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Essay Legal Analysis

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Introduction : Essay Legal Analysis 

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“The high court in Kartinyeri” sustains the legislative validity "Hindmarsh Island Bridge Act 1997 (Cth) (The Bridge Act)". The efficient Act was introduced for prevention of heritage application based on Aboriginal Culture, the application of this act was made due to some particular area, Hindmarsh Island, the Australian government took the initiative to build a bridge. The Act Validity was been challenged based on Australian Constitution, which was not aligned by s 51 (xxvi), this involves Race Power. It provides the parliament with the authority to make and introduce laws irrespective of the individual of any race that is necessarily deemed to introduce the law. "Commonwealth Constitution, Section 51 (xxxvi)", originally empowered the parliament for making and introducing new laws. There are operations or effects of the Bridge Act, except for the reduction of the extend of the "The Heritage Protection Act, s 51 (xxxvi)", that provides support to the next Act. The hypothetical statute effect would be that a group or community particularly would be denied the Minister's preserving or protecting possibilities from the desecration or injury, and the related scopes might be pleaded that it had traditions. 

Critical discussion

Legal Authority application 

The "Hindmarsh Island Bridge Act 1997 (Cth) (The Bridge Act)" particularly furnishes the condition of the "Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)", that will not be applied along with the regarding associated activities or the manufacturing if "Hindmarsh Island bridge area". "Commonwealth Constitution, Section 51 (xxxvi)" gives the power to the parliament for making and introducing new laws. S 51(xxvi) authorises the parliament to detriment of specific people, in past cases dicta are inconclusive and previously the court has to occasionally consider the Commonwealth legislation that is unfavourable for the interest of Indigenous Australians (Database.atns.net.au, 2022). The issue may take place again to the court or further occasion in the content of any obstacles in the constitutional "Native Title Amendment Bill", which is presently the deadlock subject between the two Commonwealth Parliament houses. Such factors of the bill which impair or distinguish the native title holders' rights are identified by the common law and that is not emanated from the statute. However, they cannot be endowed by the argument that the validity of the bill is a partial repeal of some earlier act. The situation would differently seem in regard to Bill's provision that will be beneficial for the reduction of the "right to negotiate" for the mining proposal of the title holders, among this some acquisitions are compulsory. However, there is an argument by the government about the right to negotiate that was created by "The native title Act 1993 (Cth)", therefore, alternations will be valid by themselves[1]. Additionally, there would be arguments regarding the negotiation that would represent a trace of native holders' rights, in order for the law, they required consent for others' presence on their territories the right is merely a statutory right. However, the decision of Kartinyeri, in any event, does not seem to rule out the challenge possibilities that are “Constitution s51 (xxvi)” based, due to the validity of some of the NTAB provisions, if they are enacted. The enactment of the Bridge Act includes Dr Kartinyeri's second heritage application in the year 1995, in December month. The claim is pending till the Howard government following an election on 22nd May 1997, when the Bridge Act was passed by the federal government. As per "Section 4 of the Bridge Act", there were restrictions over the Heritage Act operations, prohibiting the applications of heritage that are regarding "Hindmarsh Island Bridge Areas"[2]. The minister was prevented from acting or making decisions on any such applications. 

Relevant legal principles application 

Prior to 1967, Federal Parliament received power due to the Race Act that enables it to make laws irrespective of "the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws". Due to the effect of these own laws and Aboriginal policies people of Torres State Islanders were created by the state government. However, in nature, several such laws are assimilated. As per the outcomes of the “1967 referendum, the words of s 51 (xxvi)”, were transformed to remove that includes, "other than the aboriginal race in any State". However, as per Kartinyeri, a wide range of proposals presented for the reformation of the constitution further. The Constitutional recognition, an expert panel of Indigenous Australians, in 2012, January that was recommended replacing "s 51 (xxvi) with an s 51A and inserting a new section: 116A. Under s 51A". The power of the parliament would be retained for the people of any race for introducing such laws that must be among other things such as "acknowledge the need to secure the advancement of Aboriginal and Torres Strait Islander peoples"[3]. Section 116 A explicitly prohibit the legislation of racial discrimination. "Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012; Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel 2012.” The power of Race reformation has been supported by several High Court formers. 

Significance of the judgement 

As per the judgements of Garth Netheim, "The Hindmarsh Island Bridge Act 1997 (Cth)" provided protective provision on "Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)" that must not be applied in regards to the legislation. However, as per the limited suggestion by Justice Gaudron, the actual intention of the law was to authorise the legislative law that would result in discrimination against the people of particular 'alien races' or 'coloured'[4]. Along with the underlying power of s51 (xxvi), there are no basic power rather the words that include "Some supervisory jurisdiction to examine the question of necessity against the possibility of a manifest abuse' (page 460)". Continued by Justice Gaudron, 

40, for the necessary reformation of a view that must involve some contrast, pertaining to individuals that usually face race in their surroundings or might involved there must be a list of material presented in the parliament. This might form a political judgement that must include a various of such kind. 

41, it includes two specifics, the initial one represents “s51(xxvi)”, that disables the authorisation of special laws affecting obligations and rights in the coverage areas of which there is no accurate difference among the people of the race of the law directly along with the people belonging to other race[5]. However, s51 (xxvi), may not provide support for the norms denying community of a specific racial teams and their citizenship rights. This also includes the irrelevance of race for such rights that usually demonstrated as human virtue, which include every human being for existence in human race. 

42, the middle subject that delivers the needs of process of the Parliament that might form the verdict. It includes various differences concering to the particular race of people that mandates some special laws that are capable reasonably viewed for the appropriate along with adopted differences that are asserted. 

43, the conferred power of s51 (xxvi), authorities laws in a wide range that is beneficial for operating the advantages or disadvantages of the particular race people, there are some underlying difficulties in conceiving the circumstances of the law that are currently operating for the racial minority disadvantages that would be valid. there are ever more difficulties present in conceiving the current circumstances pertaining to Aboriginal Australians that would provide support in the operation of the law for their disadvantages[6]. Additionally, to put the matter in another way, the current circumstances pertain to Aboriginal Australian s that could provide support to the operations of the law of severe disadvantages that includes the circumstances of the disadvantages based on their materials along with their cultural vulnerability. However, the prime facie, includes the laws stated to remedy their disadvantages that are represented as appropriate along with different circumstance adaption. 

Comparison of the selected judgement 

The judgement of Justice Gaudron, states, the constitutional validity test mainly focuses on the question along with the capability represented as adapted and accurate to a relevant and real gaps that the parliament might judge to present. Therefore, the implementation of such tests in the current circumstance about their popularity tends to convey to the summary that "prime facie, s 51 (xxvi)", that is present authorises rules that process the beneficial sides of the aboriginal community in Australia[7]. In contrast with the judgement, McHugh stated that "a plenary power to legislate carries with it the power to repeal or amend existing laws...' (para 48). The 1997 Act was valid as a partial repeal of the 1984 Act." However, as per the statement of Justice Gummow and Hayne”, there are no legislative requirements that would not be permitted by the Commonwealth, which includes "between the different needs or responsibilities of different people or different localities' (para 57). Section 51(xxvi) does not limit legislation to laws which apply to all people of a race. Generally, the power to enact a law includes the power to repeal or amend that law. They stressed that the 1997 Act 'curtails the operation of another law of the Commonwealth, not the enjoyment of any substantive common law rights. (para 73)[8]." There were no possible restrictions in contrast to the statement by the hours of the board of Commonwealth legislative power. The statement was rejected due to the conflict that states accurate limitations that collected from the 1967 referendum surroundings.

Justice Kirby agreed with the judges, that includes the s 51 (xxvi), this legislative law does not require to be directed by every member of a racial community that might judge validly for a micro-group, along with the linked to efficient law the conclusion was fortified[9]. As per his statement, the race power for the ground of the people gains special law, but that is not so detrimentally and adversely for the discrimination of the people of such ground. This statement was stated by the critical principles that are ambiguous by the legislation. The results among the two courts do not include the interpretation of s51 (xxvi). Among the four, in general terms of power limitation were spoken by Haines JJ and Gummow[10]. Among the four Kirby and Justice Gaudron was more specific. However, the five justices were ultimately persuaded to the point of view that includes that the Act 1997, is required to be considered as an amendment of the “1984 Act, notwithstanding S 51 (xxvi)”, of any limitations. 

Conclusion

It can be concluded, the Bridge Act is necessarily a specific law for the Aboriginal people for the settlement of multifarious disputes among the conflicting factions (227), this can also be termed as evidence of the proceedings of an earlier court. However, it can be confined to the advantages of any race people or the law that does not discriminate diversely against them, in the care of the Aboriginal people there are some restrictions while making the law for their advantage. There are several other views provided on the favourable plaintiffs' submissions. There is no such requirement for resolving the differences. The prime[11] object by the time of the actual exception of the removal of the words, there no simply a lack of amendment of the Australian Aboriginal people along with the potential target of the other races for adversely or detrimental discriminatory laws. The Australian parliament the underlying people should be altered significantly. However, if there are no constitutional changes provided to the power for introducing laws along with the advancement of the Australian Aboriginal people. It also includes the forbidding of the racial ground for discrimination. It is required to be altered for the removal of the execution from the power of the Parliament that might make special laws irrespective of Aboriginal people. There are requirements for the court to notice the history of the circumstance and the amendment that is surrounded in providing meaning to the paragraph that is amended.

[1] Behrendt, L. and Lee, T., 2021. Kartinyeri v Commonwealth [1998] HCA 22. In Indigenous Legal Judgments (pp. 131-149). Routledge. DOI: https://www.taylorfrancis.com/chapters/edit/10.4324/9781003174349-12/kartinyeri-commonwealth-1998-hca-22-larissa-behrendt-taryn-lee

[2] Hobbs, H., 2021. Drawing an Implied Limitation to the Race Power. DOI: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4007788

[3] Babones, S., 2020. The constitutional ambitions of indigenous politics. Quadrant, 64(4), pp.62-67. DOI: https://search.informit.org/doi/abs/10.3316/INFORMIT.055768501602245

[4] Pengelley, N., 1998. The Hindmarsh Island Bridge Act: must laws based on the race power be for the'benefit'of Aborigines and Torres Strait Islanders? And what has bridge building got to do with the race power anyway?. Sydney Law Review, The, 20(1). DOI: https://search.informit.org/doi/pdf/10.3316/ielapa.980807848

[5] Cooper, S., 2021. The BRIDGE Act: The Wrong Way Forward on Broadband Policy. DOI: https://policycommons.net/artifacts/2249567/the-bridge-act/3008264/

[6] Malbon, J., 2002. Avoiding the Hindmarsh Island Bridge disaster: interpreting the race power. Flinders Journal of Law Reform, 6(1), pp.41-66. DOI: https://search.informit.org/doi/abs/10.3316/agispt.20024407

[7] Weiner, J.F., 1999. Culture in a sealed envelope: the concealment of Australian Aboriginal heritage and tradition in the Hindmarsh Island Bridge affair. Journal of the Royal Anthropological Institute, pp.193-210. DOI: https://www.jstor.org/stable/2660693

[8] Edu.au, 2022. The Hindmarsh Bridge Act Case: Available at: http://classic.austlii.edu.au/au/journals/IndigLawB/1998/48.html [Accessed on: 22/10/2022]

[9] Database.atns.net.au, 2022. Kartinyeri v Commonwealth (1998) 195 CLR 337 Available at: https://database.atns.net.au/agreement.asp?EntityID=8423#:~:text=In%20September%201997%2C%20Dr%20Kartinyeri,race'%20(Nettheim%201998) [Accessed on: 22/10/2022]

[10] Tonkinson, R., 1997. Anthropology and Aboriginal tradition: The Hindmarsh Island Bridge affair and the politics of interpretation. Oceania, 68(1), pp.1-26. DOI: https://onlinelibrary.wiley.com/doi/abs/10.1002/j.1834-4461.1997.tb02639.x

 

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