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Lecture

4.2 [51(xxvi)] Race & Aliens.doc

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Race Power—s51(xxvi) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws; People of any race • Concepts or ‘race’, are considered to be an imprecise term, but is partly of a biological element. • Includes the aboriginal race: Murphy J in Tasmanian Dams case • ← Due to the constitutional amendment 1967 o Also racial sub-groups among the aboriginals: Tasmanian Dams case (1983) 158 CLR 1 per Deane J  accepted in Kartinyeri v Cth (the Hindmarsh Island Bridge case) • Race test as formulated by Brennan J in Tasmanian Dams case: o People who regard themselves and who are regarded by others as such, with reference to: • Common history; • Religion, spiritual beliefs; • Culture; • Biological origins; • Physical similarities. Special laws • The law can’t correspond to all races, must be based on a special law on the people of any race: Koowarta v Bjelke-Petersen (1982) 153 CLR 168 (racial discrimination act applies to everyone → not upheld by race power || upheld by external affairs power) • Includes protection of spiritually/culturally significant sites: Tasmanian Dams case (1983) o ← Of ‘special significance’ to the people: Mason J in Tasmanian Dams • Includes laws that benefit primarily one race, but incidentally benefit mankind generally: Tasmanian Dams (Tas prevented from building dam on Aboriginal cultural areas || cf minority— Gibbs, Wilson, Dawson ← sites universally important) • Sufficient that a law discriminates between races in its effect rather than its form: Tasmanian Dams • Where the law confers a benefit on some portion of a particular race: Western Australia v Commonwealth (the Native Title Case) (1995) (native title act—not all of Aboriginal race will benefit  still valid) Requirement that Laws be Beneficial—unsettled o Repealing laws conferring a benefit is also within power under s51(xxvi): Kartinyeri v The Commonwealth (the Hindmarsh Island case) (1998) 195 CLR 387 o Requirement that the laws be beneficial unsettled—perhaps can be detrimental: Kartinyeri v The Commonwealth (the Hindmarsh Island case) (declassifying an area as protected aboriginal heritage—by repealing previous act (secret women’s business)) o Brennan CJ & McHugh J—repealing → not considered o Gummow & Hayne JJ—detrimental  Andrew Trotter LWB242 2009-1 o Gaudron J—“for whom it is deemed necessary to make special laws”—prima facie only beneficial laws could be reasonably appropriate & adapted to the need () o Kirby J—detrimental   Criticism based on idea that electors voting in the referendum in 1967 thought they were allowing only beneficial laws: Tasmanian Dams per Brennan & Deane JJ); Kartinyeri per Kirby J (dissenting) Requirement of ‘deemed necessary’ • The requirement for the laws is that there is a need to decide the needs of the people or race – but that choice is best made by parliament: Western Australia v Commonwealth (the Native Title case) (1995) 183 CLR 373 o If the court does retain some supervisory jurisdiction in case of manifest abuse, this was not the time for the examination of this question—left for another day o Tests of ‘necessity’ (as formulated by Stephen J in Koowarta v Bjelke-Peterson) were rejected by the court in the Native Title case • Perhaps relevant whether law reasonably appropriate & adapted for the need: Kartinyeri per Gaudron J Andrew Trotter LWB242 2009-1 Aliens Power s51(xix) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xix) naturalization and aliens Aliens • Alien = not a citizen of Australia: Nolan v Minister for Immigration & Ethnic Affairs o Citizen denaturalised → Alien o Born abroad of citizen parents → Citizen Powers  In particular, power to deport aliens for any reason the parliament sees fit Development of Australian citizenship laws: • ~1949: British subject = Australian citizen • 1949 ~: Separate citizenships recognised
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