Section 51(xxvi) of the Australian Constitution

Section 51(xxvi) of the Australian Constitution, commonly called "the race power", is the subsection of Section 51 of the Australian Constitution granting the Australian Commonwealth, the power to make special laws for people of any race.

As initially drafted, s 51(xxvi) empowered the Parliament to make laws with respect to: "The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws". The Australian people voting at the 1967 referendum deleted the words in italics.

Edmund Barton had argued in 1898 that s 51(xxvi) was necessary to enable the Commonwealth to "regulate the affairs of the people of coloured or inferior races who are in the Commonwealth". The section was intended to enable the Commonwealth to pass laws restricting such migrant labourers such as the Chinese and Kanakas. Quick and Garran observed in 1901 that "It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came."

There were delegates, however, at the 1898 Convention who argued against the use of legislative power to deal specifically with alien races, accepting that people might be excluded from Australia based on race, but arguing that once people were admitted to the country they should be treated in the same way as other citizens.

The scope of s 51(xxvi), is, subject to the Constitution itself, unfettered, in keeping with s 51 granting plenary powers to the Commonwealth. Section 51(xxvi) supports the rejection of legal equality requirements when considering legislation otherwise validly enacted under the Constitution. Thus legislation empowered by other constitutional powers, such as in the Northern Territory National Emergency Response, which was empowered by section 122, may be racially discriminatory.

In Kartinyeri v Commonwealth, the High Court was split on whether s 51(xxvi) could be used to enact legislation that adversely discriminated on the basis of race. Justices Gummow and Hayne held that the use of race as the ais of parliamentary power was inherently discriminatory and that benefits to the people of one race may be detrimental to people of another.Justice Kirby disagreed, holding that the race power did not permit the enactment of laws to the detriment of the people of any race.Justice Gaudron held that it was difficult to conceive of circumstances in which a law to the disadvantage of a racial minority would be valid.

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