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Races Power Notes

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This is an extract of our Races Power document, which we sell as part of our Federal Constitutional Law Notes collection written by the top tier of University Of New South Wales students.

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Races Power

1. Introduction


The CB writers draw attention to the fact that s 51(xxvi), before being amended in 1967 was intended to regulate people of "coloured or inferior races" (Barton) "to localise them within defined areas, to restrict their migration, to confine them to certain occupations..." (Quick & Garran) o

This was spoken strongly against but the power to discriminate against any particular race was generally unquestioned on the grounds of unconstitutionality

2. "Special Laws" Koowarta v Bjelke-Petersen (1982) 153 CLR 168 Facts: The court considered the validity of the Racial Discrimination Act under both the external affairs power and the races power. Five judges rejected its validity under the second
- holding that it protected all races and hence was not a special law for the people of "any" race.

Gibbs CJ began noting the historical significance of the law prior to its amendment, then noting that in its present form that it can be used to prohibit discrimination against the people of the Aboriginal race.
? However this particular law was directed at discrimination generally
? The CTH submitted that the Act is a "special law" since it selects as its subject the people of any race against whom racial discrimination may be practiced o

His honour rejected this argument - noting that while "any" can sometimes mean "all" - here it means "no matter which"


If the parliament does deem it necessary to make a "special law" it doesn't have to expressly declare this - it may appear from the law itself. "However, a law which applies equally to the people of all races is not a special law for the people of any one race"

Wilson J regarded the argument as ingenious that if laws could be made specifically to target each and every race, they should be able to target all races generally - but nonetheless rejected it for the same reason that Gibbs CJ did, that it applies generally. The purpose of s 51(xxvi) is activated when the parliament discerns circumstances giving rise to a necessity to create a special law which requires circumstances to be compelling in relation

to a section of the community.

Note also Murphy J who mentioned in obiter that 'for' in (xxvi) means 'for the benefit of' rather than 'with respect to' which would enable laws intended to affect adversely the people of any race.

Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 Facts: The case concerned the validity of the World Heritage Properties Conservation Act (WHPC). Sections 8 and 11 of the Act relied on the races power - they followed a similar structure to the other provisions.Section 8 allows a proclamation to declare an area an 'Aboriginal Site' if satisfied it was likely to be damaged/destroyedSection 11 required the consent of the Minister to carry out certain works

Gibbs CJ summarised the historical significance of a number of sites within the subject area. He summarised the CTH argument that the inundation of the area would result in destruction of irreplaceable evidence concerning the occupation/settlement of the entire river by Ice Age man and their Aboriginal descendants thus destroying their outstanding universal cultural and historical value.

Brennan J, after explaining the context of the races power noted that "the primary object of the power is beneficial"
? The question arose as to whether the fact that it does not create rights/powers/privileges for Aboriginal people and hence is not supported by s 51(xxvi).

His honour posed the question "is it sufficient that the discriminatory benefit is found in the special importance...which the people of a race attach to the rights, powers and privileges generally concerned" - the answer was to be found in the concept "race"
? His honour noted that while the biological meaning of race was elusive - "the biological element essential element of membership of a race [but] it does not ordinarily exhaust the characteristics of a racial group"
? He noted other relevant factors - physical similarities, a common history, a common

religion or spiritual beliefs and a common culture. As people identify themselves and are identified by others by reference ot these factors, an indication is given of the scope of s 51(xxvi)
? The kind of benefits that a law under this section could confer is those protecting/fostering their common intangible heritage/identity. While genetic inheritance is fixed at birth - cultural/historical heritage is acquired and susceptible to influences which the law can provide for.


A law which does not discriminate in favour of the people of a race may nevertheless be valid if it discriminated in favour of those people by its operation upon the subjectmatter to which it relates. It suffices that a law is "special" in its operation (not just in its terms)

? His honour disavowed any suggestion that this approach was rejected in Koowarta since laws proscribing racial discrimination was of particular significance to Aboriginals - he noted that all races suffer discrimination (quoting Shylock from Merchant of Venice)

Deane J, noting the history of the relevant law, seemed to accept that s 51(xxvi) could be used as a general power "to pass laws discriminating against or benefiting the people of any race"
? His honour noted that while these sites may have had significance to particular tribes in the past, with their constant violation, Australian Aboriginals who are largely displaced regard them as part of their "general heritage"
? He further noted that the dual requirement posed by the section "of outstanding universal value" and "particular significance to the people of the Aboriginal race" ensured that only the most significant sites are protected. o

And even though this is in one sense a law for all Australians - a law whose operation is to protect sites of universal value with particular significance to Aboriginal people is also a special law for those people

? "The reference to "people of any race" includes all that goes to make up the personality and identify of the people of a race: spirit, belief, knowledge, tradition and cultural and spiritual heritage" - hence a law to legislate with respect to a people of a race includes a power to make laws protecting their cultural/spiritual heritage by protecting property of particular significance to them.

Gibbs CJ noted that the law was to protect sites generally - not to protect any particular feature of the site meant for Aboriginal people. He furthermore noted that it didn't give any enhanced rights to the Aboriginal people - they had just the same rights of other persons and organizations. Hence the sections were not laws with respect to people fo the Aboriginal race.

? His honour asserted that if this view were wrong, validity of laws depend on whether the sites the subject of either of the proclamations is of particular significance to the Aboriginal race



This would be a question of law and fact.


The law would not be a special law for the people of the Aboriginal race because the site contained artefacts and relics from prehistoric times of such antiquity that they were of significance to all mankind

A number of points are made about other preservation issues with historical land sites etc. - may be useful to go over these for the purpose of discussion

3. Native Title Western Australia v Commonwealth (Native Title Act Case) Facts: The case concerned the validity of the Native Title Act - it was upheld pursuant to s 51(xxvi). Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ:
? Their honours iterated the preconditions for the races power - it must be "deemed necessary" that "special laws" be made for "people of any race"
? However their honours disagreed that the court could embark on any question as to necessity and that even if it did have some supervisory jurisdiction to do so, this case was not one in which to examine it


As to the question of the word special that qualifies law - this does not relate to necessity but rather its differential operation - "a special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race" o

This can be special even if it benefits people generally as long as the benefit is of special significance to a particular race (Tasmanian Dam Case)

? Hence the NTA is special - it confers uniquely on Aboriginal/TS Islander holders of native title a benefit protective of that title


An argument was also levelled that the NTA was valid under the external affairs power - which also required it to be a "special law", specifically, a "special measure" authorized by s 8(1) of the RDA (and hence Art 1(4) of the IC on EAFRD)

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