Prior to 1967, the Race Power gave Federal Parliament the power to make laws with respect to 'the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws'.
The effect of this was that State governments created their own laws and policies for Aboriginal and Torres Strait Islander people. Many of these laws were assimilationist in nature (Thomas 2017).
As a result of the 1967 Referendum, s 51 (xxvi) was amended to remove the words 'other than the aboriginal race in any State'.
Following Kartinyeri, there have been proposals for further constitutional reform. In January 2012, the Expert Panel on Constitutional Recognition of Indigenous Australians recommended replacing s 51 (xxvi) with a s 51A and inserting a new section: 116A. Under s 51A, the Parliament would retain the power to make laws for the people of any race but, in making such laws, it must among other things, '[a]cknowledg[e] the need to secure the advancement of Aboriginal and Torres Strait Islander peoples'. Section 116A would explicitly prohibit racially discriminatory legislation. (Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012; Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel 2012)
Reform to the Race Power has also been supported by a number of former justices of the High Court (Lee, 2020).
Facts of the case
In 1991, the South Australian Government announced that it would build a bridge connected the town of Goolwa to Hindmarsh Island / Kumarangk. Women of the local Ngarrindjeri community, including Dr Doreen Kartinyeri, opposed the construction on the basis that the island was sacred to them. They submitted a cultural heritage application to the then Federal Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner (the Minister), seeking a declaration under the Aboriginal and Torres Strait Islanders Heritage Protection Act 1984 (Cth) (the Heritage Act) to protect the area.
The ban on bridge construction
Under s 10 of the Heritage Act, the Minister had the power to make a declaration to preserve and protect culturally significant Aboriginal areas on application by an Aboriginal person or group.
In May 1994, the Minister commissioned Professor Cheryl Saunders to examine the Hindmarsh Island cultural heritage application. Parts of the submissions made by the Ngarrindjeri women were confidential and were not to be read by men. As a woman, Professor Saunders was able to consider all the evidence, and found that the island and surrounding areas had 'a supreme spiritual and cultural significance for the Ngarrindjeri people' and were 'crucial for the reproduction of Ngarrindjeri people and of the cosmos which supports their existence'. She concluded that the area was 'vital to Ngarrindjeri existence' and recommended that a declaration be made under the Heritage Act (Section 71 Part 1, 2020).
Accordingly, in 1994, the Minister made a declaration banning construction of the proposed bridge for 25 years.
In February 1995, the Federal Court found that the ban was invalid. The Court relied heavily on the fact that the declaration had been made without the Minister having been able to personally view the entirety of the evidence (Chapman, T.L. & Ors v The Hon. Tickner, R. & Ors  FCA 46).
The Royal Commission
By 1995, there was widespread media and political commentary about the ban. Claims arose that the evidence supporting the heritage declaration (which had become known in the media as the 'secret women's business') had been made-up.
As a result, two government inquiries into the heritage application were announced: a State Royal Commission (commissioned by the South Australian Government) and a Federal inquiry led by a Federal Court judge (commissioned by the Minister).
The Royal Commission, which the Ngarrindjeri women boycotted, found that the evidence had been fabricated (Simons 2007).
Enactment of the Bridge Act
In December 1995, Dr Kartinyeri made a second heritage application.
This claim was still pending when, on 22 May 1997, following election of the Howard Government, the Federal Parliament passed the Bridge Act.
Section 4 of the Bridge Act restricted the operation of the Heritage Act, prohibiting heritage applications regarding the Hindmarsh Island bridge area. It prevented the Minister from making a declaration or acting on any such applications.
Challenge to the Bridge Act
In September 1997, Dr Kartinyeri challenged the validity of the Bridge Act in the High Court. She submitted that the Race Power only authorises laws made for the benefit of 'the people of any race' or, alternatively, for the benefit of members of 'the aboriginal race' (Nettheim 1998).
This was the first time the Court had been asked to directly deal with the meaning and scope of the Race Power (Malbon 2002).
Details of the judgment
By majority of 5 - 1, the Bridge Act was held to be valid.
Brennan CJ & McHugh J decided the case based on the fact that the Bridge Act amended or partially repealed the Heritage Act -. They held that 'the power to make laws includes a power to unmake them ... unless there be some constitutional limitation on the power' -.
The Heritage Act was validly made under the Race Power. Therefore, the Bridge Act was also valid under the Race Power, because it did nothing more than restrict the operation of the Heritage Act. Their Honours did not find any limitation on the power to repeal in this case and did not decide whether the Race Power was confined to beneficial laws (Nettheim 1998).
Gaudron J agreed that the Race Power authorised the Heritage Act and also authorised its partial repeal by the Bridge Act .
Importantly, for Gaudron J, the Bridge Act did not change the nature of the Heritage Act. The Heritage Act, as amended by the Bridge Act, remained a law for the protection and preservation of areas and objects of significance in Aboriginal tradition .
However, by way of obiter dicta, her Honour noted that if the Bridge Act was a standalone law which disadvantaged the Ngarrindjeri people in a similar way, it would be unlikely to be supported by the Race Power .
Her Honour held that the Race Power was, theoretically, wide enough to authorise laws which disadvantage the people of a particular race and that the 1967 Referendum did not change that , . However, her Honour found it 'difficult to conceive of circumstances in which a law presently operating to the disadvantage of a racial minority would be valid' .
Specifically, in relation to Aboriginal Australians, only laws directed to remedying their 'circumstances of serious disadvantage' could be, on the face of it, considered 'appropriate and adapted' for the purpose of the Race Power .
Her Honour limited the scope of the Race Power to laws which:
(1) relate to a relevant difference between the people of a particular race and the people of other races ; and
(2) are appropriate and adapted to that relevant difference .
Any law which does not fit these criteria could be struck down by the Court as a 'manifest abuse' of the Race Power .
Gummow & Hayne JJ upheld the validity of the Bridge Act.
They held that the Race Power supports laws which discriminate on the basis of race, and that such laws can either confer a right/benefit or impose an obligation/disadvantage. They held that the changes to the Race Power made by the 1967 Referendum did not confine its use to the making of beneficial laws .
Therefore, their Honours held that the fact that the Bridge Act effectively imposed a disadvantage on the Ngarrindjeri people was not relevant to its constitutional validity.
Kirby J, in dissent, held that the Race Power does not support laws detrimental to, or adversely discriminatory against the people of any race . His Honour would have found the Bridge Act invalid on this basis , because the Bridge Act was detrimental to all Aboriginal people as it prevented them from making an application under the Heritage Act.
In this case, a group of Ngarrindjeri people were prevented from making an application in regard to the Hindmarsh Island bridge area -.
In addition, the Bridge Act could not be considered 'necessary' by reference to the race of a particular group. The evidence provided related only to the necessity of building the bridge .
His Honour considered the following:
1. The text and context of the Race Power
In Kirby J's view, the text of the Constitution must be interpreted in the context of its history and the changing values of the Australian and international communities .
When interpreting the Race Power, the Court should consider its amendment by the 1967 Referendum, and the surrounding circumstances . Kirby J found 'not the slightest hint whatsoever in any of the substantial referendum materials' that the proposed amendment would 'empower the Parliament to enact laws detrimental to, or discriminatory against, the people of any race, still less the people of the Aboriginal race' . For example, Parliamentary debate on the Constitutional Alternation (Aboriginals) Bill 1967 (Cth) explicitly referred to the amendment as being 'with respect to Aboriginal advancement'; 'favourable, not unfavourable'; and having 'no suggestion of any intended discrimination in respect of Aboriginals except a discrimination in their favour' -.
2. The practical unworkability of a 'manifest abuse' test
His Honour doubted the adequacy of limiting the Race Power by reference to 'manifest abuse' (see Gaudron J, above).
Because of the gradual escalation of discriminatory laws, courts may have lost the capacity to influence or check such laws by the time they reach the stage of 'manifest abuse' or 'outrage' . To demonstrate, his Honour gave examples of some of the earliest racist laws made in Germany under the Third Reich and in South Africa under apartheid, which would be unlikely to constitute a 'manifest abuse' of the Race Power.
3. Principles of constitutional interpretation
Where the Constitution is ambiguous, the Court may adopt a meaning that conforms with the principles of international law and fundamental rights .
In this case, there was ambiguity as to whether the Race Power authorised detrimental laws. This meant the Court should consider the fact that international law forbids detriment to, and adverse discrimination against, people by reference to their race.
4. The repeal/amendment argument
Kirby J held that the argument 'what Parliament may enact it may repeal' must be subject to the requirement that every law be constitutionally valid .
Therefore, the fact that the Bridge Act partially repealed the Heritage Act could not give validity to the Bridge Act if it would not otherwise be authorised by the Race Power.
Former High Court Chief Justice Robert French observed that it would have been hard for the judges to accept the plaintiffs' argument in Kartinyeri, because of the difficulty of defining a 'beneficial' law. French states that 'one person's idea of a benefit may be another person's idea of a detriment' (Section 71 Part 2, 2020).
By contrast, Former High Court Justice Michael Kirby argues that 'courts have to draw lines in the sand all the time'; characterising a law as beneficial or detrimental is something courts often do, 'and should do with the races power' (Section 71 Part 2, 2020).
In March 2001, the bridge was opened to the public.
In 1997, Thomas and Wendy Chapman, whose marina development led to the proposal for the bridge, sued the following people involved in the construction ban:
- Robert Tickner, as the Minister who made the declaration banning the bridge.
- Cheryl Saunders, who was nominated by Mr Tickner under the Heritage Act to receive evidence from interested members of the public and prepare a report on the application.
- Deane Fergie, who prepared a report containing an anthropological evaluation of the significance of secret women's knowledge within the Aboriginal tradition in the Hindmarsh Island area.
The Chapmans sought $20M in compensation and also made allegations of misleading and deceptive conduct and misfeasance in public office (Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62). This claim was rejected on 21 August 2001. Von Doussa J was 'not satisfied that the restricted women’s knowledge was fabricated or that it was not part of genuine Aboriginal tradition' (Chapman ).
In response to the decision and its findings on the legitimacy of the Ngarrindjeri women's claims, Dr Kartinyeri said: 'We had been vindicated at long last. Words can't explain how I felt' (Kartinyeri & Anderson 2009, 199).
In September 2002. The Ngarrindjeri women's claim was further supported by the discovery of the 200-year-old bones of an Aboriginal woman and her daughter, buried below the Hindmarsh Island bridge.
Following this discovery, South Australia's Alexandria Council issued a formal apology for their ill treatment of Ngarrindjeri people (Sydney Morning Herald 2002).