Consaustra Race Power Essay

Section 51(xxvi) Race Power

The Australian Constitution, which was adopted in 1901, deals with issues relating to Aborigines through two provisions - Consaustra Race Power Essay introduction. They are first, race power as laid down in the section 51 (xxxvi), which empowers the Commonwealth Parliament to enact statutes in respect of people of any race, with the exception of the aboriginal race, in any state who have to be administered by special laws. Issues pertaining to aborigines fall within the jurisdiction of the states. As such there is no involvement of the Commonwealth Parliament in aboriginal affairs. Secondly, section 127 of the Constitution, which was later repealed, states that the aboriginal population should not be considered while identifying the people of the Commonwealth (Summers, 2000).

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            Conventional debates tried to establish that the concept of race power was to relegate power to the Commonwealth while pursuing matters related to coloured populations that came to Australia, and to categorise people who migrated to Australia on a formal agreement or contract to work as labourers in the spirit of the federalist ideology of the Constitution. This concept enabled the States to deal with aboriginal matters. It is essential to define the phrase ‘other than the aboriginal race in any State’ and to clarify which legislative initiatives fall out of the scope of the Commonwealth Parliament’s powers as mentioned in section 51 (xxvi) (Summers, 2000).

            Section 51(xxvi) restricted the Commonwealth Parliament from enacting special laws for aborigines. Moreover, it also restricted the Parliament from making laws that contained special measures to treat aborigines in a manner that differed from the treatment being meted out to non – indigenous people. The under lying objective of section 51(xxvi) was to provide a constitutional protection to aborigines from being subjected to discrimination by any Commonwealth legislation (Summers, 2000).

            There are some drawbacks inherent in such an interpretation and most of the pieces of legislation enacted by the Federal Parliament have not been challenged constitutionally or in any other manner, further, they have not be construed to be discriminating towards the aborigines. Section 51(xxvi) does not empower the Parliament to enact legislation for Aborigines. However the exercising of one’s franchise and the payment of pensions fall within the ambit of Parliament. This is due to the fact that the provisions of the Australian Constitution bestow such powers on the Commonwealth Parliament (Summers, 2000).

            There exist some special provisions which are utilized by the legislations made by Parliament in order to control the constitutional advantages available to aborigines. However, section 51(xxvi) invalidates these provisions of the Parliament by resorting to the concept of belonging to an ethnic minority group other than the aboriginal race in any State (Summers, 2000).

The objective of section 51(xxvi) of the Australian Constitution was to enable the Commonwealth to have power over several aspects regarding aliens, like their entry, displacement from place to place and employment conditions. Hitherto fore, such control over aliens had been vested in the states. In the year 1967, the scope of race power was extended in order to include Aboriginals and inhabitants of the Torres Strait Island. Moreover, the Australian High Court had expatiated in its decisions in Koowarta v. BjelkePetersen and Commonwealth v. Tasmania that in order to be considered as a person of aboriginal descent, it is sufficient if that person is considered to be an Aboriginal by the Aborigines and if that person states his identity to be that of an Aborigine (Hinton, Johnston, & Rigney, 1997. P. 190).

 In the case of The Commonwealth v Tasmania, the Court considered the power of the Federal Parliament to make legislation in order to prevent a World Heritage listed garden from being flooded by the construction of a dam on the Franklin River by the State of Tasmania (REILLY, 1999).

 In the case of Mabo v Queensland, the High Court clearly established that the sovereignty over land mass and seas encircling Australia were surrendered to the Crown, subsequent to the settlement of Australia by Britain. Ever since, the Crown possessed the ultimate authority to make any legislation such as determining the ownership and usage of land  (Mabo v Queensland (No.2) , 1992).

            Further, the court found that during the period when there were European settlements, people from the aborigine populations were provided with a special kind of native title. The court held that the native title depended on the actions of the Crown and that it would persist until there were any changes to the status. Thus if the land was given to somebody along with title then the status of native title would be rescinded. The Crown possessed the power to rescind native title whenever it was pleased to do so (Mabo v Queensland (No.2) , 1992).

Section 122 of the Australian Constitution permits the Commonwealth Parliament to arrive at the number of representatives of the territories in both houses. The discretion of the Parliament in this regard is final. At present there are eight parliamentarians from the two territories. Each territory is provided with two Senators and two Members of Parliament. These representatives are elected for a single term of the House of Representatives. The criterion for their election is proportional representation (Lesslie).

 The practice of electing only two Senators from each territory implies that there would be one Senator in the Government and that the other would be a member of the Opposition. One third of the total votes are required by any insignificant or less popular party to secure a quota. The process of proportional representation system would end up with the pairing of representation in the house. Based on the population, the Northern Territory is entitled to one member in the House of Representatives. During one of the sessions of Parliament the number of representatives was increased to two and not only the government but also the opposition in Parliament supported this increase (Lesslie).

            A number of proposals had been presented in the House for the abolition of Territory Senators and to increase the number of House of Representatives to two for each territory. In this manner, it was proposed that the Australian Capital Territory should have four Members and that the Northern Territory should have three Members (Lesslie).

In Bennett v. Commonwealth, which dealt with a franchise in Norfolk Island, the judge held that the power to legislate under section 122   was not restricted to any specific subject and this power is very wide in its application (Bennett v. Commonwealth, 2007).

            Australian common law was adapted from the British law. There is no impact of the aborigines on the common law. They do not exert any influence on the Australian Constitution, State Constitutions and the Commonwealth. They are treated as normal citizens of Australia and they do not enjoy any special status. Aborigines do not have their own representatives in the Parliament. Therefore, it could also be stated that the aborigines enjoy the same rights and privileges, under the Rule of law, which is common to all other Australian citizens. In addition, the Australian case law is illustrative of this fact (REILLY, 1999).

            In the case of Wik, the High Court stated that the native title would continue to persist in certain lacunae of the legislations made by the Crown. This ruling made it clear that there was a native title. Subsequently, the Crown issued leases and these pastoral leases provided legitimate rights to the pastoralist to enjoy native title. However, pastoral rights were not competent and proved to be inconsistent in nature when compared to the original native title holders. This brought about the loss of native title to the aboriginal people. Pastoral leases continue to exist till such time as they did not interfere with native title  (Wik Peoples v The State of Queensland , 1996).

            The amendment made to the section 51(xxvi) required the High Court to interpret the race power as being capable of authorizing legislations that prohibited racial discrimination and to establish native title as well as the legitimacy of the Hindmarsh Island Bridge Act 1997. While interpreting the provisions of race power, the Court need not take into consideration the probability of section 51(xxvi) being used for perpetrating contradictory discrimination acts against aboriginal people. Until the enactment of the Bridge Act, the decisions of the Court were treated as formal statements, since they depended mainly on the external affairs power (REILLY, 1999).

 In the case of Koowarta v Bjelke-Petersen, the Australian High Court refused to accept the Queensland Government’s constitutional challenge with regard to the enactment of Federal anti – racial discrimination legislation. Justice Wilson opined in that case that the racial barriers were in conflict to the ideals of human society.  Justice Murphy interpreted the word for in section 51(xxvi) as being similar in meaning to for the benefit of. Chief Justice Gibbs was of the opinion that the assumption that race power was to be used exclusively for the protection of a particular race was incorrect (REILLY, 1999).

            In the Hindmarsh Island Bridge case, a group of aborigines sought court order to prevent construction of the Hindmarsh Island Bridge. They invoked the Aboriginal and Torres Strait Island Heritage Protection Act 1984 (Cth) in order to protect a sacred place (REILLY, 1999).

In the Native Title Act case the High Court of Australia held that Race Power supported this act. In a land rights claim indigenous Australians can enforce their rights by approaching the Commonwealth or State governments (Moens & Trone, Summer 1998).

Section 51(xxxi) of the Australian Constitution contains the power to obtain property, provided this is in order to promote a Commonwealth purpose and there are just terms. Section 51 constitutes not only a basis for the power to legislate but it also contains provisions that restrict the exercise of that power. As had been opined in Commonwealth v WMC Resources Ltd (Commonwealth v WMC Resources Ltd , 1998) and Smith v ANL (Smith v ANL , 2000), the requirement of just terms in an acquisition constitutes a constitutional guarantee. This restriction of power constitutes the principal difficulty in applying section 51(xxxi) to federal rights.

A new property interest created by federal legislation can be modified or extinguished by ensuing federal endorsement. Consequently, in the normal course of events,  section 51(xxxi) does not divest Parliament of the power to employ some other power, inherent in section 51, to alter or annul a piece of legislation that had been ratified under that power (Anet, 2002).

Section 109 of the Australian Constitution states that the law of any state, which is at variance with a law of the Commonwealth will be overridden by the latter to the extent of its inconsistency. Further, legislative power is exercised concomitantly by the Commonwealth and the States. The inconsistency referred to in this section can be categorized as direct inconsistency, which can be further classified as the unfeasibility to conform to the State as well as the Commonwealth law. This was illustrated in R v. Licensing Court of Brisbane, wherein the Commonwealth law held that a State referendum could not be held on the same day as a Federal Senate election (R v. Licensing Court of Brisbane; EX parte DAniell, 1920).

Another instance is when the State and Commonwealth laws contradict each other, this transpired in Colvin v. Bradley Brothers Pty Ltd, wherein the State law disallowed certain type of work by women whereas the Commonwealth law did not specify such restriction (Colvin v. Bradley Brothers Pty Ltd, 1943).

Another aspect of section 109 of the Australian Constitution pertains to indirect inconsistency. This is supposed to take place whenever, there is no apparent inconsistency between the State law and the Commonwealth law, but the implication is that the State law will prevail over the Commonwealth law.

The legislative power accorded to Parliament by section 51 and section 122 of the Australian Constitution differs to a great extent. The empowerment afforded by section 122 is not only plenary but also unbounded by reference to the subject matter. This section grants a totality of power to enact laws that benefit the government of that territory. However, even this seemingly infinite power is properly controlled by other sections of the Australian Constitution. Nevertheless, this section does not enjoy a monopoly with regard to formulating laws for the Territory or its government, because there are a number of sections that control such activities (Spratt v Hermes , 1965).


Anet, P. (2002, February). Constitutional Law Conference : Looking Ahead : The Issues of 2002 and Beyond : Acquisition of Property : Past Cases, Future Directions. Retrieved September 11, 2007, from gtcentre:

Bennett v. Commonwealth, 234 ALR 204; 81 ALJR 950: 2007 HCA 18 (Australian High Court 2007).

Colvin v. Bradley Brothers Pty Ltd, 68 CLR 151 (Australian High Court 1943).

Commonwealth v WMC Resources Ltd , 194 CLR 1 (1998).

Hinton, Johnston, & Rigney. (1997. P. 190). Indigenous Australians and the Law. Cavendish Australia. ISBN: 1843142767.

Lesslie, S. (n.d.). A Proportional Representation System for the Election of the Australian Parliament. Retrieved September 10, 2007, from

Moens, & Trone. (Summer 1998). The ‘People of any Race’ Power in the Australian Constitution. Australia & World Affairs , Iss 35.

R v. Licensing Court of Brisbane; EX parte DAniell, 28 CLR 23 (High Court of Australia 1920).

REILLY, A. (1999). Reading the Race Power: A Hermeneutic Analysis. Retrieved September 10, 2007, from

Smith v ANL , 75 ALJR 95; 176 ALR 449; [2000] HCA 58 (2000).

Spratt v Hermes , 114 CLR 226, 232. [7] (High Court of Australia 1965).

Summers, J. (2000, October 31). The Parliament of the Commonwealth of Australia and Indigenous Peoples 1901-1967. Retrieved September 10, 2007, from Politics and Public Administration Group:


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