Revisiting the Scope of the Race Power after McCloy

(2016) 27 Public Law Review 264

8 Pages Posted: 25 Nov 2016

See all articles by Harry Hobbs

Harry Hobbs

University of Technology Sydney, Faculty of Law

Date Written: November 21, 2016

Abstract

Constitutional recognition of Aboriginal and Torres Strait Islander peoples re-emerged on the political agenda in 2010. Yet, no government has committed to a specific proposal and debate still rages on the precise content and form of recognition. A significant element of that debate centres on the race power under s 51(xxvi) of the Constitution. The orthodox position is that the race power permits the Parliament to enact legislation that imposes a disadvantage on Aboriginal and Torres Strait Islander peoples But is this the case? This comment will trace the Court’s jurisprudence on the race power, noting that this critical question remains open. It will then suggest a recent decision of the Court raises the possibility that — subject to an appropriate vehicle — restraining the scope of the race power may not require a referendum.

Keywords: constitutional law, indigenous peoples, race power, proportionality

JEL Classification: K10, K30

Suggested Citation

Hobbs, Harry, Revisiting the Scope of the Race Power after McCloy (November 21, 2016). (2016) 27 Public Law Review 264. Available at SSRN: https://ssrn.com/abstract=2873907

Harry Hobbs (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

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