Disucuss about the Case Study of Koowarta v Bjelke-Petersen .
The High Court’s decisions in Koowarta v Bjelke-Petersen  HCA 27 is among the landmark cases in Australia that represents a turning point in Australia’s legal and political history. Marked a shift on the political arena on complex issues such as race. The ruling marked a decisive jurisprudential turn, a consideration of a different engagement by the High Court of Australia with both international law and the politics of federal constitutionalism(Genovese 2014).
In 1976, John Koowarta together with others through funds from the Aboriginal Land Fund Commission wanted to acquire rights for the Archer River cattle station that was part of the Wiks’ people native land. The purpose of the lease was to allow the Aboriginal community to start a cattle property. The current owners of the lease agreed to sell the lease, but before the agreement was complete, the Queensland National Party government led by Bjelke- Petersen opposed the purchase of the lease. Bjelke- Petersen was not of the idea that the Aboriginal people should be allowed to secure vast areas of land. This was the same position taken by the cabinet. Petersen had therefore directed the Queensland Minister of Lands to terminate the sale. The Koowarta group moved the case to the high court arguing that the Queensland government’s decision to deny them the purchase contravened the Commonwealth 1975 Racial Discrimination Act(Tehan 2014).
The lease could not be transferred without the approval of the Queensland government. The government policy believed that, “sufficient land in Queensland is already reserved and available for the use and benefit of Aboriginals.” The Discrimination Act implemented the terms of an international treaty that sought the abolition of all forms of discrimination based on race. In opposition, the Bjelke-Petersen government insisted that the Act should be declared invalid on the grounds that it extended the Commonwealth's external affairs power beyond that intended by the Constitution. Indeed, the Commonwealth did not have the Constitutional authority to legislate on racial discrimination in the States(Kirby 2014).
The plaintiff John Kowaarta complaint was because blocking the sale of the lease by the government was done in bad faith and was discriminatory. On the other hand, the defendant believed that the Aboriginal people already had enough tracks of land and were not allowed to acquire large pieces of land. The Government responded by challenging the validity of the RDA, arguing that the Commonwealth Parliament had no constitutional power to pass it. The main legal issue was whether the Commonwealth had the power to pass the Racial Discrimination Act(Vertovec 2007).
Legal Issues Involved
John Koowarta argument to the Human Rights and Equal Opportunity Commission was meant to oppose and seek reprieve from the Queensland Government position to block the sale of the lease. The government was of the position that the Aboriginal did not have the rights to buy leases to large pieces of land which Koowarta argued was discriminatory based on section 9 and 12 of the Racial Discrimination Act of 1975. Section 9 of the Act illegalized infringement of human rights based on a distinction made based on race. Section 12 of the same Act made it illeagal for any groups of people or anybody to be denied an opportunity to own land or deny them a chance to settle down on a piece of land on the grounds of race (Koowarta v Bjelke-Petersen and Others, 1982).
Bjelke Petersen who represented the Queensland argument was of the view that the Racial Discrimination Act 1975 was not valid hence his bid to challenge its validity. Furthermore the Queensland government was of the position that the Australian government had no rights to make it as it extended the commonwealth’s external affairs power beyond those intended by the constitution. The Queensland government position was that Section 51 of the constitution of Australia limited the power of the government. Subsection xxvi empowered the Australian parliament makes decrees for “the people of any race, for whom it deemed necessary to make special laws” was not applicable to the RDA. The section banned any form of discrimination (Koowarta v Bjelke-Petersen and Others, 1982).
The issues before the court were the ‘race’ power and the external affairs power. In regards to the race power, the court was asked to determine whether the Racial Discrimination Act was legal. Initially section 51 (xxvi) allowed the commonwealth to make laws on behalf of all people regardless of the race however the Aboriginal were explicitly exempted from this law. However, the 1967 referendum on the Aboriginal people removed the exemption was removed classifying them under the commonwealth(Act & Act 1976).
In the context of external affairs power, the issue before the court was whether the Act could accurately be viewed as an external affair as it functioned within the confines of Australia. The Paris Convention Case and the Seas and Submerged land Case had approved the use of external land affairs power to implement universal agreements. 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. Section 51 (xxix) of the constitution empowered the parliament to make laws with respect to external affairs. However, the term external affairs was an ambiguous statement. The Commonwealth argued that since Australia was a signatory to the CERD, it was part of the external powers implied in the section(Trlin 1984).
Court Ruling and Significance
The court ruling on the above issues, by the narrowest margin of 4 against 3, the Racial Discrimination Act was binding and that in essence the RDA had precedence over state laws by virtue of the external affairs power under section 52 (xxix) of the commonwealth constitution. The RDA was enacted to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination. Therefore, the external affairs power in the Constitution gave the Commonwealth the power to pass it(United Nations 1966).
The ruling sustained the legitimacy of the RDA and further recognized the Australian Government use of external affairs power of implementing accords that does not pertain to the international community. This was a landmark ruling that would also be applied in the case involving the Tasmanian Dam and the Industrial Relations Acts case bolstering its place in the Australian law.
As for the part of Koowarta vs. Bjelke Petersen for blocking the sale of the lease advanced to the Supreme Court. The court ruled in favour of John Karawara and the sale of the lease was supposed to proceed. However in a last act of defiance in what would be later be referred to as spite and prejudice by the Australian Conservation Foundation, the defendant declared the portion of land in question a national park. This was termed as a move to ensure that the Aboriginal did not have access to the land but in 6th October 2010, it was announced that 75,000 hectares of the National park would be reverted to the Wik-Mungkana people as freehold land (Koowarta v Bjelke-Petersen and Others, 1982).
The RDA to this day acts as a protection against the uncompensated extinguishment or impairment of native title, other than as authorised by the Native Title Act 1993 (Edelman 2009). More generally, the RDA overrides inconsistent State laws by operation of s 109 of the Constitution. To that extent, it can be said to have constitutionalised a norm of international law against racial discrimination. Section 9 (1) of the RDA provides that (Koowarta v Bjelke-Petersen and Others, 1982), “It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin 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 in the political, economic, social, cultural or any other field of public life.” Section 12 on the other side prohibits racial discrimination in relation to the disposal of the estates or interests in land cases. This was the backbone of the case and in these two sections; the plaintiff had a strong case. As the defendants, we had the burden of proof of showing the illegality of the RDA and to what extent the Aboriginal were exempted from these sections. Based on the prevailing attitudes towards racial discrimination both locally and within the international community, the case was a race case and as the defendants, we were bound to lose (High Court of Australia , 1982).
Aftermath of the Case
The majority of the judges invoked the power of parliament to make laws with respect to the external affairs as conferred by section 51 (xxix). This were the basis used to give the RDA effect to the convention. The High Court upheld the validity of laws made by the Australian Parliament, which imported norms of conduct derived from international law and applied them to the way in which Australians were to deal with each other. Sir Ninian Stephen in his ruling in favour of the validity of the RDA said (High Court of Australia , 1982),
“The great post-war expansion of the areas properly the subject-matter of international agreement has ... made it difficult indeed to identify subject-matters which are of their nature not of international but of only domestic concern ... 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.”
The weakness in the defence argument was that the section was special law for the people of nay race in reference to the aboriginal. However the court’s interpretation was different, the race power wan never meant to support the RDA because the Act applied equally to all people and therefore declassifying it from its reference as a special law (Koowarta v Bjelke-Petersen and Others, 1982).
The prevailing perception was that the legislative arm of the government had a significant role to play in the elimination of racial discrimination. The enactment of the RDA would therefore be termed a critical step on the part of the government to stand in solidarity with the international community. In view with this, the common law was inadequate as it provided with very few effective remedies against discrimination in the exercise of human rights regardless of whether this was based on race, colour, or any other grounds (High Court of Australia , 1982). The moment the defence case was presented and interpreted within the context of discrimination was a fatal mistake. When the RDA was being enacted in parliament, the Australian parliament held that (Koowarta v Bjelke-Petersen and Others, 1982), “the proscribing of racial discrimination in legislative form will require legal sanctions. These will also make people more aware of the evils, the undesirable and unsociable consequences of discrimination - the hurtful consequences of discrimination - and make them more obvious and conspicuous.” The cabinet decision to deny the purchase of the lease was based on the fact that they did not view favourably the proposal for the aboriginal to acquire additional freehold or leasehold land for development. The cabinet policy suggested that the land available for the Aboriginal was sufficient, as it was already reserved and available for their use. The court interpretation of this policy was that the consent for the transfer of the lease was refused based on the Aboriginal race, colour, and ethnic origin of John and other members of the group. This was a clear case of discrimination (High Court of Australia , 1982).
It was unfair for the Bjelke- Petersen government to deny Kowaarta the victory by turning the aggrieved piece of land to part of the national park. In the year 2010, the premier Anna Bligh pursued the enactment of law that would revert Bjelke Petersen move to classify the piece of land as a national park. Two years later her predecessor Premier Campbell Newman issued the Aboriginal with titles and apologized for what he termed as a great injustice against them 35 years ago (High Court of Australia , 1982)
Act, A. & Act, S.D., 1976. Race Relations Act 1976 1976. Current, (c), pp.1–88.
Edelman, D., 2009. Broader native title settlements and the meaning of the term “ traditional owners .” In AIATSIS Native Title Conference. p. 12.
Genovese, A., 2014. Critical decision, 1982: Remembering Koowarta v Bjelke-Petersen. Griffith Law Review, 23(1), pp.1–15.
High Court of Australia , 1982. Koowarta v Bjelke-Petersen  HCA 27; (1982) 153 CLR 168 (11 May 1982). [Online]
Available at: https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1982/27.html
[Accessed 23 May 2018].
Kirby, H.M., 2014. Koowarta: A vital turning point for Aboriginal rights and Australia summing up the symposium. Griffith Law Review, 23(1), pp.127–144.
Koowarta v Bjelke-Petersen and Others (1982)
Tehan, M., 2014. Practising law and politics in 1980s’ Australia: The liberating effect of Koowarta v Bjelke-Petersen. Griffith Law Review, 23(1), pp.92–109.
Trlin, A.D., 1984. Australia’s Racial Discrimination Act 1975: A review of difficulties encountered by the Commissioner for Community Relations, 1975–1982. Ethnic and Racial Studies, 7(4), pp.494–516.
United Nations, 1966. International convention on the elimination of all forms of racial discrimination. United Nations Treaty Series, 660(January 1969), p.195.
Vertovec, S., 2007. Super-diversity and its implications. Ethnic and Racial Studies, 30(6), pp.1024–1054.
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