There are more important issues to deal with right now. The ridiculous overreaction to protesters (rightly) chanting ‘shame’ and ‘racist’ at Tony Abbott (and seemingly also Julia Gillard) has been discussed, among other places, at Newmatilda, and at Crikey.

However, I’ve gotten into an argument with Keith Windschuttle. To which he replied. So I thought I’d try to briefly explain the argument.

My first article made a few basic points. Windschuttle is a very aggressive writer, who does not merely disagree with others: he insists that his ideological opponents have fabricated their claims, and his opponents amount to basically all of the relevant experts. Whitewash, for example, was basically the response of historians – the experts on the history of Indigenous-colonial conflict in Tasmania – to Windschuttle’s book sensational polemic. More recently, declaring that the issue of Stolen Generations was also marked by fabrication, Windschuttle said Robert Manne should ‘stand down from his position’ whilst an independent inquiry took place into his allegedly ‘false claims’.

So, given that each time Windschuttle claims to know the issues far better than the experts, it is very much at issue just how well informed he is when he writes his strident polemics. In his original article – which I responded to – the headline declared that ‘The Constitution is anything but racist’. As I noted, he aggressively attacked the expert panel, and the writers of an op-ed he replied to. One of them was Megan Davis, a professor of law at UNSW, the Director of the Indigenous Law Centre, whose area of expertise includes ‘Indigenous peoples and constitutional law’.

I didn’t – and don’t – claim to be an authority on the constitution. I have studied two years of law, and one subject called Federal Constitutional Law, which devoted one class to the race power. Yes, it is often called the ‘races power’ or ‘race power’, such as in the judgments by Justices Kirby and Gaudron in Kartinyeri. Windschuttle says my use of this term is my ‘own creative appendage’. Presumably, he thinks I invented the term to denigrate the judges he doesn’t like. I have included a picture of an extract from the syllabus for Fed Con. Readers can judge Mr Windschuttle’s familiarity with the subject area.

On to the substantive issues. Windschuttle talks about two sections of the Constitution. I don’t speak about one of them, section 25. I do not claim to be an expert on it. For those interested, I recommend reading George Williams, who actually is an expert on constitutional law.

I did, however, comment on what Windschuttle said about the race power (section 51(xxvi)). What he said is flagrantly wrong. To wit, he said that 1) ‘not once since federation has this section lent support to discrimination or racial abuse of Aboriginal people’ (2) Every time state and commonwealth laws in this field have been tested in the High Court, their intention has been found to be for the benefit of Aboriginal people.

On the first, I made the obvious point that until the 1967 change in the referendum, the race power said explicitly that it gave power to parliament to make laws with respect to ‘The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’. Windschuttle declares that this power was never used to discriminate against Aboriginal people. I explain that it was designed to discriminate against other people – and explicitly says so.

Windschuttle ignores the point that until 1967, it was impossible for it to be used against Aboriginal people. It is startling that he seeks to claim that because a provision designed not to be used against Aboriginal people was not used against Aboriginal people, it is therefore not a racist provision. I also made the point – it was used, and intended to be used – to discriminate against other races. And this was recognised at the time. Windschuttle didn’t comment.

Let’s continue. I make the next point: Kartinyeri is the most important case on the race power, and Windschuttle not knowing about it is kind of like a historian on modern Europe not knowing about the First World War. Actually, I think it’s probably more closely analogous to an expert on fascism not knowing about Mussolini. So let me explain. The Australian Constitution is basically the set of iron-clad rules for the Australian parliament to pass legislation. If legislation is found by the High Court to breach the Constitution, it is invalid. So how the High Court interprets parts of the Constitution determine what kinds of laws can be passed.

Windschuttle claimed the ‘most recent major case’ was Kruger. I responded by pointing out that Kruger ‘barely mentions the race power’. Windschuttle claims that ‘The meaning and relevance of Section 51 xxvi was canvassed widely in the various judgments.’ In fact, disregarding footnotes, Brennan CJ mentions it once, Dawson J mentions it twice, Toohey J mentions it four times, Gaudron and McHugh JJ don’t mention it at all, and Gummow J mentions it only once. Yet, Windschuttle only quotes Dawson J’s judgment. So what does Dawson J say about the race power?

Moreover the Constitution is in many respects inconsistent with a doctrine of legal equality.

Section 51 (xxvi), as Deane J recognised in The Tasmanian Dam Case[87], “remains a general power to pass laws discriminating against or benefiting the people of any race”. Similarly, s 51(xix) enables the Commonwealth Parliament to make laws which discriminate in favour of or against aliens. Discrimination in relation to the qualification to vote in federal elections is clearly envisaged by the Constitution[88] and equality of voting power is not guaranteed[89]. And until 1967 (which is after the last alleged act of detention ended), ss 51(xxvi) and 127 excluded Aboriginals for specified purposes. It is unnecessary to provide an exhaustive list of those respects in which the Constitution does not support the suggested doctrine of equality…To recognise as much is surely to undermine any basis for asserting that the Constitution assumes a doctrine of equality.

And Windschuttle’s response? ‘Justice Dawson found the powers given by the ordinance: “were required to be exercised in the best interests of the Aboriginals concerned or of the Aboriginal population generally”.’ What they felt about the ordinance is irrelevant to how the constitution was interpreted. And, as demonstrated above, Dawson J, quoting Deane J (as I did in my article), explicitly recognised that the race power can be used to discriminate against a race.

Windschuttle doesn’t seem to understand the difference between constitutional provisions and statutes. And he doesn’t seem to understand quite how the law works. When judges casually discuss something in passing, there is a fancy term for it: obiter dicta (or just obiter). It means that something is of passing interest, but is not legally binding. Windschuttle claims that ‘Kruger was the major case undertaken by Aboriginal activists to persuade the High Court to endorse the finding of the Human Rights Commission that the policy behind the “stolen generations” amounted to genocide.’ He seems to believe its political significance makes it legally relevant. He doesn’t understand that its political significant is completely irrelevant to the question of how the race power can be interpreted by parliament. Windschuttle seeks to obscure the legal issue, or simply does not understand how the law works.

Windschuttle then says Kartinyeri is ‘far less consequential’. Why? Well, he doesn’t explain. He proceeds to gives his own interpretation of Kartinyeri – but then fails to offer his explanation of why it’s unimportant. We can argue about what Kartinyeri meant, but that’s surely secondary to the major point: that it is the major case about how the race power can be used. I said that Justice Gaudron ‘tried to narrowly confine when the race power could be used’. Windschuttle purports to disagree with me, and speaks conspiratorially of ‘a passage Brull, unsurprisingly, failed to mention’. He then claims Justice Gaudron ‘actually went the furthest of any of her colleagues in Kartinyeri to argue the whole question of the “race power” being used to disadvantage Aboriginal people was redundant in present-day Australia.’ So after his huffy introduction, he seems to accept what I said about Gaudron J’s approach. And even so, he’s still wrong. She didn’t go ‘the furthest’. Justice Kirby flatly ruled out any use of the race power to disadvantage Aboriginal people, while Justice Gaudron sought only to narrowly confine it. (Which is exactly what I said.) It is nice that Windschuttle prefers their interpretation of the Constitution – but they were both in minorities on the issue. That is to say, their opinions are nice to read but they are not legally binding.

Returning to the second issue above. Windschuttle says every time ‘laws in this field have been tested in the High Court’, they’ve been found to be for the benefit of Aboriginal people. Well, the races power wasn’t used for Kruger, so it’s flatly irrelevant. In Kartinyeri, the court approved a law which was to the detriment of Aboriginal people.

Interestingly, Windschuttle now says that ‘For a law to be genuinely racist, it must obviously apply to all members of a race, not just selectively to some.’ So perhaps if a bar said ‘no blacks allowed’, that wouldn’t be racist, because it wouldn’t be applied to all black people. Or perhaps if it allowed in rich people with black skin, it’s not racist because it’s selective.

The fact is, in Kartinyeri a law was used under the race power – that is, a law with respect to a people of a certain race – and against their interests.

To take up one last legal point. The plaintiffs argued that the law they were challenging in Kartinyeri didn’t have support under the races power ‘because, whilst the Ngarrindjeri people are members of the Aboriginal race, they do not constitute the entirety of that race, and s 51(xxvi) requires a law to answer the description “with respect to … [t]he people of any race”, not with respect to some only of the people of any race.’ This argument was rejected by Gummow and Hayne JJ. They wrote:

The legislative power is to be construed with all the generality of which the phrase “the people of any race” admits[87]. That being so, why should the phrase “the people …” be read as if limited to “all the people”, rather than as including within the reach of the power any members of that class identified by the expression “the people of” the race in question?

So while the plaintiffs said the race power should not be allowed to be used against sections of a race, this was rejected by Gummow and Hayne JJ. Windschuttle appears to believe that the judges only allowed for selective discrimination against part of a race – not against all of them. As shown, they said it made no difference, and were happy to support the Bridge Act, recognising that it ‘imposes a disadvantage’. That it happened to impose a disadvantage on a group within a race is thus irrelevant.

Of course, there is more to be said, but this is already long. The relevant point is as follows. When it comes to, say, philosophy or politics, virtually anyone can speak with insight, and they often do not need to do much reading to become well informed. However, the law is complicated, and expertise actually really does make a difference.

Windschuttle claims I said ‘that because [Windschuttle is] not an authority on constitutional law [he has] no right to publicly discuss the subject.’ What I actually said was ‘to have an honest conversation about the merits of constitutional change, media outlets like the Australian should try to make sure their contributors have some vague idea of what they’re talking about.’

Anyone can discuss the merits of banning racial discrimination in the constitution. However, when it comes to discussing what the constitution actually allows for, there is such a thing as an expert opinion. I don’t claim to be an expert on constitutional law. What I said – and what I stand by – is that anyone with the vaguest knowledge of the race power will know that Kartinyeri is the most important case on the race power. The High Court tells us what limits the Constitution places on how laws can be made, and Kartinyeri discussed the limits of the race power. When Windschuttle wrote that Kruger was important on the subject of the races power, he shows that he just doesn’t understand how the Constitution works. When he said the meaning and relevance of the race power was ‘canvassed widely’ in Kruger, besides being factually dubious, it shows that he doesn’t understand how the law works.