Section 51(xxvi) of the Australian Constitution

Section 51(xxvi) of the Australian Constitution, commonly called 'the race power', is the subsection of Section 51 of the Australian Constitution granting the Australian commonwealth power to make special laws for people of any race.

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". The section was intended to enable the Commonwealth to pass laws restricting such migrant labourers such as the Chinese and Kanakas. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901), observed: "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."

There were delegates, however, at the 1898 Convention against the use of legislative power to deal specifically with alien races.

The scope of s 51(xxvi), amended in the 1967 referendum, was first considered in Koowarta v Bjelke-Petersen (1982). In that case, five judges rejected the Commonwealth argument that the Act was valid under s 51(xxvi). They held that the Racial Discrimination Act protected all races and not any one particular race, and thus was not a "special law" for "the people of any race".

In Commonwealth v Tasmania (Tasmanian Dam Case), justices Brennan and Deane supported the argument of Justice Murphy in Koowarta that the 1967 referendum, in bringing Aboriginals within the reach of the "races" power, did so in such a way that the power can be used only for their benefit.

In a report deliver to the Australian Prime Minister on 19 January 2012, it was recommended that a referendum be held for the repeal of s 51(xxvi). The report also proposed the insertion of a new s 51A which would permit the Parliament to make laws "with respect to Aboriginal and Torres Strait Islander peoples".

Bibliography

Sean Everett, The Australian Constitution & Section 51(xxvi): The 'Race Power' - Beneficial Power of Government or Colonial Anachronism? (2010) 1-61, www.fvlsac.org.au/law-reform