Koowarta v Bjelke-Petersen
Encyclopedia
Koowarta v Bjelke-Petersen was a significant court
case
decided in the High Court of Australia
on 11 May 1982. It concerned the constitutional validity of parts of the Racial Discrimination Act 1975
, and the discriminatory acts of the Government of Queensland
in blocking the purchase of land by Aboriginal people in northern Queensland
.
, was an Aboriginal Australian man, a member of the Wik
nation. The Wik peoples
were the Indigenous inhabitants of the Aurukun region of the Cape York Peninsula
. In 1974, Koowarta and a number of other stockmen planned to purchase the Archer River
cattle station, which covered much of the Wik peoples' traditional homeland, using funds provided by the Aboriginal Land Fund Commission. They approached Remington Rand, an American
businessman who owned the station by way of a pastoral lease
, who agreed to sell the lease to them. In February 1976, the Commission made a contract
to purchase the property, but before the sale could be completed, it was blocked by the Government of Queensland.
Joh Bjelke-Petersen
, the Premier of Queensland at the time, did not approve of the sale, because he did not believe that Aboriginal people should be able to acquire large areas of land, a view which was reflected in official cabinet
policy. As such, he had directed the Queensland Minister of Lands not to approve the sale. Koowarta initially made a complaint to the Human Rights and Equal Opportunity Commission
, on the basis that blocking the sale was discriminatory. The Commission upheld Koowarta's complaint, but the Queensland Government appealed to the Supreme Court of Queensland
. The Queensland Government also brought a separate action against the Government of Australia
, arguing that they had no power to pass the Racial Discrimination Act, and as such, the case was moved to the High Court.
. Section 12 makes it unlawful for any person to refuse to sell land to another person, or refuse to allow them to occupy the land, based on their race.
Bjelke-Petersen, on behalf of the Queensland Government, argued that the Racial Discrimination Act was not valid, and that the Australian Government had no power to make it. Section 51 of the Australian Constitution
defines the powers of the Australian Government, and Bjelke-Petersen argued that subsection xxvi of that section, which allows the Parliament of Australia
to make laws for "the people of any race, for whom it is deemed necessary to make special laws," did not apply to the Act, since it prohibited discrimination against people of all races.
, which allows the Commonwealth to make laws for the people of any race, originally made a specific exclusion for Aboriginal people. However, this exception was removed in the 1967 referendum on Aboriginal people
, and since then, the Commonwealth had power to make laws for Aboriginal people. However, the wording did not mean that only laws benefiting people of any race could be passed; in fact, the section was originally designed to allow the Commonwealth to discriminate against the people of any race. Nevertheless, the court agreed that the Commonwealth could make laws prohibiting discrimination against the people of any race.
However, the court found that the Act addressed racial discrimination against all people, not just the people of one particular race. As such, the Act had no basis in the 'any race' power.
Convention on the Elimination of All Forms of Racial Discrimination
(CERD), which Australia had signed on 13 October 1966. Section 51(xxix) of the Australian Constitution
, which simply states that the Parliament has power to make laws with respect to "external affairs" (a term which is left undefined), was put forward as an alternative source of authority for the Act. The Commonwealth in a submission argued that since the Act gave effect to Australia's international obligations as a signatory to the CERD, it came under the external affairs power.
An important question was whether the Act could truly be regarded as an "external affair", since it applied entirely within Australia. There had already been a number of High Court cases which approved the use of the external affairs power to implement international treaties (such as the Paris Convention case
and the Seas and Submerged Lands case
). The court recognised that the external affairs power was not restricted only to matters outside of Australia, but it was still questionable whether it applied to matters that did not involve foreigners or other countries at all. The Commonwealth argued that it would affect Australia's international reputation if it were not able to carry out its obligations as a signatory to the Convention.
By a majority of five to one, the court found that the Racial Discrimination Act was not valid under the "race" power. However, by a narrow majority of four to three, the court also found that the Act was within the "external affairs" power.
Three judges (Gibbs
, Aickin
, and Wilson
) adopted a very narrow view, endorsing a test proposed by Justice Dixon
in R v Burgess; Ex parte Henry
, which focuses on whether a treaty is "indisputably international". They also suggested that reading the external affairs power too widely would destroy the balance of powers between the Commonwealth and the States
. They felt that the external affairs power had to be read in light of federalism
in the Constitution. In effect, they proposed that any treaty had to meet an additional test and be 'indisputably international in character'. Their view was therefore concerned with the subject-matter of racial discrimination. In this case, the legislation was not sufficient to satisfy their test, and they held that the legislation was not valid.
Three other judges (Mason, Murphy
, Brennan
) took a wide view, saying that the mere existence of a treaty obligation was sufficient to render the matter an 'external affair', regardless of the particular subject in question. This view was therefore not concerned with the international character of racial discrimination, but with the activity of treaty-making. Justice Murphy
, characterised the argument advanced by the Commonwealth as an attempt to resurrect the reserved State powers
doctrine rejected in the 1920 Engineers' Case, and said that without the ability to implement treaties, Australia would be an "international cripple". Here, Australia clearly had obligations under the treaty, and as such the legislation was valid.
The deciding opinion was that of Ninian Stephen
, who ultimately agreed with Mason, Murphy and Brennan on the facts, but took a somewhat narrow middle path in order to arrive at the same conclusion. He adopted a test based on whether or not the subject matter of the treaty being implemented is of 'international concern'. This test was not as broad as the wide view, and not as restrictive as the 'indisputably international' test. On the facts, Stephen found that the prevention of racial discrimination was indeed a matter of international concern, and as such the Racial Discrimination Act was valid.
In total, four judges held the legislation was valid under the external affairs power, but there was not a majority of judges agreeing on the test for determining validity. As a result, there was no clear ratio decidendi
in the case; at best, a majority of the court might hold that s51(xxix) would support legislation implementing treaties with subject-matter of 'international concern'.
. In that case, a majority of four judges would adopt the reasoning favoured by Mason, Murphy and Brennan in this case. In another later case, the Industrial Relations Act case, a majority of five judges endorsed the same reasoning, thus cementing its place in Australian law.
The main part of the case, relating to the Queensland Government's action in blocking Koowarta's purchase of the lease, was remitted to the Supreme Court of Queensland. The decision there was eventually made in 1988, in favour of Koowarta. The sale was to proceed, but at the last minute, Bjelke-Petersen, in an act described by Australian Conservation Foundation
councillor Kevin Guy as one of "spite and prejudice," declared the Archer River
property a national park
, the Archer Bend National Park (now known as the Mungkan Kandju National Park
), to ensure that no-one could ever own it. However, on 6 October 2010 Premier Anna Bligh
announced that a 75000 hectares (750 km²) portion of the park would be given over to the Wik-Mungkana peoples as freehold land.
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
decided in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
on 11 May 1982. It concerned the constitutional validity of parts of the Racial Discrimination Act 1975
Racial Discrimination Act 1975
The Racial Discrimination Act 1975 is a statute passed by the Australian Parliament during the Prime Ministership of Labor Gough Whitlam....
, and the discriminatory acts of the Government of Queensland
Government of Queensland
The Government of Queensland is commonly known as the "Queensland Government".The form of the Government of Queensland is prescribed in its Constitution, which dates from 1859, although it has been amended many times since then...
in blocking the purchase of land by Aboriginal people in northern Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
.
Background to the case
John Koowarta, the plaintiffPlaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
, was an Aboriginal Australian man, a member of the Wik
Wik peoples
The Wik peoples are an Indigenous Australian group of people from an extensive zone on western Cape York Peninsula in northern Queensland, of several different language groups...
nation. The Wik peoples
Wik peoples
The Wik peoples are an Indigenous Australian group of people from an extensive zone on western Cape York Peninsula in northern Queensland, of several different language groups...
were the Indigenous inhabitants of the Aurukun region of the Cape York Peninsula
Cape York Peninsula
Cape York Peninsula is a large remote peninsula located in Far North Queensland at the tip of the state of Queensland, Australia, the largest unspoilt wilderness in northern Australia and one of the last remaining wilderness areas on Earth...
. In 1974, Koowarta and a number of other stockmen planned to purchase the Archer River
Archer River
The Archer River is a major river of the Cape York Peninsula, Far North Queensland, Australia. It rises in the McIlwraith Range, traverses tropical savanna plains and wetlands, flowing through Piccaninny Plains Sanctuary and Mungkan Kandju National Park, and enters the Gulf of Carpentaria on the...
cattle station, which covered much of the Wik peoples' traditional homeland, using funds provided by the Aboriginal Land Fund Commission. They approached Remington Rand, an American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
businessman who owned the station by way of a pastoral lease
Pastoral lease
A pastoral lease is Crown land that government allows to be leased, generally for the purposes of farming.-Australia:Pastoral leases exist in both Australian commonwealth law and state jurisdictions....
, who agreed to sell the lease to them. In February 1976, the Commission made a contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
to purchase the property, but before the sale could be completed, it was blocked by the Government of Queensland.
Joh Bjelke-Petersen
Joh Bjelke-Petersen
Sir Johannes "Joh" Bjelke-Petersen, KCMG , was an Australian politician. He was the longest-serving and longest-lived Premier of Queensland, holding office from 1968 to 1987, a period that saw considerable economic development in the state...
, the Premier of Queensland at the time, did not approve of the sale, because he did not believe that Aboriginal people should be able to acquire large areas of land, a view which was reflected in official cabinet
Cabinet (government)
A Cabinet is a body of high ranking government officials, typically representing the executive branch. It can also sometimes be referred to as the Council of Ministers, an Executive Council, or an Executive Committee.- Overview :...
policy. As such, he had directed the Queensland Minister of Lands not to approve the sale. Koowarta initially made a complaint to the Human Rights and Equal Opportunity Commission
Human Rights and Equal Opportunity Commission
The Australian Human Rights Commission is a national human rights institution, a statutory body funded by, but operating independently of, the Australian Government. It has the responsibility for investigating alleged infringements under Australia’s anti-discrimination legislation...
, on the basis that blocking the sale was discriminatory. The Commission upheld Koowarta's complaint, but the Queensland Government appealed to the Supreme Court of Queensland
Supreme Court of Queensland
The Supreme Court of Queensland, which is based at the Law Courts Complex, is the superior court for the Australian State of Queensland and sits around the middle of the Australian court hierarchy...
. The Queensland Government also brought a separate action against the Government of Australia
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
, arguing that they had no power to pass the Racial Discrimination Act, and as such, the case was moved to the High Court.
Arguments
Koowarta presented a case to the Human Rights and Equal Opportunity Commission opposing the policy enacted by the Queensland Government, to block Aboriginal acquisition of large areas of land, arguing that it was discriminatory under sections 9 and 12 of the Racial Discrimination Act 1975. Section 9 makes it unlawful for any person to make a distinction based on race which interferes with another person's human rightsHuman rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
. Section 12 makes it unlawful for any person to refuse to sell land to another person, or refuse to allow them to occupy the land, based on their race.
Bjelke-Petersen, on behalf of the Queensland Government, argued that the Racial Discrimination Act was not valid, and that the Australian Government had no power to make it. Section 51 of the Australian Constitution
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
defines the powers of the Australian Government, and Bjelke-Petersen argued that subsection xxvi of that section, which allows the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
to make laws for "the people of any race, for whom it is deemed necessary to make special laws," did not apply to the Act, since it prohibited discrimination against people of all races.
The 'race' power
The most important question in the case was whether the Racial Discrimination Act was valid. Section 51(xxvi) of the Australian ConstitutionSection 51(xxvi) of the Australian Constitution
Section 51 of the Australian Constitution, commonly called 'the race power', is the subsection of Section 51 of the Australian Constitution granting the Australian commonwealth power to make special laws for people of any race....
, which allows the Commonwealth to make laws for the people of any race, originally made a specific exclusion for Aboriginal people. However, this exception was removed in the 1967 referendum on Aboriginal people
Australian referendum, 1967 (Aboriginals)
The referendum of 27 May 1967 approved two amendments to the Australian constitution relating to Indigenous Australians. Technically it was a vote on the Constitution Alteration 1967, which became law on 10 August 1967 following the results of the referendum...
, and since then, the Commonwealth had power to make laws for Aboriginal people. However, the wording did not mean that only laws benefiting people of any race could be passed; in fact, the section was originally designed to allow the Commonwealth to discriminate against the people of any race. Nevertheless, the court agreed that the Commonwealth could make laws prohibiting discrimination against the people of any race.
However, the court found that the Act addressed racial discrimination against all people, not just the people of one particular race. As such, the Act had no basis in the 'any race' power.
External affairs power
The court agreed that the Racial Discrimination Act was intended to give effect within Australia to the United NationsUnited Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Convention on the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of All Forms of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination is a United Nations convention. A second-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races...
(CERD), which Australia had signed on 13 October 1966. Section 51(xxix) of the Australian Constitution
Section 51(xxix) of the Australian Constitution
Section 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
, which simply states that the Parliament has power to make laws with respect to "external affairs" (a term which is left undefined), was put forward as an alternative source of authority for the Act. The Commonwealth in a submission argued that since the Act gave effect to Australia's international obligations as a signatory to the CERD, it came under the external affairs power.
An important question was whether the Act could truly be regarded as an "external affair", since it applied entirely within Australia. There had already been a number of High Court cases which approved the use of the external affairs power to implement international treaties (such as the Paris Convention case
R v Burgess; Ex parte Henry
R v Burgess; Ex parte Henry 55 CLR 608 was a case decided in the High Court of Australia regarding the scope of the trade and commerce power and the external affairs power, in sections 51 and 51 respectively, of the Constitution....
and the Seas and Submerged Lands case
New South Wales v Commonwealth
New South Wales v Commonwealth could refer to a number of High Court of Australia cases:* New South Wales v Commonwealth 7 CLR 179* New South Wales v Commonwealth 20 CLR 54, Wheat Case...
). The court recognised that the external affairs power was not restricted only to matters outside of Australia, but it was still questionable whether it applied to matters that did not involve foreigners or other countries at all. The Commonwealth argued that it would affect Australia's international reputation if it were not able to carry out its obligations as a signatory to the Convention.
Judgment
Three judges (Gibbs
Harry Gibbs
Sir Harry Talbot Gibbs, GCMG, AC, KBE, QC was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981...
, Aickin
Keith Aickin
Sir Keith Arthur Aickin KBE QC , Australian judge, was a Justice of the High Court of Australia.Aickin was born in Melbourne in 1916, and was educated at Melbourne Grammar School. He also studied at the University of Melbourne, where he graduated with a Bachelor of Laws and later a Master of Laws...
, and Wilson
Ronald Wilson
Sir Ronald Darling Wilson, AC, KBE, CMG, QC was a distinguished Australian lawyer, judge and social activist serving on the High Court of Australia between 1979 and 1989 and as the President of the Human Rights and Equal Opportunity Commission between 1990 and 1997.Wilson is probably best known as...
) adopted a very narrow view, endorsing a test proposed by Justice Dixon
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
in R v Burgess; Ex parte Henry
R v Burgess; Ex parte Henry
R v Burgess; Ex parte Henry 55 CLR 608 was a case decided in the High Court of Australia regarding the scope of the trade and commerce power and the external affairs power, in sections 51 and 51 respectively, of the Constitution....
, which focuses on whether a treaty is "indisputably international". They also suggested that reading the external affairs power too widely would destroy the balance of powers between the Commonwealth and the States
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
. They felt that the external affairs power had to be read in light of federalism
Federalism in Australia
On 1 January 1901 the Australian nation emerged as a federation. The model of Australian federalism adheres closely to the original model of the United States of America.- Federal features in the Australian Constitution :...
in the Constitution. In effect, they proposed that any treaty had to meet an additional test and be 'indisputably international in character'. Their view was therefore concerned with the subject-matter of racial discrimination. In this case, the legislation was not sufficient to satisfy their test, and they held that the legislation was not valid.
Three other judges (Mason, Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...
, Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
) took a wide view, saying that the mere existence of a treaty obligation was sufficient to render the matter an 'external affair', regardless of the particular subject in question. This view was therefore not concerned with the international character of racial discrimination, but with the activity of treaty-making. Justice Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...
, characterised the argument advanced by the Commonwealth as an attempt to resurrect the reserved State powers
Reserved State powers
The reserved country powers, also called reserved powers, is a doctrine reserved exclusively for the states, that is used in the interpretation of the Constitution of Australia. It adopted a restrictive approach to the interpretation of the specific powers of the Federal Parliament in order to...
doctrine rejected in the 1920 Engineers' Case, and said that without the ability to implement treaties, Australia would be an "international cripple". Here, Australia clearly had obligations under the treaty, and as such the legislation was valid.
The deciding opinion was that of Ninian Stephen
Ninian Stephen
Sir Ninian Martin Stephen, is a retired politician and judge, who served as the 20th Governor-General of Australia and as a Justice in the High Court of Australia.-Early life:...
, who ultimately agreed with Mason, Murphy and Brennan on the facts, but took a somewhat narrow middle path in order to arrive at the same conclusion. He adopted a test based on whether or not the subject matter of the treaty being implemented is of 'international concern'. This test was not as broad as the wide view, and not as restrictive as the 'indisputably international' test. On the facts, Stephen found that the prevention of racial discrimination was indeed a matter of international concern, and as such the Racial Discrimination Act was valid.
In total, four judges held the legislation was valid under the external affairs power, but there was not a majority of judges agreeing on the test for determining validity. As a result, there was no clear ratio decidendi
Ratio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
in the case; at best, a majority of the court might hold that s51(xxix) would support legislation implementing treaties with subject-matter of 'international concern'.
Consequences
The case upheld the validity of the Racial Discrimination Act, and endorsed the Australian Government's use of the "external affairs" power to implement treaties not directly relating to other countries, an interpretation which would later become important in cases such as the Tasmanian Dam caseCommonwealth v Tasmania
Commonwealth v Tasmania 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia...
. In that case, a majority of four judges would adopt the reasoning favoured by Mason, Murphy and Brennan in this case. In another later case, the Industrial Relations Act case, a majority of five judges endorsed the same reasoning, thus cementing its place in Australian law.
The main part of the case, relating to the Queensland Government's action in blocking Koowarta's purchase of the lease, was remitted to the Supreme Court of Queensland. The decision there was eventually made in 1988, in favour of Koowarta. The sale was to proceed, but at the last minute, Bjelke-Petersen, in an act described by Australian Conservation Foundation
Australian Conservation Foundation
The Australian Conservation Foundation is an Australian non-profit, community-based environmental organisation focused on advocacy, policy research and community outreach.-History:...
councillor Kevin Guy as one of "spite and prejudice," declared the Archer River
Archer River
The Archer River is a major river of the Cape York Peninsula, Far North Queensland, Australia. It rises in the McIlwraith Range, traverses tropical savanna plains and wetlands, flowing through Piccaninny Plains Sanctuary and Mungkan Kandju National Park, and enters the Gulf of Carpentaria on the...
property a national park
National park
A national park is a reserve of natural, semi-natural, or developed land that a sovereign state declares or owns. Although individual nations designate their own national parks differently A national park is a reserve of natural, semi-natural, or developed land that a sovereign state declares or...
, the Archer Bend National Park (now known as the Mungkan Kandju National Park
Mungkan Kandju National Park
Mungkan Kandju, formerly Archer Bend National Park, is a national park in Queensland, Australia, 1914 km northwest of Brisbane.-See also:* Protected areas of Queensland* Koowarta v Bjelke-Petersen...
), to ensure that no-one could ever own it. However, on 6 October 2010 Premier Anna Bligh
Anna Bligh
Anna Maria Bligh is an Australian politician and the Premier of Queensland since 2007. The 2009 Queensland state election was the first time a female-led political party won or retained state or federal government in Australia...
announced that a 75000 hectares (750 km²) portion of the park would be given over to the Wik-Mungkana peoples as freehold land.