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LAW2111 - Constitutional Law

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Monash University

   

Constitutional Law (LAW 2111)

   

Added on  2020-03-13

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The case of Kartinyeri v Commonwealth(1998) 195 CLR 337(‘Kartinyeri’) is the leading High Court case on the interpretation of section 51(xxvi) of the Constitution in its application to the Indigenous people of Australia. it also discusses the interpretive question concerning the application of section 51(xxvi) to Indigenous people that the High Court had to resolve in Kartinyeri.

LAW2111 - Constitutional Law

   

Monash University

   

Constitutional Law (LAW 2111)

   Added on 2020-03-13

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Running Head: CONSTITUTION LAW
LAW2111 - Constitutional Law_1
1CONSTITUTION LAWIntroduction Section 51(xxvi) of the Constitution of Australia authorises the commonwealth of Australiato erect any special law that applies to any people.1In Kartiniyeri,2the High Court was asked ifsection 51(xxvi) of the Australian Constitution could be a tool for the legislation that adverselydiscriminated on the basis of the race3. The court was split in relation to the decision in this case.Gaudron J provided that the validity of the legislation cannot be questioned and there is nosignificant reason to doubt the validity of the legislation under section 51 (XXVI) of theconstitution. It was in addition, stated by the judge, that not only did section 51 validate the Act,but also provided authority to repeal it partially. The judge did not think that the parliament hadthe power to repeal the Heritage Act4 by comparing it to the Bridge Act and it would thus remaina law. Decision of the judges Gummow and Hayne JJ (paragraph 51-102) (no page number in judgement)The language of the Act was unambiguous. The attempt of making a law to suppress anotherlaw which has been made in accordance to the constitution cannot be held valid as it was in thecase of horta5 and polites6.Brennan Cj and McHugh J (paragraph 2-50) (no page number in judgement)1Australian Constitution s 51.2(1998) 195 CLR 337 (“Kartinyeri”).3(1998) 195 CLR 337 at [1] 4Aboriginal and Torres Strait Islander Heritage Protectin Act 1984 (Cth)5Horta v The Commonwealth (1994) 181 CLR 1836Polites v Commonwealth - [1945] HCA 3
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2CONSTITUTION LAWBrennan Cj and McHugh J provided a negative answer to the reserved question. They furtherprovided that as any contrary agreement was absent, the cost would be have to be endured by theplaintiff. It was further provided by them that Pt II of the heritage act is supported by s 51 (xxvi)the examination of the characteristic of power would be misleading and unnecessary. This isbecause for such reasons false assumptions have to be made namely that section 51 does notprovide the power to amend or real laws and second same characteristics cannot be possessed bylaw enacted to repeal another law7. Kirby J (paragraph 103-177) (page number not provided in judgement)According to Kirby J in Kartiniyeri,it is not possible to surely conclude that the scope of theSection (section 51 xxvi) is absolutely confined to providing benefit to the people of anyparticular race. On the other hand, the respected Judge also opined that that there was no way toproperly come to the conclusion that the power granted under the above mentions section wereconfined to the erection of laws that do not discriminate against the interests of the people of aparticular race on a large scale or extent.8 Although it was a special law it was adverselydiscriminatory and detrimental against the aboriginal people of Australia with respect to theirrace. Therefore the legislation did not fall within the class of provisions Australian constitutionin relation to race power permits. In addition there is no other head of power which has beenfound in the constitution to provide support to the bridge act and thus it is totallyunconstitutional.9Conclusion 7 (1998) 195 CLR 337 at [21] 8Kartinyeri v Commonwealth (1998) 195 CLR 3379 (1998) 195 CLR 337 at [179]
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