The race power
58 It is accepted that the race power is the constitutional source of power of the Heritage Act: Kartinyeri at [11] per Brennan CJ and McHugh J; [49] per Gaudron J; [84] per Gummow and Hayne JJ.
59 To be supported by the race power two requirements must be met: first, the law must be a law "with respect to…the people of any race", and second, the law must be a "special law". Section 51(xxvi) also requires that such a law must be "deemed necessary", which is a matter for the judgment of the Parliament: Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (Native Title Act Case) at 460 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ; Kartinyeri at [39] per Gaudron J; [82] per Gummow and Hayne JJ. That Parliament has deemed it necessary to make a special law "may appear from the law itself": Koowarta v Bjelke-Peterson [1982] HCA 27; (1982) 153 CLR 168 at 187 per Gibbs CJ.
60 Critical to the applicant's argument is the contention that the race power is a legislative power granted in purposive terms (like the defence power), and that proposition was said to find the support of a majority of the Court in Kartinyeri. From that, the constraint on executive and administrative action in the manner contended was said to flow. The respondent contended that conventional principles of constitutional characterisation apply which is whether the law is one with respect to one of the subject matters which the Commonwealth Parliament may enact legislation. That is determined by reference to the nature of the rights, duties, powers and privileges which the law changes, regulates or abolishes. The respondent submitted the need for it to be a special law does not alter that approach.
61 The nature of the purposive power was described in Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457 by Dixon J at 471, in addressing the defence power, in the following terms:
…unlike most other powers conferred by s 51 of the Constitution, it involves the notion of purpose or object. In most of the paragraphs of s 51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case answers the description, and to disregard purpose or object. An example will be found in Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan. But "a law with respect to the defence of the Commonwealth" is an expression which seems rather to treat defence or war as the purpose to which the legislation must be addressed. This peculiarity in the power has caused no departure from the practice that excludes from investigation the actual extrinsic motives and intentions of legislative authorities. But, however it may be expressed, whether by the words - "scope", "object", "pith", "substance", "effect" or "operation", the connection of the regulation with defence can scarcely be other than purposive, if it is within the power. [citations omitted]
62 The applicant acknowledged that the characterisation of the race power as a purposive power was the only basis on which she submitted the limitation on s 10(1)(d) arose. I note that in reply, the applicant did submit that whether the race power is described as a purposive power or "as a subject matter power with a limitation, that limitation has a role to play", although on the applicant's submission that role must be the same as that contended for a purposive power. As the respondent correctly submitted, properly understood, the submission is that it is essential to imply into the Heritage Act a prohibition on the Minister to take into account considerations which themselves do not have the special and differential features required by the race power in making a declaration, as without that limitation the Heritage Act would lose the thread or connection with the race power. That submission cannot be accepted.
63 A proper reading of Kartinyeri reflects that it does not support the applicant's base proposition as to the nature of the race power.
64 Before addressing the passages of the judgments of Gaudron, Gummow and Hayne, and Kirby JJ in Kartinyeri, relied on by the applicant, it is appropriate to recall the issue before the Court in that case.
65 The Court was considering a question as to the validity of the Hindmarsh Island Bridge Act 1997 (Cth) (Bridge Act), which prevented making a declaration under s 10 of the Heritage Act in relation to the preservation or protection of an area or object from injury or destruction from the construction of the Hindmarsh Island bridge and associated works as defined in the Bridge Act. The Bridge Act restricted the operation of the Heritage Act. The Court concluded by majority that the Bridge Act was valid.
66 Brennan CJ and McHugh J concluded that, as the Bridge Act partially repealed the earlier Heritage Act the validity of which under the race power was not in issue, it followed that Parliament could subsequently restrict its application. Nonetheless, their Honours went on to consider the validity of the Bridge Act in its own right. Their Honours proceeded to do that on the basis that the race power is one with respect to the subject matter of s 51(xxvi). Brennan CJ and McHugh J stated at [7] (citations omitted):
The operation and effect of a law define its constitutional character, as Kitto J explained in Fairfax v Federal Commissioner of Taxation:
"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.
67 So much is put beyond doubt in [11] and [12] where their Honours state (citations omitted):
11 ... 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, 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. …
68 And see further at [18].
69 Their Honours concluded that, in the circumstances of the case, it was unnecessary to examine the nature of the power to determine the validity of the Bridge Act: at [20].
70 In respect to the judgment of Gummow and Hayne JJ the applicant relied in particular on [79]-[81]. Before considering those paragraphs it is appropriate to start with their context. Before considering the validity of the Bridge Act, Gummow and Hayne JJ restated three "basic propositions", the third of which at [58] (citations omitted) was:
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". In the present case, the Bridge Act changes, regulates or abolishes certain rights, duties, powers and privileges created by the Heritage Protection Act.
71 Gummow and Hayne JJ applying that approach conclude at [72] (citations omitted):
The Bridge Act curtails the operation of another law of the Commonwealth, not the enjoyment of any substantive common law rights. It demonstrates the general proposition referred to earlier in these reasons that what the Parliament may enact it may repeal. First, the Bridge Act limits in a particular respect the declaration-making authority of the Minister under the Heritage Protection Act. Further, the Bridge Act removes any privilege conferred by the Heritage Protection Act upon Aboriginals or Aboriginal groups who applied or might apply seeking such declaration in respect of areas or objects in the Hindmarsh Island bridge area or the pit area, as defined in the Bridge Act. This is the character of the Bridge Act in the sense identified in Fairfax v Federal Commissioner of Taxation.
72 Those statements do not support the applicant's submission.
73 Turning then to [79]-[81]:
79. The plaintiffs further submitted that the word "special" gave to s 51(xxvi) a "fluctuating content" and a "purposive aspect" like the defence power. This meant that the permissible purpose of the Bridge Act must be one which did not "discriminate against" the Aboriginal race. The plaintiffs eschewed the suggestion that the benefits conferred by the Heritage Protection Act, once conferred upon them, were "constitutionalised" and insusceptible of any repeal. However, they contended that the Bridge Act inflicted upon the Ngarrindjeri people a discriminatory detriment by loss of the opportunity to obtain the declaration under s 10 of the Heritage Protection Act which was sought by the plaintiffs' application. The plaintiffs were supported by the Attorney-General for New South Wales. He submitted that the federal concurrent legislative power was limited such that the exclusion by the Bridge Act of some members of the Aboriginal race from the benefits of the earlier statute would be invalid unless there was "a rational and proportionate connection between that exclusion and [some] legitimate governmental purpose".
80. These submissions should be rejected.
81. It is true that "unlike the aliens power or the corporations power", s 51(xxvi) "is not expressed to be a power to make laws simply with respect to persons of a designated character". A law will only answer the constitutional description in s 51(xxvi) if it (i) is "deemed necessary" (ii) that "special laws" (iii) be made for "the people of any race".
74 The applicant relies on the opening submission referred to in [79] and the Court's observation in [81]. The applicant submitted, in effect, that the rejection of the submission in [80] is confined to the submission in the second half of [79], and that [81] is endorsing a purposive approach.
75 Neither of those submissions is correct. A proper reading of those passages in their context reflects that the submissions recited in [79] are rejected. Paragraph [81] is doing no more than recognising the differential aspects of the race power based on the language in s 51(xxvi) which then leads to a discussion in the following paragraphs of the concept of what it is to be "deemed necessary to make" and a "special law" in s 51(xxvi): Kartinyeri at [82]-[84].
76 The judgment of Gummow and Hayne JJ does not support the applicant's contention. Rather, in [79] and [80] the proposition that the race power was purposive, like the defence power, was rejected. It follows that contrary to the applicant's submission, her argument does not have the support of a majority of the High Court in Kartinyeri.
77 Most reliance was placed by the applicant on comments in the judgment of Gaudron J at [40]-[41] and [43] (citations omitted):
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, 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.
….
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. 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.
78 In particular, emphasis was placed on the second sentence of [40] and the last of [41] and [43]. The last sentence in [41] was said to be akin to the language used when considering a purposive power.
79 As to [40], the respondent submitted that when read in context, the language Gaudron J uses of rights and obligations is consistent with the fundamental principle that to characterise a law for constitutional purposes, attention is directed to what the rights, powers, liabilities, obligations and privileges are that are created or conferred by the law. As to [41], the respondent submitted that when read in its proper context (which includes the discussion before and after the recited paragraphs) the language of "appropriate and adapted" used by her Honour was not expressed as being because the race power is a purposive power. Rather, it related to testing whether there is a rational basis for Parliament having deemed it necessary to make a special law. While it is unnecessary to decide the meaning of the phrase as the applicant's submission as to the character of the power as purposive does not enjoy the support of a majority of the Court, the respondent's interpretation does appear to be the sense in which the terminology of "appropriate and adapted" is used in that paragraph. Regardless, whatever was meant by that language, that test was not adopted by any other member of the Court.
80 The applicant also relied on Kirby J's judgment (in dissent) at [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.
81 This paragraph does not advance the applicant's submission.
82 The applicant's submission as to the nature of the power does not enjoy the support of the majority in Kartinyeri. It follows that rather, properly read, at least a majority of the Court approached the issue of validity having regard to conventional principles of constitutional characterisation, by considering the relevant Act by reference to the nature of the rights, duties, powers and privileges which the enactment changes, regulates or abolishes.
83 That said, the applicant has not articulated the purpose of the race power. A law for the people of any race does not have the purposive connotations of the defence power. No doubt the source of power "is not expressed to be a power to make laws simply with respect to persons of a designated character": Native Title Act Case at 460; Kartinyeri at [81] per Gummow and Hayne JJ. But the limitation in the race power that it is "deemed necessary to make special laws" for "the people of any race" does not alter the character of the power: see Kartinyeri at [7], [18] per Brennan CJ and McHugh J; [58], [79]-[84] per Gummow and Hayne JJ. As noted above, whether the law is necessary is a matter for the judgment of the Parliament.
84 A law is one "with respect to" a head of power if there is a sufficient connection between the operation and effect of the law and the head of power.
85 In the context of the race power, this requires the law to have a "special" operation with respect to the people of a particular race. In Kartinyeri, at [83] Gummow and Hayne JJ said this requirement is to be tested by reference to the law's "differential operation upon the people of a particular race": Native Title Act Case at 460 - 461 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ citing Koowarta v Bjelke-Peterson [1982] HCA 27; (1982) 153 CLR 168 at 186, 245, 261. "A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race": Native Title Case at 461 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
86 The race power is a plenary power. Therefore, subject to any prohibition or limitation contained in the Constitution, the Parliament may make laws with respect to the subject matter of the power, in such terms, with such qualifications and with such limitations as it chooses: Kartinyeri at [12] per Brennan CJ and McHugh J, citing Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR 37 at 74.
87 In Spence v Queensland [2019] HCA 15; (2019) 367 ALR 587 Kiefel CJ, Bell, Gageler and Keane JJ said at [57], (citing Grain Pool of Western Australia v Commonwealth [2000] HCA 14; (2000) 202 CLR 479 at [16] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, quoted in New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 at [142] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ):
…There is no need for the law to be shown to be connected with the subject matter of the power to the exclusion of some other subject matter that is outside Commonwealth legislative power, and "if a sufficient connection ... does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice".
88 As illustrated above, having regard to the rights, powers, liabilities and duties created by the Heritage Act it is plain that s 10 is a law with respect to the race power. The power to make a declaration is only triggered if the Minister has received an application by or on behalf of an Aboriginal or group of Aboriginals and the Minister is satisfied that the area is a significant Aboriginal area and that it is under threat of injury or desecration. That latter concept is defined by reference to inconsistency with, or adverse effects upon, Aboriginal tradition. As noted above, the purposes of the Heritage 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".
89 Where, as here, a law has been made by the Parliament in the proper exercise of the power conferred by s 51(xxvi), the scope of that law, as enacted, defines what the Minister can do under s 10.
90 In Murphyores the High Court rejected the argument that considerations bearing on the exercise of a discretion must also fall within the relevant head of constitutional power. The issue before the Court was the validity of a regulation made under the Customs Act 1901 (Cth), which prohibited the export of minerals without written approval by the Minister. More specifically whether the Minister in exercising the power to approve exports under that Act could have regard to considerations unrelated to trade (relevantly in that case, environmental considerations). The Court held that the regulation was supported by the trade and commerce power in s 51(i) of the Constitution and that it was not necessary in exercising a power conferred by legislation made under the trade and commerce power that the Minister should have regard only to considerations that were also themselves of a trading and commercial character. As Mason J at 19 concluded:
The power to legislate with respect to trade and commerce with other countries, including as it does power to prohibit and regulate the exportation of goods from Australia, necessarily comprehends the power to select and identify the persons who engage in, and the goods which may become the subject of, that activity: see Huddart Parker Ltd. v. The Commonwealth [1931] HCA 1; (1931) 44 CLR 492; Australian National Airways Pty. Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 CLR 29. It is then for Parliament in its wisdom or for the person to whom Parliament delegates the power to decide who may export and what goods may be exported. The means and the criteria by which this choice is to be made are for Parliament to decide. There is nothing in the subject matter of the constitutional power which justifies the implication of any limitation on Parliament's power of selection. It does not follow, for example, that because the subject of the power is trade and commerce, selection of the exporter or of the goods to be exported must be made by reference to considerations of trading policy.
It is enough that the law operates on the topic of trade and commerce with other countries. A law which absolutely or conditionally prohibits exportation of goods is a law that operates on that topic. It is not a law which ceases to deal with that topic because it confers a discretion, unlimited in scope, to permit exportation of particular goods. In this respect it differs from a law whose connexion with the subject matter of power is more remote, when the limits of a statutory discretion may become important in characterizing the law. See, e.g., the cases on the defence power dealing with the National Security (Economic Organization) Regulations (Shrimpton v. The Commonwealth [1945] HCA 4; (1945) 69 CLR 613; Dawson v. The Commonwealth [1946] HCA 41; (1946) 73 CLR 157).
The point here is that by imposing a conditional prohibition on exportation, a prohibition which may be relaxed according to the exercise of a discretion, the law is dealing with exportation of goods, a matter at the heart of trade and commerce with other countries. It is not to the point that the selection may be made by reference to criteria having little or no apparent relevance to trade and commerce; it is enough that the law deals with the permitted topic and it does not cease to deal with that topic because factors extraneous to the topic may be taken into account in the relaxation of the prohibition imposed by the law.
91 There is no basis for that reasoning to not apply in this case. The Heritage Act is a law that operates in connection with the subject matter of s 51(xxvi). It does not cease to operate in connection with that subject matter because it confers a discretion as to whether or not to make the declaration in s 10, which may be exercised by reference to, inter alia, non-racial considerations such as the social and economic impacts on the community of the declaration. It does not cease to be a "special law"; it continues to have a differential operation because the purpose of the exercise of the discretion is to determine whether a legislative instrument should be made to confer protection on a significant Aboriginal area.
92 The applicant's submission, based on Marcus Clarke, that decisions made under such a special law, in this case s 10 of the Heritage Act, "must maintain the character of differential operation, because otherwise the decision won't be supported by…the Heritage Protection Act", cannot be accepted. As the respondent submitted, the critical flaw in the argument is that it is based on the proposition that if one of the considerations taken into account by the Minister in making the decision "does not itself have a uniquely Aboriginal characteristic or character…the relevant differential operation" is lost and the "thread with the races power". However, determining the character of the law, involves a consideration of the rights and obligations affected by the law which, in this case, relate to the creation of the declaration.
93 In that context, the applicant's submission also does not explain how a discretionary decision as to the making of a declaration under the Heritage Act which involves the consideration of countervailing matters (which may not themselves satisfy the special and differential aspect of the race power), alters the character of the Heritage Act as being a special law.
94 Moreover, as explained above, the applicant's submission, that the matters considered by the Minister must be conducive to Parliament's end, and therefore countervailing matters cannot be considered, is inconsistent with the Heritage Act, properly construed.
95 The applicant has not established that the social and economic impacts to the community are irrelevant considerations in the Minister's decisions to decline making a declaration under s 10.
Conclusion
96 The applicant has failed to establish the ground of review. The application is dismissed with costs (limited to $1000).
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.