The Race Power — Its Replacement and Interpretation

Abstract

The Expert Panel on the Constitutional Recognition of Indigenous Australians has recommended the repeal of the ‘race power’ in the Constitution and its replacement with a power to make laws with respect to Aboriginal and Torres Strait Islander peoples. This article analyses that recommendation, the assumptions that underlie it and the way the new provision might be interpreted by the High Court. In doing so, it uses archival material to shed new light on the 1967 referendum and whether it was intended only to permit ‘beneficial’ laws. The article concludes that there is a disjunction between the intention of the Expert Panel and the likely effect of its proposed amendment.