Kartinyeri v Commonwealth of Australia

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.