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Possible Constitutional challenge
There was some concern that the Amendment Act would not survive a Constitutional challenge based on the construction of section 51(26) of the Commonwealth Constitution. To date (1999), no challenge has been lodged. However, in the recent High Court case of Kartinyeri v The Commonwealth, similar arguments were put regarding the Hindmarsh Island Bridge Act, concerning heritage protection legislation. The Act sought to remove the protection of the federal heritage legislation with respect to Narrandjeri women's claims over 'Kumarangk' or Hindmarsh Island.

The Narrandjeri women argued in the High Court that the federal government did not have the power under section 51(26) to legislate in a manner detrimental to the people of a particular race, and that only beneficial legislation was possible. The case was decided on the basis that the legislation in question merely constituted an amendment to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and that as a general rule, a power to make law must also include the power to amend it. The position with respect to legislation that seeks to take away or infringe a common law right, such as native title, remains open.

High Court Justices Gummow and Hayne specifically made the distinction between the Hindmarsh Island Bridge Act, which curtailed the operation of another Commonwealth law and one that affected substantive common law rights. (para 73)

Justice Kirby dissenting, went further to state that the power under section 51(26), particularly in light of the referendum of 1967 amending the section, did not allow the enactment of detrimental and discriminatory laws.

Justice Gaudron noted that the words 'for whom it is deemed necessary to make special laws' must be given some operation and that the power was not a general power.

Moreover, the majority of the Court agreed that while it was for Parliament to determine what was 'necessary', the High Court retains a 'supervisory jurisdiction' in the face of manifest abuse. (see Gummow and Hayne JJ para 83)

The test then, would not be whether it is beneficial or not but whether it is 'reasonably capable of being viewed as appropriate and adapted to a real and relevant difference'. (Gaudron J para 44) Indeed, Justice Gaudron commented that it would be difficult to conceive that a law operating to disadvantage a racial minority would be valid. (para 43)
Keywords: Aboriginal & Torres Strait Islander Heritage Protection Act, Australian Court Case, Canberra, constitution, Hindmarsh Island Bridge Act, Kartinyeri, Kartinyeri v The Commonwealth, Narrandjeri, Native Title Amendment, Native Title Amendment Bill, Racial Discrimination Act, racism, 1999

Author: Strelein, Lisa