Race power summary PDF

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RACE POWER SUMMA RY S 51 (xxvi): The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth 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. (Amended in 1967 to remove ‘other than the aboriginal race in any State)

SPECIAL LAWS DEEMED NECESSARY FOR PEOPLE OF ANY RACE “The people of any race‟ - The High Court has said that the power cannot be used to apply to all races, it is to any race - Meaning it must specify a race: “Such a law will not necessarily forfeit the character of a law under para (26) Because it legislates for several races. A law will, however, not possess that character if it legislates for all peoples of the Commonwealth, regardless of race”: Koowarta v Bjelke-Petersen Koowarta v Bjelke-Petersen (1982) According to the majority, the Act protected all races and not any one particular race, and thus was not a special law for the people of any race. Gibbs CJ said that the power in the Constitution was not for the purpose of enabling Parliament to make laws for the special protection of people of particular races.  Murphy J‟s dissent explained that s 51 (xxvi) contained the word “for ‟ which means “for the benefit of‟ and not “with respect to‟, so to enable laws intended to affect adversely the people of any race. - Special laws  Laws that are of their nature, special to the people of a particular race o Per Stephen J: The law must be a law which of its own nature is special to the people of a particular race, because of their ‘special needs’ or because of a ‘special threat of or problem’ which they present, and hence, the necessity for the law to arise Commonwealth v Tasmania (Tasmanian Dam Case) (1983) - Deane J had the same view as Brennan J by saying that initially the race power was used for or against the interest of a particular race; but since the referendum, the general power to legislate can only be used for their benefit. - Brennan J: “Physical similarities, and a common history, a common religion or spiritual beliefs” - Deane J: “The reference to “people of any race” includes all that goes to make up the personality and identity of the people of a race: spirit, belief, knowledge, tradition and cultural and spiritual heritage.” WA v Commonwealth (Native Title Case) (1995) - The majority of the High Court defined the scope of the race power in the Native Title Act Case by stating that, unlike the aliens or corporations’ power, it is not expressed to be a

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power to make laws simply with respect to persons of a designated character. It must be deemed necessary that special laws be made for the people of any race. The court said whether a law is necessary, is for the parliament to decide: “Section 51 (xxvi) can support a law only if that law is one which the Parliament has deemed necessary for the people of a race.”

FOR THE BENEFIT OF A RACE? Koowarta v Bjelke-Peterson (1982) - Per Brennan and Deane JJ  The race power in its original form was to make laws discriminating adversely against particular racial groups. But since the amendment in 1967, it was an affirmation that the primary object was beneficial. - ‘For’ does not mean ‘with respect to’ so as to enable laws intended to affect adversely the people of any race o Note dissenting view of Gibbs CJ  The power in the Constitution was not only for the purpose of enabling Parliament to make laws for the special protection of people of particular races Kartingeri v Commonwealth (1998) (Hindmarch Bridge Case) - Majority ruling could be interpreted that laws could be made for the detriment of a race (not just for the benefit of a race as suggested in Koowarta v Bjelke-Peterson). Kruger v Commonwealth (Stolen Generations Case) (1997) - Found arguable that the power only authorises laws for the benefit of “the people of a race for whom it is deemed necessary to make special laws” o Gummow J – noted in its original form it had allowed detrimental as well as beneficial legislation Native Title Act Case (1993) - The special quality ascertained by reference to its differential operation upon people of a particular race, not by reference to circumstances which led the Parliament to deem it necessary to enact the law o When law confers a right or benefit or imposes an obligation or disadvantage, especially on people of a particular race o The law may be special even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race Tasmanian Dams (1983) - A majority in Tasmanian Dams held s 51(xxvi) extends to protecting the cultural heritage of the people of a particular race, even if what is protected (e.g. aboriginal sites) may also be of significance to all Australians and indeed all humanity....