Kartinyeri v The Commonwealth
[1998] AILR 15(1998) 3 AILR 180
(Decision by: Gummow J, Hayne J)
Between: Kartinyeri
And: The Commonwealth
Judges:
Brennan CJ
Gaudron J
McHugh J
Gummow JKirby 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
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72. The Bridge Act curtails the operation of another law of the Commonwealth, not the enjoyment of any substantive common law rights. It demonstrates the general proposition referred to earlier in these reasons that what the Parliament may enact it may repeal. [F42] First, the Bridge Act limits in a particular respect the declaration-making authority of the Minister under the Heritage Protection Act. Further, the Bridge Act removes any privilege conferred by the Heritage Protection Act upon Aboriginals or Aboriginal groups who applied or might apply seeking such declaration in respect of areas or objects in the Hindmarsh Island bridge area or the pit area, as defined in the Bridge Act. This is the character of the Bridge Act in the sense identified in Fairfax v Federal Commissioner of Taxation. [F43]
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79. The plaintiffs further submitted that the word 'special' gave to s. 51(xxvi) a 'fluctuating content' and a 'purposive aspect' like the defence power. This meant that the permissible purpose of the Bridge Act must be one which did not 'discriminate against' the Aboriginal race. The plaintiffs eschewed the suggestion that the benefits conferred by the Heritage Protection Act, once conferred upon them, were 'constitutionalised' and insusceptible of any repeal. However, they contended that the Bridge Act inflicted upon the Ngarrindjeri people a discriminatory detriment by loss of the opportunity to obtain the declaration under s. 10 of the Heritage Protection Act which was sought by the plaintiffs' application. The plaintiffs were supported by the Attorney-General for New South Wales. He submitted that the federal concurrent legislative power was limited such that the exclusion by the Bridge Act of some members of the Aboriginal race from the benefits of the earlier statute would be invalid unless there was 'a rational and proportionate connection between that exclusion and [some] legitimate governmental purpose'.
80. These submissions should be rejected.
81. It is true that 'unlike the aliens power or the corporations power', s. 51(xxvi) 'is not expressed to be a power to make laws simply with respect to persons of a designated character'. [F44] A law will only answer the constitutional description in s. 51(xxvi) if it (i) is 'deemed necessary' (ii) that 'special laws' (iii) be made for 'the people of any race'.
82. The term 'deem' may mean 'to judge or reach a conclusion about something'. [F45] Here, the judgment as to what is 'deemed necessary' is that of the Parliament. [F46] Nevertheless, it may be that the character of a law purportedly based upon s. 51(xxvi) will be denied to a law enacted in 'manifest abuse' of that power of judgment. [F47] Even if such a restraint (in addition to those stated or implied elsewhere in the Constitution, such as in s. 51(xxxi)) exists there is no occasion for its application to the Bridge Act. The scope of the Heritage Protection Act was such that, if the various conditions required by that law were satisfied, the Minister might, upon application, have made declarations under ss. 10 and 12 with respect to the Hindmarsh Island bridge area and the pit area. Such a declaration would have been subject to disallowance by either legislative chamber, as s. 15 contemplated. There is no 'manifest abuse' of its power of legislative judgment for the Parliament to accelerate matters by determining that, in respect of particular areas, the Ministerial power of declaration was withdrawn. It was for the Parliament to make its assessment of the circumstances which led it to deem it necessary to enact the Bridge Act. [F48]
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87. The differential operation of the one law may, upon its obverse and reverse, withdraw or create benefits. That which is to the advantage of some members of a race may be to the disadvantage of other members of that race or of another race. Extreme examples, given particularly the lessons of history (including that of this country), may be imagined. But such apprehensions cannot, in accordance with received doctrine, control what otherwise is the meaning to be given today to heads of federal legislative power.
88. Thus, in the Territorial Senators Case, [F49] Mason J spoke of 'the grim spectre conjured up by the plaintiffs of a Parliament swamping the Senate with senators from the Territories, thereby reducing the representation of the States disproportionately to that of an ineffective minority in the chamber'. This was to disregard the assumption 'which we should now make, that Parliament will act responsibly in the exercise of its powers'. In the same case, Jacobs J spoke against the construction of the words of the Constitution 'by some distorting possibility'. [F50]
89. However, three further points may briefly be made. First, as a matter of construction, a legislative intention to interfere with fundamental common law rights, freedoms and immunities must be 'clearly manifested by unmistakable and unambiguous language'. [F51] Secondly, the doctrine of Marbury v Madison [F52] ensures that courts exercising the judicial power of the Commonwealth determine whether the legislature and the executive act within their constitutional powers. [F53] Thirdly, the occasion has yet to arise for consideration of all that may follow from Dixon J's statement that the Constitution: [F54]
is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.
The 1967 Act
90. It was submitted that the circumstances surrounding the passage of the 1967 Act and its submission to the electors under s. 128 of the Constitution favoured, if they did not require, a construction of s. 51(xxvi) in its amended form which would support only those special laws which were for the 'benefit' of the indigenous races. Reliance was placed, in particular, upon the statement by Deane J in The Tasmanian Dam Case: [F55]
The power conferred by s. 51(xxvi) remains a general power to pass laws discriminating against or benefiting the people of any race. Since 1967, that power has included a power to make laws benefiting the people of the Aboriginal race.
Another interpretation of the events of 1967 is that, whilst the purpose of the 1967 Act was to ensure that the Parliament could legislate beneficially in respect of the indigenous races, this was implemented by including them within the generality of the power in s. 51(xxvi). Moreover, it is as well to recall that it is the constitutional text which must always be controlling.
91. The text is not limited by any implication such as that contended for by the plaintiffs. [F56] This is so whether one has regard alone to the terms of the Constitution after the 1967 Act took effect or also to that statute. The circumstances surrounding the enactment of the 1967 Act, assuming regard may properly be had to them, may indicate an aspiration of the legislature and the electors to provide federal legislative powers to advance the situation of persons of the Aboriginal race. But it does not follow that this was implemented by a change to the constitutional text which was hedged by limitations unexpressed therein.