Section 51(xxvi) of the Australian Constitution
Encyclopedia
Section 51 of the Australian Constitution, commonly called 'the race power', is the subsection of Section 51 of the Australian Constitution
granting the Australian commonwealth power to make special laws for people of any race.
As initially drafted, s 51(xxvi) empowered the 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". The Australian people voting at the 1967 referendum
deleted the words in italics.
Edmund Barton
had argued in 1898 that s 51(xxvi) was necessary to enable the Commonwealth to "regulate the affairs of the people of coloured or inferior races who are in the Commonwealth". The section was intended to enable the Commonwealth to pass laws restricting such migrant labourers such as the Chinese and Kanakas
. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901), observed: "It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came."
There were delegates, however, at the 1898 Convention against the use of legislative power to deal specifically with alien races.
The scope of s 51(xxvi), amended in the 1967 referendum
, was first considered in Koowarta v Bjelke-Petersen
(1982). In that case, five judges rejected the Commonwealth argument that the Act was valid under s 51(xxvi). They held that the Racial Discrimination Act protected all races and not any one particular race, and thus was not a "special law" for "the people of any race".
In Commonwealth v Tasmania
(Tasmanian Dam Case), justices Brennan
and Deanne
supported the argument of Justice Murphy in Koowarta that the 1967 referendum, in bringing Aboriginals within the reach of the "races" power, did so in such a way that the power can be used only for their benefit.
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
granting the Australian commonwealth power to make special laws for people of any race.
As initially drafted, s 51(xxvi) empowered the Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
to make laws with respect to: "The people of any race, other than the aboriginal
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
race in any State, for whom it is deemed necessary to make special laws". The Australian people voting at the 1967 referendum
Australian referendum, 1967 (Aboriginals)
The referendum of 27 May 1967 approved two amendments to the Australian constitution relating to Indigenous Australians. Technically it was a vote on the Constitution Alteration 1967, which became law on 10 August 1967 following the results of the referendum...
deleted the words in italics.
Edmund Barton
Edmund Barton
Sir Edmund Barton, GCMG, KC , Australian politician and judge, was the first Prime Minister of Australia and a founding justice of the High Court of Australia....
had argued in 1898 that s 51(xxvi) was necessary to enable the Commonwealth to "regulate the affairs of the people of coloured or inferior races who are in the Commonwealth". The section was intended to enable the Commonwealth to pass laws restricting such migrant labourers such as the Chinese and Kanakas
Kanakas
Kanaka was the term for a worker from various Pacific Islands employed in British colonies, such as British Columbia , Fiji and Queensland in the 19th and early 20th centuries...
. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901), observed: "It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came."
There were delegates, however, at the 1898 Convention against the use of legislative power to deal specifically with alien races.
The scope of s 51(xxvi), amended in the 1967 referendum
Australian referendum, 1967 (Aboriginals)
The referendum of 27 May 1967 approved two amendments to the Australian constitution relating to Indigenous Australians. Technically it was a vote on the Constitution Alteration 1967, which became law on 10 August 1967 following the results of the referendum...
, was first considered in Koowarta v Bjelke-Petersen
Koowarta v Bjelke-Petersen
Koowarta v Bjelke-Petersen was a significant court case decided in the High Court of Australia on 11 May 1982. It concerned the constitutional validity of parts of the Racial Discrimination Act 1975, and the discriminatory acts of the Government of Queensland in blocking the purchase of land by...
(1982). In that case, five judges rejected the Commonwealth argument that the Act was valid under s 51(xxvi). They held that the Racial Discrimination Act protected all races and not any one particular race, and thus was not a "special law" for "the people of any race".
In Commonwealth v Tasmania
Commonwealth v Tasmania
Commonwealth v Tasmania 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia...
(Tasmanian Dam Case), justices Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
and Deanne
William Deane
Sir William Patrick Deane, AC, KBE, QC , Australian judge and the 22nd Governor-General of Australia.-Early life:William Deane was born in Melbourne, Victoria. He was educated at Catholic schools including St. Joseph's College, Hunters Hill and at the University of Sydney, where he graduated in...
supported the argument of Justice Murphy in Koowarta that the 1967 referendum, in bringing Aboriginals within the reach of the "races" power, did so in such a way that the power can be used only for their benefit.