Koowarta v Bjelke-Petersen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judgment Date: 11 May 1982
• Neutral Citation: 1982-0511 HCA E,[1982] HCA 27
• Date: 11 May 1982

Australia, High Court.

(Gibbs C.J., Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ.)

Koowarta

and

Bjelke-Petersen and Others

State of Queensland

and

Commonwealth of Australia

INTERNATIONAL LAW IN GENERAL

International law in general — Relation to municipal law — Treaties — Federal State — Effect of conclusion of treaty by Federal — Government on legal powers of States — The law of Australia

STATES AS INTERNATIONAL PERSONS

States as International persons — Sovereignty and independence — Conduct of foreign relations — Foreign relations power in a federal State — Effect of conclusion of treaty by Federal Government on legal powers of States — The law of Australia

The individual in international law — In general — Human rights and freedoms — Racial discrimination — Aboriginals — Whether norm of non-discrimination part of customary international law — Whether subject of racial discrimination therefore an aspect of Australia's “external affairs”— International Convention on the Elimination of All Forms of Racial Discrimination, 1966 — Racial Discrimination Act 1975 — Validity of Act — Commonwealth Constitution — The law of Australia

The individual in international law — Minorities — Aboriginals — Racial discrimination claim under Racial Discrimination Act 1975 — Act implementing International Convention on the Elimination of All Forms of Racial Discrimination, 1966 — Whether Act an exercise of power to legislate for race for which special laws necessary — Commonwealth Constitution section 51 (26) — Original purpose — Whether norm of non-discrimination part of customary international law — The law of Australia

Treaties — Conclusion and operation — Effect of municipal legislation — International Convention on the Elimination of All Forms of Racial Discrimination, 1966 — Racial Discrimination Act 1975 implementing treaty — Claim by Aboriginals under Act — Validity of Act — Commonwealth Constitution — The law of Australia

TREATIES

Treaties — Conclusion and operation — Constitutional limitations—External affairs power of Federal State — Interpretation of “external affairs”— Whether a matter of international concern — Whether implementation of treaty relevant — Whether affecting relations with other international persons — Norm of non-discrimination on grounds of race — Whether customary international law — Effect on Commonwealth or State statutes — Commonwealth Constitution section 51(26) and (29) — Refusal to approve land transfer to Aboriginals — Claim under Racial Discrimination Act 1975, sections 9 and 12 — Act implementing International Convention on the Elimination of All Forms of Racial Discrimination, 1966 — Locus standi of plaintiff — Whether a “person aggrieved” under section 24 of Act — Constitutional validity of Act — Whether an exercise of power to legislate for race for which special laws necessary — Whether sections 9 and 12 of Act special or general laws — The law of Australia

Summary 1: The facts:—The plaintiff, a member of a group of Aboriginals resident in Queensland, had requested the Aboriginal Land Fund Commission to acquire a Crown lease of a piece of land in Queensland. The Commission contracted to purchase the lease and applied to the Minister for Lands of Queensland for his consent, which was required under both the relevant law of Queensland and the contract. The Minister, with the Cabinet's approval, refused his consent because of the standing policy of the Queensland Government not to view favourably acquisition of large areas of land by Aboriginals or Aboriginal groups in isolation.2

The plaintiff sued the Premier and the Minister for Lands of Queensland in the Supreme Court of Queensland claiming damages for, and declarations and injunctions in respect of, a breach by the defendants of sections 9 and 12 of the Racial Discrimination Act 1975 (Commonwealth). Section 9(1) provided that:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Section 9(2) expressly stated that section 9(1) included any right of a kind referred to in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination.3 Australia was a party to that Convention and the Racial Discrimination Act was passed specifically to give effect to the Convention. Under Article 5 of the Convention States undertook to prohibit and eliminate racial discrimination and to guarantee the right of everyone, without distinction as to race, or national or ethnic origin, to equality before the law, notably in the enjoyment of specified rights. These included the civil right to own property.

Section 12 of the Act4inter alia made it unlawful to refuse to dispose of an interest in land to a second person or to refuse to permit a second person to occupy any land by reason of the race of that person or of any associate. Section 24(1) gave a person aggrieved by an act that he considered to have been unlawful the right to sue for damages and an injunction.

The defendants challenged (a) the locus standi of the plaintiff and (b) the validity of the Act under section 51(26) and (29) of the Australian Constitution. Section 51(26) provided for the power to legislate with regard to the people of any race for whom it was deemed necessary to make special laws. Section 51(29) gave the Commonwealth power to legislate with respect to “external affairs”.

The issues thus raised were removed to the High Court of Australia and were heard together with an action by the State of Queensland against the Commonwealth alleging that the Act was beyond the legislative power of the Commonwealth.

Held:—(1) (Unanimously) The plaintiff was an “aggrieved person” within the meaning of section 24 of the Act and therefore had standing.

(2) (By six votes to one, Murphy J. dissenting) Sections 9 and 12 of the Act were not an exercise of legislative power under the Constitution, section 51 (26), because they were not special laws for any race but were general in their application.

Per Gibbs C.J.: The original purpose of section 51(26) was to permit legislation against non-white races which had come to Australia. It was only subsequently that the purpose became the protection of minorities, notably the prohibition of discrimination against Aboriginals by reason of their race.

Per Murphy J., dissenting: The Act was supported by the Constitution, section 51(26), because it was legislation with respect to the people of any

race against whom discrimination on racial grounds was or might be practised. Section 51(26) was to be interpreted as only envisaging legislation which was for the benefit of any race.

(3) (By four voters to three, Gibbs C.J., Aickin and Wilson JJ. dissenting) Sections 9 and 12 of the Act were valid laws with respect to “external affairs” under section 51(29) of the Constitution.

Per Stephen J.: The term “external affairs” was to be restricted to such of the public business of the national government as related to other nations or other things or circumstances outside of Australia. It was the quality of being of international concern which was the valid criterion of whether a particular subject-matter formed part of a nation's “external affairs”. A subject-matter of international concern necessarily possessed the capacity to affect a country's relations with other nations and this quality was itself enough to make the subject-matter part of a nation's “external affairs”. It was not enough that a challenged law gave effect to a treaty, nor, on the other hand was it necessary that a question be the subject of a treaty to which Australia was a party for it to be considered a matter of international concern. The subject of racial discrimination was to be regarded as an important aspect of Australia's external affairs, even if Australia was not a party to the Racial Discrimination Convention, because the norm of non-discrimination on grounds of race was now part of customary international law.

Per Mason and Brennan JJ.: An affair often had characteristics which endowed it with both internal and external qualities. The distinguishing characteristic of an external affair was agreement by States to take common action in pursuit of a common international objective. A treaty was not an essential prerequisite. A subject which affected or was likely to affect Australia's relations with other international persons constituted an “external affair”. If Australia, in the conduct of its relations with other nations, accepted a treaty obligation with respect to an aspect of Australia's internal legal order, the subject of the obligation thereby became an external affair, and a law with respect to that subject was a law with respect to “external affairs”.

Per Murphy J.: There existed an “external affair” whenever the State was involved with any entity, circumstance or event outside Australia, whether or not this involved any affair in Australia. The Racial Discrimination Act fell within the external affairs power because it implemented a treaty. Even if the Act had not precisely conformed to the terms of the Convention the operative provisions would be valid because they related to matters of international concern, the observance in Australia of international standards of human rights, which was part of Australia's external affairs.

Per Gibbs C.J., Mason, Aickin and Wilson JJ., dissenting: A law which gave effect within Australia to an international treaty was only compatible with section 51(29) of the Constitution if it was with respect to a matter which could itself be described as an external affair. Furthermore, such a law, although operating within Australia, had to be one with...