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
2. “pure races in the sense of genetically homogenous populations do not exist in the
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.