Between: Kartinyeri
And: The Commonwealth

Judges: Brennan CJ
Gaudron J
McHugh J
Gummow J

Kirby JHayne 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

Decision by:
Kirby J

...

Common ground

117. Notwithstanding the foregoing points of controversy, there was common ground between the parties about a large number of matters:

1

It was accepted for the plaintiffs that in 1901, para. (xxvi), as it then stood, might have authorised legislation which was either beneficial or detrimental to the people of any race. ^[F57] At that time, the paragraph included the exception which was deleted following an alteration of the Constitution in 1967. The words removed were 'other than the aboriginal race in any State'. No law could be cited where the power conferred by para. (xxvi) had been exercised before 1967. ^[F58] However, since that time, the power has been regularly used in the making of laws, including the Heritage Protection Act, for the people of the Aboriginal race. No one could point to an Australian law, made by the Parliament, reliant on para. (xxvi), which was enacted to the detriment of, or to discriminate against, persons on the grounds of their race.

2

The plaintiffs accepted that the Parliament was entitled to repeal or amend the Heritage Protection Act. Their contention that an Act made under para. (xxvi) must be for the benefit or advancement of the people of a race did not extend to suggesting that, once benefits were granted or advancement enacted, these could not be withdrawn or changed. Such a view of the power would effectively constitutionalise any such enactment, thus rendering it incapable of ready amendment. Acceptance of this position clarified, to my way of thinking, the substance of the plaintiffs' submission about the meaning of the power. It was, as they ultimately accepted (and as New South Wales endorsed it) a prohibition on detrimental or adversely discriminatory legislation. This was their essential complaint against the Bridge Act. It invoked para. (xxvi) to work a specific detriment upon, and adverse discrimination against, the plaintiffs by reference to their race. It was this suggested meaning of para. (xxvi) with which the Commonwealth joined issue.

3

No party or intervener sought to argue that, where a law was supported by reference to para. (xxvi), consideration of whether it was 'necessary to make special laws' for people on the ground of 'race' was placed entirely outside judicial scrutiny. Whilst it would be for the Parliament, in the first place, to do the deeming contemplated by the paragraph, neither the Commonwealth nor those who supported its submissions denied that the necessity to make special laws or, indeed, the characterisation of a law as falling within the power was, ultimately, a matter for this Court. By reference to what the Court said in Western Australia v The Commonwealth (Native Title Act Case), ^[F59] it was accepted that the Court retained a residual supervisory power. Notwithstanding parliamentary deeming, the Court could hold that there was, in truth, no necessity to make a special law for the people of a race under the race power. Various epithets of restraint were suggested to describe the 'extreme case' which alone would warrant judicial intervention on this basis. The Commonwealth agreed, as a theoretical possibility, that a law to exterminate members of a particular race would invite invalidity. Western Australia suggested that a case that would authorise the intervention would be one in which the law was 'so outrageous so as to be completely unacceptable'. For South Australia a test of mala fides was propounded or one involving 'manifest abuse' ^[F60] of the power. Those who supported its validity urged that the Bridge Act fell far short of these epithets. They argued that the Court was, therefore, not entitled to substitute its opinion for that of the Parliament.

4

In its written submissions, the Commonwealth suggested, faintly, that it might have been open to the Parliament to conclude, in the case of the Bridge Act, that a special law was necessary for the benefit of the Aboriginal people, including the Ngarrindjeri, in order to settle a divisive dispute between conflicting factions ^[F61] evident in the earlier court proceedings. However, it was not seriously pressed that the Bridge Act was for the benefit of the people of a race or deemed necessary for their benefit as a special law. The plaintiffs argued that the real benefit of the Bridge Act is made plain by its long title and its operative provision ^[F62] - that it is for the benefit of those concerned to see the construction of the bridge without the impediments caused by the Heritage Protection Act. Counsel for the Kebaro interests very properly conceded that the Bridge Act altered adversely the position of the plaintiffs. He accepted that, to that extent, there was discrimination against Aboriginals. The Bridge Act took away from them rights which they would otherwise enjoy as people of the Aboriginal race.

5

Although there were differences about whether para. (xxvi) was ambiguous and, if it was, as to the use that might be made of the Convention Debates of the 1890s, Parliamentary debates of the 1960s and materials prepared for the 1967 referendum, no objection was raised by any party to the Court's going to these materials in order to secure a general understanding of the purpose of the race power in its original form and the object of the constitutional alteration approved at referendum in 1967. For the Commonwealth, it was accepted that such alteration amounted to a 'very important symbolic event' having the 'primary object' of conferring additional powers on the Parliament to make special laws for the benefit of Aboriginal people in a State by reference to their race. Where the parties differed was upon whether this purpose was a mere aspiration or whether, after 1967, it confined the ambit of the power, either generally in relation to all 'people of any race' or specially in relation to the people of the Aboriginal race.

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Race power: authority of the Court

124. Although there has not been a holding of the Court on the prerequisites of para. (xxvi), relevant dicta appear in the opinions of members of the Court written since its amendment. Several of those who have expressed a view have been of the opinion that the power in para. (xxvi) is for the benefit, and not the detriment, of people by reference to their race, specifically in legislation enacted for the indigenous people of Australia.

...

127. In the opinion of Brennan J in The Tasmanian Dam Case the history of the 1967 amendment of para. (xxvi) was considered important to extracting its meaning: ^[F63]

No doubt para. (xxvi) in its original form was thought to authorise the making of laws discriminating adversely against particular racial groups ... The approval of the proposed law for the amendment of par (xxvi) by deleting the words 'other than the aboriginal race' was an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial. The passing of the Racial Discrimination Act manifested the Parliament's intention that the power will hereafter be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make special laws.

128. In his reasons, Deane J ^[F64] described the way in which the exclusion of the Aboriginal race from the original paragraph had the effect of protecting them from the danger of adverse discrimination on the ground of race. ^[F65] But his Honour went on to state that, with the passage of time, such exclusion 'came to be seen as a fetter upon the legislative competence of the Commonwealth Parliament to pass necessary special laws for their [ie Aboriginal] benefit'. ^[F66] Their inclusion in the power was thus for the making of 'laws benefiting the people of the Aboriginal race'. ^[F67]

129. In Chu Kheng Lim v Minister for Immigration, ^[F68] Gaudron J commented that the view that par (xxvi) 'only authorises laws for the benefit of the race concerned' had 'much to commend it'. Her Honour referred to the opinion that 'for' in the paragraph meant 'for the benefit of' and not 'with respect to'. ^[F69]

130. The most recent examination of the question appears in the Native Title Act Case. ^[F70] There the Court did not have to resolve the question now before us. This was because, once again, the Act under scrutiny undoubtedly answered the description as one for the benefit and protection of Aboriginal people by reference to their race. It enacted no detriment to them nor any discrimination against them. A number of indications appear in the joint judgment ^[F71] which might suggest a view that the power in para. (xxvi) is not confined to one to be used solely for the advantage, and never for the detriment, of people according to race. Thus, the joint judgment describes the 'special quality' required of a law conforming to para. (xxvi) as appearing 'when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race'. ^[F72] Their Honours cited the opinion of Mason J in The Tasmanian Dam Case where his Honour had referred to the paragraph as being in its terms 'wide enough to enable the Parliament (a) to regulate and control the people of any race in the event that they constitute a threat or problem to the general community, and (b) to protect the people of a race in the event that it is necessary to protect them'. ^[F73] The further reference to the views of Brennan J and of Deane J in The Tasmanian Dam Case, extracted there, do not include their Honours' suggestions that the power, following the constitutional alteration in 1967, might be limited, as mentioned above.

131. In the end it is impossible to derive from the foregoing decisions any sure conclusion as to the scope of para. (xxvi) - whether it is confined to the benefit of the people of any race or to laws which do not adversely discriminate against them; or, at least in the case of people of the Aboriginal race, is restricted to the making of laws for their benefit. Differing views have been expressed. Several have been favourable to the plaintiffs' submissions. Some have not. It is now necessary to resolve the differences.

General approach to construction

132. Because of the relatively unexplored territory of constitutional amendment which para. (xxvi) presents, much attention was paid in the submissions, both to the permissible methodology of deriving the meaning of the paragraph and to the principles which should govern the Court's approach. I leave aside at this stage what I have called the interpretative principle point. I shall return to this later in these reasons. For the moment, it is sufficient to note the following general rules:

The duty of the Court is to the Constitution. Neither the Court, nor individual Justices, are authorised to alter the essential meaning of that document. ^[F74] The Court itself is created by the Constitution which is expressed in a form the text of which cannot be altered except with the authority of the electors qualified to vote. ^[F75] It is the text (with its words and structure) which is the law to which the Court owes obedience. ^[F76] In the Constitutional Court of South Africa, Kentridge AJ ^[F77] has recently described the judicial task of interpretation of a written constitution: ^[F78]

[I]t cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean ... If the language used by the lawgiver is ignored in favour of a general resort to 'values' the result is not interpretation but divination.

This emphasis upon the text of the document is beneficial. [Emphasis unavailable.] It tames the creative imagination of those who might be fired by the suggested requirements of changing times or by the perceived needs of justice in a particular case. ^[F79] The text is the law. It may be elaborated by the most ample construction, ^[F80] as is appropriate to a grant of legislative power in a relatively inflexible fundamental law intended to provide indefinitely the legal foundation for the government of the Australian people. But judicial interpretation of the Constitution risks the loss of legitimacy if it shifts its ultimate focus of attention away from the text and structure of the document. ^[F81]

2. Assertions that the meaning given to words in the Australian Constitution cannot be altered from that which those words bore when they were settled a hundred years ago have given rise to confusing (and possibly inaccurate) claims that the 'connotation' of a word in the constitutional text remains the same whereas its 'denotation' may expand over time. ^[F82] Attempts of this kind to offer linguistic explanations of the judicial function in giving meaning to the language of the Constitution may be less convincing than a candid acknowledgment that, sometimes, words themselves acquire new meaning from new circumstances. The very application of broad language to changing facts demands a measure of accommodation. ^[F83] Moreover, new, and completely unpredictable matters may arise which, when measured against the text, are held to fall within a given head of power. ^[F84] Each generation reads the Constitution in the light of accumulated experience. Each finds in the sparse words ideas and applications that earlier generations would not have imagined simply because circumstances, experience and common knowledge did not then require it. ^[F85] Among the circumstances which inevitably affect any contemporary perception of the words of the constitutional text are the changing values of the Australian community itself ^[F86] and the changes in the international community to which the Australian community must, in turn, accommodate. Add to these considerations the special ambiguity of the English language, in which the document is written, occasioned by its unique fusion of Germanic and Latin sources, and it should not be surprising that constitutional interpretation in Australia, over time, has involved changes in the understanding and exposition of the words used. Constitutional interpretation is no mechanical task. The Constitution is no ordinary statute. [3] In former times, this Court was resistant to the use of historical materials, such as the Convention Debates, to help elaborate and explain the text. Its then practice can be traced to the previously fashionable rules governing the construction of the language of statutes combined with the former view of the Australian Constitution as nothing more than a statute of the Imperial Parliament, deriving its legitimacy from that source alone. In the context of par (xxvi), Professor Geoffrey Sawer lamented a refusal of access to the history of the paragraph, as in the Convention Debates. He declared that the history was unusually helpful in the case of this power. ^[F87] The Court has now abandoned its former self-denial. It regularly looks at the Convention Debates. ^[F88] It was taken to them in this case. But here, unusually, there was a later amendment to the paragraph under scrutiny. Conflicting submissions were received on the use (if any) that might be had of the Parliamentary debates which preceded the amendment. There were like differences about the relevant referendum materials put to the electors for their approval. In such a case, the Parliamentary debates, and the referendum materials, may be used in the same way as the Court now uses the Convention Debates. This is to understand the cause which occasioned the amendment of the Constitution and to help resolve ambiguities in the resulting text. The search is not for the private intentions of the Members of Parliament who spoke in the debates. Nor is it for the undiscoverable subjective intentions of the electors involved in the exceptional law-making process required by s. 128 of the Constitution. It is to help to derive the meaning of the Constitution, where amended, on the basis of a thorough understanding of the reasons for the amendment and of the means by which it came about.

...

150. So far as the text of the paragraph was concerned, the Commonwealth urged the adoption of the view that the requirement that a law with respect to the people of any race 'for' whom it was deemed necessary to make laws meant no more than 'in respect of' (or 'with reference to') ^[F89] whom such laws were deemed necessary. The word 'deemed' clearly postulated that the Parliament would do the deeming. Whilst the courts might retain a power to supervise legislative abuse, ^[F90] the highly charged and potentially politicised issues of racial legislation, ^[F91] and the assessment of whether a law was for the benefit or detriment of a particular race, should be left to the Parliament accountable to the people. It should not be assumed by the courts which were not accountable. According to the Commonwealth, to adopt the qualification urged by the plaintiffs would involve the courts, and ultimately this Court, in the invidious task of evaluating detriment and adverse discrimination which the terms of para. (xxvi) expressly assigned to the Parliament. For example, a law to prohibit ceremonial circumcision amongst Australian Aboriginals ^[F92] might invoke much debate. It might resist ready classification on the beneficial/detrimental scale. The adjective 'special' qualified the 'laws'. It was equally applicable to laws which were for the benefit or advancement of the people of a race as to laws detrimental to, or discriminatory against, such people. The word 'special' connoted, in the context of para. (xxvi) that the law would be discriminatory. It did not necessarily establish that the discrimination had to be beneficial or non-detrimental.

...

152. I acknowledge the force of these arguments. For a time they held me. However, I have concluded that the race power in para. (xxvi) of s. 51 of the Constitution does not extend to the enactment of laws detrimental to, or discriminatory against, the people of any race (including the Aboriginal race) by reference to their race. My reasons are in part textual and contextual; in part affected by the inadequacy of the exceptional 'manifest abuse' test; in part influenced by the history of the power which I have outlined and in part affected by the common assumptions against the background of which the Australian Constitution must be read today, aided by the interpretative principle to which I referred in Newcrest Mining v The Commonwealth. ^[F93]

...

Textual and contextual indications of non-discrimination

153. No authority of this Court requires the rejection of the plaintiffs' submission about the meaning of par (xxvi). It is therefore necessary to start the elucidation of its requirements with the text, viewed in its context. First, the power is not simply to make laws with respect to '[t]he people of any race'. In this regard para. (xxvi) is to be contrasted with para. (xix) which affords such a plenary power, relevantly, with respect to 'aliens'. In para. (xxvi), words have been added which must have work to do. They are intended to send signals of meaning to the reader of the paragraph. The requirement that laws made under para. (xxvi) by reference to race should be 'deemed necessary' and should be 'special' cannot be dismissed as mere surplusage. In a constitutional text noted for its brevity, the additional words must clearly have the purpose of putting a limitation on what would otherwise be an unbridled race power.

154. It may be assumed that the drafters of par (xxvi) would have been aware of the sharply divided opinions which were evident in the Conventions: some of the delegates viewing detrimental or adversely discriminatory laws by the new Parliament as 'disgraceful'. On the face of things, therefore, the stated pre-conditions to the use of the race power were intended to indicate a brake on legislation with respect to 'the people of any race'. All people in the Commonwealth were people of a 'race'. Most of the settlers would probably, in 1901, have regarded themselves as people of the British race or, perhaps, Caucasians. Clearly, a race power for 'special' laws was not intended to have application to them.

155. Secondly, the words of qualification in para. (xxvi) must be read as a composite idea. The parts combine to impose a control on the laws which may be made under the paragraph. As a matter of language, the words are consistent with an operation that is non-detrimental and has no adverse discrimination about it. This is particularly so if the structure, purpose and other features of the Constitution support that meaning. The word 'for' is ambiguous. It could mean 'for the benefit of'. Or it could mean 'in respect of'. The history of the power in its original form tends to favour the latter meaning. However, a textual argument against that meaning is that, where the framers of the Constitution intended that idea, it was so expressed. Thus it was done in paras (xxxi), (xxxvi) ('in respect of'); in para. (xxii) ('in relation thereto'); and in para. (xxxii) ('with respect to'). The test of necessity in para. (xxvi) is a strong one. It is to be distinguished from advisability, expedience or advantage. Its presence in para. (xxvi) indicates that a particular need might enliven the necessity to make a special law. It has been held by this Court, and was conceded by the Commonwealth, that ultimately and in 'extreme cases' the existence of such necessity was justiciable. ^[F94] Various formulae were urged to emphasise the severe limits of the jurisdiction to review the posited necessity. But in my view, the legislation contested here is subject to judicial review. There appears nothing in the agreed facts about the Ngarrindjeri, or the section of them constituted by the plaintiffs, which calls forth the power in para. (xxvi) on the ground of necessity by reference to the race of such people. The only necessity evident in the facts (and stated in the long title to the Bridge Act) is the necessity 'to facilitate the construction of the [bridge]'. The fact that any law made under the race power must be deemed 'necessary' and must answer to the description of 'special' marks such a law out from all other laws that may be made by the Parliament. It tenders to the Parliament, and ultimately to this Court, criteria of limitation which must be given meaning according to the understanding of the Constitution read today.

156. Other paragraphs of s. 51 contain concepts, the content of which has varied during the history of the Commonwealth because they are read with different eyes at different times in the light of different necessities. The clearest example is par (vi) which relates to the defence of the Commonwealth. Quite apart from the fact that the words 'naval' and 'military' have been enlarged to embrace the airforce, the reach of the power has expanded and contracted as changing times of war and peace have necessitated. ^[F95] It is therefore unsurprising that we, who look at para. (xxvi) in 1998, read the adjectival clause which qualifies the power of the Parliament to make laws with respect to 'the people of any race' informed by the experience of a century of federal government. In that century the concept of what it is, in the nature of law, that may be deemed 'necessary' and in a 'special' form for the people of a race, by reference to race, cannot, and should not, be understood as it might have been in 1901. Such a static notion of constitutional interpretation completely misunderstands the function which is being performed.

157. Thirdly, a crucial element in the history of the constitutional text is the amendment of para. (xxvi) in 1967. Because there have been so few amendments to the Australian Constitution, it has not hitherto been necessary to develop a theory of the approach to be taken to the meaning of the text where a provision is altered. In deriving the meaning of the altered provision, conventional rules of statutory construction permit a court to take into account the legislative change. But this is much more important in elucidating a constitutional text. This is especially so in Australia because of the necessity, exceptionally, to involve the electors of the Commonwealth in the law-making process. That step requires that this Court, to understand the amendment, should appreciate, and give weight to, the purpose of the change. The stated purpose here was to remove two provisions in the Constitution which, it had ultimately been concluded, discriminated against Australian Aboriginals. Whatever the initial object of the original exception to para. (xxvi), by the time that the words were removed, the amendment did not simply lump the Aboriginal people of Australia in with other races as potential targets for detrimental or adversely discriminatory laws. It was the will of the Australian Parliament and people that the race power should be significantly altered. If the Constitution were not to be changed to provide the power to make laws with respect to the advancement of Aboriginal people and to forbid discrimination on racial grounds (as Mr Wentworth had proposed), it was to be altered, at least, to remove their exclusion from the Parliament's law-making power in order that the Parliament might have the power to make special laws with respect to them. To construe the resulting power in para. (xxvi) as authorising the making of laws detrimental to, and discriminatory against, people on the ground of race, and specifically Aboriginal race, would be a complete denial of the clear and unanimous object of the Parliament in proposing the amendment to para. (xxvi). It would amount to a refusal to acknowledge the unprecedented support for the change, evident in the vote of the electors of Australia. This Court should take notice of the history of the amendment and the circumstances surrounding it in giving meaning to the amended paragraph.

...

Unworkability of the 'manifest abuse' test

159. In order to explain why the Australian Parliament could not, under the Constitution, enact racist laws such as those made in Germany during the Third Reich and in South Africa during apartheid - a result by inference accepted as totally alien to the character and meaning of our Constitution - counsel for the Commonwealth argued that it was enough that this Court retained a supervisory jurisdiction although one limited to invalidity of laws in cases where the Parliament's reliance upon para. (xxvi) was a 'manifest abuse' ^[F96] of that power. Such a test has found favour with some of the Justices in this case. As I understand the test of 'manifest abuse', it is to be confined to legislation which the Court considers to be 'extreme', 'outrageous' or 'completely unacceptable'. In evaluating whether such a test is a legally viable, and therefore an acceptable one, it is instructive to examine how, in practice, a law that has an adverse discriminatory effect may not at first appear, on its face, to constitute a 'manifest abuse' or an 'outrageous' exercise of the enabling power.

160. Take first the former laws of South Africa, which illustrate this point most clearly. The principal legislative manifestation of apartheid was the Group Areas Act. ^[F97] It categorised the population according to racial 'groups'. ^[F98] It provided for the proclamation of 'controlled areas' in relation to a particular group. ^[F99] It forbade members of other groups owning ^[F100] or occupying ^[F101] land within them. However, the legislation did not, on its face, actually differentiate between particular groups. All three groups were prohibited from acquiring land in certain areas. Yet, in effect, whilst the legislation obliged major relocation of 'Bantus' and 'coloureds', it had very few consequences for 'whites'. ^[F102] How could such a law, or one having similarities to it, be said to be, on its face, a 'manifest abuse'? Doubtless it did have, and its equivalent would have, persuasive defenders arguing that it was open to the Parliament to deem such a special law to be necessary.

161. A similar conclusion could be reached in relation to other legislation enacted by the South African Parliament under apartheid. The Prohibition of Mixed Marriages Act ^[F103] (which banned marriages between 'Europeans' and 'non-Europeans') ^[F104] and the Immorality Act ^[F105] (which prohibited sexual contact between 'whites' and 'coloureds') ^[F106] applied equally to all racial groups. ^[F107]

162. Likewise, it is difficult to be sure that some of the early legislation enacted by the Third Reich would be struck down under the 'manifest abuse' test. For example, the first anti-Semitic law enacted by the regime, ^[F108] the Law for the Restoration of the Professional Civil Service 1933 (Ger), ^[F109] provided that civil servants of 'non-Aryan' descent were to be retired. Arguably, on its face, this would be insufficient to amount to a 'manifest abuse'. ^[F110] Australian employment laws have frequently contained provisions requiring certain public servants to be Australian citizens or British subjects - most of those being of the Caucasian race. Yet in Germany this power was immediately used to dismiss thousands of Germans of the Jewish race from their posts. ^[F111] Such statutes, beginning with apparently innocuous provisions, laid the ground for worse to follow. They formed the precursors for more abhorrent legislation during the subsequent decade. ^[F112]

163. Laws such as those set out above would, now, be expressly forbidden by the constitutions of both Germany ^[F113] and South Africa. ^[F114] Yet, in Australia, if s. 51(xxvi) of the Constitution permits all discriminatory legislation on the grounds of race excepting that which amounts to a 'manifest abuse', many of the provisions which would be universally condemned as intolerably racist in character would be perfectly valid under the Commonwealth's propositions. The criterion of 'manifest abuse' is inherently unstable. The experience of racist laws in Germany under the Third Reich and South Africa under apartheid was that of gradually escalating discrimination. Such has also been the experience of other places where adverse racial discrimination has been achieved with the help of the law. By the time a stage of 'manifest abuse' and 'outrage' is reached, courts have generally lost the capacity to influence or check such laws. A more stable and effective criterion is required for validity under para. (xxvi). It should be one apt to the words and character of the Australian Constitution; but also to the shared experience of the Australian people that lay behind the amendment of para. (xxvi) in 1967.

164. The laws of Germany and South Africa to which I have referred provide part of the context in which para. (xxvi) is now understood by Australians and should be construed by this Court. I do not accept that in late twentieth century Australia that paragraph supports detrimental and adversely discriminatory laws when the provision is read against the history of racism during this century and the 1967 referendum in Australia intended to address that history. When they voted in that referendum, the electors of this country were generally aware of that history. They knew the defects in past Australian laws and policies. And they would have known that the offensive legal regimes in Germany during the Third Reich and South Africa under apartheid were not the laws of uncivilised countries. Both in Germany and in South Africa the special laws enacted would probably have been regarded as unthinkable but a decade before they were made. They stand as a warning to us in the elaboration of our Constitution.

165. The purpose of the race power in the Australian Constitution, as I read it, is therefore quite different from that urged for the Commonwealth. It permits special laws for people on the grounds of their race. But not so as adversely and detrimentally to discriminate against such people on that ground.

The interpretative principle point

166. The conclusion just stated is reinforced when resort is had to the interpretative principle to which I have earlier referred. Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights. ^[F115] Such an approach has, in recent years, found favour in New Zealand - where Cooke P (as Lord Cooke of Thorndon then was) has referred to the 'duty of the judiciary to interpret and apply national constitutions ... in the light of the universality of human rights'. ^[F116] Likewise, in interpreting the Canadian Charter of Rights and Freedoms, that country's Supreme Court has frequently had regard to international instruments. ^[F117] To do so does not involve the spectre, portrayed by some submissions in these proceedings, of mechanically applying international treaties, made by the Executive Government of the Commonwealth, and perhaps unincorporated, to distort the meaning of the Constitution. It does not authorise the creation of ambiguities by reference to international law where none exist. It is not a means for remaking the Constitution without the 'irksome' involvement of the people required by s. 128. ^[F118] There is no doubt that, if the constitutional provision is clear and if a law is clearly within power, no rule of international law, and no treaty (including one to which Australia is a party) may override the Constitution or any law validly made under it. ^[F119] But that is not the question here. Cases which establish that rule are irrelevant to the present problem. Where there is ambiguity, there is a strong presumption that the Constitution, adopted and accepted by the people of Australia for their government, is not intended to violate fundamental human rights and human dignity. ^[F120] Such violations are ordinarily forbidden by the common law and every other statute of this land is read, in the case of ambiguity, to avoid so far as possible such a result. ^[F121] In the contemporary context it is appropriate to measure the prohibition by having regard to international law as it expresses universal and basic rights. ^[F122] Where there is ambiguity in the common law or a statute, it is legitimate to have regard to international law. ^[F123] Likewise, the Australian Constitution, which is a special statute, does not operate in a vacuum. It speaks to the people of Australia. But it also speaks to the international community as the basic law of the Australian nation which is a member of that community. ^[F124]

167. If there is one subject upon which the international law of fundamental rights resonates with a single voice it is the prohibition of detrimental distinctions on the basis of race. ^[F125] I consider that Judge Tanaka was correct, in the International Court of Justice, when he declared that: ^[F126]

[T]he norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law.

Against the background of the developments of international law, which, in turn, respond to recent historical abuses by the medium of law, it is appropriate to return to a scrutiny of para. (xxvi). The Commonwealth says that the paragraph is not ambiguous and that it permits detrimental and adversely discriminatory law-making in Australia on the basis of race. Whilst, as I have indicated, a number of factors incline me against the view favoured by the Commonwealth, the arguments presented and the divergent approaches taken by members of this Court do, I think, make it abundantly clear that para. (xxvi) is ambiguous. Therefore, the final consideration which reinforces my conclusion is the resolute steps taken by international law to forbid and prevent detriment to, and adverse discrimination against, people by reference to their race.

...

175. [The Bridge Act] effects an 'indirect express amendment' ^[F127] of the Heritage Protection Act. The Commonwealth therefore argued that, under the maxim 'what Parliament may enact it may repeal', ^[F128] if the Heritage Protection Act is constitutionally valid (as was conceded by all parties), the Bridge Act must also be valid. ^[F129] There is undoubtedly some force in this argument. But in my view, the maxim cannot be sustained in the face of a constitutional provision that does not permit laws made to the detriment of, or which discriminate against, a people by reference to their race. The aphorism that 'what Parliament may enact it may repeal' must give way to the principle that every law made by the Parliament under the Constitution must be clothed in the raiments of constitutional validity. ^[F130] Were it otherwise, repeal or amendment could easily become a stratagem adopted by a legislature eager to circumvent the proper scrutiny of constitutional validity. The repeal/amendment point, therefore, fails. l