Koowarta v Bjelke-Peterson and Others State of Queensland v Commonwealth of Australia1
| Author | Tony Martin |
| DOI | 10.1177/0067205X8301300405 |
| Published date | 01 December 1983 |
| Date | 01 December 1983 |
| Subject Matter | Article |
360 Federal
Law
Review
[VOLUME
13
whether
as
a matter of "substance" sub-s
(5)
could be said to be reasonably
incidental to sub-s 45D ( 1 ) .
The decision upholds the basic prohibition of the conduct described in
sub-s ( 1 ) but that protection may be significantly reduced by the invalidity
of sub-s (
5).
It
is
unlikely that the Federal Court would attribute the
conduct of members of a union to the union itself unless there was evidence
that the union had organised or assisted in the conduct.63 In practical terms
there may be difficulties with enforcing the prohibition in s 45D ( 1 ) against
individuals
or
with obtaining proof of involvement against union leader-
ship, so that realistic protection may be much more difficult for a corporation
to obtain.
MICHAEL
TCORRIGAN*
KOOWARTA v BJELKE-PETERSON AND OTHERS
STATE
OF
QUEENSLAND v COMMONWEALTH
OF
AUSTRALIA1
Constitutional
law-
Constitution (Cth) s 51(xxix)
-external
affairs power
-whether racial discrimination a matter
of
international concern -
Constitution (Cth) s
51(xxvi)-
laws for the people
of
any
race-
Racial
Discrimination
Act
1975 (Cth) ss 9, 12 -locus standi -"person
aggrieved".
Racial
Discrimination-
Racial Discrimination
Act
1975 (Cth)
ss
9,
12-
constitutional
validity-
Constitution (Cth) s 51(xxvi), s 51(xxix).
1
THE
FACTS
The plaintiff, Koowarta, was a member of a group of Aboriginal people
situated in Queensland. On behalf of himself and others in the group, the
plaintiff approached the Aboriginal Land Fund Commission and requested
it to acquire the lease of certain land in Northern Queensland for use by
the plaintiff and the other members of the group for grazing purposes. In
February 1976, the Commission entered into a contract with the lessees of
the land for the purchase of the lease. However, the transfer was subject to
the approval of the Minister of Lands of the State of Queensland
as
required
by the contract itself and the provisions of the Land Act 1962
(Old).
The
Minister refused approval and gave the following statement of the
reasons-
The Queensland Government does not view favourably proposals to
acquire large areas of additional freehold or leasehold land for develop-
ment by Aborigines
or
Aboriginal groups in isolation.
2
63 See the careful analysis
of
Fullagar J
in
Williams v Hursey (1959)
103
CLR
30, 81.
* BA; LLB (Hons)
(ANU).
1 (1982) 56 ALJR 625; (1982)
39
ALR 417. High Court of Australia; Gibbs CJ,
Stephen, Mason, Murphy, Aickin, Wilson, Brennan JJ.
2 (1982) 56 ALJR 625, 627.
1983] Case Notes 361
The plaintiff alleged that the refusal to grant approval was contrary to
the Racial Discrimination Act 1975 (Cth) which sought to enforce within
Australia the International Convention on the Elimination of All Forms of
Racial Discrimination.
The relevant sections of the Act were s 9 and s 12. Section 9
provided-
( 1)
It
is
unlawful for a person to do any act involving a distinction,
exclusion, restriction or preference based on race . . . which has the
purpose or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing, of any human right
or
fundamental
freedom.
Subsection
9(2)
defined a "human right or fundamental freedom"
as
including rights referred to in Article 5 of the Convention. Article 5 referred
to various rights including " ( v) The right to own property alone
as
well
as
in association with others."
Section 12 of the Act
is
more
specific-
12(1)
It
is unlawful for a person, whether
as
a principal or
agent-
(a)
to refuse or fail to dispose of any estate or interest in land or any
residential or business accommodation to a second person:
...
(d)
to refuse to permit a second person to occupy any land or any
residential
or
business accommodation,
...
by reason of the race, colour or national or ethnic origin of that
second person or of any relative or associate of that second person.
Section 24(1) allowed a "person aggrieved" by an unlawful act to bring
a civil action for one or more of the remedies set out in s 25. The remedies
in s 25 include an injunction, an order directing the defendant to do a
specified act
and-
(
d)
damages
...
in respect
of-
(i)
loss suffered by a person aggrieved by the relevant act,
including loss of any benefit that that person might reasonably
have been expected to obtain if the relevant act had not been
done; and
(ii) loss of dignity by, humiliation to, or injury to the feelings of,
a person aggrieved by the relevant act.
...
The plaintiff claimed that the Minister's refusal to grant approval for the
reason that the plaintiff and other members of the group were Aboriginals,
constituted an "unlawful act" under s 9 and s 12 of the Act and he sought
declarations, an injunction and damages under s
24(1)
and s 25.
The defendants delivered a defence and demurrer. Some of their claims
were based on the application of the facts to the legislation, however, their
main submission was that the Racial Discrimination Act 197 5 was outside
the power of the Commonwealth Parliament and invalid.
2
THE
EXTERNAL AFFAIRS
POWER-S
51
(xxix)
The main issue
in
the case
was
whether the Racial Discrimination Act
1975
was
valid
as
an
exercise of the external affairs power. The decision on
this point has far reaching consequences for the determination of the balance
between federal and State powers in the Australian legislative system. The
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