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Race Power Benefits

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Race Power to only Legislate for the Benefit
Contrarily, Justice Murphy was in favour of the second interpretation and held in Commonwealth v Tasmania (1983) 158 CLR 1 that Section 51 (xxvi) should be interpreted to only allow for legislation which maintains and protects the rights of the Aboriginal people taking into consideration the 1967 Referendum as ‘to hold otherwise would be to make a mockery of the decision by the people’. This view was upheld by Brennan J and it was held that the 1967 Referendum was ‘an affirmation of the will of the Australian people … that the primary object of the power is beneficial’.

Gaudron J in Kartinyeri contemplated that although the scope of Section 51 (xxvi) is wide enough to authorise laws to the advantage …show more content…
The written text in Section 51 (xxvi) of the Constitution would prevent entrenchment of any other interpretations regarding the form of ‘special laws’ and narrows the legislative powers of the Commonwealth to a defined scope. The limiting of this scope would give participatory powers to the Aboriginal people that can be exercised through intervention, in determining laws which serves to their benefit and the maintenance of beneficial laws. This would solidify their special position in the Constitution for they now have a say over the legislations passed ‘for their benefit’.
However, truth of the matter was that the Justices in Kartinyeri preferred a divergent view thus no consensus was reached. To date, there is still a lacuna in the law as to the purview of the power under Section 51 (xxvi).
In the 2012 Report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander People in the Constitution (‘Expert Panel’), it was recommended for race power to be removed from the Constitution, and for an amended Section 51A to take its place. In the 2017 Final Report , the Expert Panel recommended the …show more content…
The author is of the opinion that whilst it would be the most straight forward ‘way out’, the repeal of the race power could actually be even more detrimental as it will abolish the only current legislation in favour of the Aboriginal people. This would bring the Aboriginal people back to square one, wherein their position reverts back to that pre- 1967. Because the race issue is a sensitive and specific one, the author believes deletion of Section 51 (xxvi) would cause more harm than good as this would cause the Aboriginal people difficulty to rely on any other heads of power in enacting

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