Koowarta v Bjelke-Petersen and Others
153 CLR 168(Judgment by: Wilson J)
Koowarta
vBjelke-Petersen and Others
Judges:
Gibbs CJ
Stephen J
Mason J
Murphy J
Aickin J
Wilson JBrennan 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:
Wilson J
I have had the very considerable advantage of reading the reasons for judgment prepared by the Chief Justice. I agree entirely with both the reasoning of his Honour and the conclusions to which he comes. However, in deference to the importance of the issues of validity touching a highly significant and valued piece of Commonwealth legislation, I wish to make some supplementary remarks. They will be confined to the two grants of legislative power on which the validity of the law was said to rest. In speaking of the law I refer to ss 9 and 12 of the Racial Discrimination Act 1975 (Cth) (the Act).
Section 51(xxvi )
It is a fundamental objective of the International Convention on the Elimination of all Forms of Racial Discrimination (the Convention) to secure to all human beings the right to equality and freedom before the law without distinction as to race, colour, descent or national or ethnic origin. That objective derives substance and urgency from the declared conviction, contained in the preamble to the Convention, that the existence of racial barriers is repugnant to the ideals of any human society. In substance the preamble testifies to the view that it is essential to the peace and well-being of the international community that the laws of a community apply to all the members of that community regardless of race. It recognizes that there is a generality that is basic to good laws. It is in order to give effect within Australia to the Convention that the Parliament has enacted the Act. There is a touch of irony in the fact that the Commonwealth seeks to support the validity of an Act to give effect to these principles by relying on a power to enact discriminatory laws, whether for good or ill, for the people of any race. In these days, one would not readily contemplate the use of the power to the detriment of the people of a race; nevertheless, it is basic to an understanding of the scope of the power to recognize that even when it is used for wholly benevolent and laudable purposes it remains a power to discriminate with respect to such a people. The paragraph recognizes that there may be occasions when the circumstances touching the people of a particular race will call for special attention resulting in legislative activity in relation to those people. These laws will be special because they will address a problem that is peculiar to the people of that race.
The learned Solicitor-General for the Commonwealth argues that there is no necessary singularity attaching to the phrase "the people of any race". He observes that if the Act were to contain a section which specifically applied its provisions to discrimination against the people of a particular race there could be no doubt that the law was within the power. If then there followed a series of provisions applying the Act in turn to the people of every race in Australia then in his submission the same result would follow. What can be done severally can be done in a global way. The Act is within the power because it is a law with respect to the people of any race who suffer discrimination on racial grounds, the Parliament having deemed it necessary to secure to them this special protection.
This ingenious submission cannot be accepted. If the Act can apply with respect to the people of any race at all who may happen to be the victims of discrimination on account of their race, then it is not a special law. It is a general law directed to the elimination of all racial discrimination in the community. The power contained in s 51(xxvi) is activated when the Parliament discerns circumstances which in its view give rise to a necessity to make a special law. That necessity can arise only from circumstances considered to be compelling in relation to a section of the community, namely, the people of a particular race or races. As the Chief Justice has observed, the power is apt to enable the Parliament, if it considered it necessary to do so, to prohibit racial discrimination against the people of the Aboriginal race.
Section 51(xxix )
In R v Burgess ; Ex parte Henry (1936) 55 CLR 608, Latham CJ said, at 642: "Thus it appears to me that even if the most limited criterion be applied this convention falls within the subjects which may properly be dealt with by international agreement and which in themselves have an external aspect " (my emphasis). Although in the course of his judgment the Chief Justice had favoured a broader view of the power than that expressed in the passage I have cited, the decision itself provides no authority for any wider view. The court decided that so much of s 4 of the Air Navigation Act 1920 as empowered the Governor-General to make regulations for the purpose of carrying out and giving effect to the Paris Convention of 1919 for the regulation of aerial navigation was a valid exercise of the external affairs power. That Convention secured to Australia the enjoyment of sovereignty over its airspace and imposed obligations relating to the use of that airspace by the aircraft of other countries. The law by which the Parliament sought to discharge those obligations, while forming part of the domestic law of the Commonwealth, clearly exhibited an external aspect.
Burgess was the first occasion in which the question of the validity of the law rested squarely on the external affairs power. In McKelvey v Meagher (1906) 4 CLR 265 it was acknowledged that s 51(xxix) would empower the Parliament to legislate generally as to the surrender of fugitive offenders from other parts of the British Dominions. In Roche v Kronheimer (1921) 29 CLR 329 Higgins J (at 339) expressed the view that the Treaty of Peace Act 1919, which enabled the Governor-General to implement provisions of the peace treaty authorizing the charging of property within Australia of German nationals, could be upheld both under the defence power and the external affairs power.
Again, since Burgess , there has been little occasion for the court to examine the external affairs power. In R v Sharkey (1949) 79 CLR 121 all the members of the court acknowledged that s 24 A (1)(c) of the Crimes Act 1914-1946 (Cth), was a law with respect to external affairs. That provision was one of a number of paragraphs relating to sedition and spoke of exciting disaffection "against the Government or Constitution of any of the King's Dominions".
In Airlines of New South Wales Pty Ltd v State of New South Wales (No 2 ) (1965) 113 CLR 54, the validity of certain of the Air Navigation Regulations (Cth) were again in question. Barwick CJ, McTiernan, Menzies, and Owen JJ found support for the regulations in the external affairs power in so far as they implemented within Australia the Chicago Convention on International Civil Aviation (1944). As the Chicago Convention had a similar subject matter and imposed obligations comparable to those imposed by the Paris Convention, the decision adds little to Burgess . The members of the court refrained from any general discussion of the scope of the power.
In New South Wales v Commonwealth (1975) 135 CLR 337 ; 8 ALR 1 the court held the Seas and Submerged Lands Act 1973 (Cth) to be a valid exercise of the external affairs power. The Act vested sovereignty in the territorial sea of Australia and sovereign rights in respect of the continental shelf in the Crown in right of the Commonwealth. The conclusion in favour of validity rested on the power in s 51(xxix) to give effect to the international conventions, scheduled in the Act, touching the territorial sea and the continental shelf respectively. Three members of the court also found a sufficient nexus to the power in the fact that the subject matter of the Act was geographically external to Australia.
I have reviewed these cases in order to show the very limited authority that they provide. In every case the law in question was one which, in the words of Latham CJ in Burgess , had an external aspect. The operation of the law within Australia was necessarily invested with an international character. Whether it was the extradition of fugitive offenders from abroad, the seizure of the property of enemy aliens, the safety and efficiency of aerial navigation within Australian airspace used by foreign aircraft, the vesting of sovereignty in areas beyond Australia or the protection of foreign governments from seditious activity within Australia, the law bore on its face the marks of an external affair. It follows that the wide-ranging views expressed by members of the court from time to time, although naturally deserving of respect, cannot determine the problem which the present case presents.
I turn now to the statute under challenge. It is clear from the terms of ss 9 and 12 of the Act, which the Chief Justice has set out, that they lack this external aspect to which I have referred. Each section makes it unlawful for any person to engage in the conduct which is described therein. Generally speaking, that conduct is of a type which, if it were to occur at all, would take place in the ordinary day-to-day intercourse of persons in Australia. It is true that the Convention is set out in a schedule to the Act, and that the preamble to the Act testifies to the purpose of the Parliament to give effect to the Convention. Section 7 of the Act, which approves the ratification by Australia of the Convention is undoubtedly valid. However, it is well established that the true nature and character of a law is to be determined, not by the motives of the Parliament, but by its direct legal operation according to its terms: South Australia v Commonwealth (1942) 65 CLR 373 at 424-6; Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 186-7; Fairfax v FC of T (1965) 114 CLR 1 at 7, 14, 16. If the true nature of ss 9 and 12 is to be ascertained by seeing what they do in creating, changing, regulating or abolishing rights, duties, powers or privileges, then the answer must be that they are directed to removing racial discrimination from all relationships within the Australian community. It is certainly a law with respect to that topic, but of course the Constitution does not grant to the Parliament a legislative power in those terms. Is it a law with respect to external affairs?
The Commonwealth argues for a positive response to that question, and it is unnecessary for me to repeat again what appears in other judgments. The initial proposition on which it relies is that, by reason of its ratification of the Convention if not directly by reference to an emerging rule of customary international law, Australia is under an obligation to the world community "to prohibit and to eliminate racial discrimination in all its forms" (Art 5). I readily accept the proposition. I acknowledge too that of all Australia's international obligations there must be few, if any, of greater humanitatian importance than the obligation to strive for racial equality. As Egon Schwelb observed in 1966 in an article in 15 ICLQ 996 at 1057, the idea of racial equality has emerged as the one which, more than any other, dominates the thoughts and actions of the post World War II world. The role of the Committee on the Elimination of Racial Discrimination established by Art 8 emphasizes the onerous character of the obligations arising under the Convention.
Nevertheless, the outstanding importance of this particular obligation must not blind us to the wide-ranging implications of the next step in the Commonwealth's argument. It is that the existence of this obligation necessarily brings into existence an external affair within the meaning of s 51(xxix), thereby investing the Parliament with legislative power to discharge it. It is immaterial that the legislation may be, as is ss 9 and 12 of the Act under consideration here, wholly domestic in its operation. It is nevertheless a law with respect to external affairs. The implications of the argument are profound, for if this argument holds good for an obligation such as the elimination of racial discrimination, it must likewise hold good for all the other important obligations which arise out of Australia's international relations. In my opinion, there is no rational basis on which to distinguish one obligation and another. It is to be assumed that the Commonwealth only enters into an international obligation because to do so is believed to be relevant and therefore important to the advancement of the interests of Australia. Although the external affairs power is sometimes likened to the defence power, there is in my opinion a significant distinction to be drawn. Whereas the needs of defence will vary with the existence and character of hostilities in which Australia may be engaged and consequently the scope of the power will expand or contract accordingly, there is no such ebb and flow in the conduct of Australia's international relations. The technological revolution in communications coupled with the search for peace and security during the decades of this century have led to the close interdependence of nation with nation. Both economically and socially the earth is now likened to a global village where the international community concerns itself increasingly with matters which formerly were regarded as only of domestic concern. There is now no limit to the range of matters which may assume an international character, and this question is unlikely to change. These considerations underline the importance of identifying clearly the criteria which will attract to a law of the Parliament the character of a law with respect to external affairs.
The broader question then is whether the Parliament is competent, by reason of s 51(xxix), to give effect within Australia to every obligation which Australia assumes within the community of nations. In answering that question, it must be borne in mind that a distinction is to be drawn on the one hand between Australia as a fully autonomous sovereign nation within the international community with all the rights and responsibilities that attach to that status, and on the other hand the identity of the Commonwealth as a constituent unit of a federation possessed of the legislative powers conferred upon it by the Constitution. I would respectfully adopt, as my own, the illuminating discussion of sovereignty as between nation and nation, and sovereignty as it may come to be distributed domestically within the polity of an individual nation state which is undertaken by Stephen J in New South Wales v Commonwealth (135 CLR) at 451-5. It is unnecessary to repeat it. The distinction provides the setting in which the Commonwealth must be recognized as fully competent to engage Australia in international relationships, while allowing at the same time for such a possible distribution of legislative power within the federation as may render it unable by its own laws to implement treaty obligations. If a situation of this kind occurs, it obviously renders the conduct of foreign affairs more complex than in the case of a unitary state.
The absence in municipal law of legislative power to implement an international obligation affords no excuse in international law for non-compliance. In former times the difficulty was diminished by resort to federal clauses such as Art 19(7) of the constitution of the International Labour Organization. Nowadays, however, the tide of international opinion runs strongly against such clauses, leaving only resort to the practice of recording reservations to the ratification of a convention or treaty. The full significance of such a practice remains to be seen.
However, it does not follow in such a case that Australia is an "international cripple unable to participate fully in the emerging world order", as was suggested by Murphy J in New South Wales v Commonwealth (135 CLR at 503 ; 8 ALR at 118). As I have said, the Commonwealth is fully equipped to represent this country abroad, to negotiate agreements and understandings and to assume obligations. In doing so, however, it will know that if any of these obligations require for their discharge the enactment of laws within Australia, the Parliament may not itself be competent to effect compliance. It may be inhibited by express prohibitions contained in the Constitution, for example ss 92, 114, 116 and 117, or the subject matter of the legislation required to effect compliance may fall outside the enumerated powers of the legislature. In the latter case, there is no doubt that the State legislature will be competent to do whatever is necessary. The task of ensuring the co-operation of the States may present a political challenge, although the developing practice of including State representatives in Commonwealth delegations to international conferences on subjects which may call for implementation by State legislatures augurs well for future co-operation in the pursuit of an effective foreign policy and the maintenance of good international relations: see Burmester, The Australian States and Participation in the Foreign Policy Process (1978) 9 FL Rev 257. For a recent example of the attachment of reservations to Australia's ratification of an international convention, see the International Covenant on Civil and Political Rights (1966), which is scheduled in the Human Rights Commission Act 1981.
The Chief Justice has referred to the decision of the Judicial Committee in Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 where their Lordships expressed the view that in the totality of Dominion and Provincial legislative powers, Canada was fully equipped to implement any international obligations that might be incurred. The decision in that case, though not the accuracy of the observation to which I have referred, was subjected to a good deal of criticism.
However, a recent assessment appears in an article by Edward McWhinney in the Canadian Yearbook of International Law (1969) vol 7, p 3, wherein (at 4-5) the author wrote: "Not merely has the Labour Conventions decision not rendered impossible the conduct of a rational Canadian foreign policy. In fact, no single example has ever been cited, in the years since 1937 ... where its rationale has presented any practical difficulties, or even mild inconvenience, in the conduct of Canada's foreign relations. At the concrete, empirical level, it has in fact proved easily possible for Canadians to live with the decision; ..." Compare also the decision of the Constitutional Court of West Germany in the Concordat case (1957) BVerf GE 6,309, which provides another example of a federation confronted with an international relationship in the context divided internal legislative competence. For a detailed review of the making and performance of treaties in federal States, see L Wildhaber: Treatymaking Power and Constitution (1971), p 278 ff.
I come now to answer the broader question to which I have referred. In my opinion, the power in s 51(xxix) does not extend to enable the Parliament to implement every obligation which Australia assumes in its international relations. The discrimen to be applied is that which is established by the earlier decisions of this court. It follows that Australia's obligation to eliminate racial discrimination within Australia will only assume the character of an external affair for the purposes of s 51(xxix) if the manner of its implementation necessarily exhibits an international character. In the context of Australia's municipal law, it is by reference to what the law does that its character must be determined. As I have already observed, ss 9 and 12 of the Act do not exhibit the necessary external aspect. They are not, in my opinion, laws with respect to external affairs.
It will be appreciated that thus far I have confined my attention directly to a construction of the scope of the power in relation to the Act in question, without any specific regard to the effect of implications which are to be drawn from the federal character of the Constitution. Yet it will be evident that those implications provide strong support for the conclusion I have expressed. I have sought to demonstrate that if ss 9 and 12 of the Act are a valid exercise of the power to enact laws with respect to external affairs, it would be difficult to deny a power to implement any international obligation. Certainly the entire field of human rights and fundamental freedoms would come within the reach of paramount Commonwealth legislative power. In addition to the Covenant on Racial Discrimination, there is now the Covenant on Civil and Political Rights, and the Covenant on Economic, Social and Cultural Rights, in addition to the Covenants of the International Labour Organization. There are Declarations on the rights of the child, the rights of mentally retarded persons, and the rights of disabled persons. It is no exaggeration to say that what is emerging is a sophisticated network of international arrangements directed to the personal, economic, social and cultural development of all human beings. The effect of investing the Parliament with power through s 51(xxix) in all these areas would be to transfer to the Commonwealth virtually unlimited power in almost every conceivable aspect of life in Australia, including health and hospitals, the workplace, law and order, the economy, education, and recreational and cultural activity, to mention but a few general heads. In New South Wales v Commonwealth , supra Murphy J asserted the impracticability of dealing, at an executive level, with many aspects of Australia's internal affairs other than in the context of international arrangements. He referred specifically to the subjects of minerals and energy, primary industry, the environment and the general management of the economy. That assertion may well be correct, but can it be supposed, consistently with the federal nature of the Constitution, that the power of the Parliament with respect to external affairs extends to support any laws operating within Australia which have the purpose and effect of carrying out the obligations which form part of these arrangements? So broad a power, if exercised, may leave the existence of the States as constitutional units intact but it would deny to them any significant legislative role in the federation.
In recent years there have been repeated references in the United States Supreme Court to the operation of constitutional implications to restrain Congressional power. In Oregon v Mitchell (1970) 400 US 112 at 128, Black J said: "... the power granted to Congress was not intended to strip the States of their power to govern themselves or to convert our national government of enumerated powers into a central government of unrestrained authority ..." Elsewhere in his opinion (at 126) he asserted that the argument in favour of Congressional power would, if carried to its logical conclusion, "blot out all state power, leaving the 50 States as little more than impotent figureheads": see also Fry v United States (1975) 421 US 542, 547 n7, and the dissenting opinion of Rehnquist J, at 549. Again, in National League of Cities v Usery (1975) 426 US 833, the court restrained Congress from wielding its commerce power in a fashion that would impair the States' ability to function effectively in a federal system: "This exercise of congressional authority does not comport with the federal system of government embodied in the Constitution" (at 852).
For the reasons contained in the judgment of the Chief Justice, supported by these supplementary observations, I would hold that ss 9 and 12 are beyond the legislative power of the Commonwealth. As we have both said, it is clearly within the power of the Parliament to legislate under s 51(xxvi) to ban racial discrimination against the people of the Aboriginal race. For the rest, the Commonwealth must seek the co-operation of State legislatures to ensure that Australia's international obligations under the Convention are fulfilled.
I would make the orders proposed by the Chief Justice.