Kartinyeri & Anor v Commonwealth of Australia

The applicants, Kartinyeri and another, sought to challenge the validity of the Hindmarsh Island Bridge Act 1997 (Cth) (the Act) in the High Court of Australia. The dispute concerned the construction of a bridge to Hindmarsh Island in South Australia, which the applicants, as Ngarrindjeri elders, claimed would desecrate sacred sites and violate their traditional laws and customs. They sought to prevent the construction of the bridge.

The primary legal issue before the Court was whether the Act, which was enacted to overcome a previous injunction preventing the bridge's construction, was a valid exercise of the Commonwealth Parliament's legislative power. Specifically, the applicants argued that the Act was invalid because it was purportedly enacted for the purpose of acquiring land for the purposes of the Commonwealth, but that this purpose was not genuine and was merely a pretext to override the injunction and facilitate the bridge's construction. They contended that the Act was therefore beyond the scope of the Commonwealth's constitutional powers, particularly section 51(xxxi) of the Constitution, which governs the acquisition of property.

Brennan CJ, in chambers, considered the applicants' application for an interlocutory injunction. His Honour noted that the validity of the Act was a serious question to be tried and that the applicants had raised arguable grounds for their challenge. However, His Honour ultimately refused to grant the interlocutory injunction, finding that the balance of convenience did not favour its grant. The applicants had not demonstrated a sufficient likelihood of success on the merits to justify restraining the Commonwealth from proceeding with the Act, and the potential prejudice to the Commonwealth and others from an injunction outweighed the prejudice to the applicants from its refusal.