Constitutional Law

The Uluru Statement from the Heart was issued by the 250 Aboriginal and Torres Strait Islander delegates gathered at the 2017 First Nations National Constitutional Convention in Uluru, on Aṉangu land in the Northern Territory in May 2017. The conversation at Uluru built on six months of discussions held around the country where Aboriginal and Torres Strait Islander peoples considered five options presented in the Referendum Council’s discussion paper. The Referendum Council was jointly appointed by the Prime Minister Malcolm Turnbull and Leader of the Opposition, Bill Shorten on 7 December 2015. The Referendum Council’s job is to advise the Prime Minister and Leader of the Opposition on progress and next steps towards constitutional reform.
At Uluru in May 2017 and before in consultations conducted by the Referendum Council, when asked what constitutional recognition means to them, First Nations peoples told the Referendum Council they don’t want recognition if it means a simple acknowledgement, but rather constitutional reform that makes a real difference in their communities.

Assignment questions
The case of Kartinyeri v Commonwealth (1998) 195 CLR 337 (‘Kartinyeri’) is the leading High Court case on the interpretation of section 51(xxvi) of the Constitution in its application to the Indigenous people of Australia.
(a) Explain the interpretive question concerning the application of section 51(xxvi) to Indigenous people that the High Court had to resolve in Kartinyeri.

The Uluru Statement from the Heart, made on 26 May 2017,
call[s] for the establishment of a First Nations Voice enshrined in the Constitution.
Following this, in its Final Report, the Referendum Council recommended:
That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the [head] of power in section 51 (xxvi) …
(b) Suppose that a successful referendum resulted in a change to the Constitution and the establishment of a First Nations Voice to advise Parliament on law-making with respect to Indigenous affairs, as called for in the Uluru Statement from the Heart and the Final Report of the Referendum Council. Would, or should, this make any difference to the interpretation of laws enacted under section 51(xxvi) that apply to Indigenous people
Question 1
Kartinyeri v Commonwealth is amongst the leading cases of the High Court in the matter of interpretation of Constitution’s section 51 (xxvi) and this matter was related to the application of this section to the Australian Indigenous people. This section provides that the Australian Parliament could legislate in the matter related to people of any race, save for the aboriginal race in any of the States, and for them, it was obligatory to create special laws. This section had been deliberately included in the nation’s constitution so that the commonwealth could be allowed to discriminate against a particular section in the community owing to their race .
Kartinyeri was a case where the minister had the declaration making power for safeguarding the Aboriginal areas. A group of women made a claim that the island was being used for the secret business of women and the same could not be disclosed to the men. After a woman being appointed for carrying an enquiry, the minister was allowed to make recommendations. There were problems in this enquiry and this led to the government passing an act in order to go ahead with the bridge and for going ahead even with the objections of Aboriginals. The key issue in this case was whether or not the commonwealth could pass legislation under the race power which was actually disadvantageous for the racial group