Kartinyeri v The Commonwealth
[1998] AILR 15(1998) 3 AILR 180
(Judgment by: Brennan CJ, McHugh J)
Between: Kartinyeri
And: The Commonwealth
Judges:
Brennan CJGaudron J
McHugh JGummow 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
Judgment by:
Brennan CJ
McHugh J
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9. The Bridge Act is an instance of what F A R Bennion [F1] calls 'indirect express amendment'. It effects a partial repeal of the Heritage Protection Act, albeit the text of the Heritage Protection Act is unchanged. [F2] As Windeyer J said in Mathieson v Burton: [F3]
For some purposes it may sometimes be relevant to distinguish between a repeal and an amendment, or a modification, as the latter is sometimes called. But an amendment which permanently reduces the ambit of any of the provisions of an Act involves a repeal of it in part. That is because after the amendment the statute no longer operates as it formerly did: and the only way by which a statute which has come into operation can cease to operate is by repeal, express or implied; or by its expiry in the case of a temporary statute; or by something that was made a condition of its continued operation coming to an end. An Act that excludes from the operation of a former Act some matter formerly within its purview thus repeals it pro tanto, that is to say 'in part'. Provisions of a later act which are inconsistent and irreconcilable with the provisions of a former Act dealing with the same subject matter are thus an implied repeal of them. That has been recognized in this Court since its early days: see Goodwin v Phillips. [F4]
In determining the constitutional validity of an Act that reduces the ambit of an earlier Act, it is immaterial that the text of the earlier Act remains unchanged. It is the operation and effect in substance of the impugned Act which are relevant to its validity, whether or not the text of the earlier Act is changed.
10. The general provisions of Pt II of the Heritage Protection Act were restricted by Pt IIA. The Bridge Act further restricted the ambit of Pt II and to that extent repealed it. It is impossible to attribute a character to the Bridge Act as though that Act stood in isolation from the Act the ambit of which it reduces. Both Acts 'are to be read together as a combined statement of the will of the legislature': Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd. [F5] Although it is the validity of the Bridge Act alone that is in issue, its constitutional validity is determined 'by reference solely to the operation which the enactment has if it be valid'. [F6] It is constitutionally erroneous to attempt to determine its validity before considering whether, if valid, it is effective to restrict the operation of the Heritage Protection Act. Reading the two Acts together, the will of the Parliament is that the operation of the Heritage Protection Act be restricted to the extent stated in the Bridge Act.
The legislative power to 'make laws with respect to' a subject matter
11. As the only effect of the Bridge Act is partially to repeal the Heritage Protection Act, the constitutional question can be put in this way: given that the Parliament had power to enact Pt II of the Heritage Protection Act in exercise of the legislative power conferred by s. 51(xxvi) of the Constitution, did the Parliament have power subsequently to restrict the operation of Pt II? (The validity of the Heritage Protection Act is accepted on all sides, and rightly so. The plaintiffs assert its validity in order to enforce it shorn of the restriction created by the Bridge Act.) Putting the question in another way, are the restrictions on the operation of Pt II of the Heritage Protection Act created by the Bridge Act so connected with the subject matter of power contained in s. 51(xxvi) of the Constitution that the Bridge Act can properly be described as a law 'with respect to ... the people of any race for whom it is deemed necessary to make special laws'? Whichever way the question be put, the answer is the same.
12. The legislative powers conferred on the Parliament by s. 51 of the Constitution are plenary powers, [F7] that is to say, 'subject to' any prohibition or limitation contained in the Constitution, the Parliament can 'make laws with respect to' the several subject matters contained in s. 51 in such terms, with such qualifications and with such limitations as it chooses. [F8] The power 'to make laws' is a power as ample as that described by Sir Edward Coke [F9] and later adopted by Blackstone: [F10]
Of the power and jurisdiction of the parliament, for making of laws in proceeding by bill, it is so transcendent and absolute, as it cannot be confined either for causes or persons within any bounds.
Blackstone adds: [F11]
The power and jurisdiction of parliament, says Sir Edward Coke, [F12] is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. ... It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms.
13. The power to make laws includes a power to unmake them. [F13] Thus the powers conferred on the Parliament under s. 51 extend to the repeal, in part or in whole, of what the Parliament has validly enacted. [F14]
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14. In R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd, [F15] the Court said:
The will of a Parliament is expressed in a statute or Act of Parliament and it is the general conception of English law that what Parliament may enact it may repeal.
That must be so because, as Blackstone points out: [F16]
An act of parliament ... cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament: for it is a maxim in law, that it requires the same strength to dissolve, as to create an obligation.
If the power to make a law did not include the power to repeal it, a law once enacted would be entrenched and beyond the power of the Parliament to revoke.
15. Once the true scope of the legislative powers conferred by s. 51 are perceived, it is clear that the power which supports a valid Act supports an Act repealing it. To the extent that a law repeals a valid law, the repealing law is supported by the head of power which supports the law repealed unless there be some constitutional limitation on the power to effect the repeal in question. Similarly, a law which amends a valid law by modifying its operation will be supported unless there be some constitutional limitation on the power to effect the amendment. Thus in Air Caledonie International v The Commonwealth, [F17] the attempt to amend the Migration Act 1958 (Cth) by the Migration Amendment Act 1987 (Cth) failed because the amendment purported to insert a taxing provision in the principal Act contrary to s. 55 of the Constitution. It is not necessary to consider the hypothetical case postulated by Mr Jackson QC of a repealing or amending Act which so changed the character of an earlier Act as to deprive that Act of its constitutional support. [F18]
16. The power to repeal a law may be exercised from time to time as the Parliament chooses. One Parliament cannot deny or qualify the power of itself or of a later Parliament to exercise that power. The Parliament cannot bind itself or its successor Parliaments not to amend the laws it makes. [F19] Anson states the general rule: [F20]
One thing no Parliament can do: the omnipotence of Parliament is available for change, but cannot stereotype rule or practice. Its power is a present power, and cannot be projected into the future so as to bind the same Parliament on a future day, or a future Parliament.
17. In the present case, the Parliament exercised its power under s. 51(xxvi) to enact the Heritage Protection Act and it has had at all times the same power to amend or repeal that Act. As the Bridge Act has no effect or operation other than reducing the ambit of the Heritage Protection Act, s. 51(xxvi) supports it. Approaching the question of validity in this way, the Bridge Act is valid.
18. The same result is reached by asking whether the Bridge Act has the character of a law 'with respect to ... the people of any race for whom it is deemed necessary to make special laws'. Here one looks to the connection between the operation and effect of the Bridge Act and the subject matter of the power invoked to support it.
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19. The only effect of the Bridge Act is partially to exclude the operation of the Heritage Protection Act in relation to the Hindmarsh Bridge area. [F21] The Bridge Act, like Pt IIA of the Heritage Protection Act, limits the area to which Pt II applies. As Pt II of the Heritage Protection Act is a law with respect to the subject matter of s. 51(xxvi), a law which governs the area of its operation has a direct connection with that subject matter. In the absence of any constitutional limitation on the power to repeal an earlier law, the true principle is stated by Dawson J in Kirmani v Captain Cook Cruises Pty Ltd [No 1]: [F22]
A law which effects the repeal of another law is not a law with respect to repeal; its subject-matter is the subject-matter of the law which is repealed.
Thus the Bridge Act is itself a law with respect to the subject matter of s. 51(xxvi).
20. Once it is accepted that s. 51(xxvi) is the power that supports Pt II of the Heritage Protection Act, an examination of the nature of the power conferred by s. 51(xxvi) for the purpose of determining the validity of the Bridge Act is, in our respectful opinion, not only unnecessary but misleading. It is misleading because such an examination must proceed on either of two false assumptions: first, that a power to make a law under s. 51 does not extend to the repeal of the law and, second, that a law which does no more than repeal a law may not possess the same character as the law repealed. It is not possible, in our opinion, to state the nature of the power conferred by s. 51(xxvi) with judicial authority in a case where such a statement can be made only on an assumption that is false. The Bridge Act exhibits no feature to which it is necessary to apply one of the opposing views of s. 51(xxvi) in order to answer the question reserved. The Bridge Act can have no character different from, and must have the same validity as, the Heritage Protection Act.