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Pengelley, Nicholas --- "The Hindmarsh Island Bridge Act Must Laws Based on the Race Power be for the 'Benefit' of Aboriginies and Torres Strait Islanders? And what has Bridge Building got to do with the Race Power Anyway" [1998] SydLawRw 6; (1998) 20 (1) Sydney Law Review 144



[*] BA (SA), DipL (BAB), Law Librarian, Monash University Paper originally submitted in partial satisfaction of requirements of the LLM degree at Monash University in November 1997. With thanks to Pamela O’Connor, Lecturer in Law, Monash University

[1] Transcript available from AUSTLII (http://www.austlii.edu.au).

[2] Act no 60, 1997. Assented to 22 May 1997 (operation on assent, s2).

[3] Native Title Amendment Bill 1997 (Cth).

[4] A detailed chronology is found in two reports: Saunders, C, Report to the Minister for Aboriginal and Torres Strait Islander Affairs on the Significant Aboriginal Area in the Vicinity of Goolwa and Hindmarsh (Kumarangk) Island pursuant to Section 10(4) of the Aboriginal and Torres Strait Islander Act 1984, July 1994. Professor Saunders is Professor of Law at the University of Melbourne and Director of the Centre for Comparative Constitutional Studies, and Deputy Chair of the Constitutional Centenary Foundation and; Mathews, J, Commonwealth Hindmarsh Island Report, 27 June 1996. Judge Jane Mathews is a Judge of the Federal Court of Australia, President of the Administrative Appeals Tribunal and Deputy President of the National Native Title Tribunal. A useful summary is provided in the Bills Digest prepared by the Parliamentary Library (Hindmarsh Island Bridge Bill 1996, Bills Digest No.50, 1996-97). See also the report of the Senate Legal and Constitutional Legislation Committee on the Hindmarsh Island Bridge Bill 1996 (December 1996).

[5] Bills Digest, id at 3. The issue apparently related to Hindmarsh and Mundoo Islands and the mouth of the Murray River in general.

[6] The Heritage Protection Act provides for the protection of Aboriginal and Torres Strait Islander heritage, including sites and objects. It operates by way of a ministerial declaration that a site or object is of significance to the Aboriginal peoples and Torres Strait Islanders and is under threat of injury or desecration.

[7] See Saunders, C, above n4.

[8] Chapman v Tickner (1995) 55 FCR 316.

[9] Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451.

[10] South Australia. Report of the Hindmarsh Island Bridge Royal Commission, presented by Stevens, I E, Royal Commissioner, December 1995.

[11] See Mathews, J, above n4.

[12] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 70 ALJR 743. The report was tabled in the Senate on 17 December 1996. Largely because the “secret women’s business” evidence was withdrawn, Justice Mathews found that, “there is insufficient materials from which the Minister could be satisfied that the building of the Hindmarsh Island Bridge would desecrate this area according to these traditions”.

[13] Brennan, F, ‘Building a Bridge on a Constitutional Sea of Change’ (1997) 4 Indigenous L Bull 6 at 8. The minority report of the Senate Legal and Constitutional Legislation Committee which inquired into the Hindmarsh Island Bridge Bill endorsed Brennan’s view but it was rejected by the majority who accepted the advice of the Attorney-General’s Department. (Burmester, H, Chief General Counsel, Attorney-General’s Department. Re: Hindmarsh Island Bridge Bill Opinion. 27 November 1996, para 3). (Father Frank Brennan SJ AO, is Director of the Uniya Jesuit Social Justice Centre).

[14] Hansard (House of Representatives), 26 March 1997 at 3278. The Minister for Health and Family Services cited advice provided by the Attorney-General’s Department. This opinion was reiterated by the Commonwealth Solicitor-General G Griffith QC, in the directions hearing in Kartinyeri v The Commonwealth, “... whether ... the races power must be beneficial in its operation. We flatly assert that this is not so”. Above n1 at 7.

[15] Constitution Alteration (Aboriginals) Act 1967 (Cth), s2.

[16] National Australasian Convention Debates. Sydney, 1891 at 701–704; Adelaide, 1897 at 830- 832; Melbourne, 1898 at 227-56.

[17] Quick, J and Garran, R, The Annotated Constitution of the Australian Commonwealth, 1901 at 622. The clause was first drafted by Sir Samuel Griffith who, in 1891, said that, “What I have had more particularly in my own mind was the immigration of coolies from British India, or any eastern people subject to civilised powers. The Dutch and English governments in the east do not allow their people to emigrate to serve in any foreign country unless there is a special law made by the people of that country protecting them, and affording special facilities for their coming and going ... . I maintain that no state should be allowed, because the federal parliament did not choose to make a law on the subject, to allow the state to be flooded by such people as I have referred to”. National Australasian Convention Debates, Sydney, 1891 at 703.

[18] See the record of the Convention debates above n16; Quick and Garran above n17 at 622. And see, eg, the Pacific Island Labourers Act 1901 (Cth), which gave the Minister for External Affairs powers to control Pacific Islanders, and to deport them. Writing of that Act in 1905, B A Ross said that s51(xxvi) gave the Parliament power to, “[L]ocalise them [Pacific Islanders] within definite areas, to restrict their immigration, to confine them to certain occupations ... Parliament could make the place too hot for them, or offer such inducements to go that they would leave voluntarily ... . [If] special legislation were enacted under the power given by subs xxvi ... then it would appear possible in the case of kanakas to carry out the policy of a White Australia ... .” Ross, C, “Pacific Island Labourers Act 1901” (1905) Commonwealth LR at 3.

[19] Burmester above n13 at para 3.

[20] Above n1 at 2.

[21] Ibid.

[22] Hansard (House of Representatives) 17 October 1996 at 5801.

[23] Burmester above n13 at para 3.

[24] Hansard (Senate Legal and Constitutional Legislation Committee) Reference: Hindmarsh Island Bridge Bill 1996. 29 November 1996, LC 113.

[25] Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 735 per Isaacs J.

[26] Pearce, D and Geddes, R, Statutory Interpretation in Australia (4th edn) at para 7.22.

[27] Ibid.

[28] [1982] HCA 27; (1982) 153 CLR 168.

[29] Western Australia v The Commonwealth [1995] HCA 47; (1993) 183 CLR 373 at 460-61.

[30] Id at 462.

[31] Ibid.

[32] Above n21 at 4.

[33] Ibid.

[34] Above n29 at 461.

[35] The long title to the Act reads: “An act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes”.

[36] Hansard (Senate Legal and Constitutional Legislation Committee) Reference Constitutional Aspects of the Native Title Amendment Bill 1997, October 23–24 1997.

[37] Id at L&C 285.

[38] [1982] HCA 27; (1982) 153 CLR 168 at 242.

[39] Id at 209.

[40] Id at 186 per Gibbs CJ; at 244 per Wilson J. Aickin J agreed with the Chief Justice. Mason J did not consider s51(xxvi) and Brennan J did not consider it in terms relevant to this discussion.

[41] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 180.

[42] Ibid.

[43] Id at 242.

[44] Id at 110.

[45] Id at 158.

[46] Id at 273.

[47] Brennan, above n13 at 8 citing Attorney-General’s Advice on Constitutional Validity of Hindmarsh Island Bridge Bill 1996, 5 February 1997 at 2.

[48] Ibid.

[49] Sadler, R, “The Federal Parliament’s Power to Make Laws ‘with respect to ... . the people of any race’”. [1985] SydLawRw 6; (1985) 10 Syd LR 591 at 605-6.

[50] Above n13 at 8.

[51] Gaudron J expressed this view in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 56 and in Kruger v The Commonwealth [1997] HCA 27; (1997) 146 ALR 126 at 193.

[52] Above n13.

[53] Western Australia v The Commonwealth [1995] HCA 47; (1993) 183 CLR 373 at 461.

[54] Clarke, J, Racial Non-discrimination Standards and Proposed Amendments to the Native Title Act, Australian Institute of Aboriginal and Torres Strait Islander Studies (ANU). Native Title Research Unit. Issues Paper no 16, April 1997 at 4 (http://www.aiatsis.gov.au/ntpapers/ ntip16.htm).

[55] Coper, M, The Franklin Dam Case, 1983 at 16. This view was also put to the Parliamentary Joint Committee in its hearings into the Native Title Bill 1997. Mr Robert Orr (General Counsel, Wik Task Force, Department of Prime Minister and Cabinet) said, “As is often said ... one presumes that as a result of the 1967 amendment the governments will, under that, pass or amend laws that have the net effect of being of benefit to Aboriginal people. We maintain that the Native Title Act as amended continues to present a significant benefit to Aboriginal people”. Hansard, 17 October 1997 (NT 2018).

[56] Lumb, R D and Moens, G A, The Constitution of the Commonwealth of Australia (5th edn, 1995) at 216 n482. Hanks, P, Constitutional Law in Australia (2nd edn, 1996) at 463. Wynes, W A, Legislative, Executive and Judicial Power in Australia (5th edn, 1976) at 304. Joske, P, Australian Federal Government, 1967 at 225.

[57] Blackshield, T and Williams, G, Australian Constitutional Law and Theory: Commentary and Materials (2nd edn, 1998) chapter 4.

[58] Above n13 at 8.

[59] Attwood, B, and Markus A, The 1967 referendum, or when Aborigines didn’t get the vote, 1997, chapters 4 and 5.

[60] A wider discussion of this issue is beyond the scope of this note. See generally the excellent account provided by Attwood and Markus, op cit.

[61] Id, ch 5.

[62] Id, ch 4 and 5.

[63] Ibid.

[64] Hansard (House of Representatives), 25th Parliament, First session, 1965 at 532–534.

[65] Attwood and Markus, above n 59, chapter 4. Hansard (House of Representatives), March 1967 at 263 (PM Harold Holt); Hansard (House of Representatives) 1 March 1967 at 279 (Opposition Leader Whitlam); Hansard (Senate) 2 March 1967 at 235 (Senator Henty). All references in these debates on the passing of the bill are to positive discrimination only.

[66] Described as a “sea change” and a “circuit breaker” by the President of the Australian Law Reform Commission. Hansard (Senate Legal and Constitutional Legislation Committee) Constitutional Validity of the Native Title Amendment Bill 1997, October 24 1997. L&C 325.

[67] ALRC Draft Comments on the Native Title Amendment Bill 1997 part 2.6. (http:// online.anu.edu.au/alrc/wik/wikdraft.html)

[68] [1997] HCA 38; (1997) 147 ALR 42 at 147.

[69] Id at 148.

[70] ALRC Draft Comments above n67 part 3.

[71] (1945) Second Recital and Article 1(3).

[72] (1965) preamble, Article 1, para 1, Article 5.

[73] (1966) Article 2(1), Article 3.

[74] (1966) Article 2(2).

[75] Above n68 at 147.

[76] Id at 148.

[77] [1992] HCA 23; (1992) 175 CLR 1.

[78] [1995] HCA 20; (1995) 183 CLR 273

[79] [1997] HCA 27; (1997) 146 ALR 126

[80] [1992] HCA 57; (1992) 177 CLR 292 at 306.

[81] Department of Foreign Affairs and Trade, In the National Interest (No 147) 1997, National Capital Printing, Canberra at para 24. “[The Government’s unqualified commitment to racial equality and to eliminating racial discrimination] is a non negotiable tenet of our national cohesion, reflected in our racial diversity, and it must remain a guiding principle for our international behaviour. The rejection of racial discrimination is not only a moral issue, it is fundamental to our acceptance by, and engagement with, the region where our vital security and economic interests lie. Racial discrimination is not only morally repugnant, it repudiates Australia’s best interests.”

[82] Section 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: (a) the construction of a bridge, and associated works (including approaches to the bridge), in the Hindmarsh Island bridge area; (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). (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).”

[83] Above n21 at 4.

[84] Ibid.

[85] Id at 8.

[86] Hansard (Joint Committee on Native Title and ATSI Land Fund) 17 October 1997, NT 2005.

[87] Above n21 at 10.

[88] Castan, R, Supplementary Submission to the Parliamentary Joint Committee on Native Title, 22 October 1997.

[89] Ibid.

[90] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.

[91] [1971] HCA 16; (1971) 122 CLR 353 at 396–7.

[92] [1996] HCA 48; (1996) 186 CLR 140 at 200 per Toohey J. A discussion of this very complex issue is beyond the scope of this note. For an excellent and detailed recent account see Goldsworthy, J, “Originalism in Constitutional Interpretation” (1997) 25 Fed LR 1.

[93] McGinty’s case, id at 166–7.

[94] Mabo [No.2], above n77 at 42 per Brennan J.

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