The Races Power

From Uni Study Guides
Revision as of 19:11, 26 August 2014 by Admin (Talk | contribs)

Jump to: navigation, search

This topic is within Federal Constitutional Law.

Contents

Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014) pp.986-1008.

Introduction

S51 ection (xxvi) of the Constitution allowed the Commonwealth to legislate with respect to "[t]he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws."

  • The reference to aboriginal peoples was inserted because states wished to retain their rights to legislate with respect to the indingenous.
  • However, the part was struck out of the section in 1967.

Some of the words in the section need to be defined:

  • ' Race ' - race is to be defined broadly, and not according to specific genetic origins (Tasmanian Dam Case)
    • The King Ansell test is used: whether the individuals or the group (1) regard themselves & (2) are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins (Tasmanian Dam Case).
  • ' Special ' - special laws are laws which confer a right or benefit or imposes an obligation or disadvantage especially on people of a particular race (Native Title Act Case).
    • Test: the special quality of a law must be ascertained by reference to its differential operation upon people of a particular race, not by reference to circumstances that led the Parliament to deem it necessary to enact the law.
    • Note: a 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 (Native Title Act Case).
  • ' Necessary ' - what is necessary is to be defined by the Parliament’s judgement. However where there are grounds to do so, the court will not entirely abstain in matters of manifest abuse.

Scope

In order to engage the races power, the legislation in question must be directed towards the protection of a particular race; laws not directed towards a particular race are outside the scope of power: Koowarta.

  • For example, a law which applies to all races such as the Racial Discrimination Act is not a special law for the people of any one race. A specific race or races must be identified for whom it is necessary to make special laws.
  • This rule is based on the interpretation of the word 'special' in the Constitution.
  • An argument that if legislation enacted individually for each race then the laws would be valid is irrelevant, based on textual considerations.
  • When there is a subgroup within a race, the rule is that the power extends to use for the sub-group within the race: Kartinyeri v Commonwealth (Hindmarsh Island Bridge Case).

The scope of the races power was discussed in Koowarta:

  • Facts: the plaintiff challenged the validity of the Racial Discrimination Act as a general law and not special for the people of a particular case.
  • Held: a law which applies to all races such as Racial Discrimination Act is not a special law for the people of any one race - a specific race or races must be identified for whom it is necessary to make special laws. The Racial Discrimination Act was a general law applying to everyone.

End

This is the end of this topic. Click here to go back to the main subject page for Federal Constitutional Law.

References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

Personal tools
Namespaces

Variants
Actions
Navigation
Toolbox