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Questions:

1.Explain the interpretive question concerning the application of section 51(xxvi) to Indigenous people that the High Court had to resolve in Kartinyeri.

2.Suppose that a successful referendum resulted in a change to the Constitution and the establishment of a First Nations Voice to advise Parliament on law-making with respect to Indigenous affairs, as called for in the Uluru Statement from the Heart and the Final Report of the Referendum Council. Would, or should, this make any difference to the interpretation of laws enacted under section 51(xxvi) that apply to Indigenous people?

 

Answers:

1.Kartinyeri v Commonwealth[1] is amongst the leading cases of the High Court in the matter of interpretation of Constitution’s section 51 (xxvi) and this matter was related to the application of this section to the Australian Indigenous people. This section provides that the Australian Parliament could legislate in the matter related to people of any race, save for the aboriginal race in any of the States, and for them, it was obligatory to create special laws. This section had been deliberately included in the nation’s constitution so that the commonwealth could be allowed to discriminate against a particular section in the community owing to their race[2].

Kartinyeri was a case where the minister had the declaration making power for safeguarding the Aboriginal areas. A group of women made a claim that the island was being used for the secret business of women and the same could not be disclosed to the men. After a woman being appointed for carrying an enquiry, the minister was allowed to make recommendations. There were problems in this enquiry and this led to the government passing an act in order to go ahead with the bridge and for going ahead even with the objections of Aboriginals. The key issue in this case was whether or not the commonwealth could pass legislation under the race power which was actually disadvantageous for the racial group[3].

This decision remained undecided as the court was split in their decision. Two judges, Hayne and Gummow, believed that this could be done. This was because the power could be used for both the detriment and the benefit. The reason for this decision was given as the requirement for this power to be enacted in a valid manner only when the same was done for the benefit of the Aboriginal people; hence this was rejected. As per these two judges, there were no constitution requirements that the law of the commonwealth could not distinguish between the responsibilities and needs of the different localities or people. Section 51 (xxvi), in these judges view, did not limit the legislation to laws, which is applicable to the people of any race[4]. They also suggested the limit under this section based on the phrase of “deemed necessary”[5]. Though, the argument regarding the related limitations to be drawn from the 1967 referendum circumstances was rejected. Another argument which was rejected was regarding the interpretation of 1997 act in order for it to be consistent with the human rights standards applicable under the international laws[6].

However, there were two other judges, Kirby JJ and Gaudron, who believed that this power was not to be used for a purpose which was disadvantage for the racial minority; and so, this law would be invalid. So, these two judges did suggest the limitations based on section 51 (xxvi)[7]. Kirby believed that the law did not require the members of the race to be directed; though, they may be needed to validly deal with the subgroup. The last two judges, McHugh and Brennan did not consider this power’s scope. They did not make any decision on section 51 (xxvi) to be subjected to such limitations. The conclusion given by the court reaffirmed the interpretative principle which was highlighted earlier. And as per this, in cases of ambiguity in the constitution, the universal fundamental rights had to be conformed with[8].

 


2.In case of a successful referendum being passed, for making changes to the Constitution of the nation, whereby a Aboriginal and Torres Strait Islander First nations Voice (Voice) would be established, which would be responsible for advising the Parliament on the issues of law making, which relate to the Indigenous affairs, as set out in the Final Report of the Referendum Council and the Uluru Statement from the Heart, would definitely make a difference in the manner of law interpretation of section (xxvi) which is applicable to the Indigenous people of the nation.

The first and foremost difference which this would bring is a decision being given in the cases like Kartinyeri, which otherwise resulted in an indecisive situation. If Voice would be established, it could certainly make it clear before the High Court that the power granted under section 51(xxvi) could not be used for the detriment of the Indigenous people. This would be due to the backing which could be highlighted by the Voice regarding the need for upholding the international human rights, aligned with the rights of the Indigenous people. Hence, in situations like Kartinyeri, the Voice could present the weighatge to the views of Kirby JJ and Gaudron, who also believed that this power could not be used for the detriment of the Indigenous people.

Hence, section 51(xxvi), as interpreted by Hayne and Gummow could no longer be done. So, this section could no longer be used for the detriment of the Indigenous people. Further, this would bring clarity to the issue which they raised regarding this benefit to be only given to the Indigenous people. With the new reforms, this power could, to increase its scope, protect the other races too. So, this safeguard could be for any race. Though, for this to happen, the reforms would have to specifically provide this provision

 

Bibliography

Articles/ Books/ Reports

Williams G, Brennan S, and Lynch A, Blackshield and Williams Australian Constitutional Law and Theory (Federation Press, 6th ed, 2014

Kartinyeri v Commonwealth (1998) 195 CLR 337

Australasian Legal Information Institute, Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337; 152 ALR 540; 72 ALJR 722 (1 April 1998) (2017) <https://www.austlii.edu.au/au/cases/cth/HCA/1998/22.html >

Fox B, Essay (2012) <https://www.cefa.org.au/bowen-fox>

Jade, Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 22 (2017) <https://jade.io/article/68043>

Nettheim G, The Hindmarsh Bridge Act Case: Kartinyeri v Commonwealth (2017) <https://www.austlii.edu.au/au/journals/IndigLawB/1998/48.html>

Williams G, Inquiry into issues affecting Indigenous economic development in Queensland (9 November 2010) <https://www.cabinet.qld.gov.au/documents/2011/Feb/Indigenous%20Economic%20Development%20and%20Review%20of%20Wild%20Rivers%20Bill/Attachments/wild-rivers-qg-sub%5B1%5D.pdf>

Williams G, The Races Power And The 1967 Referendum (2007) <https://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/95.pdf>

(1998) 195 CLR 337

George Williams, The Races Power And The 1967 Referendum (2007) <https://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/95.pdf>

Jade, Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 22 (2017) <https://jade.io/article/68043>

Bowen Fox, Essay (2012) <https://www.cefa.org.au/bowen-fox>

George Williams, Inquiry into issues affecting Indigenous economic development in Queensland (9 November 2010) <https://www.cabinet.qld.gov.au/documents/2011/Feb/Indigenous%20Economic%20Development%20and%20Review%20of%20Wild%20Rivers%20Bill/Attachments/wild-rivers-qg-sub%5B1%5D.pdf>

Garth Nettheim, The Hindmarsh Bridge Act Case: Kartinyeri v Commonwealth (2017) <https://www.austlii.edu.au/au/journals/IndigLawB/1998/48.html>

George Williams, Sean Brennan and Andrew Lynch, Blackshield and Williams Australian Constitutional Law and Theory (Federation Press, 6th ed, 2014)

Australasian Legal Information Institute, Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337; 152 ALR 540; 72 ALJR 722 (1 April 1998) (2017) <https://www.austlii.edu.au/au/cases/cth/HCA/1998/22.html >

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