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Race Power Theory Notes

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This is an extract of our Race Power Theory document, which we sell as part of our Constitutional Law Notes collection written by the top tier of Monash University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Race power History


Until 1967 the power excluded the Australian Aborigines as a group for whom the Cth could make special laws (s 127 preventing Aborigines being counted in the census was also repealed at that time).


S 51(26) was originally enacted to allow power over workers of nonAnglo ethnicity like 'Kanakas'.


In 1967 a referendum deleting these sections was carried overwhelmingly. This was presumably an expression of support for general unspecified beneficial outcomes for Indigenous people.

Cases Tasmanian Dam case

* Murphy, Brennan and Deane JJ in obiter indicated the power could support only laws benefitting a particular race


Gibbs CJ in obiter indicated the power could support both beneficial and detrimental laws.

WA v Commonwealth (the Native Title Act Case) (1995)

* The Native Title Act was found to have been validly enacted for the benefit of Indigenous Australians (by clarifying the rights of native title holders and providing protection against further inconsistent State laws).


No need to consider whether detrimental aspect exists.

Kartinyeri v Commonwealth (the Hindmarsh Island Case) (1998)

* SA govt approved a tourist facility on Hindmarsh and a bridge from SA mainland to the island.


Local Aboriginal women sought a declaration from the Cth minister preventing the bridge construction, claiming it would desecrate sacred sites. The minister commissioned a report and then made a declaration protecting the site and preventing the bridge being built.


After legal challenges, the original report was found defective and a second reporter had her appointment invalidated.


A new federal government passed the Hindmarsh Island Bridge Act 1997 (Cth) exempting the project from the ministerial approval process, allowing it to proceed.

The Aboriginal group challenged the law, arguing: 1)

the race power did not authorise laws discriminating between members of a racial group (such as distinguishing the Ngarrindjeri from other Indigenous people as was done here).

2) That any law enacted under the race power had to be for the benefit or advancement of people of any race, or at least not detrimental to those people.

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