Kartinyeri v The Commonwealth

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.