Koowarta v Bjelke-Petersen and Others
153 CLR 168(Judgment by: Mason J)
Koowarta
vBjelke-Petersen and Others
Judges:
Gibbs CJ
Stephen J
Mason JMurphy J
Aickin 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
Judgment by:
Mason J
As I have reached the conclusion that the objection to the plaintiff's locus standi in the first action is without substance it is convenient at the outset to examine the extent of the legislative power with respect to external affairs (s 51(xxix)) and the validity of the relevant provisions of the Racial Discrimination Act 1975 (Cth) (the Act), before discussing the question of locus standi . Because in my view the validity of the relevant provisions should be sustained as an exercise of the external affairs power I have no need to embark on an examination of the scope of the legislative power conferred by s 51(xxvi).
The External Affairs Power
It is not easy to express the head of power in terms of a synonym which is a precise equivalent. Probably the one which comes closest is "matters or concerns external to Australia". The principal problem is to reflect adequately and accurately the wide-ranging content of the word "affairs". We obtain some assistance from the traditional expression "foreign affairs". We know that a power with respect to "foreign affairs" was inappropriate to Australia's condition in 1900 for Australia was not then a fully fledged member of the community of nations. The conduct of its foreign affairs was to some extent at least left in the hands of the United Kingdom and the power was intended to embrace, amongst other things, our relationships with the United Kingdom and other members of the British Empire, relationships which could scarcely have been described then as "foreign affairs".
"External affairs" was therefore a head of power aptly expressed to equip the Federal Parliament and the Federal Executive with power to take appropriate action on behalf of Australia, whether as a self-governing Dominion or as a sovereign nation state, in the world of international affairs. So from the very beginning it has been accepted that the exercise of the power extends to matters affecting Australia's relationships with other nations and communities, including the making of treaties. In more recent times, as a result of the growth of international and regional co-operation, Australia's relationships with other nations have increasingly involved its participation in, and association with, international and regional institutions and organs which have an important part to play in advancing the political, economic and social interests of the peoples of the world and its regions. No one doubts that these activities on the part of Australia properly fall within the scope of "external affairs", notwithstanding that international and regional co-operation of this kind and on this scale was unknown in 1900 and only began with the Treaty of Versailles and the Covenant of the League of Nations.
However, it is not to be thought that the content of the power is limited to matters affecting our relationships with other nations and communities. As we have seen, "external affairs" covers any matters or concerns external to Australia. So in New South Wales v Commonwealth (the Seas & Submerged Lands case ) (1975) 135 CLR 337 ; 8 ALR 1, a majority of this court decided that the power extends to matters and things, and I would say, persons, outside Australia. That decision established, quite apart from the provisions of the Statute of Westminster, that the so-called principle denying an extra-territorial operation to the legislation of a colony had no application to laws enacted by the Commonwealth Parliament. There was, accordingly, no reason why the power should not apply to any matter or concern external to Australia. This aspect of the power has no significance for the present case.
Of course, it is of paramount importance that the power is expressed as a legislative power and that, like the other grants of power in s 51, it is plenary with respect to the subject matter. In accordance with the received canon of constitutional construction it is to be construed liberally, not narrowly and pedantically ( R v Public Vehicles Licensing Appeal Tribunal (Tas ); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225-6; the Seas & Submerged Lands case (CLR) at 470-1; James v Commonwealth (1936) 55 CLR 1 at 43).
The power applies to a treaty to which Australia is a party, for it is not in question that such a treaty is an external affair or a matter of external affairs, subject only to the qualification, if it be a qualification, that the treaty is a genuine treaty -- a matter to be mentioned later. It would seem to follow inevitably from the plenary nature of the power that it would enable the Parliament to legislate not only for the ratification of a treaty but also for its implementation by carrying out any obligation to enact a law that Australia assumed by the treaty. It is very difficult to see why such a law would not be a law with respect to an external affair, once it is accepted that the treaty is an external affair.
At this point is is argued that a restrictive interpretation should be placed upon the power, an interpretation which is based fundamentally on implications sought to be derived from (a) the nature of the power, and (b) the federal nature of the Constitution and the distribution of powers which it effects between the Commonwealth and the States. This interpretation is said to be supported by some statements in the judgments of this court. As statements in the earlier judgments expressed differing views and, accordingly, are not decisive, it is preferable in the first instance to examine the question as one of principle.
It is a well settled principle of the common law that a treaty not terminating a state of war has no legal effect upon the rights and duties of Australian citizens and is not incorporated into Australian law on its ratification by Australia ( Chow Hung Ching v R (1948) 77 CLR 449 at 478; Bradley v Commonwealth (1973) 128 CLR 557 at 582. In this respect Australian law differs from that of the United States where treaties are self-executing and create rights and liabilities without the need for legislation by Congress ( Foster v Neilson (1829) 2 Pet 253 at 314 ; 27 US 164 at 202). As Barwick CJ and Gibbs J observed in Bradley (at 582-3), the approval by the Commonwealth Parliament of the Charter of the United Nations in the Charter of the United Nations Act 1945 (Cth) did not incorporate the provisions of the Charter into Australian law. To achieve this result the provisions have to be enacted as part of our domestic law, whether by Commonwealth or State statute. Section 51(xxix) arms the Commonwealth Parliament with a necessary power to bring this about. So much was unanimously decided by this court in R v Burgess ; Ex parte Henry (1936) 55 CLR 608. There the power enabled the Commonwealth Parliament to legislate so as to incorporate into our law the provisions of the Paris Convention for the regulation of aerial navigation.
Burgess has been regarded as a landmark decision, notwithstanding that the outcome seems to have been so inevitable. Any other result would have been plainly unacceptable, not only because it would have entailed a failure to acknowledge the plenary nature of the power and the important purpose which it served, but also because the consequence of the failure would have been to leave the decision on whether Australia should comply with its international obligations in the hands of the individual States as well as the Commonwealth, for the Commonwealth would then lack sufficient legislative power to fully implement the treaty. The ramifications of such a fragmentation of the decision-making process as it affects the assumption and implementation by Australia of its international obligations are altogether too disturbing to contemplate. Such a division of responsibility between the Commonwealth and each of the States would have been a certain recipe for indecision and confusion, seriously weakening Australia's stance and standing in international affairs. Fortunately, the approach in Burgess has since been confirmed by R v Poole ; Ex parte Henry (No 2 ) (1939) 61 CLR 634; Airlines of NSW Pty Ltd v New South Wales (No 2 ) (1965) 113 CLR 54, and the Seas & Submerged Lands case , supra.
The exercise of the power is of course subject to the express and to the implied prohibitions to be found in the Constitution. The Commonwealth could not, in legislating to give effect to a treaty, evade the Constitutional prohibitions contained in ss 92, 113 and 116. Nor, to take an example posed in argument, could it amend the Constitution otherwise than by the means provided for in s 128; it certainly could not do so by the expedient of assuming a treaty obligation to amend the Constitution and then attempting to legislate directly without resort to s 128 so as to give effect to that treaty obligation. Likewise the exercise of the power is subject to the implied general limitation affecting all the legislative powers conferred by s 51 that the Commonwealth cannot legislate so as to discriminate against the States or inhibit or impair their continued existence or their capacity to function ( Victoria v Commonwealth (1971) 122 CLR 353 at 372, 374-5, 388-91, 403, 411-2, 424).
But the States which challenge the validity of the Act go further and say that the external affairs power is necessarily subject to the special limitation that it will not support legislation which is exclusively domestic in its operation. First, it is emphasized that the subject of the power is external affairs. This, it is said, means that the Constitution distinguishes between internal and external affairs. Suggested conclusion: internal affairs lie outside the scope of the power. Invoked in support of this argument were the comments of Dixon CJ in Wragg v State of New South Wales (1953) 88 CLR 353 at 385-6, where he spoke of the distinction "between interstate trade and the domestic trade of a State for the purpose of the power conferred upon the Parliament by s 51(i)" and described it as "a distinction adopted by the Constitution". It is not a distinction explicitly made by the Constitution and his Honour did not mean to imply by this comment that the Commonwealth could not legislate so as to affect intra-state trade. Earlier in Burgess itself he had rightly acknowledged (at 671) that "the domestic commerce of a State can be affected" though "only to the extent necessary to make effectual its exercise [ie of the power] in relation to commerce among the States".
The Constitution does not draw any distinction between external affairs and internal affairs so as to give power over the former but deny all power over the latter. The true position, in accordance with received doctrine, is that a law, which according to its correct characterization is on a permitted topic, does not cease to be valid because it also happens to operate on a topic which stands outside power. The critical question is whether in the present case the law is with respect to external affairs, not whether it is with respect to internal affairs.
The fallacy in the argument is compounded by the assumption on which it proceeds -- that affairs are either internal or external in the sense that the two categories are mutually exclusive. The assumption is false. An affair will very often have characteristics which endow it with both internal and external qualities. Burgess provides us with an instructive example. Australia's entry into the Paris Convention, an act affecting our relationships with other countries, was an external affair. But the question whether Australia should enter the Convention, a matter of domestic concern and consequence, was also an internal affair. Likewise, the implementation of the Convention by legislation was both an external and an internal affair -- external because it related to the treaty and carried it into effect, internal because the legislation was domestic, operating substantially, though not entirely, within Australia. So it was that the law was with respect to external affairs, even though the operation of many of its provisions was inside, rather than outside, Australia. Again in R v Sharkey (1949) 79 CLR 121 the validity of paras (c) and (e) of s 24 A (1) of the Crimes Act 1914-1946 (Cth) was upheld as an exercise of power under s 51(xxix), notwithstanding that their operation was within Australia.
The same restriction on the power, it is argued, is dictated by the nature of the federal compact and the distribution of powers effected by the Constitution. To concede to the Commonwealth a capacity to enter into treaties by which it undertakes to enact domestic legislation of its own choosing and a legislative power to give effect to that undertaking would enable the Commonwealth by this means to legislate on any topic, no matter that it stands outside the specific powers conferred on the Commonwealth by the Constitution. The argument has several flaws. It is perhaps going too far to say that it rests on the underlying assumption that various fields of legislative activity, racial discrimination being the relevant example, inalienably belong to the States for the reason that specific power over the topic is not given to the Commonwealth. After all the doctrine of reserved powers was decisively rejected in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, (the Engineers' case) though in recent cases it seems to have re-emerged in different guises. The rejection of the doctrine was a fundamental and decisive even in the evolution of this court's interpretation of the Constitution and in the later cases the correctness of the rejection has never been doubted. The consequence is that it is quite illegitimate to approach any question of interpretation of Commonwealth power on the footing that an expansive construction should be rejected because it will effectively deprive the States of a power which has hitherto been exercised or could be exercised by them.
Indeed, the converse approach is the correct one. As we have seen, the legislative powers granted to the Commonwealth should be construed liberally, not pedantically. Indeed, O'Connor J in Jumbunna Coal Mine (No Liability) v Victorian Coal Miners' Association (1908) 6 CLR 309 said (at 368): "... where the question is whether the Constitution has used an expression in the wider or the narrower sense, the court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose." This passage was quoted with approval by Dixon J in Bank of NSW v Commonwealth (1948) 76 CLR 1 at 332.
The suggestion is that exercise of the power according to its broad interpretation could ultimately lead to a situation in which the Commonwealth, by virtue of its being a party to many treaties calling for the enactment of domestic legislation on a variety of topics, would occupy many fields of legislative activity hitherto considered to be the preserve of the States, fields not specifically committed to the Commonwealth. This, it is urged, would disturb the balance of powers achieved by the Constitution. However, a realistic and objective view of the balance of powers between the Commonwealth and the States must recognize that one very important element in that balance is the committal of the external affairs power to the Commonwealth. The inclusion of "external affairs" in s 51 reflected a policy decision that a wide and general power over the subject should be reposed in the federal legislature and executive, in preference to leaving any part of the responsibility for the subject with the States.
Doubtless the framers of the Constitution did not foresee accurately the extent of the expansion in international and regional co-operation which has occurred since 1900. Extradition and the repatriation of fugitive offenders and customs and tariff agreements probably represented the type of treaties which were then thought to call for domestic legislation by way of implementation. It is that expansion, rather than any change in the meaning of "external affairs" as a concept, that promises to give the Commonwealth an entree into new legislative fields. This circumstance provides no ground for giving s 51(xxix) a restrictive construction. On the contrary, it is a reason for insisting on a liberal construction. As Dixon J observed in Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 at 81: "... it is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances."
There is no reason at all for thinking that the legislative power conferred by s 51(xxix) was intended to be less than appropriate and adequate to enable the Commonwealth to discharge Australia's responsibilities in international and regional affairs. It is unrealistic to suggest in the light of our knowledge and experience of Commonwealth-State co-operation and of co-operation between the States that the discharge of Australia's international obligations by legislation can be safely and sensibly left to the States acting uniformly in co-operation. As the object of conferring the power was to equip the Commonwealth with comprehensive capacity to legislate with respect to external affairs, it is not to the point to say that such is the scope of external affairs in today's world that the content of the power given to the Commonwealth is greater than it was thought to be in 1900.
The consequence of the expansion in external affairs is that in some instances the Commonwealth now legislates on matters not formerly within the scope of its specific powers, to the detriment of the exercise of State powers. But in the light of current experience there is little, if anything, to indicate that there is a likelihood of a substantial disturbance of the balance of powers as distributed by the Constitution. To the extent that there is such a disturbance, then it is a necessary disturbance, one essential to Australia's participation in world affairs.
It might be argued that, if the external affairs power was relevantly limited to the implementation of treaties from which Australia stands to derive a discernible benefit, the balance of powers would receive some protection without inhibiting Australia's capacity to participate in world affairs. This solution would require the court to review the judgment of the executive and the Parliament that entry into a treaty and its implementation was for Australia's benefit, a course bristling with problems for the court. And I do not accept the suggestion that Australia's capacity to participate in world affairs would not be seriously inhibited. Increasing emphasis is given in the United Nations and in regional organizations to the pursuit by international treaties of idealistic and humanitarian goals. It is important that the Commonwealth should retain its full capacity through the external affairs power to represent Australia, to commit it to participation in these developments when appropriate and to give effect to obligations thereby undertaken.
Nor is there a solid foundation for implying a restriction that the treaty must relate to a matter which is international in character or of international concern, if the suggested restriction is intended to convey more than that the treaty is a genuine treaty. It is difficult to perceive why a genuine treaty, especially when it is multi-lateral and brought into existence under the auspices of the United Nations or an international agency, does not in itself relate to a matter of international concern and is not in itself an external affair. It is scarcely sensible to say that when Australia and other nations enter into a treaty the subject matter of the treaty is not a matter of international concern -- obviously it is a matter of concern to all the parties. Take, for example, the vexed question of human rights. Though it is a matter to be accorded or denied by each nation domestically, it has become increasingly a matter of international concern and agreement by means of international and regional conventions. To say of an international Human Rights convention that it is not international in character is to say that it relates to domestic conduct within each nation and that one nation does not benefit from the observance by others within their boudaries of their obligations under the Convention -- a matter which I should have thought was very much open to debate. If this be the basis of the distinction in the subject matter of treaties between that which is international in character and that which is not, it is somewhat elusive and by no means convincing.
One knows, or can readily imagine, treaties on topics of international concern by which the parties agree to enact domestic legislation to attain a common object, whether it be to suppress a noxious traffic or trade, to eliminate an infectious or contagious disease, or to limit production of a commodity or of goods in order to stabilize and share markets. The subject matter of such treaties is, despite the argument of the Solicitor-General for Victoria to the contrary, international in character -- there is agreement by the parties to take common action in pursuit of a common international objective, each party standing to gain a benefit from its attainment. What then of a treaty by which the parties agree to take domestic action to prohibit practices now recognized universally or generally to be abhorrent, eg slavery, piracy, racial oppression and racial discrimination? It may be said that, with the noxious traffic or trade and infectious or contagious disease, its existence in one nation presents an obvious risk of its introduction into another, and that this risk gives an international character to a treaty providing for the suppression of the traffic or trade and the elimination of the disease. But it is otherwise with the treaty which requires the parties to limit domestic production or to eliminate some forms of past abhorrent human conduct, eg slavery. However, there are strong grounds for thinking that the practice of racial oppression and racial discrimination in one nation often leads to similar conduct by way of reaction or to reprisal in another nation or to countervailing violence, revolution and insurgency constituting a disturbance of international peace and security. Accordingly, every nation stands to benefit from the elimination of activity which may contribute to the disturbance of international peace and security.
The differences in these situations do not seem to me to be important in deciding whether the external affairs power enables the Commonwealth Parliament to implement a treaty, at least in the case of a multi-lateral treaty brought into existence under the auspices of the United Nations or another international agency. Agreement by nations to take common action in pursuit of a common objective evidences the existence of international concern and gives the subject matter of the treaty a character which is international. I speak of course of a treaty which is genuine and not of a colourable treaty, if that can be imagined, into which Australia has entered solely for the purpose of attracting to the Commonwealth Parliament the exercise of a legislative power over a subject matter not specifically committed to it by the Constitution.
It is convenient now to look to Burgess , for the judgments in that case, apart from that of Dixon J, support (Latham CJ, Evatt and McTiernan JJ) or are consistent with (Starke J) the plenary view of the power which I favour. Latham CJ, Evatt and McTiernan JJ considered that it was an independent power which, subject to the Constitution, extends to the legislative implementation of Australia's obligations under treaties to which it is a party. Latham CJ rejected the suggestion that a distinction should be drawn between international and domestic affairs (55 CLR at 640), commenting that it is "impossible to say a priori that any subject is necessarily such that it could never properly be dealt with by international agreement" (at 641). The only relevant limitations on the power were that it could not be exercised so as to indirectly amend the Constitution and that it is subject to the prohibitions contained in the Constitution (at 642). Evatt and McTiernan JJ were of the same view, saying (at 681) that "... it is no longer possible to assert that there is any subject matter which must necessarily be excluded from the list of possible subjects of international negotiation, international dispute or international agreement." Their Honours' rejection of the notion that the power does not authorize legislation which operates exclusively or substantially within Australia and its Territories is instanced by their reference (at 681) to such subject matters as "air navigation, the manufacture of munitions, the suppression of the drug traffic and standard hours of work in industry". These matters, they conceded, are not specifically entrusted to the Commonwealth. Nevertheless, they can properly be made the subject of international convention binding on Australia (at 681-4) whereupon the legislative power under s 51(xxix) enables the Parliament to implement the convention because so to do is to legislate with respect to "external affairs" (at 687-8).
It is by no means clear to me that Starke J took a more restricted view of the power. Certainly he thought that it was subject to the express and implied limitations in the Constitution (at 658). But he considered that all means "... which are appropriate, and are adopted [ sic : 'adapted'] to the enforcement of the convention and are not prohibited, or are not repugnant to or inconsistent with it, are within the power. The power must be construed liberally, and much must necessarily be left to the discretion of the contracting States in framing legislation, or otherwise giving effect to the convention" (at 659-60). He reserved the question whether its exercise in relation to a treaty was confined to a treaty of a matter "of sufficient international significance to make it a legitimate subject for international co-operation and agreement" (at 658), a limitation suggested by Willoughby, The Constitutional Law of the United States (2nd ed, 1929) vol 1, p 519 on the power of Congress. However, his Honour accepted Missouri v Holland (the Migratory Birds case ) (1920) 252 US 416, the application of which would give the power a wide scope.
Dixon J was more cautious in the operation that he conceded to the power, observing (at 669): "If a treaty were made which bound the Commonwealth in reference to some matter indisputably international in character, a law might be made to secure observance of its obligations if they were of a nature affecting the conduct of Australian citizens. On the other hand, it seems an extreme view that merely because the Executive Government undertakes with some other country that the conduct of persons in Australia shall be regulated in a particular way, the legislature thereby obtains a power to enact that regulation although it relates to a matter of internal concern which, apart from the obligation undertaken by the Executive, could not be considered as a matter of external affairs." The significance of what his Honour said depends upon the meaning to be given to the nebulous expression "international in character" and what his Honour had in mind when he spoke of "a matter of internal concern which ... could not be considered as a matter of external affairs".
Some clue is provided by the contrast between "some matter ... international in character" and "a matter of internal concern" only and by his Honour's statement of reasons for concluding that the power extended to the implementation of the Convention. He noted that in international law the question how far sovereignty extends upwards was "one of practical importance in need of settlement by a convention among the nations" (at 670). There was a question as to the terms and conditions on which each nation would allow the nationals of other nations to use its air space. According to his Honour these matters constitute "international affairs" and the provisions of the Convention were "all relevant to the solution" of the questions which arose (at 670). In these circumstances it could not be said that the Convention dealt with matters of "internal concern" only.
In Poole Evatt J (61 CLR at 654-5) stated that there was no difference in Burgess between the members of the court other than Starke J as to the test to be applied in deciding whether legislation implementing the Convention is within power. Broadly speaking, the test which they favoured was whether in substance the legislation carries out or gives effect to the Convention. This is the language of Latham CJ (at 646). However, it seems to me that the Chief Justice was merely reflecting the language of the regulation-making power contained in s 4 of the Air Navigation Act 1920 (Cth), and I have some doubt whether his Honour was intending by the use of these words to express his view of the limits of the constitutional power in its application to treaties (see at 638). For my part I prefer the statement made by Starke J in Burgess (at 660) which I have already quoted. I note that it was quoted by Menzies J with evident approval in Airlines (No 2 ) (at 141).
The judgments in the subsequent decisions of this court in Ffrost v Stevenson (1937) 58 CLR 528 and Sharkey do not throw new light on the question which we have to decide. The issue which arose in Airlines (No 2 ) did not require the court to make a choice between the views which had been offered in Burgess , though Barwick CJ thought, as I do, that the power is subject to implied, as well as express, constitutional prohibitions (113 CLR at 85). Likewise the decision in the Seas & Submerged Lands case does not touch the present case, though it is important to note that Murphy J in that case endorsed the wide view of the power (135 CLR at 503-4).
I should not wish it to be thought from what I have said that the existence of a treaty is an essential pre-requisite to the exercise of the power. That is certainly not my view. Sharkey decided that the power extends to the preservation of friendly relations with any of the Dominions. And there is no reason to distinguish friendly relations with the Dominions from friendly relations with other countries. Moreover, as Professor Zines points out in The High Court and the Constitution (1981) at 230, "the reasoning in Burgess's case and Airlines (No 2 ) would support an Australian law giving effect to an obligation arising under rules of customary international law". Further, it seems to me that a matter which is of external concern to Australia having become the topic of international debate, discussion and negotiation constitutes an external affair before Australia enters into a treaty relating to it.
Application of the External Affairs Power to the Convention
On the broad view which I take of the power it extends to the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. It is an international treaty to which Australia is a party which binds Australia in common with other nations to enact domestic legislation in pursuit of the common objective of the elimination of all forms of racial discrimination.
But I would go further and say that, even on the more cautious expression of the scope of the power by Dixon J in Burgess , it would extend to the implementation of this convention. The recitals to the Convention reveal in an illuminating way the various elements which have led the parties to the Convention to co-operate in an endeavour to eliminate racial discrimination. They show that racial discrimination is considered to be inconsistent with the ideals on which the Charter of the United Nations is based and with the principles enshrined in the Universal Declaration of Human Rights and that it is the target of the United Nations Declaration on the Elimination of All Forms of Racial Discrimination. They contain a reaffirmation: "... that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State ...." The recitals go on to express concern that racial discrimination is still in evidence in some areas of the world and that governmental policies are in some instances based on racial superiority or hatred, eg apartheid, segregation or separation. They acknowledge that the parties, having resolved to adopt all necessary measures to eliminate racial discrimination and to prevent and combat racist doctrines and practices, desired to implement the principles in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination. The point of all this, so it seems to me, is that the community of nations, or at least a very large number of them, are vigorously opposed to racial discrimination, not only on idealistic and humanitariam grounds, but also because racial discrimination is generally considered to be inimical to friendly and peaceful relations among nations and is a threat to peace and security among peoples.
In addition to the materials referred to in the recitals to the Convention there are the developments in international law to which Stephen J has referred in his judgment, commencing with the provisions of the Charter of the United Nations. These developments, taken together with the materials already referred to, establish beyond any doubt that there are solid and substantial grounds for the widespread international opposition to all forms of racial discrimination and that its elimination is a desirable, if not an essential, step for the maintenance of international peace and security.
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.
It is conceded that, if the external affairs power extends to the Convention, the relevant provisions of the Act, ss 9 and 12, give effect to its provisions. I therefore conclude that the two sections are valid.
In the Koowarta action it is the validity of these sections that is in issue. The State of Queensland in its action seeks a declaration that the whole Act is invalid. However, argument was limited to the validity of the two sections on the footing that at this stage there is no dispute presently in existence which calls for a determination of the validity of the other sections of the Act. The court should in the exercise of its discretion decline to consider the grant of declaratory relief in relation to the remainder of the Act in the Queensland action.
Locus Standi
By virtue of s 24(1) "A person aggrieved by an act that he considers to have been unlawful by reason of a provision of Part II" may sue for damages under s 25(d). It is submitted that Mr Koowarta is not a person aggrieved because his case as pleaded does not come within ss 9 or 12. I do not agree, for I consider that his case comes within s 12.
The alleged refusal by the Queensland Cabinet and the second defendant, the Minister for Lands, to consent to the transfer of the Archer River Pastoral Holding lease to the Aboriginal Land Fund Commission, a body corporate constituted by the Aboriginal Land Fund Act 1974 (Cth), seems to me to be a breach of s 12(1)(a), (c) or (d) of the Act, provided that the reference to the "second person" in the sub-section includes a corporation. By virtue of s 22(a) of the Acts Interpretation Act 1901 (Cth) a reference in a statute to a "Person" includes a reference to a body corporate, unless a contrary intention appears. It is submitted that because, generally speaking, human rights are accorded to individuals, not to corporations, "person" should be confined to individuals. But, the object of the Convention being to eliminate all forms of racial discrimination and the purpose of s 12 being to prohibit acts involving racial discrimination, there is a strong reason for giving the word its statutory sense so that the section applies to discrimination against a corporation by reason of the race, colour or national or ethnic origin of any associate of that corporation. It is also submitted that the reference in the concluding words to "any relative or associate of that second person" is inappropriate to a corporation. Certainly that is so of "relative", but a corporation may have an "associate". The concluding words are therefore quite consistent with the "second person" denoting a corporation as well as an individual.
On the pleading Mr Koowarta has locus standi to bring the action under s 12. I do not find it necessary to consider the question of locus standi under s 9. It is enough that Mr Koowarta has locus standi to bring the action.
In the result in Mr Koowarta's action I would overrule the demurrer. I would dismiss the action by the State of Queensland.