At common law, the race of a person is legally irrelevant. This attribute can, however, be made relevant by statutes (legislation), regulations, and judgments of the superior courts. When an individual’s race is made relevant, the instrument through which that is done or enforced, is here included under the term “race law.”
In other words, “race law” is defined as any positive law, including statutes, regulations, and judgments of the courts, that makes or recognises race, skin-colour, or ethnicity as legally relevant.
Instruments that remove an existing racial handicap, burden, or disability from law – that is, makes race irrelevant – are not regarded as race law.
A mere textual reference to the words “white,” “black,” “disadvantage,” or “race” does not automatically automatically triggered inclusion in the Index. Some legal relevance must arise, regardless of whether that relevance is harmful or beneficial.
Provisions are first checked to determine that the reference is to a person’s skin-colour, race, or ethnicity (rather than the “race” of plants or animals, “white” phosphorus, or a prohibition on “disadvantaging” small businesses with anti-competitive conduct), and that the provision qualifies under the above definition of “race law” above (rendering race, skin-colour, or ethnicity legally relevant).