The race power, federalism and the value of subsidiarity for Indigenous peoples

Section 51 (xxvi) of the Australian Constitution (often called the 'race power') provides that the Commonwealth Parliament may make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws'. The original provision excluded laws concerning 'the aboriginal race in any State', but those words were deleted by referendum in 1967. A debate has since raged as to whether the provision can be used to support laws discriminating against Aboriginal and Torres Strait Islander Peoples. The Expert Panel on constitutional Recognition of Indigenous Australians recommenced in its report of January 2012 that this head of power be repealed and replaced with a provision intended to be limited to beneficial laws. However, this proposal raises its own problems of interpretation.