Koowarta v Bjelke-Petersen and Others
153 CLR 168(Judgment by: Stephen J)
Koowarta
vBjelke-Petersen and Others
Judges:
Gibbs CJ
Stephen JMason J
Murphy 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:
Stephen J
The Constitution confers upon the Parliament of the Commonwealth power to make laws for the peace, order and good government of the Commonwealth with respect to "The people of any race for whom it is deemed necessary to make special laws" -- s 51(26) and with respect to "External affairs" -- s 51(29). These actions raise for decision the content of these two grants of legislative power. They do so by reference to challenges to the validity of Commonwealth legislation, the Racial Discrimination Act 1975.
In Koowarta v Bjelke-Petersen the plaintiff alleges breaches of the Racial Discrimination Act, claiming to be a person aggrieved under that Act and accordingly entitled to seek in his action the several remedies claimed in his statement of claim. The defendants by their defence and demurrer challenge the validity of the Act as well as denying that the plaintiff is a person aggrieved or has any locus standi to sue. In State of Queensland v Commonwealth of Australia the plaintiff State challenges the validity of many provisions of the Racial Discrimination Act and seeks a declaration of the invalidity of the Act as a whole or of a certain of its provisions.
Since I have concluded that in Mr Koowarta's action he does have standing to sue, I turn immediately to the constitutional questions, deferring for the moment my reasons for according him locus standi . An appreciation of the constitutional questions is aided by some indication of the circumstances in which Mr Koowarta's action arises. It is common ground that in 1975 the Aboriginal Land Fund Commission, a body corporate under Commonwealth legislation, contracted to buy a Crown leasehold pastoral property in northern Queensland; that it was a term of the Contract and a consequence of the Land Act 1962 of Queensland that transfer of the Crown lease would require the permission of the State's Minister for Lands; that consent to that transfer was sought from but was refused by the Minister; and that a reason for his refusal was that the settled policy of the Queensland Government was to view unfavourably proposals to acquire "large areas of additional freehold or leasehold land for development by Aborigines or Aboriginal groups in isolation".
The Minister's refusal to consent to the transfer of this Crown leasehold led to Mr Koowarta's action, in which he alleges that that refusal constituted a breach of provisions of the Racial Discrimination Act. Although the proposed transferee was the Commission, not Mr Koowarta, it seems that it was he who was active in procuring the Commission to arrange for its purchase and that he did so so that, together with other Aborigines, he might have the use of the property for pastoral purposes once it was acquired by the Commission. This aspect will require closer examination when Mr Koowarta's standing to sue comes to be examined.
The Parliament, in enacting the Racial Discrimination Act, prefaced the terms of the enactment itself by the following recitals:--
Whereas a Convention entitled the 'International Convention on the Elimination of all Forms of Racial Discrimination' (being the Convention a copy of the English text of which is set out in the Schedule) was opened for signature on 21 December 1965:
And whereas the Convention entered into force on 2 January 1969:
And whereas it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention.
It is, then, primarily, upon the grants of legislative power expressly referred to in the third recital, those contained in paras (26), (27) and (29) of s 51 of the Constitution, that the Act relies. However, those provisions of the Act which are supported by s 51(27), the immigration and emigration power, are not presently in issue; it is exclusively with paras (26) and (29) of s 51 that this judgment will deal.
I turn first to para (26) of s 51. The terms in which this grant of power is expressed are unusual. The content of the laws which may be made under it are left very much at large; they may be benevolent or repressive; they may be directed to any aspect of human activity; so long as they are with respect to the people of a race such as is described in para (26) they will be within power. Most grants of power in s 51 are defined in terms either of some class of activity, as with "trade and commerce with other countries" and "astronomical and meteorological observations", some common governmental power or function, as with "taxation", and "census and statistics", or some class of physical object, such as "lighthouses, lightships, beacons and buoys". In all such cases the subject-matter of the grant of power is more or less apparent and identifiable on its face. However, a grant of legislative power defined only by reference to a particular class of persons for whom laws may be made under it is inherently less precise as to its permitted subject-matter; and when, as in para (26), the class is no more specific than "the people of any race", the class depending for further identification upon the legislature deeming it to be necessary to make special laws for its members, the content of the power is determined by one sole criterion, that laws which may be made under it must be special laws deemed necessary for the people of any race.
Because the reference to "the people of any race" is qualified by the requirement that they should be such that it is deemed necessary to make special laws for them, they must possess some quality which calls for laws special to themselves. This requirement is more than a mere qualification of the power; it also predicates a character which laws made under para (26) must possess: they must be special laws, in the sense of having some special connexion with people of any race. It is true that the grant of power is not in terms confined to the making of special laws, but from the description of the laws which may be made under it -- laws for those people of any race deemed in need of special laws, it follows that it is special laws and only special laws which fall within para (26). It cannot be that the grant becomes plenary and unrestricted once a need for special laws is deemed to exist; that need will not open the door to the enactment of other than special laws.
Although it is people of "any" race that are referred to, I regard the reference to special laws as confining what may be enacted under this paragraph to laws which are of their nature special to the people of a particular race. It must be because of their special needs or because of the special threat or problem which they present that the necessity for the law arises; without this particular necessity as the occasion for the law, it will not be a special law such as s 51(26) speaks of. No doubt it may happen that two or more races will share particular problems within the Australian community and that this will make necessary the enactment of one law applying equally to those several races; such a law will not necessarily forfeit the character of a law under para (26) because it legislates for several races. A law will, however, not possess that character if it legislates for all peoples of the Commonwealth, regardless of race, who happen to be confronted with or to present particular problems deemed to call for legislative action. Nor will a law attain that character merely because the problem with which it deals is one of discrimination on the ground of race; it will not be enough that the law is one about race, the coincidence that its subject-matter happens to match one of the words in para (26) will not of itself bring it within power.
To be within power under para (26) a law must be special in the sense that it is the particular race, or races, for whom it legislates that gives rise to the occasion for its enactment. The Racial Discrimination Act is not such a law. True, it legislates about race and proscribes discrimination upon the basis of race. But it is a perfectly general law, addressed to all persons regardless of their race and requiring that the members of all races shall be free from discrimination on account of race. It protects no particular race or races. As its recitals attest, its purpose is to give effect to the International Convention, a copy of which is scheduled to the Act. That Convention, in its opening recitals, stresses the promotion of universal respect for human rights and fundamental freedoms for all without distinction; universality of application lies very much at its heart. The Act takes from the Convention this quality, thereby denying to it the character of a special law to which para (26) refers.
The fact that in current Australian conditions the dominant Anglo-Saxon and Celtic races (if indeed to employ such description conveys any sufficiently certain meaning) are in fact very much less likely to require protection against racial discrimination than are other races does not, in my view, suffice to make the Act one special to all those other races. Were it possible to say that in this community only Aborigines faced the possibility of racial discrimination, and anti-discrimination law expressed in general terms might perhaps be seen to be no less a special law within para (26) than would a law expressly confined to the prohibition of discrimination against Aborigines. The necessary special quality might perhaps be sufficiently attracted by facts dehors the legislation. Be that as it may, such an argument does not seem to me to be open in the present case.
It is for these reasons that I regard the Racial Discrimination Act as beyond the subject-matter of the grant of power in s 51(26).
The second relevant grant of power, the "External affairs" power conferred by s 51(29), on its face suggests no particular obscurity of meaning. Because the composite phrase "External affairs" occurs as a grant of legislative power in a constitution for a nation, the meaning to be given to "affairs" must be one apt to apply to a national government. One of the meanings of "affairs" supplied by the Oxford English Dictionary , "public business, transactions or matters concerning men or nations collectively", conveys that sense. The word "External" must in this constitutional context qualify "affairs" so as to restrict its meaning to such of the public business of the national government as relates to other nations or other things or circumstances outside Australia. It is legislation for the peace, order and good government of the Commonwealth with respect to such a subject-matter that the words of para (29) appear to envisage.
This is just such a grant of legislative power as might be anticipated in the constitution of a modern nation state. Even a nation occupying an entire island continent cannot be "an island entire of it self", it will perforce have relations with foreign nations overseas, its foreign affairs; because newly formed from self-governing colonies it will also have relations with the old imperial power and with that power's other colonies, relations which, while scarcely answering the description of "foreign affairs", will certainly be "external affairs", a phrase which, because it also extends to Australia's truly foreign affairs, conveniently subsumes both categories of the nation's overseas affairs. Accordingly it is natural enough to find such a power, expressed in these terms, among the enumerated powers in s 51. Indeed it would be anomalous had such a legislative power been omitted from s 51 when at the same time there existed a quite distinct treaty-making power. That latter power was for some years after Federation regarded as possessed by the Imperial Crown but has subsequently been treated as exercisable by the Governor-General pursuant to s 61 of the Constitution: see generally Zines, Commentaries on the Australian Constitution (1977) ch 1. Its exercise generally speaking leaves unaffected the state of Australian municipal law. Early drafts of covering cl 5 of the Constitution Act, apparently taking Article VI of the United States Constitution as their model, contemplated that treaties made by the Commonwealth should become law of the land (see Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) pp 345-6) but the Constitution as finally adopted attempted no such departure from settled common law doctrine; the exercise of treaty-making power was not to create municipal law. For that legislative action would be required. The existence of para (29) avoids the anomaly which would otherwise exist had the presence of this bare treaty-making power been left without any matching legislative power to enact municipal law giving domestic effect to treaty rights and obligations.
What I have described as the natural contextual meaning of para (29) includes, although it extends rather further than, what may be called the highest common factor to be deduced from the judgments in this court concerning the meaning of the paragraph: namely, a power to implement by legislation within Australia such treaties, on matters international in character and hence legitimately the subject of agreement between nations, as Australia may become party to. This minimal meaning, upon which all would agree, may be deduced from the following passages from four of the leading authorities in this court: R v Burgess ; Ex parte Henry (1936) 55 CLR 608 at 644, 658, 669 and 687; Ffrost v Stevenson (1937) 58 CLR 528 at 596-7; Airlines of New South Wales Pty Ltd v New South Wales (No 2 ) (1965) 113 CLR 54 at 85, 126, 136 and 152; New South Wales v Commonwealth (1975) 135 CLR 337 and 360, 377-8, 390, 450, 470 and 503 ; 8 ALR 1.
A number of these judgments adopt a considerably wider view of para (29). With much of this debatable additional width of operation the instant cases have no concern. The real issue in these cases is confined to the question whether this power to implement treaty obligations is subject to any and if so what overriding qualifications derived from the federal nature of our Constitution. It is such qualifications which, in my statement of a highest common factor, have led to the introduction of the phrases "matters international in character" and "legitimately the subject of agreement between nations".
The need for such qualifications is said to arise in this way. Whereas, read in isolation, para (29) would seem to authorize legislation to give effect municipally to each and every international obligation which Australia may incur, yet Australia is a federation possessing a constitution which assigns carefully limited legislative power to the federal legislature, leaving the undefined residue of legislative competence to the States. The power of the federal executive to conclude treaties upon any subject-matter it sees fit is undoubted. If it can thereby at will create such "external affairs" as it wishes and if para (29) then confers power upon the federal legislature to legislate with respect to whatever external affair has thus been brought into being, this may place in jeopardy the federal character of our polity, the residuary legislative competence of the States being under threat of erosion and final extinction as a result of federal exercise of the power which para (29) confers.
The authorities have made quite clear two things about the limits of the "external affairs" power. First, the few express restrictions upon legislative power which appear in the Constitution restrict the ambit of the power conferred by para (29); like all other paragraphs of s 51, para (29) is expressed to be "subject to this Constitution" and its grant of power must be read as subject to the restraints upon legislative power imposed: for example, by ss 92, 99, 114, 116 and 117 of the Constitution. Secondly, the grant of power conferred by para (29) is plenary in the sense that it is not to be restricted by reference to the limited legislative competence conferred by the other paragraphs of s 51. What however remains unclear is the extent to which the federal nature of the Constitution requires that limits be imposed upon the broad power to implement international obligations seemingly conferred by para (29), thus ensuring that exercise of that power will not destroy the federal character of the polity.
Suggestions that there are some such limits to the power recur in the cases, although their precise nature is not very clearly defined. In Burgess Starke J suggests (at 658) that the external affair may have to be "of sufficient international significance to make it a legitimate subject for international co-operation and agreement", citing United States writings for that proposition. Dixon J (at 669) would apparently confine the power to the implementing of treaties which relate to "some matter indisputably international in character". On the other hand in that case Latham CJ (at 644) and Evatt and McTiernan JJ (at 687) recognized no such qualification. In Ffrost v Stevenson , Evatt J was emphatic that para (29) conferred "a great and independent power" (at 601) extending to any obligations which Australia might have "bona fide entered into as an international person" (at 599). However, in the Airlines case Barwick CJ said (at 85) that "the mere fact that the Commonwealth has subscribed to some international document does not necessarily attract any power to the Commonwealth Parliament" (but cf Windeyer J at 152). Again in New South Wales v Commonwealth , Barwick CJ may be thought to have adhered to his earlier qualification of the power (see 135 CLR at 360) and Gibbs J (at 390) repeated the phrase of Dixon CJ in Burgess , confining the power to matters "indisputably international in character", a qualification also noticed by Mason J, although in slightly altered language (at 470). On the other hand McTiernan J (at 377-8) and Murphy J (at 503) appear to favour an unqualified view of the power.
This concern about the ambit of the power to implement treaties municipally and the differences of view to which the subject has given rise in this court are not unique either to this court or to this Constitution; the fear lest the central government in a federation, by the exercise of its treaty powers, destroy the realities of the federal policy is widespread. Oliver, speaking generally of federations in "The Enforcement of Treaties by a Federal State" (1974) 141 Recueil des Cours 333, expresses it in this way (at 350): "A constitution would cease to be federal if the central government, without consultation with the states, could enter into any treaty and by so doing increase the legislative powers of the central government at the expense of the state legislatures. If the treaty power can cut across all reserved powers and interdict the powers of the member states, then there are no real powers reserved to the internal sovereignties", and see J A Thomson, "A United States Guide to Constitutional Limitations upon Treaties as a Source of Australian Municipal Law", Pt 2 (1977) 13 UWAL Rev 153 at 177 and 189. Whenever in any federation the division of legislative power between central and regional governments encounters the customary treaty-making competence of the central government such problems are likely to arise.
Features of our Constitution's unique blend of Westminster system and federalism give to the Australian problem an added dimension. Following British precedent the federal executive, through the Crown's representative, possesses exclusive and unfettered treaty-making power and the Senate, notionally at least the States' House, plays no part in the process, as it might have been expected to do had principles of federalism prevailed in this area. Yet, unless s 51(29) be given a wide interpretation, domestic enforcement of treaty obligations may rest at least in part with the State legislatures. Again, although the federal executive will, consistently with principles of responsible government, be in effective control of the legislative process in the House of Representatives, it may lack a majority in the Senate, so that even on a wide view of the power conferred by s 51(29), the federal executive, although armed with the treaty-making power, cannot always ensure implementation of treaty obligations.
In Foreign Affairs and the Constitution (1972) Louis Henkin describes, in terms which in many respects recall arguments familiar in Australian constitutional debate, the long American history of constitutional conflict regarding the treaty power and its ultimate resolution. He says (at 140-1) that: "From our constitutional beginnings ... there have been assertions that the Treaty Power was limited by implications in the character of treaties and of the Treaty Power, in other provisions of the Constitution, in the Constitution as a whole, in the philosophy that permeates it and the institutions it established -- notably in ... the division of authority between that government (the federal government) and the States." The curious Canadian constitutional experience in this area, as well as the experience of West Germany, Switzerland and India, is recounted by Wildhaber, Treaty-Making Power and Constitution (1971); by Bernier, International Legal Aspects of Federalism (1973), and in Oliver's article mentioned above. K C Wheare in Federal Government (4th ed, 1963) has remarked that "federalism and a spirited foreign policy go ill together" and these authors' accounts on the conflict between a federal division of legislative competence and the assumption by the central government of international rights and obligations go far to explain why this should be so.
So long as treaties departed little from their early nature as compacts between princes, having no concern with domestic affairs, the conflict was muted; but in this century international conventions have come to assume a more extensive role. They prescribe standards of conduct for both governments and individuals having wide application domestically in areas of primarily regional concern, the very areas which, in federations, have tended to be entrusted to the legislative competence of the regional units of governments. this has necessarily exacerbated the problem which federations encounter in the implementation of international treaties while emphasizing the need for regional units in federations to recognize the legitimacy of national governments' increased concern regarding domestic observance of internationally agreed norms of conduct.
I have already referred to one clear limitation upon the ambit of the Commonwealth's external affairs power, that which arises from the words "subject to this Constitution" in the opening words of s 51. There no doubt also exist limitations to be implied from the federal nature of the Constitution and which will serve to protect the structural integrity of the State components of the federal framework, State legislatures and State executives: Melbourne Corporation v Commonwealth (1947) 74 CLR 31. It is when one ventures into further possible reaches of implied restrictions that real controversy exists. Henkin, in Foreign Affairs and the Constitution , rehearses the various arguments in support of other limitations which, over time, have been sought, largely unsuccessfully, to be placed upon the treaty power in the United States. Two of these recur in some judgments in this court: that to fall within power, treaties must be bona fide agreements between states and not instances of a foreign government lending itself as an accommodation party so as to bring a particular subject-matter within the other party's treaty power; and that to fall within power a treaty must deal with a matter of international rather than merely domestic concern.
Limitations such as these accord better with the terms of our Constitution than with that of the United States, where the power is with respect not to "external affairs" but to treaties. For courts to deny legitimacy, under a power to make foreign treaties, to what is in form a treaty and no sham presents very real difficulties. But where the grant of power is with respect to "external affairs" an examination of subject-matter, circumstance and parties will be relevant whenever a purported exercise of such power is challenged. It will not be enough that the challenged law gives effect to treaty obligations. A treaty with another country, whether or not the result of a collusive arrangement, which is on a topic neither of especial concern to the relationship between Australia and that other country nor of general international concern will not be likely to survive that scrutiny.
The great post-war expansion of the areas properly the subject-matter of international agreement has, as Henkin points out and as J A Thomson emphasizes in his article (at 164-6) made it difficult indeed to identify subject-matters which are of their nature not of international but of only domestic concern: see also Howard, Australian Federal Constitutional Law (2nd ed, 1972) at 445-6. But this does no more than reflect the increasing awareness of the nations of the world that the state of society in other countries is very relevant to the state of their own society. Thus areas of what are of purely domestic concern are steadily contracting and those of international concern are ever expanding. Nevertheless the quality of being of international concern remains, no less than ever, a valid criterion of whether a particular subject-matter forms part of a nation's "external affairs". A subject-matter of international concern necessarily possesses the capacity to affect a country's relations with other nations and this quality is itself enough to make a subject-matter a part of a nation's "external affairs". And this being so, any attack upon validity, either in what must be the very exceptional circumstances which could found an allegation of lack of bona fides or where there is said to be an absence of international subject-matter, will still afford an appropriate safeguard against improper exercise of the "external affairs" power.
It is here that an analogy may be drawn between the defence power and the external affairs power. In cases on the defence power this court has determined the validity of legislative measures by reference to their capacity to assist the purpose of defence: Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 273, per Kitto J. For this purpose "The existence and character of hostilities ... against the Commonwealth are facts which will determine the extent of the operation of the power. Whether it will suffice to authorize a given measure will depend upon the nature and dimensions of the conflict that calls it forth, upon the actual and apprehended dangers, exigencies and course of the war, and upon the matters that are incident thereto": per Dixon J in Andrews v Howell (1941) 65 CLR 255 at 278. It will be open to the court, in the case of a challenged exercise of the external affairs power, to adopt an analogous approach, testing the validity of the challenged law by reference to its connexion with international subject-matter and with the external affairs of the nation.
Turning back to the specific cases before the court, I have already mentioned in passing the remarkable post-war growth in consensual international law. As Julius Stone expressed it as early as 1954 in his Legal Controls of International Conflict : "One modern year's 'international legislation', that is, State-agreed regulation of new problems by mutilateral instruments, exceeds that of a whole century of old" (at p 23). The present relevance of this is its effect upon the content of the external affairs power. It is like the defence power; it is "a fixed concept with a changing content": Dixon J in Australian Textiles Pty Ltd v Commonwealth (1945) 71 CLR 161 at 178. Its content will be determined not by the mere will of the executive but by what is generally regarded at any particular time as a part of the external affairs of the nation, a concept the content of which lies very much in the hands of the community of nations of which Australia forms a part. Hence the analogy of the defence power: Howard, supra , at 444; Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed, 1976) at 301-2.
That prohibition of racial discrimination, the subject-matter of the Racial Discrimination Act, now falls squarely within that concept I regard as undoubted. That a consequence would seem to be an intrusion by the Commonwealth into areas previously the exclusive concern of the States does not mean that there has been some alteration of the original federal pattern of distribution of legislative powers. What has occurred is, rather, a growth in the content of "external affairs". This growth reflects the new global concern for human rights and the international acknowledgment of the need for universally recognized norms of conduct, particularly in relation to the suppression of racial discrimination.
The post-war history of this new concern is illuminating. The present international regime for the protection of human rights finds its origin in the Charter of the United Nations. Prominent in the opening recitals of the Charter is a re-affirmation of "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women". One of the purposes of the United Nations expressed in its Charter is the achieving of international co-operation in promoting and encouraging "respect for human rights and for fundamental freedoms for all without distinction as to race ...": Ch I, Art 1:3; see too Ch IX, Art 55(c). By Ch IX, Art 56 all member nations pledge themselves to take action with the organization to achieve its purposes. The emphasis which the Charter thus places upon international recognition of human rights and fundamental freedoms is in striking contrast to the terms of the Covenant of the League of Nations, which was silent on these subjects.
The effect of these provisions has in international law been seen as restricting the right of member States of the United Nations to treat due observance of human rights as an exclusively domestic matter. Instead the human rights obligations of member states have become a "legitimate subject of international concern": Judge de Arechaga (1978) 159 Recueil des Cours (at 177). Sir Humphrey Waldock, also a judge of the International Court of Justice, had earlier noted this development in (1962) 106 Recueil des Cours (at 200). To the same effect are Lauterpacht's comments in International Law and Human Rights (1950) (at 177-8) and those in Oppenheim's International Law (8th ed), vol 1 (at 740). The views of other distinguished publicists are summarized by Schwelb in "The International Court of Justice and the Human Rights Clauses of the Charter" (1972) 66 Am Jo of Int Law 337 at 338-341. He concludes (at 350) that the views of Lauterpacht and others on the effect of the human rights provisions of the Charter were affirmed by the Advisory Opinion of the International Court in the Namibia case : (1971) ICJ Rep at 51: see also the statement of Judge Tanaka in his dissenting opinion in the South West Africa case (1966) ICJ Rep 4 at 284, the majority opinion of the International Court in the Barcelona Traction case (1970) ICJ Rep 6 at 33 and McDougal, Laswell and Chen, Human Rights and World Public Order (1980) at 599-60.
These matters having, by virtue of the Charter of the United Nations, become at international law a proper subject for international action, there followed, in 1958, the Universal Declaration of Human Rights and thereafter many General Assembly resolutions on human rights and racial discrimination. A full catalogue of the various international instruments in this area can be found in a United Nations publication: Human Rights ; A Compilation of International Instruments (1978). There have also been various regional agreements on human rights, perhaps the leading example being the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.
It was in 1965 that the Assembly unanimously adopted the International Convention on the Elimination of All Forms of Racial Discrimination. Its origins in 1959 and its subsequent history are traced by Schwelb in an article in (1966) 15 Int and Comp Law Q 996 at 997-1000. The learned author's conclusion (at 1057) is of particular relevance. It is that the provisions of the convention "represent the most comprehensive and unambiguous codification in treaty form of the idea of the equality of races. With ever-increasing clarity this idea has emerged as the one which, more than any other, dominates the thoughts and actions of the post-World War II world . In our time, the idea of racial equality has acquired far greater force than its eighteenth century companions of (personal) liberty and fraternity. The aim of racial equality has permeated the law-making, the standard-setting and the standard-applying activities of the United Nations family of organizations since 1945. The ... Convention of 1965 (is) the core of the International conventional law on the subject" (emphasis added). The Convention was opened for signature on 21 December 1965 and entered into force on 2 January 1969. Australia ratified the Convention on 31 October 1975, by which time it had been ratified by over 80 nations of the world.
This brief account of the international post-war developments in the area of racial discrimination is enough to show that the topic has become for Australia, in common with other nations, very much a part of its external affairs and hence a matter within the scope of s 51(29).
Even were Australia not a party to the Convention, this would not necessarily exclude the topic as a part of its external affairs. It was contended on behalf of the Commonwealth that, quite apart from the Convention, Australia has an international obligation to suppress all forms of racial discrimination because respect for human dignity and fundamental rights, and thus the norm of non-discrimination on the grounds of race, is now part of customary international law, as both created and evidenced by state practice and as expounded by jurists and eminent publicists. There is, in my view, much to be said for this submission and for the conclusion that, the Convention apart, the subject of racial discrimination should be regarded as an important aspect of Australia's external affairs, so that legislation much in the present form of the Racial Discrimination Act would be supported by power conferred by s 51(29). As with slavery and genocide, the failure of a nation to take steps to suppress racial discrimination has become of immediate relevance to its relations within the international community. In New South Wales v Commonwealth (135 CLR) at 450 ; (8 ALR) at 75 I said that included in external affairs were "matters which are not consensual in character; conduct on the part of a nation, or of its nationals, which affects other nations and its relations with them". I then cited particular passages from the judgments in R v Sharkey (1947) 79 CLR 121 which provide instances of such non-consensual matters forming a part of Australia's external affairs.
In the present cases it is not necessary to rely upon this aspect of the external affairs power since there exists a quite precise treaty obligation, on a subject of major importance in international relationships, which calls for domestic implementation within Australia. This in itself, without more, suffices to bring the Racial Discrimination Act within the terms of s 51(29). I mention in passing that in these cases it is common ground that the provisions of the Racial Discrimination Act now under challenge do give effect to those terms of the International Convention on the Elimination of All Forms of Racial Discrimination which Australia, as a party to the Convention, is bound to implement municipally.
There remains the question of the standing of Mr Koowarta to bring his action. He will only have standing if he is a "person aggrieved" in terms of s 24(1). Mr Koowarta contends that the refusal of the Queensland Minister for Lands to approve of the transfer of the Crown leasehold, which he and other members of his group of Aboriginal people proposed to use for grazing and other purposes, makes him a person aggrieved. That refusal was, he says, such an act as s 24(1) of the Act refers to, namely "an act that he (the person aggrieved) considers to have been unlawful by reason of a provision of Part II" of the Act. The effect of one provision of Pt II of the Act, s 12(1)(d), is to make it unlawful for a person "to refuse to permit a second person to occupy any land ... by reason of the race ... of that second person ...". While it is not certain that when he refused approval of the transfer the Minister knew of the existence of Mr Koowarta, he clearly knew that the property was to be occupied by Aborigines. That was the very ground for his refusal. In my view Mr Koowarta's position as one of the Aborigines whose occupation of the land was prevented by the Minister's decision sufficiently establishes his standing to sue: he was a "second person" in the terms of s 12(1)(d) of the Act. It is not, I think, to the point that, as a matter of form, what the Minister withheld was approval of a transfer to the Aboriginal Land Fund Commission. The Minister's reasons for refusal disclose that he regarded approval as involving use of the property by Aborigines and refusal of approval as preventing that use. Sections 20 and 21 of the Aboriginal Land Fund Act 1974 confined the power of the Commission to acquire interests in land to cases in which, having acquired such an interest, it in turn granted an interest in it either to an Aboriginal corporation or to an Aboriginal land trust, which was in turn obliged to permit Aborigines to occupy the land (see now ss 27, 28, 29 and 51 of the Aboriginal Development Commission Act 1980). Accordingly the Minister was quite right in the view he took of the consequence were he to grant his approval. His withholding of approval, once explained by reference to the settled policy of his Government, amounted to a refusal to permit that to occur and accordingly constituted a refusal to permit persons, then possibly unknown to him but who in fact included Mr Koowarta, to occupy land by reason of their race.
Other bases were advanced for according standing to sue but for my part I am content to rest upon the above; it in my view establishes locus standi .
In Mr Koowarta's case I would overrule the defendants' demurrer. I would dismiss the action in which the State of Queensland is plaintiff.