Law Notes Federal Constitutional Law Notes
Cases and materials summary notes based on Blackshield & Williams Constitutional Law (2011), super summaries intended for easy reference in an open book exam and "policy notes" geared towards writing essays. Structure of the cases and materials summary notes are as follows:
Class 1- Fundamentals of Australian Constitutional Law
Class 2&3 - The high Court and Constitutional Interpretation
Class 4 - The High Court and Characterisation
Class 5 - Inconsistency
Class 6&7 - Economics Powers
Cl...
The following is a more accessible plain text extract of the PDF sample above, taken from our Federal Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
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”
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Buy the full version of these notes or essay plans and more in our Federal Constitutional Law Notes.
Cases and materials summary notes based on Blackshield & Williams Constitutional Law (2011), super summaries intended for easy reference in an open book exam and "policy notes" geared towards writing essays. Structure of the cases and materials summary notes are as follows:
Class 1- Fundamentals of Australian Constitutional Law
Class 2&3 - The high Court and Constitutional Interpretation
Class 4 - The High Court and Characterisation
Class 5 - Inconsistency
Class 6&7 - Economics Powers
Cl...
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