Kartinyeri v Commonwealth

Kartinyeri v Commonwealth - [1998] HCA 22 - HCA 1998 case summary — Zoe

[95]

In 1967, the Referendum (Constitution Alteration) Act 1906 Cth (since repealed by s 145 of the Referendum (Machinery Provisions) Act 1984 Cth) provided in s 6A(I)(a) that: "[if] within nine weeks after the passage of [a] proposed law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). 2. 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". 3. 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, p 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)", p 11. 4. 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, p 11, Commonwealth Government Printer, Canberra.

[295]

In former times, this Court was resistant to the use of historical materials, such as the Convention Debates, to help elaborate and explain the text. Its then practice can be traced to the previously fashionable rules governing the construction of the language of statutes combined with the former view of the Australian Constitution as nothing more than a statute of the Imperial Parliament, deriving its legitimacy from that source alone. In the context of par (xxvi), Professor Geoffrey Sawer lamented a refusal of access to the history of the paragraph, as in the Convention Debates. He declared that the history was unusually helpful in the case of this power [196] . The Court has now abandoned its former self-denial. It regularly looks at the Convention Debates [197] . It was taken to them in this case. But here, unusually, there was a later amendment to the paragraph under scrutiny. Conflicting submissions were received on the use (if any) that might be had of the Parliamentary debates which preceded the amendment. There were like differences about the relevant referendum materials put to the electors for their approval. In such a case, the Parliamentary debates, and the referendum materials, may be used in the same way as the Court now uses the Convention Debates. This is to understand the cause which occasioned the amendment of the Constitution and to help resolve ambiguities in the resulting text. The search is not for the private intentions of the Members of Parliament who spoke in the debates. Nor is it for the undiscoverable subjective intentions of the electors involved in the exceptional law-making process required by s 128 of the Constitution. It is to help to derive the meaning of the Constitution, where amended, on the basis of a thorough understanding of the reasons for the amendment and of the means by which it came about. I therefore turn to the history of the process. For the view which I take of the effect of the amendment in 1967, it is necessary to understand its purpose and to know the history that lay behind it.

[296]

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 143, per Brennan J. 2. Constitution, s 128; cf King v Jones (1972) 128 CLR 221 at 229, per Barwick CJ. 3. Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 83; Attorney-General (Vic); Ex rel Black v The Commonwealth (1981) 146 CLR 559 at 577; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 657-658; cf Tribe and Dorf, On Reading the Constitution (1991), p 11. 4. With whom the other ten members of the Court agreed. 5. State v Zuma [1995] 2 SALR 642 at 652-653; [1995] 1 LRC 145 at 156; cited with approval by the Privy Council in La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius [1995] 3 LRC 494 at 500; cf "The Commonwealth Through the Case Law: Unity in Diversity", Commonwealth Law Bulletin, vol 23 (1997) 601, at pp 605-606. 6. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 143. 7. Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 81. 8. McGinty v Western Australia (1996) 186 CLR 140 at 168. 9. eg, R v Commonwealth Arbitration and Conciliation Commission; Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 267, per Windeyer J. 10. Zines, The High Court and the Constitution, 4th ed (1997), pp 17-22. 11. Lansell v Lansell (1964) 110 CLR 353 at 366, 369, 370; cf Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 294. 12. Victoria v The Commonwealth (1971) 122 CLR 353 at 396-397; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 197. As an example, it is unconvincing to suggest that the words "chosen by the people" in ss 7 and 24 of the Constitution would today, or ever again, be construed to exclude adult women from the suffrage. Yet, in 1901, in respect of most of Australia, it was so construed: see McGinty v Western Australia (1996) 186 CLR 140 at 166-167. Similarly, s 51(xxxv) providing for power in respect of industrial disputes "extending beyond the limits of any one State" would not have been read in 1901 with the awareness of the log of claims procedure which greatly extended its ambit: Attorney-General (Q) v Riordan (1997) 192 CLR 1 at 38-40. 13. Cheatle v The Queen (1993) 177 CLR 541 at 560; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 173-174. 14. Sawer, The Australian Constitution and the Australian Aborigine, Federal Law Review, vol 2 (1966) 17, at p 27 . 15. See, eg, Cole v Whitfield (1988) 165 CLR 360 at 385. In Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 565, Dawson J referred in support of his reasons to the history of proposals at referendum to enlarge the conciliation and arbitration power.

[302]

The affairs of 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 aboriginal native race in Australia and the Maori race in New Zealand. There is uncertainty as to the initial purpose of including this power and proposing that it be exclusive to the Federal Parliament. The provision was Sir Samuel Griffith's idea [203] , and it has been suggested [204] that it was based upon the unhappy experiences of Queensland with "blackbirding". This was the practice by which people from the Pacific Islands had been snatched from their homes and sold into a form of slavery in the Queensland sugar farms. Whether its inclusion was out of a concern for the Vicims of such activities, a desire to exclude the States from control over them or to provide the Federal Parliament with powers, in addition to the proposed power over aliens, to deal with possible unrest and expulsion, is not entirely clear. The Convention Debates, particularly those of the Melbourne Convention of 1898, show that some delegates wanted to retain power for the States, and to permit the Federal Parliament, to enact laws far from beneficial for people of minority races (such as Chinese in factories and shops [205] , "Asiatic or African miner[s]" [206] and so on). However, other delegates regarded the prospect of discriminatory legislation on the part of the new federal polity as "disgraceful" [207] and "degrading to us and our citizenship" [208] . 1. cl 53(1); cf Official Record of the Debates of the Australasian Convention (Sydney), 3 April 1891, pp 701-704. 2. Official Record of the Debates of the Australasian Convention (Adelaide), 19 April 1897, p 832. 3. By the Hon Arthur Calwell: see House of Representatives, Parliamentary Debates (Hansard), 14 May 1964, p 1902; cf Graham, The Life of the Right Honourable Sir Samuel Walker Griffith GCMG PC (1939), pp 38-39; Pacific Island Labourers Amendment Act 1885 Q, s 11 (an Act, sponsored by Griffith, aimed at ending "blackbirding" in Queensland from 1890 onwards). 4. Official Record of the Debates of the Australasian Convention (Melbourne), 27 January 1898, p 236. 5. Official Record of the Debates of the Australasian Convention (Melbourne), 27 January 1898, p 240. 6. Official Record of the Debates of the Australasian Convention (Melbourne), 28 January 1898, p 247. 7. Official Record of the Debates of the Australasian Convention (Melbourne), 28 January 1898, p 250.

[308]

In 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. However, the Committee reached no agreement on the grant of special legislative powers with respect to Aboriginals [212] . In the result, a large number of petitions were presented to the Federal Parliament urging the deletion of s 127 and the amendment of par (xxvi) [213] . Whatever the original intention of these constitutional provisions, and whatever may have been the initial protective effect of the exclusion of people of the Aboriginal race from the race power, by the late 1950s, both in and out of the Federal Parliament, commentators were viewing ss 51(xxvi) and 127 (containing as they did the only references to Australian Aboriginals in the Constitution) as negative and discriminatory, needing amendment. 1. Commonwealth, Report from the Joint Committee on Constitutional Review (1959), par 398. 2. Commonwealth, Report from the Joint Committee on Constitutional Review (1959), par 397; cf House of Representatives, Parliamentary Debates (Hansard), 14 May 1964, pp 1908-1909. 3. See, eg, House of Representatives, Parliamentary Debates (Hansard), 14 May 1957, p 1301; 17 September 1958, p 1299; 23 September 1958, p 1475; 24 September 1958, p 1549; 25 September 1958, p 1623; 8 April 1959, p 977; 21 April 1959, p 1361; 13 May 1959, p 2095; 14 May 1959, p 2169; 4 December 1962, p 2833; 5 December 1962, p 2923; 6 December 1962, p 3029; 26 March 1963, p 3; 27 March 1963, p 59; 4 April 1963, p 430; 9 April 1963, p 473; 30 April 1963, p 807; 23 May 1963, p 1741; 14 August 1963, p 81; 15 August 1963, p 161; 20 August 1963, p 269; 21 August 1963, p 337; 27 August 1963, p 493; 28 August 1963, p 561; 29 August 1963, p 625; 10 September 1963, p 739; 11 September 1963, p 817 (presented by the Prime Minister); 12 September 1963, p 919; 18 September 1963, p 1097; 19 September 1963, p 1165; 24 September 1963, p 1261; 25 September 1963, p 1331; 8 October 1963, p 1505; 9 October 1963, p 1579; 10 October 1963, p 1649; 16 October 1963, p 1831; 17 October 1963, p 1917; 22 October 1963, p 2029; 23 October 1963, p 2117; 24 October 1963, p 2191; 29 October 1963, p 2369; 30 October 1963, p 2453; 27 February 1964, p 89; 5 March 1964, p 281; 5 May 1964, p 1483; 14 May 1964, p 1895; 20 May 1964, p 2113; Senate, Parliamentary Debates (Hansard), 9 April 1963 at 6, 7 May 1963, p 249.

[337]

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 [251] . 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.

[341]

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.

[356]

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 [273] . 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" [274] . Likewise, in interpreting the Canadian Charter of Rights and Freedoms, that country's Supreme Court has frequently had regard to international instruments [275] . 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 [276] . 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 [277] . 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 [278] . 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 [279] . In the contemporary context it is appropriate to measure the prohibition by having regard to international law as it expresses universal and basic rights [280] . Where there is ambiguity in the common law or a statute, it is legitimate to have regard to international law [281] . 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 [282] .

[357]

Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 655-657. 2. Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266. 3. See, eg, R v Oakes [1986] 1 SCR 103 at 120-121; R v Smith [1987] 1 SCR 1045 at 1061; Edmonton Journal v Attorney-General (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, Supreme Court Law Review, vol 4 (1982) 287; Cohen and Bayefsky, The Canadian Charter of Rights and Freedoms and Public International Law, Canadian Bar Review, vol 61 (1983) 265; Schabas, International Human Rights Law and the Canadian Charter (1991); Hogg, Constitutional Law in Canada, 3rd ed (1992), pp 822-824. 4. cf Industrial Relations Act Case (1996) 187 CLR 416 at 565, per Dawson J. 5. Polites v The Commonwealth (1945) 70 CLR 60 at 69, 79; Horta v The Commonwealth (1994) 181 CLR 183 at 195. 6. cf Kruger v The Commonwealth (1997) 190 CLR 1 at 106-107. 7. Coco v The Queen (1994) 179 CLR 427 at 436-437, 446. 8. See Fitzgerald, International Human Rights and the High Court of Australia, James Cook University Law Review, vol 1 (1994) 78. 9. 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 Ltd [No 2] [1990] 1 AC 109 at 283; R v Home Secretary; Ex parte Brind [1991] 1 AC 696 at 761; Derbyshire County Council v Times Newspapers Ltd [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. 10. Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 657-658.

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