BRENNAN CJ, GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ
DOREEN KARTINYERI AND ANOR PLAINTIFFS
AND
THE COMMONWEALTH OF AUSTRALIA DEFENDANT
Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 22
1 April 1998
ORDER
Order that the question reserved be answered as follows: on the facts pleaded in the Further Amended Statement of Claim and admitted in the Amended Defence, the question reserved for the consideration of the Full Court -
"Is the Hindmarsh Island Bridge Act 1997 or any part thereof invalid in that it is not supported by s 51(xxvi) of the Constitution or any other head of Commonwealth legislative power?"
Answer: No.
Order that the plaintiffs pay the defendant's costs.
Reserve the question of costs to be paid by the interveners and direct that any application made for an order against the interveners be made on notice filed and served within 14 days supported by written submissions, submissions in reply being filed within 10 days thereafter.
2.
Representation:
J J Spigelman QC and S W Tilmouth QC with S J Kenny and G J Williams for the plaintiffs (instructed by Camatta Lempens Pty Ltd)
G Griffith QC with M A Perry and W A Harris for the defendant (instructed by Australian Government Solicitor)
Interveners:
R J Meadows QC with G R Donaldson intervening on behalf of the Attorney-General for Western Australia (instructed by Crown Solicitor for Western Australia)
B M Selway QC with M F Johns intervening on behalf of the Attorneys-General of South Australia and the Northern Territory (instructed by Crown Solicitor for South Australia and Solicitor for the Northern Territory)
L S Katz SC with R P L Lancaster intervening on behalf of the Attorney-General for New South Wales (instructed by Crown Solicitor for New South Wales)
D F Jackson QC with N Perram intervening on behalf of Kebaro Pty Ltd, Thomas Lincoln Chapman and Wendy Elizabeth Chapman (instructed by Lynch & Meyer)
R S McColl SC intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by S Roberts, Solicitor, Human Rights and Equal Opportunity Commission)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Kartinyeri & Anor v The Commonwealth of Australia
Constitutional law (Cth) – Power of the Parliament to make laws with respect to "the people of any race for whom it is deemed necessary to make special laws" – Nature and extent of power.
Constitutional law (Cth) – Characterisation – Amendment or partial repeal – Operation and effect.
BRENNAN CJ AND McHUGH J. The plaintiffs, by their Further Amended Statement of Claim, seek a declaration that the Hindmarsh Island Bridge Act 1997 (Cth) ("the Bridge Act") is invalid. The Commonwealth by…
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.
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Details
AGLC
Kartinyeri v The Commonwealth [1998] HCA 22
Case
[1998] HCA 22
Decision Date
CaseChat Overview and Summary
In *Kartinyeri v The Commonwealth*, the plaintiffs challenged the constitutional validity of the *Hindmarsh Island Bridge Act 1997* (Cth). The dispute centred on whether the Act was supported by section 51(xxvi) of the Australian Constitution, which grants the Parliament of the Commonwealth power to make laws with respect to "the people of any race for whom it is deemed necessary to make special laws". The case was heard by the High Court of Australia.
The primary legal issue before the Court was whether the *Hindmarsh Island Bridge Act 1997* was invalid because it was not supported by section 51(xxvi) of the Constitution or any other head of Commonwealth legislative power. This required the Court to consider the nature and extent of the Parliament's power under section 51(xxvi) and whether the Act, in its operation and effect, constituted an amendment or partial repeal of earlier legislation in a manner that was constitutionally permissible.
The Court reasoned that while the *Hindmarsh Island Bridge Act 1997* could be seen as indirectly amending or repealing the *Racial Discrimination Act 1975* (Cth) or other heritage protection legislation, the principle that "what Parliament may enact it may repeal" could not override constitutional limitations. Specifically, the Court held that section 51(xxvi) does not permit laws that are detrimental to, or discriminate against, people by reference to their race. The Act was found to be detrimental to and adversely discriminatory against people of the Aboriginal race by reference to their race, and therefore fell outside the scope of laws permitted by the race power. As no other head of power was advanced to support the Act's validity, the Court concluded it was wholly unconstitutional.
The Court ordered that the question reserved be answered "Yes", meaning the *Hindmarsh Island Bridge Act 1997* was invalid. The Court also ordered that the plaintiffs recover the defendant's costs, with a separate reservation regarding the costs of interveners.
Orders
Orders of the court
1.
Order that the question reserved be answered as follows: on the facts pleaded in the Further Amended Statement of Claim and admitted in the Amended Defence, the question reserved for the consideration of the Full Court -
"Is the Hindmarsh Island Bridge Act 1997 or any part thereof invalid in that it is not supported by s 51(xxvi) of the Constitution or any other head of Commonwealth legislative power?"
Answer: No.
2.
Order that the plaintiffs pay the defendant's costs.
3.
Reserve the question of costs to be paid by the interveners and direct that any application made for an order against the interveners be made on notice filed and served within 14 days supported by written submissions, submissions in reply being filed within 10 days thereafter.
2.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
BRENNAN CJ
HUGH J
GAUDRON J
(dissent)
GUMMOW AND HAYNE JJ
In the case of the Bridge Act, there is no textual modification and no express statement of a parliamentary purpose to amend or repeal the earlier law. It effects an "indirect express amendment"[317] of the Heritage Protection Act. The Commonwealth therefore argued that, under the maxim "what Parliament may enact it may repeal"[318], if the Heritage Protection Act is constitutionally valid (as was conceded by all parties), the Bridge Act must also be valid[319]. There is undoubtedly some force in this argument. But in my view, the maxim cannot be sustained in the face of a constitutional provision that does not permit laws made to the detriment of, or which discriminate against, a people by reference to their race. The aphorism that "what Parliament may enact it may repeal" must give way to the principle that every law made by the Parliament under the Constitution must be clothed in the raiments of constitutional validity[320]. Were it otherwise, repeal or amendment could easily become a stratagem adopted by a legislature eager to circumvent the proper scrutiny of constitutional validity. The repeal/amendment point, therefore, fails.[317]Bennion, Statutory Interpretation, 3rd ed (1997) at 214.[318] The Queen v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 226.[319] See Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 472.[320] cf South Australia v The Commonwealth (1942) 65 CLR 373 at 411 per Latham CJ.Conclusion and orders The Bridge Act does not answer to the description of a law with respect to the people of any race for whom it is deemed necessary to make special laws. It is a special law; that is true. But it is detrimental to, and adversely discriminatory against, people of the Aboriginal race of Australia by reference to their race. As such it falls outside the class of laws which the race power in the Australian Constitution permits. No other head of power being propounded to support the validity of the Bridge Act, it is wholly unconstitutional. The question should be answered: Yes. The Commonwealth should pay the plaintiffs' costs.
Ratio Decidendi
Legal Principle Established
Established by:
BRENNAN CJ,
HUGH J,
GUMMOW AND HAYNE JJ