What power does Section 51(xxvi) grant to the Australian Commonwealth?

Section 51(xxvi) grants the Australian Commonwealth the power to make special laws for people of any race. This means the federal government can legislate specifically for or about particular racial groups.

What significant change occurred to Section 51(xxvi) as a result of the 1967 referendum?

The 1967 referendum saw the Australian people vote to delete the words 'other than the aboriginal race in any State' from Section 51(xxvi). This amendment centralized the existing race power from the State Parliaments to the Federal government, allowing the Commonwealth to make laws for Aboriginal people.

Which specific groups were the initial targets for restrictive laws under Section 51(xxvi)?

The section was initially intended to enable the Commonwealth to pass laws restricting migrant laborers, specifically mentioning the Chinese and Kanakas. These groups were often brought to Australia for labor but faced significant discrimination.

How did Quick and Garran interpret the scope of Section 51(xxvi) in 1901?

In 1901, Quick and Garran observed that Section 51(xxvi) enabled Parliament to deal with people of any alien race after they entered the Commonwealth. This included localizing them within defined areas, restricting their migration, confining them to certain occupations, providing special protection, and ensuring their return to their country of origin after a specified period.

Were there dissenting voices regarding the use of legislative power based on race at the 1898 Constitutional Convention?

Yes, some delegates at the 1898 Constitutional Convention argued against using legislative power to deal specifically with alien races. They accepted that people might be excluded from Australia based on race, but contended that once admitted, they should be treated the same as other citizens.

Does Section 51(xxvi) support requirements for legal equality in legislation?

No, Section 51(xxvi) supports the rejection of legal equality requirements when considering legislation otherwise validly enacted under the Constitution. This implies that laws made under this power can differentiate based on race.

Can legislation empowered by other constitutional powers be racially discriminatory? Provide an example from the text.

Yes, legislation empowered by other constitutional powers, such as Section 122 (which pertains to territories), may be racially discriminatory. The Northern Territory National Emergency Response is cited as an example of such legislation.

What was the perceived positive impact of the 1967 referendum amendment on Aboriginal peoples' welfare?

At the time, the amendment was largely seen as a positive change for Aboriginal peoples' welfare because the Commonwealth government was perceived as being more positive towards them than the individual states collectively were. This shift aimed to provide more consistent and potentially beneficial federal oversight.

How did Justices Gummow and Hayne interpret the race power in Kartinyeri v Commonwealth?

In Kartinyeri v Commonwealth, Justices Gummow and Hayne held that the use of race as the basis of parliamentary power was inherently discriminatory. They further stated that benefits to the people of one race might be detrimental to people of another.

What was Justice Kirby's view on the race power in Kartinyeri v Commonwealth?

Justice Kirby disagreed with the interpretation that the race power could be used for detrimental laws, holding that Section 51(xxvi) did not permit the enactment of laws to the detriment of the people of any race.

What was Justice Gaudron's perspective on racially disadvantageous laws under Section 51(xxvi) in Kartinyeri v Commonwealth?

Justice Gaudron held that it was difficult to conceive of circumstances in which a law to the disadvantage of a racial minority would be considered valid under Section 51(xxvi).

Why did the Northern Territory National Emergency Response not require the use of Section 51(xxvi)?

The Northern Territory National Emergency Response (2007-2011) and its continuation, the Stronger Futures policy, would have required the use of Section 51(xxvi) if implemented in any of the states. However, as it was implemented only in a territory, Section 122 of the Constitution, which grants power over territories, was used instead.

What did the Expert Panel on Constitutional Recognition of Indigenous Australians recommend in 2012 regarding Section 51(xxvi)?

In January 2012, a federal government-commissioned report from the 'Expert Panel on Constitutional Recognition of Indigenous Australians' recommended holding a referendum to repeal Section 51(xxvi). They proposed replacing it with new sections, s 51A and s 116A.

What would new Section 51A, as proposed by the Expert Panel in 2012, empower the Commonwealth to do?

The proposed new Section 51A would empower the Commonwealth to make laws for Indigenous Australians and would also formally recognize Aboriginal and Torres Strait Islanders as Australia's first peoples. This aims to provide a specific and beneficial power for Indigenous affairs.

What would new Section 116A, as proposed by the Expert Panel in 2012, aim to prohibit?

The proposed new Section 116A would aim to prohibit racially discriminatory legislation or the making of laws under s 51A that are not for the benefit of Indigenous peoples. This would act as a safeguard against detrimental race-based laws.

How did the 2017 Referendum Council's recommendations compare to those of the 2012 Expert Panel?

The 2017 Referendum Council's recommendations echoed those made by the 2012 Expert Panel. However, the Referendum Council did not formally include the repeal of Section 25 of the Constitution, which had been part of the Expert Panel's (2012) and the Joint Select Committee's (2015) recommendations.

What is the primary function of Section 51 of the Constitution of Australia?

Section 51 of the Constitution of Australia outlines the enumerated legislative powers of the Federal Parliament, granting it authority to make laws on a wide range of subjects, including the specific power related to race in subsection (xxvi).

Who was Charles Kingston, and what was his stance on race-based legislation at the 1898 Constitutional Convention?

Charles Kingston was a delegate at the 1898 Constitutional Convention. He was among those who argued against the use of legislative power to deal specifically with alien races, advocating that once people were admitted to Australia, they should be treated the same as other citizens.

Who were John Quick and Josiah Symon, and what was their position on race-based legislation at the 1898 Constitutional Convention?

John Quick and Josiah Symon were delegates at the 1898 Constitutional Convention. They were among those who argued against the use of legislative power to deal specifically with alien races, believing that once people were admitted to Australia, they should be treated in the same way as other citizens.

What is the significance of the term 'plenary powers' in relation to Section 51(xxvi)?

The term 'plenary powers' signifies that the legislative authority granted to the Commonwealth under Section 51(xxvi) is full, complete, and unrestricted, except by other explicit provisions within the Constitution itself. This means the power is comprehensive within its defined scope.

What is the title of the article this information is sourced from?

The title of the article from which this information is sourced is 'Section 51(xxvi) of the Constitution of Australia.'

What is the short description provided for Section 51(xxvi)?

The short description provided for Section 51(xxvi) is 'Power of the Commonwealth to make special laws for the people of any race.'

What is the name of the constitutional document that contains Section 51(xxvi)?

Section 51(xxvi) is contained within the Constitution of Australia. This document serves as the supreme law of Australia, establishing its governmental framework and powers.

What was the general sentiment towards the Commonwealth's role in Aboriginal welfare prior to the 1967 referendum?

Prior to the 1967 referendum, the Commonwealth was generally seen as being more positive towards Aboriginal peoples' welfare than the states collectively were, which contributed to the desire for the federal government to have power over Aboriginal affairs.

What is Section 122 of the Constitution of Australia concerned with?

Section 122 of the Constitution of Australia grants the Commonwealth Parliament the power to make laws for the government of any territory, allowing it to legislate on matters within territories, including those that might be racially discriminatory.

What was the Stronger Futures policy?

The Stronger Futures policy was a continuation of the Northern Territory National Emergency Response, implemented from 2007 to 2011. Like its predecessor, it was applied only in a territory and thus relied on Section 122, not Section 51(xxvi).

What is the Uluru Statement from the Heart?

The Uluru Statement from the Heart is a document from 2017, whose recommendations regarding constitutional recognition for Indigenous Australians echoed those made by the 2012 Expert Panel. It calls for a Voice to Parliament enshrined in the Constitution.

What was the role of the Referendum Council in 2017?

The Referendum Council in 2017, with the same initial co-chairs as the 2012 Expert Panel, made recommendations regarding constitutional recognition for Indigenous Australians, largely aligning with the earlier panel's proposals.

What was the difference between the 2012 Expert Panel's recommendations and the 2017 Referendum Council's recommendations regarding Section 25?

The 2012 Expert Panel and the 2015 Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples recommended the formal repeal of Section 25 of the Constitution. However, the 2017 Referendum Council's recommendations did not formally include this repeal.

What is the Commonwealth Law Reports (CLR)?

The Commonwealth Law Reports (CLR) is the authorized series of law reports for decisions of the High Court of Australia. References to cases like Kartinyeri v Commonwealth and Kruger v Commonwealth include citations to the CLR, which document significant legal judgments.

Who was Robert French, and what did he write about the Race Power?

Robert French was an author who, in 2003, contributed to the book 'Australian Constitutional Landmarks' with a chapter titled 'The Race Power: A Constitutional Chimera.' This work discusses the constitutional implications and historical context of Section 51(xxvi).

Who is George Williams, and what did he write about the Constitution?

George Williams is an author who wrote an article titled 'Racial divide has always been part of our Constitution' in The Australian in 2023. He also authored 'Removing racism from Australia's constitutional DNA' in the Alternative Law Journal in 2012, both discussing the racial aspects of the Australian Constitution.

What is the Alternative Law Journal?

The Alternative Law Journal is a publication where George Williams' article 'Removing racism from Australia's constitutional DNA' was published in 2012. It is a journal that often discusses legal issues from critical or alternative perspectives, contributing to legal discourse.

What is the Department of Families, Housing, Community Services & Indigenous Affairs?

The Department of Families, Housing, Community Services & Indigenous Affairs was the government department that commissioned and published the 'Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel' in January 2012. This department played a role in policy development related to Indigenous affairs.

ANTaR is an organization that published the 'Report of the expert panel on recognising Aboriginal and Torres Strait Islander peoples in the Constitution' in 2012. ANTaR is an Australian advocacy organization that works for the rights of Aboriginal and Torres Strait Islander people.

What is the Parliament of Australia?

The Parliament of Australia is the legislative body of the Commonwealth of Australia, responsible for making laws. It is the entity empowered by Section 51(xxvi) to make special laws for people of any race, and it consists of the King, the Senate, and the House of Representatives.

What is the High Court of Australia?

The High Court of Australia is the highest court in the Australian judicial system and the final court of appeal. It is responsible for interpreting the Constitution, as demonstrated by its ruling in cases like Kartinyeri v Commonwealth, which clarify the scope of constitutional powers.

What is the purpose of a constitutional convention in Australia?

A constitutional convention in Australia is a formal gathering held to discuss and propose changes or interpretations of the Constitution. The 1898 Constitutional Convention, where Edmund Barton made his arguments, is an example of such a gathering that shaped the foundational document.

What is the significance of the 1901 publication The Annotated Constitution of the Australian Commonwealth?

The Annotated Constitution of the Australian Commonwealth, published by Quick and Garran in 1901, is a foundational legal text that provides detailed commentary and interpretation of the Australian Constitution, including Section 51(xxvi), shortly after federation. It offers early insights into the framers' intentions.

What is the Constitution (Cth) s 51(xxvi) citation referring to?

The citation Constitution (Cth) s 51(xxvi) refers to Section 51, subsection (xxvi), of the Commonwealth Constitution of Australia, indicating the specific legal provision being discussed. 'Cth' denotes 'Commonwealth'.

What is the Constitution (Cth) s 122 citation referring to?

The citation Constitution (Cth) s 122 refers to Section 122 of the Commonwealth Constitution of Australia, which grants the Parliament power to make laws for the government of any territory. This section is distinct from the race power but can also be used for territory-specific legislation.

What is the significance of the 1997 High Court case Kruger v Commonwealth?

The 1997 High Court case Kruger v Commonwealth is cited in the text as supporting the idea that Section 51(xxvi) allows for the rejection of legal equality requirements in validly enacted legislation, with Chief Justice Brennan's opinion noted. This case highlights the potential for race-based laws to be constitutionally permissible even if they differentiate.

What is the role of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples?

The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, which made recommendations in 2015, was a parliamentary committee tasked with examining and reporting on proposals for constitutional recognition of Indigenous Australians. These committees play a crucial role in advising on constitutional reform.

What is the primary goal of the proposed new sections s 51A and s 116A, as recommended by the Expert Panel in 2012?

The primary goal of the proposed new sections s 51A and s 116A is to replace the existing race power with provisions that specifically empower the Commonwealth to make beneficial laws for Indigenous Australians, formally recognize them as Australia's first peoples, and prohibit racially discriminatory legislation. This aims to create a more just and equitable constitutional framework.

Section 51 Xxvi Of The Constitution Of Australia Wiki: The Race Power Unveiled: Australia's Constitutional Journey with Section 51(xxvi)

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Overview

Defining the Race Power

Section 51(xxvi) of the Constitution of Australia, commonly referred to as "the race power," grants the Australian Commonwealth Parliament the authority to enact specific legislation concerning people of any race. This provision is a crucial element within Section 51, which delineates the legislative powers of the Federal Parliament.

Evolution of the Text

Originally, Section 51(xxvi) contained a significant exclusion: it empowered the Parliament to make laws for "The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws." This italicized phrase was removed following the landmark 1967 referendum, a change that fundamentally altered the scope and perception of the Commonwealth's power regarding Indigenous Australians.

A Unique Constitutional Grant

The "race power" is distinctive in its explicit reference to race as a basis for legislative action. Its historical application and subsequent amendment highlight a complex journey in Australian constitutional law, reflecting evolving societal attitudes and legal interpretations regarding race and national governance. Understanding this section requires delving into its foundational intent, its practical application, and the ongoing debates surrounding its ethical and legal implications.

Historical Origins

The Convention Debates of 1898

During the 1898 Constitutional Convention, Edmund Barton, a key figure in Australia's federation, articulated the perceived necessity of Section 51(xxvi). He argued that this power was essential for the Commonwealth to "regulate the affairs of the people of coloured or inferior races who are in the Commonwealth." This statement underscores an original intent rooted in discriminatory colonial attitudes prevalent at the time.

Intended Scope: Regulation and Restriction

In their influential 1901 commentary, Quick and Garran further elaborated on the anticipated application of the "race power." They observed that it would enable Parliament to manage "alien races" after their entry into the Commonwealth. This included powers to localize them within specific areas, restrict their migration, confine them to certain occupations, provide them with special protection, and even ensure their return to their country of origin after a designated period. Such interpretations reveal a clear intention to control and segregate non-European populations.

Arguments for Equality

Despite the prevailing views, not all delegates at the 1898 Convention supported the discriminatory application of legislative power based on race. Some argued against the use of such specific powers, contending that while people might be excluded from Australia on racial grounds, once admitted, they should be afforded the same treatment as other citizens. These dissenting voices represent an early, albeit minority, challenge to the inherently unequal framework embedded within the original drafting of the "race power."

The 1967 Referendum

Removing the Exclusion

The original text of Section 51(xxvi) explicitly excluded "the aboriginal race in any State" from the Commonwealth's power to make special laws. This meant that prior to 1967, the Federal Parliament could not legislate specifically for Aboriginal people in the states, leaving this responsibility primarily to state governments.

A Unifying Vote

The second question presented to the Australian people in the 1967 referendum proposed amending this section by deleting the exclusionary phrase. The referendum passed with an overwhelming majority, reflecting a widespread desire for change. This amendment effectively moved and centralized the legislative power concerning Aboriginal people from the various State Parliaments to the Federal government.

Perceived Positive Change

At the time, the amendment was largely perceived as a positive development for the welfare of Aboriginal peoples. There was a prevailing belief that the Commonwealth government would adopt a more progressive and unified approach to Indigenous affairs compared to the fragmented and often less favorable policies of individual states. This shift was seen as a step towards greater national responsibility and improved outcomes for Indigenous Australians.

Judicial Interpretation

Plenary Power and Legal Equality

The scope of Section 51(xxvi) is considered plenary, meaning it grants full and complete power to the Commonwealth Parliament, subject only to other provisions of the Constitution. This broad authority implies that legislation enacted under this power can, in certain circumstances, legitimately reject requirements of legal equality. For instance, in Kruger v Commonwealth, it was affirmed that legislation validly enacted under constitutional powers, such as Section 122 for territories, could be racially discriminatory without being unconstitutional on that ground alone.

The Kartinyeri Precedent (1998)

The 1998 High Court case of Kartinyeri v Commonwealth brought to the forefront the contentious question of whether Section 51(xxvi) could be used to enact legislation that *adversely* discriminated on the basis of race. The Court was notably split on this critical issue:

Justices Gummow and Hayne held that the use of race as the foundation for parliamentary power was inherently discriminatory. They posited that legislation benefiting one racial group could, by its very nature, be detrimental to another.
Justice Kirby offered a contrasting view, asserting that the "race power" should not permit the enactment of laws that are to the detriment of people of any race. His interpretation leaned towards a protective rather than a potentially punitive application of the power.
Justice Gaudron expressed a strong reservation, stating that it would be "difficult to conceive of circumstances" in which a law disadvantaging a racial minority would be considered constitutionally valid under this section.

This division highlights the profound legal and ethical complexities inherent in interpreting a power originally conceived in a different historical context.

Application in Territories

While the "race power" primarily applies to states, its principles can be seen in related legislation concerning territories. The Northern Territory National Emergency Response (2007–2011), and its successor, the Stronger Futures policy, implemented measures that were racially specific. Although these were enacted under Section 122 (the territories power) rather than Section 51(xxvi) directly, they illustrate the potential for federal legislation to target specific racial groups, raising similar questions about discrimination and constitutional limits.

Reform Debates

The 2012 Expert Panel Recommendations

In 2012, a federal government-commissioned "Expert Panel on Constitutional Recognition of Indigenous Australians" issued significant recommendations for constitutional reform. The panel proposed a referendum to repeal Section 51(xxvi) entirely. In its place, they suggested introducing two new sections:

Section 51A: This new provision would empower the Commonwealth to make laws specifically for Indigenous Australians, while also formally recognizing Aboriginal and Torres Strait Islanders as Australia's First Peoples.
Section 116A: This would serve as a safeguard, prohibiting racially discriminatory legislation or the enactment of laws under Section 51A that are not for the benefit of Indigenous peoples.

The Uluru Statement and Referendum Council

Building upon earlier work, the Referendum Council in 2017, with the same initial co-chairs as the 2012 Expert Panel, put forth recommendations that largely echoed those made previously. These proposals were central to the Uluru Statement from the Heart, which called for a First Nations Voice to Parliament enshrined in the Constitution and a process of Makarrata (treaty-making and truth-telling).

While aligning with the spirit of the 2012 panel, the 2017 recommendations did not formally include the repeal of Section 25 of the Constitution, which deals with disqualification from voting based on race. This subtle difference highlights the ongoing complexities and varying perspectives within the broader movement for constitutional recognition and reform.

The Future of the Race Power

The debates surrounding Section 51(xxvi) continue to be a focal point in discussions about Australia's constitutional future and its relationship with Indigenous peoples. The historical context of the "race power," its judicial interpretations, and the persistent calls for reform underscore a national effort to reconcile past injustices and build a more equitable constitutional framework. The journey from its discriminatory origins to contemporary proposals for recognition and protection reflects a profound evolution in Australia's understanding of race and governance.

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References

Constitution (Cth) s 51(xxvi).

Northern Territory National Emergency Response Act (Cth).

Constitution (Cth) s 122.

A full list of references for this article are available at the Section 51(xxvi) of the Constitution of Australia Wikipedia page

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Important Notice

This page was generated by an Artificial Intelligence and is intended for informational and educational purposes only. The content is based on a snapshot of publicly available data from Wikipedia and may not be entirely accurate, complete, or up-to-date.

This is not legal advice. The information provided on this website is not a substitute for professional legal consultation or advice. Constitutional law is a complex and evolving field, and its interpretation can vary. Always refer to official legal documents, scholarly articles, and consult with qualified legal professionals for specific legal questions or advice related to the Australian Constitution or any legal matter. Never disregard professional legal advice or delay in seeking it because of something you have read on this website.

The creators of this page are not responsible for any errors or omissions, or for any actions taken based on the information provided herein.

The Race Power Unveiled

💡 Dive in with Flashcard Learning! 💡

Overview 📜

🇦🇺 Defining the Race Power

🔄 Evolution of the Text

⚖️ A Unique Constitutional Grant

Historical Origins 🏛️

🗣️ The Convention Debates of 1898

📜 Intended Scope: Regulation and Restriction

🤝 Arguments for Equality

The 1967 Referendum 🗳️

❌ Removing the Exclusion

✅ A Unifying Vote

🌟 Perceived Positive Change

Judicial Interpretation 👨‍⚖️

🌐 Plenary Power and Legal Equality

⚖️ The Kartinyeri Precedent (1998)

🚧 Application in Territories

Reform Debates 💡

📝 The 2012 Expert Panel Recommendations

❤️‍🩹 The Uluru Statement and Referendum Council

🔮 The Future of the Race Power

Teacher's Corner 🧑‍🏫

Edit and Print this course in the Wiki2Web Teacher Studio

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Gamer's Corner 🎮

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References

📜 References

Feedback & Support 👍

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Disclaimer ⚠️

📜 Important Notice

Dive in with Flashcard Learning!

Overview

Defining the Race Power

Evolution of the Text

A Unique Constitutional Grant

Historical Origins

The Convention Debates of 1898

Intended Scope: Regulation and Restriction

Arguments for Equality

The 1967 Referendum

Removing the Exclusion

A Unifying Vote

Perceived Positive Change

Judicial Interpretation

Plenary Power and Legal Equality

The Kartinyeri Precedent (1998)

Application in Territories

Reform Debates

The 2012 Expert Panel Recommendations

The Uluru Statement and Referendum Council

The Future of the Race Power

Teacher's Corner

True or False?

Test Your Knowledge!

Gamer's Corner

Discover other topics to study!

References

Feedback & Support

Disclaimer

Important Notice