Editorial: Racism and the Hindmarsh decision
In its decision in the Kumarangk (Hindmarsh Island) case, announced on April 1, the High Court found a way to evade the central issue. This was the government's claim that it has power, under the constitution, to pass racially discriminatory legislation.
Instead of rejecting this government defence of racism, the court found a tortured line of reasoning with which to dismiss the Ngarrindjeri people's claim that the Hindmarsh Island Bridge Act is invalid because it is racially discriminatory. The act prevents the Ngarrindjeri using the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to challenge construction of the Hindmarsh bridge.
In effect, the High Court majority ruled that the Hindmarsh Island Bridge Act does not disadvantage the Ngarrindjeri. The court said that the Heritage Protection Act was a benefit created by an act of parliament, not a right of Aboriginal people; parliament therefore had the right to repeal all or part of that benefit, which is what it did in the Bridge Act. This was the second line of defence of the government's lawyers, who had argued that the 1984 act conferred "privileges" on Aboriginal people.
The idea that protection of a people's cultural heritage from injury or desecration is a "privilege" to be granted or removed by parliament is itself a thoroughly racist notion. As a result, the High Court decision has further institutionalised racism in the Australian government, even though it did not endorse the government's explicit claim of racist powers.
What the decision also makes clear is that there is no state institution that can be relied upon to protect Aboriginal people or others threatened by racist government actions. While it is certainly legitimate to bring legal actions like the Ngarrindjeri challenge to the Hindmarsh Island Bridge Act, and legal challenges may help to influence broader public opinion, the role of courts is only to enforce the laws and rules of parliaments and governments. Fighting racism is above all a political struggle.
This must be kept in mind in the fight against the government's more openly racist Wik bill. While it is not excluded that the High Court might eventually declare aspects of the bill unconstitutional, it would be foolish to rely on such a decision. Progressive court rulings, when they do come, are primarily determined by politics — by political movements which create a climate of opinion that demands such rulings. This is never more true than when the judges involved imagine that they are ruling solely on the basis of eternal legal principles.
Attempts by the Labor Party to negotiate a Senate compromise on the Wik bill are harmful, even if they do not finally result in a deal, because they undermine political opposition to Howard's 10-point plan. They imply that the bill is not racist in its overall intent and effect, but merely misguided in some specific measures.
The Wik bill deserves to be met with outrage and rejection, not with compromise. Nothing else can defeat racism: that is the real message of the High Court's Hindmarsh decision.