A Bridge 2:2:2 Where?
Kirsty Magarey
Law and Bills Digest Group
6 April 1998
The handing down of Kartinyeri v The Commonwealth [1998] HCA 22
('the Hindmarsh Island Case') on 1 April was attended by intense public
scrutiny. Any simple analysis of the case is difficult since there was
no clearly unifying principle established and the decisions of the judges
were generally technical in nature.
The case decided by a 5:1 majority, with Justice Kirby in dissent, that
the Hindmarsh Island Bridge Act 1997 (Cth) ('the Bridge Act') was
constitutionally valid.
The background to the case has been well publicised over time, including
the 'protracted challenges to the Hindmarsh Island Bridge.'(1) The plaintiffs
in the case were representatives of the Ngarrindjeri people who objected
to the building of the Hindmarsh Island Bridge on the grounds that it
was an area of 'high spiritual importance' and that the building of the
bridge would desecrate Ngarrindjeri traditions, beliefs and culture.
The Bridge Act was passed to exempt a designated area of South Australia
from the operation of the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 (Cth) ('the Heritage Protection Act').(2) The
Heritage Protection Act generally provides mechanisms whereby areas of
particular significance to Aboriginals can be given protection.(3) The
exemptions were designed to facilitate the construction of the bridge
and to curtail the statutory challenges that have been made to its construction.
The plaintiffs argued that the Bridge Act was unconstitutional because
it could not validly be passed under s 51(xxvi) of the Constitution as
amended by the 1967 referendum ('the race power'). Section 51 (xxvi) provides
that the Parliament shall, subject to the Constitution have power to make
laws for the peace, order, and good government of the Commonwealth with
respect to:-
(xxvi) The people of any race for whom it is deemed
necessary to make special laws.
The Judgments
Brennan CJ & McHugh J
Chief Justice Brennan and Justice McHugh restricted themselves to a simple
exposition of the principle that '[t]he power to make laws includes a
power to unmake them'.(4)
In a classic syllogism they concluded that, since the power to make an
Act includes the power to undo that Act, the Bridge Act must be valid
because:
a: the Commonwealth Parliament had the power to enact the Heritage Protection
Act; and
b: the Bridge Act was an 'indirect express amendment' of the Heritage
Protection Act effecting a partial repeal of the Heritage Protection Act;
so
c: the Commonwealth must have power to pass the Bridge Act.
Brennan CJ and McHugh J went on to expressly comment that any consideration
of the nature of the race power in the context of this case inadvisable.
They said giving the races power consideration should be avoided since
the issue did not properly arise.(5)
Gaudron J
Justice Gaudron's consideration of the issues is both more expansive
and more complex. While deciding that the race power may not always
be limited to laws which benefit people of a particular race, Her
Honour also concludes that the wording of the race power does impose limitations
on Parliament's use of the power.(6) In particular she comments that in
today's circumstances 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'.(7)
In the circumstances of the case, Gaudron J reaches precisely the same
conclusions as, and for very similar reasons to, Brennan CJ & McHugh
J - the Bridge Act effects an implied partial repeal of the Heritage Protection
Act and, since Parliament has the power to repeal an Act that it has power
to enact, the Bridge Act is valid.
However close Her Honour's conclusion is to the first judgment, there
are significant differences to her reasoning. She comments that if the
amendment or repeal were to effect the nature of the principal Act so
that it is no longer for the benefit of the particular race in question,
it could be rendered Constitutionally invalid.(8) She also makes it quite
clear that discriminatory laws which violated the basic human rights of
a particular race would be invalid.(9)
Her Honour's consideration of the nature of the race power is partially
obiter, but there are aspects of it which are necessary to her
finding that, in the particular circumstances of the case, the legislation
is valid. To this extent her reasoning finds some common ground with that
of Kirby J's.
Gummow & Hayne JJ
Justices Gummow and Hayne conclude that the races power authorises laws
which were not passed for the benefit of the indigenous races. They left
the question open as to whether there could be laws enacted which might
be invalid if Parliament acted in 'manifest abuse' of its role in deciding
special laws were necessary,(10) commenting that the courts decide whether
the legislature and the executive have complied with the Constitution.(11)
They also remark that the rights in issue are statutory and not common
law rights.(12) They touch on the role of international law in statutory
interpretation and conclude that, since there was no ambiguity in the
terms of the legislation (or in the words of the Constitution), there
was no scope for the principles of international law to be brought into
play to resolve those ambiguities.
Kirby J
Kirby J looks closely at the history of the 1967 referendum which resulted
in the inclusion of Aboriginal people in the races power and concludes
that the referendum was not passed in order that laws could be made for
the detriment of Aboriginal people.
He also explores the parameters of the agreed principle that in 'extreme
cases' laws passed by the Parliament under the races power may be subject
to judicial review. He suggests that under an 'extreme cases' or 'manifest
abuse' test the racist laws of Nazi Germany and apartheid South Africa
could be valid. He concludes that the determination of when extreme racism
warrants intervention would itself involve the judges in making
a political judgment, and that the less invidious approach would be to
rule out any adverse discriminatory legislation.
He also points out that the differences of opinion among the High Court
judges on the meaning of the words in s 51 (xxvi) demonstrate an ambiguity
in the words. This makes it appropriate to apply the principle (referred
to by Gummow and Hayne JJ), that international law should be utilised
to resolve any ambiguity in favour of a meaning consistent with the principles
of international law.
Conclusions
It is difficult to draw many firm conclusions from the Hindmarsh Island
Bridge case. While the majority upholding the legislation was numerically
strong, the reasons given were diverse. On the issue of the nature of
the races power there was essentially a 2:2:2 split, with two judges not
commenting (and in fact urging their judicial colleagues not to pass comment),(13)
two judges deciding the race power could not be said to support only laws
for the benefit of indigenous races,(14) and two judges deciding that,
at this point in Australia's history, the race power could probably not
be used for the detriment of Aboriginal people.(15)
The clearest conclusion that could be drawn is a relatively uncontroversial
one. Four judges decided that the races power could be used not just to
apply laws to all the people of a particular race, but also to apply laws
to a sub-group of a particular race.(16) There was also a clear
affirmation by three of the judges of the 'interpretive principle' - i.e.
that when there is ambiguity in a statute it is to be interpreted, as
far as possible, in conformity with the established rules of international
law,(17) (although the question of whether this principle applies to Constitutional
interpretation was left open by Gummow and Hayne JJ).
Much was made in all the majority judgments of the fact that the Bridge
Act was an (albeit indirect) express amendment of validly enacted legislation.
The five majority judges were all concerned to ensure that Parliament
could undo what it had done - in this case they decided that Parliament's
capacity to amend or repeal legislation based on the race power should
not be unduly hampered.
Perhaps the most interesting conclusion to be drawn from the case is
the affirmation by the Court of Parliament's role in the making of legislation.
Gummow and Hayne JJ refer to the assumption 'that Parliament will act
responsibly in the exercise of its powers.'(18) In the context of any
tension between the role of the Courts and the legislature,(19) the Court
has reaffirmed the principle that, to the extent allowable by the Constitution,
the Parliament which is 'accountable to the people'(20) should make the
political judgments as to what laws are appropriate.(21)
- Per Kirby J at para 105.
- Bills Digest No. 50, 1996-97.
- The Heritage Protection Act was the subject of a Review, tabled in
Parliament on 8 October 1996: Aboriginal and Torres Strait Islander
Heritage Protection Act 1984-Review of the Act-Report by Hon. Elizabeth
Evatt AC.
- Kartinyeri v The Commonwealth [1998] HCA 22 at para 13.
- ibid., at para 20.
- ibid., at para 34.
- ibid., at para 44.
- ibid., at para 47.
- ibid., at para 40.
- ibid., at para 82.
- ibid., at para 105.
- ibid., at para 72.
- Brennan CJ & McHugh J at para 20.
- Gummow and Hayne JJ at para 91.
- Gaudron J & Kirby J (the principle is stated in terms of the lowest
common denominator between the two judges).
- Per Gaudron J at para 46, per Gummow & Hayne JJ at para 75ff and
per Kirby J at para 121.
- Per Gummow and Hayne JJ at para 95ff and per Kirby J at para 166.
- ibid., at para 88.
- See for instance 'Who's the Boss? The Judiciary, the Executive, the
Parliament and the Protection of Human Rights', Kristen Walker, University
of Western Australia Law Review, 1995, vol. 25, no. 2, p. 238.
- Op cit at para 150
- Per Brennan CJ and McHugh J at para 12, Gaudron J at para 38, Gummow
and Hayne JJ at para 98 and Kirby J at para 150.
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