Kartinyeri v The Commonwealth

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ

DOREEN KARTINYERI AND ANOR  PLAINTIFFS

AND

THE COMMONWEALTH OF
AUSTRALIA  DEFENDANT

Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 22

1 April 1998

ORDER

1. Order that the question reserved be answered as follows: on the facts pleaded in the Further Amended Statement of Claim and admitted in the Amended Defence, the question reserved for the consideration of the Full Court -

"Is the Hindmarsh Island Bridge Act 1997 or any part thereof invalid in that it is not supported by s 51(xxvi) of the Constitution or any other head of Commonwealth legislative power?"

Answer: No.

2. Order that the plaintiffs pay the defendant's costs.

3. Reserve the question of costs to be paid by the interveners and direct that any application made for an order against the interveners be made on notice filed and served within 14 days supported by written submissions, submissions in reply being filed within 10 days thereafter.

2.

Representation:

J J Spigelman QC and S W Tilmouth QC with S J Kenny and
G J Williams for the plaintiffs (instructed by Camatta Lempens Pty Ltd)

G Griffith QC with M A Perry and W A Harris for the defendant (instructed by Australian Government Solicitor)

Interveners:

R J Meadows QC with G R Donaldson intervening on behalf of the Attorney-General for Western Australia (instructed by Crown Solicitor for Western Australia)

B M Selway QC with M F Johns intervening on behalf of the Attorneys-General of South Australia and the Northern Territory (instructed by Crown Solicitor for South Australia and Solicitor for the Northern Territory)

L S Katz SC with R P L Lancaster intervening on behalf of the Attorney-General for New South Wales (instructed by Crown Solicitor for New South Wales)

D F Jackson QC with N Perram intervening on behalf of Kebaro Pty Ltd, Thomas Lincoln Chapman and Wendy Elizabeth Chapman (instructed by Lynch & Meyer)

R S McColl SC intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by S Roberts, Solicitor, Human Rights and Equal Opportunity Commission)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Kartinyeri & Anor v The Commonwealth of Australia

Constitutional law (Cth) – Power of the Parliament to make laws with respect to "the people of any race for whom it is deemed necessary to make special laws" – Nature and extent of power.

Constitutional law (Cth) – Characterisation – Amendment or partial repeal – Operation and effect.

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 3, 4, 9, 10, 11, 12, 13, 15, 16, 18, 21ZA, 22, 26.

The Constitution, ss 51(xxvi), 128.

Hindmarsh Island Bridge Act 1997 (Cth), ss 3, 4, Sched 1.

1. BRENNAN CJ AND McHUGH J.   The plaintiffs, by their Further Amended Statement of Claim, seek a declaration that the Hindmarsh Island Bridge Act 1997 (Cth) ("the Bridge Act") is invalid. The Commonwealth by its Amended Defence admitted certain paragraphs of the Further Amended Statement of Claim. Pursuant to s 18 of the Judiciary Act 1903 (Cth), Brennan CJ made the following order:

   "    On the facts pleaded in the Further Amended Statement of Claim and admitted in the Amended Defence annexed hereto, there be reserved for the consideration of the Full Court the following question:-

   [I]s the Hindmarsh Island Bridge Act 1997 or any part thereof invalid in that it is not supported by s 51(xxvi) of the Constitution or any other head of Commonwealth legislative power?"

   The admitted paragraphs of the Further Amended Statement of Claim read as follows:

   "1.   The Ngarrindjeri people are members of the Aboriginal race.

   3. On 9 July 1994, in response to an application made by the Aboriginal Legal Rights Movement on behalf of the Lower Murray Aboriginal Heritage Committee, the Minister for Aboriginal and Torres Strait Islander Affairs of the Commonwealth of Australia, made a declaration published in the Commonwealth of Australia Gazette (No S270) on 10 July 1994, under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ... that the area described in Schedule 1 thereof ('the said area') was a significant Aboriginal area under threat of injury or desecration within the meaning of the Act, and that for the preservation and protection of the said area the acts specified in Schedule 2 thereof must not be carried out in the said area for a period of 25 years from 10 July 1994. Schedule 1 and 2 to the said declaration provided respectively as follows:

   'SCHEDULE 1

   AREA

   The area in the State of South Australia, County of Hindmarsh, Hundreds of Goolwa and Nangkita, and which is shown on Map Sheet No. 6626-3 published by AUSLIG, as bounded by a straight line between Australian Map Grid Coordinates Zone 54 299000 East 6068870 North thence south-east to 299650 East 6068360 North thence south-west to 299629 East 6068270 North thence north-west to 298959 East 6068750 North thence to rejoin at the commencement point.

   ...

   SCHEDULE 2

   PROHIBITED ACTS

   Any act that will, or is likely to, injure or desecrate any part of the area described in Schedule 1, including:

   (a)      bulldozing, grading, drilling or excavating; and

   (b)any act done for the purpose of constructing a bridge in any part of the area.'

   4.     By order of the Federal Court made on 15 February 1995 the declaration referred to in paragraph 3 hereof was set aside.  Execution of the orders was stayed until further notice and the stay was lifted on 24 July 1996.

   5. On the 19th day of December 1995 the plaintiffs, and others, applied to the Minister for Aboriginal and Torres Strait Islander Affairs of the Commonwealth of Australia, for a declaration under Section 10 of the Act, inter alia, to protect and preserve the land and waters within the said area.

   7.     The application referred to in paragraph 5 above was made upon the grounds, inter alia, referred to in paragraph 6 above.[1]

   8.     The application referred to in paragraph 5 superseded the application referred to in paragraph 3.

   9.     On 22 December 1995 Senator Rosemary Crowley was designated to act on behalf of the said Minister for the purpose of determining the application referred to in paragraph 5 hereof under the Act.  Letters from the solicitor acting for the applicants to Senator Crowley dated 4 and 11 January 1996 were treated as forming part of the application.

   10. On or about 16 January 1996 the said Senator Crowley purported to nominate Justice Jane Hamilton Mathews as a Reporter pursuant to Section 10 of the Act.

   11. On 6 September 1996 this Honourable Court declared that the nomination and/or appointment referred to in paragraph 10 hereof was ineffective to authorise the said Justice Mathews to make a Report in satisfaction of Section 10(1)(c) of the Act.[2]

   16.    This matter is within the original jurisdiction of the Court as it is a matter arising under the Constitution and involves the interpretation of the Constitution."

   In addition to the plaintiffs' claim for a declaration that the Bridge Act is invalid, they claim a declaration that the Bridge Act does not operate to prevent the determination of the application referred to in pars 5 and 9 from being determined under and in accordance with the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ("the Heritage Protection Act").

   [1]Paragraph 6 pleaded that the area was of "high spiritual importance" and that "the building of a bridge therein would desecrate Ngarrindjeri traditions, beliefs and culture".  Paragraph 6 was denied by the Amended Defence.

   [2]This decision is reported as Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1.

   The legislation

2. The purposes of the Heritage Protection Act are defined to be "the preservation and protection from injury or desecration of areas ... that are of particular significance to Aboriginals in accordance with Aboriginal tradition": s 4. Part II of the Act prescribes the general mechanism for fulfilling those purposes. The key provision is s 10 which empowers the Minister to make a declaration to preserve and protect significant Aboriginal areas. Sub-section (1) of s 10 reads:

   "       Where the Minister:

   (a)     receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;

   (b)    is satisfied:

   (i)     that the area is a significant Aboriginal area; and

   (ii)    that it is under threat of injury or desecration;

   (c)    has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and

   (d)    has considered such other matters as he thinks relevant;

   he may make a declaration in relation to the area."

   Section 3(2) expounds the meaning of injury or desecration:

   "    For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:

   (a)     in the case of an area:

   (i)it is used or treated in a manner inconsistent with Aboriginal tradition;

   (ii)by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or

   (iii)passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or

   (b)in the case of an object - it is used or treated in a manner inconsistent with Aboriginal tradition;

   and references in this Act to injury or desecration shall be construed accordingly."

   Sub-sections (2), (3) and (4) of s 10 provide as follows:

   "    (2)      Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.

   (3)      Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he shall:

   (a)publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:

   (i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;

   (ii)inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and

   (iii)specifying an address to which such representations may be furnished; and

   (b)    give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

   (4)           For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:

   (a)     the particular significance of the area to Aboriginals;

   (b)    the nature and extent of the threat of injury to, or desecration of, the area;

   (c)    the extent of the area that should be protected;

   (d)    the prohibitions and restrictions to be made with respect to the area;

   (e)    the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);

   (f)     the duration of any declaration;

   (g)    the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;

   (h)    such other matters (if any) as are prescribed."

   An application in respect of an area may be made by or on behalf of any Aboriginal or group of Aboriginals whether or not the applicant has or the applicants have a particular connection with or responsibility for the area.  The Minister has a discretion whether or not to make a declaration[3].  Section 15 requires a declaration to be laid before each House of Parliament which may disallow the declaration in the same way as it may disallow a regulation made
   

   [3]See also s 16.

   [4]Section 15 applies the provisions of ss 48 (other than sub-ss (1)(a) and (b) and (2)), 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 (Cth) to declarations made under the Heritage Protection Act as though declarations were statutory regulations.

   [5]Section 33(3) of the Acts Interpretation Act and s 13(6) of the Heritage Protection Act.

   under a statutory power[4].  The Minister may revoke or vary a declaration at any time[5].

3. The entitlement to make an application confers no proprietary right on an applicant.  Nor does the making of a declaration in respect of an area:  it simply prescribes what is to be done or not done to protect and preserve the area from injury or desecration.  And a declaration will cease to have effect when it expires, when a House of Parliament disallows it or when the Minister revokes it.

4. A contravention of a declaration made under Pt II in relation to a significant Aboriginal area is punishable as an offence: s 22(1). Part II (which includes s 10) is of general application, but Pt IIA prescribes a different regime applicable to areas of particular significance to Aboriginals in Victoria. Part IIA is itself inapplicable to any site, land, act or activity to which s 13 of the Alcoa (Portland Aluminium Smelter) Act 1980 (Vic) applies[6]. Thus the geographical operation of each of Pt II and Pt IIA is limited.

   [6]Heritage Protection Act, s 21ZA.

5. The paragraphs in the Further Amended Statement of Claim admitted in the Amended Defence show that the plaintiffs and others made an application on 19 December 1995 to the Minister for a declaration under s 10 of the Heritage Protection Act to protect and preserve land and waters within the area described in Sched 1 and that the Acting Minister failed validly to nominate a person under s 10 to report on the application. But for the provisions of the Bridge Act, it would be open to the Minister to nominate a person to make a report and for the Minister thereafter to consider making a declaration under s 10 in respect of that area. The Minister's receipt of a report is a condition precedent to his power to make a declaration under s 10[7].

   [7]Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18.

6. The Bridge Act provides, inter alia:

   "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)."

   The "Hindmarsh Island bridge area" is defined[8] to include the area described in the schedule set out in par 3 of the Further Amended Statement of Claim. The Bridge Act commenced on 22 May 1997.

   [8]Section 3 and Sched 1 cl 1.

   The character of the Bridge Act

7. In order to determine the validity of the Bridge Act, it is necessary in the first place to determine "its operation and effect (that is, to decide what the Act actually does)", as Latham CJ pointed out in Bank of New South Wales v The Commonwealth ("the Bank Nationalisation Case")[9].  The operation and effect of a law define its constitutional character, as Kitto J explained in Fairfax v Federal Commissioner of Taxation[10]:

   "Under [s 51] the question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, 'with respect to', one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an inference so incidental as not in truth to affect its character?"  (Emphasis added.)

   To ascertain the nature of the rights, duties, powers and privileges which an Act changes, regulates or abolishes, its application to the circumstances in which it operates must be examined[11].

   [9](1948) 76 CLR 1 at 186.

   [10](1965) 114 CLR 1 at 7.

   [11]The Commonwealth v Tasmania.  The Tasmanian Dam Case (1983) 158 CLR 1 at 152, 245; see also Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 216; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 314-315; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 368-369.

8. The operation and effect of the Bridge Act can be ascertained only by reference to the Heritage Protection Act, the operation of which it is expressed to affect. Section 4(2) of the Bridge Act denies the Minister the authority to make an appointment of a person to report under s 10 of the Heritage Protection Act where the application relates to an area within the Hindmarsh Island bridge area and seeks a declaration that would prohibit or restrict any of the activities specified in sub-pars (a), (b), (c), (d) or (e) of s 4(1) of the Bridge Act. Section 4(1) of the Bridge Act denies the Minister the authority to make a declaration preserving or protecting an area within the Hindmarsh Bridge area from any of the activities specified in that sub-section. That is to say, the Minister cannot make a declaration that has the effect of prohibiting or restricting the construction of a bridge in the Hindmarsh Island bridge area. The Bridge Act restricts the operation of Pt II of the Heritage Protection Act so that no step can be taken towards the making of a declaration that would prohibit or restrict the construction of a bridge in the Hindmarsh Island bridge area and no declaration to that effect can be made.

9. The Bridge Act is an instance of what F A R Bennion[12] calls "indirect express amendment". It effects a partial repeal of the Heritage Protection Act, albeit the text of the Heritage Protection Act is unchanged[13].  As Windeyer J said in Mathieson v Burton[14]:

   "For some purposes it may sometimes be relevant to distinguish between a repeal and an amendment, or a modification, as the latter is sometimes called.  But an amendment which permanently reduces the ambit of any of the provisions of an Act involves a repeal of it in part.  That is because after the amendment the statute no longer operates as it formerly did:  and the only way by which a statute which has come into operation can cease to operate is by repeal, express or implied; or by its expiry in the case of a temporary statute; or by something that was made a condition of its continued operation coming to an end.  An Act that excludes from the operation of a former Act some matter formerly within its purview thus repeals it pro tanto, that is to say 'in part'.  Provisions of a later act which are inconsistent and irreconcilable with the provisions of a former Act dealing with the same subject matter are thus an implied repeal of them.  That has been recognized in this Court since its early days:  see Goodwin v Phillips[15]."

   In determining the constitutional validity of an Act that reduces the ambit of an earlier Act, it is immaterial that the text of the earlier Act remains unchanged.  It is the operation and effect in substance of the impugned Act which are relevant to its validity, whether or not the text of the earlier Act is changed.

   [12]Statutory Interpretation, 3rd ed (1997) at 214.

   [13]Goodwin v Phillips (1908) 7 CLR 1 at 7.

   [14](1971) 124 CLR 1 at 10.

   [15](1908) 7 CLR 1.

10. The general provisions of Pt II of the Heritage Protection Act were restricted by Pt IIA. The Bridge Act further restricted the ambit of Pt II and to that extent repealed it. It is impossible to attribute a character to the Bridge Act as though that Act stood in isolation from the Act the ambit of which it reduces. Both Acts "are to be read together as a combined statement of the will of the legislature": Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd[16].  Although it is the validity of the Bridge Act alone that is in issue, its constitutional validity is determined "by reference solely to the operation which the enactment has if it be valid"[17]. It is constitutionally erroneous to attempt to determine its validity before considering whether, if valid, it is effective to restrict the operation of the Heritage Protection Act. Reading the two Acts together, the will of the Parliament is that the operation of the Heritage Protection Act be restricted to the extent stated in the Bridge Act.

    [16](1995) 184 CLR 453 at 463, 479. And see s 15 of the Acts Interpretation Act.

    [17]Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7 per Kitto J.

    The legislative power to "make laws with respect to" a subject matter

11. As the only effect of the Bridge Act is partially to repeal the Heritage Protection Act, the constitutional question can be put in this way: given that the Parliament had power to enact Pt II of the Heritage Protection Act in exercise of the legislative power conferred by s 51(xxvi) of the Constitution, did the Parliament have power subsequently to restrict the operation of Pt II? (The validity of the Heritage Protection Act is accepted on all sides, and rightly so. The plaintiffs assert its validity in order to enforce it shorn of the restriction created by the Bridge Act.) Putting the question in another way, are the restrictions on the operation of Pt II of the Heritage Protection Act created by the Bridge Act so connected with the subject matter of power contained in s 51(xxvi) of the Constitution that the Bridge Act can properly be described as a law "with respect to ... the people of any race for whom it is deemed necessary to make special laws"? Whichever way the question be put, the answer is the same.

12. The legislative powers conferred on the Parliament by s 51 of the Constitution are plenary powers[18], that is to say, "subject to" any prohibition or limitation contained in the Constitution, the Parliament can "make laws with respect to" the several subject matters contained in s 51 in such terms, with such qualifications and with such limitations as it chooses[19].  The power "to make laws" is a power as ample as that described by Sir Edward Coke[20] and later adopted by Blackstone[21]:

    "    Of the power and jurisdiction of the parliament, for making of laws in proceeding by bill, it is so transcendent and absolute, as it cannot be confined either for causes or persons within any bounds."

    Blackstone adds[22]:

    "    The power and jurisdiction of parliament, says Sir Edward Coke[23], is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.  ...  It hath sovereign and uncontrolable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal:  this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms."

    [18]D’Emden v Pedder (1904) 1 CLR 91 at 109-110; R v Barger (1908) 6 CLR 41 at 85; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 153; British Coal Corporation v The King [1935] AC 500 at 518.

    [19]Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 at 74.

    [20]4 Institutes of the Laws of England, 36 (quoted from the 1797 edition).

    [21]Blackstone's Commentaries, 9th ed (1783), Bk 1 at 160.

    [22]Blackstone's Commentaries, 9th ed (1783), Bk 1 at 160.

    [23]4 Inst 36.

13. The power to make laws includes a power to unmake them[24]. Thus the powers conferred on the Parliament under s 51 extend to the repeal, in part or in whole, of what the Parliament has validly enacted[25].  In Deputy Commissioner of Taxation v Moorebank Pty Ltd[26], Mason CJ, Brennan, Deane, Dawson and Gaudron JJ said in reference to s 64 of the Judiciary Act:

    "It is neither a constitutional provision nor an entrenched law.  Its authority is that of an Act of the Parliament which can be expressly or impliedly amended or repealed, either wholly or in part, by a subsequent Act and whose application or operation to or with respect to cases falling within the provisions of a subsequent Act will be excluded to the extent that such application or operation would be inconsistent with those subsequent statutory provisions:  see, eg, Goodwin v Phillips[27]."

    [24]See Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 168; [1980] 1 All ER 529 at 551 cited by Dawson J in Kable v DPP (NSW) (1996) 189 CLR 51 at 75.

    [25]South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 623, 636; Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 107; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74-75 per McHugh J; Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 at 743; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 at 597. Of course, a parliament whose powers of repeal or amendment are restricted by "manner and form" provisions must observe those provisions in order to exercise the power:  McCawley v The King (1918) 26 CLR 9 at 54, 55; (1920) 28 CLR 106 at 115-116; Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 422, 430 and see South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 618. But the powers conferred by s 51 of the Constitution are not subject to "manner and form" requirements.

    [26]Deputy Commissioner of Taxation v Moorebank Pty Ltd; Deputy Commissioner of Taxation v DTR Securities Pty Ltd (1988) 165 CLR 56 at 63.

    [27](1908) 7 CLR 1 at 7.

14. In R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd[28], the Court said:

    "The will of a Parliament is expressed in a statute or Act of Parliament and it is the general conception of English law that what Parliament may enact it may repeal."

    That must be so because, as Blackstone points out[29]:

    "    An act of parliament ... cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament:  for it is a maxim in law, that it requires the same strength to dissolve, as to create an obligation."

    If the power to make a law did not include the power to repeal it, a law once enacted would be entrenched and beyond the power of the Parliament to revoke.

    [28](1964) 113 CLR 207 at 226.

    [29]Blackstone's Commentaries, 9th ed (1783), Bk 1 at 186.

15. Once the true scope of the legislative powers conferred by s 51 are perceived, it is clear that the power which supports a valid Act supports an Act repealing it. To the extent that a law repeals a valid law, the repealing law is supported by the head of power which supports the law repealed unless there be some constitutional limitation on the power to effect the repeal in question. Similarly, a law which amends a valid law by modifying its operation will be supported unless there be some constitutional limitation on the power to effect the amendment. Thus in Air Caledonie International v The Commonwealth[30], the attempt to amend the Migration Act 1958 (Cth) by the Migration Amendment Act 1987 (Cth) failed because the amendment purported to insert a taxing provision in the principal Act contrary to s 55 of the Constitution. It is not necessary to consider the hypothetical case postulated by Mr Jackson QC of a repealing or amending Act which so changed the character of an earlier Act as to deprive that Act of its constitutional support[31].

    [30](1988) 165 CLR 462 at 472.

    [31]cf Commissioner of Taxation v Clyne (1958) 100 CLR 246; Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1.

16. The power to repeal a law may be exercised from time to time as the Parliament chooses.  One Parliament cannot deny or qualify the power of itself or of a later Parliament to exercise that power.  The Parliament cannot bind itself or its successor Parliaments not to amend the laws it makes[32].  Anson states the general rule[33]:

    "    One thing no Parliament can do:  the omnipotence of Parliament is available for change, but cannot stereotype rule or practice.  Its power is a present power, and cannot be projected into the future so as to bind the same Parliament on a future day, or a future Parliament."

    [32]Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 422; South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 617; Magrath v The Commonwealth (1944) 69 CLR 156 at 169-170, 183; Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 107; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74-75; Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 at 743; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 at 597.

    [33]Law and Custom of the Constitution, (1909), vol 1 at 7.

17. In the present case, the Parliament exercised its power under s 51(xxvi) to enact the Heritage Protection Act and it has had at all times the same power to amend or repeal that Act. As the Bridge Act has no effect or operation other than reducing the ambit of the Heritage Protection Act, s 51(xxvi) supports it. Approaching the question of validity in this way, the Bridge Act is valid.

18. The same result is reached by asking whether the Bridge Act has the character of a law "with respect to ... the people of any race for whom it is deemed necessary to make special laws". Here one looks to the connection between the operation and effect of the Bridge Act and the subject matter of the power invoked to support it. In Grannall v Marrickville Margarine Pty Ltd[34], Dixon CJ, McTiernan, Webb and Kitto JJ said:

    "The words 'with respect to' ought never be neglected in considering the extent of a legislative power conferred by s 51 or s 52. For what they require is a relevance to or connection with the subject assigned to the Commonwealth Parliament".

    Of course, a connection may be "so insubstantial, tenuous or distant ... that [the law] ought not to be regarded as enacted with respect to the specified matter falling within the Commonwealth power" (to adopt the words of Dixon J in Melbourne Corporation v The Commonwealth[35]).

    [34](1955) 93 CLR 55 at 77.

    [35](1947) 74 CLR 31 at 79; see also Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 368-369 per McHugh J.

19. The only effect of the Bridge Act is partially to exclude the operation of the Heritage Protection Act in relation to the Hindmarsh Bridge area[36]. The Bridge Act, like Pt IIA of the Heritage Protection Act, limits the area to which Pt II applies. As Pt II of the Heritage Protection Act is a law with respect to the subject matter of s 51(xxvi), a law which governs the area of its operation has a direct connection with that subject matter. In the absence of any constitutional limitation on the power to repeal an earlier law, the true principle is stated by Dawson J in Kirmani v Captain Cook Cruises Pty Ltd [No 1][37]:

    "A law which effects the repeal of another law is not a law with respect to repeal; its subject-matter is the subject-matter of the law which is repealed."

    Thus the Bridge Act is itself a law with respect to the subject matter of s 51(xxvi).

    [36]And the "pit area" defined in Sched 1 cl 2.

    [37](1985) 159 CLR 351 at 459.

20. Once it is accepted that s 51(xxvi) is the power that supports Pt II of the Heritage Protection Act, an examination of the nature of the power conferred by s 51(xxvi) for the purpose of determining the validity of the Bridge Act is, in our respectful opinion, not only unnecessary but misleading. It is misleading because such an examination must proceed on either of two false assumptions: first, that a power to make a law under s 51 does not extend to the repeal of the law and, second, that a law which does no more than repeal a law may not possess the same character as the law repealed. It is not possible, in our opinion, to state the nature of the power conferred by s 51(xxvi) with judicial authority in a case where such a statement can be made only on an assumption that is false. The Bridge Act exhibits no feature to which it is necessary to apply one of the opposing views of s 51(xxvi) in order to answer the question reserved. The Bridge Act can have no character different from, and must have the same validity as, the Heritage Protection Act.

21. The answer to the question reserved is:  No.  In the absence of any contrary agreement, the plaintiffs will have to bear the costs.  We would reserve the question whether any of the costs of the parties should be paid by the interveners and direct that any application made for an order against the interveners be made on notice filed and served within 14 days supported by written submissions, submissions in reply being filed within 10 days thereafter.

22. GAUDRON J.   The plaintiffs are Aboriginal Australians.  They are members of the Ngarrindjeri people.  They commenced proceedings in this Court against the Commonwealth seeking, amongst other orders, a declaration that the HindmarshIsland Bridge Act 1997 (Cth) ("the Bridge Act") is invalid. Pleadings were filed and, thereafter, the Chief Justice reserved for the consideration of the Full Court the question whether, on the facts admitted in those pleadings, "the [Bridge Act] or any part thereof [is] invalid in that it is not supported by s 51(xxvi) of the Constitution or any other head of Commonwealth legislative power"[38]. It is not in issue that, if not supported by s 51(xxvi), the Bridge Act is not supported by any other head of power.

    [38]The question was reserved pursuant to s 18 of the Judiciary Act 1903 (Cth).

23. It is necessary, in order to understand the operation of the Bridge Act, to refer to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ("the Heritage Protection Act"). So far as is presently relevant, ss 9 and 10 of that Act[39] confer a power on the responsible Minister to make emergency and other declarations containing "provisions for and in relation to the protection and preservation"[40] of areas which are "significant Aboriginal area[s]" and s 12 confers a power to make declarations for the protection and preservation of "significant Aboriginal object[s]"[41].  Section 3 of that Act defines "significant Aboriginal area" to mean, unless a contrary intention appears:

    "(a)     an area of land in Australia or in or beneath Australian waters;

    (b)  an area of water in Australia; or

    (c)      an area of Australian waters;

    being an area of particular significance to Aboriginals in accordance with Aboriginal tradition."

    Similarly, s 3 defines "significant Aboriginal object" to mean "an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition". By s 22 it is an offence to contravene a provision of a declaration made in relation to a significant Aboriginal area (sub‑s (1)) or a significant Aboriginal object (sub-s (2)).

    [39]Sections 9(1)(b) and 10(1)(b) of the Heritage Protection Act. Section 9 enables emergency declarations to be made for a period specified in the declaration not exceeding 30 days which period may be extended so long as the extension period does not extend beyond 60 days from the day on which the declaration was made. A declaration under s 10 has effect for such period as is specified in the declaration: s 10(2).

    [40]Section 11(b) of the Heritage Protection Act.

    [41]Note that s 18 also confers power on authorised officers to make emergency declarations for a period not exceeding 48 hours with respect to significant Aboriginal areas and significant Aboriginal objects.

24. The Bridge Act operates with respect to two distinct areas in South Australia, each described by metes and bounds in Sched 1 to that Act. The first area is referred to in the Act as the "Hindmarsh Island bridge area". In general terms, that is an area comprised of land adjoining the Lower Murray River and water in that river over which it is proposed to construct a bridge linking the north western bank of the Lower Murray River to Hindmarsh Island. The second area is referred to in the Act as the "pit area", apparently a nearby area from which it is proposed to remove materials for the purpose of constructing the bridge. The plaintiffs claim that both areas are "significant Aboriginal area[s]" for the purposes of the Heritage Protection Act and, in 1994, the Aboriginal Legal Rights Movement made application for their protection and preservation under that Act[42]. That application was still pending when the Bridge Act came into force.

    [42]The application was made on behalf of the Lower Murray Aboriginal Heritage Committee.

25. The only substantive provision of the Bridge Act is s 4. It provides:

    "(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)."

26. As already indicated, the question to be determined is whether the Bridge Act was validly enacted pursuant to s 51(xxvi) of the Constitution. That provision reads as follows:

    " The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

    ...

    (xxvi)The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws:

    ..."

    The words "other than the aboriginal race in any State" were deleted from par (xxvi) by an Act styled the Constitution Alteration (Aboriginals) 1967, a law approved by the electors in accordance with s 128 of the Constitution.

27. Two arguments were advanced on behalf of the plaintiffs as to the meaning and operation of s 51(xxvi) of the Constitution. The first is that that paragraph does not authorise laws which distinguish or discriminate between members of a racial group. In this respect, it was put that the words "the people of any race" mean all people of a particular race, not some of them. The second is that s 51(xxvi) only authorises laws for the benefit of the people of a race or, in the alternative, for the benefit of the people of the Aboriginal race. It is convenient at this stage to deal with the latter argument for, in the view that I take, its consideration reveals the answer to the first.

28. Much of the argument directed to the proposition that s 51(xxvi) only authorises beneficial laws was based on the fact that the words "other than the aboriginal race in any State" were deleted in 1967 by a vote of the people in accordance with s 128 of the Constitution. In this regard, it was said that, by 1967, Australian values had so changed that it is to be taken that the amendment disclosed a constitutional intention that, thereafter, the power should extend only to beneficial laws. In the alternative, it was put that the amendment disclosed an intention to that effect in relation to laws with respect to Aboriginal Australians.

29. The 1967 amendment was one that might fairly be described in today's terms as a "minimalist amendment".  As a matter of language and syntax, it did no more than remove the then existing exception or limitation on Commonwealth power with respect to the people of the Aboriginal race.  And unless something other than language and syntax is to be taken into account, it operated to place them in precisely the same constitutional position as the people of other races.

30. The "Yes" case for the 1967 referendum[43] identified two purposes attending the proposed law, which upon its approval in accordance with s 128 of the Constitution, deleted the words "other than the aboriginal race in any State" from s 51(xxvi) of the Constitution[44]. The first was to "remove any ground for the belief that, as at present worded, the Constitution discriminates in some ways against people of the aboriginal race"[45].  The other was "to make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live"[46].  Given the limited nature of the purposes thus disclosed and given, also, that as a matter of language and syntax, the amendment was apt to achieve those purposes, and only those purposes, it is not possible, in my view, to treat s 51(xxvi) as limited to laws which benefit Aboriginal Australians if it is not similarly limited with respect to the people of other races.

    [43]In 1967, the Referendum (Constitution Alteration) Act 1906 (Cth) (since repealed by s 145 of the Referendum (Machinery Provisions) Act 1984 (Cth)) provided in s 6A(I)(a) that:

    "     [if] within nine weeks after the passage of [a] proposed law through both Houses there is forwarded to the Chief Electoral Officer‑

    (a)   an argument in favour of the proposed law ... authorized by a majority of those members of both Houses of the Parliament who voted for the proposed law; or

    (b)   an argument against the proposed law ... authorized by a majority of those members of both Houses of the Parliament who voted against the proposed law,

    the Chief Electoral Officer shall, within two months after the expiry of those nine weeks, and not later than two weeks after the issue of the writ [issued by the Governor-General for the submission of the proposed law to the electors], cause to be printed and posted to each elector ... a pamphlet containing the arguments together with a statement showing the textual alterations and additions proposed to be made to the Constitution."

    On 23 February 1967, Prime Minister Holt advised the House of Representatives of the Federal Government’s intention to propose a referendum for the approval of the Constitution Alteration (Aboriginals) Bill 1967. On 8 March 1967, the Opposition advised in the Senate that it would support the Bill without alteration. The referendum for approval of the Bill was held on 27 May 1967. Because the Bill was passed unanimously by both Houses of Parliament, only a "Yes" case was distributed to electors pursuant to s 6A(I)(a).

    [44]The electors' approval of Constitution Alteration (Aboriginals) 1967 at the referendum also resulted in the repeal of s 127 of the Constitution which provided that "[i]n reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."

    [45]Constitution Alteration (Aboriginals) 1967:  Argument in favour of the proposed law, in The Commonwealth of Australia, Referendums to be held on Saturday, 27th May, 1967 on the Proposed Laws for the alteration of the Constitution entitled - Constitution Alteration (Parliament) 1967 and Constitution Alteration (Aboriginals) 1967 at 11, Commonwealth Government Printer, Canberra. The official "Yes" case also provided that "[t]he proposed alteration of this section will ... remove words from our Constitution that many people think are discriminatory against the aboriginal people (emphasis added)" at 11.

    [46]Constitution Alteration (Aboriginals) 1967:  Argument in favour of the proposed law, in The Commonwealth of Australia, Referendums to be held on Saturday, 27th May, 1967 on the Proposed Laws for the alteration of the Constitution entitled - Constitution Alteration (Parliament) 1967 and Constitution Alteration (Aboriginals) 1967 at 11, Commonwealth Government Printer, Canberra.

31. If, prior to 1967, s 51(xxvi) extended to authorise laws which were not for the benefit of the people of a particular race, it is difficult to see that the 1967 amendment which, as already indicated, simply removed the exception or limitation which then existed could have altered that position.  However, two matters were advanced in support of the proposition that it did.  The first was that, by 1967, international standards and community values were such that racial discrimination was not to be tolerated.  The second was that it was intended by the electors that the amendment would enable the Parliament to legislate for the benefit of Aboriginal people and only for their benefit.  Given the terms of the "Yes" case to which reference has already been made, it is doubtful whether the intention of the electorate was as stated.  However, that issue may be put to one side.

32. Whatever the international standards and community values in 1967 and whatever the intention of those voting in the 1967 referendum, the bare deletion of an exception or limitation on power is not, in my view, capable of effecting a curtailment of power.  On the contrary, the consequence of an amendment of that kind is to augment power.  Accordingly, if, prior to 1967, s 51(xxvi) authorised special laws which were not for the benefit of the people of a particular race, the referendum did not, in my view, alter that position.

33. There are two matters with respect to s 51(xxvi) which are beyond controversy.  The first is that the debates of the Constitutional Conventions relevant to the provision which ultimately became s 51(xxvi)[47] reveal an understanding that it would authorise laws which discriminated against people of "coloured races"[48] and "alien races"[49].  The second is that s 51(xxvi) does not simply confer power to legislate with respect to "the people of any race".  It confers power to legislate with respect to "the people of any race for whom it is deemed necessary to make special laws".

    [47]The "Draft of a Bill to Constitute the Commonwealth of Australia" debated in Melbourne in 1898 proposed a cl 53(I) in the following terms:

    " The Parliament shall, subject to the provisions of this Constitution, have exclusive powers to make laws for the peace, order, and good government of the Commonwealth with respect to the following matters:-

    IThe affairs of the people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the affairs of the aboriginal native race in any State".

    [48]An expression used by Sir John Forrest, Dr Quick and Mr Kingston at the 1898 Convention:  see Official Record of the Debates of the Australasian Federal Convention, 3rd Session (Melbourne), 20 January to 17 March 1898, vol I at 240, 246, 248.

    [49]An expression used by Mr Howe and Mr Symon at the 1898 Convention:  see Official Record of the Debates of the Australasian Federal Convention, 3rd Session (Melbourne), 20 January to 17 March 1898, vol I at 250, 251, 251‑252.

34. Were s 51(xxvi) simply a power to legislate with respect to "the people of any race", there would, in my view, be no doubt that Parliament might legislate in any way it chose so long as the law in question differentiated in some way with respect to the people of a particular race[50] or dealt with some matter of "special significance or importance to the[m]"[51].  However, the words "for whom it is deemed necessary to make special laws" must be given some operation.  And they can only operate to impose some limit on what would otherwise be the scope of s 51(xxvi).

    [50]Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 186 per Gibbs CJ, 245 per Wilson J, 261 per Brennan J.

    [51]Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 461 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ referring in fn 323 to Koowarta v Bjelke-Petersen (1982) 153 CLR 168 and noting in fn 324 that "[i]t was on this point, not on the point of differential operation ... that the minority in the Tasmanian Dam Case denied the support of s 51(xxvi)".

35. In the main, the view that s 51(xxvi) is not simply a power to pass laws with respect to "the people of any race" has found expression in terms reflected in the argument in this case, namely, that s 51(xxvi) is confined to laws for the benefit of the people of the race for whom those laws are enacted.  Thus, for example, in Koowarta v Bjelke-Petersen, Murphy J expressed the view that "[i]n par (xxvi) 'for' means 'for the benefit of' ... not ... 'with respect to'"[52].  And in The Commonwealth v Tasmania (The Tasmanian Dam Case), Brennan J referred to the 1967 amendment of s 51(xxvi) and said that it was "an affirmation of the will of the Australian people ... that the primary object of the power is beneficial"[53].

    [52](1982) 153 CLR 168 at 242. Murphy J expressed the same view of the scope of s 51(xxvi) in The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 180 stating that "[s 51(xxvi)] ... authorizes any law for the benefit, physical or mental, of the people of the race for whom Parliament deems it necessary to pass special laws". Similarly, at 245-246 Brennan J adverted to "the high purpose which the Australian people intended when the people of the Aboriginal race were brought within the scope of [s 51(xxvi)'s] beneficial exercise" (emphasis added).  At 273 Deane J said that "[s]ince 1967, [s 51(xxvi)] has included a power to make laws benefiting the people of the Aboriginal race" (emphasis added); cf also Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 56 per Gaudron J. However, the contrary view, that s 51(xxvi) supports the enactment either of beneficial or detrimental laws in relation to Aboriginal people, has also been expressed: Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 186 per Gibbs CJ, 209 per Stephen J, 245 per Wilson J; The Tasmanian Dam Case (1983) 158 CLR 1 at 110 per Gibbs CJ.

    [53](1983) 158 CLR 1 at 242; cf at 273 where Deane J referred to the 1967 referendum and said that "[t]he power conferred by s 51(xxvi) remains a general power to pass laws discriminating against or benefiting the people of any race."

36. As already indicated, the 1967 referendum did not, in my view, alter the nature of the power conferred by s 51(xxvi) of the Constitution. Moreover, the amendment, consisting, as it did, of the removal of an exception or limitation, discloses nothing as to the nature of that power. And although I expressed the view in Chu Kheng Lim v Minister for Immigration[54] that there was much to commend the view that, in s 51(xxvi), "for" means "for the benefit of", that view cannot be maintained in the face of the constitutional debates earlier referred to.  Even so, the words "for whom it is deemed necessary to make special laws" must be given some operation and, as already indicated, they can only operate as a limit to the power conferred by s 51(xxvi).

    [54](1992) 176 CLR 1 at 56.

37. In Western Australia v The Commonwealth (NativeTitleAct Case)[55], the notion that the Court might be required to form a "political value judgment" to determine whether a law was special for the purposes of s 51(xxvi) was emphatically rejected.  That notion was suggested by the observation of Stephen J in Koowarta v Bjelke-Petersen[56] that, if the Parliament is to enact a law under that paragraph, "[i]t must be because of [the] special needs [of the people of a particular race] or because of the special threat or problem which they present that the necessity for the law arises".  However, it was pointed out in the Native Title Act Case that "'[s]pecial' qualifies 'law' [and] does not relate to necessity" with the consequence that the "special quality" of the law in question is to be "ascertained by reference to its differential operation upon the people of a particular race"[57].

    [55](1995) 183 CLR 373 at 460.

    [56](1982) 153 CLR 168 at 210.

    [57](1995) 183 CLR 373 at 460-461 citing Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 186 per Gibbs CJ, 245 per Wilson J and 261 per Brennan J.

38. It was also held in the Native Title Act Case that the "evaluation of the needs of the people of a race or of the threats or problems that confronted them in order to determine whether the law was, or could be deemed to be, 'necessary'" was for the Parliament for, otherwise, this Court "would be required to form a political value judgment".  However, the question was left open whether there was "some supervisory jurisdiction to examine the question of necessity against the possibility of a manifest abuse"[58].  For the moment, that question may be put to one side.  It is sufficient to observe that, if the question arises, it is for this Court to determine whether a law is one that is properly characterised as a law with respect to "the people of any race for whom it is deemed necessary to make special laws".

    [58]Native Title Act Case (1995) 183 CLR 373 at 460.

39. The criterion for the exercise of power under s 51(xxvi) is that it be deemed necessary - not expedient or appropriate - to make a law which provides differently for the people of a particular race or, if it is a law of general application, one which deals with something of "special significance or importance to the people of [that] particular race"[59].  Clearly, it is for the Parliament to deem it necessary to make a law of that kind.  To form a view as to that necessity, however, there must be some difference pertaining to the people of the race involved or their circumstances or, at least, some material upon which the Parliament might reasonably form a political judgment that there is a difference of that kind.  Were it otherwise, the words "for whom it is deemed necessary to make special laws" would have no operation and s 51(xxvi) would simply be a power to make laws for the people of any race.

    [59]Native Title Act Case (1995) 183 CLR 373 at 461.

40. Once it is accepted that the power conferred by s 51(xxvi) may only be exercised if there is some material upon which the Parliament might reasonably form a judgment that there is a difference necessitating some special legislative measure, two things follow.  The first is that s 51(xxvi) does not authorise special laws affecting rights and obligations in areas in which there is no relevant difference between the people of the race to whom the law is directed and the people of other races.  A simple example will suffice.  Rights deriving from citizenship inhere in the individual by reason of his or her membership of the Australian body politic and not by reason of any other consideration, including race.  To put the matter in terms which reflect the jurisprudence that has developed with respect to anti-discrimination law, race is simply irrelevant to the existence or exercise of rights associated with citizenship.  So, too, it is irrelevant to the question of continued membership of the Australian body politic.  Consequently, s 51(xxvi) will not support a law depriving people of a particular racial group of their citizenship or their rights as citizens.  And race is equally irrelevant to the enjoyment of those rights which are generally described as human rights and which are taken to inhere in each and every person by reason of his or her membership of the human race.

41. The second matter which flows from the requirement that there be some matter or circumstance upon which the Parliament might reasonably form the judgment that there is some difference pertaining to the people of a particular race which necessitates some special law is that the law must be reasonably capable of being viewed as appropriate and adapted to the difference asserted.  A similar view was expressed by Deane and Toohey JJ in Leeth v The Commonwealth[60], it being said by their Honours that s 51(xxvi) authorises "discriminatory treatment of members of [a particular race] to the extent which is reasonably capable of being seen as appropriate and adapted to the circumstance of that membership".  Although they did not explain why that was so, the requirement flows, in my view, from the need for there to be some material or circumstance from which it might reasonably be concluded by the Parliament that there is some difference necessitating a special law.  Unless the law in question is reasonably capable of being viewed as appropriate and adapted to the difference which is claimed, it could not be concluded that the Parliament formed the view that there was such a difference.

    [60](1992) 174 CLR 455 at 489.

42. I have attempted to explain the need for a law to be reasonably capable of being viewed as appropriate and adapted to some difference which the Parliament might reasonably judge to exist by reference to the language of s 51(xxvi).  However, the matter may also be expressed in terms used in the Native Title Act Case[61].  A law which deals differently with the people of a particular race and which is not reasonably capable of being viewed as appropriate and adapted to a difference of the kind indicated has no rational basis and is, thus, a "manifest abuse of the races power"[62].  So, too, it would be irrational and, thus, a manifest abuse of the races power if Parliament were to enact a law requiring or providing for the different treatment of the people of a particular race if it could not reasonably form the view that there was some difference requiring their different treatment.

    [61](1995) 183 CLR 373.

    [62](1995) 183 CLR 373 at 460; Gerhardy v Brown (1985) 159 CLR 70 at 138-139 per Brennan J.

43. Because the power conferred by s 51(xxvi) of the Constitution is premised on there being some matter or circumstance pertaining to the people of a particular race upon which the Parliament might reasonably conclude that there is a real and relevant difference necessitating the making of a special law, its scope necessarily varies according to circumstances as they exist from time to time. In this respect the power conferred by par (xxvi) is not unlike the power conferred by s 51(vi) to legislate with respect to defence[63].  And as with the defence power, a law that is authorised by reference to circumstances existing at one time may lose its constitutional support if circumstances change.

    [63]See with respect to the changing scope of the defence power, Farey v Burvett (1916) 21 CLR 433 at 441-443 per Griffith CJ, 453-455 per Isaacs J; Andrews v Howell (1941) 65 CLR 255 at 278 per Dixon J, 287 per McTiernan J; Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 161-163 per Williams J; Victorian Chamber of Manufactures v The Commonwealth (Women’s Employment Regulations) (1943) 67 CLR 347 at 399‑400 per Williams J; Stenhouse v Coleman (1944) 69 CLR 457 at 471-472 per Dixon J; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 195, 197, 199 per Dixon J, 207 per McTiernan J, 222-223, 227 per Williams J, 253-255 per Fullagar J, 273-274 per Kitto J; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 596-597 per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 484 per Brennan and Toohey JJ.

44. Although the power conferred by s 51(xxvi) is, in terms, wide enough to authorise laws which operate either to the advantage or disadvantage of the people of a particular race, it is difficult to conceive of circumstances in which a law presently operating to the disadvantage of a racial minority would be valid.  It is even more difficult to conceive of a present circumstance pertaining to Aboriginal Australians which could support a law operating to their disadvantage.  To put the matter another way, prima facie, at least, the circumstances which presently pertain to Aboriginal Australians are circumstances of serious disadvantage, which disadvantages include their material circumstances and the vulnerability of their culture[64].  And prima facie, at least, only laws directed to remedying their disadvantage could reasonably be viewed as appropriate and adapted to their different circumstances.

    [64]As indicated earlier, a matter dealt with by the Heritage Protection Act and also by ss 8 and 11 of the World Heritage Properties Conservation Act 1983 (Cth), considered in The Tasmanian Dam Case (1983) 158 CLR 1.

45. Notwithstanding that it is difficult to envisage circumstances in which a law which operated to the disadvantage of the people of a racial minority might validly be enacted under s 51(xxvi) of the Constitution, the test of constitutional validity is not whether it is a beneficial law. Rather, the test is whether the law in question is reasonably capable of being viewed as appropriate and adapted to a real and relevant difference which the Parliament might reasonably judge to exist. It is the application of that test to today's circumstances, so far as they are known, that leads to the conclusion that prima facie, at least, s 51(xxvi) presently only authorises laws which operate to the benefit of Aboriginal Australians.

46. Once it is accepted, as, in my view, it must be, that s 51(xxvi) can only be exercised if the Parliament can reasonably conclude that there is some real and relevant difference necessitating the making of a special law, the argument that it only authorises laws which operate with respect to all persons of the race in question must fail.  Not only would that construction infringe the basic rule that a grant of legislative power is to be construed with all the generality that its words permit[65], it would conflict with the very nature of the power conferred by s 51(xxvi).  A construction of that kind would either require that the power not be used or that it be used to treat all persons of the race in question differently from people of other races notwithstanding that the circumstances of some members of that race might be no different from the circumstances of those not affected by that law.  In either event, s 51(xxvi) would be productive of false or irrational discrimination:  in the former case, that would occur because laws would not be passed to deal with genuine difference; in the latter case it would occur because the law would require different treatment even though there was no relevant difference.  Section 51(xxvi), however, is directed to legitimate discrimination based on real and relevant difference or, at least, some real and relevant difference that Parliament might reasonably judge to exist.

    [65]The Jumbunna Coal Mine, No Liability v The Victorian Coal Miners’ Association (1908) 6 CLR 309 at 367-368 per O’Connor J; R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225-226 per Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ.

47. The mere fact that the power conferred by s 51(xxvi) of the Constitution is limited in the manner indicated does not provide an answer to the question reserved by the Chief Justice. That is because the power conferred by s 51 of the Constitution "to make laws for the peace, order, and good government of the Commonwealth with respect to" the matters therein specified is, "subject to this Constitution", a plenary power to legislate with respect to those matters[66].  Subject to two matters shortly to be mentioned, a plenary power to legislate on some topic or with respect to some subject-matter carries with it the power to repeal or amend existing laws on that topic or with respect to that subject‑matter[67].  The first qualification to that proposition is that that power is subject to any validly enacted applicable manner and form requirement[68]. The second is that, in the case of the amendment or partial repeal of a law enacted under s 51, a question may arise whether the law, as it stands after its alteration, retains its character as a law with respect to a matter within Commonwealth legislative power.

    [66]Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

    [67]Goodwin v Phillips (1908) 7 CLR 1 at 7 per Griffith CJ; Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 430 per Dixon J, 433 per McTiernan J; South‑Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 617-618 per Latham CJ, 623 per Starke J, 633, 633-634 per Evatt J, 636 per McTiernan J; Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 107 per Latham CJ; R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 226 per Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ; Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 63 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74-75 per McHugh J; cf Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 75 per Dawson J, citing Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 168; [1980] 1 All ER 529 at 551 per Lord Scarman.

    [68]McCawley v The King (1918) 26 CLR 9 at 52, 54, 55 per Isaacs and Rich JJ; Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 417-418, 421 per Rich J, 424 per Starke J, 430, 431-432 per Dixon J, 443 per McTiernan J; South‑Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 618 per Latham CJ, 625 per Dixon J, 636 per McTiernan J.

48. The plaintiffs contend that, as the Bridge Act does not, in terms, purport to repeal or amend any existing Commonwealth law, its validity is to be determined on the basis that it stands separate and apart from any such law, including the Heritage Protection Act. Were the Bridge Act a separate enactment which, for example, purported to forbid a State Minister from making a declaration under State law having the same or similar effect as a declaration under the Heritage Protection Act, it would be difficult, if not impossible, to conceive of a present difference which the Parliament might reasonably judge to exist between the Ngarrindjeri people and people of other races so as to necessitate that particular law. But the Bridge Act does not affect a State law. It affects a Commonwealth law, namely, the Heritage Protection Act and it affects it by limiting its field of operation. Because it limits the field in which the Heritage Protection Act operates, it operates, to that extent, to repeal that Act[69].

    [69]Goodwin v Phillips (1908) 7 CLR 1 at 7 per Griffith CJ; South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 625 per Dixon J; Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 275-276 per Fullagar J; Mathieson v Burton (1971) 124 CLR 1 at 10-11 per Windeyer J; South Australia v Tanner (1989) 166 CLR 161 at 171 per Wilson, Dawson, Toohey and Gaudron JJ; cf Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 75 per McHugh J.

49. The validity of the Heritage Protection Act is not in question. And in the view that I take, there is no reason to doubt that, at all relevant times, it has been, and continues to be a valid law under s 51(xxvi) of the Constitution. And subject to the qualifications previously mentioned, s 51(xxvi) not only authorises the Heritage Protection Act but, also, authorises its partial repeal. The first qualification is of no relevance for there is no manner and form requirement with respect to the repeal or amendment of the Heritage Protection Act. (And I very much doubt whether the legislative power of the Parliament extends to the enactment of a requirement of that kind, whether pursuant to s 51(xxvi) or any other head of legislative power.) So far as concerns the second qualification, the Heritage Protection Act as amended by the Bridge Act remains a law for the protection and preservation of areas and objects of significance in accordance with Aboriginal tradition and, for the reasons already given, continues to be a valid enactment under s 51(xxvi).

50. The question reserved by the Chief Justice should be answered "No".

51. GUMMOW AND HAYNE JJ. In this action, the Chief Justice, acting pursuant to s 18 of the Judiciary Act 1903 (Cth), has reserved a question for the consideration of the Full Court. The question asks whether, on the facts pleaded in the further amended statement of claim and admitted in the amended defence, the Hindmarsh Island Bridge Act 1997 (Cth) ("the Bridge Act") or any part thereof is invalid in that it is not supported by s 51(xxvi) of the Constitution or any other head of Commonwealth legislative power. In argument before the Full Court, reliance has been placed only upon s 51(xxvi).

52. Section 51(xxvi) of the Constitution states:

    "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

    ...

    (xxvi)The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws:".

    The words ", other than the aboriginal race in any State," were omitted upon the coming into force on 10 August 1967 of the statute given the short title Constitution Alteration (Aboriginals) 1967 (Cth). That statute ("the 1967 Act") was enacted by the Parliament with the approval of the electors as required by the manner and form provisions of s 128 of the Constitution. The electors were consulted in accordance with the procedures laid down by the Referendum (Constitution Alteration) Act 1906 (Cth) ("the Referendum Act")[70].  Section 2 of the 1967 Act stated:

    "The Constitution is altered by omitting from paragraph (xxvi) of section 51 the words ', other than the aboriginal race in any State,'."

    [70]Repealed by s 145 of the Referendum (Machinery Provisions) Act 1984 (Cth).

53. The Bridge Act commenced on 22 May 1997. It applies to two areas in the County of Hindmarsh in the State of South Australia. They are defined respectively as the "Hindmarsh Island bridge area" and the "pit area". Section 4 of the Bridge Act makes special provision with respect to the operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ("the Heritage Protection Act") in relation to those areas. First, it is stated that 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 certain activities, in particular the construction of a bridge (the Bridge Act, s 4(1)). Further, the Heritage Protection Act "does not authorise" the Minister to take any action in relation to an application thereunder that relates, wholly or partly, to those activities (the Bridge Act, s 4(2)).

54. It is admitted on the pleadings that the Ngarrindjeri people are members of the Aboriginal race. There is an issue on the pleadings (so the matter cannot be assumed by the Full Court) whether the areas to which the Bridge Act applies are of a high spiritual importance to the Ngarrindjeri people and whether the building of a bridge would desecrate their traditions, beliefs and culture. On 19 December 1995, the plaintiffs and others applied for a declaration under s 10 of the Heritage Protection Act to protect and preserve the land and waters within the area in question ("the plaintiffs' application"). If valid, the Bridge Act "does not authorise" the taking by the Minister of any action in relation to the plaintiffs' application.

55. The question before the Full Court is whether the Bridge Act is supported by s 51(xxvi) of the Constitution. There is no question before the Full Court concerning the validity of the Heritage Protection Act. If the Bridge Act be invalid, the operation of the Heritage Protection Act has continued unaffected by it.

    Basic propositions

56. Before turning to consider the validity of the Bridge Act, it is convenient to restate several basic propositions. The first is that there is no general requirement that Commonwealth laws should have a uniform operation throughout the Commonwealth, nor is there any general impediment to the Parliament distinguishing between the different needs or responsibilities of different people or different localities[71]. Examples of legislation founded upon s 51(xxvi) which are limited in this way are the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth) and the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self‑management) Act 1978 (Cth). These statutes, as is apparent from their titles, were concerned with particular states of affairs in Queensland.

    [71]Leeth v The Commonwealth (1992) 174 CLR 455 at 467, 489.

57. Secondly, in the judgment of the Court in R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd, it was said[72]:

    "The will of a Parliament is expressed in a statute or Act of Parliament and it is the general conception of English law that what Parliament may enact it may repeal."

    The Commonwealth and those supporting the validity of the Bridge Act seek to characterise it as an illustration of this proposition.

    [72](1964) 113 CLR 207 at 226. See also South‑Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 617‑618; R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636 at 647; Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 62‑63; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 74‑75.

58. Thirdly, in determining the character of a law such as the Bridge Act, it is appropriate to take the steps indicated by Kitto J in Fairfax v Federal Commissioner of Taxation to identify the nature of the "rights, duties, powers and privileges" which the statute "changes, regulates or abolishes"[73]. In the present case, the Bridge Act changes, regulates or abolishes certain rights, duties, powers and privileges created by the Heritage Protection Act. This is apparent from the text of the central provision of the Bridge Act, s 4, which states:

    [73](1965) 114 CLR 1 at 7. See also Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 334, 337, 351‑352; Leask v The Commonwealth (1996) 187 CLR 579 at 590‑591, 634.

    "(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)."

    The Heritage Protection Act

59. It is convenient to refer to various provisions of the Heritage Protection Act in order better to appreciate the impact of the later statute upon the earlier statute. Section 4 of the Heritage Protection Act states:

    "The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition."

    The term "Aboriginal" is defined in s 3(1) as meaning "a member of the Aboriginal race of Australia" and including "a descendant of the indigenous inhabitants of the Torres Strait Islands".  "Aboriginal tradition" is defined in s 3(1) as meaning:

    "the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships". (emphasis added)

60. Sections 10 and 12 provide for the receipt by the Minister of applications "by or on behalf of an Aboriginal or a group of Aboriginals" which seek the preservation or protection from injury or desecration of, respectively, a specified area, or a specified object or class of objects[74].  The Minister is empowered to make a declaration in certain circumstances, including satisfaction that the area is "a significant Aboriginal area" which is under threat of injury or desecration, and that the object is "a significant Aboriginal object" under threat of injury or desecration.  The phrases "significant Aboriginal area" and "significant Aboriginal object" refer respectively to areas of particular significance to Aboriginals in accordance with Aboriginal tradition and objects, including Aboriginal remains, of particular significance to Aboriginals in accordance with Aboriginal tradition (s 3(1)).

    [74]Section 9 empowers the Minister to make emergency declarations in respect of a specified area, with effect for a limited period. For present purposes, no special considerations arise from s 9.

61. Section 10(1) of the Heritage Protection Act states:

    "Where the Minister:

    (a)receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;

    (b)      is satisfied:

    (i)       that the area is a significant Aboriginal area; and

    (ii)      that it is under threat of injury or desecration;

    (c)has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report and any representations attached to the report; and

    (d)      has considered such other matters as he thinks relevant;

    he may make a declaration in relation to the area."

62. It follows that before the power of the Minister under s 10 to make the declaration sought on the plaintiffs' application was exercisable, it would have been necessary (as a "condition precedent"[75]) for the Minister to have received a report under s 10(4) which dealt with various matters. These matters included the effects the making of the declaration might have on the proprietary or pecuniary interests of persons other than those Aboriginals who sought preservation or protection of the special area (s 10(1)(c), (4)(e)).

    [75]Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18.

63. Declarations have effect for such period as is specified therein (ss 10(2), 12(2)). However, any declaration is subject to the requirement that it be laid before each House of the Parliament and be subject to disallowance by either House. That is the effect of the adaptation of s 48 of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act") by s 15 of the Heritage Protection Act.

64. A declaration in relation to an area shall describe it with sufficient particulars to enable the identification of the area and contain provisions "for and in relation to the protection and preservation of the area from injury or desecration" (s 11). Section 12 imposes corresponding requirements with respect to declarations in relation to objects (s 12(3)). Section 3(2) states:

    "For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:

    (a)      in the case of an area:

    (i)it is used or treated in a manner inconsistent with Aboriginal tradition;

    (ii)by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or

    (iii)passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or

    (b)in the case of an object - it is used or treated in a manner inconsistent with Aboriginal tradition;

    and references in this Act to injury or desecration shall be construed accordingly."

    It will be recalled from the definition of "Aboriginal tradition" in s 3(1) that it extends to the traditions, observances, customs and beliefs of a particular community or group of Aboriginals.  A person who contravenes a provision of a declaration is guilty of an offence (s 22) and, on the application of the Minister, the Federal Court of Australia may enjoin conduct which constitutes or would constitute a contravention of a declaration (s 26).

150. So far as the text of the paragraph was concerned, the Commonwealth urged the adoption of the view that the requirement that a law with respect to the people of any race "for" whom it was deemed necessary to make laws meant no more than "in respect of" (or "with reference to"[262]) whom such laws were deemed necessary.  The word "deemed" clearly postulated that the Parliament would do the deeming.  Whilst the courts might retain a power to supervise legislative abuse[263], the highly charged and potentially politicised issues of racial legislation[264], and the assessment of whether a law was for the benefit or detriment of a particular race, should be left to the Parliament accountable to the people.  It should not be assumed by the courts which were not accountable.  According to the Commonwealth, to adopt the qualification urged by the plaintiffs would involve the courts, and ultimately this Court, in the invidious task of evaluating detriment and adverse discrimination which the terms of par (xxvi) expressly assigned to the Parliament.  For example, a law to prohibit ceremonial circumcision amongst Australian Aboriginals[265] might invoke much debate. It might resist ready classification on the beneficial/detrimental scale. The adjective "special" qualified the "laws". It was equally applicable to laws which were for the benefit or advancement of the people of a race as to laws detrimental to, or discriminatory against, such people. The word "special" connoted, in the context of par (xxvi) that the law would be discriminatory. It did not necessarily establish that the discrimination had to be beneficial or non-detrimental. Attention was also drawn to the exemption in the Heritage Protection Act relating to the Portland Aluminium Smelter[266], the validity of which had not been tested. 

     [262]Relying on Gibbs J in The Tasmanian Dam Case (1983) 158 CLR 1 at 110.

     [263]   A concession made by the Commonwealth.  See Native Title Act Case (1995) 183 CLR 373 at 460. See also The Tasmanian Dam Case (1983) 158 CLR 1 at 202 per Wilson J.

     [264] It was pointed out that, to the extent that federal power was limited to the making of laws of benefit to or not discriminatory against people on the ground of race, this would expand the scope of the power of the States under the Constitution to enact detrimental or discriminatory laws. However such laws would be subject to the Racial Discrimination Act 1975 (Cth) and the operation of s 109 of the Constitution.

     [265]An example suggested by counsel for the Kebaro interests.

     [266]s 21ZA referring to the Alcoa (Portland Aluminium Smelter) Act 1980 (Vic), s 13.

151. The suggested danger of the misuse of the race power to enact laws seriously detrimental and prejudicial to the people of any race in Australia (including Aboriginals) could be met, so it was argued, by the reserve jurisdiction mentioned by the Court in the Native Title Act Case[267]. But that had no application here. It was open to the Parliament, against the background of delay, cost and adverse reports in the public domain, to judge that the comparatively small detriment and adverse discrimination against the plaintiffs' rights reflected in the Bridge Act was outweighed by the public interest in allowing the Hindmarsh Bridge development to go ahead without further interference from applications under the Heritage Protection Act.

     [267](1995) 183 CLR 373 at 460.

152. I acknowledge the force of these arguments. For a time they held me. However, I have concluded that the race power in par (xxvi) of s 51 of the Constitution does not extend to the enactment of laws detrimental to, or discriminatory against, the people of any race (including the Aboriginal race) by reference to their race. My reasons are in part textual and contextual; in part affected by the inadequacy of the exceptional "manifest abuse" test; in part influenced by the history of the power which I have outlined and in part affected by the common assumptions against the background of which the Australian Constitution must be read today, aided by the interpretative principle to which I referred in Newcrest Mining v The Commonwealth[268].  Let me explain these points in turn:

     [268](1997) 71 ALJR 1346 at 1423-1426; 147 ALR 42 at 147-151.

     Textual and contextual indications of non-discrimination

153. No authority of this Court requires the rejection of the plaintiffs' submission about the meaning of par (xxvi).  It is therefore necessary to start the elucidation of its requirements with the text, viewed in its context.  First, the power is not simply to make laws with respect to "[t]he people of any race".  In this regard par (xxvi) is to be contrasted with par (xix) which affords such a plenary power, relevantly, with respect to "aliens".  In par (xxvi), words have been added which must have work to do.  They are intended to send signals of meaning to the reader of the paragraph.  The requirement that laws made under par (xxvi) by reference to race should be "deemed necessary" and should be "special" cannot be dismissed as mere surplusage.  In a constitutional text noted for its brevity, the additional words must clearly have the purpose of putting a limitation on what would otherwise be an unbridled race power. 

154. It may be assumed that the drafters of par (xxvi) would have been aware of the sharply divided opinions which were evident in the Conventions: some of the delegates viewing detrimental or adversely discriminatory laws by the new Parliament as "disgraceful".  On the face of things, therefore, the stated pre-conditions to the use of the race power were intended to indicate a brake on legislation with respect to "the people of any race".  All people in the Commonwealth were people of a "race".  Most of the settlers would probably, in 1901, have regarded themselves as people of the British race or, perhaps, Caucasians.  Clearly, a race power for "special" laws was not intended to have application to them.

155. Secondly, the words of qualification in par (xxvi) must be read as a composite idea. The parts combine to impose a control on the laws which may be made under the paragraph. As a matter of language, the words are consistent with an operation that is non-detrimental and has no adverse discrimination about it. This is particularly so if the structure, purpose and other features of the Constitution support that meaning. The word "for" is ambiguous. It could mean "for the benefit of". Or it could mean "in respect of". The history of the power in its original form tends to favour the latter meaning. However, a textual argument against that meaning is that, where the framers of the Constitution intended that idea, it was so expressed. Thus it was done in pars (xxxi), (xxxvi) ("in respect of"); in par (xxii) ("in relation thereto"); and in par (xxxii) ("with respect to"). The test of necessity in par (xxvi) is a strong one. It is to be distinguished from advisability, expedience or advantage. Its presence in par (xxvi) indicates that a particular need might enliven the necessity to make a special law.  It has been held by this Court, and was conceded by the Commonwealth, that ultimately and in "extreme cases" the existence of such necessity was justiciable[269]. Various formulae were urged to emphasise the severe limits of the jurisdiction to review the posited necessity. But in my view, the legislation contested here is subject to judicial review. There appears nothing in the agreed facts about the Ngarrindjeri, or the section of them constituted by the plaintiffs, which calls forth the power in par (xxvi) on the ground of necessity by reference to the race of such people. The only necessity evident in the facts (and stated in the long title to the Bridge Act) is the necessity "to facilitate the construction of the [bridge]". The fact that any law made under the race power must be deemed "necessary" and must answer to the description of "special" marks such a law out from all other laws that may be made by the Parliament. It tenders to the Parliament, and ultimately to this Court, criteria of limitation which must be given meaning according to the understanding of the Constitution read today.

     [269]Native Title Act Case (1995) 183 CLR 373 at 462.

156. Other paragraphs of s 51 contain concepts, the content of which has varied during the history of the Commonwealth because they are read with different eyes at different times in the light of different necessities. The clearest example is par (vi) which relates to the defence of the Commonwealth. Quite apart from the fact that the words "naval" and "military" have been enlarged to embrace the airforce, the reach of the power has expanded and contracted as changing times of war and peace have necessitated[270].  It is therefore unsurprising that we, who look at par (xxvi) in 1998, read the adjectival clause which qualifies the power of the Parliament to make laws with respect to "the people of any race" informed by the experience of a century of federal government.  In that century the concept of what it is, in the nature of law, that may be deemed "necessary" and in a "special" form for the people of a race, by reference to race, cannot, and should not, be understood as it might have been in 1901.  Such a static notion of constitutional interpretation completely misunderstands the function which is being performed.

     [270]   Farey v Burvett (1916) 21 CLR 433 at 442; Jenkins v The Commonwealth (1947) 74 CLR 400 at 405; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 206-207; Marcus Clark & Co Ltd v The Commonwealth (1952) 87 CLR 177 at 218, 226.

157. Thirdly, a crucial element in the history of the constitutional text is the amendment of par (xxvi) in 1967. Because there have been so few amendments to the Australian Constitution, it has not hitherto been necessary to develop a theory of the approach to be taken to the meaning of the text where a provision is altered. In deriving the meaning of the altered provision, conventional rules of statutory construction permit a court to take into account the legislative change. But this is much more important in elucidating a constitutional text. This is especially so in Australia because of the necessity, exceptionally, to involve the electors of the Commonwealth in the law-making process. That step requires that this Court, to understand the amendment, should appreciate, and give weight to, the purpose of the change. The stated purpose here was to remove two provisions in the Constitution which, it had ultimately been concluded, discriminated against Australian Aboriginals. Whatever the initial object of the original exception to par (xxvi), by the time that the words were removed, the amendment did not simply lump the Aboriginal people of Australia in with other races as potential targets for detrimental or adversely discriminatory laws. It was the will of the Australian Parliament and people that the race power should be significantly altered. If the Constitution were not to be changed to provide the power to make laws with respect to the advancement of Aboriginal people and to forbid discrimination on racial grounds (as Mr Wentworth had proposed), it was to be altered, at least, to remove their exclusion from the Parliament's law-making power in order that the Parliament might have the power to make special laws with respect to them. To construe the resulting power in par (xxvi) as authorising the making of laws detrimental to, and discriminatory against, people on the ground of race, and specifically Aboriginal race, would be a complete denial of the clear and unanimous object of the Parliament in proposing the amendment to par (xxvi). It would amount to a refusal to acknowledge the unprecedented support for the change, evident in the vote of the electors of Australia. This Court should take notice of the history of the amendment and the circumstances surrounding it in giving meaning to the amended paragraph.

158. Fourthly, although the source and application of the protection from adverse discrimination on the ground of race differs in the United States of America[271], it is helpful to consider the approach of that country's Supreme Court to such laws.  There, legislation that enacts detrimental discrimination on such grounds is considered "constitutionally suspect"[272].  Such enactments will therefore be subject to the "most rigid scrutiny"[273], and held to be "justifiable only by the weightiest of considerations"[274].  The Court will not simply rely on the view of the relevant legislature as to the purpose or effect of the challenged law[275].  Arguments of inconvenience and potential political embarrassment for the Court fall on deaf judicial ears in that country.  It is no different in Australia although the constitutional foundations are different.  This Court, of its function, often finds itself required to make difficult decisions which have large economic, social and political consequences[276].

     [271]   The protection is grounded in the Fourteenth Amendment, which by its terms applies only to State laws (though a similar limitation has been held to apply to federal legislation: Gibson v Mississippi 162 US 565 at 591 (1896)).

     [272]Bolling v Sharpe 347 US 497 at 499 (1954).

     [273]Korematsu v United States 323 US 214 at 216 (1944).

     [274]Washington v Davis 426 US 229 at 242 (1976).

     [275]   See also McLaughlin v Florida 379 US 184 at 191-192 (1964); Loving v Virginia 388 US 1 at 9 (1967); Richmond v J A Croson Co 488 US 469 at 500 (1989); Scalia "Federal Constitutional Guarantees of Individual Rights in the United States of America" in Beatty (ed), Human Rights and Judicial Review: A Comparative Perspective (1994) 57 at 86-88; Tushnet, Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991 (1997) at 100; cf Canada (A G) v Mossop [1993] 1 SCR 554 at 645-646 per L'Heureux-Dubé J.

     [276]   Ha v New South Wales (1997) 71 ALJR 1080 at 1090; 146 ALR 355 at 368 is a recent example; but there are many.

     Unworkability of the "manifest abuse" test

159. In order to explain why the Australian Parliament could not, under the Constitution, enact racist laws such as those made in Germany during the Third Reich and in South Africa during apartheid - a result by inference accepted as totally alien to the character and meaning of our Constitution - counsel for the Commonwealth argued that it was enough that this Court retained a supervisory jurisdiction although one limited to invalidity of laws in cases where the Parliament's reliance upon par (xxvi) was a "manifest abuse"[277] of that power.  Such a test has found favour with some of the Justices in this case.  As I understand the test of "manifest abuse", it is to be confined to legislation which the Court considers to be "extreme", "outrageous" or "completely unacceptable".  In evaluating whether such a test is a legally viable, and therefore an acceptable, one, it is instructive to examine how, in practice, a law that has an adverse discriminatory effect may not at first appear, on its face, to constitute a "manifest abuse" or an "outrageous" exercise of the enabling power.

     [277]   Pursuant to the point reserved in the Native Title Act Case (1995) 183 CLR 373 at 460.

160. Take first the former laws of South Africa, which illustrate this point most clearly.  The principal legislative manifestation of apartheid was the Group Areas Act[278].  It categorised the population according to racial "groups"[279].  It provided for the proclamation of "controlled areas" in relation to a particular group[280].  It forbade members of other groups owning[281] or occupying[282] land within them.  However, the legislation did not, on its face, actually differentiate between particular groups.  All three groups were prohibited from acquiring land in certain areas.  Yet, in effect, whilst the legislation obliged major relocation of "Bantus" and "coloureds", it had very few consequences for "whites"[283].  How could such a law, or one having similarities to it, be said to be, on its face, a "manifest abuse"?  Doubtless it did have, and its equivalent would have, persuasive defenders arguing that it was open to the Parliament to deem such a special law to be necessary.

     [278]   Although such legislation was first enacted in 1950, the following section references are to the Group Areas Act 1966, being the last surviving Group Areas Act under the apartheid system.

     [279]s 12(1). The "groups" were "white", "Bantu", and "coloured".

     [280]s 23.

     [281]ss 13, 27.

     [282]s 26.

     [283]   International Commission of Jurists, South Africa: Human Rights and the Rule of Law (1988) at 17; Platzky and Walker, The Surplus People: Forced Removals in South Africa (1985) at 99-100; cf Cassese, Human Rights in a Changing World (1990) at 108.

161. A similar conclusion could be reached in relation to other legislation enacted by the South African Parliament under apartheid.  The Prohibition of Mixed Marriages Act[284] (which banned marriages between "Europeans" and "non‑Europeans"[285]) and the Immorality Act[286] (which prohibited sexual contact between "whites" and "coloureds"[287]) applied equally to all racial groups[288]. 

     [284]Enacted in 1949.

     [285]s 1. 

     [286]   Whilst the prohibition was first introduced in 1950, the section reference below is to the Immorality Act 1957, being the last such Act to survive under the apartheid system.

     [287]s 16.

     [288]   See also Population Registration Act (1950) (SAfr); Reservation of Separate Amenities Act 1953 (SAfr).  Certain pieces of legislation were, however, discriminatory on their face as well as in their effect, eg Native Trust and Land Act 1936 (SAfr); Black (Urban Areas) Consolidation Act (1945) (SAfr) (as amended by the Native Laws Amendment Act 1952 (SAfr)); Natives (Abolition of Passes and Coordination of Documents) Act 1952 (SAfr).

162. Likewise, it is difficult to be sure that some of the early legislation enacted by the Third Reich would be struck down under the "manifest abuse" test.  For example, the first anti-Semitic law enacted by the regime[289], the Law for the Restoration of the Professional Civil Service 1933 (Ger)[290], provided that civil servants of "non-Aryan" descent were to be retired.  Arguably, on its face, this would be insufficient to amount to a "manifest abuse"[291].  Australian employment laws have frequently contained provisions requiring certain public servants to be Australian citizens or British subjects - most of those being of the Caucasian race.  Yet in Germany this power was immediately used to dismiss thousands of Germans of the Jewish race from their posts[292].  Such statutes, beginning with apparently innocuous provisions, laid the ground for worse to follow.  They formed the precursors for more abhorrent legislation during the subsequent decade[293].

     [289]   Noakes and Pridham (eds), Nazism 1919-1945: A History in Documents and Eyewitness Accounts (1988), vol 1 at 527.

     [290]   Art 3.  See Noakes and Pridham (eds), Nazism 1919-1945: A History in Documents and Eyewitness Accounts (1988), vol 1 at 224.

     [291]   In Oppenheimer v Cattermole [1976] AC 249 at 278, the majority in the House of Lords characterised a German decree depriving Jews of their citizenship as "so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all". But what of a law which required retirement from employment on the grounds of race. Would it be classified as a "manifest abuse" or permissible discrimination?

     [292]Hilberg, The Destruction of the European Jews (1985) at 83, 86.

     [293]   In 1935, the Law for the Protection of German Blood and Honour restricted marriage, personal relationships and employment by Jews (Tatz, "Racism, Responsibility, and Reparation: South Africa, Germany, and Australia" (1985) 31 Australian Journal of Politics and History 162 at 165).  Later that year, a decree defined a Jew as a "non-citizen" (Fraser, "Law Before Auschwitz: Aryan and Jew in the Nazi Rechtsstaat" in Cheah, Fraser and Grbich (eds) Thinking Through the Body of the Law (1996) at 66).  In 1938, legislation disbarring all Jewish lawyers was enacted (Fernandez, "The Law, Lawyers and the Courts in Nazi Germany" (1985) 1 South African Journal on Human Rights 124 at 128).  After 1938 laws for the registration of Jewish property were made.  After 1940 laws for the sequestration of such property in Poland were made.  People of the Jewish race were excluded from compensation for war damage before a worse fate befell most of them (Taylor, The Anatomy of the Nuremberg Trials.  A Personal Memoir (1992) at 340).

163. Laws such as those set out above would, now, be expressly forbidden by the constitutions of both Germany[294] and South Africa[295]. Yet, in Australia, if s 51(xxvi) of the Constitution permits all discriminatory legislation on the grounds of race excepting that which amounts to a "manifest abuse", many of the provisions which would be universally condemned as intolerably racist in character would be perfectly valid under the Commonwealth's propositions. The criterion of "manifest abuse" is inherently unstable. The experience of racist laws in Germany under the Third Reich and South Africa under apartheid was that of gradually escalating discrimination. Such has also been the experience of other places where adverse racial discrimination has been achieved with the help of the law. By the time a stage of "manifest abuse" and "outrage" is reached, courts have generally lost the capacity to influence or check such laws. A more stable and effective criterion is required for validity under par (xxvi). It should be one apt to the words and character of the Australian Constitution; but also to the shared experience of the Australian people that lay behind the amendment of par (xxvi) in 1967.

     [294]   Basic Law of the Federal Republic of Germany, Article 3.3 ["Nobody shall be prejudiced or favoured because of their sex, birth, race, language, national or social origin, faith, religion or political opinions."]

     [295] Constitution of the Republic of South Africa, s 9(3) ["The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."]

164. The laws of Germany and South Africa to which I have referred provide part of the context in which par (xxvi) is now understood by Australians and should be construed by this Court. I do not accept that in late twentieth century Australia that paragraph supports detrimental and adversely discriminatory laws when the provision is read against the history of racism during this century and the 1967 referendum in Australia intended to address that history. When they voted in that referendum, the electors of this country were generally aware of that history. They knew the defects in past Australian laws and policies. And they would have known that the offensive legal regimes in Germany during the Third Reich and South Africa under apartheid were not the laws of uncivilised countries. Both in Germany and in South Africa the special laws enacted would probably have been regarded as unthinkable but a decade before they were made. They stand as a warning to us in the elaboration of our Constitution.

165. The purpose of the race power in the Australian Constitution, as I read it, is therefore quite different from that urged for the Commonwealth.  It permits special laws for people on the grounds of their race.  But not so as adversely and detrimentally to discriminate against such people on that ground.

     The interpretative principle point

166. The conclusion just stated is reinforced when resort is had to the interpretative principle to which I have earlier referred. Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights[296].  Such an approach has, in recent years, found favour in New Zealand - where Cooke P (as Lord Cooke of Thorndon then was) has referred to the "duty of the judiciary to interpret and apply national constitutions ... in the light of the universality of human rights"[297].  Likewise, in interpreting the Canadian Charter of Rights and Freedoms, that country's Supreme Court has frequently had regard to international instruments[298]. To do so does not involve the spectre, portrayed by some submissions in these proceedings, of mechanically applying international treaties, made by the Executive Government of the Commonwealth, and perhaps unincorporated, to distort the meaning of the Constitution. It does not authorise the creation of ambiguities by reference to international law where none exist. It is not a means for remaking the Constitution without the "irksome" involvement of the people required by s 128[299]. There is no doubt that, if the constitutional provision is clear and if a law is clearly within power, no rule of international law, and no treaty (including one to which Australia is a party) may override the Constitution or any law validly made under it[300]. But that is not the question here. Cases which establish that rule are irrelevant to the present problem. Where there is ambiguity, there is a strong presumption that the Constitution, adopted and accepted by the people of Australia for their government, is not intended to violate fundamental human rights and human dignity[301].  Such violations are ordinarily forbidden by the common law and every other statute of this land is read, in the case of ambiguity, to avoid so far as possible such a result[302].  In the contemporary context it is appropriate to measure the prohibition by having regard to international law as it expresses universal and basic rights[303].  Where there is ambiguity in the common law or a statute, it is legitimate to have regard to international law[304].  Likewise, the Australian Constitution, which is a special statute, does not operate in a vacuum.  It speaks to the people of Australia.  But it also speaks to the international community as the basic law of the Australian nation which is a member of that community[305].

     [296]   Newcrest Mining v The Commonwealth (1997) 71 ALJR 1346 at 1423; 147 ALR 42 at 147.

     [297]Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266.

     [298]   See for example R v Oakes [1986] 1 SCR 103 at 120-121; R v Smith [1987] 1 SCR 1045 at 1061; Edmonton Journal v Attorney-General for Alberta [1989] 2 SCR 1326 at 1374, 1377-1378. See also Claydon, "International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms" (1982) 4 Supreme Court Law Review 287; Cohen and Bayefsky, "The Canadian Charter of Rights and Freedoms and Public International Law" (1983) 61 Canadian Bar Review 265; Schabas, International Human Rights Law and the Canadian Charter (1991); Hogg, Constitutional Law in Canada, 3rd ed (1992) at 822-824.

     [299]cf Industrial Relations Act Case (1996) 187 CLR 416 at 565 per Dawson J.

     [300]   Polites v The Commonwealth (1945) 70 CLR 60 at 69, 79; Horta v The Commonwealth (1994) 181 CLR 183 at 195.

     [301]   cf Kruger v The Commonwealth (1997) 71 ALJR 991 at 1037; 146 ALR 126 at 190.

     [302]Coco v The Queen (1994) 179 CLR 427 at 436-437, 446.

     [303]   See Fitzgerald, "International Human Rights and the High Court of Australia" (1994) 1 James Cook University Law Review 78.

     [304]   Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38; Dietrich v The Queen (1992) 177 CLR 292 at 306, 321; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. A similar approach has been adopted in the United Kingdom: Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 283; R v Home Secretary, Ex parte Brind [1991] 1 AC 696 at 761; Derbyshire CC v Times Newspapers [1992] QB 770 at 830; in New Zealand: Tavita v Minister for Immigration [1994] 2 NZLR 257 at 266; and in Canada: Reference as to Powers to Levy Rates on Foreign Legations and High Commissioners' Residences [1943] SCR 208 at 249; Schavernoch v Foreign Claims Compensation [1982] 1 SCR 1092 at 1098.

     [305]   Newcrest Mining v The Commonwealth (1997) 71 ALJR 1346 at 1424; 147 ALR 42 at 148.

167. If there is one subject upon which the international law of fundamental rights resonates with a single voice it is the prohibition of detrimental distinctions on the basis of race[306].  I consider that Judge Tanaka was correct, in the International Court of Justice, when he declared that:[307]

     "[T]he norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law".

     Against the background of the developments of international law, which, in turn, respond to recent historical abuses by the medium of law, it is appropriate to return to a scrutiny of par (xxvi).  The Commonwealth says that the paragraph is not ambiguous and that it permits detrimental and adversely discriminatory law-making in Australia on the basis of race.  Whilst, as I have indicated, a number of factors incline me against the view favoured by the Commonwealth, the arguments presented and the divergent approaches taken by members of this Court do, I think, make it abundantly clear that par (xxvi) is ambiguous.  Therefore, the final consideration which reinforces my conclusion is the resolute steps taken by international law to forbid and prevent detriment to, and adverse discrimination against, people by reference to their race. 

     [306] See United Nations Charter 1945, Arts 1(3), 55(c), 56; Universal Declaration of Human Rights 1948, Art 2; International Convention on the Elimination of all forms of Racial Discrimination 1965, Arts 1(1), 1(4), 2, 6; International Covenant on Civil and Political Rights 1966, Art 2(1); International Covenant on Economic, Social and Cultural Rights 1966, Art 2(2); Declaration on Race and Racial Prejudice 1978, Art 9(1). Australia signed the International Convention on the Elimination of all forms of Racial Discrimination on 13 October 1966, ie at the time of the parliamentary debates which led to the amendment of par (xxvi) of the Constitution. Australia ratified the Convention on 30 September 1975. See also Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 204-206; Gerhardy v Brown (1985) 159 CLR 70 at 124-125.

     [307]South West Africa Cases (Second Phase) [1966] ICJR 3 at 293.

     The alternative submission

168. Whatever else it permits, par (xxvi) does not extend to the enactment of detrimental and adversely discriminatory special laws by reference to a people's race. This conclusion is sufficient to uphold the plaintiffs' claim for relief. It is unnecessary to examine the alternative submission that under par (xxvi) Aboriginal Australians are in a specially protected position. I would dispose of the constitutional question on a basis which construes the Constitution as making no distinction between the races, for that is now the form in which the paragraph appears and the principle which the foregoing analysis upholds.

     The repeal/amendment point

169. I come finally to the repeal/amendment point.  In my view, it must be approached with a clear understanding of the prohibition on the use of par (xxvi) to enact laws which are detrimental or discriminatory on the ground of race. 

170. The plaintiffs, New South Wales and the Commonwealth argued three distinct approaches to the classification of the Bridge Act - each of which, when allied with their preferred approach to the construction of par (xxvi), produced particular results. The plaintiffs' primary submission was that the Bridge Act was simply to be considered on its own terms. Alternatively, they adopted a submission of New South Wales - that the issue was to be determined by hypothesising that the Heritage Protection Act, as purportedly amended by the Bridge Act, had been enacted as a composite statute. The Commonwealth and the supporting interveners argued that the Bridge Act was to be approached on the basis that it repealed in part, or amended, the Heritage Protection Act - requiring the Court to examine only the constitutionality of the Heritage Protection Act.

171. On the view which I take of the scope of par (xxvi), each of these approaches meets the same result. The Bridge Act is invalid. I turn first to the plaintiffs' primary submission - that the constitutionality of the Bridge Act was to be found within the "four corners" of that Act. In South Australia v The Commonwealth[308], Latham CJ observed:

     "Parliament, when it passes an Act, either has power to pass that Act or has not power to pass that Act.  In the former case it is plain that the enactment of other valid legislation cannot affect the validity of the first-mentioned Act if that Act is left unchanged.  The enactment of other legislation which is shown to be invalid equally cannot have any effect upon the first-mentioned valid Act, because the other legislative action is completely nugatory and the valid Act simply remains valid."

     From this perspective, the result could not be clearer. The Bridge Act itself is, in substance, detrimental to all Aboriginals, as it removes their opportunity of making an application under the Heritage Protection Act in regard to the Hindmarsh Island Bridge area. This has a particularly telling impact on the Ngarrindjeri people, and hence on the plaintiffs. Such a result is necessarily produced by the Bridge Act, which specifically removes the power of the Minister to authorise such a declaration[309].

     [308](1942) 65 CLR 373 at 411.

     [309]s 4.

172. The second approach is to consider the Heritage Protection Act and the Bridge Act as a composite enactment. This view conforms with the holding of the Supreme Court of the United States in Gregg Dyeing Co v Query[310]:

     "The question of constitutional validity is not to be determined by artificial standards. What is required is that state action, whether ... through one enactment or more than one, shall be consistent with the restrictions of the Federal Constitution. There is no demand in that Constitution that the State shall put its requirements in any one statute. It may distribute them as it sees fit, if the result, taken in its totality, is within the State's constitutional power."

     Reading the Heritage Protection Act and the Bridge Act together, the same result is reached. Such a hypothetical composite enactment discriminates against all Aboriginals in respect of the Hindmarsh Island Bridge area[311].  This exception, or exclusion, operates against Aboriginal people (and, in particular, the Ngarrindjeri people) by reference solely to their race.

     [310] 286 US 472 at 480 (1932); cf Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 479.

     [311]Defined in Sched 1 of the Bridge Act.

173. The third approach, favoured by the Commonwealth, is to consider the Bridge Act as merely a repealing or amending statute, whose constitutionality turns on that of the principal Act, being the Heritage Protection Act. Initially, this requires determination of whether the Bridge Act repeals or amends the Heritage Protection Act.

174. From the early days of this Court[312], it has been recognised that a later Act may sometimes effect an implied repeal (or amendment) of an earlier one by dealing with a subject matter in a way which is irreconcilable, or inconsistent, with the provisions of an earlier Act.  Whether a repeal or amendment is made is thus not dependent upon the use of a particular legislative formula[313] any more than the constitutionality of a statute is decided by the "badge" of the verbal description which the statute wears[314].  However, care must be taken in the use of observations made by the Court as to the character of a law as a "repeal" or "amendment" having regard to the different contexts in which the question may be raised[315].  Absolute statements should be avoided for they are likely to produce error[316].

     [312]Goodwin v Phillips (1908) 7 CLR 1 at 7.

     [313]Mathieson v Burton (1971) 124 CLR 1 at 10-11.

     [314]Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7.

     [315]   Commonly, it derives importance from legislation governing statutory interpretation which preserves acquired rights in the event of "repeal" of an earlier statute: Mathieson v Burton (1971) 124 CLR 1; Beaumont v Yeomans (1934) 34 SR (NSW) 562 at 568-569.

     [316]As Windeyer J confessed in Mathieson v Burton (1971) 124 CLR 1 at 14.

175. In the case of the Bridge Act, there is no textual modification and no express statement of a parliamentary purpose to amend or repeal the earlier law. It effects an "indirect express amendment"[317] of the Heritage Protection Act. The Commonwealth therefore argued that, under the maxim "what Parliament may enact it may repeal"[318], if the Heritage Protection Act is constitutionally valid (as was conceded by all parties), the Bridge Act must also be valid[319]. There is undoubtedly some force in this argument. But in my view, the maxim cannot be sustained in the face of a constitutional provision that does not permit laws made to the detriment of, or which discriminate against, a people by reference to their race. The aphorism that "what Parliament may enact it may repeal" must give way to the principle that every law made by the Parliament under the Constitution must be clothed in the raiments of constitutional validity[320].  Were it otherwise, repeal or amendment could easily become a stratagem adopted by a legislature eager to circumvent the proper scrutiny of constitutional validity.  The repeal/amendment point, therefore, fails.

     [317]Bennion, Statutory Interpretation, 3rd ed (1997) at 214.

     [318]   The Queen v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 226.

     [319]   See Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 472.

     [320]   cf South Australia v The Commonwealth (1942) 65 CLR 373 at 411 per Latham CJ.

     Conclusion and orders

176. The Bridge Act does not answer to the description of a law with respect to the people of any race for whom it is deemed necessary to make special laws. It is a special law; that is true. But it is detrimental to, and adversely discriminatory against, people of the Aboriginal race of Australia by reference to their race. As such it falls outside the class of laws which the race power in the Australian Constitution permits. No other head of power being propounded to support the validity of the Bridge Act, it is wholly unconstitutional.

177. The question should be answered: Yes.  The Commonwealth should pay the plaintiffs' costs.