RDA has assumed a special place in the statute book some 40 years after its enactment. One aspect of this is the political importance attached to it over and above almost any other piece of federal legislation. This no doubt stems from the fact that the RDA touches upon fundamental community values in amounting to Australia’s most significant national prohibition of racial discrimination. Its importance is highlighted, rather than diminished, when the RDA is set in contrast to Australia’s lengthy past history of enacting laws that discriminate on the basis of race. The RDA marks a key legal and political turning point from laws such as those that denied Aboriginal people the right to marry or move freely, or to cast a vote in federal elections. The iconic nature of the RDA can be apparent when a federal government proposes that it be amended or wound back. The recent controversy over the proposal by the Abbott Government that s 18C of the Act be amended or repealed is a case in point. Similarly, the suspensions of the RDA brought about in 1998 in respect of native title and in 2007 in regard to the Northern Territory intervention5 sparked long-running national debates. They also gave rise to a strong sense of grievance amongst Indigenous peoples, who have been the only group in the community ever denied the protection of the Act.
The political and community importance attached to the RDA is reflected in the effect given to the Act by the Australian Constitution. It is in this respect that the RDA comes closest to establishing an overarching, national principle of racial non-discrimination, and so to resemble Sir Harry’s description of it as some form of bill of rights. Section 109 of the Constitution states:
109. Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
The effect of this provision is to render inoperative a section of a state statute that is inconsistent with a federal law. This can typically arise in any one of three ways:
1. If it is impossible to obey both laws.
2. If one law purports to confer a legal right, privilege or entitlement that the other law purports to take away or diminish
3. If the Commonwealth law evinces a legislative intention to ‘cover the field’, and a State law also operates in that same field. In this case there need not be any direct contradiction between the two enactments.
This supremacy of federal law over state law, combined with like rules that operate with respect to territory laws,  has enabled the RDA to set down a standard of racial non-discrimination not only at the federal level, but also for state and territory conduct.
This article examines this constitutional dimension to the RDA, that is, the extent to which the RDA has proved capable of overriding other laws so as to set down a national standard of freedom from racial discrimination. We do so by examining the cases in which it has been argued that the RDA overrides a state, territory or federal law. We do not deal with other constitutional questions, such as the source of power that enabled the Commonwealth to enact the RDA, or broader issues such as the efficacy of the RDA or whether it has acted as a limited bill of rights in other respects.