ABSTRACT
It is assumed that most Australians would recoil from the proposition that a law, even one enacted by a democratically elected Parliament, should be valid irrespective of its substantive content. Yet there is no doubt that, except for a narrow range of rights expressly and impliedly protected by the Commonwealth Constitution, this proposition is correct. This was vividly illustrated by the interchange between Kirby J and Mr G Griffith QC, counsel for the Commonwealth, during the hearing of Kartinyeri v Commonwealth (Hindmarsh Bridge case):1
As Williams notes, in his book on human rights in Australia,2 one could also point to the following part of the transcript from later in the case:
Kirby J was putting to counsel for the Commonwealth the extreme proposition that Parliament is free to legislate as unjustly as it pleases (so long as it stays within the heads of power conferred by the Constitution), thereby illustrating the morally unacceptable implication of the argument that nothing in the Constitution impeded Parliament from enacting racist laws. In so doing he may have been hoping to secure from counsel a withdrawal of the argument. Yet no withdrawal was
forthcoming, and for good reason, because, as the law stands, counsel for the Commonwealth was correct in arguing as he did. Furthermore, there is nothing anywhere else in the Constitution which would invalidate such a law. Although one might find that result abhorrent, the case does at least focus our attention on the reason why we should have a Bill of Rights.
