LAW314 Constitutional Law: Race Power and Detriment Laws Essay

This essay critically examines Section 51(xxvi) of the Australian Constitution, also known as the race power, which grants the Australian Commonwealth the authority to create laws for individuals of any race. The central question explored is whether the High Court should interpret this power as enabling laws that could potentially harm a specific race. The essay delves into the historical context, the intentions of the Parliament, and the implications of cases like Kartinyeri v the Commonwealth. It explores the arguments for and against the race power, considering the views of legal scholars and judges, including the impact of the 1967 referendum. Furthermore, it analyzes the application of legal theories such as legalism and progressivism. The essay concludes by assessing the current understanding of the race power and its potential for both beneficial and detrimental discrimination, emphasizing the ongoing debates and the need for reassessment by the High Court.