As initially drafted, s 51(xxvi) empowered the Parliament to make laws with respect to: “The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”. The Australian people voting at the 1967 referendum deleted the words in italics.
Edmund Barton had argued in 1898 that s 51(xxvi) was necessary to enable the Commonwealth to “regulate the affairs of the people of coloured or inferior races who are in the Commonwealth”. The section was intended to enable the Commonwealth to pass laws restricting such migrant labourers such as the Chinese and Kanakas. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901), observed: “It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came.”
There were delegates, however, at the 1898 Convention against the use of legislative power to deal specifically with alien races.
The scope of s 51(xxvi), is, subject to the Constitution itself, unfettered, in keeping with s 51 granting plenary powers to the Commonwealth (see Kartinyeri v Commonwealth (1998) 195 CLR 337, 355). Section 51(xxvi) supports the rejection of legal equality requirements when considering legislation otherwise validly enacted under the Constitution (see Brennan CJ in Kruger v Commonwealth (1997) 190 CLR 1, 44-45).
Legislation empowered by other constitutional powers (such as the Northern Territory National Emergency Response Act 2007 (Cth), which is empowered by s 122) may be racially discriminatory (see Kruger v Commonwealth).
In Kartinyeri v Commonwealth, the High Court was split on whether s 51(xxvi) could be used to enact legislation that adversely discriminated on the basis of race (see Gummow and Hayne JJ).
In a report delivered to the Australian prime minister on 19 January 2012, it was recommended that a referendum be held for the repeal of s 51(xxvi), to be replaced by s 51A (which empowers the Commonwealth to make laws for Indigenous Australians, but also recognises Aboriginal and Torres Strait Islanders as Australia’s first peoples) and s 116A (which prohibits racially discriminatory legislation or the making of laws under s51A that are not for the benefit of Indigenous peoples). The report also proposed the insertion of a new s 51A which would permit the Parliament to make laws “with respect to Aboriginal and Torres Strait Islander peoples”.
- Remove Section 25 – which says the States can ban people from voting based on their race;
- Remove section 51(xxvi) – which can be used to pass laws that discriminate against people based on their race;
- Insert a new section 116A, banning racial discrimination by government;