The high court decided, controversially, in kartinyeri v commonwealth that the amended s. Explain the interpretive question concerning the application of section 51xxvi to indigenous people that the high court had to resolve in kartinyeri. Section 51xxvi of the commonwealth constitution authorises parliament to make laws with respect to the people of any race for whom it is deemed necessary to make special laws. Western australia v commonwealth 1995 183 clr 373 the native title act case. Buti, removal of indigenous children from their families. Constitutional law cth characterisation amendment or partial repeal operation and effect. Both of her parents were indian citizens and accordingly she was also, by descent, a citizen of india. Adherents have extolled tradition as a source of wisdom. In 1997, the commonwealth parliament passed the hindmarsh island bridge act 1997 cth the bridge act, exempting a tourism development project from the usual ministerial. One of the landmark decisions given by the high court was the case of kartinyeri v commonwealth 1 where section 51xxvi of the constitution was interpreted.
The following are some of the general principles formulated by sa courts. The case in hand was related to the applicability of this particular section over the indigenous population in australia. See further kartinyeri v the commonwealth 1998 195 clr 337, 4001 kirby j. Secretary of state for the home department 2005 2 w. Singh v commonwealth 2004 209 alr 355 tania singh the plaintiff was born in mildura, victoria, on 5 february 1998 and remained in australia from the time of her birth. Theories of constitutional interpretation modern democracy invites us to replace the notion of a regime founded upon laws, of a legitimate power, by the notion of a regime founded upon the legitimacy of a debate as to what is legitimate and what is illegitimatea debate which is necessarily without any guarantor and without any end. The national injury and what came before the push for reparation, australian indigenous law reporter, april 1998, vol.
J kirk, constitutional guarantees, and the concept of proportionality. Kartinyeri gaudron j and in a less direct way kirby j indicated in kartinyeri v commonwealth that there is a purposive element to the race power in that laws had to be necessary and therefore appropriate and adapted for the needs of a. Perhaps, in other words, constitutional interpretation is best thought of as an activity that one can do well or poorly, rather than as an application of some explicit general theory. Ii the interpretation of constitutional amendments we have over 100 years of jurisprudence available to us on the interpretation of the commonwealth constitution. On general constitutional principles they held that the power to make a law necessarily includes the power to repeal it or to amend it. The commonwealth hindmarsh island bridge case, where the race power was the central question. It came into effect on 1 january 1901 when the founding states federated into the commonwealth of australia, and was repealed effective 10 august 1967 following. Nearly all of this concerns the interpretation of words that were written in the 1890s, approved by the people in referenda in 1899 and enacted by the westminster parliament in 1900.
The dicta from koowarta and the tasmanian dam case thus formed the precedent for the crucial case of kartinyeri v. In the sole case in which the high court was required to directly consider the issue, kartinyeri v the commonwealth the hindmarsh island bridge case, it was unable to reach a majority view on the provisions meaning, and the tests that should be applied for. And see also kartinyeri v the commonwealth 1998 195 clr 337,417418 kartinyeri, sinanovic v r. The argument for the relevance of international law to constitutional interpretation was pressed in judgments by his honour again in kartinyeri v. Via an analysis of the reasons for judgement in kartinyeri v the commonwealth of australia this paper contends that an imperative of extinguishment of aboriginal sovereignty continuously informs australian law. The australian constitution and indigenous australians complete survey. In 1994, a group of ngarrindjeri women elders claimed that a proposed bridge could not be built over hindmarsh island because that site was sacred to them for reasons that could not be disclosed. Malbon, justin the race power under the australian. Icm agriculture pty ltd v the commonwealth 2009 hca 51 james v commonwealth 1936 55 clr 1 jumbunna coal mine nl v. Characterisation amalgamated society of engineers v. The law must be deemed necessary by parliament wa v commonwealth. Kartinyeri v commonwealth 1998 195 clr 337 law case. Kartinyeri v the commonwealth of australia valerie kerruish abstract.
The hypotheses, can progressivism or radical nonoriginalism actually enhance the. A supreme constitution must be given a generous and purposive interpretation. Time chart of the united states supreme court a1 appendix b. But the high court in kartinyeri v commonwealth 199811 resisted an interpretation of the race power as restricted.
Biographical chart of supreme court justices since 1900 b1 appendix c. International law in constitutional interpretation. The case is then analysed in respect of section 3 5, chapter 3 and the constitution itself in order to determine the significance. Section 127 of the constitution of australia wikipedia. Kartinyeri v commonwealth15 resisted an interpretation of the race power as restricted, that is, permitting only laws which benefit the people of the particular race. A new approach to the interpretation and characterisation of cth laws under the constitution was adopted. Charlesworth h, the high court on constitutional law. Traditions role in constitutional interpretation has become a flashpoint of controversy in recent years. One of the landmark decisions given by the high court was the case of kartinyeri v commonwealth1 where section 51xxvi of the constitution was interpreted. But the high court in kartinyeri v commonwealth 199811 resisted an interpretation of the race power as restricted, or permitting laws which only benefit the people of the particular race.
Interpretation cases on the constitution search this guide search. Section 127 of the constitution of australia was the final section within chapter vii dealing with miscellaneous matters, and mandated the exclusion of aboriginal australians from population counts conducted for electoral purposes. Critics have attacked the use of tradition as antidemocratic because it looks backward to the views of people long dead, rather than looking to the views of todays majorities. For example, kirby js dissent in kartinyeri v commonwealth25. Kartinyeri commonwealth v tasmania 1983 tasmanian dam case. The australian constitution and indigenous australians. Justice kirby has extended this principle of construction to constitutional interpretation, although he is invariably alone on this issue. First australians, law and the high court of australia aiatsis wentworth lecture 2010. Singh v commonwealth 2004 209 alr 355 federation press. Mining wa ltd v commonwealth 1997 190 clr 5 at 657 and kartinyeri v commonwealth 1998 195 clr 337 at 417, kirby j conditioned the statement of his principle with the words, 5 walker k, international law as a tool of constitutional interpretation 2002 28 mon lr 85 at 95. Kartinyeri v commonwealth1 is amongst the leading cases of the high court in the matter of interpretation of constitutions section 51 xxvi and this matter was related to the application of this section to the australian indigenous people. The case concerned the validity of commonwealth legislation that purported to vary the heritage protection act 8 and prohibit the making of a declaration for the protection of. Essay the modes of constitutional interpretation 37 appendix a.
Interpretation cases on the constitution australian. In kartinyeri no majority emerged on that crucial beneficialdetrimental law. In 1967, the words other than the aboriginal race in. The high court in western australia v commonwealth the native title act case 1995 hca 47. Developments correspondents international journal of. Castan centre for human rights law monash university. A proposed bridge to hindmarsh island, near goolwa, south australia intended to replace the existing cable ferry and service a proposed marina development attracted opposition from many local residents. This guide will help with your research in australian, global and comparative constitutional law. Kartinyeri v commonwealth 1 is amongst the leading cases of the high court in the matter of interpretation of constitution s section 51 xxvi and this matter was related to the application of this section to the australian indigenous people. In the workchoices case, the high court held by a 5. The hindmarsh island bridge controversy was a 1990s australian legal and political controversy that involved the clash of local aboriginal australian sacred culture and property rights. International law as a tool of constitutional interpretation.
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