Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337; 152 ALR 540; 72 ALJR 722 (1 April 1998)
Last Updated: 1 April 1998
HIGH COURT OF AUSTRALIA
DOREEN KARTINYERI AND ANOR PLAINTIFFS
AND
THE COMMONWEALTH OF
AUSTRALIA DEFENDANT
1 April 1998
1. Order that the question reserved be answered as follows: on the facts pleaded in the Further Amended Statement of Claim and admitted
in the Amended Defence, the question reserved for the consideration of the Full Court -
"Is the Hindmarsh Island Bridge Act 1997 or any part thereof invalid in that it is not supported by s 51(xxvi) of the Constitution or any other head of Commonwealth legislative power?"
Answer: No.
2. Order that the plaintiffs pay the defendant's costs.
3. Reserve the question of costs to be paid by the interveners and direct that any application made for an order against the interveners
be made on notice filed and served within 14 days supported by written submissions, submissions in reply being filed within 10 days
thereafter.
Representation: J J Spigelman QC and S W Tilmouth QC with S J Kenny and
G J Williams for the plaintiffs (instructed by Camatta Lempens Pty Ltd)
G Griffith QC with M A Perry and W A Harris for the defendant (instructed by Australian Government Solicitor)
Interveners:
R J Meadows QC with G R Donaldson intervening on behalf of the Attorney-General for Western Australia (instructed by Crown Solicitor
for Western Australia)
B M Selway QC with M F Johns intervening on behalf of the Attorneys-General of South Australia and the Northern Territory (instructed
by Crown Solicitor for South Australia and Solicitor for the Northern Territory)
L S Katz SC with R P L Lancaster intervening on behalf of the Attorney-General for New South Wales (instructed by Crown Solicitor
for New South Wales)
D F Jackson QC with N Perram intervening on behalf of Kebaro Pty Ltd, Thomas Lincoln Chapman and Wendy Elizabeth Chapman (instructed
by Lynch & Meyer)
R S McColl SC intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by S Roberts, Solicitor, Human
Rights and Equal Opportunity Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law
Reports.
Kartinyeri & Anor v The Commonwealth of Australia
Constitutional law (Cth) - Power of the Parliament to make laws with respect to "the people of any race for whom it is deemed necessary
to make special laws" - Nature and extent of power.
Constitutional law (Cth) - Characterisation - Amendment or partial repeal - Operation and effect.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 3, 4, 9, 10, 11, 12, 13, 15, 16, 18, 21ZA, 22, 26.
The Constitution, ss 51(xxvi), 128.
Hindmarsh Island Bridge Act 1997 (Cth), ss 3, 4, Sched 1.
The admitted paragraphs of the Further Amended Statement of Claim read as follows: 3. On 9 July 1994, in response to an application made by the Aboriginal Legal Rights Movement on behalf of the Lower Murray Aboriginal
Heritage Committee, the Minister for Aboriginal and Torres Strait Islander Affairs of the Commonwealth of Australia, made a declaration
published in the Commonwealth of Australia Gazette (No S270) on 10 July 1994, under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ... that the area described in Schedule 1 thereof ('the said area') was a significant Aboriginal area under threat of injury or desecration
within the meaning of the Act, and that for the preservation and protection of the said area the acts specified in Schedule 2 thereof
must not be carried out in the said area for a period of 25 years from 10 July 1994. Schedule 1 and 2 to the said declaration provided
respectively as follows: AREA
The area in the State of South Australia, County of Hindmarsh, Hundreds of Goolwa and Nangkita, and which is shown on Map Sheet No.
6626-3 published by AUSLIG, as bounded by a straight line between Australian Map Grid Coordinates Zone 54 299000 East 6068870 North
thence south-east to 299650 East 6068360 North thence south-west to 299629 East 6068270 North thence north-west to 298959 East 6068750
North thence to rejoin at the commencement point.
...
SCHEDULE 2 (a) bulldozing, grading, drilling or excavating; and
(b) any act done for the purpose of constructing a bridge in any part of the area.' 5. On the 19th day of December 1995 the plaintiffs, and others, applied to the Minister for Aboriginal and Torres Strait Islander
Affairs of the Commonwealth of Australia, for a declaration under Section 10 of the Act, inter alia, to protect and preserve the land and waters within the said area.
7. The application referred to in paragraph 5 above was made upon the grounds, inter alia, referred to in paragraph 6 above.[1]
8. The application referred to in paragraph 5 superseded the application referred to in paragraph 3.
9. On 22 December 1995 Senator Rosemary Crowley was designated to act on behalf of the said Minister for the purpose of determining
the application referred to in paragraph 5 hereof under the Act. Letters from the solicitor acting for the applicants to Senator
Crowley dated 4 and 11 January 1996 were treated as forming part of the application.
10. On or about 16 January 1996 the said Senator Crowley purported to nominate Justice Jane Hamilton Mathews as a Reporter pursuant
to Section 10 of the Act.
11. On 6 September 1996 this Honourable Court declared that the nomination and/or appointment referred to in paragraph 10 hereof was
ineffective to authorise the said Justice Mathews to make a Report in satisfaction of Section 10(1)(c) of the Act.[2]
16. This matter is within the original jurisdiction of the Court as it is a matter arising under the Constitution and involves the interpretation of the Constitution." In addition to the plaintiffs' claim for a declaration that the Bridge Act is invalid, they claim a declaration that the Bridge Act does not operate to prevent the determination of the application referred to in pars 5 and 9 from being determined under and in accordance
with the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ("the Heritage Protection Act").
The legislation
(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation
or protection of a specified area from injury or desecration; (ii) that it is under threat of injury or desecration; (d) has considered such other matters as he thinks relevant;
he may make a declaration in relation to the area." Section 3(2) expounds the meaning of injury or desecration: (ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition
is adversely affected; or
(iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or
and references in this Act to injury or desecration shall be construed accordingly."
Sub-sections (2), (3) and (4) of s 10 provide as follows: (3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he shall: (ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than
14 days after the date of publication of the notice in the Gazette; and
(iii) specifying an address to which such representations may be furnished; and (b) the nature and extent of the threat of injury to, or desecration of, the area;
(c) the extent of the area that should be protected;
(d) the prohibitions and restrictions to be made with respect to the area;
(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal
or Aboriginals referred to in paragraph (1)(a);
(f) the duration of any declaration;
(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies
available under any such law;
(h) such other matters (if any) as are prescribed." An application in respect of an area may be made by or on behalf of any Aboriginal or group of Aboriginals whether or not the applicant
has or the applicants have a particular connection with or responsibility for the area. The Minister has a discretion whether or
not to make a declaration[3]. Section 15 requires a declaration to be laid before each House of Parliament which may disallow the declaration in the same way
as it may disallow a regulation made under a statutory power[4]. The Minister may revoke or vary a declaration at any time[5].
(b) work or other activities in that area preparatory to, or associated with, that construction;
(c) maintenance on, or repairs to, the bridge and associated works;
(d) use of the bridge and associated works;
(e) the removal of materials from, or dumping of materials in, the pit area in connection with any of the activities mentioned in
paragraphs (a),(b) and (c). The "Hindmarsh Island bridge area" is defined[8] to include the area described in the schedule set out in par 3 of the Further Amended Statement of Claim. The Bridge Act commenced on 22 May 1997.
The character of the Bridge Act 1958
To ascertain the nature of the rights, duties, powers and privileges which an Act changes, regulates or abolishes, its application
to the circumstances in which it operates must be examined[11].
In determining the constitutional validity of an Act that reduces the ambit of an earlier Act, it is immaterial that the text of
the earlier Act remains unchanged. It is the operation and effect in substance of the impugned Act which are relevant to its validity,
whether or not the text of the earlier Act is changed.
The legislative power to "make laws with respect to" a subject matter
Blackstone adds[22]:
That must be so because, as Blackstone points out[29]: If the power to make a law did not include the power to repeal it, a law once enacted would be entrenched and beyond the power of
the Parliament to revoke.
Of course, a connection may be "so insubstantial, tenuous or distant ... that [the law] ought not to be regarded as enacted with
respect to the specified matter falling within the Commonwealth power" (to adopt the words of Dixon J in Melbourne Corporation v The Commonwealth[35]).
Thus the Bridge Act is itself a law with respect to the subject matter of s 51(xxvi).
(Cth) ("the Bridge Act") is invalid. Pleadings were filed and, thereafter, the Chief Justice reserved for the consideration of the Full Court the question
whether, on the facts admitted in those pleadings, "the [Bridge Act] or any part thereof [is] invalid in that it is not supported
by s 51(xxvi) of the Constitution or any other head of Commonwealth legislative power"[38]. It is not in issue that, if not supported by s 51(xxvi), the Bridge Act is not supported by any other head of power.
" On the facts pleaded in the Further Amended Statement of Claim and admitted in the Amended Defence annexed hereto, there be reserved
for the consideration of the Full Court the following question:-
[I]s the Hindmarsh Island Bridge Act 1997 or any part thereof invalid in that it is not supported by s 51(xxvi) of the Constitution or any other head of Commonwealth legislative power?"
"1. The Ngarrindjeri people are members of the Aboriginal race.
'SCHEDULE 1
PROHIBITED ACTS
Any act that will, or is likely to, injure or desecrate any part of the area described in Schedule 1, including:
4. By order of the Federal Court made on 15 February 1995 the declaration referred to in paragraph 3 hereof was set aside. Execution
of the orders was stayed until further notice and the stay was lifted on 24 July 1996.
" Where the Minister:
(b) is satisfied:
(i) that the area is a significant Aboriginal area; and
(c) has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report
and any representations attached to the report; and
" For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:
(a) in the case of an area:
(i) it is used or treated in a manner inconsistent with Aboriginal tradition;
(b) in the case of an object - it is used or treated in a manner inconsistent with Aboriginal tradition; " (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.
(a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:
(4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters: (i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;
(b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report. (a) the particular significance of the area to Aboriginals;
"4 Provisions facilitating construction etc of the bridge
(1) The Heritage Protection Act does not authorise the making of a declaration in relation to the preservation or protection of an area or object from any of the
following activities:
(2) The Heritage Protection Act does not authorise the Minister to take any action after the commencement of this Act in relation to an application (whether made
before or after the commencement of this Act) that relates (wholly or partly) to activity covered by paragraph (1)(a),(b),(c),(d)
or (e)." (a) the construction of a bridge, and associated works (including approaches to the bridge), in the Hindmarsh Island bridge area;
"Under [s 51] the question is always one of subject matter, to be determined by reference solely to the operation which the enactment
has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, 'with respect to',
one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an inference so incidental
as not in truth to affect its character?" (Emphasis added.)
"For some purposes it may sometimes be relevant to distinguish between a repeal and an amendment, or a modification, as the latter
is sometimes called. But an amendment which permanently reduces the ambit of any of the provisions of an Act involves a repeal of
it in part. That is because after the amendment the statute no longer operates as it formerly did: and the only way by which a
statute which has come into operation can cease to operate is by repeal, express or implied; or by its expiry in the case of a temporary
statute; or by something that was made a condition of its continued operation coming to an end. An Act that excludes from the operation
of a former Act some matter formerly within its purview thus repeals it pro tanto, that is to say 'in part'. Provisions of a later
act which are inconsistent and irreconcilable with the provisions of a former Act dealing with the same subject matter are thus an
implied repeal of them. That has been recognized in this Court since its early days: see Goodwin v Phillips[15]."
" Of the power and jurisdiction of the parliament, for making of laws in proceeding by bill, it is so transcendent and absolute, as
it cannot be confined either for causes or persons within any bounds."
" The power and jurisdiction of parliament, says Sir Edward Coke[23], is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. ... It hath sovereign
and uncontrolable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of
laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this
being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution
of these kingdoms."
"It is neither a constitutional provision nor an entrenched law. Its authority is that of an Act of the Parliament which can be expressly
or impliedly amended or repealed, either wholly or in part, by a subsequent Act and whose application or operation to or with respect
to cases falling within the provisions of a subsequent Act will be excluded to the extent that such application or operation would
be inconsistent with those subsequent statutory provisions: see, eg, Goodwin v Phillips[27]."
"The will of a Parliament is expressed in a statute or Act of Parliament and it is the general conception of English law that what
Parliament may enact it may repeal."
" An act of parliament ... cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same
authority of parliament: for it is a maxim in law, that it requires the same strength to dissolve, as to create an obligation."
" One thing no Parliament can do: the omnipotence of Parliament is available for change, but cannot stereotype rule or practice.
Its power is a present power, and cannot be projected into the future so as to bind the same Parliament on a future day, or a future
Parliament."
"The words 'with respect to' ought never be neglected in considering the extent of a legislative power conferred by s 51 or s 52.
For what they require is a relevance to or connection with the subject assigned to the Commonwealth Parliament".
"A law which effects the repeal of another law is not a law with respect to repeal; its subject-matter is the subject-matter of the
law which is repealed."
"(a) an area of land in Australia or in or beneath Australian waters;(b) an area of water in Australia; or
(c) an area of Australian waters;being an area of particular significance to Aboriginals in accordance with Aboriginal tradition."
Similarly, s 3 defines "significant Aboriginal object" to mean "an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition". By s 22 it is an offence to contravene a provision of a declaration made in relation to a significant Aboriginal area (sub-s (1)) or a significant Aboriginal object (sub-s (2)).
"(1) The Heritage Protection Act does not authorise the making of a declaration in relation to the preservation or protection of an area or object from any of the following activities:(a) the construction of a bridge, and associated works (including approaches to the bridge), in the Hindmarsh Island bridge area;(c) maintenance on, or repairs to, the bridge and associated works;(b) work or other activities in that area preparatory to, or associated with, that construction;
(d) use of the bridge and associated works;(e) the removal of materials from, or dumping of materials in, the pit area in connection with any of the activities mentioned in paragraphs (a), (b) and (c).
(2) The Heritage Protection Act does not authorise the Minister to take any action after the commencement of this Act in relation to an application (whether made before or after the commencement of this Act) that relates (wholly or partly) to activity covered by paragraph 1(a), (b), (c), (d) or (e)."
" The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-...
(xxvi) The people of any race
, other than the aboriginal race in any State,for whom it is deemed necessary to make special laws:..."
The words "other than the aboriginal race in any State" were deleted from par (xxvi) by an Act styled the Constitution Alteration (Aboriginals) , a law approved by the electors in accordance with s 128 of the Constitution.
"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-...
(xxvi) The people of any race
, other than the aboriginal race in any State,for whom it is deemed necessary to make special laws:".
The words ", other than the aboriginal race in any State," were omitted upon the coming into force on 10 August 1967 of the statute given the short title Constitution Alteration (Aboriginals) 1967 (Cth). That statute ("the 1967 Act") was enacted by the Parliament with the approval of the electors as required by the manner and form provisions of s 128 of the Constitution. The electors were consulted in accordance with the procedures laid down by the Referendum (Constitution Alteration) Act 1906 (Cth) ("the Referendum Act")[70]. Section 2 of the 1967 Act stated:
"The Constitution is altered by omitting from paragraph (xxvi) of section 51 the words ', other than the aboriginal race in any State,'."
Basic propositions
"The will of a Parliament is expressed in a statute or Act of Parliament and it is the general conception of English law that what Parliament may enact it may repeal."
The Commonwealth and those supporting the validity of the Bridge Act seek to characterise it as an illustration of this proposition.
"(1) The Heritage Protection Act does not authorise the making of a declaration in relation to the preservation or protection of an area or object from any of the following activities:(a) the construction of a bridge, and associated works (including approaches to the bridge), in the Hindmarsh Island bridge area;(2) The Heritage Protection Act does not authorise the Minister to take any action after the commencement of this Act in relation to an application (whether made before or after the commencement of this Act) that relates (wholly or partly) to activity covered by paragraph (1)(a), (b), (c), (d) or (e)."(b) work or other activities in that area preparatory to, or associated with, that construction;
(c) maintenance on, or repairs to, the bridge and associated works;
(d) use of the bridge and associated works;
(e) the removal of materials from, or dumping of materials in, the pit area in connection with any of the activities mentioned in paragraphs (a), (b) and (c).
The Heritage Protection Act 1901
"The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition."
The term "Aboriginal" is defined in s 3(1) as meaning "a member of the Aboriginal race of Australia" and including "a descendant of the indigenous inhabitants of the Torres Strait Islands". "Aboriginal tradition" is defined in s 3(1) as meaning:
"the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships". (emphasis added)
"Where the Minister:(a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;
(b) is satisfied:
(i) that the area is a significant Aboriginal area; and
(ii) that it is under threat of injury or desecration;
(c) has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and
(d) has considered such other matters as he thinks relevant;
he may make a declaration in relation to the area."
"For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:(a) in the case of an area:
(i) it is used or treated in a manner inconsistent with Aboriginal tradition;
(ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or(b) in the case of an object - it is used or treated in a manner inconsistent with Aboriginal tradition;(iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or
and references in this Act to injury or desecration shall be construed accordingly."
It will be recalled from the definition of "Aboriginal tradition" in s 3(1) that it extends to the traditions, observances, customs and beliefs of a particular community or group of Aboriginals. A person who contravenes a provision of a declaration is guilty of an offence (s 22) and, on the application of the Minister, the Federal Court of Australia may enjoin conduct which constitutes or would constitute a contravention of a declaration (s 26).
Amendment and repeal
The operation of the Bridge Act
Validity of the Bridge Act
"A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race."
Here, the Bridge Act imposes a disadvantage, of the nature identified above, with respect to areas and objects within the Hindmarsh Island bridge area and the pit area. The disadvantage is in the contraction of the field of operation of the Heritage Protection Act, itself a law which is to be taken as supported by s 51(xxvi).
"is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption."
The 1967 Act
"The power conferred by s 51(xxvi) remains a general power to pass laws discriminating against or benefiting the people of any race. Since 1967, that power has included a power to make laws benefiting the people of the Aboriginal race."
Another interpretation of the events of 1967 is that, whilst the purpose of the 1967 Act was to ensure that the Parliament could legislate beneficially in respect of the indigenous races, this was implemented by including them within the generality of the power in s 51(xxvi). Moreover, it is as well to recall that it is the constitutional text which must always be controlling.
"First, it will remove words from our Constitution that many people think are discriminatory against the Aboriginal people.Second, it will make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Parliament considers it necessary.
This cannot be done at present because, as the Constitution stands, the Commonwealth Parliament has no power, except in the Territories, to make laws with respect to people of the Aboriginal race as such.
This would not mean that the States would automatically lose their existing powers. What is intended is that the National Parliament could make laws, if it thought fit, relating to Aboriginals - as it can about many other matters on which the States also have power to legislate. The Commonwealth's object will be to co-operate with the States to ensure that together we act in the best interests of the Aboriginal people of Australia."
International law
"The preponderance of opinion appears to favour the view that the obligation upon members of the United Nations to protect human rights and fundamental freedoms is of a legal character, although the machinery for enforcement is imperfect and the rights and freedoms protected are not clearly defined."
The intervener went on to submit that the Constitution was to be construed in accordance with international law comprising not only treaties to which Australia is a party but also customary law obligations[118].
"The contention that s 51(vi) of the Constitution should be read as subject to the same implication, in my opinion, ought not to be countenanced. The purpose of Part V of Chapter I of the Constitution is to confer upon an autonomous government plenary legislative power over the assigned subjects. Within the matters placed under its authority, the power of the Parliament was intended to be supreme and to construe it down by reference to the presumption is to apply to the establishment of legislative power a rule for the construction of legislation passed in its exercise. It is nothing to the point that the Constitution derives its force from an Imperial enactment. It is none the less a constitution."
"Assuming that a law passed in accordance with s 128 for the alteration of the Constitution can be described as a law of the Commonwealth, the alteration, when it takes effect, becomes part of the Constitution - part of the fundamental law from which the Parliament of the Commonwealth derives its legislative power - and can no longer be regarded merely as an exercise of the legislative power of the Commonwealth."
Conclusion
Protracted challenges to the Hindmarsh Island Bridge
The relevant legislation
The interveners
The main issues
1. The subgroup point: The plaintiffs' first attack on the validity of the Bridge Act raised an issue of characterisation. The plaintiffs contended that that Act, properly analysed, was a law with respect to the Ngarrindjeri people or some only of them. It was thus a law with respect to a subgroup of members of the Aboriginal race and not, as par (xxvi) required, the people of any race.2. The discriminatory law point: The plaintiffs alternatively contended that the Bridge Act was invalid on the ground that par (xxvi) requires that any law enacted in reliance upon it must be for the benefit or advancement of the people of any race (or not detrimental to or discriminatory against such people). Properly characterised, the Bridge Act fell outside these prerequisites. It was a law designed to deprive people of the given race of legal rights which they would otherwise enjoy. It was thus of no benefit to them. Instead, it was detrimental to, and discriminatory against, them.
3. The Aboriginal benefit point: As an alternative to the discriminatory law point, the plaintiffs argued that, having regard to its history, par (xxvi) was to be understood as supporting special laws for the Aboriginal people only where they were for their benefit or advancement. Whatever its meaning as a head of power for the making of laws with respect to the people of any other race, it would not support a law (as it was argued the Bridge Act was) which was not for the benefit of people of the Aboriginal race but detrimental to them.
4. The interpretive principle point: The differences between the parties were enlarged by the conflicting submissions concerning the relevance (if any) of international human rights law in relation to discrimination on the ground of race as it was said to impinge upon the construction of par (xxvi). The Human Rights and Equal Opportunity Commission urged that the ambiguous terms of par (xxvi) should be construed, so far as possible, to conform both with international customary law relevant to racial discrimination and with Australia's international obligations under treaties, ratified by Australia, which expressed the applicable international law on this topic. The Commonwealth submitted that the Commission had overstated the use that might be made of international human rights norms. For the Commonwealth, par (xxvi) was not ambiguous. International law was therefore irrelevant to its interpretation. Some of the interveners went further. In particular, South Australia submitted that this argument represented an impermissible attempt to cloak the executive government of the Commonwealth, through its powers to ratify treaties on behalf of Australia, with a capacity to alter the meaning of the Constitution. It will be necessary to return to these submissions. They raise once again the interpretative principle which I expressed in Newcrest Mining v The Commonwealth[157].
5. The repeal/amendment point: The Commonwealth and the supporting interveners submitted that the Bridge Act was to be properly classified as a partial repeal of, or amendment to, the Heritage Protection Act. As such, its constitutional validity was to be determined by reference to the provisions of the Heritage Protection Act. The Bridge Act was valid because it constituted no more than an alteration to the Heritage Protection Act which everyone accepted was a valid law made under par (xxvi). The plaintiffs initially argued that the Bridge Act was to be judged on its own terms. As a fallback position, the plaintiffs, in relation to this point, embraced a submission of New South Wales. This was to the effect that, if the Bridge Act were to be treated as a partial repeal or amendment of the Heritage Protection Act, its validity was to be determined by reading the two Acts together, as one composite enactment. This hypothetical statute, they argued, would be constitutionally invalid. Either way, the result would be the same. The Bridge Act was unconstitutional.
Common ground
1. It was accepted for the plaintiffs that in 1901, par (xxvi), as it then stood, might have authorised legislation which was either beneficial or detrimental to the people of any race[160]. At that time, the paragraph included the exception which was deleted following an alteration of the Constitution in 1967. The words removed were "other than the aboriginal race in any State". No law could be cited where the power conferred by par (xxvi) had been exercised before 1967[161]. However, since that time, the power has been regularly used in the making of laws, including the Heritage Protection Act, for the people of the Aboriginal race. No one could point to an Australian law, made by the Parliament, reliant on par (xxvi), which was enacted to the detriment of, or to discriminate against, persons on the grounds of their race.2. The plaintiffs accepted that the Parliament was entitled to repeal or amend the Heritage Protection Act. Their contention that an Act made under par (xxvi) must be for the benefit or advancement of the people of a race did not extend to suggesting that, once benefits were granted or advancement enacted, these could not be withdrawn or changed. Such a view of the power would effectively constitutionalise any such enactment, thus rendering it incapable of ready amendment. Acceptance of this position clarified, to my way of thinking, the substance of the plaintiffs' submission about the meaning of the power. It was, as they ultimately accepted (and as New South Wales endorsed it) a prohibition on detrimental or adversely discriminatory legislation. This was their essential complaint against the Bridge Act. It invoked par (xxvi) to work a specific detriment upon, and adverse discrimination against, the plaintiffs by reference to their race. It was this suggested meaning of par (xxvi) with which the Commonwealth joined issue.
3. No party or intervener sought to argue that, where a law was supported by reference to par (xxvi), consideration of whether it was "necessary to make special laws" for people on the ground of "race" was placed entirely outside judicial scrutiny. Whilst it would be for the Parliament, in the first place, to do the deeming contemplated by the paragraph, neither the Commonwealth nor those who supported its submissions denied that the necessity to make special laws or, indeed, the characterisation of a law as falling within the power was, ultimately, a matter for this Court. By reference to what the Court said in Western Australia v The Commonwealth (Native Title Act Case)[162], it was accepted that the Court retained a residual supervisory power. Notwithstanding parliamentary deeming, the Court could hold that there was, in truth, no necessity to make a special law for the people of a race under the race power. Various epithets of restraint were suggested to describe the "extreme case" which alone would warrant judicial intervention on this basis. The Commonwealth agreed, as a theoretical possibility, that a law to exterminate members of a particular race would invite invalidity. Western Australia suggested that a case that would authorise the intervention would be one in which the law was "so outrageous so as to be completely unacceptable". For South Australia a test of mala fides was propounded or one involving "manifest abuse"[163] of the power. Those who supported its validity urged that the Bridge Act fell far short of these epithets. They argued that the Court was, therefore, not entitled to substitute its opinion for that of the Parliament.
4. In its written submissions, the Commonwealth suggested, faintly, that it might have been open to the Parliament to conclude, in the case of the Bridge Act, that a special law was necessary for the benefit of the Aboriginal people, including the Ngarrindjeri, in order to settle a divisive dispute between conflicting factions[164] evident in the earlier court proceedings. However, it was not seriously pressed that the Bridge Act was for the benefit of the people of a race or deemed necessary for their benefit as a special law. The plaintiffs argued that the real benefit of the Bridge Act is made plain by its long title and its operative provision[165] - that it is for the benefit of those concerned to see the construction of the bridge without the impediments caused by the Heritage Protection Act. Counsel for the Kebaro interests very properly conceded that the Bridge Act altered adversely the position of the plaintiffs. He accepted that, to that extent, there was discrimination against Aboriginals. The Bridge Act took away from them rights which they would otherwise enjoy as people of the Aboriginal race.
5. Although there were differences about whether par (xxvi) was ambiguous and, if it was, as to the use that might be made of the Convention Debates of the 1890s, Parliamentary debates of the 1960s and materials prepared for the 1967 referendum, no objection was raised by any party to the Court's going to these materials in order to secure a general understanding of the purpose of the race power in its original form and the object of the constitutional alteration approved at referendum in 1967. For the Commonwealth, it was accepted that such alteration amounted to a "very important symbolic event" having the "primary object" of conferring additional powers on the Parliament to make special laws for the benefit of Aboriginal people in a State by reference to their race. Where the parties differed was upon whether this purpose was a mere aspiration or whether, after 1967, it confined the ambit of the power, either generally in relation to all "people of any race" or specially in relation to the people of the Aboriginal race.
The subgroup point
Race power: authority of the Court
"A broad reading of this power is that it authorises any law for the benefit, physical and mental, of the people of the race for whom Parliament deems it necessary to pass special laws ... To hold otherwise would be to make a mockery of the decision of the people to delete from s 51(xxvi) the words 'other than the aboriginal race in any State' (Constitution Alteration (Aboriginals) Act 1967 (Cth)) which was manifestly done so that Parliament could legislate for the maintenance, protection and advancement of the Aboriginal people."
Referring to the context, Murphy J described the background of disadvantage and brutalisation necessary to understand the amendment of the race power and how it appears in the Constitution today.
"No doubt par (xxvi) in its original form was thought to authorise the making of laws discriminating adversely against particular racial groups ... The approval of the proposed law for the amendment of par (xxvi) by deleting the words 'other than the aboriginal race' was an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial. The passing of the Racial Discrimination Act 1867 manifested the Parliament's intention that the power will hereafter be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make special laws."
General approach to construction
1. The duty of the Court is to the Constitution. Neither the Court, nor individual Justices, are authorised to alter the essential meaning of that document[199]. The Court itself is created by the Constitution which is expressed in a form the text of which cannot be altered except with the authority of the electors qualified to vote[200]. It is the text (with its words and structure) which is the law to which the Court owes obedience[201]. In the Constitutional Court of South Africa, Kentridge AJ[202] has recently described the judicial task of interpretation of a written constitution[203]:"[I]t cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean ... If the language used by the lawgiver is ignored in favour of a general resort to 'values' the result is not interpretation but divination."
This emphasis upon the text of the document is beneficial. It tames the creative imagination of those who might be fired by the suggested requirements of changing times or by the perceived needs of justice in a particular case[204]. The text is the law. It may be elaborated by the most ample construction[205], as is appropriate to a grant of legislative power in a relatively inflexible fundamental law intended to provide indefinitely the legal foundation for the government of the Australian people. But judicial interpretation of the Constitution risks the loss of legitimacy if it shifts its ultimate focus of attention away from the text and structure of the document[206].
2. Assertions that the meaning given to words in the Australian Constitution cannot be altered from that which those words bore when they were settled a hundred years ago have given rise to confusing (and possibly inaccurate) claims that the "connotation" of a word in the constitutional text remains the same whereas its "denotation" may expand over time[207]. Attempts of this kind to offer linguistic explanations of the judicial function in giving meaning to the language of the Constitution may be less convincing than a candid acknowledgment that, sometimes, words themselves acquire new meaning from new circumstances. The very application of broad language to changing facts demands a measure of accommodation[208]. Moreover, new, and completely unpredictable matters may arise which, when measured against the text, are held to fall within a given head of power[209]. Each generation reads the Constitution in the light of accumulated experience. Each finds in the sparse words ideas and applications that earlier generations would not have imagined simply because circumstances, experience and common knowledge did not then require it[210]. Among the circumstances which inevitably affect any contemporary perception of the words of the constitutional text are the changing values of the Australian community itself[211] and the changes in the international community to which the Australian community must, in turn, accommodate. Add to these considerations the special ambiguity of the English language, in which the document is written, occasioned by its unique fusion of Germanic and Latin sources, and it should not be surprising that constitutional interpretation in Australia, over time, has involved changes in the understanding and exposition of the words used. Constitutional interpretation is no mechanical task. The Constitution is no ordinary statute.
3. In former times, this Court was resistant to the use of historical materials, such as the Convention Debates, to help elaborate and explain the text. Its then practice can be traced to the previously fashionable rules governing the construction of the language of statutes combined with the former view of the Australian Constitution as nothing more than a statute of the Imperial Parliament, deriving its legitimacy from that source alone. In the context of par (xxvi), Professor Geoffrey Sawer lamented a refusal of access to the history of the paragraph, as in the Convention Debates. He declared that the history was unusually helpful in the case of this power[212]. The Court has now abandoned its former self-denial. It regularly looks at the Convention Debates[213]. It was taken to them in this case. But here, unusually, there was a later amendment to the paragraph under scrutiny. Conflicting submissions were received on the use (if any) that might be had of the Parliamentary debates which preceded the amendment. There were like differences about the relevant referendum materials put to the electors for their approval. In such a case, the Parliamentary debates, and the referendum materials, may be used in the same way as the Court now uses the Convention Debates. This is to understand the cause which occasioned the amendment of the Constitution and to help resolve ambiguities in the resulting text. The search is not for the private intentions of the Members of Parliament who spoke in the debates. Nor is it for the undiscoverable subjective intentions of the electors involved in the exceptional law-making process required by s 128 of the Constitution. It is to help to derive the meaning of the Constitution, where amended, on the basis of a thorough understanding of the reasons for the amendment and of the means by which it came about. I therefore turn to the history of the process. For the view which I take of the effect of the amendment in 1967, it is necessary to understand its purpose and to know the history that lay behind it.
History of the original race power
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
As Quick and Garran[215] were aware, the word "persons" had in 1886 been held to require equal protection of the laws of the United States without regard to race, colour or nationality[216].
"The affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand".
There is uncertainty as to the initial purpose of including this power and proposing that it be exclusive to the Federal Parliament. The provision was Sir Samuel Griffith's idea[221], and it has been suggested[222] that it was based upon the unhappy experiences of Queensland with "blackbirding". This was the practice by which people from the Pacific Islands had been snatched from their homes and sold into a form of slavery in the Queensland sugar farms. Whether its inclusion was out of a concern for the victims of such activities, a desire to exclude the States from control over them or to provide the Federal Parliament with powers, in addition to the proposed power over aliens, to deal with possible unrest and expulsion, is not entirely clear. The Convention Debates, particularly those of the Melbourne Convention of 1898, show that some delegates wanted to retain power for the States, and to permit the Federal Parliament to enact, laws far from beneficial for people of minority races (such as Chinese in factories and shops[223], "Asiatic or African ... miner[s]"[224] and so on). However, other delegates regarded the prospect of discriminatory legislation on the part of the new federal polity as "disgraceful"[225] and "degrading to us and our citizenship"[226].
Moves to enlarge federal powers for Aboriginals
"In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."
However, the Committee reached no agreement on the grant of special legislative powers with respect to Aboriginals[230]. In the result, a large number of petitions were presented to the Federal Parliament urging the deletion of s 127 and the amendment of par (xxvi)[231]. Whatever the original intention of these constitutional provisions, and whatever may have been the initial protective effect of the exclusion of people of the Aboriginal race from the race power, by the late 1950s, both in and out of the Federal Parliament, commentators were viewing ss 51(xxvi) and 127 (containing as they did the only references to Australian Aboriginals in the Constitution) as negative and discriminatory, needing amendment.
"The advancement of the aboriginal natives of the Commonwealth of Australia".
Mr Wentworth also proposed a new s 117A of the Constitution. This would forbid the Commonwealth and the States from making or maintaining any law which subjected any person born or naturalised within the Commonwealth "to any discrimination or disability within the Commonwealth by reason of his racial origin". The proposal contained a proviso that the section should not operate "so as to preclude the making of laws for the specific benefit of the aboriginal natives of the Commonwealth of Australia"[241]. One of the reasons given by Mr Wentworth for his amendments was his concern that the deletion of the exclusion of people of the Aboriginal race from par (xxvi) could leave them open to "discrimination ... adverse or favourable". He suggested that the "power for favourable discrimination" was needed; but that there should not be a "power for unfavourable discrimination"[242]. His Bill was supported by the Opposition[243], but it ultimately lapsed[244].
The 1967 referendum
"The simple fact is that they are different from other persons and that they do need special laws. They themselves believe that they need special laws. In this proposed law there is no suggestion of any intended discrimination in respect of Aboriginals except a discrimination in their favour."
The Bill was also approved by the Senate without a single dissenting vote[252].
"The purposes of these proposed amendments ... are to remove any ground for the belief that, as at present worded, the Constitution discriminates in some ways against people of the Aboriginal race, and, at the same time, to make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Commonwealth Parliament considers this desirable or necessary. ... The Commonwealth's object will be to co-operate with the States to ensure that together we act in the best interests of the Aboriginal people of Australia".
In relation to the proposed amendment to s 127, the written case said[255]:
"Our personal sense of justice, our commonsense, and our international reputation in a world in which racial issues are being highlighted every day, require that we get rid of this out-moded provision ... The simple truth is that Section 127 is completely out of harmony with our national attitudes and modern thinking. It has no place in our Constitution in this age."
Arguments for the validity of the impugned law
Textual and contextual indications of non-discrimination
Unworkability of the "manifest abuse" test
The interpretative principle point
"[T]he norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law".
Against the background of the developments of international law, which, in turn, respond to recent historical abuses by the medium of law, it is appropriate to return to a scrutiny of par (xxvi). The Commonwealth says that the paragraph is not ambiguous and that it permits detrimental and adversely discriminatory law-making in Australia on the basis of race. Whilst, as I have indicated, a number of factors incline me against the view favoured by the Commonwealth, the arguments presented and the divergent approaches taken by members of this Court do, I think, make it abundantly clear that par (xxvi) is ambiguous. Therefore, the final consideration which reinforces my conclusion is the resolute steps taken by international law to forbid and prevent detriment to, and adverse discrimination against, people by reference to their race.
The alternative submission
The repeal/amendment point
"Parliament, when it passes an Act, either has power to pass that Act or has not power to pass that Act. In the former case it is plain that the enactment of other valid legislation cannot affect the validity of the first-mentioned Act if that Act is left unchanged. The enactment of other legislation which is shown to be invalid equally cannot have any effect upon the first-mentioned valid Act, because the other legislative action is completely nugatory and the valid Act simply remains valid."
From this perspective, the result could not be clearer. The Bridge Act itself is, in substance, detrimental to all Aboriginals, as it removes their opportunity of making an application under the Heritage Protection Act in regard to the Hindmarsh Island Bridge area. This has a particularly telling impact on the Ngarrindjeri people, and hence on the plaintiffs. Such a result is necessarily produced by the Bridge Act, which specifically removes the power of the Minister to authorise such a declaration[309].
"The question of constitutional validity is not to be determined by artificial standards. What is required is that state action, whether ... through one enactment or more than one, shall be consistent with the restrictions of the Federal Constitution. There is no demand in that Constitution that the State shall put its requirements in any one statute. It may distribute them as it sees fit, if the result, taken in its totality, is within the State's constitutional power."
Reading the Heritage Protection Act and the Bridge Act together, the same result is reached. Such a hypothetical composite enactment discriminates against all Aboriginals in respect of the Hindmarsh Island Bridge area[311]. This exception, or exclusion, operates against Aboriginal people (and, in particular, the Ngarrindjeri people) by reference solely to their race.
Conclusion and orders
[1] Paragraph 6 pleaded that the area was of "high spiritual importance" and that "the building of a bridge therein would desecrate Ngarrindjeri traditions, beliefs and culture". Paragraph 6 was denied by the Amended Defence.
[2] This decision is reported as Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1.
[3] See also s 16.
[4] Section 15 applies the provisions of ss 48 (other than sub-ss (1)(a) and (b) and (2)), 48A, 48B, 49 and 50 of the Acts Interpretation Act (Cth) to declarations made under the Heritage Protection Act as though declarations were statutory regulations.
[5] Section 33(3) of the Acts Interpretation Act 1903 and s 13(6) of the Heritage Protection Act.
[6] Heritage Protection Act, s 21ZA.
[7] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18.
[8] Section 3 and Sched 1 cl 1.
[9] [1948] HCA 7; (1948) 76 CLR 1 at 186.
[10] [1965] HCA 64; (1965) 114 CLR 1 at 7.
[11] The Commonwealth v Tasmania. The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 152, 245; see also Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169 at 216; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 314-315; Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 368-369.
[12] Statutory Interpretation, 3rd ed (1997) at 214.
[13] Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7.
[14] [1971] HCA 4; (1971) 124 CLR 1 at 10.
[15] [1908] HCA 55; (1908) 7 CLR 1.
[16] [1995] HCA 44; (1995) 184 CLR 453 at 463, 479. And see s 15 of the Acts Interpretation Act.
[17] Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1 at 7 per Kitto J.
[18] D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 at 109-110; R v Barger [1908] HCA 43; (1908) 6 CLR 41 at 85; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 153; British Coal Corporation v The King [1935] AC 500 at 518.
[19] Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR 37 at 74.
[20] 4 Institutes of the Laws of England, 36 (quoted from the 1797 edition).
[21] Blackstone's Commentaries, 9th ed (1783), Bk 1 at 160.
[22] Blackstone's Commentaries, 9th ed (1783), Bk 1 at 160.
[23] 4 Inst 36.
[24] See Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 168; [1980] 1 All ER 529 at 551 cited by Dawson J in Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 75.
[25] South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 623, 636; Wenn v Attorney-General (Vict) [1948] HCA 13; (1948) 77 CLR 84 at 107; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74-75 per McHugh J; Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 at 743; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 at 597. Of course, a parliament whose powers of repeal or amendment are restricted by "manner and form" provisions must observe those provisions in order to exercise the power: McCawley v The King [1918] HCA 55; (1918) 26 CLR 9 at 54, 55; [1920] UKPCHCA 1; (1920) 28 CLR 106 at 115-116; Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394 at 422, 430 and see South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 618. But the powers conferred by s 51 of the Constitution are not subject to "manner and form" requirements.
[26] Deputy Commissioner of Taxation v Moorebank Pty Ltd; Deputy Commissioner of Taxation v DTR Securities Pty Ltd (1988) 165 CLR 56 at 63.
[27] [1908] HCA 55; (1908) 7 CLR 1 at 7.
[28] [1964] HCA 15; (1964) 113 CLR 207 at 226.
[29] Blackstone's Commentaries, 9th ed (1783), Bk 1 at 186.
[30] (1988) 165 CLR 462 at 472.
[31] cf Commissioner of Taxation v Clyne [1958] HCA 10; (1958) 100 CLR 246; Attorney-General (Cth); Ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1.
[32] Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394 at 422; South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 617; Magrath v The Commonwealth [1944] HCA 14; (1944) 69 CLR 156 at 169-170, 183; Wenn v Attorney-General (Vict) [1948] HCA 13; (1948) 77 CLR 84 at 107; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74-75; Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 at 743; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 at 597.
[33] Law and Custom of the Constitution, (1909), vol 1 at 7.
[34] [1955] HCA 6; (1955) 93 CLR 55 at 77.
[35] [1947] HCA 26; (1947) 74 CLR 31 at 79; see also Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 368-369 per McHugh J.
[36] And the "pit area" defined in Sched 1 cl 2.
[37] [1985] HCA 8; (1985) 159 CLR 351 at 459.
[38] The question was reserved pursuant to s 18 of the Judiciary Act (Cth).
[39] Sections 9(1)(b) and 10(1)(b) of the Heritage Protection Act. Section 9 enables emergency declarations to be made for a period specified in the declaration not exceeding 30 days which period may be extended so long as the extension period does not extend beyond 60 days from the day on which the declaration was made. A declaration under s 10 has effect for such period as is specified in the declaration: s 10(2).
[40] Section 11(b) of the Heritage Protection Act.
[41] Note that s 18 also confers power on authorised officers to make emergency declarations for a period not exceeding 48 hours with respect to significant Aboriginal areas and significant Aboriginal objects.
[42] The application was made on behalf of the Lower Murray Aboriginal Heritage Committee.
[43] In 1967, the Referendum (Constitution Alteration) Act 1906 (Cth) (since repealed by s 145 of the Referendum (Machinery Provisions) Act 1984 (Cth)) provided in s 6A(I)(a) that:
" [if] within nine weeks after the passage of [a] proposed law through both Houses there is forwarded to the Chief Electoral Officer-
(a) an argument in favour of the proposed law ... authorized by a majority of those members of both Houses of the Parliament who voted for the proposed law; or
(b) an argument against the proposed law ... authorized by a majority of those members of both Houses of the Parliament who voted against the proposed law,
the Chief Electoral Officer shall, within two months after the expiry of those nine weeks, and not later than two weeks after the issue of the writ [issued by the Governor-General for the submission of the proposed law to the electors], cause to be printed and posted to each elector ... a pamphlet containing the arguments together with a statement showing the textual alterations and additions proposed to be made to the Constitution."
On 23 February 1967, Prime Minister Holt advised the House of Representatives of the Federal Government's intention to propose a referendum for the approval of the Constitution Alteration (Aboriginals) Bill 1967. On 8 March 1967, the Opposition advised in the Senate that it would support the Bill without alteration. The referendum for approval of the Bill was held on 27 May 1967. Because the Bill was passed unanimously by both Houses of Parliament, only a "Yes" case was distributed to electors pursuant to s 6A(I)(a).
[44] The electors' approval of Constitution Alteration (Aboriginals) 1967 at the referendum also resulted in the repeal of s 127 of the Constitution which provided that "[i]n reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."
[45] Constitution Alteration (Aboriginals) 1967: Argument in favour of the proposed law, in The Commonwealth of Australia, Referendums to be held on Saturday, 27th May, 1967 on the Proposed Laws for the alteration of the Constitution entitled - Constitution Alteration (Parliament) 1967 and Constitution Alteration (Aboriginals) 1967 at 11, Commonwealth Government Printer, Canberra. The official "Yes" case also provided that "[t]he proposed alteration of this section will ... remove words from our Constitution that many people think are discriminatory against the aboriginal people (emphasis added)" at 11.
[46] Constitution Alteration (Aboriginals) 1967: Argument in favour of the proposed law, in The Commonwealth of Australia, Referendums to be held on Saturday, 27th May, 1967 on the Proposed Laws for the alteration of the Constitution entitled - Constitution Alteration (Parliament) 1967 and Constitution Alteration (Aboriginals) 1967 at 11, Commonwealth Government Printer, Canberra.
[47] The "Draft of a Bill to Constitute the Commonwealth of Australia" debated in Melbourne in 1898 proposed a cl 53(I) in the following terms:
" The Parliament shall, subject to the provisions of this Constitution, have exclusive powers to make laws for the peace, order, and good government of the Commonwealth with respect to the following matters:-
I The affairs of the people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the affairs of the aboriginal native race in any State".[48]
An expression used by Sir John Forrest, Dr Quick and Mr Kingston at the 1898 Convention: see Official Record of the Debates of the Australasian Federal Convention, 3rd Session (Melbourne), 20 January to 17 March 1898, vol I at 240, 246, 248.
[49] An expression used by Mr Howe and Mr Symon at the 1898 Convention: see Official Record of the Debates of the Australasian Federal Convention, 3rd Session (Melbourne), 20 January to 17 March 1898, vol I at 250, 251, 251-252.
[50] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 186 per Gibbs CJ, 245 per Wilson J, 261 per Brennan J.
[51] Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at 461 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ referring in fn 323 to Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 and noting in fn 324 that "[i]t was on this point, not on the point of differential operation ... that the minority in the Tasmanian Dam Case denied the support of s 51(xxvi)".
[52] [1982] HCA 27; (1982) 153 CLR 168 at 242. Murphy J expressed the same view of the scope of s 51(xxvi) in The Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 180 stating that "[s 51(xxvi)] ... authorizes any law for the benefit, physical or mental, of the people of the race for whom Parliament deems it necessary to pass special laws". Similarly, at 245-246 Brennan J adverted to "the high purpose which the Australian people intended when the people of the Aboriginal race were brought within the scope of [s 51(xxvi)'s] beneficial exercise" (emphasis added). At 273 Deane J said that "[s]ince 1967, [s 51(xxvi)] has included a power to make laws benefiting the people of the Aboriginal race" (emphasis added); cf also Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 56 per Gaudron J. However, the contrary view, that s 51(xxvi) supports the enactment either of beneficial or detrimental laws in relation to Aboriginal people, has also been expressed: Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 186 per Gibbs CJ, 209 per Stephen J, 245 per Wilson J; The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 110 per Gibbs CJ.
[53] [1983] HCA 21; (1983) 158 CLR 1 at 242; cf at 273 where Deane J referred to the 1967 referendum and said that "[t]he power conferred by s 51(xxvi) remains a general power to pass laws discriminating against or benefiting the people of any race."
[54] (1992) 176 CLR 1 at 56.
[55] [1995] HCA 47; (1995) 183 CLR 373 at 460.
[56] [1982] HCA 27; (1982) 153 CLR 168 at 210.
[57] [1995] HCA 47; (1995) 183 CLR 373 at 460-461 citing Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 186 per Gibbs CJ, 245 per Wilson J and 261 per Brennan J.
[58] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.
[59] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 461.
[60] [1992] HCA 29; (1992) 174 CLR 455 at 489.
[61] [1995] HCA 47; (1995) 183 CLR 373.
[62] [1995] HCA 47; (1995) 183 CLR 373 at 460; Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 138-139 per Brennan J.
[63] See with respect to the changing scope of the defence power, Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433 at 441-443 per Griffith CJ, 453-455 per Isaacs J; Andrews v Howell [1941] HCA 20; (1941) 65 CLR 255 at 278 per Dixon J, 287 per McTiernan J; Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116 at 161-163 per Williams J; Victorian Chamber of Manufactures v The Commonwealth (Women's Employment Regulations) [1943] HCA 21; (1943) 67 CLR 347 at 399-400 per Williams J; Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457 at 471-472 per Dixon J; Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 195, 197, 199 per Dixon J, 207 per McTiernan J, 222-223, 227 per Williams J, 253-255 per Fullagar J, 273-274 per Kitto J; Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 596-597 per Gaudron J; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 at 484 per Brennan and Toohey JJ.
[64] As indicated earlier, a matter dealt with by the Heritage Protection Act and also by ss 8 and 11 of the World Heritage Properties Conservation Act 1983 (Cth), considered in The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1.
[65] The Jumbunna Coal Mine, No Liability v The Victorian Coal Miners' Association (1908) 6 CLR 309 at 367-368 per O'Connor J; R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207 at 225-226 per Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ.
[66] Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1 at 10 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.
[67] Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7 per Griffith CJ; Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394 at 430 per Dixon J, 433 per McTiernan J; South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 617-618 per Latham CJ, 623 per Starke J, 633, 633-634 per Evatt J, 636 per McTiernan J; Wenn v Attorney-General (Vict) [1948] HCA 13; (1948) 77 CLR 84 at 107 per Latham CJ; R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207 at 226 per Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ; Deputy Commissioner of Taxation v Moorebank Pty Ltd [1988] HCA 29; (1988) 165 CLR 55 at 63 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74-75 per McHugh J; cf Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 75 per Dawson J, citing Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 168; [1980] 1 All ER 529 at 551 per Lord Scarman.
[68] McCawley v The King [1918] HCA 55; (1918) 26 CLR 9 at 52, 54, 55 per Isaacs and Rich JJ; Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394 at 417-418, 421 per Rich J, 424 per Starke J, 430, 431-432 per Dixon J, 443 per McTiernan J; South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 618 per Latham CJ, 625 per Dixon J, 636 per McTiernan J.
[69] Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7 per Griffith CJ; South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 625 per Dixon J; Butler v Attorney-General (Vict) [1961] HCA 32; (1961) 106 CLR 268 at 275-276 per Fullagar J; Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 10-11 per Windeyer J; South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 171 per Wilson, Dawson, Toohey and Gaudron JJ; cf Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 75 per McHugh J.
[70] Repealed by s 145 of the Referendum (Machinery Provisions) Act 1984 (Cth).
[71] Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455 at 467, 489.
[72] [1964] HCA 15; (1964) 113 CLR 207 at 226. See also South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 617-618; R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1985] HCA 84; (1985) 159 CLR 636 at 647; Deputy Commissioner of Taxation v Moorebank Pty Ltd [1988] HCA 29; (1988) 165 CLR 55 at 62-63; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74-75.
[73] [1965] HCA 64; (1965) 114 CLR 1 at 7. See also Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 334, 337, 351-352; Leask v The Commonwealth [1996] HCA 29; (1996) 187 CLR 579 at 590-591, 634.
[74] Section 9 empowers the Minister to make emergency declarations in respect of a specified area, with effect for a limited period. For present purposes, no special considerations arise from s 9.
[75] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18.
[76] See G F Heublein and Bro Inc v Continental Liqueurs Pty Ltd [1962] HCA 66; (1962) 109 CLR 153 at 161-162.
[77] Bennion, Statutory Interpretation, 3rd ed (1997) at 210.
[78] Bennion, Statutory Interpretation, 3rd ed (1997) at 130.
[79] Bennion, Statutory Interpretation, 3rd ed (1997) at 211.
[80] Butler v Attorney-General (Vict) [1961] HCA 32; (1961) 106 CLR 268 at 275; South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 171.
[81] Bennion, Statutory Interpretation, 3rd ed (1997) at 214. See also Austereo Ltd v Trade Practices Commission [1993] FCA 301; (1993) 41 FCR 1 at 11-13; 115 ALR 15 at 23-25.
[82] Section 15 provides that every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part of it.
[83] See Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 471.
[84] cf Allpike v The Commonwealth [1948] HCA 19; (1948) 77 CLR 62 at 69, 76-77; Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226 at 245, 256, 263-265; Commonwealth of Australia v WMC Resources Ltd [1998] HCA 8 at 17-18, 134-142, 182-198.
[85] [1965] HCA 64; (1965) 114 CLR 1 at 7.
[86] Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 79; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 314; Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 369; Leask v The Commonwealth [1996] HCA 29; (1996) 187 CLR 579 at 601-602, 621, 634.
[87] R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207 at 225.
[88] The Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 274.
[89] Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373.
[90] [1995] HCA 47; (1995) 183 CLR 373 at 462.
[91] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.
[92] Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49 at 65.
[93] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460-461.
[94] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.
[95] The circumstances were set out in the Second Reading Speech in the House of Representatives, Parliamentary Debates (Hansard), 17 October 1996 at 5802-5803.
[96] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460-461 citing Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 186, 245, 261.
[97] [1995] HCA 47; (1995) 183 CLR 373 at 461.
[98] [1988] HCA 18; (1988) 165 CLR 360.
[99] See, eg, Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 570-571; Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436 at 478; Goryl v Greyhound Australia Pty Ltd [1994] HCA 18; (1994) 179 CLR 463 at 485-486, 494-495.
[100] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 261.
[101] Western Australia v The Commonwealth [1975] HCA 46; (1975) 134 CLR 201 at 271.
[102] [1975] HCA 46; (1976) 134 CLR 201 at 275. See also Queensland v The Commonwealth [1977] HCA 60; (1977) 139 CLR 585 at 604-605.
[103] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437. See also Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 467-468; R v Home Secretary; Ex parte Pierson [1997] 3 WLR 492 at 506-507; [1997] 3 All ER 577 at 592.
[104] [1803] USSC 16; 1 Cranch 137 (1803) [5 US 87].
[105] Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 262-263; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35; Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 134-135.
[106] Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 193. See also Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 71 ALJR 818 at 824-825, 827-830; [1997] HCA 25; 145 ALR 96 at 104-106, 108-112; and cf Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1 at 10.
[107] [1983] HCA 21; (1983) 158 CLR 1 at 273.
[108] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 169-170.
[109] Chief Electoral Officer Commonwealth, The Arguments For and Against the Proposed Alterations Together with a Statement Showing the Proposed Alterations, 6 April 1967 at 11.
[110] Sawer, "The Australian Constitution and the Australian Aborigine", [1967] FedLawRw 2; (1966) 2 Federal Law Review 17 at 35.
[111] [1989] USSC 160; 492 US 361 (1989).
[112] [1989] USSC 160; 492 US 361 at 369, fn 1 (1989).
[113] See R v Rahey [1987] 1 SCR 588 at 633; Hogg, Constitutional Law of Canada, 3rd ed (1992) at 824; Bayefsky and Fitzpatrick, "International Human Rights Law in United States Courts: A Comparative Perspective", (1992) 14 Michigan Journal of International Law 1 at 80-82.
[114] Bayefsky and Fitzpatrick, "International Human Rights Law in United States Courts: A Comparative Perspective", (1992) 14 Michigan Journal of International Law 1 at 82-89; Brilmayer, "Federalism, State Authority and the Preemptive Power of International Law", [1994] Supreme Court Review 295 at 307-308, 322-326, 329-332.
[115] The Human Rights and Equal Opportunity Commission.
[116] The text of the Charter is the Schedule to the Charter of the United Nations Act 1945 (Cth).
[117] [1982] HCA 27; (1982) 153 CLR 168 at 204.
[118] As to the requirements for the creation of the customary law obligation, see Polyukhovich v The Commonwealth (War Crimes Act Case) [1991] HCA 32; (1991) 172 CLR 501 at 559-560.
[119] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68-69, 77, 80-81; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287.
[120] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 204.
[121] [1945] HCA 3; (1945) 70 CLR 60.
[122] [1945] HCA 3; (1945) 70 CLR 60 at 70, 74, 76, 77, 79, 80.
[123] The accuracy, at the time, of that perception of customary international law has been disputed, at least as regards aliens who were permanent residents of the conscripting state: Shearer, "The Relationship Between International Law and Domestic Law" in Opeskin and Rothwell (eds), International Law and Australian Federalism, (1997) at 48-49, n 60; O'Connell, International Law, 2nd ed (1970), vol 2 at 703-705.
[124] [1945] HCA 3; (1945) 70 CLR 60 at 78. See also at 69 per Latham CJ, 74 per Rich J, 75 per Starke J, 79 per McTiernan J, 82-83 per Williams J; cf Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 424.
[125] [1994] HCA 32; (1994) 181 CLR 183.
[126] [1994] HCA 32; (1994) 181 CLR 183 at 195.
[127] [1994] HCA 32; (1994) 181 CLR 183 at 195.
[128] Sankey v Whitlam (1978) 142 CLR 1 at 75 per Stephen J.
[129] (1978) 142 CLR 1 at 31; cf at 92-93 per Mason J, 104-105 per Aickin J.
[130] The order was made on 3 September 1997 pursuant to the Judiciary Act 1903 (Cth), s 18.
[131] Chapman v Tickner (1995) 55 FCR 316.
[132] Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451.
[133] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1.
[134] Senate, Parliamentary Debates (Hansard), 17 September 1996 at 3532.
[135] Aboriginal Legal Rights Movement v South Australia unreported, Supreme Court of South Australia, 26 July 1995; Aboriginal Legal Rights v SA (No 1) [1995] SASC 5224; (1995) 64 SASR 551; Aboriginal Legal Rights v SA (No 2) [1995] SASC 5225; (1995) 64 SASR 558; Aboriginal Legal Rights v SA (No 3) (1995) 64 SASR 566.
[136] South Australia, Report of the Hindmarsh Island Bridge Royal Commission (1995); cf Mead, A Royal Omission. A critical summary of the evidence given in the Hindmarsh Island Bridge Royal Commission with an alternative Report (1995); Harris, "The narrative of Law in the Hindmarsh Island Royal Commission" (1996) 14(2) Law in Context 115; Tehan, "A tale of two cultures" (1996) 21 Alternative Law Journal 10; Tehan, "To Be or Not To Be (Property): Anglo-Australian Law and the Search for Protection of Indigenous Cultural Heritage" (1996) 15 University of Tasmania Law Journal 267 at 298-301.
[137] s 4.
[138] s 3(1). The definition of "Aboriginal" also includes "a descendant of the indigenous inhabitants of the Torres Strait Islands".
[139] s 8(2).
[140] s 9(1).
[141] ss 9(2) and (3).
[142] s 10(1)(c).
[143] s 10(2).
[144] For the purposes of Pt II, s 22. Declarations made under Pt IIA are punishable pursuant to s 21H of the Act.
[145] s 26(1).
[146] s 26(2).
[147] s 28.
[148] s 30.
[149] By Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987 (Cth), s 7; cf Tehan, "To Be or Not To Be (Property): Anglo-Australian Law and the Search for Protection of Indigenous Cultural Heritage" (1996) 15 University of Tasmania Law Journal 267 at 282.
[150] s 21ZA.
[151] s 4. The terms of the section appear in the reasons of Brennan CJ.
[154] House of Representatives, Parliamentary Debates (Hansard), 17 October 1996 at 5802.
[155] House of Representatives, Parliamentary Debates (Hansard), 17 October 1996 at 5803.
[156] House of Representatives, Parliamentary Debates (Hansard), 17 October 1996 at 5803.
[157] [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1423-1426; 147 ALR 42 at 147-151.
[158] See Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 485, 503-504; Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455 at 487-488; cf Detmold, "The New Constitutional Law" [1994] SydLawRw 18; (1994) 16 Sydney Law Review 228 at 234-235.
[159] On the relationship between powers and constitutional guarantees, see Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455 at 483-484; Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at 1355, 1364, 1377, [1997] HCA 38; 1421; 147 ALR 42 at 54, 63, 84, 144.
[160] Submissions of the Plaintiffs, par 10.
[161] The Pacific Island Labourers Act 1901 (Cth) appears to have been enacted under s 51(xix) of the Constitution; cf Pengelley, "The Hindmarsh Island Bridge Act" [1998] SydLawRw 6; (1998) 20 Sydney Law Review 144 at 146, n 18.
[162] [1995] HCA 47; (1995) 183 CLR 373 at 460.
[163] cf Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.
[164] Submissions of the Commonwealth, par 2.6.
[165] s 4; cf Pengelley, "The Hindmarsh Island Bridge Act" [1998] SydLawRw 6; (1998) 20 Sydney Law Review 144.
[166] Heritage Protection Act, s 21B(1). Such delegation does not prevent the exercise of power by the Federal Minister. See s 21B(6).
[167] s 4.
[168] s 4(1). Adapting the words of Kitto J in Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1 at 7.
[169] s 4(2).
[170] The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 244 per Brennan J. Both parties accepted this definition of "race".
[171] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 210 per Stephen J.
[172] cf Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 186-187, 209, 244-245, 261.
[173] The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 180 per Murphy J.
[174] The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 274 per Deane J.
[175] See also Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 100, 107, 111, 117-118, where the Court considered par (xxvi) in relation to the Pitjantjatjaraku people.
[176] [1982] HCA 27; (1982) 153 CLR 168 at 242.
[177] Contrast Murphy J's earlier opinion in Attorney-General (Vict); Ex rel Black v The Commonwealth [1981] HCA 2; (1981) 146 CLR 559 at 622 (dealing with ss 116 and 122). See also Kruger v The Commonwealth [1997] HCA 27; (1997) 71 ALJR 991 at 1000, 1007, 1021; [1997] HCA 27; 146 ALR 126 at 138, 148, 167, where the contrary view was expressed in relation to s 122.
[178] [1982] HCA 27; (1982) 153 CLR 168 at 186.
[179] (1901) at 623. He also referred to the article by Sawer, "The Australian Constitution and the Australian Aborigine" [1967] FedLawRw 2; (1966) 2 Federal Law Review 17 at 20.
[180] As Gibbs CJ concluded: [1982] HCA 27; (1982) 153 CLR 168 at 203.
[181] [1983] HCA 21; (1983) 158 CLR 1.
[182] Mason, Murphy, Brennan and Deane JJ; Gibbs CJ, Wilson and Dawson JJ dissenting.
[183] The Commonwealth submitted that ss 8, 11, 13(2) and 14(5) could be supported by the race power. The majority held that only ss 8 and 11 were so supported.
[184] [1983] HCA 21; (1983) 158 CLR 1 at 110.
[185] [1983] HCA 21; (1983) 158 CLR 1 at 110.
[186] [1983] HCA 21; (1983) 158 CLR 1 at 203, citing Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 245. See also Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 209-210 per Stephen J, approved in Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.
[187] [1983] HCA 21; (1983) 158 CLR 1 at 180.
[188] [1982] HCA 27; (1983) 153 CLR 168 at 242. See also Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 138.
[189] [1983] HCA 21; (1983) 158 CLR 1 at 272.
[190] Citing Harrison Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 464.
[191] [1983] HCA 21; (1983) 158 CLR 1 at 273 (emphasis added).
[192] [1983] HCA 21; (1983) 158 CLR 1 at 273 (emphasis added).
[193] (1992) 176 CLR 1 at 56.
[194] See also Kruger v The Commonwealth [1997] HCA 27; (1997) 71 ALJR 991 at 1035; [1997] HCA 27; 146 ALR 126 at 187.
[195] [1995] HCA 47; (1995) 183 CLR 373.
[196] Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
[197] [1995] HCA 47; (1995) 183 CLR 373 at 461 (emphasis added).
[198] [1995] HCA 47; (1995) 183 CLR 373 at 461, citing from [1983] HCA 21; (1983) 158 CLR 1 at 158; and see at 180 per Murphy J.
[199] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 143 per Brennan J.
[200] Constitution, s 128; cf King v Jones [1972] HCA 44; (1972) 128 CLR 221 at 229 per Barwick CJ.
[201] Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 83; Attorney-General (Vict); Ex rel Black v The Commonwealth [1981] HCA 2; (1981) 146 CLR 559 at 577; Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1423-1424; 147 ALR 42 at 147; cf Tribe and Dorf, On Reading the Constitution (1991) at 11.
[202] With whom the other ten members of the Court agreed.
[203] State v Zuma [1995] 2 SALR 642 at 652-653; [1995] 1 LRC 145 at 156; cited with approval by the Privy Council in La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius [1995] 3 LRC 494 at 500; cf "The Commonwealth Through the Case Law: Unity in Diversity" (1997) 23 Commonwealth Law Bulletin 601 at 605-606.
[204] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 143.
[205] Australian National Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 81.
[206] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 168.
[207] For example Ex parte Professional Engineers' Association [1959] HCA 47; (1959) 107 CLR 208 at 267 per Windeyer J.
[208] Zines, The High Court and the Constitution, 4th ed (1997) at 17-22.
[209] Lansell v Lansell [1964] HCA 42; (1964) 110 CLR 353 at 366, 369, 370; cf Uebergang v Australian Wheat Board [1980] HCA 40; (1980) 145 CLR 266 at 294.
[210] Victoria v The Commonwealth [1971] HCA 16; (1971) 122 CLR 353 at 396-397; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 197. As an example, it is unconvincing to suggest that the words "chosen by the people" in ss 7 and 24 of the Constitution would today, or ever again, be construed to exclude adult women from the suffrage. Yet, in 1901, in respect of most of Australia, it was so construed: see McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 166-167. Similarly, s 51(xxxv) providing for power in respect of industrial disputes "extending beyond the limits of any one State" would not have been read in 1901 with the awareness of the log of claims procedure which greatly extended its ambit: Attorney-General (Qld) v Riordan [1997] HCA 32; (1997) 71 ALJR 1173 at 1191-1192; [1997] HCA 32; 146 ALR 445 at 470-471.
[211] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 at 560; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 173-174.
[212] Sawer, "The Australian Constitution and the Australian Aborigine" [1967] FedLawRw 2; (1966) 2 Federal Law Review 17 at 27.
[213] See for example Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 385. In Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 565, Dawson J referred in support of his reasons to the history of proposals at referendum to enlarge the conciliation and arbitration power.
[214] s 1.
[215] The Annotated Constitution of the Australian Commonwealth (1901) at 622-623.
[216] Yick Wo v Hopkins [1886] USSC 197; 118 US 356 (1886). A San Francisco ordinance which permitted licensees to conduct laundries was implemented to deny licences to Chinese applicants. The ordinance was held to be unconstitutional. Quick and Garran contrasted par (xxvi) suggesting that, in Australia, such a law could be made under the paragraph and could not be successfully challenged: Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 623.
[217] 30 Vic c 3. Now the Constitution Act 1867 : see Canada Act 1982 (Imp), Sched B.
[218] s 91(25).
[219] Union Colliery Company of British Columbia v Bryden [1899] AC 580; cf Harrison Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 463.
[220] cl 53(1); cf Official Record of the Debates of the Australasian Convention (Sydney), 3 April 1891 at 701-704.
[221] Official Record of the Debates of the Australasian Convention (Adelaide), 19 April 1897 at 832.
[222] By the Hon Arthur Calwell: see House of Representatives, Parliamentary Debates (Hansard), 14 May 1964 at 1902; cf Graham, The Life of the Right Honourable Sir Samuel Walker Griffith GCMG PC (1939) at 38-39; Pacific Island Labourers Amendment Act 1885 , s 11 (Q) (an Act, sponsored by Griffith, aimed at ending "blackbirding" in Queensland from 1890 onwards).
[223] Official Record of the Debates of the Australasian Convention (Melbourne), 27 January 1898 at 236.
[224] Official Record of the Debates of the Australasian Convention (Melbourne), 27 January 1898 at 240.
[225] Official Record of the Debates of the Australasian Convention (Melbourne), 28 January 1898 at 247.
[226] Official Record of the Debates of the Australasian Convention (Melbourne), 28 January 1898 at 250.
[227] Sawer, "The Australian Constitution and the Australian Aborigine" [1967] FedLawRw 2; (1966) 2 Federal Law Review 17 at 23.
[228] Constitution Alteration (Post-war Reconstruction and Democratic Rights) Bill 1944 (Cth), cl 2. This proposed affording such a power to the Federal Parliament for five years from the end of World War Two. It was approved by the electors in Western Australia and South Australia but failed in all other States and failed to secure a majority of votes nationally: Blackshield and Williams, Australian Constitutional Law and Theory, 2nd ed (1998) at 1186.
[229] Commonwealth, Report from the Joint Committee on Constitutional Review (1959) at par 398.
[230] Commonwealth, Report from the Joint Committee on Constitutional Review (1959) at par 397; cf House of Representatives, Parliamentary Debates (Hansard), 14 May 1964 at 1908-1909.
[231] See for example House of Representatives, Parliamentary Debates (Hansard), 14 May 1957 at 1301, 17 September 1958 at 1299, 23 September 1958 at 1475, 24 September 1958 at 1549, 25 September 1958 at 1623, 8 April 1959 at 977, 21 April 1959 at 1361, 13 May 1959 at 2095, 14 May 1959 at 2169, 4 December 1962 at 2833, 5 December 1962 at 2923, 6 December 1962 at 3029, 26 March 1963 at 3, 27 March 1963 at 59, 4 April 1963 at 430, 9 April 1963 at 473, 30 April 1963 at 807, 23 May 1963 at 1741, 14 August 1963 at 81, 15 August 1963 at 161, 20 August 1963 at 269, 21 August 1963 at 337, 27 August 1963 at 493, 28 August 1963 at 561, 29 August 1963 at 625, 10 September 1963 at 739, 11 September 1963 at 817 (presented by the Prime Minister), 12 September 1963 at 919, 18 September 1963 at 1097, 19 September 1963 at 1165, 24 September 1963 at 1261, 25 September 1963 at 1331, 8 October 1963 at 1505, 9 October 1963 at 1579, 10 October 1963 at 1649, 16 October 1963 at 1831, 17 October 1963 at 1917, 22 October 1963 at 2029, 23 October 1963 at 2117, 24 October 1963 at 2191, 29 October 1963 at 2369, 30 October 1963 at 2453, 27 February 1964 at 89, 5 March 1964 at 281, 5 May 1964 at 1483, 14 May 1964 at 1895, 20 May 1964 at 2113; Senate, Parliamentary Debates (Hansard), 9 April 1963 at 6, 7 May 1963 at 249.
[232] Constitution Alteration (Aborigines) Bill 1964 (Cth).
[233] House of Representatives, Parliamentary Debates (Hansard), 14 May 1964 at 1904.
[234] House of Representatives, Parliamentary Debates (Hansard), 14 May 1964 at 1905.
[235] House of Representatives, Parliamentary Debates (Hansard), 14 May 1964 at 1907 (emphasis added). The views of the Prime Minister (Sir Robert Menzies) were also to the same effect: House of Representatives, Parliamentary Debates (Hansard), 1 April 1965 at 533-534.
[236] House of Representatives, Parliamentary Debates (Hansard), 14 May 1964 at 1907.
[237] House of Representatives, Parliamentary Debates (Hansard), 11 November 1965 at 2639.
[238] From 1968-1972.
[239] Constitution Alteration (Aborigines) Bill 1966 (Cth). The Second Reading Speech appears in House of Representatives, Parliamentary Debates (Hansard), 10 March 1966 at 121-125; cf House of Representatives, Parliamentary Debates (Hansard), 23 November 1965 at 3068-3072.
[240] Constitution Alteration (Aborigines) Bill 1966 (Cth), cl 2.
[241] Constitution Alteration (Aborigines) Bill 1966 (Cth), cl 3.
[242] House of Representatives, Parliamentary Debates (Hansard), 10 March 1966 at 123.
[243] House of Representatives, Parliamentary Debates (Hansard), 10 March 1966 at 130.
[244] See House of Representatives, Parliamentary Debates (Hansard), 1 March 1967 at 278.
[245] House of Representatives, Parliamentary Debates (Hansard), 1 March 1967 at 263.
[246] House of Representatives, Parliamentary Debates (Hansard), 1 March 1967 at 263 (emphasis added).
[247] House of Representatives, Parliamentary Debates (Hansard), 1 March 1967 at 279.
[248] House of Representatives, Parliamentary Debates (Hansard), 1 March 1967 at 281.
[249] House of Representatives, Parliamentary Debates (Hansard), 1 March 1967 at 287.
[250] Senate, Parliamentary Debates (Hansard), 2 March 1967 at 235-236.
[251] Senate, Parliamentary Debates (Hansard), 8 March 1967 at 359 (emphasis added).
[252] Senate, Parliamentary Debates (Hansard), 8 March 1967 at 372.
[253] Referendum (Constitution Alteration) Act 1906 (Cth), s 6A(1) (since repealed). See now the Referendum (Machinery Provisions) Act 1984 (Cth), ss 11(1) and (2).
[254] Commonwealth Electoral Office, "Referendums to be held on Saturday, 27th May, 1967" (1967) at 11 (emphasis added).
[255] Commonwealth Electoral Office, "Referendums to be held on Saturday, 27th May, 1967" (1967) at 12 (emphasis added).
[256] See Smoke Signals, May 1967 at 6.
[257] See Smoke Signals, May 1967 at 7.
[258] See Smoke Signals, May 1967 at 8 (emphasis added).
[259] See Smoke Signals, May 1967 at 9.
[260] In addition to gaining majority support in every State, the proposal received 89.3% of votes (and 90.8% of valid votes) nationally. This was over 10% more than any other referendum before or since. See Blackshield and Williams, Australian Constitutional Law and Theory, 2nd ed (1998) at 1186.
[261] Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518.
[262] Relying on Gibbs J in The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 110.
[263] A concession made by the Commonwealth. See Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460. See also The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 202 per Wilson J.
[264] It was pointed out that, to the extent that federal power was limited to the making of laws of benefit to or not discriminatory against people on the ground of race, this would expand the scope of the power of the States under the Constitution to enact detrimental or discriminatory laws. However such laws would be subject to the Racial Discrimination Act 1975 (Cth) and the operation of s 109 of the Constitution.
[265] An example suggested by counsel for the Kebaro interests.
[266] s 21ZA referring to the Alcoa (Portland Aluminium Smelter) Act 1980 (Vic), s 13.
[267] [1995] HCA 47; (1995) 183 CLR 373 at 460.
[268] [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1423-1426; 147 ALR 42 at 147-151.
[269] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 462.
[270] Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433 at 442; Jenkins v The Commonwealth [1947] HCA 41; (1947) 74 CLR 400 at 405; Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 206-207; Marcus Clark & Co Ltd v The Commonwealth [1952] HCA 50; (1952) 87 CLR 177 at 218, 226.
[271] The protection is grounded in the Fourteenth Amendment, which by its terms applies only to State laws (though a similar limitation has been held to apply to federal legislation: Gibson v Mississippi [1896] USSC 101; 162 US 565 at 591 (1896)).
[272] Bolling v Sharpe [1954] USSC 41; 347 US 497 at 499 (1954).
[273] Korematsu v United States [1945] USSC 43; 323 US 214 at 216 (1944).
[274] Washington v Davis [1976] USSC 107; 426 US 229 at 242 (1976).
[275] See also McLaughlin v Florida [1964] USSC 223; 379 US 184 at 191-192 (1964); Loving v Virginia [1967] USSC 168; 388 US 1 at 9 (1967); Richmond v J A Croson Co [1989] USSC 15; 488 US 469 at 500 (1989); Scalia "Federal Constitutional Guarantees of Individual Rights in the United States of America" in Beatty (ed), Human Rights and Judicial Review: A Comparative Perspective (1994) 57 at 86-88; Tushnet, Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (1997) at 100; cf Canada (A G) v Mossop [1993] 1 SCR 554 at 645-646 per L'Heureux-Dubé J.
[276] Ha v New South Wales [1997] HCA 34; (1997) 71 ALJR 1080 at 1090; [1997] HCA 34; 146 ALR 355 at 368 is a recent example; but there are many.
[277] Pursuant to the point reserved in the Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 460.
[278] Although such legislation was first enacted in 1950, the following section references are to the Group Areas Act 1966 , being the last surviving Group Areas Act 1957 under the apartheid system.
[279] s 12(1). The "groups" were "white", "Bantu", and "coloured".
[280] s 23.
[281] ss 13, 27.
[282] s 26.
[283] International Commission of Jurists, South Africa: Human Rights and the Rule of Law (1988) at 17; Platzky and Walker, The Surplus People: Forced Removals in South Africa (1985) at 99-100; cf Cassese, Human Rights in a Changing World (1990) at 108.
[284] Enacted in 1949.
[285] s 1.
[286] Whilst the prohibition was first introduced in 1950, the section reference below is to the Immorality Act, being the last such Act to survive under the apartheid system.
[287] s 16.
[288] See also Population Registration Act 1953 (1950) (SAfr); Reservation of Separate Amenities Act (SAfr). Certain pieces of legislation were, however, discriminatory on their face as well as in their effect, eg Native Trust and Land Act 1936 (SAfr); Black (Urban Areas) Consolidation Act 1952 (1945) (SAfr) (as amended by the Native Laws Amendment Act (SAfr)); Natives (Abolition of Passes and Coordination of Documents) Act 1952 (SAfr).
[289] Noakes and Pridham (eds), Nazism 1919-1945: A History in Documents and Eyewitness Accounts (1988), vol 1 at 527.
[290] Art 3. See Noakes and Pridham (eds), Nazism 1919-1945: A History in Documents and Eyewitness Accounts (1988), vol 1 at 224.
[291] In Oppenheimer v Cattermole [1976] AC 249 at 278, the majority in the House of Lords characterised a German decree depriving Jews of their citizenship as "so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all". But what of a law which required retirement from employment on the grounds of race. Would it be classified as a "manifest abuse" or permissible discrimination?
[292] Hilberg, The Destruction of the European Jews (1985) at 83, 86.
[293] In 1935, the Law for the Protection of German Blood and Honour restricted marriage, personal relationships and employment by Jews (Tatz, "Racism, Responsibility, and Reparation: South Africa, Germany, and Australia" (1985) 31 Australian Journal of Politics and History 162 at 165). Later that year, a decree defined a Jew as a "non-citizen" (Fraser, "Law Before Auschwitz: Aryan and Jew in the Nazi Rechtsstaat" in Cheah, Fraser and Grbich (eds) Thinking Through the Body of the Law (1996) at 66). In 1938, legislation disbarring all Jewish lawyers was enacted (Fernandez, "The Law, Lawyers and the Courts in Nazi Germany" (1985) 1 South African Journal on Human Rights 124 at 128). After 1938 laws for the registration of Jewish property were made. After 1940 laws for the sequestration of such property in Poland were made. People of the Jewish race were excluded from compensation for war damage before a worse fate befell most of them (Taylor, The Anatomy of the Nuremberg Trials. A Personal Memoir (1992) at 340).
[294] Basic Law of the Federal Republic of Germany, Article 3.3 ["Nobody shall be prejudiced or favoured because of their sex, birth, race, language, national or social origin, faith, religion or political opinions."]
[295] Constitution of the Republic of South Africa, s 9(3) ["The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."]
[296] Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1423; 147 ALR 42 at 147.
[297] Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266.
[298] See for example R v Oakes [1986] 1 SCR 103 at 120-121; R v Smith [1987] 1 SCR 1045 at 1061; Edmonton Journal v Attorney-General for Alberta [1989] 2 SCR 1326 at 1374, 1377-1378. See also Claydon, "International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms" (1982) 4 Supreme Court Law Review 287; Cohen and Bayefsky, "The Canadian Charter of Rights and Freedoms and Public International Law" (1983) 61 Canadian Bar Review 265; Schabas, International Human Rights Law and the Canadian Charter (1991); Hogg, Constitutional Law in Canada, 3rd ed (1992) at 822-824.
[299] cf Industrial Relations Act Case (1996) 187 CLR 416 at 565 per Dawson J.
[300] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 69, 79; Horta v The Commonwealth [1994] HCA 32; (1994) 181 CLR 183 at 195.
[301] cf Kruger v The Commonwealth [1997] HCA 27; (1997) 71 ALJR 991 at 1037; [1997] HCA 27; 146 ALR 126 at 190.
[302] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-437, 446.
[303] See Fitzgerald, "International Human Rights and the High Court of Australia" (1994) 1 James Cook University Law Review 78.
[304] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 42; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 306, 321; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287. A similar approach has been adopted in the United Kingdom: Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 283; R v Home Secretary, Ex parte Brind [1991] 1 AC 696 at 761; Derbyshire CC v Times Newspapers [1992] UKHL 6; [1992] QB 770 at 830; in New Zealand: Tavita v Minister for Immigration [1994] 2 NZLR 257 at 266; and in Canada: Reference as to Powers to Levy Rates on Foreign Legations and High Commissioners' Residences [1943] SCR 208 at 249; Schavernoch v Foreign Claims Compensation [1982] 1 SCR 1092 at 1098.
[305] Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346 at [1997] HCA 38; 1424; 147 ALR 42 at 148.
[306] See United Nations Charter 1945, Arts 1(3), 55(c), 56; Universal Declaration of Human Rights 1948, Art 2; International Convention on the Elimination of all forms of Racial Discrimination 1965, Arts 1(1), 1(4), 2, 6; International Covenant on Civil and Political Rights 1966, Art 2(1); International Covenant on Economic, Social and Cultural Rights 1966, Art 2(2); Declaration on Race and Racial Prejudice 1978, Art 9(1). Australia signed the International Convention on the Elimination of all forms of Racial Discrimination on 13 October 1966, ie at the time of the parliamentary debates which led to the amendment of par (xxvi) of the Constitution. Australia ratified the Convention on 30 September 1975. See also Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 204-206; Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 124-125.
[307] South West Africa Cases (Second Phase) [1966] ICJR 3 at 293.
[308] [1942] HCA 14; (1942) 65 CLR 373 at 411.
[310] [1932] USSC 126; 286 US 472 at 480 (1932); cf Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 479.
[311] Defined in Sched 1 of the Bridge Act.
[312] Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7.
[313] Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 10-11.
[314] Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1 at 7.
[315] Commonly, it derives importance from legislation governing statutory interpretation which preserves acquired rights in the event of "repeal" of an earlier statute: Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1; Beaumont v Yeomans (1934) 34 SR (NSW) 562 at 568-569.
[316] As Windeyer J confessed in Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 14.
[317] Bennion, Statutory Interpretation, 3rd ed (1997) at 214.
[318] The Queen v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207 at 226.
[319] See Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 472.
[320] cf South Australia v The Commonwealth [1942] HCA 14; (1942) 65 CLR 373 at 411 per Latham CJ.