Koowarta v Bjelke-Petersen
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Koowarta v Bjelke-Petersen,
Background to the case
Arguments
Koowarta presented a case to the Human Rights Commission opposing the policy enacted by the Queensland Government, to block Aboriginal acquisition of large areas of land, arguing that it was discriminatory under sections 9 and 12 of the Racial Discrimination Act 1975. Section 9 makes it unlawful for any person to make a distinction based on race which interferes with another person's human rights. Section 12 makes it unlawful for any person to refuse to sell land to another person, or refuse to allow them to occupy the land, based on their race.
Bjelke-Petersen, on behalf of the Queensland Government, argued that the Racial Discrimination Act was not valid, and that the Australian Government had no power to make it.
The 'race' power
The most important question in the case was whether the Racial Discrimination Act was valid.
However, the court found that the Act addressed racial discrimination against all people, not just the people of one particular race. As such, the Act had no basis in the 'any race' power.
External affairs power
The court agreed that the Racial Discrimination Act was intended to give effect within Australia to the
An important question was whether the Act could truly be regarded as an "external affair", since it applied entirely within Australia. There had already been a number of High Court cases which approved the use of the external affairs power to implement international treaties (such as the Paris Convention case and the Seas and Submerged Lands case). The court recognised that the external affairs power was not restricted only to matters outside of Australia, but it was still questionable whether it applied to matters that did not involve foreigners or other countries at all. The Commonwealth argued that it would affect Australia's international reputation if it were not able to carry out its obligations as a signatory to the Convention.
Judgment
By a majority of six to one, the court found that the Racial Discrimination Act was not valid under the "race" power. However, by a narrow majority of four to three, the court also found that the Act was within the "external affairs" power.
Three judges (Gibbs, Aickin, and Wilson) adopted a very narrow view, endorsing a test proposed by Dixon, J in R v Burgess; ex parte Henry, which focuses on whether a treaty is "indisputably international". They also suggested that reading the external affairs power too widely would destroy the balance of powers between the Commonwealth and the States. They felt that the external affairs power had to be read in light of federalism in the Constitution. In effect, they proposed that any treaty had to meet an additional test and be 'indisputably international in character'. Their view was therefore concerned with the subject matter of racial discrimination. In this case, the legislation was not sufficient to satisfy their test, and they held that the legislation was not valid.
Three other judges (
The deciding opinion was that of Ninian Stephen, who ultimately agreed with Mason, Murphy and Brennan on the facts, but took a somewhat narrow middle path in order to arrive at the same conclusion. He adopted a test based on whether or not the subject matter of the treaty being implemented is of 'international concern'. This test was not as broad as the wide view, and not as restrictive as the 'indisputably international' test. On the facts, Stephen found that the prevention of racial discrimination was indeed a matter of international concern, and as such the Racial Discrimination Act was valid.
In total, four judges held the legislation was valid under the external affairs power, but there was not a majority of judges agreeing on the test for determining validity. As a result, there was no clear ratio decidendi in the case; at best, a majority of the court might hold that s51(xxix) would support legislation implementing treaties with subject-matter of 'international concern'.
Consequences
The case upheld the validity of the Racial Discrimination Act, and endorsed the Australian Government's use of the "external affairs" power to implement treaties not directly relating to other countries, an interpretation that would later become important in cases such as the Tasmanian Dam case, where a majority of four judges would adopt the reasoning favoured by Mason, Murphy and Brennan in this case. In another later case, the Industrial Relations Act case, a majority of five judges endorsed the same reasoning, thus cementing its place in Australian law.
The main part of the case, relating to the Queensland Government's action in blocking Koowarta's purchase of the lease, was remitted to the Supreme Court of Queensland. The decision there was eventually made in 1988, in favour of Koowarta. The sale was to proceed, but at the last minute, Bjelke-Petersen, in an act described by Australian Conservation Foundation councillor Kevin Guy as one of "spite and prejudice,"[2] declared the Archer River property a national park, the Archer Bend National Park (now known as Oyala Thumotang National Park), to ensure that no one could ever own it. However, on 6 October 2010 Premier Anna Bligh announced that a 75,000 hectares (750 km2) portion of the park would be given over to the Wik-Mungkana peoples as freehold land.[3][4]
See also
- Australian constitutional law
- List of Australian Native Title court cases
References
- ^ Koowarta v Bjelke-Petersen [1982] HCA 27, (1982) 153 CLR 168 (11 May 1982), High Court.
- ^ Borbidge Flaunts Aboriginal Rights in Fraser Island Plan Archived 20 June 2005 at the Wayback Machine, Foundation for Aboriginal and Islander Research Action, accessed 10 June 2005
- ^ "Nature, culture and history | Oyala Thumotang National Park (CYPAL)". Parks and forests. Queensland Government. 28 May 2012. Archived from the original on 21 March 2023. Retrieved 5 March 2024.
- Queensland Parliament. Archived(PDF) from the original on 5 March 2024. Retrieved 5 March 2024.
External links
- "Counting the cost of a mean-spirited opportunist". The Australian. 25 April 2005. Archived from the original on 12 November 2005.
- "John Koowarta Reconciliation Law Scholarship". Law Council of Australia. Archived from the original on 18 February 2005. Retrieved 10 June 2005.