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Click on each title below to read more about the cases under each section.

Kartinyeri v The Commonwealth [1998] HCA 22

In this case, the High Court considered whether the race powers contained in the Australian Constitution could be used to enact laws to the disadvantage of Aboriginal peoples, or for their benefit only. The Commonwealth had previously enacted the Hindmarsh Island Bridge Act 1997 (Cth), which removed the area of a proposed bridge from the protection available under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Opposition to the building of the bridge had arisen because a significant women’s business site was to be built upon and destroyed. The court held that the Commonwealth power to legislate was not limited to making laws to benefit Aboriginal peoples, particularly where the power was exercised to repeal or amend its previous legislation. However, in the minority view of Justice Kirby: “Where there is ambiguity, there is a strong presumption that the Constitution, adopted and accepted by the people of Australia for their government, is not intended to violate fundamental human rights and human dignity. Such violations are ordinarily forbidden by the common law and every other statute of this land is read, in the case of ambiguity, to avoid so far as possible such a result. In the contemporary context it is appropriate to measure the prohibition by having regard to international law as it expresses universal and basic rights.” Expanding upon Justice Kirby’s judgment would provide protection for the laws of Aboriginal women.

Commentary author

Kathy Bowrey is a Professor in the Law School at the University of New South Wales. Kathy has a broad range of research interests in the fields of socio-legal history, media and cultural studies and legal theory. She also researches in the area of the impact of western law on Indigenous cultural and intellectual property.

Judgment author

Irene Watson belongs to the Tanganekald and Meintangk (Ngarrindjeri) peoples. She is an Associate Professor at the David Unaipon College of Indigenous Education and Research, University of South Australia. Previously Irene has worked as a legal practitioner with the Aboriginal Legal Rights Movement and on the United Nations Working Group on Indigenous Populations. She has extensive experience working on questions of international law and Aboriginal peoples.

R v Pearson; Ex parte Sipka [1983] HCA 6

This case is an important decision of the High Court of Australia about the right to vote in section 41 of the Australian Constitution. The Court was asked whether four people eligible to vote in New South Wales could be prevented from voting at the federal level by a federal law which closed registration to vote on the day that the writs of election were issued. The court determined that they could be prevented adopting a narrow interpretation of section 41, and essentially finding there is no express constitutional right to vote in Australia. The case raises various feminist issues, including the history of the insertion of section 41 of the Constitution. The women of South Australia (the first women to obtain suffrage in Australia) had lobbied the South Australian delegates to the 1890s Convention debates insisting that they would not support a move to federation unless their right to vote was protected. Ironically, this democratic and feminist impulse behind section 41 was used by the High Court in 1983 to read down the extent of the protection of the provision. The re-written judgment will include this feminist history.

Commentary author

Elisa Arcioni is a Senior Lecturer at the University of Sydney Law School. Prior to her current role, Elisa was an Associate to Justice Michael Kirby in the High Court. Elisa's research interests are focused on the Australian Constitution.

Judgment author

Kim Rubenstein is Professor and Director of the Centre for International and Public Law at the ANU College of Law at the Australian National University. Kim is also the Convenor of the Australian National University Gender Institute. Her research interests concern the intersection between public and international law.

Dietrich v R [1992] HCA 57

This case concerned an accused man who was denied legal representation by the Legal Aid Commission of Victoria and was subsequently found guilty of importing into Australia a trafficable quantity of heroin in contravention of the Customs Act 1901 (Cth). The High Court considered the question of whether the applicant's trial was miscarried because he was unrepresented by counsel. It held that if legal representation is refused in serious criminal matters and, by reason of the lack of representation of the accused, the resulting trial is not fair, the conviction of the accused may be quashed by an appellate court on the grounds of miscarriage of justice. This case had significant ramifications for access to legal aid funds in Australia. The case prioritised access to legal aid funds for serious criminal matters and led to a reduction in funding for family law matters that in turn compromised the access of women litigants to legal aid.

Commentary author

Margaret Davies is a Professor in the Law School at Flinders University. Margaret's research covers several areas of legal theory, including critical legal thought, feminist jurisprudence, property and legal pluralism. She is a Fellow of the Academy of Social Sciences in Australia.

Judgment authors

Reg Graycar is a practising barrister at St James Hall Chambers, Sydney. For 15 years, she was Professor at the Law School, University of Sydney. Previously, she has been a full-time Commissioner for the NSW Law Reform Commission. Reg’s research interests include public law and administrative law, legal systems and processes, law reform and feminist legal theory. Her research has been continuously supported by the Australian Research Council since 1987.

Jennifer Morgan is a Professor at the Melbourne University Law School. She was a part-time member of the Australian Law Reform Commission on its Equality before the Law reference in the early 1990s. Jenny has been a consultant to the Victorian Law Reform Commission and is currently a member of the Victorian Sentencing Advisory Council. Jenny’s research interests are focussed on criminal law and discrimination law.