Section 51(xxvi) of the Constitution of Australia

Section 51(xxvi) of the Constitution of Australia,[1] commonly called "the race power", is the subsection of Section 51 of the Constitution of Australia granting the Australian Commonwealth the power to make special laws for people of any race.

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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".[2][3] The section was intended to enable the Commonwealth to pass laws restricting such migrant labourers such as the Chinese and Kanakas. Quick and Garran observed in 1901 that "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."[4]

There were delegates, however, at the 1898 Convention who argued against the use of legislative power to deal specifically with alien races, accepting that people might be excluded from Australia based on race, but arguing that once people were admitted to the country they should be treated in the same way as other citizens.[5]

The scope of s 51(xxvi) is, subject to the Constitution itself, unfettered in keeping with s 51 granting plenary powers to the Commonwealth.[6] Section 51(xxvi) supports the rejection of legal equality requirements when considering legislation otherwise validly enacted under the Constitution.[7] Thus legislation empowered by other constitutional powers, such as in the Northern Territory National Emergency Response,[8] which was empowered by section 122,[9] may be racially discriminatory.

In Kartinyeri v Commonwealth, the High Court was split on whether s 51(xxvi) could be used to enact legislation that adversely discriminated on the basis of race. Justices Gummow and Hayne held that the use of race as the ais of parliamentary power was inherently discriminatory and that benefits to the people of one race may be detrimental to people of another.[10] Justice Kirby disagreed, holding that the race power did not permit the enactment of laws to the detriment of the people of any race.[11] Justice Gaudron held that it was difficult to conceive of circumstances in which a law to the disadvantage of a racial minority would be valid.[12]

In a report delivered to the Australian prime minister on 19 January 2012, it was recommended that a referendum be held for the repeal of s 51(xxvi), to be replaced by s 51A (which empowers the Commonwealth to make laws for Indigenous Australians, but also recognises Aboriginal and Torres Strait Islanders as Australia's first peoples) and s 116A (which prohibits racially discriminatory legislation or the making of laws under s51A that are not for the benefit of Indigenous peoples).[13]

References
  1. Constitution (Cth) s 51(xxvi).
  2. "Official Record of the Debates of the National Australasian Convention". Melbourne. 27 January 1898. pp. 228–9.
  3. French, Robert (2003). "The Race Power: A Constitutional Chimera". In H.P. Lee and George Winterton (ed.). Australian Constitutional Landmarks. Cambridge UK: Cambridge University Press. pp. 180–212. ISBN 0-521-83158-X.
  4. Quick, J; Garran, R (1901). The Annotated Constitution of the Australian Commonwealth. p. 622.
  5. "Official Record of the Debates of the National Australasian Convention". Melbourne. 28 January 1898. Charles Kingston at pp. 244-7, John Quick at pp, 245–6 and Josiah Symon at p. 250.
  6. Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337 at p. 355, High Court (Australia).
  7. Kruger v Commonwealth [1997] HCA 27, (1997) 190 CLR 1 at pp. 44-5 per Brennan CJ.
  8. Northern Territory National Emergency Response Act (Cth).
  9. Constitution (Cth) s 122.
  10. Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337 at [81]-[85] per Gummow and Hayne JJ, High Court (Australia).
  11. Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337 at [152] per Kirby J, High Court (Australia).
  12. Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337 at [44] per Gaudron J, High Court (Australia).
  13. Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (PDF), January 2012, ISBN 978-1-921975-29-5, archived (PDF) from the original on 16 March 2015

Further reading
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