Case Study of Koowarta v Bjelke Petersen

The commission to purchase the said property made a contract in February 1976. To this, the government of Queensland which was led by Sir Joh Bjelke Petersen blocked the said deal.

Sir Joh Bjelke Petersen did not believe that the people of Wik nation or the aboriginal people will be able to acquire the said land which has large area.

On the grounds of Racial discrimination, Koowarta made a complain against the government of the Queensland. This complain was made to the Human Rights and Equal Opportunity Commission (HRC) on the matter that said the government blocked the sale of land because of the racial discrimination.

Illustration 1: Alchetron, 2021

Illustration 2: John Pampeya

The HRC upon hearing the matter believed and agreed with Koowarta. Later the government appealed the case with the supreme court of Australia. Later the proceedings took place at the High Court of Australia. It was argued by the Government that the Racial Discrimination Act, 1975 was not valid and the commonwealth did not had any power with it to pass such laws.

Sir Joh Bjelke Petersen argued on the fact that the section 51 (xxvi) of the Australian Constitution which says that the parliament may make rules and laws according to the needs or necessity for any race of people. Bjelke said that this clause of constitution do not apply to the act as this is prohibitory against the discrimination of all races.

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Illustration 3: AFD, 2021

Legal Issues

• Whether the blocking of the sale of land by the government of Queensland was discriminatory?
• Whether or not commonwealth have powers to pass the Racial Discrimination Act under the constitution of Australia?

Legal Principles

Section 51 of the constitution of Australia grant legislative powers to the Federal Parliament.

• The race power: It is defined under Section 51 (xxvi). It is the subsection of Section 51 of the constitution of Australia. This law provides with the power to the Australian commonwealth to make special laws and provisions for the people of any race. Initially the people of Aboriginal race were not included under this law, but now the laws are similar for all the races and the commonwealth have powers to make special laws.
• The External Affair power: The external affairs power is mentioned under Section 51 (xxix) of the Constitution of Australia. It extends to anything which is in the nature to Australia external. It can also be meant that anything or any matter which is geographically outside the country Australia. This power extends to making of the laws implementing the bonafide treaty or the international agreement. In the case of R v. Sharkey, Chief Justice Latham opined that the external affairs is not confined to preservation of the friendly relations with other Dominions but is also extended to the relations with all the countries which are outside Australia.

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Decision

Illustration 4: High Court of Australia, 2020

The High court held with the majority that the Act was not valid under the “races” power. The narrow majority of the judges were in opinion that the act was within the “external affairs” power. It was considered to be within “external affairs” power because the act so enacted by the common wealth gave effect to the convention of United Nations (UN) which was specifically on the elimination of all the forms of racial discrimination. Australia was signatory to this convention which was signed on 13^th October, 1966.

There was no clarity over the majority decision. It was unclear to decide the test which is to be applied under the external affairs power to determine the validity of the legislation. There were many judges who stated their points on this particular matter. They are:

• According to Mason, Brennan and Murphy J, existence of a mere treaty to which Australia is signatory is enough for the matter to be an “external affair”.
• According to Gibbs, Aickin and Wilson J, it was argued that there must be “indisputably international” treaty.
• According to Stephen J, the argument was that there must be a treaty of “international concern” and also that the act was valid considering the external affair powers. He had an in between point of view over the matter.

Legal Conclusion

By the majority of (6:1) it was concluded that the act of racial discrimination was not valid under section 51 (xxvi) of the Australian constitution as the act applies to all the races and not any single race.

By the majority of (4:3) it was concluded that the act of racial discrimination was Valid under section 51 (xxiv) of the Australian constitution as implementing the treaties to which Australia is signatory under the United Nation is valid application of the power of external affairs.