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

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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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