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Kartinyeri v Commonwealth: Race Power

   

Added on  2020-03-01

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Constitutional LawResearch Assignment(Student Details: )
Kartinyeri v Commonwealth: Race Power_1

ULURU STATEMENT2Part (a)One of the landmark decisions given by the High Court was the case of Kartinyeri v Commonwealth1 where section 51(xxvi) of the Constitution was interpreted. The case in hand was related to the applicability of this particular section over the Indigenous population in Australia. Under section 51 (xxvi) of the Australian Constitution, the matter which relate to people of one or any race, can be legislated by the Parliament, except for the people who belong to Aboriginal race, irrespective of the state in which they reside. And under this very section, it ismandatory to create special laws for the aboriginal people. Through the insertion of this section in the constitution of Australia, the discrimination against a specific section of the community has been allowed, particularly on the basis of the race of such people2. In Kartinyeri v Commonwealth, the minister held the power of making declarations for the purpose of protecting the areas of Aboriginals. A claim was made by a group containing women regarding the use of island for women’s secret business, and that this business could not be divulged to men. The minister was permitted to put forward his recommendations, only after a woman was given the responsibility of carrying out the enquiry. However, this enquiry had different problems which led to the passing of a legislature by the government for going forward with the bridge and even though there were an objection by the Aboriginals, the go ahead was given. The major point which was raised through this case was the power of the commonwealth to pass an act under its race power, which in reality was detrimental for people belonging to a particular race group.31(1998) 195 CLR 3372 George Williams, The Races Power and the 1967 Referendum (2007) <http://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/95.pdf>3 Jade, Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 22 (2017) <https://jade.io/article/68043>
Kartinyeri v Commonwealth: Race Power_2

ULURU STATEMENT3The decision of the case was not decided due to the division in the decision of the jury. In the view of Hayne and Gummow, such an act could be undertaken without any issues. The reason for this was due to the fact that there was no restriction on power being used for non-detrimental or detrimental purposes, so it could be used for benefit or disadvantage of the particular race. They held that the need for the power to be valid only upon being used for the benefit of people belonging to Aboriginal race was wrong and so, they rejected this notion. They also stated that the constitution did not require the law to distinguish between the needs and responsibilities of different race people. Hayne and Gummow suggested that the limit which had been placed through the quoted section was on the basis of what is “deemed necessary”4. The legislation was not limited through section 51(xxvi) regarding its application on people belonging to a particular race5. Some of the arguments were rejected by Hayne and Gummow. The interpretation of 1997 act was one of the arguments rejected by them regarding the same to be consistent with the standardsset regarding human rights based on the international laws. The argument pertaining to the 1967 referendum where it was asked to drawn the limitations from this referendum, were also rejected by them6. As highlighted earlier, the views of the judges was not unanimous. Kirby JJ and Gaudron were ofthe view that the power was not being used for the proper purpose as the same proved to be of detriment to the racial minority. Hence, in their view, the legislation was not valid. And they did 4 George Williams, Inquiry into issues affecting Indigenous economic development in Queensland (9 November 2010) <https://www.cabinet.qld.gov.au/documents/2011/Feb/Indigenous%20Economic%20Development%20and%20Review%20of%20Wild%20Rivers%20Bill/Attachments/wild-rivers-qg-sub%5B1%5D.pdf>5 Bowen Fox, Essay (2012) <http://www.cefa.org.au/bowen-fox>6 Garth Nettheim, The Hindmarsh Bridge Act Case: Kartinyeri v Commonwealth (2017) <http://www.austlii.edu.au/au/journals/IndigLawB/1998/48.html>
Kartinyeri v Commonwealth: Race Power_3

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