The Power Of Race Power

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race power

S 51(xxvi): Parliament can make laws with respect to the people of any race, for whom it is deemed necessary to make special laws. ❖ Kartinyeri v Cth: (1) Legislation can be “with respect to” a s 51 subject matter without operating on everything in that subject matter. (2) s 51(xxvi) can be used to discriminate against people of a particular race. ➢ *Heritage Protection Act gave ministers power to declare the protection of an area, which Aboriginals can apply for. ➢ *Hindmarsh Island Bridge Act excluded from HPA’s operation the area around the Hindmarsh Island. ➢ Legislation under s 51(xxvi) may validly operate on only some people of the particular race. ➢ Brennan & McHugh: If Parliament can enact a law, it can repeal/amend that law ( the HPA is valid, so the HIBA which amends the HPA is also valid. ➢ Gaudron: s 51(xxvi) does not confer power to make any laws for people of a race. The extra words “for whom it is deemed necessary to make special laws” mean there must be some special difference that pertained to that race, but not to other races. Therefore, in order to make a valid law under s 51(xxvi), the law must be connected to the difference. The test of this connection is reasonable proportionality. ▪ Eg. If a race is susceptible to illness, Parliament can make law to provide for health of that race, if the means of achieving that end is reasonably appropriate & adapted. ▪ It is irrelevant whether the law is positive or negative. ▪ Laws of manifest abuse are not reasonably appropriate & adapted to the difference ( invalid. ➢ Gummow & Hayne: If a law has a direct legal effect on people of a particular race, and differentiates that race from other races, then that law is valid under s 51(xxvi). ➢ Kirby (dissent): When interpreting a power, it must be done in the context of international laws & values. Since anti-discrimination was an international standard when the referendum was passed in 1967,

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