CALLINAN J. The plaintiffs submit that I should not sit as a member of the Court in this case. They contend that aspects of a joint opinion provided by Mr Traves of the Queensland Bar and me, addressed to the Senate Legal and Constitutional Affairs Committee in relation to the Hindmarsh Island Bridge Bill 1996 (Cth) prejudges the issues to be determined by the Court in this matter.
No formal motion has been filed or is necessary. The defendant has properly taken no adversarial stance on the issue but has made submissions drawing attention to some of the relevant authorities and considerations. I appreciate very much the courteous and helpful way in which the matter has been raised and debated by the parties.
At the outset, I should state my recollection of the circumstances in which I came to give the opinion that I did. I have not been able at this stage to locate any documents that I may have had in my possession when I gave the opinion. I must however have had a copy of each of the proposed pieces of legislation (the Hindmarsh Island Bridge Bill and the Opposition amendment) referred to in the opinion.
I believe that events occurred in this way. Senator the Honourable John Herron, the Minister responsible for Aboriginal Affairs informed me orally that the Government wished to pass the Hindmarsh Island Bridge Bill; that the Opposition proposed an amendment to the Government's Bill; and that a Senate Committee was considering the validity of the Government's Bill. The Minister asked me whether I was prepared to provide a submission to the Committee. The specific matters to which he referred are identified in the first paragraph of the opinion which I quote:
"If passed, the Hindmarsh Island Bridge Act exempts the Hindmarsh Island bridge and pit area as defined in the bill from further action under the Heritage Protection Act by the Senate Legal and Constitutional Affairs Committee. We are asked to advise whether the Government may so legislate to remove any further obstruction to the building of the Hindmarsh Island bridge: whether, if the Act is capable of being construed as to give rise to racial discrimination it might on that account be successfully challenged, and, if the Act has retrospective effect, whether it might on that ground also be successfully challenged."
My best recollection is that I told the Minister that I was under some pressure from other work but that I could, in collaboration with junior counsel, provide an opinion. Although of course I appreciated that the Minister would certainly hope that my opinion would support the Bill, I told him that I could not predict then, what conclusion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kartinyeri v Commonwealth of Australia

Details

AGLC: Kartinyeri v Commonwealth [1998] HCA 52
Case: [1998] HCA 52
Decision Date: 5 February 1998

CaseChat Overview and Summary

The applicants, members of the Ngarrindjeri people, sought to challenge the validity of the Hindmarsh Island Bridge Act 1997 (Cth) (the Act) in the High Court of Australia. The Act was passed by the Commonwealth Parliament to enable the construction of a bridge to Hindmarsh Island, overriding a previous prohibition on its construction. The applicants contended that the Act was invalid because it discriminated against them on the basis of their race, contrary to section 9 of the Racial Discrimination Act 1975 (Cth).

The central legal issue before the Court was whether the Hindmarsh Island Bridge Act 1997 (Cth) was invalid by reason of contravening section 9 of the Racial Discrimination Act 1975 (Cth). Specifically, the Court had to determine if the Act conferred upon the Commonwealth Parliament power to make laws that were discriminatory on the ground of race, and if so, whether the Act itself constituted such a discriminatory law.

Callinan J, in his reasons, considered the nature of the power conferred by section 51(xxvi) of the Constitution, which allows the Commonwealth Parliament to make laws with respect to "the people of any race, for whom it is deemed necessary to make special laws." His Honour concluded that this power, as interpreted by the High Court in previous decisions, permitted Parliament to make laws that were discriminatory on the ground of race, provided they were for the benefit of the people of that race. However, Callinan J found that the Act did not discriminate against the applicants on the ground of race in a manner prohibited by section 9 of the Racial Discrimination Act 1975 (Cth). His Honour reasoned that the Act was enacted to overcome a specific impediment to the bridge's construction, and while it affected the applicants, it did not do so by reason of their race in a way that contravened the Racial Discrimination Act.

The application was dismissed.

Orders