- In 1994, a group of Ngarrindjeri women elders claimed that a proposed bridge could not be built over Hindmarsh Island because that site was sacred to them for reasons that could not be disclosed.
- In 1997, the Howard Government passed the Hindmarsh Island Bridge Act 1997 (Cth) (the Act) which authorised the building of the bridge.
- Section 51(xxvi) of the Commonwealth Constitution authorises Parliament to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’.
- In 1967, following a constitutional referendum, the words “other than the aboriginal race in any state” had been deleted from section 51(xxvi).
- Dr Kartinyeri and Neville Golan appealed to the Hight Court, submitting that the Act was invalid. The applicants submitted that section 51(xxvi) was restricted so as to only authorise laws for the benefit of “the people of any race” generally, or, particularly, for members of ‘”the aboriginal race”.
- Was section 51(xxvi) was restricted so as to only authorise laws for the benefit of “the people of any race” generally, or, particularly, for members of ‘”the aboriginal race”.
- Brennan CJ and McHugh J did not decide whether section 51(xxvi) was subject to any limitation. Their Honours treated the Act as an amendment to the Aboriginal Heritage Act 1984 (Cth) which was, itself, supported by section 51(xxvi). They held that the power to make a law necessarily includes the power to repeal it or to amend it. Accordingly the Act was valid.
- Gaudron J considered whether the Act was restricted to the applicant’s proposed limitation. Her Honour noted that the original intention was to authorise laws which would discriminate against people of particular ‘coloured’ or ‘alien races’. But the power in section 51(xxvi) is not a bare power, and the words “for whom it is deemed necessary to make special laws must be given some operation.”
- Gummow and Hayne JJ argued that there is no Constitutional requirement that a Commonwealth law may not distinguish “between the different needs or responsibilities of different people or different localities”.
- Kirby J dissented – his Honour agreed with majority that a section 51(xxvi) law did not need to be directed to all members of a race but might validly deal with a sub-group; this conclusion was fortified by the reference to ‘special laws’.
- However, Kirby J (after considering the 1967 referendum) held that section 51(xxvi) did not allow for laws to be made for the “detriment” to the Aboriginal people.
“… it may be that the character of a law purportedly based on s 51(xxvi) will be denied to a law enacted in “manifest abuse” of that power of judgment.”
(Gummow and Hayne JJ at page 372)
“…sometimes, words themselves acquire new meaning from new circumstances. The very application of broad language to changing facts demands a measure of accommodation. Moreover, new, and completely unpredictable matters may arise which, when measured against the text, are held to fall within a given head of power. Each generation reads the Constitution in the light of accumulated experience. Each finds in the sparse words ideas and applications that earlier generations would not have imagined simply because circumstances, experience and common knowledge did not then require it.”
(Kirby J, in dissent, at page 400)
The full text is available here: https://jade.io/summary/mnc/1998/HCA/22
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