Editors --- "Kartinyeri v The Commonwealth - Case Summary" [1998] AUIndigLawRpr 15; (1998) 3(2) Australian Indigenous Law Reporter 180

Kartinyeri v The Commonwealth

High Court of Australia (Brennan CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

1 April, 1998

Constitutional law - Race power - Commonwealth Constitution s. 51(xxvi) - Validity of Hindmarsh Island Bridge Act 1997 (Cth).

Constitutional law - Statutes - 'Indirect express amendment' - Amendment or partial repeal

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] FCA 1726; (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] HCA 18; (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.

Editor's Note: In keeping with the High Court's decision on paragraph numbers and 'media neutral' citations, paragraph numbers have been included in this instance.

Brennan CJ and McHugh J:

...

9. The Bridge Act is an instance of what F A R Bennion1 calls 'indirect express amendment'. It effects a partial repeal of the Heritage Protection Act, albeit the text of the Heritage Protection Act is unchanged.2 As Windeyer J said in Mathieson v Burton: [3]

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. [4]

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.5 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'.6 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, [7] 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.8 The power 'to make laws' is a power as ample as that described by Sir Edward Coke9 and later adopted by Blackstone: [10]

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: [11]

The power and jurisdiction of parliament, says Sir Edward Coke, [12] 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.13 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. [14]

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14. In R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd,15 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: [16]

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, [17] 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. [18]

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. [19] Anson states the general rule: [20]

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. [21] 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]: [22]

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.

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 referendum23 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.24 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'.25 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'.26 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)27 reveal an understanding that it would authorise laws which discriminated against people of 'coloured races'28 and 'alien races'.29 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 race30 or dealt with some matter of 'special significance or importance to the[m]'.31 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''.32 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'.33

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 Immigration34 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'.35 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'.36 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,37 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.38 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'.39 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.40 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.41 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.

Gummow and Hayne JJ:

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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.42 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.43

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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'.44 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'.45 Here, the judgment as to what is 'deemed necessary' is that of the Parliament.46 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.47 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.48

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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,49 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'.50

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'.51 Secondly, the doctrine of Marbury v Madison52 ensures that courts exercising the judicial power of the Commonwealth determine whether the legislature and the executive act within their constitutional powers.53 Thirdly, the occasion has yet to arise for consideration of all that may follow from Dixon J's statement that the Constitution:54

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:55

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.56 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.

Kirby J:

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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.57 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 1967.58 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),59 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'60 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 factions61 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 provision62 - 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:63

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 J64 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.65 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'.66 Their inclusion in the power was thus for the making of 'laws benefiting the people of the Aboriginal race'.67

129. In Chu Kheng Lim v Minister for Immigration,68 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'.69

130. The most recent examination of the question appears in the Native Title Act Case.70 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 judgment71 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'.72 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'.73 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:

[1] 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.74 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.75 It is the text (with its words and structure) which is the law to which the Court owes obedience.76 In the Constitutional Court of South Africa, Kentridge AJ77 has recently described the judicial task of interpretation of a written constitution:78

[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. 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.79 The text is the law. It may be elaborated by the most ample construction,80 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.81

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.82 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.83 Moreover, new, and completely unpredictable matters may arise which, when measured against the text, are held to fall within a given head of power.84 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.85 Among the circumstances which inevitably affect any contemporary perception of the words of the constitutional text are the changing values of the Australian community itself86 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.87 The Court has now abandoned its former self-denial. It regularly looks at the Convention Debates.88 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'89) 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,90 the highly charged and potentially politicised issues of racial legislation,91 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 Aboriginals92 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.93

...

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.94 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.95 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.

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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'96 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.97 It categorised the population according to racial 'groups'.98 It provided for the proclamation of 'controlled areas' in relation to a particular group.99 It forbade members of other groups owning100 or occupying101 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'.102 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 Act103 (which banned marriages between 'Europeans' and 'non-Europeans'104) and the Immorality Act105 (which prohibited sexual contact between 'whites' and 'coloureds'106) applied equally to all racial groups.107

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,108 the Law for the Restoration of the Professional Civil Service 1933 (Ger),109 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'.110 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.111 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.112

163. Laws such as those set out above would, now, be expressly forbidden by the constitutions of both Germany113 and South Africa.114 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.115 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'.116 Likewise, in interpreting the Canadian Charter of Rights and Freedoms, that country's Supreme Court has frequently had regard to international instruments.117 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. 128.118 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.119 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.120 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.121 In the contemporary context it is appropriate to measure the prohibition by having regard to international law as it expresses universal and basic rights.122 Where there is ambiguity in the common law or a statute, it is legitimate to have regard to international law.123 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.124

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.125 I consider that Judge Tanaka was correct, in the International Court of Justice, when he declared that:126

[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.

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175. [The Bridge Act] effects an 'indirect express amendment'127 of the Heritage Protection Act. The Commonwealth therefore argued that, under the maxim 'what Parliament may enact it may repeal',128 if the Heritage Protection Act is constitutionally valid (as was conceded by all parties), the Bridge Act must also be valid.129 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.130 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

Endnotes

[1] Statutory Interpretation, 3rd ed (1997) at 214.

[2] Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7.

[3] [1971] HCA 4; (1971) 124 CLR 1 at 10.

[4] [1908] HCA 55; (1908) 7 CLR 1.

[5] [1995] HCA 44; (1995) 184 CLR 453 at 463, 479. And see s. 15 of the Acts Interpretation Act.

[6] Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1 at 7 per Kitto J (emphasis added).

[7] D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 at 109-110; R v Barger [1908] HCA 43; (1908) 6 CLR 41 at 85; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 153; British Coal Corporation v The King [1935] AC 500 at 518.

[8] Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR 37 at 74.

[9] 4 Institutes of the Laws of England, 36 (quoted from the 1797 edition).

[10] Blackstone's Commentaries, 9th ed (1783), Bk 1 at 160.

[11] Ibid

[12] 4 Institutes of the Laws of England, 36 (quoted from the 1797 edition).

[13] See Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 168; [1980] 1 All ER 529 at 551 cited by Dawson J in Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 75.

[14] South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 623, 636; Wenn v Attorney-General (Vic) [1948] HCA 13; (1948) 77 CLR 84 at 107; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74-75 per McHugh J; Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 at 743; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 at 597. Of course, a parliament whose powers of repeal or amendment are restricted by 'manner and form' provisions must observe those provisions in order to exercise the power: McCawley v The King [1918] HCA 55; (1918) 26 CLR 9 at 54, 55; [1920] UKPCHCA 1; (1920) 28 CLR 106 at 115-116; Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394 at 422, 430 and see South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 618. But the powers conferred by s. 51 of the Constitution are not subject to 'manner and form' requirements.

[15] [1964] HCA 15; (1964) 113 CLR 207 at 226.

[16] Blackstone's Commentaries, 9th ed (1783), Bk 1 at 186.

[17] (1988) 165 CLR 462 at 472.

[18] cf Commissioner of Taxation v Clyne [1958] HCA 10; (1958) 100 CLR 246; Attorney-General (Cth); Ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1.

[19] Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394 at 422; South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 617; Magrath v The Commonwealth [1944] HCA 14; (1944) 69 CLR 156 at 169-170, 183; Wenn v Attorney-General (Vic) [1948] HCA 13; (1948) 77 CLR 84 at 107; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74-75; Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 at 743; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 at 597.

[20] Law and Custom of the Constitution, (1909), vol 1 at 7.

[21] And the 'pit area' defined in Sched 1 cl 2.

[22] [1985] HCA 8; (1985) 159 CLR 351 at 459.

[23] In 1967, the Referendum (Constitution Alteration) Act 1906 (Cth) (since repealed by s. 145 of the Referendum (Machinery Provisions) Act 1984 (Cth)) provided in s. 6A(I)(a) that:

[if] within nine weeks after the passage of [a] proposed law through both Houses there is forwarded to the Chief Electoral Officer-

(a) an argument in favour of the proposed law ... authorized by a majority of those members of both Houses of the Parliament who voted for the

proposed law; or

(b) an argument against the proposed law ... authorized by a majority of those members of both Houses of the Parliament who voted against the

proposed law,

the Chief Electoral Officer shall, within two months after the expiry of those nine weeks, and not later than two weeks after the issue of the writ [issued by the Governor-General for the submission of the proposed law to the electors], cause to be printed and posted to each elector ... a pamphlet containing the arguments together with a statement showing the textual alterations and additions proposed to be made to the Constitution.

On 23 February 1967, Prime Minister Holt advised the House of Representatives of the Federal Government's intention to propose a referendum for the approval of the Constitution Alteration (Aboriginals) Bill 1967. On 8 March 1967, the Opposition advised in the Senate that it would support the Bill without alteration. The referendum for approval of the Bill was held on 27 May, 1967. Because the Bill was passed unanimously by both Houses of Parliament, only a 'Yes' case was distributed to electors pursuant to s. 6A(I)(a).

[24] The electors' approval of Constitution Alteration (Aboriginals) 1967 at the referendum also resulted in the repeal of s. 127 of the Constitution which provided that '[i]n reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.'

[25] Constitution Alteration (Aboriginals) 1967: Argument in favour of the proposed law, in The Commonwealth of Australia, Referendums to be held on Saturday, 27th May, 1967 on the Proposed Laws for the alteration of the Constitution entitled - Constitution Alteration (Parliament) 1967 and Constitution Alteration (Aboriginals) 1967 at 11, Commonwealth Government Printer, Canberra. The official 'Yes' case also provided that '[t]he proposed alteration of this section will ... remove words from our Constitution that many people think are discriminatory against the aboriginal people' (emphasis added) at 11.

[26] Constitution Alteration (Aboriginals) 1967: Argument in favour of the proposed law, in The Commonwealth of Australia, Referendums to be held on Saturday, 27th May, 1967 on the Proposed Laws for the alteration of the Constitution entitled - Constitution Alteration (Parliament) 1967 and Constitution Alteration (Aboriginals) 1967 at 11, Commonwealth Government Printer, Canberra.

[27] The 'Draft of a Bill to Constitute the Commonwealth of Australia' debated in Melbourne in 1898 proposed a cl. 53(I) in the following terms:

The Parliament shall, subject to the provisions of this Constitution, have exclusive powers to make laws for the peace, order, and good government of the Commonwealth with respect to the following matters:

I. The affairs of the people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general

community; but so that this power shall not extend to authorise legislation with respect to the affairs of the aboriginal native race in any State.

[28] An expression used by Sir John Forrest, Dr Quick and Mr Kingston at the 1898 Convention: see Official Record of the Debates of the Australasian Federal Convention, 3rd Session (Melbourne), 20 January to 17 March 1898, vol I at 240, 246, 248.

[29] An expression used by Mr Howe and Mr Symon at the 1898 Convention: see Official Record of the Debates of the Australasian Federal Convention, 3rd Session (Melbourne), 20 January to 17 March 1898, vol I at 250, 251, 251-252.

[30] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 186 per Gibbs CJ, 245 per Wilson J, 261 per Brennan J.

[31] Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at 461 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ referring in fn 323 to Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 and noting in fn 324 that '[i]t was on this point, not on the point of differential operation ... that the minority in the Tasmanian Dam Case denied the support of s. 51(xxvi)'.

[32] [1982] HCA 27; (1982) 153 CLR 168 at 242. Murphy J expressed the same view of the scope of s. 51(xxvi) in The Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 180 stating that '[s. 51(xxvi)] ... authorizes any law for the benefit, physical or mental, of the people of the race for whom Parliament deems it necessary to pass special laws'. Similarly, at 245-246 Brennan J adverted

to 'the high purpose which the Australian people intended when the people of the Aboriginal race were brought within the scope of [s. 51(xxvi)'s] beneficial exercise' (emphasis added). At 273 Deane J said that '[s]ince 1967, [s. 51(xxvi)] has included a power to make laws benefiting the people of the Aboriginal race' (emphasis added); cf also Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 56 per Gaudron J. However, the contrary view, that s. 51(xxvi) supports the enactment either of beneficial or detrimental laws in relation to Aboriginal people, has also been expressed: Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 186 per Gibbs CJ, 209 per Stephen J, 245 per Wilson J; The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 110 per Gibbs CJ.

[33] [1983] HCA 21; (1983) 158 CLR 1 at 242; cf at 273 where Deane J referred to the 1967 referendum and said that '[t]he power conferred by s 51(xxvi) remains a general power to pass laws discriminating against or benefiting the people of any race'.

[34] (1992) 176 CLR 1 at 56.

[35] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.

[36] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 461.

[37] [1992] HCA 29; (1992) 174 CLR 455 at 489.

[38] [1995] HCA 47; (1995) 183 CLR 373.

[39] [1995] HCA 47; (1995) 183 CLR 373 at 460; Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 138-139 per Brennan J.

[40] See with respect to the changing scope of the defence power, Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433 at 441-443 per Griffith CJ,

453-455 per Isaacs J; Andrews v Howell [1941] HCA 20; (1941) 65 CLR 255 at 278 per Dixon J, 287 per McTiernan J; Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116 at 161-163 per Williams J; Victorian Chamber of Manufactures v The Commonwealth (Women's Employment Regulations) [1943] HCA 21; (1943) 67 CLR 347 at 399-400 per Williams J; Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457 at 471-472 per Dixon J; Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 195, 197, 199 per Dixon J, 207 per McTiernan J, 222-223, 227 per Williams J, 253-255 per Fullagar J, 273-274 per Kitto J; Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 596-597 per Gaudron J; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 at 484 per Brennan and Toohey JJ.

[41] As indicated earlier, a matter dealt with by the Heritage Protection Act and also by ss. 8 and 11 of the World Heritage Properties Conservation Act 1983 (Cth), considered in The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1.

[42] cf Allpike v The Commonwealth [1948] HCA 19; (1948) 77 CLR 62 at 69, 76-77; Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226 at 245, 256, 263-265; Commonwealth of Australia v WMC Resources Ltd [1998] HCA 8 at 17-18, 134-142, 182-198.

[43] [1965] HCA 64; (1965) 114 CLR 1 at 7.

[44] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.

[45] Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49 at 65.

[46] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460-461.

[47] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.

[48] The circumstances were set out in the Second Reading Speech in the House of Representatives, Parliamentary Debates (Hansard), 17 October 1996 at 5802-5803.

[49] Western Australia v The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 at 271.

[50] [1975] HCA 46; (1976) 134 CLR 201 at 275. See also Queensland v The Commonwealth [1977] HCA 60; (1977) 139 CLR 585 at 604-605.

[51] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437. See also Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 467-468; R v Home Secretary; Ex parte Pierson [1997] UKHL 37; [1997] 3 WLR 492 at 506-507; [1997] UKHL 37; [1997] 3 All ER 577 at 592.

[52] [1803] USSC 16; 1 Cranch 137 (1803) [5 US 87].

[53] Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 262-263; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35; Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 134-135.

[54] Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 193. See also Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 71 ALJR 818 at 824-825, 827-830; [1997] HCA 25; 145 ALR 96 at 104-106, 108-112; and cf Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1 at 10.

[55] [1983] HCA 21; (1983) 158 CLR 1 at 273.

[56] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 169-170.

[57] Submissions of the plaintiffs, para. 10.

[58] The Pacific Island Labourers Act 1901 (Cth) appears to have been enacted under s 51(xix) of the Constitution; cf Pengelley, 'The Hindmarsh Island Bridge Act' [1998] SydLawRw 6; (1998) 20 Sydney Law Review 144 at 146, n 18.

[59] [1995] HCA 47; (1995) 183 CLR 373 at 460.

[60] cf Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.

[61] Submissions of the Commonwealth, par 2.6.

[62] s 4; cf Pengelley, 'The Hindmarsh Island Bridge Act' [1998] SydLawRw 6; (1998) 20 Sydney Law Review 144.

[63] [1982] HCA 27; (1983) 153 CLR 168 at 242. See also Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 138.

[64] [1983] HCA 21; (1983) 158 CLR 1 at 272.

[65] Citing Harrison Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 464.

[66] [1983] HCA 21; (1983) 158 CLR 1 at 273 (emphasis added).

[67] [1983] HCA 21; (1983) 158 CLR 1 at 273 (emphasis added).

[68] (1992) 176 CLR 1 at 56.

[69] See also Kruger v The Commonwealth [1997] HCA 27; (1997) 71 ALJR 991 at 1035; [1997] HCA 27; 146 ALR 126 at 187.

[70] [1995] HCA 47; (1995) 183 CLR 373.

[71] Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.

[72] [1995] HCA 47; (1995) 183 CLR 373 at 461 (emphasis added).

[73] [1995] HCA 47; (1995) 183 CLR 373 at 461, citing from [1983] HCA 21; (1983) 158 CLR 1 at 158; and see at 180 per Murphy J.

[74] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 143 per Brennan J.

[75] Constitution, s 128; cf King v Jones [1972] HCA 44; (1972) 128 CLR 221 at 229 per Barwick CJ.

[76] Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 83; Attorney-General (Vict); Ex rel Black v The Commonwealth [1981] HCA 2; (1981) 146 CLR 559 at 577; Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1423-1424; 147 ALR 42 at 147; cf Tribe and Dorf, On Reading the Constitution (1991) at 11.

[77] With whom the other ten members of the Court agreed.

[78] State v Zuma [1995] ZACC 1; [1995] 2 SALR 642 at 652-653; [1995] 1 LRC 145 at 156; cited with approval by the Privy Council in La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius [1995] 3 LRC 494 at 500; cf 'The Commonwealth Through the Case Law: Unity in Diversity' (1997) 23 Commonwealth Law Bulletin 601 at 605-606.

[79] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 143.

[80] Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 81.

[81] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 168.

[82] For example Ex parte Professional Engineers' Association [1959] HCA 47; (1959) 107 CLR 208 at 267 per Windeyer J.

[83] Zines, The High Court and the Constitution, 4th ed (1997) at 17-22.

[84] Lansell v Lansell [1964] HCA 42; (1964) 110 CLR 353 at 366, 369, 370; cf Uebergang v Australian Wheat Board [1980] HCA 40; (1980) 145 CLR 266 at 294.

[85] Victoria v The Commonwealth [1971] HCA 16; (1971) 122 CLR 353 at 396-397; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 197. As an example, it is unconvincing to suggest that the words 'chosen by the people' in ss.7 and 24 of the Constitution would today, or ever again, be construed to exclude adult women from the suffrage. Yet, in 1901, in respect of most of Australia, it was so construed: see McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 166-167. Similarly, s. 51(xxxv) providing for power in respect of industrial disputes 'extending beyond the limits of any one State' would not have been read in 1901 with the awareness of the log of claims procedure which greatly extended its ambit: Attorney-General (Qld) v Riordan [1997] HCA 32; (1997) 71 ALJR 1173 at 1191-1192; [1997] HCA 32; 146 ALR 445 at 470-471.

[86] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 at 560; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 173-174.

[87] Sawer, 'The Australian Constitution and the Australian Aborigine' [1967] FedLawRw 2; (1966) 2 Federal Law Review 17 at 27.

[88] See for example Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 385. In Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 565, Dawson J referred in support of his reasons to the history of proposals at referendum to enlarge the conciliation and arbitration power.

[89] Relying on Gibbs J in The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 110.

[90] A concession made by the Commonwealth. See Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460. See also The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 202 per Wilson J.

[91] It was pointed out that, to the extent that federal power was limited to the making of laws of benefit to or not discriminatory against people on the ground of race, this would expand the scope of the power of the States under the Constitution to enact detrimental or discriminatory laws. However such laws would be subject to the Racial Discrimination Act 1975 (Cth) and the operation of s. 109 of the Constitution.

[92] An example suggested by counsel for the Kebaro interests.

[93] [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1423-1426; 147 ALR 42 at 147-151.

[94] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 462.

[95] Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433 at 442; Jenkins v The Commonwealth [1947] HCA 41; (1947) 74 CLR 400 at 405; Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 206-207; Marcus Clark & Co Ltd v The Commonwealth [1952] HCA 50; (1952) 87 CLR 177 at 218, 226.

[96] Pursuant to the point reserved in the Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.

[97] Although such legislation was first enacted in 1950, the following section references are to the Group Areas Act 1966, being the last surviving Group Areas Act under the apartheid system.

[98] Section 12(1). The 'groups' were 'white', 'Bantu', and 'coloured'.

[99] Section 23.

[100] Sections 13, 27.

[101] Section 26.

[102] International Commission of Jurists, South Africa: Human Rights and the Rule of Law (1988) at 17; Platzky and Walker, The Surplus People: Forced Removals in South Africa (1985) at 99-100; cf Cassese, Human Rights in a Changing World (1990) at 108.

[103] Enacted in 1949.

[104] Section 1.

[105] Whilst the prohibition was first introduced in 1950, the section reference below is to the Immorality Act 1957, being the last such Act to survive under the apartheid system.

[106] Section 16.

[107] See also Population Registration Act (1950) (SAfr); Reservation of Separate Amenities Act 1953 (SAfr). Certain pieces of legislation were, however, discriminatory on their face as well as in their effect, eg Native Trust and Land Act 1936 (SAfr); Black (Urban Areas) Consolidation Act (1945) (SAfr) (as amended by the Native Laws Amendment Act 1952 (SAfr)); Natives (Abolition of Passes and Coordination of Documents) Act 1952 (SAfr).

[108] Noakes and Pridham (eds), Nazism 1919-1945: A History in Documents and Eyewitness Accounts (1988), vol 1 at 527.

[109] Article 3. See Noakes and Pridham (eds), Nazism 1919-1945: A History in Documents and Eyewitness Accounts (1988), vol 1 at 224.

[110] In Oppenheimer v Cattermole [1976] AC 249 at 278, the majority in the House of Lords characterised a German decree depriving Jews of their citizenship as 'so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all'. But what of a law which required retirement from employment on the grounds of race? Would it be classified as a 'manifest abuse' or permissible discrimination?

[111] Hilberg, The Destruction of the European Jews (1985) at 83, 86.

[112] In 1935, the Law for the Protection of German Blood and Honour restricted marriage, personal relationships and employment by Jews (Tatz, 'Racism, Responsibility, and Reparation: South Africa, Germany, and Australia' (1985) 31 Australian Journal of Politics and History 162 at 165). Later that year, a decree defined a Jew as a 'non-citizen' (Fraser, 'Law Before Auschwitz: Aryan and Jew in the Nazi Rechtsstaat' in Cheah, Fraser and Grbich (eds) Thinking Through the Body of the Law (1996) at 66). In 1938, legislation disbarring all Jewish lawyers was enacted (Fernandez, 'The Law, Lawyers and the Courts in Nazi Germany' (1985) 1 South African Journal on Human Rights 124 at 128). After 1938, laws for the registration of Jewish property were made. After 1940, laws for the sequestration of such property in Poland were made. People of the Jewish race were excluded from compensation for war damage before a worse fate befell most of them (Taylor, The Anatomy of the Nuremberg Trials. A Personal Memoir (1992) at 340).

[113] Basic Law of the Federal Republic of Germany, art 3.3 ['Nobody shall be prejudiced or favoured because of their sex, birth, race, language, national or social origin, faith, religion or political opinions.']

[114] Constitution of the Republic of South Africa, s. 9(3) ['The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.']

[115] Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1423; 147 ALR 42 at 147.

[116] Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266.

[117] See for example R v Oakes [1986] 1 SCR 103 at 120-121; R v Smith [1987] 1 SCR 1045 at 1061; Edmonton Journal v Attorney-General for Alberta [1989] 2 SCR 1326 at 1374, 1377-1378. See also Claydon, 'International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms' (1982) 4 Supreme Court Law Review 287; Cohen and Bayefsky, 'The Canadian Charter of Rights and Freedoms and Public International Law' (1983) 61 Canadian Bar Review 265; Schabas, International Human Rights Law and the Canadian Charter (1991); Hogg, Constitutional Law in Canada, 3rd ed (1992) at 822-824.

[118] cf Industrial Relations Act Case (1996) 187 CLR 416 at 565 per Dawson J.

[119] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 69, 79; Horta v The Commonwealth [1994] HCA 32; (1994) 181 CLR 183 at 195.

[120] cf Kruger v The Commonwealth [1997] HCA 27; (1997) 71 ALJR 991 at 1037; [1997] HCA 27; 146 ALR 126 at 190.

[121] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-437, 446.

[122] See Fitzgerald, 'International Human Rights and the High Court of Australia' (1994) 1 James Cook University Law Review 78.

[123] Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 at 42; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 306, 321; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287.

A similar approach has been adopted in the United Kingdom: Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 283; R v Home Secretary, Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696 at 761; Derbyshire CC v Times Newspapers [1992] UKHL 6; [1992] QB 770 at 830; in New Zealand: Tavita v Minister for Immigration [1994] 2 NZLR 257 at 266; and in Canada: Reference as to Powers to Levy Rates on Foreign Legations and High Commissioners' Residences [1943] SCR 208 at 249; Schavernoch v Foreign Claims Compensation [1982] 1 SCR 1092 at 1098.

[124] Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1424; 147 ALR 42 at 148.

[125] See United Nations Charter 1945, Arts 1(3), 55(c), 56; Universal Declaration of Human Rights 1948, Art 2; International Convention on the Elimination of all forms of Racial Discrimination 1965, Arts 1(1), 1(4), 2, 6; International Covenant on Civil and Political Rights 1966, Art 2(1); International Covenant on Economic, Social and Cultural Rights 1966, Art 2(2); Declaration on Race and Racial Prejudice 1978, Art 9(1). Australia signed the International Convention on the Elimination of all forms of Racial Discrimination on 13 October 1966, ie at the time of the parliamentary debates which led to the amendment of para. (xxvi) of the Constitution. Australia ratified the Convention on 30 September 1975. See also Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 204-206; Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 124-125.

[126] South West Africa Cases (Second Phase) [1966] ICJR 3 at 293.

[127] Bennion, Statutory Interpretation, 3rd ed (1997) at 214.

[128] The Queen v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207 at 226.

[129] See Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 472.

[130] cf South Australia v The Commonwealth [1942] HCA 14; (1942) 65 CLR 373 at 411 per Latham CJ.