Case of Kartinyeri V Commonwealth-Free-Samples-Myassignmenthelp.com

Questions: 1.Explain the interpretive question concerning the application of section 51(xxvi) to Indigenous people that the High Court had to resolve in Kartinyeri. 2.Suppose that a successful referendum resulted in a change to the Constitution and the establishment of a First Nations Voice to advise Parliament on law-making with respect to Indigenous affairs, as called for in the Uluru Statement from the Heart and the Final Report of the Referendum Council. Would, or should, this make any difference to the interpretation of laws enacted under section 51(xxvi) that apply to Indigenous people? Answers: 1.One of the landmark decisions given by the High Court was the case of Kartinyeri v Commonwealth[1] where section 51(xxvi) of the Constitution was interpreted. The case in hand was related to the applicability of this particular section over the Indigenous population in Australia. Under section 51 (xxvi) of the Australian Constitution, the matter which relate to people of one or any race, can be legislated by the Parliament, except for the people who belong to Aboriginal race, irrespective of the state in which they reside. And under this very section, it is mandatory to create special laws for the aboriginal people. Through the insertion of this section in the constitution of Australia, the discrimination against a specific section of the community has been allowed, particularly on the basis of the race of such people[2]. In Kartinyeri v Commonwealth, the minister held the power of making declarations for the purpose of protecting the areas of Aboriginals. A claim was made by a group containing women regarding the use of island for womens secret business, and that this business could not be divulged to men. The minister was permitted to put forward his recommendations, only after a woman was given the responsibility of carrying out the enquiry. However, this enquiry had different problems which led to the passing of a legislature by the government for going forward with the bridge and even though there were an objection by the Aboriginals, the go ahead was given. The major point which was raised through this case was the power of the commonwealth to pass an act under its race power, which in reality was detrimental for people belonging to a particular race group.[3] The decision of the case was not decided due to the division in the decision of the jury. In the view of Hayne and Gummow, such an act could be undertaken without any issues. The reason for this was due to the fact that there was no restriction on power being used for non-detrimental or detrimental purposes, so it could be used for benefit or disadvantage of the particular race. They held that the need for the power to be valid only upon being used for the benefit of people belonging to Aboriginal race was wrong and so, they rejected this notion. They also stated that the constitution did not require the law to distinguish between the needs and responsibilities of different race people. Hayne and Gummow suggested that the limit which had been placed through the quoted section was on the basis of what is deemed necessary[4]. The legislation was not limited through section 51(xxvi) regarding its application on people belonging to a particular race[5]. Some of the arguments were rejected by Hayne and Gummow. The interpretation of 1997 act was one of the arguments rejected by them regarding the same to be consistent with the standards set regarding human rights based on the international laws. The argument pertaining to the 1967 referendum where it was asked to drawn the limitations from this referendum, were also rejected by them[6]. As highlighted earlier, the views of the judges was not unanimous. Kirby JJ and Gaudron were of the view that the power was not being used for the proper purpose as the same proved to be of detriment to the racial minority. Hence, in their view, the legislation was not valid. And they did put forward the suggestion of the limitations on the basis of section 51(xxvi)[7]. It was the view of Kirby that there was need under the law to direct the members of a particular race; however, there was still a need to deal in a valid manner with the subgroups. McHugh and Brennan were the remaining two judges of this case who did not take into consideration the scope of the power. A decision regarding the constitutions quoted section being subjected to these limitations was not undertaken by them. The interpretative principle discussed earlier was reaffirmed by the court. The crux of this case and the guidance which it offers for similar situations is that where the constitution is ambiguous, the universal basic rights have to be complied with[8]. 2.A successful referendum would make way for changes to be brought to the Australian Constitution. Through this, there would be an establishment of the First nations Voice of the Aboriginal and Torres Strait Islanders who would be given the responsibility of advising the Parliament in all such issues which relate to making of law in the areas which touch the Indigenous people, and which have been covered under the Final Report of the Referendum Council and the Uluru Statement from the Heart. This would result in a key change being made to the way in which the section 51 (xxvi) would be interpreted, which right now, is applicable in the nation. The key difference which would be made owing to this would be a unanimous decision being attained in the matter of Kartinyeri v Commonwealth. The First Voice could clearly present before the Australian High Court that the powers which have been given pursuant to the quoted section, could not be used in a manner which proves to be a disadvantage for the Aboriginals. This is due to the fact that the First Voice would be able to highlight the need for conforming with the international human rights, which relate to the Aboriginals. So the cases like Kartinyeri v Commonwealth, would become decisive and would also provide the required backing to the ideas presented by Kirby JJ and Gaudron, who also supported the notion that the powers under the quoted section could not be used in a manner which proves to be detrimental for the Aboriginals. The scope for protection of other races, apart from the Aboriginals, could also be enhanced through this action. Bibliography Articles/ Books/ Reports Williams G, Brennan S, and Lynch A, Black shield and Williams Australian Constitutional Law and Theory (Federation Press, 6th end, 2014) Cases Kartinyeri v Commonwealth (1998) 195 CLR 337 Others Australasian Legal Information Institute, Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337; 152 ALR 540; 72 ALJR 722 (1 April 1998) (2017) https://www.austlii.edu.au/au/cases/cth/HCA/1998/22.html Fox B, Essay (2012) https://www.cefa.org.au/bowen-fox Jade, Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 22 (2017) https://jade.io/article/68043 Nettheim G, The Hindmarsh Bridge Act Case: Kartinyeri v Commonwealth (2017) https://www.austlii.edu.au/au/journals/IndigLawB/1998/48.html Williams G, Inquiry into issues affecting Indigenous economic development in Queensland (9 November 2010) https://www.cabinet.qld.gov.au/documents/2011/Feb/Indigenous%20Economic%20Development%20and%20Review%20of%20Wild%20Rivers%20Bill/Attachments/wild-rivers-qg-sub%5B1%5D.pdf Williams G, The Races Power and the 1967 Referendum (2007) https://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/95.pdf (1998) 195 CLR 337 George Williams, The Races Power and the 1967 Referendum (2007) https://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/95.pdf Jade, Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 22 (2017) https://jade.io/article/68043 George Williams, Inquiry into issues affecting Indigenous economic development in Queensland (9 November 2010) https://www.cabinet.qld.gov.au/documents/2011/Feb/Indigenous%20Economic%20Development%20and%20Review%20of%20Wild%20Rivers%20Bill/Attachments/wild-rivers-qg-sub%5B1%5D.pdf Bowen Fox, Essay (2012) https://www.cefa.org.au/bowen-fox Garth Nettheim, The Hindmarsh Bridge Act Case: Kartinyeri v Commonwealth (2017) https://www.austlii.edu.au/au/journals/IndigLawB/1998/48.html George Williams, Sean Brennan and Andrew Lynch, Blackshield and Williams Australian Constitutional Law and Theory (Federation Press, 6th ed, 2014) Australasian Legal Information Institute, Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337; 152 ALR 540; 72 ALJR 722 (1 April 1998) (2017) https://www.austlii.edu.au/au/cases/cth/HCA/1998/22.html