Constitutional Law Case Study

This case study examines the High Court's decision in Kartinyeri v Commonwealth, focusing on the interpretation of Section 51(xxvi) of the Australian Constitution and its implications for Aboriginal rights. The analysis includes the judges' decisions, the potential effects of a proposed referendum, and the broader context of Indigenous equality in Australia.

Running Head: CONSTITUTION LAW

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CONSTITUTION LAW
Introduction
Section 51(xxvi) of the Constitution of Australia authorises the commonwealth of Australia
to erect any special law that applies to any people.1In Kartiniyeri,2the High Court was asked if
section 51(xxvi) of the Australian Constitution could be a tool for the legislation that adversely
discriminated 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 no
significant reason to doubt the validity of the legislation under section 51 (XXVI) of the
constitution. 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 had
the power to repeal the Heritage Act4 by comparing it to the Bridge Act and it would thus remain
a 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 another
law which has been made in accordance to the constitution cannot be held valid as it was in the
case 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 183
6Polites v Commonwealth - [1945] HCA 3

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Brennan Cj and McHugh J provided a negative answer to the reserved question. They further
provided that as any contrary agreement was absent, the cost would be have to be endured by the
plaintiff. 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 is
because for such reasons false assumptions have to be made namely that section 51 does not
provide the power to amend or real laws and second same characteristics cannot be possessed by
law 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 the
Section (section 51 xxvi) is absolutely confined to providing benefit to the people of any
particular race. On the other hand, the respected Judge also opined that that there was no way to
properly come to the conclusion that the power granted under the above mentions section were
confined to the erection of laws that do not discriminate against the interests of the people of a
particular race on a large scale or extent.8 Although it was a special law it was adversely
discriminatory and detrimental against the aboriginal people of Australia with respect to their
race. Therefore the legislation did not fall within the class of provisions Australian constitution
in relation to race power permits. In addition there is no other head of power which has been
found in the constitution to provide support to the bridge act and thus it is totally
unconstitutional.9
Conclusion
7 (1998) 195 CLR 337 at [21]
8Kartinyeri v Commonwealth (1998) 195 CLR 337
9 (1998) 195 CLR 337 at [179]

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In Kartiniyeri, the main issue that the court dealt with was the interpretation of section 51 of
the Australian Constitution with references to part (xxvi) and its application to the indigenous
people. The court has to consider whether the Parliament had the authority to make beneficial or
discriminatory laws. It was found that the Parliament could make any laws for any race whether
they were detrimental or beneficial, it did not matter.
Part B)
The effects of the proposed referendum
The referendum is related to providing power to the aboriginals with respect to monitoring the
use of section 51(xxvi) towards law making. If such referendum is incorporated the first nation
would evidently not agree with the majority towards the enactment of laws as they would only
want laws which are made in their interest and as a result a conclusion would be hard to reach.
The incorporation of the first nation into the constitution would provide that the rights which the
parliament has been provided by section 51(xxvi) of the constitution would be constrained
further.
By having a say in the kind of laws that would have an effect the Indigenous people, it would
help the law makers and interpreters of law understand how to build the pathway to peace with
the aggrieve aboriginals. It will provide as an extrinsic evidence which was missing in
interpretation of s51Kartinyeri.10
Under s 51 (xxvi) the federal governmenthad the power to make national
laws for everyone but excluded the Aboriginals. Aboriginal people will
finally have a right to comments on the laws and contributed to the law that
has previously excli=uding them they can stop legislation that discriminate
10Megan Davis, ‘To Walk in Two Worlds: The Uluru Statement is a clear and urgent call for reform’, The Monthly, July
2017, https://www.themonthly.com.au/issue/2017/july/1498831200/megan-davis/walk-two-worlds

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against them in process of oarliamentary suggestion as they have a voice for
first nation
http://heinonline.org.ezproxy.lib.monash.edu.au/HOL/Page?
handle=hein.journals/fedlr2&div=6&g_sent=1&collection=journals
Indigenous people want equality
Uluru Statement
Referendum of section 51.
section 51 (xxvi) Australian constitution11
http://heinonline.org.ezproxy.lib.monash.edu.au/HOL/Page?handle=hein.journals/
fedlr2&div=6&g_sent=1&collection=journals
11 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 51Legislative Powers Of The Parliament
[See Notes 10 And 11] (2017) Www5.austlii.edu.au
<http://www5.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html>.

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Bibliography
A Articles/Reports
The Referendum Council.(2017). Referendumcouncil.org.au. Retrieved 19 August 2017, from
https://www.referendumcouncil.org.au/
Referendum Council Press Release 26 May 2017:
https://www.referendumcouncil.org.au/sites/default/files/2017-
The Referendum Council, Discussion Paper on Constitutional Recognition of Aboriginal and
Torres Strait Islander Peoples, October 2016
https://www.referendumcouncil.org.au/sites/default/files/2016-12/referendum_council_discussio
n_paper.pdf
The Referendum Council, Final Report of the Referendum Council, June 2017
https://www.referendumcouncil.org.au/final-report
To walk in two worlds. (2017). The Monthly. Retrieved 18 August 2017, from
https://www.themonthly.com.au/issue/2017/july/1498831200/megan-davis/walk-two-worlds
Uluru Statement from the Heart | Referendum Council.(2017). Referendumcouncil.org.au.
Retrieved 19 August 2017, from https://www.referendumcouncil.org.au/event/uluru-statement-
from-the-heart

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Williams, G. (2012). Removing racism from Australia's constitutional DNA. Alternative Law
Journal, 37(3), 151-155.
B Cases
Kartinyeri v Commonwealth (1998) 195 CLR 337