Kartinyeri v The Commonwealth
[1998] AILR 15(1998) 3 AILR 180
Between: Kartinyeri
And: The Commonwealth
Judges:
Brennan CJ
Gaudron J
McHugh J
Gummow J
Kirby J
Hayne J
Subject References:
Constitutional law
Race power
Commonwealth Constitution s. 51(xxvi)
Validity of Hindmarsh Island Bridge Act 1997 (Cth)
Statutes
'Indirect express amendment'
Amendment or partial repeal
Judgment date: 1 April 1998
Facts
Hindmarsh Island (Kumarangk), situated in the Murray River delta in South Australia, is connected to the mainland only by a cable-drawn vehicular ferry. During the 1980s there was a steady development on the island foreshores of marina berths and supporting commercial services. In 1989, as a condition of planning approval for a further marina development, it was proposed that a bridge be constructed linking the island to the mainland. The bridge was to be constructed by a private company but vested in the local council. The development was opposed on environmental grounds and on Aboriginal heritage grounds, particularly by a group of Ngarrindjeri women claiming to be the custodians of secret 'women's business' concerning the creation and renewal of life for which the island had traditionally been used. Their first application for ministerial protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the Heritage Protection Act') was referred by the Minister to Professor Cheryl Saunders for report under s. 10 of the Act; but a declaration based on Professor Saunders' report was quashed in the Federal Court by O'Loughlin J (see Chapman v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 133 ALR 74 ). That decision was affirmed by a Full Court of the Federal Court (see Norvill v Chapman (1995) 133 ALR 226 ). The Minister then appointed Justice Jane Mathews to prepare a second report, but her appointment was held to be invalid on the basis that it was incompatible with her judicial office (see Wilson v Minister For Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 ).
The Hindmarsh Island Bridge Act 1997 (Cth) ('the Bridge Act') (see this issue of the AILR) was designed to prevent any further application by the Ngarrindjeri women under s. 10 of the Heritage Protection Act. Its operative provisions were formulated by reference to specified activities associated with 'the construction of a bridge ... in the Hindmarsh Island bridge area', that area being defined by metes and bounds in a Schedule to the Act. The Bridge Act provided that the Heritage Protection Act 'does not authorise the making of a declaration in relation to the preservation or protection of an area' from an activity of the specified kind (s. 4(1)), and 'does not authorise the Minister to take any action after the commencement of this Act in relation to an application (whether made before or after the commencement of this Act) that relates (wholly or partly)' to an activity of the specified kind. Thus, without directly purporting to amend the Heritage Protection Act, the Bridge Act purported to exclude 'the Hindmarsh Island bridge area' from its operation, so far as any objection to the building of the bridge and its associated activities was concerned.
Held
Validity of the Bridge Act
(per Brennan CJ, Gaudron, McHugh, Gummow and Hayne JJ; Kirby J dissenting):
The Bridge Act was valid. Although it was not framed as an express amendment of the Heritage Protection Act, it necessarily operated as an 'indirect express amendment', effecting a partial repeal of the Heritage Protection Act. It was common ground that the enactment of the Heritage Protection Act in 1984 was within Commonwealth legislative power. It necessarily followed that any amendment or partial repeal of the regime prescribed by the Heritage Protection Act must also be within power.
(per Brennan CJ and McHugh J):
It was not necessary to consider the hypothetical case postulated by counsel of a repealing or amending Act which so changed the character of an earlier Act as to deprive it of constitutional support.
(per Gaudron J):
In the case of amendment or partial repeal of a law enacted under s. 51 of the Constitution, a question may arise as to whether the law as thus altered retains its character as a law with respect to the relevant head of Commonwealth legislative power.
(per Gummow and Hayne JJ):
The effect of the Bridge Act was merely to curtail the operation of another law of the Commonwealth. It did not affect the enjoyment of substantive common law rights.
Selective use of the races power
(per the Court):
The power conferred by s. 51 (xxvi) of the Constitution (to make laws with respect to '[t]he people of any race for whom it is deemed necessary to make special laws'), in its application to peoples of the Aboriginal race, is not confined to general laws affecting all peoples of that race. It may also be used selectively to make laws for a limited group, confined by reference to geographical area or tribal identity, as the Parliament may consider appropriate.
Detrimental use of the races power
The plaintiffs argued that the power conferred by s. 51(xxvi) of the Constitution, which became applicable to peoples of the Aboriginal race by virtue of the Constitution Alteration (Aboriginals) Act 1967 (Cth), was confined, in its application to Aboriginal peoples, to laws for their benefit. That issue was not resolved.
(per Brennan CJ and McHugh J):
The Heritage Protection Act was clearly for the benefit of Aboriginal peoples, so that even if the power were confined as suggested, both the Heritage Protection Act and its partial repeal would be valid. Accordingly any discussion of the constitutional issue was unnecessary, and might be misleading.
( Obiter dicta per Gummow and Hayne JJ):
The argument should be rejected. Even if the circumstances surrounding the 1967 referendum evinced a clear aspiration to empower the Commonwealth to legislate for the benefit of Aboriginal peoples, it would not follow that the text of s. 51(xxvi) can now be confined by limitations unexpressed therein.
( Obiter dicta per Gaudron J; Gummow and Hayne JJ contra; Brennan CJ and McHugh J not deciding):
The textual amendment of s. 51(xxvi) effected by the 1967 referendum was too 'minimalist' to affect the scope of the legislative power, which could therefore not be confined to laws for the 'benefit' of the relevant peoples. However, the fact that s. 51(xxvi) envisages 'special laws' imports a requirement that there must be some basis upon which the Parliament might reasonably form the judgment that a relevant difference in the circumstances of the people of a particular race necessitates a 'special law'. Hence, the law must be reasonably capable of being viewed as appropriate and adapted to the relevant difference. Having regard to the circumstances of serious disadvantage which presently affect Aboriginal Australians, it is difficult to conceive of any present circumstances which could support a law operating to their disadvantage.
( Obiter dicta per Kirby J; Gummow and Hayne JJ contra; Brennan CJ and McHugh J not deciding):
For textual and contextual reasons, including the assumptions which should now inform constitutional interpretation, the power conferred by s. 51(xxvi) should be construed as not extending to the making of laws detrimental to, or discriminatory against, the people of any race (including the Aboriginal race). That conclusion is reinforced by the principle that, where the Constitution is ambiguous, the Court should prefer that meaning which conforms to the universal and fundamental human rights enshrined in international instruments.