Hindmarsh Island Bridge Controversy - The Hindmarsh Island Bridge Act

The Hindmarsh Island Bridge Act

When John Howard's Coalition Government of Australia came to power in 1996, it legislated to allow the bridge to proceed (see Hindmarsh Island Bridge Act 1996). The Ngarrindjeri challenged the legislation in the High Court on the basis that it was discriminatory to declare that the Heritage Protection Act applied to sites everywhere but on Hindmarsh Island, and that such discrimination – essentially on the basis of race – had been disallowed since the Commonwealth was granted the power to make laws with respect to the "Aboriginal race" as a result of the 1967 Referendum. The High Court decided, controversially, that the amended s.51(xxvi) of the Constitution did not restrict the Commonwealth parliament to making laws for the benefit of the "Aboriginal race", and could in fact enact laws to the detriment of any particular race. This decision effectively meant that those people who had believed that they were casting a vote against the discrimination of Indigenous people in 1967 had in fact merely allowed the Commonwealth to participate in the discrimination against Indigenous people which had been practiced by the States throughout their history. Racial discrimination has been outlawed by the Racial Discrimination Act 1975 (Cth), but the Hindmarsh Island Bridge Act of 1996 expressly removed the Hindmarsh Island area from the purview of the Racial Discrimination Act.