The race power in the Australian Constitution carries with it the not so faint echoes of ‘old unhappy far-off things and battles long ago’. It reflects both the nineteenth-century social Darwinism which gave it birth in 1901 and the inclusive worldview that led to its amendment in 1967. It is to be found in s. 51(xxvi) of the Constitution. It confers on the Commonwealth Parliament the power to make laws for the peace, order and good government of the Commonwealth with respect to ‘the people of any race for whom it is deemed necessary to make special laws’.

From 1901 until 1967 its subject matter was ‘the people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws’. In this form it was directed to the control, restriction, protection and possible repatriation of people of ‘coloured races’ living in Australia. The words ‘other than the Aboriginal race in any State’ were deleted by the Constitution Alteration (Aboriginals) Act 1967 (Cth) following a vote of a majority of electors in a majority of States at a referendum conducted under s. 128 of the Constitution. Its primary object was to make laws for the benefit of Aboriginal people. There was thus brought to bear on the provision what has been described as ‘a second set of founding intentions’ and ‘an acute problem of reconciling them with the original set’.