Kartinyeri v The Commonwealth
[1998] AILR 15(1998) 3 AILR 180
(Decision by: Gaudron J)
Between: Kartinyeri
And: The Commonwealth
Judges:
Brennan CJ
Gaudron JMcHugh 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
Decision by:
Gaudron J
28. Much of the argument directed to the proposition that s. 51(xxvi) only authorises beneficial laws was based on the fact that the words 'other than the aboriginal race in any State' were deleted in 1967 by a vote of the people in accordance with s. 128 of the Constitution. In this regard, it was said that, by 1967, Australian values had so changed that it is to be taken that the amendment disclosed a constitutional intention that, thereafter, the power should extend only to beneficial laws. In the alternative, it was put that the amendment disclosed an intention to that effect in relation to laws with respect to Aboriginal Australians.
29. The 1967 amendment was one that might fairly be described in today's terms as a 'minimalist amendment'. As a matter of language and syntax, it did no more than remove the then existing exception or limitation on Commonwealth power with respect to the people of the Aboriginal race. And unless something other than language and syntax is to be taken into account, it operated to place them in precisely the same constitutional position as the people of other races.
30. The 'Yes' case for the 1967 referendum [F23] identified two purposes attending the proposed law, which upon its approval in accordance with s. 128 of the Constitution, deleted the words 'other than the aboriginal race in any State' from s. 51(xxvi) of the Constitution. [F24] The first was to 'remove any ground for the belief that, as at present worded, the Constitution discriminates in some ways against people of the aboriginal race'. [F25] The other was 'to make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live'. [F26] Given the limited nature of the purposes thus disclosed and given, also, that as a matter of language and syntax, the amendment was apt to achieve those purposes, and only those purposes, it is not possible, in my view, to treat s. 51(xxvi) as limited to laws which benefit Aboriginal Australians if it is not similarly limited with respect to the people of other races.
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32. Whatever the international standards and community values in 1967 and whatever the intention of those voting in the 1967 referendum, the bare deletion of an exception or limitation on power is not, in my view, capable of effecting a curtailment of power. On the contrary, the consequence of an amendment of that kind is to augment power. Accordingly, if, prior to 1967, s. 51(xxvi) authorised special laws which were not for the benefit of the people of a particular race, the referendum did not, in my view, alter that position.
33. There are two matters with respect to s. 51(xxvi) which are beyond controversy. The first is that the debates of the Constitutional Conventions relevant to the provision which ultimately became s. 51(xxvi) [F27] reveal an understanding that it would authorise laws which discriminated against people of 'coloured races' [F28] and 'alien races'. [F29] The second is that s. 51(xxvi) does not simply confer power to legislate with respect to 'the people of any race'. It confers power to legislate with respect to 'the people of any race for whom it is deemed necessary to make special laws'.
34. Were s. 51(xxvi) simply a power to legislate with respect to 'the people of any race', there would, in my view, be no doubt that Parliament might legislate in any way it chose so long as the law in question differentiated in some way with respect to the people of a particular race [F30] or dealt with some matter of 'special significance or importance to the[m]'. [F31] However, the words 'for whom it is deemed necessary to make special laws' must be given some operation. And they can only operate to impose some limit on what would otherwise be the scope of s. 51(xxvi).
35. In the main, the view that s. 51(xxvi) is not simply a power to pass laws with respect to 'the people of any race' has found expression in terms reflected in the argument in this case, namely, that s. 51(xxvi) is confined to laws for the benefit of the people of the race for whom those laws are enacted. Thus, for example, in Koowarta v Bjelke-Petersen, Murphy J expressed the view that '[i]n para. (xxvi) 'for' means 'for the benefit of' ... not ... 'with respect to''. [F32] And in The Commonwealth v Tasmania (The Tasmanian Dam Case), Brennan J referred to the 1967 amendment of s. 51(xxvi) and said that it was 'an affirmation of the will of the Australian people ... that the primary object of the power is beneficial'. [F33]
36. As already indicated, the 1967 referendum did not, in my view, alter the nature of the power conferred by s. 51(xxvi) of the Constitution. Moreover, the amendment, consisting, as it did, of the removal of an exception or limitation, discloses nothing as to the nature of that power. And although I expressed the view in Chu Kheng Lim v Minister for Immigration [F34] that there was much to commend the view that, in s. 51(xxvi), 'for' means 'for the benefit of', that view cannot be maintained in the face of the constitutional debates earlier referred to. Even so, the words 'for whom it is deemed necessary to make special laws' must be given some operation and, as already indicated, they can only operate as a limit to the power conferred by s. 51(xxvi).
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38. It was also held in the Native Title Act Case that the 'evaluation of the needs of the people of a race or of the threats or problems that confronted them in order to determine whether the law was, or could be deemed to be, 'necessary'' was for the Parliament for, otherwise, this Court 'would be required to form a political value judgment'. However, the question was left open whether there was 'some supervisory jurisdiction to examine the question of necessity against the possibility of a manifest abuse'. [F35] For the moment, that question may be put to one side. It is sufficient to observe that, if the question arises, it is for this Court to determine whether a law is one that is properly characterised as a law with respect to 'the people of any race for whom it is deemed necessary to make special laws'.
39. The criterion for the exercise of power under s. 51(xxvi) is that it be deemed necessary - not expedient or appropriate - to make a law which provides differently for the people of a particular race or, if it is a law of general application, one which deals with something of 'special significance or importance to the people of [that] particular race'. [F36] Clearly, it is for the Parliament to deem it necessary to make a law of that kind. To form a view as to that necessity, however, there must be some difference pertaining to the people of the race involved or their circumstances or, at least, some material upon which the Parliament might reasonably form a political judgment that there is a difference of that kind. Were it otherwise, the words 'for whom it is deemed necessary to make special laws' would have no operation and s. 51(xxvi) would simply be a power to make laws for the people of any race.
40. Once it is accepted that the power conferred by s. 51(xxvi) may only be exercised if there is some material upon which the Parliament might reasonably form a judgment that there is a difference necessitating some special legislative measure, two things follow. The first is that s. 51(xxvi) does not authorise special laws affecting rights and obligations in areas in which there is no relevant difference between the people of the race to whom the law is directed and the people of other races. A simple example will suffice. Rights deriving from citizenship inhere in the individual by reason of his or her membership of the Australian body politic and not by reason of any other consideration, including race. To put the matter in terms which reflect the jurisprudence that has developed with respect to anti-discrimination law, race is simply irrelevant to the existence or exercise of rights associated with citizenship. So, too, it is irrelevant to the question of continued membership of the Australian body politic. Consequently, s. 51(xxvi) will not support a law depriving people of a particular racial group of their citizenship or their rights as citizens. And race is equally irrelevant to the enjoyment of those rights which are generally described as human rights and which are taken to inhere in each and every person by reason of his or her membership of the human race.
41. The second matter which flows from the requirement that there be some matter or circumstance upon which the Parliament might reasonably form the judgment that there is some difference pertaining to the people of a particular race which necessitates some special law is that the law must be reasonably capable of being viewed as appropriate and adapted to the difference asserted. A similar view was expressed by Deane and Toohey JJ in Leeth v The Commonwealth, [F37] it being said by their Honours that s. 51(xxvi) authorises 'discriminatory treatment of members of [a particular race] to the extent which is reasonably capable of being seen as appropriate and adapted to the circumstance of that membership'. Although they did not explain why that was so, the requirement flows, in my view, from the need for there to be some material or circumstance from which it might reasonably be concluded by the Parliament that there is some difference necessitating a special law. Unless the law in question is reasonably capable of being viewed as appropriate and adapted to the difference which is claimed, it could not be concluded that the Parliament formed the view that there was such a difference.
42. I have attempted to explain the need for a law to be reasonably capable of being viewed as appropriate and adapted to some difference which the Parliament might reasonably judge to exist by reference to the language of s. 51(xxvi). However, the matter may also be expressed in terms used in the Native Title Act Case. [F38] A law which deals differently with the people of a particular race and which is not reasonably capable of being viewed as appropriate and adapted to a difference of the kind indicated has no rational basis and is, thus, a 'manifest abuse of the races power'. [F39] So, too, it would be irrational and, thus, a manifest abuse of the races power if Parliament were to enact a law requiring or providing for the different treatment of the people of a particular race if it could not reasonably form the view that there was some difference requiring their different treatment.
43. Because the power conferred by s. 51(xxvi) of the Constitution is premised on there being some matter or circumstance pertaining to the people of a particular race upon which the Parliament might reasonably conclude that there is a real and relevant difference necessitating the making of a special law, its scope necessarily varies according to circumstances as they exist from time to time. In this respect the power conferred by par (xxvi) is not unlike the power conferred by s. 51(vi) to legislate with respect to defence. [F40] And as with the defence power, a law that is authorised by reference to circumstances existing at one time may lose its constitutional support if circumstances change.
44. Although the power conferred by s. 51(xxvi) is, in terms, wide enough to authorise laws which operate either to the advantage or disadvantage of the people of a particular race, it is difficult to conceive of circumstances in which a law presently operating to the disadvantage of a racial minority would be valid. It is even more difficult to conceive of a present circumstance pertaining to Aboriginal Australians which could support a law operating to their disadvantage. To put the matter another way, prima facie, at least, the circumstances which presently pertain to Aboriginal Australians are circumstances of serious disadvantage, which disadvantages include their material circumstances and the vulnerability of their culture. [F41] And prima facie, at least, only laws directed to remedying their disadvantage could reasonably be viewed as appropriate and adapted to their different circumstances.
45. Notwithstanding that it is difficult to envisage circumstances in which a law which operated to the disadvantage of the people of a racial minority might validly be enacted under s. 51(xxvi) of the Constitution, the test of constitutional validity is not whether it is a beneficial law. Rather, the test is whether the law in question is reasonably capable of being viewed as appropriate and adapted to a real and relevant difference which the Parliament might reasonably judge to exist. It is the application of that test to today's circumstances, so far as they are known, that leads to the conclusion that prima facie, at least, s. 51(xxvi) presently only authorises laws which operate to the benefit of Aboriginal Australians.