Constitutional Law Research Assignment: Uluru Statement and Race Power

This law assignment delves into the landmark case of Kartinyeri v Commonwealth, analyzing its interpretation of section 51(xxvi) of the Australian Constitution, specifically the race power. The assignment examines the arguments presented by the judges, highlighting the division in the court's decision regarding the application of the race power concerning Aboriginal Australians. It explores the implications of the case on the protection of Indigenous rights and the scope of the constitution. Furthermore, the assignment discusses the potential impact of a successful referendum establishing a First Nations Voice, analyzing how it could influence the interpretation of section 51(xxvi) and align with international human rights standards. The analysis includes a review of relevant articles, books, reports, and legal cases, providing a comprehensive overview of the legal and constitutional issues at hand.

Constitutional Law
Research Assignment
21-Aug-17
(Student Details: )

ULURU STATEMENT 2
Part (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 is
mandatory 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.3
1 (1998) 195 CLR 337
2 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>

ULURU STATEMENT 3
The 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 standards
set 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 of
the 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>

ULURU STATEMENT 4
put forward the suggestion of the limitations on the basis of section 51(xxvi)7. It was the view of
Kirby that there was need under the law to direct the members of a particular race; however,
there was still a need to deal in a valid manner with the subgroups. McHugh and Brennan were
the remaining two judges of this case who did not take into consideration the scope of the power.
A decision regarding the constitutions’ quoted section being subjected to these limitations was
not undertaken by them. The interpretative principle discussed earlier was reaffirmed by the
court. The crux of this case and the guidance which it offers for similar situations is that where
the constitution is ambiguous, the universal basic rights have to be complied with8.
Part (b)
A successful referendum would make way for changes to be brought to the Australian
Constitution. Through this, there would be an establishment of the First nations Voice of the
Aboriginal and Torres Strait Islanders who would be given the responsibility of advising the
Parliament in all such issues which relate to making of law in the areas which touch the
Indigenous people, and which have been covered under the Final Report of the Referendum
Council and the Uluru Statement from the Heart. This would result in a key change being made
to the way in which the section 51 (xxvi) would be interpreted, which right now, is applicable in
the nation.
The key difference which would be made owing to this would be a unanimous decision being
attained in the matter of Kartinyeri v Commonwealth. The First Voice could clearly present
before the Australian High Court that the powers which have been given pursuant to the quoted
7 George Williams, Sean Brennan and Andrew Lynch, Blackshield and Williams Australian Constitutional Law and
Theory (Federation Press, 6th ed, 2014)
8 Australasian Legal Information Institute, Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337; 152 ALR
540; 72 ALJR 722 (1 April 1998) (2017) <http://www.austlii.edu.au/au/cases/cth/HCA/1998/22.html >

ULURU STATEMENT 5
section, could not be used in a manner which proves to be a disadvantage for the Aboriginals.
This is due to the fact that the First Voice would be able to highlight the need for conforming
with the international human rights, which relate to the Aboriginals. So the cases like Kartinyeri
v Commonwealth, would become decisive and would also provide the required backing to the
ideas presented by Kirby JJ and Gaudron, who also supported the notion that the powers under
the quoted section could not be used in a manner which proves to be detrimental for the
Aboriginals. The scope for protection of other races, apart from the Aboriginals, could also be
enhanced through this action.

ULURU STATEMENT 6
Bibliography
A. Articles/ Books/ Reports
Williams G, Brennan S, and Lynch A, Black shield and Williams Australian Constitutional Law
and Theory (Federation Press, 6th end, 2014)
B. Cases
Kartinyeri v Commonwealth (1998) 195 CLR 337
C. Others
Australasian Legal Information Institute, Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR
337; 152 ALR 540; 72 ALJR 722 (1 April 1998) (2017)
<http://www.austlii.edu.au/au/cases/cth/HCA/1998/22.html >
Fox B, Essay (2012) <http://www.cefa.org.au/bowen-fox>
Jade, Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 22 (2017)
<https://jade.io/article/68043>
Nettheim G, The Hindmarsh Bridge Act Case: Kartinyeri v Commonwealth (2017)
<http://www.austlii.edu.au/au/journals/IndigLawB/1998/48.html>
Williams G, Inquiry into issues affecting Indigenous economic development in Queensland (9
November 2010) <https://www.cabinet.qld.gov.au/documents/2011/Feb/Indigenous

ULURU STATEMENT 7
%20Economic%20Development%20and%20Review%20of%20Wild%20Rivers%20Bill/
Attachments/wild-rivers-qg-sub%5B1%5D.pdf>
Williams G, The Races Power and the 1967 Referendum (2007)
<http://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/95.pdf>