Koowarta v Bjelke-Petersen and Others
153 CLR 168(Decision by: Murphy J)
Koowarta
vBjelke-Petersen and Others
Judges:
Gibbs CJ
Stephen J
Mason J
Murphy JAickin J
Wilson J
Brennan J
Legislative References:
Racial Discrimination Act 1975 (Cth) - The Act
Land Act 1962 (Qld) - The Act
Aboriginal Land Fund Act 1974 (Cth) - s 20; s 21
Land Act 1962 (Qld) - s 286
Aboriginal Development Commission Act 1980 - s 27; s 28; s 29; s 51
Charter of the United Nations Act 1945 (Cth) - The Act
Crimes Act 1914-1946 (Cth) - s 24A(1)
Air Navigation Act 1920 (Cth) - s 4
Acts Interpretation Act 1901 (Cth) - The Act; s 22(a)
Narcotic Drugs Act 1967 - The Act
Racial Discrimination Act 1975 (Cth) - s 9; s 12
Treaty of Peace Act 1919 - The Act
Seas and Submerged Lands Act 1973 (Cth) - The Act
International Covenant on Civil and Political Rights (1966) - The Act
Human Rights Commission Act 1981 - The Act
Vrededorp Stands Act 1907 - The Act
Railway Clauses Act 1845 - s 68
Case References:
Airlines of New South Wales Pty Ltd v New South Wales (No 2) - (1965) 113 CLR 54
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd - (1920) 28 CLR 129
Andrews v Howell - (1941) 65 CLR 255
Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia - (1978) 52 ALJR 254; 17 ALR 513
Attorney-General (Vic) v Commonwealth - (1945) 71 CLR 237
Attorney-General for Canada v Attorney-General for Ontario - [1937] AC 326
Attorney-General for Queensland v Attorney-General for the Commonwealth - (1915) 20 CLR 148
Attorney-General of NSW v Brewery Employees Union of NSW - (1908) 6 CLR 469
Attorney-General of the Gambia v N'Jie - [1961] AC 617
Attorney-General v Antigua Times - [1976] AC 16
Australian Communist Party v Commonwealth - (1951) 83 CLR 1
Australian National Airways Pty Ltd v Commonwealth - (1945) 71 CLR 29
Australian Textiles Pty Ltd v Commonwealth - (1945) 71 CLR 161
Bank of New South Wales v Commonwealth - (1948) 76 CLR 1
Bradley v Commonwealth - (1973) 128 CLR 557
Buck v Bavone - (1976) 135 CLR 110; 9 ALR 481
Buxton v Minister of Housing and Local Government - [1961] 1 QB 278
Chow Hung Ching v R - (1948) 77 CLR 449
Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc - (1960) 103 CLR 422
Dowal v Murray - (1978) 143 CLR 410; 22 ALR 577
Fairfax v FC of T - (1965) 114 CLR 1
Ffrost v Stevenson - (1937) 58 CLR 528
Forster v Jododex Aust Pty Ltd - (1972) 127 CLR 421
Foster v Neilson - (1829) 2 Pet 253
Fry v United States - (1975) 421 US 542
Gazzo v Comptroller of Stamps (Vic) - (1982) 56 ALJR 143; 38 ALR 25
Geofroy v Riggs - (1890) 133 US 258
James v Commonwealth - (1936) 55 CLR 1
Janson v Driefontein Consolidated Mines Ltd - [1902] AC 484
Jolley v Mainka - (1933) 49 CLR 242
Jumbunna Coal Mine (No Liability) v Victorian Coal Miners' Association - (1908) 6 CLR 309
Madrassa Anjuman Islamia v Johannesburg Municipal Council - [1922] 1 AC 500
McGraw-Hinds (Aust) Pty Ltd v Smith - (1979) 53 ALJR 423; 24 ALR 175
McKelvey v Meagher - (1906) 4 CLR 265
Melbourne Corporation v Commonwealth - (1947) 74 CLR 31
Missouri v Holland (the Migratory Birds case) - (1920) 252 US 416
National League of Cities v Usery - (1975) 426 US 833
New South Wales v Commonwealth (the Seas
&
Submerged Lands case) - (1975) 135 CLR 337; 8 ALR 1
Oregon v Mitchell - (1970) 400 US 112
Polites v Commonwealth - (1945) 70 CLR 60
Powell v Birmingham Vinegar Brewery Co - [1894] AC 8
Quazi v Quazi - [1980] AC 744
R v Burgess Ex parte Henry - (1936) 55 CLR 608
R v Burgess Ex parte Henry R v Poole Ex parte Henry (No 2) R v Sharkey - (1949) 79 CLR 121
R v Chief Immigration Officer Ex parte Bibi - (1976) 1 WLR 979
R v Foster - (1949) 79 CLR 43
R v Poole Ex parte Henry (No 2) - (1939) 61 CLR 634
R v Public Vehicles Licensing Appeal Tribunal (Tas) Ex parte Australian National Airways Pty Ltd - (1964) 113 CLR 207
R v Sharkey - (1947) 79 CLR 121
Roche v Kronheimer - (1921) 29 CLR 329
Shipping Corporation of India Ltd v Gamlen Chemical Co (A/asia) Pty Ltd - (1980) 32 ALR 609
South Australia v Commonwealth - (1942) 65 CLR 373
Spratt v Hermes - (1965) 114 CLR 226
Trendtex Trading v Bank of Nigeria - [1977] QB 529
Victoria v Commonwealth - (1971) 122 CLR 353
Victoria v Commonwealth and Hayden - (1975) 134 CLR 338
Wragg v State of New South Wales - (1953) 88 CLR 353
Judgment date: 11 May 1982
Canberra
Decision by:
Murphy J
The plaintiff, Mr Koowarta, seeks to invoke the Racial Discrimination Act 1975 (the Act) against Queensland and its Ministers. Queensland (supported by Western Australia and Victoria intervening) demurs, and in a separate action against the Commonwealth claims a declaration, that ss 9 and 12 of the Act which are relied upon by the plaintiff are unconstitutional. Mr Koowarta and the Commonwealth support the validity of the Act (particularly the two challenged sections) on either or both of the constitutional powers to make laws with respect to external affairs and the power to make special laws for the people of any race.
External affairs
When the people of Australia joined together on 1 January 1901 as the Commonwealth of Australia this nation became a new international personality in the community of nations. Australia's external affairs are primarily its relations with other members of the international community directly and through international organs. The relations are conducted in a variety of ways sometimes crystallized in arrangements, the most formal of which are treaties (often described as conventions or covenants). More broadly, there is an external affair whenever Australia is involved with any affair (that is any entity, circumstance or event) outside Australia (whether or not this involves any affair in Australia).
The Australian States have no international personality; unlike the Commonwealth, they are not nation-states. Any purported treaty or agreement between any or all the Australian States and a foreign country is a nullity. States have entered into arrangements with other countries either in the belief they could do so or because of the neglect of the Commonwealth to make arrangements which were thought to be practically necessary (for example overseas enforcement of maintenance for deserted wives and children, interchange of information about criminals). All such arrangements are within the exclusive authority of the Commonwealth.
The executive, the legislative and the judicial branches of government are all concerned with Australia's external affairs.
The executive power with respect to external affairs
Constitutionally, the executive power over Australia's external affairs comes within Ch III -- Executive Government. It is part of the executive power of the Commonwealth nominally vested in the Queen exercisable by the Governor-General (s 61). The power is exercised on the advice of the Federal Executive Council (s 62) and administered (pursuant to s 64) by the Minister in charge of the Department now known as the Department of Foreign Affairs.
The executive power over external affairs is not unlimited. It is subject to constitutional limitations, whether expressed, as in s 116 (freedom of religion) or implied (for example separation of powers). Otherwise the executive power in relation to external affairs, unless confined by Parliament, is unconfined.
For some few years after 1901 the Executive Government mostly failed to exercise directly its authority in Australia's external affairs, perhaps because of distraction in more pressing tasks of administering the domestic affairs of the new Commonwealth or because of lack of expertise and the geographical remoteness from the areas of presumed importance or because of persistence of colonial mentality. It allowed Australia's external affairs to be largely conducted through the United Kingdom Government. By the end of World War I, however, Prime Minister Hughes was vigorously asserting Australia's independence in external affairs (see Booker: The Great Professional , 1980). Whatever the explanation for the early failure to exercise the power directly, this does not affect the constitutional position that the conduct of Australia's external affairs was from 1901 vested in Australia's Executive Government.
The subjects coming within the scope of external affairs as contemplated in 1901 included all aspects of the relations between Australia and other countries. The Constitution itself evidences that these extended to treaty-making and the exchange of consuls and other representatives. By s 75, the High Court was given original jurisdiction in all matters (i) arising under any treaty, and (ii) affecting consuls or other representatives of other countries. The position of these aspects of external affairs as the first two subject matters of the court's original jurisdiction underlines the importance of external affairs in the constitutional scheme. The treaties referred to in s 75 must include treaties entered into by Australia.
During this century we have witnessed the greatest recognition of and also the greatest denial of human rights in all history. Genocide, forced labour, arbitrary arrest and imprisonment, deprivation of civil and political rights, racial and religious discrimination, or other crimes against humanity, have occurred on an enormous scale. In response, we have had the greatest progress in the elaboration and acceptance of universal standards of human rights by the international community. World War II and the events leading to it focused attention on the need to secure human rights on an international scale. The history of the fascist regimes showed that the denial of basic rights to the citizens of a country was often instrumental in the advance to or maintenance of power by those who would endanger world peace. Concerted international action was necessary to ensure that peace would not be endangered through denial of rights in any country. Also, there was an increasing consciousness, voiced by Wendell Wilkie and many others, that people had responsibility for the well being of others everywhere, irrespective of national barriers which were unnaturally dividing humanity. The United Nations Charter, 1945, proclaims that one of its purposes is to achieve international co-operation in providing and encouraging respect for human rights and fundamental freedoms for all without restriction. The member nations pledged themselves to take action in co-operation with the organization for the promotion of universal respect for and observance of these rights and to take action both separately and jointly, that is, by individual national action, as well as by international co-operation. The Commission on Human Rights (established in 1946 by the United Nations) initiated work on an International Bill of Rights to consist of a Declaration of Human Rights, a covenant on human rights to transform the principles of the declaration into legal declarations, and international machinery to secure effective observations of the obligations. In 1948 the General Assembly of the United Nations adopted the Universal Declaration of Human Rights. The other stages of the International Bill were reached in 1966 with the adoption by the General Assembly of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights with its optional protocol. Throughout these instruments and in thousands of resolutions by the various organs of the United Nations and of numerous other international bodies concern has been expressed about the persistence of racial discrimination in various forms.
For years, almost daily, Australian Governments, by Ministers in Parliament and elsewhere, and by other representatives in the United Nations and other international agencies, have condemned violations of human rights in other countries. Likewise, complaints are made by others of Australia's violations of human rights, especially of discrimination against Aborigines. A considerable literature exists on the subject of racial discrimination against Aborigines (see references in Appendix -- at 474-5, infra ). Australia's history since the British entry in 1788 to a land peopled by Aborigines has been one of racism and racial discrimination which persists strongly. The subsequent entry of non-British migrants in great numbers has meant that the racism and discrimination extends well beyond the Aborigines. The Executive Government's concern with racial discrimination in Australia is related, perhaps inextricably, to its concern with racial discrimination elsewhere. In the practical realm of international politics it would be futile for Australia to criticize racial discrimination or other human rights' violations in other countries if it were to tolerate such discrimination within Australia. The Australian people can reasonably expect other peoples to take measures to eliminate racial discrimination in their countries only if Australia does likewise. The Convention on the Elimination of all forms of Racial Discrimination, 1966 to which Australia has become a party is a multi-lateral treaty imposing obligations on the parties including the obligation to take legislative measures to eliminate racial discrimination within their borders. The entry into this treaty was clearly within the executive power of Australia's Executive Government.
Legislative power with respect to external affairs
The Constitution, s 51 provides: "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to [para (29)] external affairs." This commits to the Parliament, as representing the authentic will of the Australian people, the power by legislation to regulate and to implement the executive conduct of external affairs. In our municipal, that is national, law this legislative power is subject to, and only to, the limitations expressed or implied in the Constitution. Like the other powers in ss 51 and 52 it is thus subject to express guarantees or prohibitions (such as those in ss 80, 99, 116), and to limitations arising from implications including those of the continued existence of the States, and in my opinion those associated with the implications of freedom of expression and other attributes of a free society to which I referred in Buck v Bavone (1976) 135 CLR 110 at 127 ; 9 ALR 481 at 500; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1978) 52 ALJR 254 at 267-8 ; 17 ALR 513; McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 53 ALJR 423 at 435 ; 24 ALR 175. It is necessary to mention these limitations in order to dispose of the argument that the external affairs power if not read down from its natural meaning could authorize Parliament to abolish the States or impose censorship pursuant to some treaty obligation. Such laws would be invalid because the Constitution contemplates the continuance of the States, and impliedly contemplates freedom of expression.
The opening words of s 51 show the power to make laws "for the peace order and good government of the Commonwealth" with respect to the various subjects, including external affairs, is to make laws which will operate in Australia to confer rights on or impose obligations on people whether unorganized or organized into State territories or other organs. In order that a law which operates on persons and events in Australia, that is on internal affairs, may come within the constitutional power, it is necessary and sufficient that it be with respect to external affairs. Thus it is no valid objection that the Racial Discrimination Act 1975 deals, as it does, with internal affairs. Preservation of the world's endangered species, maintenance of universal standards of human rights, control of traffic in drugs of dependence, elimination of infectious diseases, and many others, are for Australia as well as other nations, internal as well as external affairs. The States' contentions are a hardly disguised representation of the State reserved powers doctrine rejected in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 ( Engineer's case ), but now having a new lease (see Gazzo v Comptroller of Stamps (Vic ) (1982) 56 ALJR 143 ; 38 ALR 25). The argument is that the external affairs power is insufficient to implement certain treaties into which the Executive Government can enter (of which the Convention is an example), and that implementation can be secured only by the co-operation of State Parliaments. Victoria contended that certain provisions of the Narcotic Drugs Act 1967 (implementing the Single Convention on Narcotic Drugs) were invalid as beyond the competence of the Parliament; and that a law (pursuant to a treaty obligation) to prevent the emergence of slavery in any part of Australia would also be invalid. No satisfactory test was advanced for deciding which treaties Parliament could implement and which would require action by the States. If these contentions are correct, then as I said in New South Wales v Commonwealth (1975) 135 CLR 337 at 503 ; ALR 1 at 118 ( Seas and Submerged Lands case): "Australia would be an international cripple unable to participate fully in the emerging world order." The Constitution envisages no division of external affairs power 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 States. 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.
It was conceded by Queensland, rightly in my opinion, that the challenged sections of the Act conform to the Convention. The legislation thus falls easily within the external affairs power as an implementation of this treaty. Further the Act relates to matters of international concern, the observance in Australia of international standards of human rights, which is part of Australia's external affairs, so that the Act's operative provisions would be valid even in the absence of the Convention. Thus it is immaterial whether the Act precisely conforms to the terms of the Convention.
The challenged sections are completely authorized by the external affairs power. They need no support from the power in the Constitution, s 51, to make laws ... (26) with respect to the people of any race for whom it is deemed necessary to make special laws. It is therefore unnecessary to deal with the extent to which that power can lend support to those sections and other parts of the Act, although in my opinion, it can do so in the way submitted by the Commonwealth. In para (26) "for" means "for the benefit of". It does not mean "with respect to", so as to enable laws intended to affect adversely the people of any race. If "with respect to" or some similar expression were intended, it would have been used, as it is in other parts of s 51 (see the opening words and paras (31) and (36)).
For the reasons stated by Mr Justice Stephen, Mr Koowarta has standing as plaintiff; there was an act of discrimination against him. The demurrer should be overruled. The challenged sections of the Racial Discrimination Act 1975 are valid. The action by the Government of Queensland for a declaration of invalidity should be dismissed.
APPENDIX
Numerous books, articles and government reports starkly outline the discrimination suffered by Australian Aborigines, including:--
Annual Reports of Commissioner for Community Relations , especially Annual Report 1978 , Chapter 5, Discrimination in Queensland, pp 9-22.
Australian Law Reform Commission Discussion Paper No 17, Aboriginal Customary Law -- Recognition ? 1980.
Bandler, Wacvie , 1977.
Berdoukas, et al, Content Analysis of NSW Primary School Social Studies Textbooks with respect to the Development of Racial Attitudes in Children , 1970.
Brown, Hirschfeld and Smith, Aboriginals and Islanders in Brisbane Australian Government Commission of Inquiry into Poverty, 1975.
Coombes, Kunilma -- Listening to Aboriginal People , 1979.
Eggleston, Fear, Favour or Affection , 1975.
Evans, Saunders and Cronin, Exclusion, Exploitation and Extermination : Race Relations in Colonial Queensland , 1975.
Foley, Black Queenslanders on Reserves -- What Laws do They Want ? (1978) Legal Service Bulletin 3, 97.
Gale and Brookman, Race Relations in Australia -- The Aborigines 1975.
Gilbert, Because a White Man'll Never Do it , 1973.
Gilbert, Living Black , 1977.
Hunt, Aboriginal Women and Colonial Authority , in In Pursuit of Justice ; Women in Australia 1788-1979 , Mackinolty and Radi, editors, 1979, 32.
Kalokerinos, Every Second Child , 1974.
Lippman, Words or Blows : Racial Attitudes in Australia , 1973.
Malezer, Foley and Richards, Beyond the Act , 1980.
Nettheim, Outlawed -- Queensland's Aborigines and Islanders and the Rule of Law , 1973.
Nettheim, Victims of the Law -- Black Queenslanders Today , 1981.
Parker, Social Agents as Generators of Crime. Case Study : Aborigines in Western Australia , 1974.
Report on Aboriginals and Torres Strait Islanders on Queensland Reserves , Senate Standing Committee on Constitutional and Legal Affairs, 1978.
Reynolds, The Other Side of The Frontier , 1981.
Rowley, Destruction of Aboriginal Society , 1970.
Rowley, A Matter of Justice , 1979.
Ryan, The Aboriginal Tasmanians , 1981.
Stone, Aborigines in White Australia : A Documentary History of the Attitudes Affecting Official Policy and the Australian Aborigines 1697-1973 , 1974.
Taft, Attitudes of Western Australians Towards Aborigines in Attitudes and Social Conditions , 1970.
Tatz, Aborigines : Equality or Inequality , (1966) Australian Quarterly, 38.
Torry, Double Jeopardy -- Black and a Woman , 1975.
Walker, My People , 1976.
Watson, Black on Black, in Future Directions 1980 Conference Report Henry and Thomson, editors, 1980, 142.
Women's Health Conference Report , 1975, Health, 25, 4.