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)
This was spoken strongly against but the power to discriminate against any particular race was generally unquestioned on the grounds of unconstitutionality
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.
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. |
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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.
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”
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”
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”
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.
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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
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:
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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)
Gerhardy v Brown – State legislation (the Pitjantjatjara Land Rights Act was held to be such a special measure [needed to be or else it conflicted with the RDA])
The argument based on the external affairs power relied on recitals in the preamble to the effect that it was a special measure. Furthermore s 7(1) provided that the Act did not affect the operation of the RDA
The Act was later repealed to ensure that it was not taken as repealing the RDA to any extend (WA v Ward)
The judges in WA v CTH did consider the relationship between the NTA and RDA
While the NTA validates/permits the validation of past acts (s 7(2) whose operation which extinguishes native title may otherwise have been inhibited by the RDA – it also extended the holders of NT a new form of statutory protection parallel to the RDA
The NTA on the other hand...