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Kartinyeri V Commonwealth

Question :

Aboriginal people are indigenous group of people in Australia, they are covered in the special aboriginal class. The commonwealth of Australia has a right to repeal or amend any law and they had made some laws for protection of such class of people. As these aboriginal class has faced a discrimination in the society so the government has tried to protect their culture and rights by making an Act and some laws for them.

  • Can commonwealth make any law for the well being of the society?
  • Is there is any law made for the benefit of special class of people?
  • Does section 51(xxvi) of Hindmarsh island Bridge Act 1997 protects the rights of aboriginal group of people?
Answer :

Background and Facts of the case

Commonwealth of Australia consists of all the monarchy and the structures of the government. It also outlines the federal power of executive,legislature and judiciary. It contains certain conventions which helps to give all the information to be properly made in constitution. It considers all the rights through which commonwealth can make any law for the benefit of the country and can also amend or replace any law with time. This is majorly being amended when their seems to have certain requirements of changing any specific law.

In this case in 1994 a group of several Ngarrindjeri elder women has claimed that the proposal made by the government for making a bridge on Hindmarsh Island should be cancelled and has not be made as that site was sacred for them and they do not want to tell the reason for that. In 1997, the Government of Howard passed an Hindmarsh island Bridge Act 1997 which made an authorisation of building of a bridge on that island. With that parliament has the right from section51(xxvi) to make any special law for all the communities which they seems to be necessary. While in 1967, the court has deleted the word in which it has been stated that, other than the aboriginal race in state. So, Dr kartinyeri appealed in the high court that this Act is invalid and the section 51(xxvi) is being made just for the benefit of the people of any race but it mainly covers the aboriginal race.

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Issue raised

  • Does the section 51(xxvi) restricts the rights made for the benefit for all the special class of people or it specifically covers the members of the aboriginal race.

Decision/ Judgement

It was held by Brennan CJ and McHugh J as if the power given to the commonwealth to make or amend any section or rule is then power which provides them the authority to repeal or add any kind of law which is being required by the court. And through the section 51(xxvi) they had made an Act which is for the protection of all special class of people with that they cleared that the Aboriginal Heritage Act 1984 also supports section 51(xxvi).

Justice Gaudron also held that the power to make certain rules for the special kind of people is merely a important element as this provides that the original intention of the court in making certain law is so that no class of people will be discriminated on account of gender, race, caste, sex etc. basically their shall not lie any discrimination on alien or coloured specific races. And section 51(xxvi) is not made for any specific group of people but it is generally for all the class and the members being considered. Moreover, it has also been stated that their it is not required to make any constitutional requirement for the commonwealth to make any certain laws and operations. They can at any time make law for the benefit of the society.

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So their has been implied that section 51(xxvi) is not discriminating rights of any kind of people and they will not make it variably difference that all the class are equal in the eyes of law and no person or class can be counted different in their means. The Aboriginal society is also being considered in the matter of special class and the act which is being made for them is importantly for the welfare of that group. All the localities and the people will severable be considered equal and commonwealth can at any time make specific rights for the welfare of the law and society.

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