Revisiting the Scope of the Race Power after McCloy
(2016) 27 Public Law Review 264
8 Pages Posted: 25 Nov 2016
Date Written: November 21, 2016
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: Suggested Citation