Macquarie University, for constitutional law, had the infamous 24 hour final paper. At the beginning of the 24 hour final, the question was posted on a noticeboard in the law building.
You had to then figure out a way to write the paper, print it, and submit it in a box under the noticeboard within 24 hours.
Imma be honest with you, all I remember from constitutional law was "the defence power waxes and wanes" and "pistols at high noon" (referencing the Whitlam dismissal).
So here is a question I cribbed out of my ass (entire citation: my ass)
"Section 51(xxvi) of the Constitution confers the power to make legislation 'for the people of any race for whom it is deemed necessary to make special laws'.
Can Section 51(xxvi):
1. Grant legislative power to establish or define a category of race for the purposes of any such legislation, and;
2. Enforce that categorisation upon an individual irrespective of the individual's own beliefs regarding their own racial identity?
- Ji Eun Choi, 16th July 2026
I love this challenge.
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The question set before us by Professor Ji Eun Choi which has been assigned for us in these esteemed premises, is like that of Araldite – it comes in two parts. Also like Araldite, is my intention to address the two parts before mixing them together in a unified conclusion, which is stronger than the components and is guaranteed to smell funny.
The first part being...
Can Section 51(xxvi):
1. Grant legislative power to establish or define a category of race for the purposes of any such legislation, and
...shall be addressed presently.
One of the striking things about the Australian Constitution is that unlike the United States Constitution or the Constitution of the First French Republic, is that it neither purports to be nor attempts to be the wellspring from which all other law is derived. The Australian Constitution is not like a magic guitar which contains all the songs in the world and it is just for the songwriter and player to pull them all out through the sound hole.
In the words of the author John Green:
“They belong to their readers now, which is a great thing–because the books are more powerful in the hands of my readers than they could ever be in my hands.”
- John Green
A similar sentiment was expressed by the United States luminary and founding father Thomas Jefferson to James Madison, when trying to discuss the nature of the new constitution that they has just conceived for that nation:
“On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years.”
- Thomas Jefferson to James Madison , 6th Sep 1789
Given this as the starting point, we must conclude that any question preceding with “Can Section 51 (xxvi)” do a thing, must also begin with determining what the ontology of the Australian Constitution is and also importantly, who it now belongs to.
The Australian Constitution if it is not the wellspring of law within the Commonwealth, must therefore exist within a framework of law, both inherited and derived, both precedent and subsequent to it. As expressed above, the Australian Constitution also exists within the context of its place in the here and now, and while the authorial intent may be advisory, the actual interpretation of what the law actually says must also be done in the here and now. Whatever the authorial intent of the framers of the Australian Constitution actually was, is functionally irrelevant, immaterial, and as they have all suffered an existence failure, incompetent. The law does not belong to the dead.
The actual text of the opening to Section 51 reads:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
- Section 51, Commonwealth of Australia Act (1900)
Keen readers will notes that the next thirty-nine sub-clauses which follow, do not expand upon this power but rather, act as a series of fences to limit the bound and scope as where this power lies. Likewise, Section 51 (xxvi) also does not expand upon the power, but neither does it contain any specific fences or advice as to what any of the conditions contained therein actually mean. This means that functionally, the subject of the subclause “The people of any race”, is practically perfectly plenary in this respect.
As mentioned above, since the authorial intent of what the framers of the Australian Constitution thought is irrelevant, then what the words “The people of any race” actually mean, comes down purely to the interpretation of the courts when presented with the law, unless there is a definition section within the confines of the proposed law.
There is statute directive which may be of some instructive value but again, this falls short of directing how the words “The people of any race” should be interpreted.
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
- Section 15AA, Acts Interpretation Act (1901)
When it comes to determining the the purpose or object of the Act in this case, then we are in luck as the opening to Section 51 says that that purpose is “laws for the peace, order, and good government of the Commonwealth”. Again we run into the immediate problem that those words are not defined at law, and what makes this even more difficult is that in the 126 years that the Commonwealth Of Australian has existed, there hasn't actually been a case presented to the High Court of Australia, which requests an interpretation of those words.
Oh howl howl howl. Cry 'havoc!' and let slip the dogs of war. Oh beardy men in sweaty basements of yore, what foul horrors hast thou wrought upon us?
In fact, the best possible answer to the question of “Can Section 51(xxvi): grant legislative power to establish or define a category of race for the purposes of any such legislation?”, is to engage in a small piece of legislative memory.
Almost immediately after the invention of the Commonwealth of Australia at law, the Pacific Islanders Labourers Act (1901) was the sixteenth piece of legislation passed by the newly invented Parliament. The effect of the Act was to immediately and severely restrict the entry of Pacific Islanders into Australia, and also to mandate the immediate deportation of thousands of indentured workers.
It must be noted that the overt motives of this Act were extreme racial prejudice; specifically to remove a non-white labour force in an act of economic ring fencing and protectionism for white workers. In the numbered Acts of Australia, this is the first in what became known as the “White Australia Policy”.
In a similar vein, the Immigration Restriction Act (1901) effectively banned Chinese and other non-European immigration until its dismantling starting in the 1970s, and is particularly infamous because the so-called discriminatory “Dictation Test”, which allowed immigration officers to dictate 50 words in any European language, including in language which neither the person being forced to take the test nor the Immigration Officer administering the test could understand, and this led to failure and automatic deportation; including in cases where the person had been born in Australia and only spoke English.
The question of “Can Section 51(xxvi)” do this, is not a theoretical one, but one of historical fact. Can it? Yes. Has it? Yes.
Did we in fact learn anything in the more than six score of years since the invention of the Commonwealth? In a more modern context, although Section 51(xxvi) interacts with pieces of legislation such as the Racial Discrimination Act (1975), as this is part of the Constitution of Australia, it remains the supreme law of the Commonwealth and it remains a constitutional exercise of power regardless of whether it conflicts with subordinate pieces of legislation such as the Racial Discrimination Act (1975). How a proposed piece of legislation would interact with this theoretical piece of legislation is currently unknowable.
It is worth noting that the Commonwealth Parliament can and has intentionally suspended the Racial Discrimination Act (1975) in consideration of passing specific laws which target certain racial groups. The Northern Territory Emergency Response Act (2007), which became known as “The Intervention” suspended the operation of the Racial Discrimination Act (1975), in the implementation of what it called “targeted welfare” which was specifically ringfenced for Indigenous communities in the Northern Territory.
It is also worth noting that while the “race power” contained within Section 51(xxvi) was originally designed in the 1890s to allow for explicitly discriminatory legislation, various High Court interpretations (such as the 1998 Kartinyeri case) have debated whether this power can be used to pass laws that negatively discriminate, or if it is strictly limited to beneficial "special measures" for groups such as Indigenous Australians.
The second part will now be addressed:
Can Section 51(xxvi):
2. Enforce that categorisation upon an individual irrespective of the individual's own beliefs regarding their own racial identity?
Again, the question of “Can Section 51(xxvi)” do this, is not a theoretical one, but one of historical fact. Can it? Yes. Has it? Yes.
There are some comments which need to be made before the implications of the above can be expanded upon. Specificity is the soul of narrative. Specificity is the wellspring of nuance.
The first thing of note here is that everyone within the Commonwealth of Australia is bound by law:
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
- Clause 5, Commonwealth of Australia Act (1900)
More generally, the individual is not sovereign. There are no sovereign citizens. Not even the King, though he may be the Sovereign by title, is a sovereign citizen at law. In the grand procession of case law, his very late majesty King Charles I discovered that the King is in fact bound by law and the courts therein, when on 30th January 1649, Parliament indicted him for tyranny. The most interesting thing about King Charles I is that at the beginning of 30th January 1649 he was 5'6” tall but by midday he was only 4'8” tall.
This means to say that the law, not only overrides what someone's feelings are about it, but in fact renders their feelings about it utterly pointless. They are bound by the law, regardless of how they feel about it.
This being true, the question of what one believes about their position with respect to the law, is in fact and by operation of law, an equally pointless question. How one feels about the law and the individual's own beliefs regarding their own racial identity are in fact meaningless questions.
With respect to the actual question of race, this itself is not an objective scientific fact but is also a legal construct. It is the Courts themselves which define race, through predominantly observable and/or historical markers like skin colour, descent, or ethnic and national origin. Indeed the general text for the construct of race within the confines of the Racial Discrimination Act (1975), is one which is determined by verifiable and documented aspects of the individual such as shared descent, colour, or ethnic background, regardless of biological validity.
Given that Section 51(xxvi) objectively does grant legislative power to establish or define a category of race for the purposes of any such legislation, and define the terms contained within said piece of legislation, and has done so in the past, then it also stands that such a proposed piece of legislation would also contain the terms by which that categorisation is enforced.
Conclusion:
Here then is the very sticky and somewhat smelly conclusion to the whole thing, as the Constitution of Australia Act (1900) is gloriously glib when it comes to defining any of its terms, it would seem that the prima facie position is that it is unfair to those people who happen to fall on the unfavourable side of the law. Equally as famous is the fact that the Constitution of Australia Act (1900) does not contain a Bill of Rights and it is the opinion of the writer that nor should it do so.
An act such as the Pacific Islanders Labourers Act (1901) was abhorrent to many people, even at the time of its passage. Equally, nobody mourned its passing when it was repealed with the Statute Law Revision Act (1974). This means to say that the Constitution of Australia Act (1900) in principle is entirely agnostic when it comes to the subject of human rights, or indeed of the concept of rights at all. This means that the Constitution of Australia Act (1900) actually does in practice live up to the idea that it belongs to its readers and that it belongs always to the living generation, because all Acts are made and can be equally unmade for the peace, order, and good government of the Commonwealth by the current Parliament. Whether or not those Acts are good, is still up for debate.
