The Race Power under the Australian Constitution: Altered Meanings
![handle is hein.journals/sydney21 and id is 90 raw text is: The Race Power Under the Australian
Constitution., Altered Meanings
JUSTIN MALBON*
There are many words which have been made to suffer constant misuse;
but there is none which suffers more abundantly, or
with sadder consequences, that the word Race.
Ernst Barker'
1. Introduction
The meaning and scope of the race power - s51 (xxvi) - is unsettled. In the sole
case in which the High Court was required to directly consider the issue,
Kartinyeri v The Commonwealth2 (the 'Hindmarsh Island Bridge Case'), it was
unable to reach a majority view on the provision's meaning, and the tests that
should be applied for deciding statutory validity under the provision.3 This article
considers the meaning and scope of the provision in the context of the decision. It
argues that a critical term for understanding s51 (xxvi)'s meaning is 'race', which
appears in the provision.
This article also argues that the literalist method for constitutional
interpretation is inadequate to the task of interpreting s51 (xxvi) because of the
complex nature of the term 'race'. Literalists may too readily assume that the term
has an immediately discernible plain and natural meaning. But the term's apparent
plainness is deceptive. Its complexity and truer meaning can only be appreciated
in its social and historical context. For that reason, an inquiry into the meaning of
the race power requires considering the historical circumstances of the creation of
the provision and the meaning that was attached to race. The term 'race' then needs
to be compared with the historical context of the provision's amendment in 1967,
and with the meaning attributed to the term today.
Once the meaning of 'race' is considered, the meaning of s5 l(xxvi) itself can
be better understood. It is then necessary to devise a test for determining the
validity of statutes relying on s51(xxvi) as a source of power. The test needs to
* Senior Lecturer, Law School, Griffith University. The author welcomes any comments on this
article, which can be sent to J.Malbon@mailbox.gu.edu.au The author thanks Professor Garth
Nettheim and the three anonymous reviewers of this article for their comments and assistance.
I Barker E, National Character, and the Factors in its Formation quoted by Hannaford 1, Race:
The History of an Idea in the West (1996) at an unnumbered preliminary page.
2 [1998] HCA 22 (hereinafter the 'Hindmarsh Island Bridge Case') <http:www.austlii.edu.au/
cases/cth/high._ct/1998/22.html>.
3 The meaning of the provision has also been considered in passing in Koowarta v Bjelke-
Petersen (1982) 153 CLR 168 at 186 (Gibbs CJ), 209-210 (Stephen J), and 242 (Murphy J); The
Commonwealth v Tasmania (1983), 158 CLR I (hereinafter The Tasmanian Dam Case) at 110
(Gibbs CJ) and 203 (Murphy J); Gerhardy v Brown (1985) 159 CLR 70 at 138 (Brennan J) and
273 (Deane J); Chu Kheng Lim v Minister for Immigration (1992) 176 CLR I at 56 (Gaudron
J); Native Title Act Case (1995) 183 CLR 373 at 461; Kruger v The Commonwealth (1997) 71
AUR 991 at 1035.](ViewImageLocal?handle=hein.journals/sydney21&div=11&collection=&method=preview&ext=.png&size=3)
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The Race Power under the Australian Constitution: Altered Meanings
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