The Races Power

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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

Section 51 (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

Particular race requirement

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.

No limitation

Where the Commonwealth aims to confer a discriminatory benefit on people of Aboriginal race,there is no limitation upon nature of the benefits which a valid law may confer, and none should be implied: Tasmanian Dams Case.

Protection of objects of significance to ATSI cultural heritage

The scope of the races power extends to laws made for the protection of objects of significance to Aboriginals and Torres-Straight Islanders: Tasmanian Dams Case.

  • The rationale is again based on the interpretation the word 'special' in the Constitution - since "a special law which protects the persons or the property or the activities of Aboriginal people is also a law with respect to people of the Aboriginal race" (Deane J).

Use of the power to the detriment of Aboriginal peoples

As per obiter dicta of Murphy J in Koowarta, the races power cannot be used to the detriment of the Aboriginal peoples. This was supported by Brennan & Deane JJ in the Tasmanian Dams Case: “the primary object of the power is beneficial”.

  • The rationale for this rule is that the word ‘for’ means ‘for the benefit of’: Koowarta (Murphy J).

However, there is still some ambiguity and this principle is not completely accepted.

This question was discussed in Kartinyeri v Commonwealth (Hindmarsh Island Bridge case):[1]

  • Facts: minister had the power to make declarations for the protection of Aboriginal areas; 1 group of women claimed the Island was used for “secret women’s business; this business could not be disclosed to men; a woman was appointed to carry out an enquiry & allow the minister to make a recommendation; numerous problems with the enquiry so the government passed an act so that the bridge would go ahead despite objections by Aboriginals.
  • Issue: whether the Cth could pass a law under the race power which was detrimental to a racial group
  • Held: the court was split 2:2:2 - undecided.
    • Can: Gummow & Hayne - power can be used both for benefit and detriment; rejects the idea that the race power can only be validly enacted to benefit Aborigines.
    • Cannot: Gaudron & Kirby JJ- power cannot be used for disadvantage of racial minority; such laws would be invalid
      • Gaudron J: sets a test - law must be deemed “necessary” not expedient or appropriate. In this case, the law can’t be used to deprive a citizen of their right due to race as it is not necessary to make a law a special law for them.
        • It is hard to envisage a situation that would be “necessary” to disadvantage ATSI, rather only advantageous laws would pass this test.
        • Enforced the referendum did nothing more than remove the limit to legislating with reference to Aboriginals
      • Kirby J: manifest abuse test should be applied to strike down laws that the court deems as unacceptable. Also relied on the “interpretative principle” stating that laws should be interpreted in reference to international standards
    • Ignored: Brennan & McHugh- did not consider scope of power at all.

Gummow & Hayne JJ also noted parliament can legislate to remove a benefit they have given through legislation. However, any removal of such must be clear & unambiguous (Coco v The Queen) as the common law protects liberties.

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)

  1. (1998) 195 CLR 337
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