Appeal against Hindmarsh Island Bridge Act
By Angela Walker
CANBERRA — The 1997 federal Hindmarsh Island Bridge Act denies the Ngarrindjeri people of the lower Murray region of South Australia the right to seek protection of sacred sites under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
On February 5 and 6, the High Court heard an appeal by lawyers for the Ngarrindjeri women, arguing the act is invalid on the grounds that parliament cannot pass laws which discriminate against Aboriginal people.
Prior to the hearing, Justice Ian Callinan declined to disqualify himself from the case, after the Ngarrindjeri's lawyers asked him to consider that there could be an "appearance of bias" if he was involved.
In an eight-page response, Callinan admitted that the Liberal Aboriginal affairs minister, John Herron, had asked him to provide a "supportive" submission on the Hindmarsh Island Bridge Act 1997 and that he has a close association with Liberal defence minister Ian McLachlan. It was McLachlan who opened and copied the contents of envelopes marked as "secret women's business".
Callinan accepted that McLachlan has been a proponent of the construction of the bridge and that, at McLachlan's request, he provided draft terms of reference for the SA government inquiry into the spiritual beliefs of the Ngarrindjeri women. One reason Callinan gives for sitting on the case is "the number of decision of this court that have been decided by the narrowest of majorities"!
Two days of legal debate focused primarily on section 51 (XXVI) of the constitution, which allows the government to pass laws with respect to any race for which it is deemed necessary to pass special laws. Differences arose over how that power could be exercised and if there was a supervisory role for the High Court to determine if parliament had breached the limits of this power.
Lawyers for the Ngarrindjeri women argued that the 1967 referendum to allow the Commonwealth to make laws in respect to Aboriginal people was intended to remove discrimination against Aborigines from the constitution.
Jim Spigelman QC explained that the 1967 referendum meant that "special laws" could only be used for the benefit or advancement of Aboriginal people — to correct past injustices, not to perpetuate them.
In contrast, lawyers representing the Commonwealth argued that the meaning of section 51 (XXVI) could not be altered from its 1901 character which was a "racist power, rooted in prejudice". They also argued that it was within the power of parliament to decide if "racist" laws were "deemed necessary", that only in the most "extreme" cases may there be the possibility of review by the High Court, and that the Hindmarsh Island Bridge Act was not such a case.
The Commonwealth also argued that the only checks and balances necessary were those already contained within the "democratic" parliamentary system which "allowed" Aboriginal people to participate in the same "democratic" processes as other Australians; that is, to vote in elections and form political lobby groups. The argument that because Aboriginal people could form a "lobby group" their political aspirations could be accommodated was farcical to the audience of Aboriginal and non-Aboriginal supporters.
At times, openly racist arguments were presented by the Commonwealth, prompting Justice McHugh to intervene and ask: surely the Commonwealth is not arguing against contemporary social science, that race is a genetically defined category rather than a social construct?
Justice Kirby on a number of occasions asserted that the Hindmarsh Island Bridge Act could not be said to be beneficial for either the Ngarrindjeri or Aboriginal people as a whole. Rather, he said, it was in the interest of the developers and took away the rights of Aboriginal claimants.
One of the Commonwealth's lawyers claimed that the Heritage Protection Act gives "privileges" that people of other races do not have, leading to a discussion of affirmative action in the US. The example was used to argue that "special measures" can be deemed to have "gone too far" and that "reducing these measures" may not be discriminatory because as "positive discrimination" they are more temporal in nature.
Spigelman pointed out that recognising Aboriginal cultural rights does not take away rights of any other "race".
At the end of the two days, Stephen Kenny from the Ngarrindjeri women's legal team told Green Left Weekly: "We have covered everything we can think of and now we have to wait for the court's decision. With the Chief Justice retiring in May we expect a decision before then."