Section 51 (xxvi) Is all about the Commonwealth's actual need for power

02/07/2015 00:08



Proposed Alteration to Section 51 (xxvi) Is all about the Commonwealth's actual need for power. 


The Australian Government has been having Constitutional issues since the implementation of the 1901 Act. Constitutional Lawyer Anne Twomey noted in her research that the Commonwealth at its inception “had no power to enter into treaties in its own right.”[1] Twormey also noted that Australia had “the failure of this bold claim for sovereignty.”


Anne Twomey also highlights that the States must have a consistency with Commonwealth for a Legislation to have legitimacy and notes that any inconsistency is in fact ‘ineffective’.


“Treaties have had a significant impact on the States, particularly in relation to environmental matters. Once the Commonwealth uses the external affairs power to enact legislation, section 109 of the Commonwealth Constitution provides that the Commonwealth legislation prevails and any inconsistent State legislation is ineffective.” (Anne Twomey: 2000)


Anne Twomey further highlights that the Native Title Act 1993 and the ‘Race Power’ legislation 51(xxvi) which is up for amendment in the Recognition Referendum is part of an inconsistency for The Commonwealth with external Treaties. 


“The 'race power' in section 51(xxvi) of the Constitution has also proved to have an immense impact on the States with the Native Title Act 1993 (Cwlth) now limiting the power of the States to legislate (or dictating the measures which must be included in State legislation) in all areas of land and water management, from farming to mining to fishing to irrigation to flood management to environmental and planning laws to laws governing the use of National Parks and State Forests.” (Anne Twomey: 2000)


In 1977 the ALRC (Australian Law Reform Commission) reported “The Commonwealth’s incapacity to establish bodies exercising judicial power in a State”[2] in relation to section 51(xxvi).


The ALRC report acknowledges and provides evidence from High Court Judges that section 51(xxvi) is ‘Discriminative’[3] at present. The fact that the ‘Recognition’ Referendum wishes to amend 51(xxvi) to specifically Aboriginal and Torres Strait Islander people only magnifies the Discrimination. 


Furthermore the report highlights that the Commonwealth had extended it’s powers after the 1967 Referendum but still has limitations especially with judicial power and jurisdiction.


The Report goes on to point out that The Racial Discrimination Act 1975 is also partially powered up by section 51(xxvi).


“The Commonwealth, intervening, relied not only on the external affairs power[1922] but also on the races power to support the legislation.”


So if section 51(xxvi) is amended then the validity of The Racial Discrimination Act 1975 becomes seriously compromised. 


As the ALRC report quotes Chief Justice Gibbs:


“a law which applies equally to the people of all races is not a special law for the people of any one race.” [1923]


In closing Aboriginal and Torres Strait Islander people have no benefit from section 51(xxvi) amendment. In fact the Commonwealth benefits and gains more power whilst Aboriginal and Torres Strait Islander people lose all power to the Australian Government. 


Furthermore the Government will acquire power to make 'discriminative' laws specifically for Aboriginal and Torres Strait Islander people as a 'segregated' race. 



[1] Research Paper 15 1999-2000

Anne Twomey(1), Consultant

Politics and Public Administration Group

7 March 2000

[2] Recognition of Aboriginal Customary Laws (ALRC Report 31)