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Section 51 Advantages And Disadvantages

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Section 51(xxvi) of the Australian Constitution allows the Federal Parliament to make ‘special laws’ for the ‘people of any race whom it is deemed necessary’. Essentially, this means that the Federal Parliament can enact laws that distinctively addresses or regulates the members of one race. In the Tasmanian Dam Case, Justice Brennan defines the word ‘race’ as meaning ‘people who regard themselves…as having a particular historical identity in terms of their colour of racial, national or ethnic origins’. The Expert Panel believes that this definition is outdated, as it doesn’t take into consideration scientific and biological factors.
In the Hindmarsh Island Bridge Case, the High Court was divided on whether a law could be passed which adversely discriminated against Indigenous Australians or other races using this head of power. The unsettled nature of this principle means it is potentially permissible to pass discriminatory laws. The Expert Panel has recommended that this power be removed and that a new head of power is added in which allows the Federal Parliament to pass laws ‘with respect to Aboriginal and Torres Strait Islanders’ and in their benefit. …show more content…
The Panel argues that the concept of ‘race’ has had a negative impact on Aboriginal and Torres Strait Islanders. A majority of written submissions [see Figure 1] received by the Expert Panel agree with the removal of s 25 and s 51(xxvi), with one submission stating that ‘the concept of ‘race should be removed from the Australian Constitution’ and that ‘[i]t is an archaic social construct which does not have a place in modern Australia.’ With so many submissions agreeing with the Expert Panel’s proposed changes to s 25 and s 51(xxvi) of the Australian Constitution, it seems that repealing s 25 and s 51(xxvi) would be more beneficial in promoting non-discrimination and reconciliation in

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