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Nettheim, Garth --- "Koowarta v Bjelke-Petersen and others; Queensland v Commonwealth" [1982] AboriginalLawB 27; (1982) 1(4) Aboriginal Law Bulletin

Koowarta v Bjelke-Petersen and others; Queensland v Commonwealth

Validity of Racial Discrimination Act, 1975 (Cth.) - 'person aggrieved' - Constitution s.51, (xxvi), ‘power to make laws with respect to the people of any race...’ and (xxix), the external affairs power.

Koowarta v Bjelke-Petersen and others; Queensland v Commonwealth

High Court of Australia

11 May 1982

Casenote by Garth Nettheim

In 1976 the Queensland Government, acting under the Land Act 1962 (Qld), refused permission for the transfer of the Archer River Pastoral Holding to the Aboriginal Land Fund Commission. The Commission had sought to purchase the leasehold for use by the Winychanam Aboriginal people of Aurukun. The Government's refusal was explained by reference to a 1972 Cabinet policy which opposes acquisition of large areas of land 'for development by Aborigines or Aboriginal groups in isolation'. Koowarta, a member of the Winychanam people, brought action in the Queensland Supreme Court seeking declarations, and an injunction and damages. He argued that the Government's refusal was in breach of the Racial Discrimination Act 1975 (Cth), especially sections 9 and 12. The Queensland Government, in response, argued, inter alia, that the plaintiff was not a 'person aggrieved' under the Act so as to be entitled to sue, and that the Racial Discrimination Act was invalid. The case was removed into the High Court for determination of those issues. In a separate action against the Commonwealth, Queensland sought a declaration that the Act was invalid. The High Court, in giving judgment in both proceedings, confined its decision to sections 9 and 12 of the Racial Discrimination Act and related provisions. The Commonwealth intervened in Koowarta's case to argue that the Act was valid; Victoria and Western Australia intervened in both actions to argue that the Act was invalid.

Queensland's submission that Koowarta lacked 'standing' to sue was based on argument that he was not a 'person aggrieved' within the Act, mainly because it was the Commission which had been refused permission for transfer of the property. However, on analysis of the provisions, all members of the High Court held that he was a 'person aggrived'. This broad approach to the question who is entitled to institute proceedings under the Act clears the way for wider use of the legislation.

But the major importance of the decision concerns the validity of sections 9 and 12 of the Act. Argument turned on two provisions of the Commonwealth Constitution.

Constitution s.51 (xxvi), as amended after the 1967 referendum, gives the Commonwealth Parliament power to make laws with respect to 'The people of any race for whom it is deemed necessary to make special laws'. Five members of the High Court held that the Racial Discrimination Act could not be supported by this power. The power might support a law forbidding discrimination against members of a particular race, but could not support a law protecting persons of all races. As Gibbs C.J. put it, 'a law which applies equally to the people of all races is not a special law for the people of any one race'. (Mason and Murphy 11. found it unnecessary to decide the issue).

Constitution s.51 (xxix) gives the Commonwealth Parliament power to make laws with respect to 'external affairs'. It was argued that this power supported the Racial Discrimination Act because the Act was passed in fulfillment of international obligations incurred by Australian ratification of the International Convention on the Elimination of All Forms of Racial Discrimination. It was also argued that the UN Charter and international customary law were sufficient to bring the subject of racial discrimination within the external affairs power. These arguments required the High Court to consider its earlier decisions on s.51 (xxix).

It was clear that the power would authorise legislation concerning Australia's relations with other countries, even if such legislation dealt with matters internal to Australia (e.g. protection of diplomatic representatives). (It had also been accepted by some judges that the power would cover legislation operating outside Australia even if it might not concern relations with other countries). The question was whether the power would authorise legislation operating inside Australia which did not relate to Australia's relations with other countries, apart from the fact that there happened to be a treaty on the matter which Australia had ratified.

Gibbs CJ gave a negative answer to this question. . if s.51 (xxix) empowers the Parliament to legislate to give effect to every international agreement which the executive might choose to make, the Commonwealth would be able to acquire unlimited legislative power. The distribution of powers made by the Constitution could in time be completely obliterated; there would be no field of power which the Commonwealth could not invade, and the Federal balance achieved by the Constitution could be entirely destroyed'. In the Chief Justice's view, s.51 (xxix) would only cover a law implementing an international agreement if the subject matter of the agreement was itself an external affair; it would not be enough that there was international interest in the matter.

Aickin J agreed with the Chief Justice. So did Wilson J in a separate judgment in which, like Gibbs CJ, he pointed out that treaty obligations could still be implemented by domestic legislation enacted by Commonwealth and States in co-operation.

Stephen, Mason, Murphy and Brennan 11 held that s.51 (xxix) would support the Racial Discrimination Act. Stephen J perceived that the 'external affairs' power (like the defence power) is capable of growth and has, in fact, expanded with increased international treaty-making activity. He did not accept a distinction between external affairs and a matter of international concern. 'A subject-matter of international concern necessarily possesses the capacity to affect a country's relations with other nations and this quality is itself enough to make a subject-matter a part of a nation's "external affairs" '. Stephen J also considered that the UN Charter and customary international law would, even without the Convention, support Commonwealth legislation to prohibit racial discrimination.

Mason J took a similar approach. He added: 'All the materials indicate that the United Nations consider racial discrimination to be abhorrent conduct which, posing a threat to international peace and security, should be eliminated. At the level of international law the means chosen to attain this end was the formulation of the Convention. It imposes on each of the many parties to it an obligation to eliminate racial discrimination in its territory. The failure of a party to fulfil its obligations becomes a matter of international discussion, disapproval, and perhaps action by way of enforcement. Viewed in this light, the subject-matter of the Convention is international in character'.

Murphy J said: 'The Constitution envisages no division of external affairs powers between the Parliament and the State Parliaments. The Parliament, in exercising the external affairs power (as well as its other powers), is entitled to make laws for the peace order and good government of the Commonwealth, that is, of the people as a whole, notwithstanding the opposition of any State Government or Parliament. The exercise of that power is not an intrusion upon the people of the State. The people of the States are entitled as well as obliged to have the legislative and executive conduct of those affairs which are part of Australia's external affairs carried out by the Parliament and Executive Government of Australia'.

Brennan J said: `When a particular subject affects or is likely to affect Australia's relations with other international persons, a law with respect to that subject is a law with respect to external affairs . Where a particular aspect of the internal legal order of a nation is made the subject of a treaty obligation, there is a powerful indication that that subject does affect the parties to the treaty and their relations one with another'. As to the Racial Discrimination convention, he said: '. . . I should think that the implementing of that Convention by Australia must be of the first importance to the conduct of Australia's relations with its neighbours, if not indeed to Australia's credibility as a member of the community of nations'.

This majority for a broad reading of the 'external affairs' power establishes that the Federal Parliament has constitutional power to pass laws in respect of a range of matters that might not otherwise fall within its competence, at least if Australia is a party to a relevant, international agreement, and possibly (in some circumstances) even if it is not.

For example, article 11 of ILO Convention No. 107 relating to tribal and semi-tribal populations states that 'The rights of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognized'. If Australia were to ratify that convention, the Commonwealth Parliament's power to legislate for land rights in the States would be enhanced, though it would probably still be bound to provide just terms' under Constitution s.51 (xxxi) for any 'acquisition of property' that would be involved.

As for Mr. Koowarta, his case can now proceed to trial in the Queensland Supreme Court.

Mr A.R. Castan Q.C. appeared for Mr Koowarta, instructed by the Cairns Office of the Aboriginal Legal Service.

Sir Maurice Byers Q.C. appeared for the Commonwealth of Australia.

Mr D.M. Dawson Q.C. appeared for the States of Victoria and Western Australia.

Mr D.F. Jackson Q.C. appeared for the State of Queensland.

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