LLB203 Study Guide - Final Guide: Commonwealth V Tasmania, Hindmarsh Island, Native Title Act 1993
Race power
The Parliament [has] power, subject to this Constitution, 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;
Constitution s 51(xxvi)
Racer under s51(xxvi):
‘race’ is given a wide, non-technical meaning
race is not a term of art, is it not a precise concept
a purely technical approach to ‘race’ is accordingly not appropriate
there is a biological element in race
INTRODUCTION
Under this head of power, the Commonwealth can legislate with regard to specific classes of
people who fall within the category of race.
In 1901 the Commonwealth Parliament enjoyed no specific legislative power over
indigenous Australia. The original wording of this power included the words “other than the
aboriginal race in any State”.-
The 1967 referendum removed the specific reference to Aboriginal people and repealed s
127, which provided that “In reckoning the numbers of people of the Commonwealth, or of a
State or other part of the Commonwealth, aboriginal natives shall not be counted.”
There are currently several proposals to amend the Constitution again:
In December 2010, following nominations by the public, the Australian
Government announced the membership of the Expert Panel on
Constitutional Recognition of Aboriginal and Torres Strait Islander peoples.
After a period of consideration, discussion and consultation with all Australians, the
Panel developed options for formally recognising Aboriginal and Torres Strait
Islander peoples in the Constitution. They provided their Report to government on
19 January 2012.
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Elements of the power
1. that the laws were made for the “people of any race”;
2. that there laws were “deemed necessary”;
3. that they were “special laws”.
Kartinyeri v Commonwealth (the Hindmarsh Island case) per Gummow and Hayne JJ
“People of any race”
Race is given a wide, non-technical meaning
Physical similarities, common history, common religion or spiritual beliefs, common culture
Have to identify themselves and be identified by others as being in a particular race
Tasmaian Dam case per Brennan J
It has been considered that ‘race’ is not a term of art; it is not a precise concept. There
is, of course, a biological element in it
Commonwealth v Tasmania (the Tasmanian Dam case) per Brennan J
Brennan J went on to quote a report on several findings from UNESCO studies on
race and racial discrimination:
1. “all [people] living today belong to a single species and are derived from a common
stock”;
2. “pure races in the sense of genetically homogenous populations do not exist in the
human species”;
3. “there is no national, religious, geographic, linguistic or cultural group which
constitutes a race ipso facto”.
Therefore, biological data contradict racism. Racist theories can not have any scientific foundation
Popular notions of ‘race’ have disregarded scientific evidence. Prejudice and discrimination on the
ground of race, colour or ethnic origin occur in a number of societies, where physical appearance –
notable skin colour – and ethnic origin are accorded prime important
Thus, technical term is not appropriate
Tasmanian Dam case per Brennan J at 243-4
Deane J at 273-4: “people of any race” includes “all that goes to make up the
personality and identity of the people of a race: spirit, belief, knowledge, tradition
and cultural and spiritual heritage”.
See also Shaw v Wolf (1998) 83 FCR 113.
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Document Summary
Race" is given a wide, non-technical meaning race is not a term of art, is it not a precise concept a purely technical approach to race" is accordingly not appropriate there is a biological element in race. Under this head of power, the commonwealth can legislate with regard to specific classes of people who fall within the category of race. In 1901 the commonwealth parliament enjoyed no specific legislative power over indigenous australia. The original wording of this power included the words other than the aboriginal race in any state . - The 1967 referendum removed the specific reference to aboriginal people and repealed s. 127, which provided that in reckoning the numbers of people of the commonwealth, or of a. State or other part of the commonwealth, aboriginal natives shall not be counted. There are currently several proposals to amend the constitution again: In december 2010, following nominations by the public, the australian.
