Kartinyeri v Commonwealth (1998) 195 CLR 337: A Case of Constitutional Law

Running head: CONSTITUTIONAL LAW
Constitutional Law
Name of the Student
Name of the University
Author Note

1CONSTITUTIONAL LAW
Facts and Legal issues of the case:
The case of Kartinyeri v Commonwealth (1998) 195 CLR 337, was regarding an
Australian legal and political controversy involving the clash of religious practices and property
rights of the Indigenous communities in Australia. From the very beginning, the facts of the case
revolved around the construction of a bridge to Hindmarsh Island near the adjoining areas of
Hindmarsh Island located near South Australia. The intention was to replace the age-old cable
ferry by proposing a marina development. As a result of such proposal, the opposition of the
local residents, indigenous leaders and various environmental activists were suddenly attracted.
The nature of the case is such that it was associated with controversies of higher level as it
involved concerns regarding the upliftment of indigenous rights and interests within the
community of Australia. In this case, it was observed that, in the year of 1977, two developers of
Adelaide Tom and Wendy have purchased a land measuring 74 acres on Hindmarsh Island in the
estuary of river Murray. Thereafter, they received further approval for the construction of a
marina, developing car parking and residential projects. After the partial completion of the
marina, the developers sought for an approval for the purpose of increasing the size of the
project. In such process, they became financially unstable and the project was financed by the
government authorities. In this regard, the indigenous inhabitants of the islands rigorously
opposed to the funding practices on the part of the government which would largely benefit the
developers. In their opinion, with the development of the project, it would create unfavourable
impact on the natural environment. In this regard, they applied for an order for opposition to the
Federal government concerning their opposition to the development of the project.
In the case of Kartinyeri v Commonwealth (1998) 195 CLR 337, it was decided that
legislation involving racial discrimination can be considered to be constitutionally valid. The

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important subject of legal battle was regarding the newly enumerated “Secret women’s
business.” The women belonging to the Indigenous tribal group came forward for the purpose of
raising their voice against such claims. In spite of all such attempts to opposition by the native
community, the Hindmarsh Island Bridge Act (1997) has been passed by the Howard
Government and as a result of it the construction project was carried on an was ultimately
completed in the year 2001.
Reasoning of the High Court:
The reasoning on the part of both the majority and minority judges of the High Court of
Australia can be stated in regard to the functioning and the requirements of the Hindmarsh Island
Bridge Act 1997 (Cth). In this regard, the opinion of the majority of the judges were regarding
the fact that, from the very beginning, the provisions of the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984 (Cth) is not applicable to the construction of the bridge in the
Hindmarsh island. In this regard, it is noteworthy to mention here that, the applicants who have
previously sought protection for the concerned area under the provisions of the Aboriginal and
Torres Strait Islander Heritage Protection Act 1984 (Cth) shall be considered to be invalid. In
this context, mention has been made regarding the provisions of the Section 51(xxvi) of the
Commonwealth Constitution that has entrusted an authority on the part of the Parliament to
formulate legal framework for any people or race if it deems necessary. In regard to this, the
applicants presented their arguments regarding the fact that, the provisions of Section 51(xxvi) of
the Commonwealth Constitution are such that it is confined to the authorization of laws rather
than emphasizing upon the benefit of the individual and any particular race. The majority of the
judges did not make any decision regarding the limitation scope of the provisions of Section
51(xxvi) of the Commonwealth Constitution. In fact the Hindmarsh Island Bridge Act 1997