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Pengelley, Nicholas --- "The Hindmarsh Island Bridge Act Must Laws Based on the Race Power be for the 'Benefit' of Aboriginies and Torres Strait Islanders? And what has Bridge Building got to do with the Race Power Anyway" [1998] SydLawRw 6; (1998) 20 (1) Sydney Law Review 144

The Hindmarsh Island Bridge Act. Must Laws Based on the Race Power be for the “Benefit” of Aborigines and Torres Strait Islanders? And what has Bridge Building got to do with the Race Power Anyway?


At a directions hearing in Kartinyeri v The Commonwealth, in Adelaide on September 3rd, 1997,[1] Brennan, CJ ordered that the Full Court of the High Court would hear argument, in early 1998, on a challenge to the validity of the Hindmarsh Island Bridge Act, 1997 (Cth), (“Act”).[2] The issue which will be decided by the High Court is an extremely important one for the Aboriginal and Torres Strait Islander peoples of Australia. It involves the interpretation of section 51(xxvi) of the Commonwealth Constitution, the “race power”. The Court will be asked to decide whether this provision gives the Commonwealth Parliament the ability to makes laws other than for the benefit of Aboriginal and Torres Strait Islanders. The answer to that question will also have implications for the Government’s proposals to amend the Native Title Act 1993 (Cth) in ways which are considered by many to be discriminatory or adverse to Aborigines and Torres Strait Islanders.[3]

1. Background

The history of the efforts of the Chapman family to build a bridge to Hindmarsh Island in South Australia would fill a book in its own right.[4] In 1994, a group of Ngarrindjeri women sought a declaration, under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), (“Heritage Protection Act”), to protect their cultural heritage in the Hindmarsh Island area. They said that, for reasons of “secret women’s business”, the bridge would desecrate sacred sites.[5] A declaration by the Minister would have had the effect of banning construction of the bridge to Hindmarsh Island.[6] Cheryl Saunders reported on the matter to the Minister for Aboriginal Affairs,[7] but the Federal Court held that the process was procedurally defective.[8] An appeal by the Minister failed,[9] and, in the meantime, a Royal Commission appointed by the South Australian Government reported that the “secret women’s business” had been fabricated. [10] In late 1995, the Minister commissioned a further report from a Federal Court judge.[11] Her report was to have been considered by Senator Rosemary Crowley, but the High Court upheld a further challenge, finding that Federal Court judges cannot be used in this way.[12]

The Howard Government has sought to bring the saga to a close, and ensure that the bridge is built, by passing the Act which prohibits the Minister from taking any action on a valid application for the heritage protection of Hindmarsh Island. The Government has also sought to avoid the expense involved in a further inquiry into the building of the bridge, although Frank Brennan suggested that a quick (and cheap) inquiry could be held using the material gathered for the Mathews inquiry and by appointing Lindy Powell QC (who assisted Mathews J) as reporter.[13] The Government has said that the Act can be supported under the race power, even if discriminatory against Aborigines.[14] This note will consider whether the race power will, in fact, support the Act, and indeed whether the Act can even be characterised as an exercise of that power.

2. The Race Power

The Act has been challenged by the Ngarrindjeri people as being outside the race power, as provided by section 51(xxvi) of the Constitution. This provision, as originally enacted, gave the Commonwealth power to make laws with respect to,

The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

It was altered, after a successful referendum in 1967 to read,

The people of any race for whom it is deemed necessary to make special laws.[15]

The official record of the Convention Debates of what eventually became section 51(xxvi) contains absolutely no reference at all to the indigenous peoples of Australia.[16] The delegates were manifestly concerned with introducing a law which would allow the Federal Parliament to control the activities of foreign “inferior” and “coloured” races. Having allowed these peoples into the country under the immigration laws, the delegates were concerned that there be a continuing power to control them.[17] It was clearly understood at Federation that the race power gave the Commonwealth Parliament the ability to make laws to control the activities of particular races and maintain the European hegemony.[18] The question which the High Court will be asked to consider is whether this understanding has carried over to the employment of the race power with respect to the indigenous peoples of Australia, in the light of the 1967 Referendum. This question will be considered below.

3. Characterisation

The Act is said to be supported by the race power, section 51(xxvi). If it cannot be characterised as such, and there is a lack of any other power to sustain it, then it must fail. To be so characterised it must be a “special law” for the Aboriginal race. On the face of it, it is just a law about a bridge. The long title of the Act reads: “An Act to facilitate the construction of the Hindmarsh Island Bridge and for related purposes”. It does not expressly purport to amend the Heritage Protection Act – which is held by the Government to be itself a special measure exception to the Racial Discrimination Act 1975 (Cth) (“RDA”)[19] – but stands alone, at least prima facie. Sydney Tilmouth QC, in the Kartinyeri directions hearing, said that, “The operation of the Act has nothing to do with the race power, is not properly characterised as a special law with respect to the Aboriginal race”.[20] It was passed, he said, “simply to stop an application currently in train in its track; it is simply to facilitate the building of the bridge”.[21] It is clear, however, from the second reading speech introducing the Act,[22] the explanatory memorandum and the advice of the Attorney-General’s Department to the Government,[23] that the Act is intended as an amendment to the Heritage Protection Act. The following exchange between the Chair of the Senate Legal and Constitutional Legislation Committee and Henry Burmester, Chief General Counsel of the Attorney-General’s Department, during the Senate hearings on the constitutional validity of the Bill is illuminative:[24]

Chair — ... A key point of your advice is that this bill has to be read in conjunction with the heritage act ... . Where do you say this bill links in with the heritage act, or to where is it tied? Which clause would you refer to for the link?

Mr Burmester — Senator, it operates directly on section 10 of the heritage act, and affects the obligations that might otherwise apply under that section.

Chair — So you say this bill cannot be read as standing alone?

Mr Burmester — That is right. It operates on section 10 and section 9 ... . so it would prevent action being taken under those sections. So it would be a mistake to view it in isolation; it can only be fully understood if you go back to the act on which it operates and read it in conjunction with that act.

Chair — And the heritage act being a special measure, this is part of the special measure then?

Mr Burmester — That is correct.

It is an accepted and basic rule of statutory interpretation that when an Act is amended by a later Act, the two are to be regarded as one connected statement of the will of the Parliament.[25] This “presumption can be displaced but it would take very clear evidence to do so”.[26] The learned authors of Statutory Interpretation in Australia, state that it is,

[n]ot necessary that the Act expressly use the word ‘amend’ or that it provide that the later Act be incorporated or read as one with the earlier Act. If the court is satisfied that the intended effect of the later Act is to bring about an alteration in the operation of the earlier Act, the later Act will be regarded as an amending Act.[27]

Speculation about why this course was chosen, rather than textual amendment of the Heritage Protection Act aside, it is abundantly clear that this was the intention of the legislators and there is nothing to rebut the presumption. In order to fulfil the requirements of s51(xxvi) the law must be special. The most recent consideration of this aspect of the race power by the High Court was in the Native Title case, where six judges, referring to the decision in Koowarta v Bjelke-Petersen,[28] said that “the special quality of a law must be ascertained by reference” to its “differential operation upon the people of a particular race”.[29] Applying the reasoning of the Court, the Heritage Protection Act is “special” in that it confers uniquely on the Aboriginal and Torres Strait Islander peoples (the “people of any race”) a benefit protective of their heritage.[30] Whether it was “necessary” to enact that law, as the High Court said with reference to the Native Title Act, “was a matter for the Parliament to decide and, in the light of Mabo [No.2], there are no grounds on which this Court could review the Parliament’s decision... ”.[31]

Sydney Tilmouth QC denied that the Hindmarsh Island Bridge Act has the quality of a law “with respect to the people of any race”.[32] It cannot be regarded as such, he said:

Because it operates universally as well ... it cannot be with respect to the Aboriginal race. There is no confinement to any particular applicant or applicants. Under the Heritage Protection Act, anybody can bring an application for a declaration. In the end result it must be related to Aboriginals or a group of Aboriginals.[33]

This argument is countered, however, by the further statement of the High Court majority in the Native Title case, to the effect that, “The law may be special even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race”.[34] The Heritage Protection Act is certainly of “special significance or importance” to indigenous Australians.[35]

4. Must Laws be Beneficial?

The major question which falls to be confronted by the High Court is whether the race power must be interpreted to the effect that laws, enacted by the Commonwealth Parliament in reliance on it, can only be for the benefit of the Aboriginal race. As noted below, academic commentary published before the commencement of the current debate on the race power almost entirely supports the view that the power cannot be so confined, although High Court consideration of the issue to date has been inconclusive. Submissions by academics and senior counsel to the Parliamentary hearings in respect of the Native Title Act amendments have, however, largely favoured confinement of the power to beneficial employment. Whatever their opinions, all have agreed that the question could be decided either way by the High Court.[36] Even the Commonwealth Solicitor-General has admitted that, despite his advice to the Government to the contrary, the High Court might not accept the position that the Parliament may enact laws which are discriminatory as well as beneficial.[37]

In Koowarta, Murphy J said that section 51(xxvi) could only support laws “for the benefit of” the people of a race and not laws which would “affect adversely” those people.[38] But his view was rejected by four other justices. Stephen J declared that laws made under section 51(xxvi) “may be benevolent or repressive”,[39] a view which was supported by two other justices.[40]

In the Tasmanian Dam case, Murphy J reiterated his view.[41] He relied on the fact that the deletion of the words, “other than the aboriginal race in any State”, from section 51(xxvi) in the 1967 Referendum, “was manifestly done so that Parliament could legislate for the maintenance, protection and advancement of the Aboriginal people”.[42] Murphy J gained substantial support from Brennan J (as he then was):

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 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.[43]

Gibbs CJ disagreed with Murphy J, saying that history strongly supported the view that “for” in placitum xxvi meant “with reference to” rather than “for the benefit of” and the “for” expressed a “purpose rather than advantage”.[44] Mason J said that the power could be used to “regulate and control the people of any race in the event that they constitute a threat or problem to the general community”.[45] Deane J’s words are Delphic and have been claimed to lend support to both sides in the forthcoming battle. He said:

The power conferred by s51(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 makes laws benefiting the people of the Aboriginal race.[46]

The Attorney-General’s Department, in their advice to the Government on the Act, have apparently conceded that Murphy and Brennan JJ in the Tasmanian Dam case, both indicated that the race power is to be exercised only for the benefit of Aboriginals, even if it may be exercised to the detriment of other races.[47] However, Attorney-General’s Department lawyers have also said that Deane J stated the contrary view.[48] Robert Sadler thinks likewise,[49] but Frank Brennan claims him for the “benefit only” cause.[50]

Frank Brennan relies for support on the views of Murphy, Brennan and Deane JJ in Koowarta and the Tasmanian Dam case, and also of Gaudron J who said in Chu Kheng Lim, that:

In [Koowarta] Murphy J expressed the view – which in my opinion has much to commend it – that s51(xxvi) only authorises laws for the benefit of the race concerned, because in the context, “for” means “for the benefit of” and not “with respect to”.[51]

The Attorney-General’s Department also makes the claim (a bold one according to Frank Brennan)[52] that, “the issue was resolved in the Native Title Act case, where the majority said that, ‘A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race’”.[53] This is not a statement adverse to the “benefit only” case. The Court was clearly referring to the provision in broad terms, albeit in the context of a consideration of the Native Title Act. Jennifer Clarke, also commenting on the Native Title Act case says that, “As interpreted by the High Court, this power may allow laws which discriminate against, as well as laws which discriminate in favour, of indigenous Australians”.[54] But the High Court, in the Native Title Act case, decided that the Native Title Act was a beneficial law and therefore did not consider the wider issue of whether a non-beneficial law is permitted by the race power. That was left for another day.

Michael Coper, in his commentary on the Tasmanian Dam case, wrote optimistically that, “it is most unlikely, of course, that the power would now be used to pass other than benevolent laws”.[55] He did not say that it could not be done. And the leading textbook writers state, with little real consideration of the issue, that the power may be used to the detriment of Aborigines.[56] More detailed consideration is given to the question by Blackshield and Williams in their recent work, although they recognise that the issue is still open.[57]

A. The Intention of the Legislators

Frank Brennan argues, with the support of a number of eminent academics and learned counsel who have appeared at the Senate hearings into the Native Title Act amendments, that “it was the intention neither of the Parliament, which drew up the referendum ‘Case For’ in 1967, nor of the voters, that the Commonwealth Parliament would thereafter have power to make laws discriminating adversely against Aborigines and Torres Strait Islanders”.[58] This argument will most definitely be put to the High Court in Kartinyeri.

It was undoubtedly the view of those groups which had been working for many years for the alteration of section 51(xxvi), that doing so would be a catalyst for positive change, as far as Aborigines were concerned.[59] And the fact that the referendum succeeded was undoubtedly due to a general climate of change in the community – one which saw the end of the White Australia policy for example – and one which wished to redress past wrongs.[60] Very few referenda to change the Constitution have succeeded and it is widely accepted that to have any chance of success, campaigns must simplify and exaggerate issues in a highly politicised and often emotionally-charged environment. The words “other than the Aboriginal race” were a powerfully simple rallying cry for promoting the view that Aborigines were discriminated against, and that the removal of the words would remove discrimination.[61] Aborigines were most certainly discriminated against, but, arguably at least, not by the presence of the words which were removed from section 51(xxvi).[62]

It is clear that the Federal Government already possessed wide powers to enact laws for the benefit of Aborigines (through the use of the grants power for example) and that it was understood by many that alteration of section 51(xxvi) did not in itself mean that positive changes would necessarily flow as a result.[63] Prime Minister Robert Menzies expressed this in Parliament when he pointed out that the reason for the exclusion of Aborigines in the first place was in order to protect them from the very discrimination which was intended against other races.[64] Would that the framers had been so clear!

Politicians are nothing if not realists however and they understood that the removal of the words “other than the aboriginal race” would remove a perception held by many that the provision did have a discriminatory effect and that doing so would find favour in the arena of international opinion as well.[65] It was this view which won the day, presenting as it did a very straightforward option to the public, who knew little of the intentions of the founding fathers, or of constitutional interpretation, or other powers of the Federal Parliament, and had no reason to look beyond words which appeared, prima facie, to represent discrimination. The amendments to the Constitution, which also included removal of section 127, which prevented counting of Aborigines for citizenship purposes, were resoundingly approved.

That the Australian people did not fully understand the background, or the complex issues of constitutional interpretation, however, is beside the point. It is abundantly clear that they were voting for the removal of words which seemed clearly to discriminate against indigenous Australians. It is submitted that in the face of such overwhelming community endorsement,[66] the Commonwealth Parliament cannot now legislate to the detriment of those peoples – whether that legislation be to remove a right to heritage protection over traditional lands so that a bridge might be built, or to remove native title rights won in the High Court in Wik, in order to give them to pastoralists. It is submitted that any Act which has that effect must, since 1967, be considered unconstitutional.

B. International Law

In its submission to the Senate inquiry into the Native Title Act amendments, the Australian Law Reform Commission said that:

[T]he prospect that the race power may be interpreted as providing grounds only for legislation that advances rather than retards the rights and interests of indigenous people is bolstered by the fact of Australia’s ratification of international instruments which, in the terms of international law, oblige Australia to ensure that State actions (including the enactment of legislation) do not discriminate on the grounds of race to the detriment of a particular racial group in society.[67]

A clue to High Court thinking on such an issue is found in the words of Kirby J in Newcrest Mining v The Commonwealth, where he said, “Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of fundamental rights rather than to an interpretation which would involve a departure from such rights”.[68] Kirby J adds that, “one highly influential international statement on the understanding of universal and fundamental rights is the Universal Declaration of Human Rights”.[69] As the ALRC submission notes, a central tenet of the Declaration is the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”.[70]

Australia is a party to a number of other major conventions which proscribe discrimination on grounds of race, including the United Nations Charter,[71] the International Convention on the Elimination of All Forms of Racial Discrimination,[72] the International Covenant on Civil and Political Rights[73] and the International Covenant on Economic, Social and Cultural Rights.[74] As Kirby J points out in Newcrest, the “interrelationship of national and international law, including in relation to fundamental rights, is ‘undergoing evolution’”.[75] That, despite the fact that our domestic laws do not necessarily conform with international law,

[it] is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia’s Constitution ... accommodates itself to international law, including insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community.[76]

The development of this influence on the decisions of the High Court is evident in a line of decisions including Mabo v Queensland [No.2],77 Minister for Immigration and Ethnic Affairs v Teoh,[78] Kruger v The Commonwealth[79] and in Dietrich v R where Mason CJ and McHugh J approved, in dicta, of such a “common-sense” approach.[80] Support for these principles, equally applicable to the Ngarrindjeri challenge and that which will inevitably be made to the Native Title Act amendments, has also recently been strongly endorsed in the Commonwealth Government’s own Foreign and Trade Policy White Paper.[81]

C. Stretching the Definition of “Beneficial” – the Government’s Fall Back Position

Section 4 of the Hindmarsh Island Bridge Act 1997 withdraws, or eliminates, the “protection” which is created by the Heritage Protection Act.[82] Sydney Tilmouth QC said in the directions hearing in Kartinyeri that:

what the Act does is to withdraw a statutory benefit, which is for the benefit of the Aboriginal race, in relation to the Hindmarsh Island Bridge area. In that sense, on any view, this Act could be regarded as one which is detrimental and certainly not one which is for the benefit of anybody, still less the Aboriginal race or the Ngarrindjeri Aboriginal race.[83]

Despite the Government’s clearly expressed view that the race power does not restrict it to making laws for the benefit of Aborigines,[84] and that the Hindmarsh Island Bridge Act, when read by itself, clearly does withdraw a benefit, the Commonwealth Solicitor-General, in the Kartinyeri directions hearing, nevertheless declined to characterise the Act as non-beneficial.[85]

The ingenuous argument which the Government has developed to support this stance relies on the same principles of statutory interpretation referred to above. It was not referred to in the Government’s advice on the Act or in the Senate Committee hearings, but has emerged in relation to the Native Title Amendment Bill hearings in the Parliamentary Joint Committee on Native Title and ASTI Land Fund. The argument was put to the Committee by Senator Minchin as follows:

[t]hat bill when incorporated into the act renders the act, as amended, legislation which remains of benefit to the Aboriginal people – quite demonstrably because of its quite considerable protection of native title compared with the common law. If we are to have a test about benefit, that surely can be the only test available: does the act, as amended, still provide a benefit to Aboriginal people, compared with the absence of legislation? That quite clearly is the case.[86]

Obviously the same argument will be employed by the Government in respect of the Hindmarsh Island Bridge Act: that it is the Heritage Protection Act, as amended, which remains of benefit. It still provides considerable protection compared with the absence of legislation. As with the Native Title Act, as amended, the Government will say that even if the race power is limited to being beneficial, then it would not affect the constitutionality of the Heritage Protection Act, as amended – because it remains legislation of benefit.

As Brennan CJ said in the Kartinyeri directions hearing to Sydney Tilmouth QC, referring to the task of defining whether the Act is beneficial, “How on earth is that to be determined?”[87] The word is obviously liable to highly subjective definition. One generation’s beneficial laws are another’s racist discrimination. The laws which resulted in the removal of Aboriginal children from their parents (the “Stolen Generation”) were seen by those who passed them and enforced them, and the community at the time, as being “beneficial”. Now most would argue the opposite. Despite the difficulties of definition, the High Court, as Ronald Castan QC has pointed out, “has already had to decide from time to time whether particular laws are or are not beneficial to aboriginal people, applying the ‘Special Measures’ test, under the [Racial Discrimination Act]. Having undertaken this task in the past, it is hardly likely to find great difficulty in doing so in the future”.[88] And despite the fact that definition of “beneficial” might be seen as a political task, the High Court has never shrunk from setting limits on federal powers even, as Castan QC notes, “when dealing with the most controversial and highly charged political issues”.[89] He instanced the Communist Party case in the 1950s where the Court overruled the Government’s Communist Party Dissolution Act which was based on the defence power.

The influence of international norms has been growing since the Mabo watershed, but it is not just these norms which influence Australian societal change and lead to major change in High Court thinking. There have been huge upheavals and radical changes in Australian society and culture since Federation, including those wrought by two world wars and mass immigration from Europe and Asia. Major change in Constitutional interpretation is nothing new to the High Court (although it has hitherto been concerned with widening the interpretation of powers, not restricting them). One only has to look to the Engineers’ case,[90] of which Windeyer J said, in Victoria v The Commonwealth:[91]

I have never thought it right to regard the discarding of the doctrine of implied immunity of the States .... as the correction of antecedent errors or as the uprooting of heresy. To return today to the discarded theories would indeed be an error and the adoption of a heresy. But that is because in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians were now one people and Australia one country and that national laws might meet national needs. For lawyers the abandonment of old interpretations of the limits of constitutional powers was readily acceptable. It meant only insistence on rules of statutory interpretation to which they were well accustomed. But reading the instrument in this light does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation were believed to be the effect of the Constitution and in reading it accordingly. As I see it the Engineers’ case, looked at as an event in legal and constitutional history, was a consequence of developments that had occurred outside the law courts as well as a cause of further developments there. That is not surprising for the Constitution is not an ordinary statute: it is a fundamental law. In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based on the interpretation of a written constitution may vary and develop in response to changing circumstances.

This is not to state that a majority of the High Court will adopt such reasoning in interpreting the race power. As is well known, opinions of both High Court judges and academic commentators differ as to the extent to which the Constitution should be interpreted according to the intent of the framers, or to which “the court must take account of political, social and economic developments since [1900]”.[92] It is interesting nevertheless to refer to the judgment of Brennan CJ in McGinty v Western Australia, where, referring to the changes in the concept of universal suffrage since 1900, he said:

In view of the fact that the franchise has historically expanded in scope, it is at least arguable that the qualifications of age, sex, race and property which limited the franchise in earlier times could not now be reimposed so as to deprive a citizen of the right to vote.[93]

What is beyond doubt is that the hope of Australia’s indigenous peoples and for all Australians who thought that discrimination against them was ended in 1967, lies with the High Court. The Court should seize the opportunity to state, “in a new light”, for the present generation, that beneficial does not mean laws which reduce the rights of indigenous peoples to protect their heritage. It is only a few short years since a differently constituted High Court said, in another case about the rights of indigenous Australians, that “the expectations of the international community accord with the contemporary values of the Australian people to require that any interpretation of this power which would be adverse to Aborigines and Torres Strait Islanders is no longer acceptable”.[94] The retiring Gerard Brennan CJ, who formulated those sentiments, could not hope to make a better salute to history, nor a better gift to the Australian community – both the indigenous and the more recent arrivals – by reprising them in 1998.

[*] BA (SA), DipL (BAB), Law Librarian, Monash University Paper originally submitted in partial satisfaction of requirements of the LLM degree at Monash University in November 1997. With thanks to Pamela O’Connor, Lecturer in Law, Monash University
[1] Transcript available from AUSTLII (
[2] Act no 60, 1997. Assented to 22 May 1997 (operation on assent, s2).
[3] Native Title Amendment Bill 1997 (Cth).
[4] A detailed chronology is found in two reports: Saunders, C, Report to the Minister for Aboriginal and Torres Strait Islander Affairs on the Significant Aboriginal Area in the Vicinity of Goolwa and Hindmarsh (Kumarangk) Island pursuant to Section 10(4) of the Aboriginal and Torres Strait Islander Act 1984, July 1994. Professor Saunders is Professor of Law at the University of Melbourne and Director of the Centre for Comparative Constitutional Studies, and Deputy Chair of the Constitutional Centenary Foundation and; Mathews, J, Commonwealth Hindmarsh Island Report, 27 June 1996. Judge Jane Mathews is a Judge of the Federal Court of Australia, President of the Administrative Appeals Tribunal and Deputy President of the National Native Title Tribunal. A useful summary is provided in the Bills Digest prepared by the Parliamentary Library (Hindmarsh Island Bridge Bill 1996, Bills Digest No.50, 1996-97). See also the report of the Senate Legal and Constitutional Legislation Committee on the Hindmarsh Island Bridge Bill 1996 (December 1996).
[5] Bills Digest, id at 3. The issue apparently related to Hindmarsh and Mundoo Islands and the mouth of the Murray River in general.
[6] The Heritage Protection Act provides for the protection of Aboriginal and Torres Strait Islander heritage, including sites and objects. It operates by way of a ministerial declaration that a site or object is of significance to the Aboriginal peoples and Torres Strait Islanders and is under threat of injury or desecration.
[7] See Saunders, C, above n4.
[8] Chapman v Tickner (1995) 55 FCR 316.
[9] Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451.
[10] South Australia. Report of the Hindmarsh Island Bridge Royal Commission, presented by Stevens, I E, Royal Commissioner, December 1995.
[11] See Mathews, J, above n4.
[12] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 70 ALJR 743. The report was tabled in the Senate on 17 December 1996. Largely because the “secret women’s business” evidence was withdrawn, Justice Mathews found that, “there is insufficient materials from which the Minister could be satisfied that the building of the Hindmarsh Island Bridge would desecrate this area according to these traditions”.
[13] Brennan, F, ‘Building a Bridge on a Constitutional Sea of Change’ (1997) 4 Indigenous L Bull 6 at 8. The minority report of the Senate Legal and Constitutional Legislation Committee which inquired into the Hindmarsh Island Bridge Bill endorsed Brennan’s view but it was rejected by the majority who accepted the advice of the Attorney-General’s Department. (Burmester, H, Chief General Counsel, Attorney-General’s Department. Re: Hindmarsh Island Bridge Bill Opinion. 27 November 1996, para 3). (Father Frank Brennan SJ AO, is Director of the Uniya Jesuit Social Justice Centre).
[14] Hansard (House of Representatives), 26 March 1997 at 3278. The Minister for Health and Family Services cited advice provided by the Attorney-General’s Department. This opinion was reiterated by the Commonwealth Solicitor-General G Griffith QC, in the directions hearing in Kartinyeri v The Commonwealth, “... whether ... the races power must be beneficial in its operation. We flatly assert that this is not so”. Above n1 at 7.
[15] Constitution Alteration (Aboriginals) Act 1967 (Cth), s2.
[16] National Australasian Convention Debates. Sydney, 1891 at 701–704; Adelaide, 1897 at 830- 832; Melbourne, 1898 at 227-56.
[17] Quick, J and Garran, R, The Annotated Constitution of the Australian Commonwealth, 1901 at 622. The clause was first drafted by Sir Samuel Griffith who, in 1891, said that, “What I have had more particularly in my own mind was the immigration of coolies from British India, or any eastern people subject to civilised powers. The Dutch and English governments in the east do not allow their people to emigrate to serve in any foreign country unless there is a special law made by the people of that country protecting them, and affording special facilities for their coming and going ... . I maintain that no state should be allowed, because the federal parliament did not choose to make a law on the subject, to allow the state to be flooded by such people as I have referred to”. National Australasian Convention Debates, Sydney, 1891 at 703.
[18] See the record of the Convention debates above n16; Quick and Garran above n17 at 622. And see, eg, the Pacific Island Labourers Act 1901 (Cth), which gave the Minister for External Affairs powers to control Pacific Islanders, and to deport them. Writing of that Act in 1905, B A Ross said that s51(xxvi) gave the Parliament power to, “[L]ocalise them [Pacific Islanders] within definite areas, to restrict their immigration, to confine them to certain occupations ... Parliament could make the place too hot for them, or offer such inducements to go that they would leave voluntarily ... . [If] special legislation were enacted under the power given by subs xxvi ... then it would appear possible in the case of kanakas to carry out the policy of a White Australia ... .” Ross, C, “Pacific Island Labourers Act 1901” (1905) Commonwealth LR at 3.
[19] Burmester above n13 at para 3.
[20] Above n1 at 2.
[21] Ibid.
[22] Hansard (House of Representatives) 17 October 1996 at 5801.
[23] Burmester above n13 at para 3.
[24] Hansard (Senate Legal and Constitutional Legislation Committee) Reference: Hindmarsh Island Bridge Bill 1996. 29 November 1996, LC 113.
[25] Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 735 per Isaacs J.
[26] Pearce, D and Geddes, R, Statutory Interpretation in Australia (4th edn) at para 7.22.
[27] Ibid.
[28] [1982] HCA 27; (1982) 153 CLR 168.
[29] Western Australia v The Commonwealth [1995] HCA 47; (1993) 183 CLR 373 at 460-61.
[30] Id at 462.
[31] Ibid.
[32] Above n21 at 4.
[33] Ibid.
[34] Above n29 at 461.
[35] The long title to the Act reads: “An act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes”.
[36] Hansard (Senate Legal and Constitutional Legislation Committee) Reference Constitutional Aspects of the Native Title Amendment Bill 1997, October 23–24 1997.
[37] Id at L&C 285.
[38] [1982] HCA 27; (1982) 153 CLR 168 at 242.
[39] Id at 209.
[40] Id at 186 per Gibbs CJ; at 244 per Wilson J. Aickin J agreed with the Chief Justice. Mason J did not consider s51(xxvi) and Brennan J did not consider it in terms relevant to this discussion.
[41] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 180.
[42] Ibid.
[43] Id at 242.
[44] Id at 110.
[45] Id at 158.
[46] Id at 273.
[47] Brennan, above n13 at 8 citing Attorney-General’s Advice on Constitutional Validity of Hindmarsh Island Bridge Bill 1996, 5 February 1997 at 2.
[48] Ibid.
[49] Sadler, R, “The Federal Parliament’s Power to Make Laws ‘with respect to ... . the people of any race’”. [1985] SydLawRw 6; (1985) 10 Syd LR 591 at 605-6.
[50] Above n13 at 8.
[51] Gaudron J expressed this view in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 56 and in Kruger v The Commonwealth [1997] HCA 27; (1997) 146 ALR 126 at 193.
[52] Above n13.
[53] Western Australia v The Commonwealth [1995] HCA 47; (1993) 183 CLR 373 at 461.
[54] Clarke, J, Racial Non-discrimination Standards and Proposed Amendments to the Native Title Act, Australian Institute of Aboriginal and Torres Strait Islander Studies (ANU). Native Title Research Unit. Issues Paper no 16, April 1997 at 4 ( ntip16.htm).
[55] Coper, M, The Franklin Dam Case, 1983 at 16. This view was also put to the Parliamentary Joint Committee in its hearings into the Native Title Bill 1997. Mr Robert Orr (General Counsel, Wik Task Force, Department of Prime Minister and Cabinet) said, “As is often said ... one presumes that as a result of the 1967 amendment the governments will, under that, pass or amend laws that have the net effect of being of benefit to Aboriginal people. We maintain that the Native Title Act as amended continues to present a significant benefit to Aboriginal people”. Hansard, 17 October 1997 (NT 2018).
[56] Lumb, R D and Moens, G A, The Constitution of the Commonwealth of Australia (5th edn, 1995) at 216 n482. Hanks, P, Constitutional Law in Australia (2nd edn, 1996) at 463. Wynes, W A, Legislative, Executive and Judicial Power in Australia (5th edn, 1976) at 304. Joske, P, Australian Federal Government, 1967 at 225.
[57] Blackshield, T and Williams, G, Australian Constitutional Law and Theory: Commentary and Materials (2nd edn, 1998) chapter 4.
[58] Above n13 at 8.
[59] Attwood, B, and Markus A, The 1967 referendum, or when Aborigines didn’t get the vote, 1997, chapters 4 and 5.
[60] A wider discussion of this issue is beyond the scope of this note. See generally the excellent account provided by Attwood and Markus, op cit.
[61] Id, ch 5.
[62] Id, ch 4 and 5.
[63] Ibid.
[64] Hansard (House of Representatives), 25th Parliament, First session, 1965 at 532–534.
[65] Attwood and Markus, above n 59, chapter 4. Hansard (House of Representatives), March 1967 at 263 (PM Harold Holt); Hansard (House of Representatives) 1 March 1967 at 279 (Opposition Leader Whitlam); Hansard (Senate) 2 March 1967 at 235 (Senator Henty). All references in these debates on the passing of the bill are to positive discrimination only.
[66] Described as a “sea change” and a “circuit breaker” by the President of the Australian Law Reform Commission. Hansard (Senate Legal and Constitutional Legislation Committee) Constitutional Validity of the Native Title Amendment Bill 1997, October 24 1997. L&C 325.
[67] ALRC Draft Comments on the Native Title Amendment Bill 1997 part 2.6. (http://
[68] [1997] HCA 38; (1997) 147 ALR 42 at 147.
[69] Id at 148.
[70] ALRC Draft Comments above n67 part 3.
[71] (1945) Second Recital and Article 1(3).
[72] (1965) preamble, Article 1, para 1, Article 5.
[73] (1966) Article 2(1), Article 3.
[74] (1966) Article 2(2).
[75] Above n68 at 147.
[76] Id at 148.
[77] [1992] HCA 23; (1992) 175 CLR 1.
[78] [1995] HCA 20; (1995) 183 CLR 273
[79] [1997] HCA 27; (1997) 146 ALR 126
[80] [1992] HCA 57; (1992) 177 CLR 292 at 306.
[81] Department of Foreign Affairs and Trade, In the National Interest (No 147) 1997, National Capital Printing, Canberra at para 24. “[The Government’s unqualified commitment to racial equality and to eliminating racial discrimination] is a non negotiable tenet of our national cohesion, reflected in our racial diversity, and it must remain a guiding principle for our international behaviour. The rejection of racial discrimination is not only a moral issue, it is fundamental to our acceptance by, and engagement with, the region where our vital security and economic interests lie. Racial discrimination is not only morally repugnant, it repudiates Australia’s best interests.”
[82] Section 4, ‘Provisions facilitating construction etc. of the bridge’: “(1) The Heritage Protection Act does not authorise the making of a declaration in relation to the preservation or protection of an area or object from any of the following activities: (a) the construction of a bridge, and associated works (including approaches to the bridge), in the Hindmarsh Island bridge area; (b) work or other activities in that area preparatory to, or associated with, that construction; (c) maintenance on, or repairs to, the bridge and associated works; (d) use of the bridge and associated works; (e) the removal of materials from, or dumping of materials in, the pit area in connection with any of the activities mentioned in paragraphs (a), (b) and (c). (2) The Heritage Protection Act 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 activity covered by paragraph (1)(a), (b), (c), (d) or (e).”
[83] Above n21 at 4.
[84] Ibid.
[85] Id at 8.
[86] Hansard (Joint Committee on Native Title and ATSI Land Fund) 17 October 1997, NT 2005.
[87] Above n21 at 10.
[88] Castan, R, Supplementary Submission to the Parliamentary Joint Committee on Native Title, 22 October 1997.
[89] Ibid.
[90] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.
[91] [1971] HCA 16; (1971) 122 CLR 353 at 396–7.
[92] [1996] HCA 48; (1996) 186 CLR 140 at 200 per Toohey J. A discussion of this very complex issue is beyond the scope of this note. For an excellent and detailed recent account see Goldsworthy, J, “Originalism in Constitutional Interpretation” (1997) 25 Fed LR 1.
[93] McGinty’s case, id at 166–7.
[94] Mabo [No.2], above n77 at 42 per Brennan J.

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