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A Brief Account on Kartinyeri V Commonwealth


  1. Considering the practical application of section 51 (xxvi) elucidate the revelatory questions to the aboriginal public which was put forward in front of the High Court to solve the case of Kartinyeri.
  2. Assume a condition in which an efficacious referendum is being held, which paved the way for a change or amendment in the Constitution and hence created First Nation Voice to counsel the Parliament in its law-making procedure pertaining to the native and indigenous affairs which is mentioned in the Uluru Statement given in the Heart and the Final Report of the Referendum Council. You have to mention whether this situation makes any variation or deviation in the understanding and interpretation of the laws provided under section 51 (xxvi) associated with the Indigenous population.


Ans 1: In the case of Kartinyeri V commonwealth, a landmark decision was being promulgated by the High Court which elucidated the theme contained in section 51 (xxvi) [1]. This case has revealed the applicability of the aforesaid section on the Ethnic population of Australia. This particular section of the Australian Constitution i.e. section 51 (xxvi) empowers the parliament to amend the provisions which pertain to the population consisting of more than one race and ethnicity apart from the fractions related to those which refer to the Aboriginal race regardless of what state they are residing in. This section also lays down the mandatory provision to legislate separate laws for the aboriginal population of Australia. By the inclusion of this section in the Australian constitution, prejudice and partiality towards a certain group of people were permitted on the ground of race and ethnicity of the population [2].

The concerned minister was vested with the power to create and promulgate appropriate laws to conserve and protect the land and areas of the aboriginals within Australia according to the ruling of Katinyeri v Commonwealth case. A certain female section of the aboriginal population put forward the claim to reserve the business only to them on the island rather than the male population since it was conducted covertly. It was only after a female was vested with the duty of inquiry; a minister was allowed to present his recommendations for lawmaking. Even though these precautions were made, the process of inquiry posed different hindrances and problems, which paid the way for the enactment of another law on behalf of the government of Australia which continued the matter of bridging as though there were strong criticism and opposition from the Aboriginal population. The major issue which came into limelight by this case was the authority of the commonwealth to enact a rule regarding the race power, which has the potential to affect the life and belongings of a certain race group. [3]

The ruling, in this case, was not affected by the disparity in the decisions made by the judges on the bench. As per the point of view of Hayne and Gummow, the mentioned act could have been conducted without any sort of problems. The main cause for this opinion was that there were no obstructions or limitations in the authority to conduct on detrimental or non-detrimental resolutions. Thus, the act been utilized as both boon and curse for the concerned race. It was being detained in this case that the requirement of the power to be binding only in the motive of providing benefit to the Aborigine population is erroneous an on this ground the argument was overruled. According to the norms and laws laid down in the constitution of Australia, it is illegal to discriminate between the requirements and necessities of different ethnicities. As per the views of Hayne and Gummow the threshold or the limit to which the concerned section in the constitution is prescribed as “deemed to be necessary” [4]. The legislation of the parliament and its practical application on a certain race of people regarding this issue was not limited to the mere section of 51 (xxvi) [5].

Several arguments put forward, in this case, were overruled by Hayne and Gummow. Among the rejected arguments, the elucidation of the act of 1997, which was contented to be stabilized and synchronized with the criterions and morals set forward on the basis of human rights and international laws. According to the argument put forward by the referendum of 1967, the restraints were demanded to be removed from it, which was denied by the judicial bench [6].

As mentioned above in this report, the ruling in this case by the judges was not the product of a unanimous decision. It was being viewed by the judges like Kirby JJ and Gaudron that in this case the authority was not utilized for the intended purpose and thus was an injurious for the racial minority as a whole. According to these 2 judges the law created was not abiding by the constitution and hence was not valid. These two judges put forward the recommendation in front of the bench to imply some restrains on the provision of section 51 (xxvi) [7]. The eminent jury Kirby had opined that there had a necessity of a law which streamline the population of a certain race with an approach to conduct with the subgroups in an appropriate way. The remaining 2 judges in the panel of 4 judges i.e. McHugh and Brennan had not taken into consideration the factor of power. They have not focused on the arguments or the decisions pertaining to the quoted section in the constitution which should have been subjected to some restrains and limitations. Although there were heavy debate and disassociation among the jury members, the bench had reaffirmed the principle of interpretation. The root of the mentioned case and the principles it throws for further similar cases and instances reflecting the ambiguity in the constitution should conserve the universal basic rights to itself [8].

Ans 2: If a referendum is introduced and turnouts to be successful, it would pave the way for variations and transformation in the constitution of Australia. The referendum would bring an introduction of First Nations Voice of the Aboriginal and Torres Strait Islanders which would be envisaged with the duty of recommending and suggesting the Australian parliament on the whole problems pertaining to the legislation affecting the authority and area of the Aboriginal population. These recommendations should be concealed beneath the section of Final Report of the Referendum Council and the Uluru Statement from the Heart. The inclusion of these provisions will lead to a dynamic variation in the provisions, authority effectiveness and most significantly the interpretation of section 51 (xxvi) which is legally active in Australia.

The major change in the section and the provisions would occur because of the unanimous stand taken by the jury bench of the case Kartinyeri v Commonwealth. In front of the High Court Bench, the First Voice makes the statement that the authority and responsibility vested in the quoted section of the Constitution are not allowed to be manipulated and used in a way that will damage and cause injury to the Aboriginal population of Australia. This limitation was made by the jury because the First Voice has the authority and responsibility to obey the stands put forward by the international human rights committee working on Aboriginals. Hence the case of Kartiinyeri v Commonwealth is a very crucial case which delivers the proof and support to the arguments of Kirby JJ and Gaudron, the judges who backed the idea that the powers listed under the quoted section should not be prone to manipulation and wrong usage which would eventually result harmful to the Aboriginals of the country. The opportunity and the space for the conservation and safeguarding of the native Aborigines could be improved and augmented by conducting this effective procedure of referendum. Kartinyeri V Commonwealth case assignments are being prepared by our law assignment help experts from top universities which let us to provide you a reliable online assignment help service.

Articles/ Books/ Reports
Williams G, Brennan S, and Lynch A, Black shield and Williams Australian Constitutional Law and Theory (Federation Press, 6th end, 2014)

Cases: Kartinyeri v Commonwealth (1998) 195 CLR 337

Others: Australasian Legal Information Institute, Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337; 152 ALR 540; 72 ALJR 722 (1 April 1998) (2017)

Fox B, Essay (2012)

Jade, Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 22 (2017)

Nettheim G, The Hindmarsh Bridge Act Case: Kartinyeri v Commonwealth (2017)

Williams G, Inquiry into issues affecting Indigenous economic development in Queensland (9 November 2010)

Williams G, The Races Power and the 1967 Referendum (2007)

Jade, Kartinyeri v The Commonwealth (A29/1997) [1998] HCA 22 (2017)

George Williams, Inquiry into issues affecting Indigenous economic development in Queensland (9 November 2010)

Bowen Fox, Essay (2012)

Garth Nettheim, The Hindmarsh Bridge Act Case: Kartinyeri v Commonwealth (2017)

George Williams, Sean Brennan and Andrew Lynch, Blackshield and Williams Australian Constitutional Law and Theory (Federation Press, 6th ed, 2014)

Australasian Legal Information Institute, Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337; 152 ALR 540; 72 ALJR 722 (1 April 1998) (2017)

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