Indigenous Law Bulletin
Kartinyeri v Commonwealth
High Court of Australia
Brennan CJ, Gaudron, McHugh, Gummow, Kirby & Hayne JJ
 HCA 22
1 April 1998, A29/1997
Casenote by Garth Nettheim
The Hindmarsh Island Bridge Act 1997 (Cth) specifically provided that the protective provisions of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) would not apply with regard to the construction (or associated activities) of a bridge in the 'Hindmarsh Island bridge area' (as defined). The applicants, who had previously sought protection for the area under the 1984 Act, sought a declaration that the 1997 Act was invalid. On 1 April 1998 the full High Court delivered its answer.
Section s51(xxvi) of the Commonwealth Constitution authorises Parliament to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws'. In 1967, following a referendum under s128 of the Constitution, the words 'other than the aboriginal race in any state' had been removed from s5I(xxvi). Applicants argued that s51(xxvi) was confined so as to authorise only laws for the benefit of 'the people of any race' generally, or, particularly, for members of 'the aboriginal race'.
Chief Justice Brennan and Justice McHugh made no decision as to whether s51(xxvi) is subject to any such limitation. They treated the 1997 Act as an amendment of the 1984 Act which was, itself, supported by s51(xxvi). On general constitutional principles they held that the power to make a law necessarily includes the power to repeal it or to amend it. Accordingly the 1997 Act was valid.
Justice Gaudron did consider the suggested limitation. She noted that the original intention was to authorise laws which would discriminate against people of particular 'coloured' or 'alien races'. But the power in s51(xxvi) is not a bare power, and the words 'for whom it is deemed necessary to make special laws must be given some operation.
The High Court in Western Australia v Commonwealth (the Native Title Act Case)  HCA 47; (1995) 183 CLR 373 had held that it was for Parliament to determine whether a law was, or could be deemed to be 'necessary', but the court had left open the question whether there was 'some supervisory jurisdiction to examine the question of necessity against the possibility of a manifest abuse' (page 460). Justice Gaudron continued:
40 ... 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....
41 ... [T]wo things follow. The first is that s5I(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. ...Consequently, s51(xxvi) will nor 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.
42 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...
43 Although the power conferred by s51(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. And prima facie, at least, only laws directed to remedying their disadvantage could reasonably be viewed as appropriate and adapted to their different circumstances.
44 ... 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, s51(xxvi) presently only authorises laws which operate to the benefit of Aboriginal Australians.
But her Honour went on to agree with the Chief Justice and McHugh J that, generally speaking, 'a plenary power to legislate ... carries with it the power to repeal or amend existing laws...' (para 48). The 1997 Act was valid as a partial repeal of the 1984 Act.
Justices Gummow and Hayne pointed out that there is no Constitutional requirement that a Commonwealth law may not distinguish 'between the different needs or responsibilities of different people or different localities' (para 57). Section 51(xxvi) does not limit legislation to laws which apply to all the people of a race. Generally, the power to enact a law includes the power to repeal or amend that law. They stressed that the 1997 Act 'curtails the operation of another law of the Commonwealth, not the enjoyment of any substantive common law rights'. (para 73).
In relation to the suggested limits to s51(xxvi), arising from the phrase 'deemed necessary', they stated that
... it may be that the character of a law purportedly based on s51(xxvi) will be denied to a law enacted in 'manifest abuse' of that power of judgment. (para 83).
(Their Honours did note possible restrictions in broad terms on Commonwealth legislative power, in para 90.)
However they rejected the argument that relevant limitations should be drawn from the circumstances of the 1967 referendum. They also rejected arguments that the 1997 Act should be interpreted so as to be consistent with international law human rights standards:
102 The Bridge Act is to be interpreted and applied in conformity and not in conflict with any relevant established rules of international law only in so far as its language permits. That language is unambiguous ... .
Justice Kirby was the sole dissentient. He agreed with other judges that a s51(xxvi) law did not need to be directed to all members of a race but might validly deal with a sub-group; this conclusion was fortified by the reference to 'special laws'.
On the question whether s51(xxvi) authorises legislation to the detriment of a particular people, dicta in past cases were inconclusive, and the Court had not previously had occasion to consider Commonwealth legislation which was adverse to the interests of Indigenous Australians. He surveyed the history of the provision including the 1967 referendum, and concluded that the race power '... 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' (para 157). He relied on textual and contextual indications in the Constitution of non-discrimination. Amongst other things, the requirement that such a law be 'deemed necessary' meant that the issue was, ultimately, justiciable.
There appears nothing in the agreed facts about the Ngarrindjerri, or the section of them constituted by the plaintiffs, which calls forth the power in par (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]' (para 160).
In addition, the Constitution is subject to interpretation in the light of changes since 1901. And the 1967 referendum was relevant to that interpretation (para 162).
Justice Kirby also found assistance in the approach of the US Supreme Court to the consideration of racially discriminatory legislation. The suggested limitation to s51 (xxvi) in terms of the test 'manifest abuse' was regarded by His Honour as unworkable and inadequate.
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. (para 168)
His conclusion was that the race power 'permits special laws for people on the ground of their race. But not so as adversely and detrimentally to discriminate against such people on that ground' (para 170).
This conclusion was reinforced by the interpretative principle that, where the Constitution is ambiguous,
171 ... 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....
172 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.... ...the arguments presented and the divergent approaches taken by members of this Court do, I think, make it abundantly clear that par (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.
If the 1997 Act were considered in isolation it would be invalid. Justice Kirby reached the same conclusion when considering the 1997 Act and the 1984 Act together: 'Such a hypothetical composite enactment discriminates against all Aboriginals in respect of the Hindmarsh Island Bridge area' (para 177). The Commonwealth argued a third approach, to regard the 1997 Act as merely a repealing or amending statute:
180 ... 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. 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.
The result is that two of the Court did not even consider the interpretation of s51(xxvi). Of the four who did, Gummow and Haines JJ spoke only in general terms of a limitation to the power. Justices Gaudron and Kirby were more specific.
But five of the Justices were ultimately persuaded that the 1997 Act had to be upheld as a partial repeal or amendment of the 1984 Act, notwithstanding any limitations to s5 1 (xxvi).
The issue may return to the Court on a future occasion in the context of any challenge to the constitutionality of the Native Title Amendment Bill, currently the subject of a deadlock between the two Houses of the Commonwealth Parliament.
Those aspects of the Bill which extinguish or impair the rights of native title holders affect rights recognised by common law and not derived from statute. Accordingly, they could not be supported by the argument that the Bill is valid as a partial repeal of some previous Act.
The situation would, at first sight, seem to be different in regard to the Bill's provisions which reduce the 'right to negotiate' for native title holders in regard to mining proposals (and some compulsory acquisitions). The Government has argued that the right to negotiate was created by the Native Title Act 1993 (Cth) so that any alteration would itself be valid. (There could, however, be an argument that the right to negotiate represents a vestige of the right of native title holders, under their laws, to require consent for the presence of others on their territories and, as such, is not a mere statutory right).
In any event, the decision in Kartinyeri does not seem to rule out the possibility of a challenge, based on Constitution s51(xxvi), to the validity of at least some provisions of the NTAB, if enacted.
Garth Nettheim is Emeritus Professor of Law at the University of NSW and Chair of the Indigenous Law Centre.
 For recent ILB discussion of the Bill, see J Clarke  ILB 86; 4(6)pg4; P Burke  ILB 14; 4(9)pg4; G Nettheim  ILB 16; 4(9)pg12