dc.contributor.author | Malbon, Justin | |
dc.date.accessioned | 2020-01-08T05:13:40Z | |
dc.date.available | 2020-01-08T05:13:40Z | |
dc.date.issued | 1999 | |
dc.identifier.issn | 00820512 | |
dc.identifier.uri | http://hdl.handle.net/10072/122397 | |
dc.description.abstract | The meaning and scope of the race power - s51(xxvi) - is unsettled. In the sole case in which the High Court was required to directly consider the issue, Kartinyeri v The Commonwealth (the 'Hindmarsh Island Bridge Case'), it was unable to reach a majority view on the provision's meaning, and the tests that should be applied for deciding statutory validity under the provision. This article considers the meaning and scope of the provision in the context of the decision. It argues that a critical term for understanding s51(xxvi)'s meaning is 'race', which appears in the provision. This article also argues that the literalist method for constitutional interpretation is inadequate to the task of interpreting s51 (xxvi) because of the complex nature of the term 'race'. Literalists may too readily assume that the term has an immediately discernible plain and natural meaning. But the term's apparent plainness is deceptive. Its complexity and truer meaning can only be appreciated in its social and historical context. For that reason, an inquiry into the meaning of the race power requires considering the historical circumstances of the creation of
the provision and the meaning that was attached to race. The term 'race' then needs to be compared with the historical context of the provision's amendment in 1967, and with the meaning attributed to the term today. | |
dc.description.peerreviewed | Yes | |
dc.language | English | |
dc.language.iso | eng | |
dc.publisher | LBC Information Services | |
dc.publisher.place | Australia | |
dc.publisher.uri | https://sydney.edu.au/law/our-research/publications/sydney-law-review.html | |
dc.relation.ispartofpagefrom | 80 | |
dc.relation.ispartofpageto | 113 | |
dc.relation.ispartofissue | 1 | |
dc.relation.ispartofjournal | Sydney Law Review | |
dc.relation.ispartofvolume | 21 | |
dc.subject.fieldofresearch | Law | |
dc.subject.fieldofresearchcode | 1801 | |
dc.title | The Race Power Under the Australian Constitution: Altered Meanings | |
dc.type | Journal article | |
dc.type.description | C1 - Articles | |
dc.type.code | C - Journal Articles | |
gro.faculty | Arts, Education & Law Group, School of Law | |
gro.hasfulltext | No Full Text | |
gro.griffith.author | Malbon, Justin E. | |