The Australian Constitution: Aboriginal And Torres Strait Islander People

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Section 51(xxvi) of the Constitution provides that the Commonwealth Parliament has the power ‘to make laws for the peace, order and good government of the Commonwealth with respect to the people of any race for whom it is deemed necessary to make special laws’ . Whilst this provision can relate to any race, this essay will focus primarily on Aboriginal and Torres Strait Islander peoples, as they have been adversely affect by the race power. In considering amendments to ‘the race power’, it may be necessary to critically analyse two broad sections to this essay. Firstly, this paper will examine some of the constitutional deficiencies in the protection of Indigenous peoples rights, and secondly it will consider the problems with s51 (xxvi) (the …show more content…
This is particularly true for most Aboriginal and Torres Strait Islander people as they have been marginalised by both the terms and effect of the constitution. Upon its commencement in the early 1900’s, the Australian constitution provided a preamble which makes no particular reference to Aboriginal or Torres Strait Islander peoples. The only two references to Aboriginal peoples in the body of the Constitution was embedded in language of exclusion, more specifically s51(xxvi). There appears to be no evidence that Aboriginal or Torres Strait Islander persons participated or played any role in the drafting of the Constitution. As Hon Robert French observed, the provision was directed to the ‘control, restriction, protection and possible repatriation of people of “coloured races” living in Australia’ . In its earliest form, it exposed the widespread attitude of white supremacy to all coloured peoples and revealed that the welfare of such people was of little importance to the Australian Government. Therefore, in amending s51(xxvi) of the constitution it may be necessary to draft a more complete version of the preamble that recognises the original inhabitants of Australia to reflection contemporary attitudes towards this …show more content…
The high court has not directly considered the issue of whether the power allows for Commonwealth to discriminate against Indigenous Australians, but there is a compelling suggestion that the Commonwealth has unlimited power to make laws for the people of any race, whether the laws are beneficial or even detrimental. Limitations to the ‘race power’ may be construed from the requirement within the head of power that ‘special’ laws for ‘the people of any race’ be necessary and from the underlying benevolent intention of the electorate in 1967 with regards to laws affecting Indigenous Australians. However, the High Court in Kartinyeri v Commonwealth resisted an interpretation of the race power as restricted. With the introduction of the Hindmarsh Island Bridge Act 1997 , the commonwealth parliament removed the disputed construction of the bridge from the possible protection of the Heritage Protection Act. This was achieved without any consideration for the possible detriment to the Indigenous cultural heritage within that region. The plaintiffs consisted of Ngarrindjeri women, who asserted that the site affected by the bridge proposal was sacred to them, and lodged a cause to the High Court seeking to overturn that legislation. The question that arose within the case was whether the Hindmarsh Island
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