Constitutional Law Research

Background 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?
One of the landmark decisions given by the High Court was the case of Kartinyeri v Commonwealth where section 51(xxvi) of the Constitution was interpreted. The case in hand was related to the applicability of this particular section over the Indigenous population in Australia. Under section 51 (xxvi) of the Australian Constitution, the matter which relate to people of one or any race, can be legislated by the Parliament, except for the people who belong to Aboriginal race, irrespective of the state in which they reside. And under this very section, it is mandatory to create special laws for the aboriginal people. Through the insertion of this section in the constitution of Australia, the discrimination against a specific section of the community has been allowed, particularly on the basis of the race of such people .
In Kartinyeri v Commonwealth, the minister held the power of making declarations for the purpose of protecting the areas of Aboriginals. A claim was made by a group containing women regarding the use of island for women’s secret business, and that this business could not be divulged to men. The minister was permitted to put forward his recommendations, only after a woman was given the responsibility of carrying out the enquiry. However, this enquiry had different problems which led to the passing of a legislature by the government for going forward