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LAW2111 Constitutional Law

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LAW2111 Constitutional Law

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Course Code: LAW2111
University: Monash University

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Country: Australia


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?


Section 51(xxvi) of the Constitution of Australia authorises the commonwealth of Australia to erect any special law that applies to any people.[1]In Kartiniyeri,[2]the High Court was asked if section 51(xxvi) of the Australian Constitution could be a tool for the legislation that adversely discriminated on the basis of the race[3]. The court was split in relation to the decision in this case. Gaudron J provided that the validity of the legislation cannot be questioned and there is no significant reason to doubt the validity of the legislation under section 51 (XXVI) of the constitution. It was in addition, stated by the judge, that not only did section 51 validate the Act, but also provided authority to repeal it partially. The judge did not think that the parliament had the power to repeal the Heritage Act[4] by comparing it to the Bridge Act and it would thus remain a law.
Decision of the judges
Gummow and Hayne JJ (paragraph 51-102) (no page number in judgement)
The language of the Act was unambiguous. The attempt of making a law to suppress another law which has been made in accordance to the constitution cannot be held valid as it was in the case of horta[5] and polites[6].
Brennan Cj and McHugh J (paragraph 2-50) (no page number in judgement)
Brennan Cj and McHugh J provided a negative answer to the reserved question. They further provided that as any contrary agreement was absent, the cost would be have to be endured by the plaintiff. It was further provided by them that Pt II of the heritage act is supported by s 51 (xxvi) the examination of the characteristic of power would be misleading and unnecessary. This is because for such reasons false assumptions have to be made namely that section 51 does not provide the power to amend or real laws and second same characteristics cannot be possessed by law enacted to repeal another law[7].
Kirby J (paragraph 103-177) (page number not provided in judgement)
According to Kirby J in Kartiniyeri,it is not possible to surely conclude that the scope of the Section (section 51 xxvi) is absolutely confined to providing benefit to the people of any particular race. On the other hand, the respected Judge also opined that that there was no way to properly come to the conclusion that the power granted under the above mentions section were confined to the erection of laws that do not discriminate against the interests of the people of a particular race on a large scale or extent.[8] Although it was a special law it was adversely discriminatory and detrimental against the aboriginal people of Australia with respect to their race. Therefore the legislation did not fall within the class of provisions Australian constitution in relation to race power permits. In addition there is no other head of power which has been found in the constitution to provide support to the bridge act and thus it is totally unconstitutional.[9]
In Kartiniyeri, the main issue that the court dealt with was the interpretation of section 51 of the Australian Constitution with references to part (xxvi) and its application to the indigenous people. The court has to consider whether the Parliament had the authority to make beneficial or discriminatory laws. It was found that the Parliament could make any laws for any race whether they were detrimental or beneficial, it did not matter.
2.The effects of the proposed referendum
The referendum is related to providing power to the aboriginals with respect to monitoring the use of section 51(xxvi) towards law making. If such referendum is incorporated the first nation would evidently not agree with the majority towards the enactment of laws as they would only want laws which are made in their interest and as a result a conclusion would be hard to reach. The incorporation of the first nation into the constitution would provide that the rights which the parliament has been provided by section 51(xxvi) of the constitution would be constrained further.
By having a say in the kind of laws that would have an effect the Indigenous people,  it would help the law makers and interpreters of law understand how to build the pathway to peace with the aggrieve aboriginals. It will provide as an extrinsic evidence which  was missing in interpretation of s51Kartinyeri.[10]
Under s 51 (xxvi) the federal governmenthad the power to make national laws for everyone but excluded the Aboriginals. Aboriginal people will finally have a right to comments on the laws and contributed to the law that has previously excli=uding them they can stop legislation that discriminate against them in process of oarliamentary suggestion as they have a voice for first nation
Indigenous people want equality
Uluru Statement
Referendum of section 51
section 51 (xxvi) Australian constitution[11]
A Articles/Reports
The Referendum Council.(2017). Referendumcouncil.org.au. Retrieved 19 August 2017, from https://www.referendumcouncil.org.au/
Referendum Council Press Release 26 May 2017: https://www.referendumcouncil.org.au/sites/default/files/2017-
The Referendum Council, Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, October 2016 https://www.referendumcouncil.org.au/sites/default/files/2016-12/referendum_council_discussion_paper.pdf
The Referendum Council, Final Report of the Referendum Council, June 2017 https://www.referendumcouncil.org.au/final-report
To walk in two worlds. (2017). The Monthly. Retrieved 18 August 2017, from https://www.themonthly.com.au/issue/2017/july/1498831200/megan-davis/walk-two-worlds
Uluru Statement from the Heart | Referendum Council.(2017). Referendumcouncil.org.au. Retrieved 19 August 2017, from https://www.referendumcouncil.org.au/event/uluru-statement-from-the-heart
Williams, G. (2012). Removing racism from Australia’s constitutional DNA. Alternative Law Journal, 37(3), 151-155.
B Cases
Kartinyeri v Commonwealth (1998) 195 CLR 337
Australian Constitution s 51.
(1998) 195 CLR 337 (“Kartinyeri”).
(1998) 195 CLR 337 at [1]
Aboriginal and Torres Strait Islander Heritage Protectin Act 1984 (Cth)
Horta v The Commonwealth (1994) 181 CLR 183
Polites v Commonwealth – [1945] HCA 3
(1998) 195 CLR 337 at [21]
Kartinyeri v Commonwealth (1998) 195 CLR 337
(1998) 195 CLR 337 at [179]
Megan Davis, ‘To Walk in Two Worlds: The Uluru Statement is a clear and urgent call for reform’, The Monthly, July 2017, https://www.themonthly.com.au/issue/2017/july/1498831200/megan-davis/walk-two-worlds
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 51Legislative Powers Of The Parliament [See Notes 10 And 11] (2017) Www5.austlii.edu.au .

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