HIGH COURT OF AUSTRALIA

                                                       Koowarta

                                                           Vs.

                                                   Bjelke-Petersen

     (Gibbs C.J.(1), Stephen(2), Mason(3), Murphy(4), Aickin(5), Wilson(6)and Brennan(7) JJ. )

                                                     11 May 1982

GIBBS C.J.

1. These two matters raise for decision important questions as to as amended ("the Act"). (at p175)

2. In the first matter, an order has been made for the removal into this Court of parts of a cause
pending in the Supreme Court of Queensland between John Koowarta, as plaintiff, and the
Honourable Johannes Bjelke-Petersen and others, as defendants. The facts alleged in the statement
of claim delivered in that action include the following. The plaintiff is an Aboriginal, and is and at
all material times has been a member of a group of Aboriginal people known as the Winychanam
Group resident at Aurukun and elsewhere in the State of Queensland ("the group"). The Aboriginal
Land Fund Commission ("the Commission") is a body corporate constituted by the Aboriginal Land
Fund Act 1974 (Cth). (That Act has now been repealed, but that is not material.) At all material
times prior to June 1977 John Herbert Broinowski and others were lessees from the Crown in right
of the State of Queensland of land in Northern Queensland known as Archer River Pastoral
Holding. In the years 1974 to 1976, the plaintiff on behalf of himself and other members of the
group requested the Commission to acquire the said lease to enable the land to be used by or for the
plaintiff and other members of the group for grazing purposes and otherwise; the Commission
acceded to the said request; the plaintiff and the Commission cooperated and combined in making
inquiries and taking steps with a view to the acquisition of the said lease and with a view to the use
of the land for the said purposes of the plaintiff and other members of the group; and the
Commission in February 1976 entered into a written contract with the lessees for the purchase of the
said lease and certain cattle and horses thereon. By virtue of cl. 25 of the said contract and of the
provisions of the Land Act 1962 (Q.) any sale or transfer of the lease was subject to the approval or
permission of the Minister for Lands of the State of Queensland. By letter dated 23 March 1976 the
solicitors for the Commission, with the approval of the lessees, sought the consent or permission of
the second defendant, who was then Minister for Lands of the State of Queensland, to the transfer of
the lease to the Commission. In or about June 1976 the second defendant refused to grant consent or
permission to the transfer of the said lease. On or about 8 December 1976 the second defendant, in
his capacity as Minister for Lands, stated the reason for refusing to grant approval or permission to
such transfer. The statement contained the following passage:

"The question of the proposed acquisition of Archer River Pastoral Holding comes within the ambit
of declared Government policy expressed in Cabinet

       decision of September 1972, which stated: -
       'The Queensland Government does not view favourably proposals to acquire large areas
       of additional freehold or leasehold land for development by Aborigines or Aboriginal
       groups in isolation.'
       In the light of this policy the recent development whereby the Aboriginal Land Fund
       Commission sought to acquire by transfer Archer River Pastoral Holding was reported
       in detail to State Cabinet, whereupon Cabinet said in June 1976 -
       '(1) That Cabinet's policy regarding Aboriginal reserve lands, as approved in Decision
       No. 17541 of 4 September 1972 remain unchanged.
       (2) That in accordance with such policy and as it is considered that sufficient land in
       Queensland is already reserved and available for use and benefit of Aborigines, no
       consent be given to the transfer of Archer River Pastoral Holding No. 4785 to the
       Aboriginal Land Fund Commission.'"

The Cabinet policy referred to in this statement was the reason, or the dominant reason, why the
Cabinet decided that no consent should be given to the transfer of the lease to the Commission and
why the second defendant refused to grant consent or permission for such transfer. In these
circumstances (so it is alleged) the Cabinet, and the second-named defendant, acted contrary to the
provisions of the Act, and unlawfully, in refusing to consent to the transfer of the lease to the
Commission by reason of the Aboriginal race, colour or ethnic origin of the plaintiff or of the
plaintiff and other members of the group as associate or associates of the Commission. In
consequence of these matters the plaintiff has suffered loss, and loss of dignity, injury to feelings
and humiliation. The plaintiff claims declarations, an injunction and damages. (at p177)

3. The defendants delivered a defence and demurrer. By their defence the defendants, besides
putting in issue some of the plaintiff's allegations of fact, raised certain questions of law; they
alleged that the Act is not a law of the kind mentioned in s. 51(xxvi) of the Constitution and is
outside the legislative power of the Commonwealth and invalid. The demurrer was based on the
ground that the Act is invalid, and also on the ground that the plaintiff is not, within the meaning of
the Act, a person aggrieved by the matters alleged in the statement of claim and does not otherwise
have locus standi to bring the action. The paragraphs of the defence that raise those questions of
law, and the demurrer, are the parts of the cause that have been removed into this Court. The
provisions of the Act which it was claimed rendered unlawful the actions of the Minister and the
Cabinet were ss. 9 and 12. Although the defendants, by their defence and demurrer, claim that the
Act is entirely invalid, it is apparent that for the purposes of this action it is unnecessary to decide
upon the validity of any section of the Act other than s. 9 or s. 12. (at p177)

4. The second matter now before the Court is an action brought in this Court by the State of
Queensland against the Commonwealth claiming a declaration that the Act is ultra vires and invalid.
The statement of claim contains no allegations that the Act, if valid, would be inconsistent with any
legislation of the State of Queensland, or that it would inhibit any administrative action, actual or
contemplated, of the State, and Counsel for the State were unable to suggest that the Act, if valid,
would at present adversely affect any interest of the State, except in the manner alleged in the action
brought by Mr. Koowarta. There is no doubt that the State of Queensland has standing to invoke the
provisions of the Constitution to challenge the validity of Commonwealth legislation which extends
to, and operates within, the State: see Victoria v. The Commonwealth and Hayden [1975] HCA 52;
(1975) 134 CLR 338, at pp 381, 401 and authorities there cited. Clearly the State has the necessary
standing to bring this action against the Commonwealth. However, the power of a court to make a
declaration is discretionary (Forster v. Jododex Aust. Pty. Ltd. [1972] HCA 61; (1972) 127 CLR
421, at pp 435-438 ; and Attorney-General (Q.) v. Attorney-General (Cth) [1915] HCA 39 [1915]
HCA 39; ; (1915) 20 CLR 148, at p 165 ), and in the present case it appeared convenient, in the
exercise of the Court's discretion, to confine the argument on validity to those sections of the Act
which have been shown to have present practical consequences if they are valid, viz., ss. 9 and 12.
There are some other provisions which are also of present importance, but they are ancillary or
procedural, and stand or fall with ss. 9 and 12. The argument was accordingly limited to the validity
of those sections as to which the contest is not merely abstract or hypothetical. However, the
decision in the case will determine the main issues on which the validity or invalidity of the Act
depends, i.e. whether its principal provisions are validly enacted under par. (xxvi) or par. (xxix) of s.
51 of the Constitution. It will leave outstanding further questions - in particular whether the
provisions of s. 5 of the Act, which are intended to give certain other sections an additional
operation in relation to a person who has been an immigrant, are validly enacted under s. 51(xxvii),
and whether, assuming that s. 10 of the Act is otherwise valid, the definitions of "Aboriginal" and
"Torres Strait Islander" in s. 3(1) of the Act give to s. 10 a wider operation than is consistent with
constitutional validity. Present circumstances do not call for a decision on those questions. (at p178)

5. The Act was passed, as its preamble shows, to give effect to an international convention entitled
the "International Convention on the Elimination of All Forms of Racial Discrimination" (the
Convention) to which Australia is a party. The Commonwealth signed the Convention on 13
October 1966 and ratified it on 30 September 1975. By s. 7 of the Act, approval is given to the
ratification. A copy of the text of the Convention is set out in the schedule to the Act. The preamble
to the Convention refers, inter alia, to the Charter of the United Nations, the Universal Declaration
of Human Rights and the United Nations Declaration on the Elimination of All Forms of Racial
Discrimination, and recites (inter alia) that the States Parties to the Convention, "Reaffirming that
discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle
to friendly and peaceful relations among nations and is capable of disturbing peace and security
among peoples and the harmony of persons living side by side even within one and the same State, .
. . . Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its
forms and manifestations, and to prevent and combat racist doctrines and practices in order to
promote understanding between races and to build an international community free from all forms
of racial segregation and racial discrimination, . . . . Desiring to implement the principles embodied
in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to
secure the earliest adoption of practical measures to that end", have agreed as follows. Article 1(1)
provides:
"In this Convention, the term 'racial discrimination' shall mean any 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
human rights and fundamental freedoms in the political, economic, social, cultural or any other field
of public life."
Article 2(1) provides (inter alia) as follows:
"States Parties condemn racial discrimination and undertake to pursue by all appropriate means and
without delay a policy of eliminating racial discrimination in all its forms and promoting
understanding among all

       races, and, to this end:
       ...
       (d) Each State Party shall prohibit and bring to an end, by all appropriate means,
       including legislation as required by circumstances, racial discrimination by any persons,
       group or organisation;
       ..."
Article 5 commences with the following words:
"In compliance with the fundamental obligations laid down in article 2 of this Convention, States
Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee
the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality
before the law, notably in the enjoyment of the following rights:".
The article then sets out the rights to which it refers, including the following:

"(d) Other civil rights, in particular:
...
(v) The right to own property alone as well as in association with others;
...
(ix) The right to freedom of peaceful assembly and association;
...
(e) Economic, social and cultural rights, in particular: (i) The rights to work, to free choice of
employment, to just and favourable conditions of work, to protection against unemployment, to
equal pay for equal work, to just and favourable remuneration;
...
(iii) The right to housing;
. . . " (at p180)

6. The Act contains, in s. 3(1), a number of definitions. Those relevant to the present case are the
following:
"'dispose' includes sell, assign, lease, let, sub-lease, sub-let, license or mortgage, and also includes
agree to dispose and grant consent to the

disposal  of;"

"'relative', in relation to a person, means a person who is related to the first-mentioned

person by blood, marriage, affinity or adoption and includes a person who is wholly or

mainly dependent on, or is a member of the household of, the first-mentioned person".

Sub-sections (3) and (4) of s. 3 provide as follows:
"(3) For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of
an act and a reference to an act includes a reference to such a refusal or failure. (4) A reference in
this Act to the doing of an act by a person includes a reference to the doing of an act by a person in
association with other persons."
The provisions designed to prohibit racial discrimination are found in Pt II of the Act. That part
contains in s. 9 a general provision rendering any racial discrimination unlawful and in a number of
sections, including s. 12, specific provisions which are intended to make particular forms of racial
discrimination unlawful. The provisions of s. 9 and 12, so far as they are material, are as follows:
"9.(1) 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.
(2) The reference in sub-section (1) to a human right or fundamental freedom in the political,
economic, social, cultural or any other field of public life includes a reference to any right of a kind
referred to in Article 5 of the Convention.
...
(4) The succeeding provisions of this Part do not limit the generality of sub-section (1)."
"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;
(b) to dispose of such an estate or interest or such accommodation to a second person on less
favourable terms and conditions than those which are or would otherwise be offered;
(c) to treat a second person who is seeking to acquire or has acquired such an estate or interest or
such accommodation less favourably than other persons in the same circumstances;
(d) to refuse to permit a second person to occupy any land or any residential or business
accommodation; or
(e) to terminate any estate or interest in land of a second person or the right of 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 18 provides as follows:
"A reference in this Part to the doing of an act by reason of the race, colour or national or ethnic
origin of a person includes a reference to the doing of an act for two or more reasons that include
the first-mentioned reason, provided that reason is the dominant reason for the doing of the act."
Part III of the Act deals inter alia with civil proceedings that may be brought under the Act. Section
24(1) provides as follows:
"A person aggrieved by an act that he considers to have been unlawful by reason of a provision of
Part II may subject to this section institute a proceeding in relation to the act by way of civil action
in a court of competent jurisdiction for any one or more of the remedies specified in section 25."
The remedies specified in s. 25 include an injunction, an order directing the defendant to do a
specified act and -

"(d) damages against the defendant 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 . . . . "

Sections 9 and 12 of the Racial Discrimination Act. (at p181)

7. We are not directly called on to decide whether the refusal of the Minister to grant consent,
approval or permission to the transfer was unlawful by reason of either s. 9 or s. 12. The parts of the
first matter removed into this Court raise the question of the validity of those sections, not that of
their meaning or application. However, if, as a matter of law, the refusal of the Minister was not
unlawful by reason of s. 9 or s. 12, even on the assumption that those sections are valid, it would
hardly be necessary, in Mr. Koowarta's action, to examine the question whether those sections are
valid. It does therefore seem desirable to consider whether either section is applicable to the facts
alleged. There can of course be no doubt that a reason for the refusal of the Minister to consent to
the transfer of the lease was the race, colour or ethnic origin of the Aborigines who, it was intended,
would use the land the subject of the lease. The refusal to grant consent to the transfer of the lease
was a refusal to dispose of an estate or interest in land within s. 12: see the definition of "dispose" in
s. 3(1). However, the transfer to which consent was sought was a transfer to the Commission, and
the question arises whether a refusal to dispose of an interest in land to a body corporate can
constitute a breach of s. 12. By s. 22(a) of the Acts Interpretation Act 1901 (Cth), as amended, in
every Act, unless the contrary intention appears, "person" shall include a body corporate as well as
an individual. Does a contrary intention appear in s. 12? The provisions of that section reveal that
the "second person" there mentioned must be capable either of having race, colour or national or
ethnic origin, or of having a relative or associate. A corporation is of course incapable of possessing
race, colour or ethnic origin, but it can in my opinion be said to have a national origin - which
would be the place where the corporation was incorporated: see Janson v. Driefontein Consolidated
Mines Ltd (1902) AC 484, at pp 497, 501, 505 . Further, although obviously a corporation cannot
have a "relative" within the meaning given to that expression by s. 3(1) of the Act, it is possible,
without undue straining of language, to say that a person can be an associate of a corporation.
According to the Shorter Oxford English Dictionary, "associate", when used as a substantive,
means, "One who is united to another by community of interest, etc.; a partner, comrade,
companion". Although obviously a corporation cannot have an associate in the sense of a comrade
or companion, it seems to me possible to say that a person who is in business in partnership with a
corporation, or who has some other community of interest uniting him with the corporation, is
associated with it. Provisions such as those of s. 12, which are intended to preserve and maintain
freedom from discrimination, should be construed beneficially. For that reason I would conclude
that the provisions of s. 12 do not reveal an intention contrary to that indicated by s. 22(a) of the
Acts Interpretation Act, and that a "second person" within the meaning of s. 12 may include a
corporation. Whether Mr. Koowarta was an associate of the Commission would of course be a
question of fact. If he was, the case would appear to fall within s. 12(1) of the Act. (at p182)

8. However, it is doubtful whether s. 9 has any application to the facts alleged. That section is very
widely drawn and its width produces considerable uncertainty as to its effect. No doubt the refusal
to consent to the transfer of the lease was the doing of an act (see s. 3(3)) and it was an act which
involved a distinction based on race, colour or ethnic origin, because it was based on the Cabinet
policy that drew a distinction between Aborigines and other persons in relation to the acquisition of
large areas of additional freehold or leasehold land. The question then is whether that act had the
purpose or effect of nullifying or impairing the recognition, enjoyment or the exercise on an equal
footing of any human right or fundamental freedom. It was submitted by the learned Solicitor-
General for Victoria that it is meaningless to speak of "human right or fundamental freedom", since
our law does not classify rights or freedoms in that way. However, I regard it as clear that "any
human right" referred to in s. 9 includes rights of the kind specified in Art. 5 of the Convention.
Nevertheless the facts pleaded do not in my opinion reveal that the act of the Minister nullified or
impaired the recognition, enjoyment or exercise of any of those rights by Mr. Koowarta. It was
submitted on behalf of Mr. Koowarta that the refusal to consent to the transfer of the lease impaired
his exercise of the rights specified in pars. (d)(v) and (ix) and (e)(i) and (iii) of Art. 5. It is
impossible to say that the Minister, by refusing to consent to the transfer of the lease to the
Commission, impaired Mr. Koowarta's right to freedom of peaceful assemby and association, his
right to work or to the free choice of employment, or his right to housing. A person must use his
own rights in such a way that they do not interfere with those of another, and one who has a right to
assemble peacefully and to associate with others, or a right to work or to free choice of
employment, is not entitled to invade another's property for the purpose of giving effect to that
right. It would be to depart altogether from the ordinary sense of the words to say that a refusal to
consent to the transfer of a lease of land impairs the enjoyment or exercise of the right to freedom of
peaceful assembly and association, or the right to work and to the free choice of employment, of a
person who wishes to use the land for the purpose of assembling, or associating with others, or
working, there. A more serious question is whether the refusal to consent to the transfer of the lease
impaired the exercise of Mr. Koowarta's right to "own" property. The consent sought was to the
transfer of the lease to the Commission, not to Mr. Koowarta. If the Commission had acquired the
lease, it had power, under s. 20 of the Aboriginal Land Fund Act 1974 (Cth), either to grant to an
Aboriginal corporation an interest in land for the purpose of enabling the members of that
corporation to occupy that land, or to grant to an Aboriginal land trust an interest in land for the
purpose of enabling Aborigines to occupy that land. It is not alleged in the statement of claim that
Mr. Koowarta was a member of an Aboriginal corporation or that it was intended that he should be
granted an interest in land by an Aboriginal land trust. Since the attempt by the Commission to
acquire the lease was made at the request of Mr. Koowarta, for the purpose of enabling the land to
be used by or for himself and other members of the group, it can perhaps be inferred that the
Commission would have taken some action under s. 20 which would have had the consequence that
Mr. Koowarta would be enabled to used the land. However, it cannot be inferred that the
Commission would have granted an interest to an Aboriginal land trust rather than to an Aboriginal
corporation. It is not clear that a member of an Aboriginal corporation would have anything more
than a licence to use the land. Although the word "own" in Art. 5(d)(v) should no doubt be given a
wide meaning, it seems to be going too far to hold that the right to "own" property includes a right
to mere possession under a licence to occupy. (at p184)

9. What I have said assumes that the "human right or fundamental freedom" with which we are
concerned is that of Mr. Koowarta, rather than that of the Commission. The reference in s. 9 to
"human" rights, and in Art. 5 to "the right of everyone", suggest that those provisions are concerned
with the rights of natural persons. Indeed most of the rights mentioned in Art. 5 by their very nature
could only be enjoyed by natural persons, but some, including the right to "own" property, could be
enjoyed by a corporation. The word "person" appears in s. 9(1) only with reference to the doer of
the unlawful act; in this respect s. 9 differs from s. 12, and from the legislation considered in
Attorney-General v. Antigua Times (1976) AC 16, at pp 24-26 , where the word refers to the person
whose right is impaired. The context provided by s. 9 and Art. 5 leads me to conclude that s. 9 is not
intended to apply to the rights of artificial persons such as corporations. (at p184)

10. I doubt whether the facts alleged constitute a breach of s. 9 of the Act, but, since others may
take a different view, I think it convenient to consider whether the section is valid.

"Person Aggrieved". (at p184)

11. The question that then arises is whether Mr. Koowarta was "aggrieved" by the act of the
Minister that he considers to have been unlawful by reason of s. 9 or s. 12. The words "person
aggrieved" have appeared in many statutes, English and Australian, and their meaning has been
discussed in many cases. In the end of course the meaning of the words must depend on the context
of the particular statute. It has often been said that the words connote a person with a legal
grievance: see In re Sidebotham (1880) 14 ChD 458, at p 465 ; Buxton v. Minister of Housing and
Local Government (1961) 1 QB 278, at p 285 . The cases under the Trade Marks Acts to which we
were referred are consistent with that view; they suggest that a person is "aggrieved" by an act
which operates in restraint of what would otherwise have been his legal rights: Powell v.
Birmingham Vinegar Brewery Co. (1894) AC 8, at pp 10, 12 ; Attorney-General (N.S.W.) v.
Brewery Employe's Union of N.S.W. [1908] HCA 94; (1908) 6 CLR 469, at pp 497, 519, 550 ;
Continental Liqueurs Pty. Ltd. v. G. F. Heublein and Bro. Inc. [1960] HCA 37; (1960) 103 CLR
422, at p 427 . However, in Attorney-General (Gambia) v. N'Jie (1961) AC 617, at p 634 , Lord
Denning, delivering the judgment of the Privy Council, said that the words are of wide import and
should not be subjected to a restrictive interpretation. He added (1961) AC 617, at p 634 :
"They do not include, of course, a mere busybody who is interfering in things which do not concern
him: but they do include a person who has a genuine grievance because an order has been made
which prejudicially affects his interests."

It may be assumed that Mr. Koowarta had a genuine grievance, because the refusal of consent
prejudicially affected his interests. Indeed, assuming that the Commission would have permitted
him to use the land, the refusal deprived him of the possibility of obtaining a legal right to go on to
the land. It was submitted that only the person directly affected by the refusal, the Commission,
could be "aggrieved" by the refusal. However, in determining the meaning of the expression "person
aggrieved" in s. 24 of the Act it is necessary to have regard to the remedies which such a person
may obtain under s. 25. These include damages in respect of loss suffered by the person aggrieved
by the relevant act and loss of dignity by, humiliation to, or injury to the feelings of, a person
aggrieved by the relevant act. If the refusal of consent proves to have been unlawful, Mr. Koowarta
may be able to obtain damages of that kind. In all these circumstances it seems to me that he is a
"person aggrieved" and entitled to maintain the proceedings. Section 51 (xxvi) of the Constitution.
(at p185)

12. I then turn to the question whether ss. 9 and 12 of the Act are validly enacted, and consider first
whether they are laws within s. 51(xxvi) of the Constitution. (at p185)

13. Section 51(xxvi) in its original form enabled the Parliament to make laws with respect to 

"The people of any race, other than the aboriginal race in any State, for whom it is deemed
necessary to make special laws."

The words "other than the aboriginal race in any State" were deleted by constitutional amendment in
1967. It is now competent for the Parliament to make special laws with respect to the people of the
Aboriginal race. (at p186)

14. It would be a mistake to suppose that s. 51(xxvi) was included in the Constitution only for the
purpose of enabling the Parliament to make laws for the special protection of people of particular
races. Quick and Garran, in their Annotated Constitution of the Australian Commonwealth (1901),
correctly observed, at p. 623, that by "sub-sec. xxvi the Federal Parliament will have power to pass
special and discriminating laws relating to 'the people of any race'." Such laws might validly
discriminate against, as well as in favour of, the people of a particular race. As Professor Sawer has
pointed out in an article, "The Australian Constitution and the Australian Aborigine", published in
the Federal Law Review, vol. 2 (1966) 17, at p 20 - " (xxvi) was intended to enable the
Commonwealth to pass the sort of laws which before 1900 had been passed by many States
concerning 'the Indian, Afghan and Syrian hawkers; the Chinese miners, laundrymen, market
gardeners, and furniture manufacturers; the Japanese settlers and Kanaka plantation labourers of
Queensland, and the various coloured races employed in the pearl fisheries of Queensland and
Western Australia'. Such laws were designed 'to localize them within defined areas, to restrict their
migration, to confine them to certain occupations, or to give them special protection and secure their
return after a certain period to the country whence they came'." However, it is clear that under s.
51(xxvi), in its present form, the Parliament has power to make laws prohibiting discrimination
against people of the Aboriginal race by reason of their race. (at p186)

15. However ss. 9 and 12 are not directed to the protection of people of the Aboriginal race. They
prohibit discrimination generally on the ground of race; that is, they protect the persons of any race
from discriminatory action by reason of their race. On behalf of the Commonwealth it was
submitted that the Act is a special law within par. (xxvi) because it selects as its subject the people
of any race against whom discrimination on racial grounds is, or may be, practised. This argument
cannot be accepted, for it gives insufficient weight to the words "for whom it is deemed necessary to
make special laws". It is true that in some contexts the word "any" can be understood as having the
effect of "all", but it would be self-contradictory to say that a law which applies to the people of all
races is a special law. It is not possible to construe par. (xxvi) as if it read simply "The people of all
races". In the context provided by par. (xxvi), the word "any" is used in the sense of "no matter
which". The Parliament may deem it necessary to make special laws for the people of a particular
race, no matter what the race. If the Parliament does deem that necessary, but not otherwise, it can
make laws with respect to the people of that race. The opinion of Parliament that it is necessary to
make a special law need not be evidenced by an express declaration to that effect; it may appear
from the law itself. However, a law which applies equally to the people of all races is not a special
law for the people of any one race. Sections 9 and 12 of the Act deal with discrimination against the
people of all races. It is impossible to describe those sections as laws with respect to "the people of
any race for whom it is deemed necessary to make special laws". (at p187)

16. Section 10(3) of the Act does specifically refer to certain laws which relate to Aboriginals or
Torres Strait Islanders. That provision may well be a law of the kind described in par. (xxvi), if the
definition of "Aboriginal" and "Torres Strait Islander" in s. 3(1) of the Act is not so wide as to
include persons who are not of either race. I have already indicated that that is a question which
does not now fall for decision and I express no views upon it. (at p187)

17. For these reasons I hold that the challenged sections are not valid laws of the kind described in s.
51(xxvi).

Section 51 (xxix) of the Constitution. (at p187)

18. It is then necessary to consider whether ss. 9 and 12 of the Act are laws with respect to external
affairs and so within the power conferred on the Parliament by s. 51(xxix) of the Constitution. By s.
4, the Act extends to every external Territory, but we are not concerned with its validity as a law of
a Territory. The challenged provisions, so far as we are concerned with them, operate entirely within
Australia - indeed, entirely within one State. They deal with a matter which is purely domestic, in
that they render unlawful an act done within Australia by one Australian to or in relation to another
and taking effect only within Australia. The effect which, if valid, they have in the present case, viz.
the invalidation of a refusal to consent to the transfer of a Crown lease, could not be achieved by the
Commonwealth Parliament under any other paragraph of s. 51. It was submitted on behalf of the
Commonwealth that ss. 9 and 12 are laws with respect to external affairs because they give effect to
Australia's obligations under the Convention, which is an external affair within s. 51(xxix). In the
alternative, a wider submission was advanced, namely that ss. 9 and 12 give effect to an obligation
imposed on Australia by the rules of customary international law and by the Charter of the United
Nations to promote universal respect for, and observance of, human rights and fundamental
freedoms, that failure to carry out that obligation could have affected Australia's relations with other
countries, and that the obligation was an external affair within s. 51(xxix). (at p188)

19. Since the very inception of the Constitution it has been recognized that s. 51(xxix) - that
"somewhat dark" power, as Professor Harrison Moore called it (see Law Quarterly Review, vol.
16(1900), at p. 39) - creates grave difficulties of interpretation. Quick and Garran in their Annotated
Constitution of the Australian Commonwealth were not wrong when they said (at p. 631) that it
"may hereafter prove to be a great constitutional battle-ground". The expression "external affairs" is
imprecise and indeed ambiguous. It might in one sense be understood as referring to matters or
things geographically situated outside Australia. The meanings of the words "external" and "affairs",
considered separately, are wide enough to support that interpretation. However, if the phrase is
considered as a whole, its natural meaning is matters concerning other countries. When the word
"affairs" is used in the phrase "foreign affairs" it has the sense of "public business, transactions or
matters concerning men or nations collectively" (see Oxford English Dictionary), and the word
"foreign" indicates that such business, transactions or matters take place in or with other countries,
or concern other countries. In the first case in which the nature of the power was considered at
length, R. v. Burgess; Ex parte Henry (1936) 55 CLR 608 , it was held by all members of the Court
that the words of s. 51(xxix) are used in that sense. Latham C.J. said (1936) 55 CLR, at p 643 :

"The regulation of relations between Australia and other countries, including other countries within
the Empire, is the substantial subject matter of external affairs."
He could see no distinction between "external affairs" and "foreign relations" (1936) 55 CLR, at p
643 . Starke J. said (1936) 55 CLR, at p 658 :
"But what else are external affairs of a State - or, to use the more common expression, the foreign
affairs or foreign relations of a State - but matters which concern its relations and intercourse with
other Powers or States and the consequent rights and obligations?"
Dixon J. said (1936) 55 CLR, at p 669 :
"I think it is evident that its purpose (i.e. the purpose of s. 51 (xxix)) was to authorize the Parliament
to make laws governing the conduct of Australians in and perhaps out of the Commonwealth in
reference to matters affecting the external relations of the Commonwealth."
Evatt and McTiernan JJ. said (1936) 55 CLR, at p 684 :
"Therefore the real question is - what is comprehended by the expression 'external affairs'. It is an
expression of wide import. It is frequently used to denote the whole series of relationships which
may exist between States in times of peace or war. It may also include measures designed to
promote friendly relations with all or any of the nations . . . It would seem that, in sec. 51 of the
Constitution, the phrase 'external affairs' was adopted in preference to 'foreign affairs', so as to make
it clear that the relationship between the Commonwealth and other parts of the British Empire, as
well as the relationship between the Commonwealth and foreign countries, was to be
comprehended." (at p189)

20. It has never been doubted that the words of s. 51(xxix) are wide enough to empower the
Parliament, in some circumstances at least, to pass a law which carries into effect within Australia
the provisions of an international agreement to which Australia is a party. Indeed, Professor
Harrison Moore regarded the enactment of laws for the execution of treaties made by or otherwise
affecting the Commonwealth as "perhaps the most obvious subject for the operation of the power":
The Commonwealth of Australia, 2nd ed., (1910), p. 461. In Roche v. Kronheimer (1921) 29 CLR
329 , Higgins J. considered that a statute passed to provide machinery within Australia for enforcing
certain provisions of the Treaty of Peace which affected the property, rights and interests of enemy
aliens could be upheld under s. 51(xxix) as well as under s. 51(vi). In R. v. Burgess; Ex parte Henry,
the Court upheld the validity under s. 51(xxix) of so much of a section of a Commonwealth statute
as authorized the making of regulations for carrying out and giving effect to an international
convention for the regulation of aerial navigation (the Paris Convention) to which Australia was a
party. The majority of the Court however held that the regulations did not carry out and give effect
to the convention, and were invalid. New regulations made to carry out and give effect to the Paris
Convention were upheld in R. v. Poole; Ex parte Henry (No. 2) [1939] HCA 19; (1939) 61 CLR 634
. In Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) [1965] HCA 3[1965] HCA 3; ; (1965)
113 CLR 54 the Court held that certain regulations which gave effect to the Chicago Convention on
International Civil Aviation were validly made - according to three members of the Court, under
both s. 51(xxix) and the trade and commerce power, and, in the view of one justice, under s.
51(xxix) alone. In New South Wales v. The Commonwealth [1975] HCA 58; ; (1975) 135 CLR 337
, the Court, by a majority, upheld the validity of a law which provided that sovereignty in respect of
the territorial sea should be vested in the Crown in right of the Commonwealth and unanimously
held valid that part of the law which provided that the sovereign rights of Australia in respect of the
continental shelf should be vested in and exercisable by the Crown in right of the Commonwealth.
The majority of the Court held that that part of the law which related to the territorial sea was within
the power conferred by s. 51(xxix) on the ground that it gave effect to the Convention on the
Territorial Sea and the Contiguous Zone. However, three members of the Court, Barwick C.J.,
Mason and Jacobs JJ., relied on the further ground that the power given by s. 51(xxix) was not
limited to authorizing laws with respect to Australia's relationships with foreign countries, but
extended to any matter or thing situated or done outside Australia (1975) 135 CLR, at pp 360, 470-
471, 497 . It is unnecessary to consider whether the words of par. (xxix) can have this dual
operation, i.e. whether the phrase "external affairs" can be used to mean matters outside the
Commonwealth as well as matters involving a relationship between Australia and other countries.
(at p190)

21. However, it is clear that the external affairs power is not limited to the making of laws with
respect to matters geographically external to Australia. Such an interpretation of the paragraph is
quite unsupported by any judicial dictum and would be completely at variance with the decisions in
R. v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 ; R. v. Poole; Ex parte Henry
(No. 2) [1939] HCA 19; (1939) 61 CLR 634 ; R. v. Sharkey [1949] HCA 46[1949] HCA 46; ;
(1949) 79 CLR 121 ; and Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) [1965] HCA 3;
(1965) 113 CLR 54 . There is nothing in the words by which the power is conferred to suggest that
the power should be limited to laws dealing with matters and things occurring outside Australia, for
it is a power to make laws with respect to the peace, order and good government of the
Commonwealth and that suggests that conduct within Australia may be included within the scope of
the power. Laws providing that diplomatic representatives of other countries should be recognized
and given diplomatic privileges within Australia, or providing how fugitive offenders from another
country should be dealt with in Australia, would clearly be within s. 51(xxix), although they dealt
with things done or to be done only within Australia. In those examples, the law, although operating
within Australia, operates in respect of persons by reason of their connexion with another country.
But, even on the narrowest view of the power, laws which regulate conduct within Australia by
Australians may be laws with respect to external affairs. An example of such a law is provided by R.
v. Sharkey where it was held that laws making it an offence to publish within Australia words
calculated to excite disaffection within Australia against the government of a dominion with which
we enjoy friendly relations would be a valid exercise of the power conferred by s. 51(xxix) (1949)
79 CLR, at pp 136-137, 157, 163 . The three cases concerning aerial navigation provide a further
example, because the conduct there regulated consisted of flying an aircraft in certain circumstances
within the limits of Australia. In all the examples given the law, although operating within Australia,
was one with respect to a subject-matter which involved a relationship with other countries. (at
p191)

22. Two other matters were settled by the decisions to which I have referred. First, it is clear that s.
51(xxix) contains "a distinct and independent grant of power" (to use the words of Quick and
Garran, op. cit., p. 631); it is not merely ancillary to other powers possessed by the Parliament.
Secondly, the power granted by par. (xxix), like all other powers given by s. 51, is subject to the
Constitution. It is therefore clear that the power is subject to any restriction which the Constitution
expressly imposes (e.g. by such sections as ss. 92 and 116): see R. v. Burgess; Ex parte Henry
(1936) 55 CLR, at pp 642-643, 658, 687 ; Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2)
(1965) 113 CLR, at pp 85, 87, 118, 165 . In R. v. Burgess; Ex parte Henry (1936) 55 CLR, at p 658 ,
Starke J. said that the power "must be exercised with regard to the various constitutional limitations
expressed or implied in the Constitution, which restrain generally the exercise of Federal powers",
and in Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) (1965) 113 CLR, at p 85 , Barwick
C.J. said that the power is "subject only to constitutional prohibitions express or implied". Although
other members of the Court have not expressly agreed that the power is subject to implied
limitations, it seems to me impossible to draw a distinction between constitutional limitations which
are express and those which are implied; if the power is subject to the Constitution, it is subject to
what must be implied, as well as to what is expressed. In the light of Melbourne Corporation v. the
Commonwealth [1947] HCA 26; (1947) 74 CLR 31 , and the other cases which I discussed in
Victoria v. The Commonwealth [1971] HCA 16; (1971) 122 CLR 353, at pp 416-424 , it should I
think be held that a law made under s. 51(xxix) would not be valid if it discriminated against States
or if it prevented a State from continuing to exist and function as such. It is unnecessary to discuss
this matter further in the present case. The Act does not infringe any of the express prohibitions
contained in the Constitution. Its provisions do not prevent a State from continuing to exist and
function. However, in deciding whether the power given by par. (xxix) extends to enable the
Parliament to enact the provisions of ss. 9 and 12 of the Act, it will be necessary, as will be seen, to
have regard to the fact that the Constitution is a federal and not a unitary one. (at p192)

23. The crucial question in the case is whether under the power given by s. 51(xxix) the Parliament
can enact laws for the execution of any treaty to which it is a party, whatever its subject-matter, and
in particular for the execution of a treaty which deals with matters that are purely domestic and in
themselves involve no relationship with other countries or their inhabitants. In the most important of
the cases (R. v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 ; R. v. Poole; Ex parte
Henry (No. 2) (1939) 61 CLR 634 ; Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) [1965]
HCA 3; (1965) 113 CLR 54 ; and New South Wales v. The Commonwealth [1975] HCA 58; (1975)
135 CLR 337 ) in which it has been held that laws to give effect to treaties can validly be made
under the external affairs power, the treaties in question had, in themselves, an international
element; they affected the relations between Australia and other countries in some direct way. Thus
a convention for the control of air navigation deals with a matter which in itself can be described as
an external affair, because "(t)he regulation of air navigation may well be regarded as an entire
subject no part of which could be considered as necessarily of no concern to other countries": R. v.
Burgess; Ex parte Henry (1936) 55 CLR, at p 670 , per Dixon J., since "(n)ot only must all aircraft
use the same air and the same aerodromes . . . but all must use the same communication and other
aids which modern science has produced and all must obey the same rules if safety, regularity and
efficiency are to be maintained in the conduct of inter-State and overseas air operations in
Australia": Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) (1965) 113 CLR, at p 166 . A
treaty which recognizes rights of external sovereignty in the territorial sea and the continental shelf
also deals with matters clearly international in character; its subject-matter can in itself be described
as an external affair. Similarly the Treaty of Peace whose provisions were applied within Australia
by the law upheld in Roche v. Kronheimer [1921] HCA 25; (1921) 29 CLR 329 also referred to
matters of an international character, since it enabled any allied power to deprive German subjects
of their property for the satisfaction of obligations of other German subjects, or of Germany, to the
Allies or to subjects of the Allies (1921) 29 CLR, at p 339 . In no case has it been decided whether
or not the Parliament has power to give effect to a treaty which deals with a matter that is entirely
domestic, and affects only Australians within Australia, and their relations to each other, and does
not involve any relationship between Australia or Australians and other countries or their citizens.
The question which now falls for decision is therefore an open one. (at p193)

24. It should be made clear that no question arises as to the power of Australia to enter into the
Convention. The Governor-General, exercising the prerogative power of the Crown, can make
treaties on subjects which are not within the legislative power of the Commonwealth. However, the
treaties when made are not self-executing; they do not give rights to or impose duties on members
of the Australian community unless their provisions are given effect by statute. The power of the
Parliament to carry treaties into effect is not necessarily as wide as the executive power to make
them. This was made clear by the Judicial Committee in Attorney-General (Canada) v. Attorney-
General (Ontario) (1937) AC 326, at p 348 , where their Lordships said:
". . . in a federal State where legislative authority is limited by a constitutional document, or is
divided up between different Legislatures in accordance with the classes of subject-matter submitted
for legislation, the problem is complex. The obligations imposed by treaty may have to be
performed, if at all, by several Legislatures; and the executive have the task of obtaining the
legislative assent not of the one Parliament to whom they may be responsible, but possibly of
several Parliaments to whom they stand in no direct relation. The question is not how is the
obligation formed, that is the function of the executive; but how is the obligation to be performed,
and that depends upon the authority of the competent Legislature or Legislatures."
That case arose under the Canadian Constitution, but as their Lordships indicated the question is one
that arises in all federal States. The question was discussed by Stephen J. in New South Wales v.
The Commonwealth where his Honour said (1975) 135 CLR, at p 445 : "Divided legislative
competence is a feature of federal government that has, from the inception of modern federal states,
been a well recognized difficulty affecting the conduct of their external affairs."
After mentioning that as a partial remedy recourse has in some instances been had to the use of
special federal nation clauses so as to limit the obligations of such nations with respect to those
special matters which fall within the legislative competence of a member State of their federations,
Stephen J. continued as follows (1975) 135 CLR, at p 446 :
"Whatever limitation the federal character of the Constitution imposes upon the Commonwealth's
ability to give full effect in all respects to international obligations which it might undertake, this is
no novel international phenomenon. It is no more than a well recognized outcome of the federal
system of distribution of powers and in no way detracts from the full recognition of the
Commonwealth as an international person in international law."
His Honour of course dissented from the result in that case so far as the territorial sea was
concerned, but that does not affect the authority of his remarks on this point. With all respect, I
cannot agree with the suggestion of Murphy J. in the same case, at p. 503, that if the Parliament
were not able to legislate to enable Australia to fulfil its international obligations, Australia would
be "an international cripple unable to participate fully in the emerging world order". Their Lordships
in Attorney-General (Canada) v. Attorney-General (Ontario) (1937) AC, at pp 353-354 pointed out
that their decision in that case that legislation of the Dominion of Canada giving effect to certain
conventions was ultra vires did not have the result that Canada was incompetent to legislate in
performance of treaty obligations. They said (1937) AC, at p 354 :
"In totality of legislative powers, Dominion and Provincial together, she is fully equipped. But the
legislative powers remain distributed, and if in the exercise of her new functions derived from her
new international status Canada incurs obligations they must, so far as legislation be concerned,
when they deal with Provincial classes of subjects, be dealt with by the totality of powers, in other
words by co-operation between the Dominion and the Provinces."
Whether or not the external affairs power has the wide scope that is claimed for it by the
Commonwealth in the present case, Australia is fully equipped in totality of legislative powers.
Whether international obligations, so far as they concern matters with regard to which the
Parliament has no legislative power except that claimed to be conferred by s. 51(xxix), can be
effected only by legislation of the States is of course the question that arises in this case. But if that
question is answered in the affirmative, the Commonwealth and the States together have plenary
power. (at p195)

25. The question which arises in Australia is one which arises in all federal communities, but cases
decided under other constitutions, which are materially different from our own, provide little
assistance in answering it. The answer to the question, so far as Australia is concerned, depends
entirely upon the proper construction of the Australian Constitution. (at p195)

26. The question with which we are now concerned was fully discussed in R. v. Burgess; Ex parte

Henry [1936] HCA 52; (1936) 55 CLR 608 , but no final answer was given to it. Two members of

the Court, Evatt and McTiernan JJ., were clearly of the opinion that the Parliament has power to

make laws to give effect to any international agreement to which the Commonwealth is a party.

After referring to Geofroy v. Riggs [1890] USSC 41; (1890) 133 US 258, at p267 (33 LawEd 642,

at p 645) , where Field J. had said that "it is not perceived that there is any limit to the questions

which can be adjusted touching any matter which is properly the subject of negotiation with a

foreign country", their Honours continued (1936) 55 CLR, at pp 680-681 :

"But it is a consequence of the closer connection between the nations of the world (which has been

partly brought about by the modern revolutions in communication) and of the recognition by the

nations of a common interest in many matters affecting the social welfare of their peoples and of the

necessity of co-operation among them in dealing with such matters, that it is no longer possible to

assert that there is any subject matter which must necessarily be excluded from the list of possible

subjects of international negotiation, international dispute or international agreement."

They     further  said  (1936)  55  CLR,     at  p681  :

"In truth, the King's power to enter into international conventions cannot be limited in advance of

the international situations which may from time to time arise. And in our view the fact of an

international convention having been duly made about a subject brings that subject within the field

of international relations so far as such subject is dealt with by the agreement."

Accordingly, they concluded (1936) 55 CLR, at p 687 :

"It would seem clear, therefore, that the legislative power of the Commonwealth over 'external

affairs' certainly includes the power to execute within the Commonwealth treaties and conventions

entered           into  with        foreign      powers."

Indeed, they went further, and said that Parliament may well be competent to legislate for the

carrying out of recommendations, draft conventions or requests upon subject-matters of concern to

Australia as a member of the family of nations (1936) 55 CLR, at p 687 . They did suggest,

however, that if the entry into a convention was a mere device to procure for the Commonwealth an

additional domestic jurisdiction the position might be different (1936) 55 CLR, at p 687 . Latham

C.J. seems to have been of a similar opinion, although he expressed his views less categorically. He

rejected the view that "the power to legislate with regard to external affairs is limited to matters

which in se concern external relations or to matters which may properly be the subject matter of

international agreement". He said (1936) 55 CLR, at p 640 :

"No criterion has been suggested which can result in designating certain matters as in se concerning

external relations and excluding all other matters from such a class. It is very difficult to say that
any matter is incapable of affecting international relations so as properly to become the subject

matter of an international agreement. It appears to me that no absolute rule can be laid down upon

this                                                                                 subject."

He seems to have expressed a view as wide as that of Evatt and McTiernan JJ. when he said (1936)

55      CLR,              at           p                                   644                    :

"The Commonwealth Parliament was given power to legislate to give effect to international

obligations binding the Commonwealth or to protect national rights internationally obtained by the

Commonwealth whenever legislation was necessary or deemed to be desirable for this purpose."

On the other hand, Dixon J. was of opinion that the power was subject to some limits. He said

(1936)  55          CLR,           at                              p            669               :

"If a treaty were made which bound the Commonwealth in reference to some matter indisputably

international in character, a law might be made to secure observance of its obligations if they were

of a nature affecting the conduct of Australian citizens. On the other hand, it seems an extreme view

that merely because the Executive Government undertakes with some other country that the conduct

of persons in Australia shall be regulated in a particular way, the legislature thereby obtains a power

to enact that regulation although it relates to a matter of internal concern which, apart from the

obligation undertaken by the Executive, could not be considered as a matter of external affairs. The

limits of the power can only be ascertained authoritatively by a course of decision in which the

application of general statements is illustrated by example."

Starke J. expressed, although tentatively, a similar, but not identical, view, saying (1936) 55 CLR, at

p                             658                                                                 :

"The Commonwealth cannot do what the Constitution forbids. But otherwise the power is

comprehensive in terms and must be commensurate with the obligations that the Commonwealth

may properly assume in its relations with other Powers or States. It is impossible, I think, to define

more accurately, at the present time, the precise limits of the power. It may be . . . that the laws will

be within power only if the matter is 'of sufficient international significance to make it a legitimate

subject for international co-operation and agreement'." (at p197)

27. In Ffrost v. Stevenson [1937] HCA 41; (1937) 58 CLR 528, at p 599 , Evatt J. repeated the

views which he had expressed in the joint judgment in R. v. Burgess; Ex parte Henry. He said: "It is

obvious that, if Australia has power to give effect to any of the obligations bona fide entered into as

an international person, she has power to give effect to them all." In the subsequent cases, only

Murphy J. has expressed so wide a view: see New South Wales v. The Commonwealth (1975) 135

CLR, at pp 502-503 . Other judges who have discussed the matter have either rejected the theory

that the Parliament has power to give effect within Australia to the provisions of any international

agreement to which Australia is a party, whatever its subject-matter, or have cautiously left the

matter open. In Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2), Barwick C.J. said (1965)

113           CLR,            at                                      p85                         :

"I find no need in this case for any general discussion of the external affairs power . . . Suffice it

now to say that in my opinion the Chicago Convention, having regard to its subject matter, the

manner of its formation, the extent of international participation in it and the nature of the

obligations it imposes upon the parties to it unquestionably is,

      or, at any rate, brings into existence, an external affair of Australia.
      In thus enumerating matters which in this case point to the Convention being or
      creating an external affair of Australia, I would not wish to be thought to say that all
      these features must in every case be present if a treaty or a convention is to attract the
      external affairs power, but I would wish to be understood as indicating that in my
      opinion, as at present advised, the mere fact that the Commonwealth has subscribed to
      some international document does not necessarily attract any power to the
      Commonwealth Parliament."

In the same case Menzies J. said (1965) 113 CLR, at p 136 : "Under the Constitution, s. 51(xxix.)

'External affairs', the Commonwealth has power to make laws to carry out its international

obligations under a convention with other nations concerning external affairs." Windeyer J. (1965)

113 CLR, at p 153 said in that case that he wished "to avoid entering upon the controversial question

of whether the mere making of a treaty between the Commonwealth and some foreign country upon

any subject can enlarge the constitutional powers of the Commonwealth Parliament." Mason J. also

left the matter open in New South Wales v. The Commonwealth when he said (1975) 135 CLR, at

p470                                                                                         :

"There is abundant authority for the proposition that the subject matter extends to Australia's

relationships with other countries and in particular to carrying into effect treaties and conventions

entered into with other countries, provided at any rate that they are truly international in character."

(at p198)

28. There are strong arguments which support the conclusion that s. 51(xxix) does not empower the
Parliament to give effect in Australia to every international agreement, whatever its character, to
which Australia is a party. If the Parliament is empowered to make laws to carry into effect within
Australia any treaty which the Governor-General may make, the result will be that the executive
can, by its own act, determine the scope of Commonwealth power. Moreover, the power might be
attracted not only by a formal agreement, such as a treaty, but also by an informal agreement: see R.
v. Burgess; Ex parte Henry (1936) 55 CLR, at p 687 . If the view of Evatt and McTiernan JJ. is
correct, the executive could, by making an agreement, formal or informal, with another country,
arrogate to the Parliament power to make laws on any subject whatsoever. It could, for example, by
making an appropriate treaty, obtain for the Parliament powers to control education, to regulate the
use of land, to fix the conditions of trading and employment, to censor the press, or to determine the
basis of criminal responsibility - it is impossible to envisage any area of power which could not
become the subject of Commonwealth legislation if the Commonwealth became a party to an
appropriate international agreement. In other words, if s. 51(xxix) empowers the Parliament to
legislate to give effect to every international agreement which the executive may choose to make,
the Commonwealth would be able to acquire unlimited legislative power. The distribution of powers
made by the Constitution could in time be completely obliterated; there would be no field of power
which the Commonwealth could not invade, and the federal balance achieved by the Constitution
could be entirely destroyed. (at p198)

29. Of course it has been established, since the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129
, that it is an error to read s. 107 of the Constitution, which continues the powers of the Parliaments
of the States, "as reserving any power from the Commonwealth that falls fairly within the explicit
terms of an express grant in sec. 51, as that grant is reasonably construed, unless that reservation is
as explicitly stated" (1920) 28 CLR, at p 154 . However, in determining the meaning and scope of a
power conferred by s. 51 it is necessary to have regard to the federal nature of the Constitution.
"Accordingly, no single power should be construed in such a way as to give to the Commonwealth
Parliament a universal power of legislation which would render absurd the assignment of particular
carefully defined powers to that Parliament": Bank of N.S.W. v. The Commonwealth (1948) 76
CLR 1, at pp 184-185 , per Latham C.J. This principle has been applied by the Court in cases
involving the defence power, which resembles the external affairs power in the vagueness with
which the power is described, and in its potentially expansive nature. In R. v. Foster [1949] HCA

16; (1949) 79 CLR 43 , in the joint judgment of Latham C.J. and Rich, Dixon, McTiernan, Williams

and Webb JJ. the following appears (1949) 79 CLR, at p 83 :

"If it were held that the defence power would justify any legislation at any time which dealt with

any matter the character of which had been changed by the war, or with any problem which had

been created or aggravated by the war, then the result would be that the Commonwealth Parliament

would have a general power of making laws for the peace, order and good government of Australia

with respect to almost every subject. Nearly all the limitations imposed upon Commonwealth power

by the carefully framed Constitution would disappear and a unitary system of government, under

which general powers of law-making would belong to the Commonwealth Parliament, would be

brought into existence notwithstanding the deliberate acceptance by the people of a Federal system

of government upon the basis of the division of powers set forth in the Constitution. We proceed to

state reasons why the Court should not ascribe an operation so far-reaching and, indeed,

revolutionary,  to                             the  defence  power."

Similarly in Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1,

at p 203 , Dixon J. said: "The Federal nature of the Constitution is not lost during a perilous war. If

it is obscured, the Federal form of government must come into full view when the war ends and is

wound up." There is much less reason to allow the external affairs power to obscure the federal

nature of the Constitution than there is in the case of the defence power. And, as Kitto J. said in

Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) (1965) 113 CLR, at p 115 :

"The Australian union is one of dual federalism, and until the Parliament and the people see fit to

change it, a true federation it must remain. This Court is entrusted with the preservation of

constitutional distinctions, and it both fails in its task and exceeds its authority if it discards them,

however out of touch with practical conceptions or with modern conditions they may appear to be in

some or all of their applications." (at p200)

30. No effective safeguard against the destruction of the federal character of the Constitution would
be provided by accepting the suggestion of Evatt and McTiernan JJ. in R. v. Burgess; Ex parte
Henry (1936) 55 CLR, at p 687 , that the power given by s. 51 (xxix) might not be attracted if "the
entry into the convention was merely a device to procure for the Commonwealth an additional
domestic jurisdiction". It would be unlikely that an international agreement would be entered into as
a mere device. It would not be enough to establish bad faith to show that the executive, when it
made a treaty, was fully aware that the Parliament had no legislative power to deal with the subject-
matter of the treaty except that which would arise under s. 51 (xxix) once the treaty was concluded.
Suppose, for example, that the executive genuinely believed that working hours should be reduced
(or increased), that Australia ought to joint in an international agreement to that effect, and that it
would be beneficial if, by entering into an agreement, the Parliament acquired a legislative
competence it otherwise lacked. The entry into the agreement in those circumstances could hardly
be described as a mere device, or as done in bad faith. The doctrine of bona fides would at best be a
frail shield, and available in rare cases. (at p200)

31. If the "extreme view" is adopted, and the broadest possible interpretation is given to the words
of s. 51 (xxix), that paragraph would mean that the power of the Commonwealth Parliament could
be expanded by simple executive action, and expanded in such a way as to render meaningless that
"limitation and division of sovereign legislative authority" which is "of the essence of federalism":
Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226, at p 274 . It is apparent that a narrower
interpretation of par. (xxix) would at once be more consistent with the federal principle upon which
the Constitution is based, and more calculated to carry out the true object and purpose of the power
which, after all, is expressed to relate, not to internal or domestic affairs, but to external affairs. I
conclude, therefore, that the view of Evatt and McTiernan JJ. must be rejected, and that a law which
gives effect within Australia to an international agreement will only be a valid law under s. 51
(xxix) if the agreement is with respect to a matter which itself can be described as an external affair.
I consider that a law which carries into effect the provisions of an international agreement will only
have the character of a law with respect to external affairs if the provisions to which it gives effect
answer that description. An analogy suggested by the learned Solicitor-General for Victoria is a
useful one; just as an interstate contract does not necessarily give rise to interstate trade or
commerce, so an agreement made between a number of nations does not necessarily contain
provisions which are international in character. It seems to me immaterial that the agreement
resulted from much international discussion and negotiation, that many nations are parties to it, and
that there is international interest in it. Since the law whose validity is to be tested is one that gives
legal effect within Australia to the provisions of the agreement, the test must be whether the
provisions given effect have themselves the character of an external affair, for some reason other
than that the executive has entered into an undertaking with some other country with regard to them.
The words used by Starke J. in R. v. Burgess; Ex parte Henry (1936) 55 CLR, at p 658 are not free
from ambiguity. If by "international significance" he meant simply "international concern" there
would be little practical difference between his approach and that of Evatt and McTiernan JJ., since
under modern conditions there are few matters which are not regarded as fit subjects for
international agreement. It is, I think, more likely that Starke J. was speaking of the character of the
subject-matter of the agreement, and that he meant to refer to the international character of the
matter to which the agreement referred. It is difficult to suggest any more precise test than that
indicated by Dixon J. in the same case (1936) 55 CLR, at p 669 - was the treaty made in reference to
some matter international in character? The addition by Dixon J. of the adverb "indisputably" was, I
think, intended to do no more than emphasize that a treaty on such a subject would, beyond doubt,
be within the power. It is clear, however, that Dixon J. did not consider that an agreement was
international in character merely because it was made between the executive Government of
Australia and some other country or countries. (at p201)

32. What I have said is not intended to suggest that there is a limited class of matters which, by their
nature, constitute external affairs, and that only such matters are subject to the power conferred by s.
51 (xxix). Any subject-matter may constitute an external afair, provided that the manner in which it
is treated in some way involves a relationship with other countries or with persons or things outside
Australia. A law which regulates transactions between Australia and other countries, or between
residents of Australia and residents of other countries, would be a law with respect to external
affairs, whatever its subject-matter. However, for the reasons I have given I consider that a matter
does not become an external affair simply because Australia has entered into an agreement with
other nations with regard to it. (at p202)

33. In the course of argument it was submitted that if s. 51 (xxix) was understood to have the effect
which I have suggested, the Commonwealth Parliament would lack the power to give effect to
treaties which, for example, were vital to the preservation of peace or the maintenance of trade.
However, it is hardly necessary to point out that there are other powers conferred by s. 51 which
would support legislation carrying international agreements into effect within Australia. The widest
of such powers are probably those conferred by pars. (i) and (vi) of s. 51, but there are many others.
In the present case no power conferred by any other paragraph of s. 51 would support the Act,
although, as I have said, s. 51(xxvi) would have supported a special law for the prevention of
discrimination against people of the Aboriginal race. In the circumstances, it is unnecessary to
consider the manner in which the power given by par. (xxix) interacts with those given by other
paragraphs of s. 51. (at p202)

34. In support of the argument that the Act is within the power conferred by s. 51(xxix), the learned
Solicitor-General for the Commonwealth naturally placed considerable reliance on the circumstance
that the protection of human rights against racial discrimination had, by the time that the Act was
passed, become a topic which was the subject of much international debate. There is no doubt that
many countries of the world have, or profess, a deep concern that human rights and fundamental
freedoms should be observed, and that racial discrimination should be eliminated, throughout the
world. There is no need for me to refer to the international conventions and declarations in which
that concern has been expressed. The fact that many nations are concerned that other nations should
eliminate racial discrimination within their own boundaries does not mean that the domestic or
internal affairs of any one country thereby become converted into international affairs. There may
be legitimate international concern as to the domestic affairs of a nation. An Australian law which is
designed to forbid racial discrimination by Australians against Australians within the territory of
Australia does not become international in character, or a law with respect to external affairs, simply
because other nations are interested in Australia's policies and practices with regard to racial
discrimination. It follows that I respectfully disagree with the suggestion by Murphy J. in Dowal v.
Murray (1978) 143 CLR 410, at pp 429-430 that the power given by s. 51(xxix) enables the
Parliament to legislate with respect to any subject of international concern. The examples given by
Murphy J. show that the acceptance of such a view would render the detailed specification of
Commonwealth powers in s. 51 almost completely irrelevant. (at p203)

35. Similarly, the argument for the Commonwealth is not advanced by pointing to the fact that,
under Art. 9 of the Convention, Australia was obliged to report to the Committee set up by the
Convention on the measures taken to give effect to the Convention. The provisions of the Act with
which we are concerned (ss. 9 and 12) say nothing as to that obligation, and the facts that Australia
is bound to make a report to an international body on domestic affairs, and that its relations with
other countries may be affected by the manner in which it conducts those domestic affairs, do not
cause a domestic affair to become an external affair. (at p203)

36. For these reasons ss. 9 and 12 of the Act were not within the legislative power conferred by s.
51(xxix) and are invalid. As I take this view, I need not consider whether those sections of the Act
carried out and gave effect to the provisions of the Convention. Section 9 does appear faithfully to
pursue the purposes of the Convention. Section 12, as I have already indicated, goes further than s.
9, but may nevertheless be regarded as an appropriate means adopted for the enforcement of the
Convention, and thus as satisfying the test suggested by Starke J. in R. v. Burgess; Ex parte Henry
(1936) 55 CLR, at pp 659-660 . On this aspect of the matter, Starke J. took a broader view than the
other justices in that case (see per Menzies J. in Airlines of N.S.W. Pty. Ltd. v. New South Wales
(No. 2) (1965) 113 CLR, at p 141 ) but it is unnecessary for me to choose between the competing
views for the purposes of the present case. (at p203)

37. The alternative argument of the Commonwealth was that Australia is obliged, by the rules of
customary international law, and the Charter of the United Nations, to promote the observance of
human rights and fundamental freedoms, and to prevent discrimination in Australia on the grounds
of race, and that a law may validly be made under s. 51(xxix) for the purposes of carrying out that
obligation. It is not submitted that this suggested rule of international law has become part of the
domestic law of Australia, and it is therefore unnecessary to discuss the question, which has been
considered by this Court in Chow Hung Ching v. The King (1948) 77 CLR 449, at pp 462, 477 and
more recently in England in Trendtex Trading Corporation v. Central Bank of Nigeria (1977) QB
529, at pp 553-554 , whether international law is incorporated into and forms part of the law of
Australia, or whether it becomes part of Australian law only when it has been accepted and adopted
by the law of Australia. On either view it is clear that the provisions of a Commonwealth or State
statute must be applied and enforced even if they are in contravention of accepted principles of
international law, although, where possible, statutes will be interpreted so as not to be inconsistent
with the established rules of international law: Polites v. The Commonwealth (1945) 70 CLR 60, at
pp 68-69, 74, 75-76, 77, 79, 80-81 . The provisions of s. 286 of the Land Act 1962 (Q.)
unambiguously provide that it is in the absolute discretion of the Minister whether he will grant or
refuse the permission without which a lease under that Act may not be transferred. Even if there
were in force in Australia a principle of international law which forbids racial discrimination, the
provisions of the Queensland statute would prevail over it. However, the argument is that the
external affairs power enables the Commonwealth Parliament to carry into effect within Australia
rules of international law that have become binding on Australia as a member of the international
community. (at p204)

38. The Charter of the United Nations reveals the importance which the members of that body
attach to respect for and observance of human rights and fundamental freedoms, without distinction
as to race, language or religion. The members of the United Nations pledge themselves to take joint
and separate action to achieve that purpose amongst others: see especially Art. 1(3), Art. 13, Art.
55(c), Art. 56, and Art. 62 of the Charter. "Since 1946 scholarly opinion has been divided on the
question whether the human rights provisions of the United Nations Charter impose legal
obligations": Egon Schwelb, "The International Court of Justice and the Human Rights Clauses of
the Charter", American Journal of International Law, vol. 66 (1972), at p. 338. The preponderance
of opinion appears to favour the view that the obligation upon members of the United Nations to
protect human rights and fundamental freedoms is of a legal character, although the machinery for
enforcement is imperfect and the rights and freedoms protected are not clearly defined. Support for
this view may be found in articles by Judge Tanaka (in Transnational Law in a Changing Society
(1972), p. 248) and Judge de Arechaga (in Recueil des Cours, vol. 159 (1978), pp. 174-177) as well
as in the writings to which Egon Schwelb refers. And further support for the view that a denial of
human rights by reason of racial discrimination may constitute a breach of international law is
provided by three cases in the International Court of Justice - the South West Africa Cases (1966)
ICJR 4 , the Namibia (S.W. Africa) (Advisory Opinion) (1971) ICJR 16 , and the Barcelona
Traction, Light and Power Co. Ltd. (Judgment) (1970) ICJR 3 . In the first of those cases, the
judgments of the dissenting judges expressed the view that it can be inferred from the provisions of
the Charter that "the legal obligation to respect human rights and fundamental freedoms is imposed
on member States" (per Judge Tanaka (1966) ICJR, at p 289 ) and that "(r)acial discrimination as a
matter of official government policy is a violation of a norm or rule or standard of the international
community" (per Judge Nervo (1966) ICJR, at p 464 ). In the second case the International Court
said that to establish and enforce "distinctions, exclusions, restrictions and limitations exclusively
based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of
fundamental human rights is a flagrant violation of the purposes and principles of the Charter"
(1971) ICJR, at p 57 . In the Barcelona Traction Case (1970) ICJR, at p 32 , it was said that certain
obligations of a State are owed to the international community as a whole, and that these include
those which "derive . . . from the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination". After referring to these cases Professor Brownlie, in Principles of
Public International Law, 3rd ed. (1979), pp. 596-597, stated the position as follows:
"There is indeed a considerable support for the view that there is in international law today a legal
principle of non-discrimination which at the least applies in matters of race. This principle is based,
in part, upon the United Nations Charter, especially Articles 55 and 56, the practice of organs of the
United Nations, in particular resolutions of the General Assembly condemning apartheid, the
Universal Declaration of Human Rights, the International Covenants on Human Rights and the
European Covention on Human Rights. An alternative view is that there is no legal principle of
racial non-discrimination as such but the international practice supports instead such a standard or
criterion as an aid to interpretation of treaties, including the Mandate agreement in issue in the
South West Africa cases." (at p205)

39. The acceptance of the view first mentioned by Professor Brownlie does not mean that at

international law a member of the United Nations is under a legal duty to prevent any act of racial

discrimination, however trivial it may be, and whether or not it was done mistakenly or even with

good intentions (as, for example, in the case of what is called reverse discrimination). It can readily

be understood that international law should treat a violation of human rights as not merely a matter

of domestic jurisdiction, but as a breach of international obligation, if the violation "threatens the

international peace and security" (Recueil des Cours, vol. 124 (1968), at p. 436, and see

Lauterpacht, International Law and Human Rights (1950), pp. 177-178) or if there are "gross

violations or consistent patterns of violations" (Recueil des Cours, vol. 124 (1968), at p. 436, and

see Recueil des Cours, vol. 159 (1978), at p. 175, and Sohn, "The Human Rights Law of the

Charter", Texas International Law Journal, vol. 12 (1977), p. 132). Genocide, torture, imprisonment

without trial, and wholesale deprivations of the right to vote, to work or to be educated provide

examples of violations of that kind. The act of discrimination alleged in the present case - the

exercise, in a discriminatory way, of a discretionary power to refuse consent to the transfer of a

Crown lease - stands on an entirely different plane. It could not in my opinion be said that the

refusal of the Minister to grant his consent was a gross violation of a human right or fundamental

freedom. In any case, it follows from what I have already said that the external affairs power does

not enable the Parliament to enact a law whose purpose is to give effect within Australia to an

international obligation, unless the subject-matter of that obligation is an external affair. If Australia

has an obligation under international law it can only be given effect within Australia in the manner

for which the Constitution provides, i.e., if the subject-matter is not within Commonwealth power,

by  a                   law  of  a  State.

Conclusions. (at p206)

40. The question for decision in this case is not whether the Minister was right or wrong in refusing
his consent to the transfer of the Crown lease; it is whether, under the Constitution as it stands, the
power of the Commonwealth Parliament extends to the enactment of ss. 9 and 12 of the Act. That
depends on whether those sections can be described as a law with respect to the people of any race
for whom it is deemed necessary to make special laws, or as a law with respect to external affairs.
They do not answer the former description, because they are not a special law with respect to the
people of a particular race, but apply generally to people of all races. They do not answer the latter
description, because their operation is entirely internal, within Australia, and involves no
relationship with any person, thing or country outside Australia. Since, at the present time, racial
equality is generally accepted as a desirable aim, this case tends to prove the prediction made by
Professor Sawer (in International Law in Australia, ed. O'Connell (1965), p. 45) that wide claims
for the scope of the power conferred by s. 51 (xxix) are most likely to be made when the nature of
the case is such as to make a broad interpretation probable. However, I have endeavoured to explain
the reasons for the interpretation which in my opinion the Constitution requires. To understand the
power as becoming available merely because Australia enters into an international agreement, or
merely because a subject-matter excites international concern, would be to ignore the federal nature
of the Constitution. It would be to allow the Commonwealth, under a power expressed to be with
respect to external affairs, to enact a bill of rights entirely domestic in its effect - a bill of rights to
which State legislation and administrative actions would be subject, but which would of course not
necessarily have the same effect on Commonwealth legislation or administrative action. My
rejection of so wide an interpretation does not mean either that Australia is unable to fulfil her
international obligations - that can be done by co-operative action between the Commonwealth and
the States - or that the Parliament is unable, if such co-operation is not forthcoming, to protect the
people of the Aboriginal race from discrimination - that can be done under the power conferred by
s. 51 (xxvi). (at p207)

41. In Koowarta v. Bjelke-Petersen, I would allow the demurrer. (at p207)

42. In Queensland v. The Commonwealth, I would declare that ss. 9 and 12 of the Racial
Discrimination Act 1975 (Cth), as amended, in so far as those sections apply within the State of
Queensland, are outside the powers of the Parliament of the Commonwealth and are invalid. (at
p207)

STEPHEN J. The Constitution confers upon the Parliament of the Commonwealth power to make
laws for the peace, order and good government of the Commonwealth with respect to "The people
of any race for whom it is deemed necessary to make special laws" (s. 51 (xxvi) and with respect to
"External affairs", s. 51 (xxix)). These actions raise for decision the content of these two grants of
legislative power. They do so by reference to challenges to the validity of Commonwealth
legislation, the Racial Discrimination Act 1975. (at p207)

2. In Koowarta v. Bjelke-Petersen the plaintiff alleges breaches of the Racial Discrimination Act,
claiming to be a person aggreived under that Act and accordingly entitled to seek in his action the
several remedies claimed in his statement of claim. The defendants by their defence and demurrer
challenge the validity of the Act as well as denying that the plaintiff is a person aggrieved or has any
locus standi to sue. In Queensland v. The Commonwealth the plaintiff State challenges the validity
of many provisions of the Racial Discrimination Act and seeks a declaration of the invalidity of the
Act as a whole or of certain of its provisions. (at p208)

3. Since I have concluded that in Mr. Koowarta's action he does have standing to sue, I turn
immediately to the constitutional questions, deferring for the moment my reasons for according him
locus standi. An appreciation of the constitutional questions is aided by some indication of the
circumstances in which Mr. Koowarta's action arises. It is common ground that in 1975 the
Aboriginal Land Fund Commission, a body corporate under Commonwealth legislation, contracted
to buy a Crown leasehold pastoral property in northern Queensland; that it was a term of the
contract and a consequence of the Land Act 1962 (Q.) that transfer of the Crown lease would
require the permission of the State's Minister for Lands; that consent to that transfer was sought
from but was refused by the Minister; and that a reason for his refusal was that the settled policy of
the Queensland Government was to view unfavourably proposals to acquire "large areas of
additional freehold or leasehold land for development by Aborigines or Aboriginal groups in
isolation". (at p208)

4. The Minister's refusal to consent to the transfer of this Crown leasehold led to Mr. Koowarta's
action, in which he alleges that that refusal constituted a breach of provisions of the Racial
Discrimination Act. Although the proposed transferee was the Commission, not Mr. Koowarta, it
seems that it was he who was active in procuring the Commission to arrange for its purchase and
that he did so so that, together with other Aborigines, he might have the use of the property for
pastoral purposes once it was acquired by the Commission. This aspect will require closer
examination when Mr. Koowarta's standing to sue comes to be examined. (at p208)

5. The Parliament, in enacting the Racial Discrimination Act, prefaced the terms of the enactment

itself                by      the      following                              recitals:

"Whereas a Convention entitled the 'International Convention on the Elimination of all Forms of

Racial Discrimination' (being the Convention a copy of the English text of which is set out in the

Schedule) was opened

        for  signature    on       21  December                               1965:

        And whereas the Convention entered into force on 2 January 1969:

        And whereas it is desirable, in pursuance of all relevant powers of the Parliament,

        including, but not limited to, its power to make laws with respect to external affairs,

        with respect to the people of any race for whom it is deemed necessary to make special

        laws and with respect to immigration, to make provisions contained in this Act for the

        prohibition of racial discrimination and certain other forms of discrimination and, in

        particular, to make provision for giving effect to the Convention:".

It is, then, primarily, upon the grants of legislative power expressly referred to in the third recital,
those contained in pars. (xxvi), (xxvii) and (xxix) of s. 51 of the Constitution, that the Act relies.
However those provisions of the Act which are supported by s. 51 (xxvii), the immigration and
emigration power, are not presently in issue; it is exclusively with pars. (xxvi) and (xxix) of s. 51
that this judgment will deal. (at p209)

6. I turn first to par. (xxvi) of s. 51. The terms in which this grant of power is expressed are unusual.
The content of the laws which may be made under it are left very much at large; they may be
benevolent or repressive; they may be directed to any aspect of human activity; so long as they are
with respect to the people of a race such as is described in par. (xxvi) they will be within power.
Most grants of power in s. 51 are defined in terms either of some class of activity, as with "trade and
commerce with other countries" and "astronomical and meteorological observations", some
common governmental power or function, as with "taxation", and "census and statistics", or some
class of physical object, such as "lighthouses, lightships, beacons and buoys". In all such cases the
subject-matter of the grant of power is more or less apparent and identifiable on its face. However, a
grant of legislative power defined only by reference to a particular class of persons for whom laws
may be made under it is inherently less precise as to its permitted subject-matter; and when, as in
par. (xxvi), the class is no more specific than "the people of any race", the class depending for
further identification upon the legislature deeming it to be necessary to make special laws for its
members, the content of the power is determined by one sole criterion, that laws which may be
made under it must be special laws deemed necessary for the people of any race. (at p209)

7. Because the reference to "The people of any race" is qualified by the requirement that they should
be such that it is deemed necessary to make special laws for them, they must possess some quality
which calls for laws special to themselves. This requirement is more than a mere qualification of the
power; it also predicates a character which laws made under par. (xxvi) must possess: they must be
special laws, in the sense of having some special connexion with people of any race. It is true that
the grant of power is not in terms confined to the making of special laws, but from the description
of the laws which may be made under it - laws for those people of any race deemed in need of
special laws, it follows that it is special laws and only special laws which fall within par. (xxvi). It
cannot be that the grant becomes plenary and unrestricted once a need for special laws is deemed to
exist; that need will not open the door to the enactment of other than special laws. (at p210)

8. Although it is people of "any" race that are referred to, I regard the reference to special laws as
confining what may be enacted under this paragraph to laws which are of their nature special to the
people of a particular race. It must be because of their special needs or because of the special threat
or problem which they present that the necessity for the law arises; without this particular necessity
as the occasion for the law, it will not be a special law such as s. 51 (xxvi) speaks of. No doubt it
may happen that two or more races will share particular problems within the Australian community
and that this will make necessary the enactment of one law applying equally to those several races;
such a law will not necessarily forfeit the character of a law under par. (xxvi) because it legislates
for several races. A law will, however, not possess that character if it legislates for all peoples of the
Commonwealth, regardless of race, who happen to be confronted with or to present particular
problems deemed to call for legislative action. Nor will a law attain that character merely because
the problem with which it deals is one of discrimination on the ground of race; it will not be enough
that the law is one about race, the coincidence that its subject-matter happens to match one of the
words in par. (xxvi) will not of itself bring it within power. (at p210)

9. To be within power under par. (xxvi) a law must be special in the sense that it is the particular
race, or races, for whom it legislates that gives rise to the occasion for its enactment. The Racial
Discrimination Act is not such a law. True, it legislates about race and proscribes discrimination
upon the basis of race. But it is a perfectly general law, addressed to all persons regardless of their
race and requiring that the members of all races shall be free from discrimination on account of
race. It protects no particular race or races. As its recitals attest, its purpose is to give effect to the
International Convention, a copy of which is scheduled to the Act. That Convention, in its opening
recitals, stresses the promotion of universal respect for human rights and fundamental freedoms for
all without distinction; universality of application lies very much at its heart. The Act takes from the
Convention this quality, thereby denying to it the character of a special law to which par. (xxvi)
refers. (at p210)

10. The fact that in current Australian conditions the dominant Anglo-Saxon and Celtic races (if
indeed to employ such description conveys any sufficiently certain meaning) are in fact very much
less likely to require protection against racial discrimination than are other races does not, in my
view, suffice to make the Act one special to all those other races. Were it possible to say that in this
community only Aborigines faced the possibility of racial discrimination, an anti-discrimination law
expressed in general terms might perhaps be seen to be no less a special law within par. (xxvi) than
would a law expressly confined to the prohibition of discrimination against Aborigines. The
necessary special quality might perhaps be sufficiently attracted by facts dehors the legislation. Be
that as it may, such an argument does not seem to me to be open in the present case. (at p211)

11. It is for these reasons that I regard the Racial Discrimination Act as beyond the subject-matter of
the grant of power in s. 51(xxvi). (at p211)

12. The second relevant grant of power, the "External affairs" power conferred by s. 51(xxix), on its
face suggests no particular obscurity of meaning. Because the composite phrase "External affairs"
occurs as a grant of legislative power in a constitution for a nation, the meaning to be given to
"affairs" must be one apt to apply to a national government. One of the meanings of "affairs"
supplied by the Oxford English Dictionary, "public business, transactions or matters concerning men
or nations collectively", conveys that sense. The word "External" must in this constitutional context
qualify "affairs" so as to restrict its meaning to such of the public business of the national
government as relates to other nations or other things or circumstances outside Australia. It is
legislation for the peace, order and good government of the Commonwealth with respect to such a
subject-matter that the words of par. (xxix) appear to envisage. (at p211)

13. This is just such a grant of legislative power as might be anticipated in the constitution of a
modern nation state. Even a nation occupying an entire island continent cannot be "an Island entire
of it self", it will perforce have relations with foreign nations overseas, its foreign affairs; because
newly formed from self-governing colonies it will also have relations with the old imperial power
and with that power's other colonies, relations which, while scarcely answering the description of
"foreign affairs", will certainly be "external affairs", a phrase which, because it also extends to
Australia's truly foreign affairs, conveniently subsumes both categories of the nation's overseas
affairs. Accordingly it is natural enough to find such a power, expressed in these terms, among the
enumerated powers in s. 51. Indeed it would be anomalous had such a legislative power been
omitted from s. 51 when at the same time there existed a quite distinct treaty-making power. That
latter power was for some years after Federation regarded as possessed by the Imperial Crown but
has subsequently been treated as exercisable by the Governor-General pursuant to s. 61 of the
Constitution: see generally Zines, Commentaries on the Australian Constitution (1977), ch. 1. Its
exercise generally speaking leaves unaffected the state of Australian municipal law. Early drafts of
covering cl. 5 of the Constitution Act, apparently taking Art. VI of the United States Constitution as
their model, contemplated that treaties made by the Commonwealth should become law of the land
(see Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), pp.
345-346) but the Constitution as finally adopted attempted no such departure from settled common
law doctrine; the exercise of treaty-making power was not to create municipal law. For that
legislative action would be required. The existence of par. (xxix) avoids the anomaly which would
otherwise exist had the presence of this bare treaty-making power been left without any matching
legislative power to enact municipal law giving domestic effect to treaty rights and obligations. (at
p212)

14. What I have described as the natural contextual meaning of par. (xxix) includes, although it
extends rather further than, what may be called the highest common factor to be deduced from the
judgments in this Court concerning the meaning of the paragraph: namely, a power to implement by
legislation within Australia such treaties, on matters international in character and hence
legitimately the subject of agreement between nations, as Australia may become party to. This
minimal meaning, upon which all would agree, may be deduced from the following passages from
four of the leading authorities in this Court: R. v. Burgess; Ex parte Henry [1936] HCA 52 [1936]
HCA 52; ; (1936) 55 CLR 608, at pp 644, 658, 669, 687 ; Ffrost v. Stevenson [1937] HCA 41;
(1937) 58 CLR 528, at pp 596-597 ; Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2)
[1965] HCA 3; (1965) 113 CLR 54, at pp 85, 126, 136, 152 ; New South Wales v. The
Commonwealth [1975] HCA 58[1975] HCA 58; ; (1975) 135 CLR 337, at pp 360, 377-378, 390,
450, 470, 503 . (at p212)

15. A number of these judgments adopt a considerably wider view of par. (xxix). With much of this
debatable additional width of operation the instant cases have no concern. The real issue in these
cases is confined to the question whether this power to implement treaty obligations is subject to
any and if so what overriding qualifications derived from the federal nature of our Constitution. It is
such qualifications which, in my statement of a highest common factor, have led to the introduction
of the phrases "matters international in character" and "legitimately the subject of agreement
between nations". (at p213)

16. The need for such qualifications is said to arise in this way. Whereas, read in isolation, par.
(xxix) would seem to authorize legislation to give effect municipally to each and every international
obligation which Australia may incur, yet Australia is a federation possessing a constitution which
assigns carefully limited legislative power to the federal legislature, leaving the undefined residue of
legislative competence to the States. The power of the federal Executive to conclude treaties upon
any subject-matter it sees fit is undoubted. If it can thereby at will create such "external affairs" as it
wishes and if par. (xxix) then confers power upon the federal legislature to legislate with respect to
whatever external affair has thus been brought into being, this may place in jeopardy the federal
character of our polity, the residuary legislative competence of the States being under threat of
erosion and final extinction as a result of federal exercise of the power which par. (xxix) confers. (at
p213)

17. The authorities have made quite clear two things about the limits of the "External affairs" power.
First, the few express restrictions upon legislative power which appear in the Constitution restrict
the ambit of the power conferred by par. (xxix); like all other paragraphs of s. 51, par. (xxix) is
expressed to be "subject to this Constitution" and its grant of power must be read as subject to the
restraints upon legislative power imposed, for example, by ss. 92, 99, 114, 116 and 117 of the
Constitution. Secondly, the grant of power conferred by par. (xxix) is plenary in the sense that it is
not to be restricted by reference to the limited legislative competence conferred by the other
paragraphs of s. 51. What however remains unclear is the extent to which the federal nature of the
Constitution requires that limits be imposed upon the broad power to implement international
obligations seemingly conferred by par. (xxix), thus ensuring that exercise of that power will not
destroy the federal character of the polity. (at p213)

18. Suggestions that there are some such limits to the power recur in the cases, although their
precise nature is not very clearly defined. In Burgess (1936) 55 CLR, at p 658 Starke J. suggests that
the external affair may have to be "of sufficient international significance to make it a legitimate
subject for international co-operation and agreement", citing United States writings for that
proposition. Dixon J. (1936) 55 CLR, at p 669 would apparently confine the power to the
implementing of treaties which relate to "some matter indisputably international in character". On
the other hand, in that case Latham C.J. (1936) 55 CLR, at p 644 , and Evatt and McTiernan JJ.
(1936) 55 CLR, at p 687 recognized no such qualification. In Ffrost v. Stevenson (1937) 58 CLR
528 Evatt J. was emphatic that par. (xxix) conferred "a great and independent power" (1937) 58
CLR, at p 601 , extending to any obligations which Australia might have "bona fide entered into as
an international person" (1937) 58 CLR, at p 599 . However in the Airlines Case (1965) 113 CLR,
at p 85 Barwick C.J. said that "the mere fact that the Commonwealth has subscribed to some
international document does not necessarily attract any power to the Commonwealth Parliament"
(but cf. Windeyer J. (1965) 113 CLR, at p 152 ). Again in New South Wales v. The Commonwealth
[1975] HCA 58[1975] HCA 58; ; (1975) 135 CLR 337 Barwick C.J. may be thought to have
adhered to his earlier qualification of the power (1975) 135 CLR, at p 360 and Gibbs J. (1975) 135
CLR, at p 390 repeated the phrase of Dixon J. in Burgess, confining the power to matters
"indisputably international in character", a qualification also noticed by Mason J. (1975) 135 CLR,
at p 470 , although in slightly altered language. On the other hand, McTiernan J. (1975) 135 CLR, at
pp 377-378 and Murphy J. (1975) 135 CLR, at p 503 appear to favour an unqualified view of the
power. (at p214)
19. This concern about the ambit of the power to implement treaties municipally and the differences

of view to which the subject has given rise in this Court are not unique either to this Court or to this

Constitution; the fear lest the central government in a federation, by the exercise of its treaty

powers, destroy the realities of the federal polity is widespread. Oliver, speaking generally of

federations in "The Enforcement of Treaties by a Federal State", Recueil des Cours, vol. 141 (1974),

p.        333,  expresses    it  in  this                way,       at  p.                  350:

"A constitution would cease to be federal if the central government, without consultation with the

states, could enter into any treaty and by so doing increase the legislative powers of the central

government at the expense of the state legislatures. If the treaty power can cut across all reserved

powers and interdict the powers of the member states, then there are no real powers reserved to the

internal                                                                sovereignties",

and see J. A. Thomson, "A United States Guide to Constitutional Limitations upon Treaties as a

Source of Australian Municipal Law", University of Western Australia Law Review, vol. 13 (1977)

153, at pp. 177, 189. Whenever in any federation the division of legislative power between central

and regional governments encounters the customary treaty-making competence of the central

government such problems are likely to arise. (at p215)

20. Features of the Constitution's unique blend of Westminster system and federalism give to the
Australian problem an added dimension. Following British precedent the federal executive, through
the Crown's representative, possesses exclusive and unfettered treaty-making power and the Senate,
notionally at least the States' House, plays no part in the process, as it might have been expected to
do had principles of federalism prevailed in this area. Yet, unless s. 51(xxix) be given a wide
interpretation, domestic enforcement of treaty obligations may rest at least in part with the State
legislatures. Again, although the federal executive will, consistently with principles of responsible
government, be in effective control of the legislative process in the House of Representatives, it may
lack a majority in the Senate, so that even on a wide view of the power conferred by s. 51(xxix), the
federal executive, although armed with the treaty-making power, cannot always ensure
implementation of treaty obligations. (at p215)

21. In Foreign Affairs and the Constitution (1972), Louis Henkin describes, in terms which in many

respects recall arguments familiar in Australian constitutional debate, the long American history of

constitutional conflict regarding the treaty power and its ultimate resolution. He says at pp. 140-141

that:

"From our constitutional beginnings . . . there have been assertions that the Treaty Power was

limited by implications in the character of treaties and of the Treaty Power, in other provisions of

the Constitution, in the Constitution as a whole, in the philosophy that permeates it and the

institutions it established - notably in . . . the division of authority between that government (the

federal         government)          and                       the                          States."

The curious Canadian constitutional experience in this area, as well as the experience of West

Germany, Switzerland and India, is recounted by Wildhaber, Treaty-Making Power and Constitution

(1971), by Bernier, International Legal Aspects of Federalism (1973), and in Oliver's article

mentioned above. K. C. Wheare in Federal Government, 4th ed. (1963) has remarked that

"federalism and spirited foreign policy go ill together" and these authors' accounts of the conflict

between a federal division of legislative competence and the assumption by the central government

of international rights and obligations go far to explain why this should be so. (at p215)

22. So long as treaties departed little from their early nature as compacts between princes, having no
concern with domestic affairs, the conflict was muted; but in this century international conventions
have come to assume a more extensive role. They prescribed standards of conduct for both
governments and individuals having wide application domestically in areas of primarily regional
concern, the very areas which, in federation, have tended to be entrusted to the legislative
competence of the regional units of governments. This has necessarily exacerbated the problem
which federations encounter in the implementation of international treaties while emphasizing the
need for regional units in federations to recognize the legitimacy of national governments' increased
concern regarding domestic observance of internationally agreed norms of conduct. (at p216)

23. I have already referred to one clear limitation upon the ambit of the Commonwealth's external
affairs power, that which arises from the words "subject to this Constitution" in the opening words
of s. 51. There no doubt also exist limitations to be implied from the federal nature of the
Constitution and which will serve to protect the structural integrity of the State components of the
federal framework, State legislatures and State executives: Melbourne Corporation v. The
Commonwealth (1947) 74 CLR 31 . It is when one ventures into further possible reaches of implied
restrictions that real controversy exists. Henkin, in Foreign Affairs and the Constitution, rehearses
the various arguments in support of other limitations which, over time, have been sought, largely
unsuccessfully, to be placed upon the treaty power in the United States. Two of these recur in some
judgments in this Court: that to fall within power, treaties must be bona fide agreements between
states and not instances of a foreign government lending itself as an accommodation party so as to
bring a particular subject-matter within the other party's treaty power; and that to fall within power a
treaty must deal with a matter of international rather than merely domestic concern. (at p216)

24. Limitations such as these accord better with the terms of our Constitution than with that of the
United States, where the power is with respect not to "external affairs" but to treaties. For courts to
deny legitimacy, under a power to make foreign treaties, to what is in form a treaty and no sham
presents very real difficulties. But where the grant of power is with respect to "external affairs" an
examination of subject-matter, circumstance and parties will be relevant whenever a purported
exercise of such power is challenged. It will not be enough that the challenged law gives effect to
treaty obligations. A treaty with another country, whether or not the result of a collusive
arrangement, which is on a topic neither of especial concern to the relationship between Australia
and that other country nor of general international concern will not be likely to survive that scrutiny.
(at p217)

25. The great post-war expansion of the areas properly the subject-matter of international agreement
has, as Henkin points out and as J. A. Thomson emphasizes in his article, at pp. 164-166, made it
difficult indeed to identify subject-matters which are of their nature not of international but of only
domestic concern: see also Howard, Australian Federal Constitutional Law, 2nd ed. (1972), pp. 445-
446. 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. Thus areas of
what are of purely domestic concern are steadily contracting and those of international concern are
ever expanding. Nevertheless the quality of being of international concern remains, no less than
ever, a valid criterion of whether a particular subject-matter forms part of a nation's "external
affairs". A subject-matter of international concern necessarily possesses the capacity to affect a
country's relations with other nations and this quality is itself enough to make a subject-matter a part
of a nation's "external affairs". And this being so, any attack upon validity, either in what must be
the very exceptional circumstances which could found an allegation of lack of bona fides or where
there is said to be an absence of international subject-matter, will still afford an appropriate
safeguard against improper exercise of the "External affairs" power. (at p217)

26. It is there that an analogy may be drawn between the defence power and the external affairs
power. In cases on the defence power this Court has determined the validity of legislative measures

by reference to their capacity to assist the purpose of defence: Australian Communist Party v. The

Commonwealth [1951] HCA 5; (1951) 83 CLR 1, at p 273 , per Kitto J. For this purpose

"The existence and character of hostilities . . . against the Commonwealth are facts which will

determine the extent of the operation of the power. Whether it will suffice to authorize a given

measure will depend upon the nature and dimensions of the conflict that calls it forth, upon the

actual and apprehended dangers, exigencies and course of the war, and upon the matters that are

incident                                                               thereto"

(per Dixon J. in Andrews v. Howell [1941] HCA 20; (1941) 65 CLR 255, at p 278 ). It will be open

to the Court, in the case of a challenged exercise of the external affairs power, to adopt an analogous

approach, testing the validity of the challenged law by reference to its connexion with international

subject-matter and with the external affairs of the nation. (at p217)

27. Turning back to the specific cases before the Court, I have already mentioned in passing the
remarkable post-war growth in consensual international law. As Julius Stone expressed it as early as
1954 in his Legal Controls of International Conflict, "One modern year's 'international legislation',
that is, State-agreed regulation of new problems by multilateral instruments, exceeds that of a whole
century of old" (p. 23). The present relevance of this is its effect upon the content of the external
affairs power. It is like the defence power; it is "a fixed concept with a changing content": Dixon J.
in Australian Textiles Pty. Ltd. v. The Commonwealth [1945] HCA 35 [1945] HCA 35; ; (1945) 71
CLR 161, at p 178 . Its content will be determined not by the mere will of the Executive but by what
is generally regarded at any particular time as a part of the external affairs of the nation, a concept
the content of which lies very much in the hands of the community of nations of which Australia
forms a part. Hence the analogy of the defence power: Howard, p. 444; Wynes, Legislative,
Executive and Judicial Powers in Australia, 5th ed. (1976), pp. 301-302. (at p218)

28. That prohibition of racial discrimination, the subject-matter of the Racial Discrimination Act,
now falls squarely within the concept I regard as undoubted. That a consequence would seem to be
an intrusion by the Commonwealth into areas previously the exclusive concern of the States does
not mean that there has been some alteration of the original federal pattern of distribution of
legislative powers. What has occurred is, rather, a growth in the content of "External affairs". This
growth reflects the new global concern for human rights and the international acknowledgement of
the need for universally recognized norms of conduct, particularly in relation to the suppression of
racial discrimination. (at p218)

29. The post-war history of this new concern is illuminating. The present international regime for
the protection of human rights finds its origin in the Charter of the United Nations. Prominent in the
opening recitals of the Charter is a re-affirmation of "faith in fundamental human rights, in the
dignity and worth of the human person, in the equal rights of men and women". One of the purposes
of the United Nations expressed in its Charter is the achieving of international co-operation in
promoting and encouraging "respect for human rights and for fundamental freedoms for all without
distinction as to race . . . ": Ch. I, Art. 1:3; see too Ch. IX, Art. 55(c). By Ch. IX, Art. 56 all
member nations pledge themselves to take action with the Organization to achieve its purposes. The
emphasis which the Charter thus places upon international recognition of human rights and
fundamental freedoms is in striking contrast to the terms of the Covenant of the League of Nations,
which was silent on these subjects. (at p219)

30. The effect of these provisions has in international law been seen as restricting the right of
member States of the United Nations to treat due observance of human rights as an exclusively
domestic matter. Instead the human rights obligations of member States have become a "legitimate
subject of international concern": Judge de Arechaga, Recueil des Cours, vol. 178 (1978), at p. 177.
Sir Humphrey Waldock, also a judge of the International Court of Justice, had earlier noted this
development in Recueil des Cours, vol. 106 (1962), p. 200. To the same effect are Lauterpacht's
comments in International Law and Human Rights (1950), pp. 177- 178 and those in Oppenheim's
International Law, 8th ed. (1958), vol. 1, p. 740. The views of other distinguished publicists are
summarized by Schwelb in "The International Court of Justice and the Human Rights Clauses of the
Charter", American Journal of Internal Law, vol. 66 (1972), 337, at pp. 338-341. He concludes, at p.
350, that the views of Lauterpacht and others on the effect of the human rights provisions of the
Charter were affirmed by the Advisory Opinion of the International Court in the Namibia Case
(1971) ICJR, at p 51 . See also the statement of Judge Tanaka in his dissenting opinion in the South
West Africa Case (1966) ICJR 4, at p 284 , the majority opinion of the International Court in the
Barcelona Traction Case (1970) ICJR 3, at p 33 , and McDougal, Laswell and Chen, Human Rights
and World Public Order (1980), pp. 599-560. (at p219)

31. These matters having, by virtue of the Charter of the United Nations, become at international
law a proper subject for international action, there followed, in 1958, the Universal Declaration of
Human Rights and thereafter many General Assembly resolutions on human rights and racial
discrimination. A full catalogue of the various international instruments in this area can be found in
a United Nations publication, Human Rights: A Compilation of International Instruments (1978).
There have also been various regional agreements on human rights, perhaps the leading example
being the European Convention for the Protection of Human Rights and Fundamental Freedoms of
1950. (at p219)

32. It was in 1965 that the Assembly unanimously adopted the International Convention on the
Elimination of All Forms of Racial Discrimination. Its origins in 1959 and its subsequent history are
traced by Schwelb in an article in the International and Comparative Law Quarterly, vol. 15 (1966),
996, at pp. 997-1000. The learned author's conclusion, at p. 1057, is of particular relevance. It is that
the provisions of the Convention "represent the most comprehensive and unambiguous codification
in treaty form of the idea of the equality of races. With ever-increasing clarity this idea has emerged
as the one which, more than any other, dominated the thoughts and actions of the post-World War II
world. In our time, the idea of racial equality has acquired far greater force than its eighteenth-
century companions of (personal) liberty and fraternity. The aim of racial equality has permeated
the law-making, the standard-setting and the standard-applying activities of the United Nations
family of organisations since 1945. (at p220)

33. The . . . Convention of 1965 (is) the core of the international conventional law on the subject"
(emphasis added). The Convention was opened for signature on 21 December 1965 and entered into
force on 2 January 1969. Australia ratified the Convention on 31 October 1975, by which time it
had been ratified by over eighty nations of the world. (at p220)

34. This brief account of the international post-war developments in the area of racial discrimination
is enough to show that the topic has become for Australia, in common with other nations, very
much a part of its external affairs and hence a matter within the scope of s. 51(xxix). (at p220)

35. Even were Australia not a party to the Convention, this would not necessarily exclude the topic
as a part of its external affairs. It was contended on behalf of the Commonwealth that, quite apart
from the Convention, Australia has an international obligation to suppress all forms of racial
discrimination because respect for human dignity and fundamental rights, and thus the norm of non-
discrimination on the grounds of race, is now part of customary international law, as both created
and evidenced by state practice and as expounded by jurists and eminent publicists. There is, in my
view, much to be said for this submission and for the conclusion that, the Convention apart, the
subject of racial discrimination should be regarded as an important aspect of Australia's external
affairs, so that legislation much in the present form of the Racial Discrimination Act would be
supported by power conferred by s. 51 (xxix). As with slavery and genocide, the failure of a nation
to take steps to suppress racial discrimination has become of immediate relevance to its relations
within the international community. In New South Wales v. The Commonwealth (1975) 135 CLR,
at p 450 I said that included in external affairs were "matters which are not consensual in character;
conduct on the part of a nation, or of its nationals, which affects other nations and its relations with
them". I then cited particular passages from the judgments in R. v. Sharkey (1949) 79 CLR 121
which provide instances of such non-consensual matters forming a part of Australia's external
affairs. (at p221)

36. In the present cases it is not necessary to rely upon this aspect of the external affairs power since
there exists a quite precise treaty obligation, on a subject of major importance in international
relationships, which calls for domestic implementation within Australia. This in itself, without
more, suffices to bring the Racial Discrimination Act within the terms of s. 51 (xxix). I mention in
passing that in these cases it is common ground that the provisions of the Racial Discrimination Act
now under challenge do give effect to those terms of the International Convention on the
Elimination of All Forms of Racial Discrimination which Australia, as a party to the Convention, is
bound to implement municipally. (at p221)

37. There remains the question of the standing of Mr. Koowarta to bring his action. He will only
have standing if he is a "person aggrieved" in terms of s. 24(1). Mr. Koowarta contends that the
refusal of the Queensland Minister for Lands to approve of the transfer of the Crown leasehold,
which he and other members of his group of Aboriginal people proposed to use for grazing and
other purposes, makes him a person aggrieved. That refusal was, he says, such an act as s. 24(1) of
the Act refers to, namely "an act that he (the person aggrieved) considers to have been unlawful by
reason of a provision of Part II" of the Act. The effect of one provision of Pt II of the Act, s.
12(1)(d), is to make it unlawful for a person "to refuse to permit a second person to occupy any land
. . . by reason of the race . . . of that second person . . . ". While it is not certain that when he refused
approval of the transfer the Minister knew of the existence of Mr. Koowarta, he clearly knew that
the property was to be occupied by Aborigines. That was the very ground for his refusal. In my
view Mr. Koowarta's position as one of the Aborigines whose occupation of the land was prevented
by the Minister's decision sufficiently establishes his standing to sue: he was a "second person" in
the terms of s. 12(1)(d) of the Act. It is not, I think, to the point that, as a matter of form, what the
Minister withheld was approval of a transfer to the Aboriginal Land Fund Commission. The
Minister's reasons for refusal disclose that he regarded approval as involving use of the property by
Aborigines and refusal of approval as preventing that use. Sections 20 and 21 of the Aboriginal
Land Fund Act 1974 confined the power of the Commission to acquire interests in land to cases in
which, having acquired such an interest, it in turn granted an interest in it either to an Aboriginal
corporation or to an Aboriginal land trust, which was in turn obliged to permit Aborigines to occupy
the land (see now ss. 27, 28, 29 and 51 of the Aboriginal Development Commission Act 1980).
Accordingly the Minister was quite right in the view he took of the consequence were he to grant
his approval. His withholding of approval, once explained by reference to the settled policy of his
Governement, amounted to a refusal to permit that to occur and accordingly constituted a refusal to
permit persons, then possibly unknown to him but who in fact included Mr. Koowarta, to occupy
land by reason of their race. (at p222)
38. Other bases were advanced for according standing to sue but for my part I am content to rest
upon the above; it in my view establishes locus standi. (at p222)

39. In Mr. Koowarta's case I would overrule the defendant's demurrer. I would dismiss the action in
which the State of Queensland is plaintiff. (at p222)

MASON J. As I have reached the conclusion that the objection to the plaintiff's locus standi in the

first action is without substance it is convenient at the outset to examine the extent of the legislative

power with respect to external affairs (s. 51(xxix)) and the validity of the relevant provisions of the

Racial Discrimination Act 1975 (Cth) ("the Act") before discussing the question of locus standi.

Because in my view the validity of the relevant provisions should be sustained as an exercise of the

external affairs power I have no need to embark on an examination of the scope of the legislative

power  conferred                       by  s.  51(xxvi).

The External Affairs Power. (at p222)

2. It is not easy to express the head of power in terms of a synonym which is a precise equivalent.
Probably the one which comes closest is "matters or concerns external to Australia". The principal
problem is to reflect adequately and accurately the wide-ranging content of the word "affairs". We
obtain some assistance from the traditional expression "foreign affairs". We know that a power with
respect to "foreign affairs" was inappropriate to Australia's condition in 1900 for Australia was not
then a fully fledged member of the community of nations. The conduct of its foreign affairs was to
some extent at least left in the hands of the United Kingdom and the power was intended to
embrace, amongst other things, our relationships with the United Kingdom and other members of
the British Empire, relationships which could scarcely have been described then as "foreign affairs".
(at p223)

3. "External affairs" was therefore a head of power aptly expressed to equip the federal Parliament
and the federal Executive with power to take appropriate action on behalf of Australia, whether as a
self-governing Dominion or as a sovereign nation state, in the world of international affairs. So
from the very beginning it has been accepted that the exercise of the power extends to matters
affecting Australia's relationships with other nations and communities, including the making of
treaties. In more recent times, as a result of the growth of international and regional co-operation,
Australia's relationships with other nations have increasingly involved its participation in, and
association with, international and regional institutions and organs which have an important part to
play in advancing the political, economic and social interests of the peoples of the world and its
regions. No one doubts that these activities on the part of Australia properly fall within the scope of
"external affairs", notwithstanding that international and regional co-operation of this kind and on
this scale was unknown in 1900 and only began with the Treaty of Versailles and the Covenant of
the League of Nations. (at p223)

4. However, it is not to be thought that the content of the power is limited to matters affecting our
relationships with other nations and communities. As we have seen, "external affairs" covers any
matters or concerns external to Australia. So in New South Wales v. The Commonwealth ("the Seas
and Submerged Lands Case") [1975] HCA 58; (1975) 135 CLR 337 , a majority of this Court
decided that the power extends to matters and things, and I would say, persons, outside Australia.
That decision established, quite apart from the provisions of the Statute of Westminster, that the so-
called principle denying an extra-territorial operation to the legislation of a colony had no
application to laws enacted by the Commonwealth Parliament. There was, accordingly, no reason
why the power should not apply to any matter or concern external to Australia. This aspect of the
power has no significance for the present case. (at p223)

5. Of course, it is of paramount importance that the power is expressed as a legislative power and
that, like the other grants of power in s. 51, it is plenary with respect to the subject-matter. In
accordance with the received canon of constitutional construction it is to be construed liberally, not
narrowly and pedantically (Reg. v. Public Vehicles Licensing Appeal Tribunal (Tas.); Ex parte
Australian National Airways Pty. Ltd. [1964] HCA 15; (1964) 113 CLR 207, at pp 225-226 ; the
Seas and Submerged Lands Case (1975) 135 CLR, at pp 470-471 ; James v. The Commonwealth
(1936) 55 CLR 1, at p 43 ). (at p224)

6. The power applies to a treaty to which Australia is a party, for it is not in question that such a
treaty is an external affair or a matter of external affairs, subject only to the qualification, if it be a
qualification, that the treaty is a genuine treaty - a matter to be mentioned later. It would seem to
follow inevitably from the plenary nature of the power that it would enable the Parliament to
legislate not only for the ratification of a treaty but also for its implementation by carrying out any
obligation to enact a law that Australia assumed by the treaty. It is very difficult to see why such a
law would not be a law with respect to an external affair, once it is accepted that the treaty is an
external affair. (at p224)

7. At this point it is argued that a restrictive interpretation should be placed upon the power, an
interpretation which is based fundamentally on implications sought to be derived from (a) the nature
of the power, and (b) the federal nature of the Constitution and the distribution of powers which it
effects between the Commonwealth and the States. This interpretation is said to be supported by
some statements in the judgments of this Court. As statements in the earlier judgments expressed
differing views and, accordingly, are not decisive, it is preferable in the first instance to examine the
question as one of principle. (at p224)

8. It is a well settled principle of the common law that a treaty not terminating a state of war has no
legal effect upon the rights and duties of Australian citizens and is not incorporated into Australian
law on its ratification by Australia (Chow Hung Ching v. The King [1948] HCA 37; (1948) 77 CLR
449, at p 478 ; Bradley v. The Commonwealth [1973] HCA 34; (1973) 128 CLR 557, at p 582 ). In
this respect Australian law differs from that of the United States where treaties are self-executing
and create rights and liabilities without the need for legislation by Congress (Foster v. Neilson
[1829] USSC 16; (1829) 2 Pet 253, at p 314 (27 US 164, at p 202[1829] USSC 16; ; 7 Law Ed 415
at p 436) ). As Barwick C.J. and Gibbs J. observed in Bradley (1973) 128 CLR, at pp 582-583 , the
approval by the Commonwealth Parliament of the Charter of the United Nations in the Charter of
the United Nations Act 1945 (Cth) did not incorporate the provisions of the Charter into Australian
law. To achieve this result the provisions have to be enacted as part of our domestic law, whether by
Commonwealth or State statute. Section 51 (xxix) arms the Commonwealth Parliament with a
necessary power to bring this about. So much was unanimously decided by this Court in R. v.
Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 . There the power enabled the
Commonwealth Parliament to legislate so as to incorporate into our law the provisions of the Paris
Convention for the regulation of aerial navigation. (at p225)

9. Burgess has been regarded as a landmark decision, notwithstanding that the outcome seems to
have been so inevitable. Any other result would have been plainly unacceptable, not only because it
would have entailed a failure to acknowledge the plenary nature of the power and the important
purpose which it served, but also because the consequence of the failure would have been to leave
the decision on whether Australia should comply with its international obligations in the hands of
the individual States as well as the Commonwealth, for the Commonwealth would then lack
sufficient legislative power to fully implement the treaty. The ramifications of such a fragmentation
of the decision-making process as it affects the assumption and implementation by Australia of its
international obligations are altogether too disturbing to contemplate. Such a division of
responsibility between the Commonwealth and each of the States would have been a certain receipe
for indecision and confusion, seriously weakening Australia's stance and standing in international
affairs. Fortunately, the approach in Burgess has since been confirmed by R. v. Poole; Ex parte
Henry (No. 2) [1939] HCA 19; (1939) 61 CLR 634 ; Airlines of N.S.W. Pty. Ltd. v. New South
Wales (No. 2) [1965] HCA 3; (1965) 113 CLR 54 , and the Seas and Submerged Lands Case. (at
p225)

10. The exercise of the power is of course subject to the express and to the implied prohibitions to
be found in the Constitution. The Commonwealth could not, in legislating to give effect to a treaty,
evade the constitutional prohibitions contained in ss. 92, 113 and 116. Nor, to take an example posed
in argument, could it amend the Constitution otherwise than by the means provided for in s. 128; it
certainly could not do so by the expedient of assuming a treaty obligation to amend the Constitution
and then attempting to legislate directly without resort to s.128 so as to give effect to that treaty
obligation. Likewise the exercise of the power is subject to the implied general limitation affecting
all the legislative powers conferred by s. 51 that the Commonwealth cannot legislate so as to
discriminate against the States or inhibit or impair their continued existence or their capacity to
function (Victoria v. The Commonwealth [1971] HCA 16; (1971) 122 CLR 353, at pp 372, 374-
375, 388-391, 403, 411-412, 424 ). (at p226)

11. But the States which challenge the validity of the Act go further and say that the external affairs
power is necessarily subject to the special limitation that it will not support legislation which is
exclusively domestic in its operation. First, it is emphasized that the subject of the power is external
affairs. This, it is said, means that the Constitution distinguishes between internal and external
affairs. Suggested conclusion: internal affairs lie outside the scope of the power. Invoked in support
of this argument were the comments of Dixon C.J. in Wragg v. New South Wales (1953) 88 CLR
353, at pp 385-386 , where he spoke of the distinction "between inter-State trade and the domestic
trade of a State for the purpose of the power conferred upon the Parliament by s. 51(i)" and
described it as "a distinction adopted by the Constitution". It is not a distinction explicitly made by
the Constitution and his Honour did not mean to imply by this comment that the Commonwealth
could not legislate so as to affect intra-State trade. Earlier in Burgess itself he had rightly
acknowledged that "the domestic commerce of a State can be affected" though "only to the extent
necessary to make effectual its exercise" (i.e. of the power) "in relation to commerce among the
States" (1936) 55 CLR, at p 671 . (at p226)

12. The Constitution does not draw any distinction between external affairs and internal affairs so as
to give power over the former but deny all power over the latter. The true position, in accordance
with received doctrine, is that a law, which according to its correct characterization is on a permitted
topic, does not cease to be valid because it also happens to operate on a topic which stands outside
power. The critical question is whether in the present case the law is with respect to external affairs,
not whether it is with respect to internal affairs. (at p226)

13. The fallacy in the argument is compounded by the assumption on which it proceeds - that affairs
are either internal or external in the sense that the two categories are mutually exclusive. The
assumption is false. An affair will very often have characteristics which endow it with both internal
and external qualities. Burgess provides us with an instructive example. Australia's entry into the
Paris Convention, an act affecting our relationships with other countries, was an external affair. But
the question whether Australia should enter the Convention, a matter of domestic concern and
consequence, was also an external affair. Likewise, the implementation of the Convention by
legislation was both an external and an internal affair - external because it related to the treaty and
carried it into effect, internal because the legislation was domestic, operating substantially, though
not entirely, within Australia. So it was that the law was with respect to external affairs, even though
the operation of many of its provisions was inside, rather than outside, Australia. Again in R. v.
Sharkey [1949] HCA 46; (1949) 79 CLR 121 the validity of pars. (c) and (e) of s. 24A (1) of the
Crimes Act 1914-1946 (Cth) was upheld as an exercise of power under s. 51(xxix), notwithstanding
that their operation was within Australia. (at p227)

14. The same restriction on the power, it is argued, is dictated by the nature of the federal compact
and the distribution of powers effected by the Constitution. To concede to the Commonwealth a
capacity to enter into treaties by which it undertakes to enact domestic legislation of its own
choosing and a legislative power to give effect to that undertaking would enable the Commonwealth
by this means to legislate on any topic, no matter that it stands outside the specific powers conferred
on the Commonwealth by the Constitution. The argument has several flaws. It is perhaps going too
far to say that it rests on the underlying assumption that various fields of legislative activity, racial
discrimination being the relevant example, inalienably belong to the States for the reason that
specific power over the topic is not given to the Commonwealth. After all the doctrine of reserved
powers was decisively rejected in Amalgamated Society of Engineers v. Adelaide Steamship Co.
Ltd. ("the Engineers' Case") [1920] HCA 54; (1920) 28 CLR 129 , though in recent cases it seems to
have re-emerged in different guises. The rejection of the doctrine was a fundamental and decisive
event in the evolution of this Court's interpretation of the Constitution and in the later cases the
correctness of the rejection has never been doubted. The consequence is that it is quite illegitimate
to approach any question of interpretation of Commonwealth power on the footing that an expansive
construction should be rejected because it will effectively deprive the States of a power which has
hitherto been exercised or could be exercised by them. (at p227)

15. Indeed, the converse approach is the correct one. As we have seen, the legislative powers
granted to the Commonwealth should be construed liberally, not pedantically. Indeed, O'Connor J.
in Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association [1908] HCA 87; (1908) 6 CLR
309, at p 368 said: ". . . where the question is whether the Constitution has used an expression in the
wider or the narrower sense, the Court should, in my opinion, always lean to the broader
interpretation unless there is something in the context or in the rest of the Constitution to indicate
that the narrower interpretation will best carry out its object and purpose." This passage was quoted
with approval by Dixon J. in Bank of N.S.W. v. The Commonwealth [1948] HCA 7; (1948) 76 CLR
1, at p 332 . (at p228)

16. The suggestion is that exercise of the power according to its broad interpretation could
ultimately lead to a situation in which the Commonwealth, by virtue of its being a party to many
treaties calling for the enactment of domestic legislation on a variety of topics, would occupy many
fields of legislative activity hitherto considered to be the preserve of the States, fields not
specifically committed to the Commonwealth. This, it is urged, would disturb the balance of powers
achieved by the Constitution. However, a realistic and objective view of the balance of powers
between the Commonwealth and the States must recognize that one very important element in that
balance is the committal of the external affairs power to the Commonwealth. The inclusion of
"external affairs" in s. 51 reflected a policy decision that a wide and general power over the subject
should be reposed in the federal legislature and executive, in preference to leaving any part of the
responsibility for the subject with the States. (at p228)

17. Doubtless the framers of the Constitution did not foresee accurately the extent of the expansion
in international and regional co-operation which has occurred since 1900. Extradition and the
repatriation of fugitive offenders and customs and tariff agreements probably represented the type of
treaties which were then thought to call for domestic legislation by way of implementation. It is that
expansion, rather than any change in the meaning of "external affairs" as a concept, that promises to
give the Commonwealth an entree into new legislative fields. This circumstance provides no ground
for giving s. 51(xxix) a restrictive construction. On the contrary, it is a reason for insisting on a
liberal construction. As Dixon J. observed in Australian National Airways Pty. Ltd. v. The
Commonwealth [1945] HCA 41; (1945) 71 CLR 29, at p 81 : ". . . it is a Constitution we are
interpreting, an instrument of government meant to endure and conferring powers expressed in
general propositions wide enough to be capable of flexible application to changing circumstances".
(at p228)

18. There is no reason at all for thinking that the legislative power conferred by s. 51(xxix) was
intended to be less than appropriate and adequate to enable the Commonwealth to discharge
Australia's responsibilities in international and regional affairs. It is unrealistic to suggest in the light
of our knowledge and experience of Commonwealth-State co-operation and of co-operation between
the States that the discharge of Australia's international obligations by legislation can be safely and
sensibly left to the States acting uniformly in co-operation. As the object of conferring the power
was to equip the Commonwealth with comprehensive capacity to legislate with respect to external
affairs, it is not to the point to say that such is the scope of external affairs in today's world that the
content of the power given to the Commonwealth is greater than it was thought to be in 1900. (at
p229)

19. The consequence of the expansion in external affairs is that in some instances the
Commonwealth now legislates on matters not formerly within the scope of its specific powers, to
the detriment of the exercise of State powers. But in the light of current experience there is little, if
anything, to indicate that there is a likelihood of a substantial disturbance of the balance of powers
as distributed by the Constitution. To the extent that there is such a disturbance, then it is a
necessary disturbance, one essential to Australia's participation in world affairs. (at p229)

20. It might be argued that, if the external affairs power was relevantly limited to the
implementation of treaties from which Australia stands to derive a discernible benefit, the balance
of powers would receive some protection without inhibiting Australia's capacity to participate in
world affairs. This solution would require the Court to review the judgment of the Executive and the
Parliament that entry into a treaty and its implementation was for Australia's benefit, a course
bristling with problems for the Court. And I do not accept the suggestion that Australia's capacity to
participate in world affairs would not be seriously inhibited. Increasing emphasis is given in the
United Nations and in regional organizations to the pursuit by international treaties of idealistic and
humanitarian goals. It is important that the Commonwealth should retain its full capacity through
the external affairs power to represent Australia, to commit it to participation in these developments
when appropriate and to give effect to obligations thereby undertaken. (at p229)

21. Nor is there a solid foundation for implying a restriction that the treaty must relate to a matter
which is international in character or of international concern, if the suggested restriction is intended
to convey more than that the treaty is a genuine treaty. It is difficult to perceive why a genuine
treaty, especially when it is multi-lateral and brought into existence under the auspices of the United
Nations or an international agency, does not in itself relate to a matter of international concern and
is not in itself an external affair. It is scarcely sensible to say that when Australia and other nations
enter into a treaty the subject-matter of the treaty is not a matter of international concern - obviously
it is a matter of concern to all the parties. Take, for example, the vexed question of human rights.
Though it is a matter to be accorded or denied by each nation domestically, it has become
increasingly a matter of international concern and agreement by means of international and regional
conventions. To say of an international Human Rights Convention that it is not international in
character is to say that it relates to domestic conduct within each nation and that one nation does not
benefit from the observance by others within their boundaries of their obligations under the
Convention - a matter which I should have thought was very much open to debate. If this be the
basis of the distinction in the subject-matter of treaties between that which is international in
character and that which is not, it is somewhat elusive and by no means convincing. (at p230)

22. One knows or can readily imagine treaties on topics of international concern by which the
parties agree to enact domestic legislation to attain a common object, whether it be to suppress a
noxious traffic or trade, to eliminate an infectious or contagious disease, or to limit production of a
commodity or of goods in order to stabilize and share markets. The subject-matter of such treaties
is, despite the argument of the Solicitor-General for Victoria to the contrary, international in
character - there is agreement by the parties to take common action in pursuit of a common
international objective, each party standing to gain a benefit from its attainment. What then of a
treaty by which the parties agree to take domestic action to prohibit practices now recognized
universally or generally to be abhorrent, e.g. slavery, piracy, racial oppression and racial
discrimination? It may be said that, with the noxious traffic or trade and infectious or contagious
disease, its existence in one nation presents an obvious risk of its introduction into another, and that
this risk gives an international character to a treaty providing for the suppression of the traffic or
trade and the elimination of the disease. But it is otherwise with the treaty which requires the parties
to limit domestic production or to eliminate some forms of past abhorrent human conduct, e.g.
slavery. However, there are strong grounds for thinking that the practice of racial oppression and
racial discrimination in one nation often leads to similar conduct by way of reaction or to reprisal in
another nation or to countervailing violence, revolution and insurgency constituting a disturbance of
international peace and security. Accordingly, every nation stands to benefit from the elimination of
activity which may contribute to the disturbance of international peace and security. (at p230)

23. The differences in these situations do not seem to me to be important in deciding whether the
external affairs power enables the Commonwealth Parliament to implement a treaty, at least in the
case of a multi-lateral treaty brought into existence under the auspices of the United Nations or
another international agency. Agreement by nations to take common action in pursuit of a common
objective evidences the existence of international concern and gives the subject-matter of the treaty
a character which is international. I speak of course of a treaty which is genuine and not of a
colourable treaty, if that can be imagined, into which Australia has entered solely for the purpose of
attracting to the Commonwealth Parliament the exercise of a legislative power over a subject-matter
not specifically committed to it by the Constitution. (at p231)

24. It is convenient now to look to Burgess [1936] HCA 52; (1936) 55 CLR 608 , for the judgments
in that case, apart from that of Dixon J., support (Latham C.J., Evatt and McTiernan JJ.) or are
consistent with (Starke J.) the plenary view of the power which I favour. Latham C.J., Evatt and
McTiernan JJ. considered that it was an independent power which, subject to the Constitution,
extends to the legislative implementation of Australia's obligations under treaties to which it is a
party. Latham C.J. rejected the suggestion that a distinction should be drawn between international
and domestic affairs (1936) 55 CLR, at p 640 , commenting that it is "impossible to say a priori that
any subject is necessarily such that it could never properly be dealt with by international agreement"
(1936) 55 CLR, at p 641 . The only relevant limitations on the power were that it could not be
exercised so as to indirectly amend the Constitution and that it is subject to the prohibitions
contained in the Constitution (1936) 55 CLR, at p 642 . Evatt and McTiernan JJ. (1936) 55 CLR, at
p 681 were of the same view, saying that "it is no longer possible to assert that there is any subject
matter which must necessarily be excluded from the list of possible subjects of international
negotiation, international dispute or international agreement". Their Honours' rejection of the notion
that the power does not authorize legislation which operates exclusively or substantially within
Australia and its Territories is instanced by their reference to such subject-matters as "air navigation,
the manufacture of munitions, the suppression of the drug traffic and standard hours of work in
industry" (1936) 55 CLR, at p 641 . These matters, they conceded, are not specifically entrusted to
the Commonwealth. Nevertheless, they can properly be made the subject of international convention
binding on Australia (1936) 55 CLR, at pp 681-684 whereupon the legislative power under s.
51(xxix) enables the Parliament to implement the convention because so to do is to legislate with
respect to "external affairs" (1936) 55 CLR, at pp 687-688 . (at p232)

25. It is by no means clear to me that Starke J. took a more restricted view of the power. Certainly
he thought that it was subject to the express and implied limitations in the Constitution (1936) 55
CLR, at p 658 . But he considered that all means - ". . . which are appropriate, and are adopted (sic
q.:'adapted') to the enforcement of the convention and are not prohibited, or are not repugnant to or
inconsistent with it, are within the power. The power must be construed liberally, and much
necessarily be left to the discretion of the contracting States in framing legislation, or otherwise
giving effect to the convention" (1936) 55 CLR, at pp 659-660 . He reserved the question whether
its exercise in relation to a treaty was confined to a treaty of a matter "of sufficient international
significance to make it a legitimate subject for international co-operation and agreement" (1936) 55
CLR, at pp 681-684 , a limitation suggested by Willoughby, Constitutional Law of the United States
2nd ed. (1929), vol. 1, p. 519, on the power of Congress. However, his Honour accepted Missouri v.
Holland ("the Migratory Birds Case" [1920] USSC 87; (1920) 252 US 416(64 Law Ed 641) ), the
application of which would give the power a wide scope. (at p232)

26. Dixon J. was more cautious in the operation that he conceded to the power, observing (1936) 55

CLR,  at  p  669                                                                                   :

"If a treaty were made which bound the Commonwealth in reference to some matter indisputably

international in character, a law might be made to secure observance of its obligations if they were

of a nature affecting the conduct of Australian citizens. On the other hand, it seems an extreme view

that merely because the Executive Government undertakes with some other country that the conduct

of persons in Australia shall be regulated in a particular way, the legislature thereby obtains a power

to enact that regulation although it relates to a matter of internal concern which, apart from the

obligation undertaken by the Executive, could not be considered as a matter of external affairs."

The significance of what his Honour said depends upon the meaning to be given to the nebulous
expression "international in character" and what his Honour had in mind when he spoke of "a matter
of internal concern which . . . could not be considered as a matter of external affairs". (at p232)

27. Some clue is provided by the contrast between "some matter . . . international in character" and
"a matter of internal concern" only and by his Honour's statement of reasons for concluding that the
power extended to the implementation of the Convention. He noted that in international law the
question how far sovereignty extends upwards was "one of practical importance in need of
settlement by a convention among the nations" (1936) 55 CLR, at p 670 . There was a question as to
the terms and conditions on which each nation would allow the nationals of other nations to use its
air space. According to his Honour these matters constitute "international affairs" and the provisions
of the Convention were "all relevant to the solution" of the questions which arose [1920] USSC
87[1920] USSC 87; ; (1920) 252 US 416(64 Law Ed 641) . In these circumstances it could not be
said that the Convention dealt with matters of "internal concern" only. (at p233)

28. In Poole [1939] HCA 19; (1939) 61 CLR 634, at pp 654-655 Evatt J. stated that there was no
difference in Burgess, between the members of the Court other than Starke J. as to the test to be
applied in deciding whether legislation implementing the Convention is within power. Broadly
speaking, the test which they favoured was whether in substance the legislation carries out or gives
effect to the Convention. This is the language of Latham C.J. (1936) 55 CLR, at p 646 . However, it
seems to me that the Chief Justice was merely reflecting the language of the regulation-making
power contained in s. 4 of the Air Navigation Act 1920 (Cth), and I have some doubt whether his
Honour was intending by the use of these words to express his view of the limits of the
constitutional power in its application to treaties (1936) 55 CLR, at p 638 . For my part I prefer the
statement made by Starke J. in Burgess (1936) 55 CLR, at p 660 which I have already quoted. I note
that it was quoted by Menzies J. with evident approval in Airlines (No. 2) (1965) 113 CLR, at p 141
. (at p233)

29. The judgments in the subsequent decisions of this Court in Ffrost v. Stevenson [1937] HCA 41;
(1937) 58 CLR 528 and Sharkey [1949] HCA 46; (1949) 79 CLR 121 do not throw new light on the
question which we have to decide. The issue which arose in Airlines (No. 2) did not require the
Court to make a choice between the views which had been offered in Burgess, though Barwick C.J.
thought, as I do, that the power is subject to implied, as well as express, constitutional prohibitions
(1965) 113 CLR, at p 85 . Likewise the decision in the Seas and Submerged Lands Case [1975]
HCA 58; (1975) 135 CLR 337 does not touch the present case, though it is important to note that
Murphy J. in that case indorsed the wide view of the power (1975) 135 CLR, at pp 503-504 . (at
p234)

30. I should not wish it to be thought from what I have said that the existence of a treaty is an
essential pre-requisite to the exercise of the power. That is certainly not my view. Sharkey decided
that the power extends to the preservation of friendly relations with any of the Dominions. And
there is no reason to distinguish friendly relations with the Dominions from friendly relations with
other countries. Moreover, as Professor Zines points out in The High Court and the Constitution
(1981), p. 230, "the reasoning in Burgess's case and Airlines (No. 2) would support an Australian
law giving effect to an obligation arising under rules of customary international law". Further, it
seems to me that a matter which is of external concern to Australia having become the topic of
international debate, discussion and negotiation constitutes an external affair before Australia enters
into a treaty relating to it. Application of the External Affairs Power to the Convention. (at p234)

31. On the broad view which I take of the power it extends to the implementation of the
International Convention on the Elimination of All Forms of Racial Discrimination. It is an
international treaty to which Australia is a party which binds Australia in common with other
nations to enact domestic legislation in pursuit of the common objective of the elimination of all
forms of racial discrimination. (at p234)

32. But I would go further and say that, even on the more cautious expression of the scope of the
power by Dixon J. in Burgess, it would extend to the implementation of this Convention. The
recitals to the Convention reveal in an illuminating way the various elements which have led the
parties to the Convention to co-operate in an endeavour to eliminate racial discrimination. They
show that racial discrimination is considered to be inconsistent with the ideals on which the Charter
of the United Nations is based and with the principles enshrined in the Universal Declaration of
Human Rights and that it is the target of the United Nations Declaration on the Elimination of All
Forms of Racial Discrimination. They contain a reaffirmation - ". . . that discrimination between
human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful
relations among nations and is capable of disturbing peace and security among peoples and the
harmony of persons living side by side even within one and the same State . . .".

The recitals go on to express concern that racial discrimination is still in evidence in some areas of
the world and that governmental policies are in some instances based on racial superiority or hatred,
e.g. apartheid, segregation or separation. They acknowledge that the parties, having resolved to
adopt all necessary measures to eliminate racial discrimination and to prevent and combat racist
doctrines and practices, desired to implement the principles in the United Nations Declaration on the
Elimination of All Forms of Racial Discrimination. The point of all this, so it seems to me, is that
the community of nations, or at least a very large number of them, are vigorously opposed to racial
discrimination, not only on idealistic and humanitarian grounds, but also because racial
discrimination is generally considered to be inimical to friendly and peaceful relations among
nations and is a threat to peace and security among peoples. (at p235)

33. In addition to the materials referred to in the recitals to the Convention there are the
developments in international law to which Stephen J. has referred in his judgment, commencing
with the provisions of the Charter of the United Nations. These developments, taken together with
the materials already referred to, establish beyond any doubt that there are solid and substantial
grounds for the widespread international opposition to all forms of racial discrimination and that its
elimination is a desirable, if not an essential, step for the maintenance of international peace and
security. (at p235)

34. All the materials indicate that the United Nations consider racial discrimination to be abhorrent
conduct which, posing a threat to international peace and security, should be eliminated. At the level
of international law the means chosen to attain this end was the formulation of the Convention. It
imposes on each of the many parties to it an obligation to eliminate racial discrimination in its
territory. The failure of a party to fulfil its obligations becomes a matter of international discussion,
disapproval, and perhaps action by way of enforcement. Viewed in this light, the subject-matter of
the Convention is international in character. (at p235)

35. It is conceded that, if the external affairs power extends to the Convention, the relevant
provisions of the Act, s. 9 and s. 12, give effect to its provisions. I therefore conclude that the two
sections are valid. (at p235)

36. In the Koowarta action it is the validity of these sections that is in issue. The State of
Queensland in its action seeks a declaration that the whole Act is invalid. However, argument was
limited to the validity of the two sections on the footing that at this stage there is no dispute
presently in existence which calls for a determination of the validity of the other sections of the Act.
The Court should in the exercise of its discretion decline to consider the grant of declaratory relief
in relation to the remainder of the Act in the Queensland action. Locus Standi. (at p236)
37. By virtue of s.24(1) "A person aggrieved by an act that he considers to have been unlawful by
reason of a provision of Part II" may sue for damages under s.25(d). It is submitted that Mr.
Koowarta is not a person aggrieved because his case as pleaded does not come within s.9 or s.12. I
do not agree, for I consider that his case comes within s.12. (at p236)

38. The alleged refusal by the Queensland Cabinet and the second defendant, the Minister for
Lands, to consent to the transfer of the Archer River Pastoral Holding lease to the Aboriginal Land
Fund Commission, a body corporate constituted by the Aboriginal Land Fund Act 1974 (Cth),
seems to me to be a breach of s.12(1)(a), (c) or (d) of the Act, provided that the reference to the
"second person" in the subsection includes a corporation. By virtue of s.22(a) of the Acts
Interpretation Act 1901 (Cth) a reference in a statute to a "Person" includes a reference to a body
corporate, unless a contrary intention appears. It is submitted that because, generally speaking,
human rights are accorded to individuals, not to corporations, "person" should be confined to
individuals. But, the object of the Convention being to eliminate all forms of racial discrimination
and the purpose of s. 12 being to prohibit acts involving racial discrimination, there is a strong
reason for giving the word its statutory sense so that the section applies to discrimination against a
corporation by reason of the race, colour or national or ethnic origin of any associate of that
corporation. It is also submitted that the reference in the concluding words to "any relative or
associate of that second person" is inappropriate to a corporation. Certainly that is so of "relative",
but a corporation may have an "associate". The concluding words are therefore quite consistent with
the "second person" denoting a corporation as well as an individual. (at p236)

39. On the pleading Mr. Koowarta has locus standi to bring the action under s.12. I do not find it
necessary to consider the question of locus standi under s.9. It is enough that Mr. Koowarta has
locus standi to bring the action. (at p236)

40. In the result in Mr. Koowarta's action I would overrule the demurrer. I would dismiss the action
by the State of Queensland. (at p236)

MURPHY J. The plaintiff, Mr. Koowarta, seeks to invoke the Racial Discrimination Act 1975 ("the
Act") against Queensland and its ministers. Queensland (supported by Western Australia and
Victoria intervening) demurs, and in a separate action against the Commonwealth claims a
declaration, that ss. 9 and 12 of the Act which are relied upon by the plaintiff are unconstitutional.
Mr. Koowarta and the Commonwealth support the validity of the Act (particularly the two
challenged sections) on either or both of the constitutional powers to make laws with respect to
external affairs and the power to make special laws for the people of any race.

External Affairs. (at p237)

2. When the people of Australia joined together on 1 January 1901 as the Commonwealth of
Australia this nation became a new international personality in the community of nations. Australia's
external affairs are primarily its relations with other members of the international community
directly and through international organs. The relations are conducted in a variety of ways
sometimes crystallized in arrangements, the most formal of which are treaties (often described as
conventions or covenants). More broadly, there is an external affair whenever Australia is involved
with any affair (that is any entity, circumstance or event) outside Australia (whether or not this
involves any affair in Australia). (at p237)

3. The Australian States have no international personality; unlike the Commonwealth, they are not
nation-states. Any purported treaty or agreement between any or all the Australian States and a
foreign country is a nullity. States have entered into arrangements with other countries either in the
belief they could do so or because of the neglect of the Commonwealth to make arrangements which
were thought to be practically necessary (for example overseas enforcement of maintenance for
deserted wives and children, interchange of information about criminals). All such arrangements are
within the exclusive authority of the Commonwealth. (at p237)

4. The executive, the legislative and the judicial branches of government are all concerned with
Australia's external affairs.The Executive Power with Respect to External Affairs. (at p237)

5. Constitutionally, the executive power over Australia's external affairs comes within Ch.III -
Eexecutive Government. It is part of the executive power of the Commonwealth nominally vested in
the Queen exercisable by the Governor-General (s.61). The power is exercised on the advice of the
Federal Executive Council (s.62) and administered (pursuant to s.64) by the Minister in charge of
the Department now known as the Department of Foreign Affairs. (at p237)

6. The executive power over external affairs is not unlimited. It is subject to constitutional
limitations, whether expressed, as in s.116 (freedom of religion) or implied (for example separation
of powers). Otherwise the executive power in relation to external affairs, unless confined by
Parliament, is unconfined. (at p238)

7. For some few years after 1901 the Executive Government mostly failed to exercise directly its
authority in Australia's external affairs, perhaps because of distraction in more pressing tasks of
administering the domestic affairs of the new Commonwealth or because of lack of expertise and
the geographical remoteness from the areas of presumed importance or because of persistence of
colonial mentality. It allowed Australia's external affairs to be largely conducted through the United
Kingdom Government. By the end of the First World War however, Prime Minister Hughes was
vigorously asserting Australia's independence in external affairs (see Booker, The Great Professional
(1980)). Whatever the explanation for the early failure to exercise the power directly, this does not
affect the constitutional position that the conduct of Australia's external affairs was from 1901
vested in Australia's Executive Government. (at p238)

8. The subjects coming within the scope of external affairs as contemplated in 1901 included all
aspects of the relations between Australia and other countries. The Constitution itself evidences that
these extended to treaty-making and the exchange of consuls and other representatives. By s.75, the
High Court was given original jurisdiction in all matters (i) arising under any treaty, and (ii)
affecting consuls or other representatives of other countries. The position of these aspects of
external affairs as the first two subject-matters of the Court's original jurisdiction underlines the
importance of external affairs in the constitutional scheme. The treaties referred to in s.75 must
include treaties entered into by Australia. (at p238)

9. During this century we have witnessed the greatest recognition of and also the greatest denial of
human rights in all history. Genocide, forced labour, arbitrary arrest and imprisonment, deprivation
of civil and political rights, racial and religious discrimination, or other crimes against humanity,
have occurred on an enormous scale. In response, we have had the greatest progress in the
elaboration and acceptance of universal standards of human rights by the international community.
The Second World War and the events leading to it focused attention on the need to secure human
rights on an international scale. The history of the fascist regimes showed that the denial of basic
rights to the citizens of a country was often instrumental in the advance to or maintenance of power
by those who would endanger world peace. Concerted international action was necessary to ensure
that peace would not be endangered through denial of rights in any country. Also, there was an
increasing consciousness, voiced by Wendell Wilkie and many others, that people had responsibility
for the well-being of others everywhere, irrespective of national barriers which were unnaturally
dividing humanity. The United Nations Charter 1945 proclaims that one of its purposes is to achieve
international co-operation in providing and encouraging respect for human rights and fundamental
freedoms for all without restriction. The member nations pledged themselves to take action in co-
operation with the Organization for the promotion of universal respect for and observance of these
rights and to take action both separately and jointly, that is, by individual national action, as well as
by international co-operation. The Commission on Human Rights (established in 1946 by the United
Nations) initiated work on an International Bill of Rights to consist of a Declaration of Human
Rights, a covenant on human rights to transform the principles of the Declaration into legal
declarations, and international machinery to secure effective observations of the obligations. In 1948
the General Assembly of the United Nations adopted the Universal Declaration of Human Rights.
The other stages of the International Bill were reached in 1966 with the adoption by the General
Assembly of the International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights with its Optional Protocol. Throughout these
instruments and in thousands of resolutions by the various organs of the United Nations and of
numerous other international bodies concern has been expressed about the persistence of racial
discrimination in various forms. (at p239)

10. For years, almost daily, Australian Governments, by Ministers in Parliament and elsewhere, and
by other representatives in the United Nations and other international agencies, have condemned
violations of human rights in other countries. Likewise, complaints are made by others of Australia's
violations of human rights, especially of discrimination against Aborigines. A considerable
literature exists on the subject of racial discrimination against Aborigines (see references in
Appendix). Australia's history since the British entry in 1788 to a land peopled by Aborigines has
been one of racism and racial discrimination which persists strongly. The subsequent entry of non-
British migrants in great numbers has meant that the racism and discrimination extends well beyond
the Aborigines. The Executive Government's concern with racial discrimination in Australia is
related, perhaps inextricably, to its concern with racial discrimination elsewhere. In the practical
realm of international politics it would be futile for Australia to criticize racial discrimination or
other human rights' violations in other countries if it were to tolerate such discrimination within
Australia. The Australian people can reasonably expect other peoples to take measures to eliminate
racial discrimination in their countries only if Australia does likewise. The Convention on the
Elimination of All forms of Racial Discrimination 1966 to which Australia has become a party is a
multi-lateral treaty imposing obligations on the parties including the obligation to take legislative
measures to eliminate racial discrimination within their borders. The entry into this treaty was
clearly within the executive power of Australia's Executive Government. Legislative Power with
Respect to External Affairs. (at p240)

11. The Constitution, s. 51 provides: "The Parliament shall, subject to this Constitution, have power
to make laws for the peace, order, and good government of the Commonwealth with respect to . . . .
(xxix) External affairs." This commits to the Parliament, as representing the authentic will of the
Australian people, the power by legislation to regulate and to implement the executive conduct of
external affairs. In our municipal, that is national, law this legislative power is subject to, and only
to, the limitations expressed or implied in the Constitution. Like the other powers in ss. 51 and 52 it
is thus subject to express guarantees or prohibitions (such as those in ss. 80, 99, 116), and to
limitations arising from implications including those of the continued existence of the States, and in
my opinion those associated with the implications of freedom of expression and other attributes of a
free society to which I referred in Buck v. Bavone [1976] HCA 24; (1976) 135 CLR 110, at p 137 ;
Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth [1977] HCA 71; (1977)
139 CLR 54, at p 88 ; and McGraw-Hinds (Aust.) Pty. Ltd. v. Smith (1978) 144 CLR 633, at p 670 .
It is necessary to mention these limitations in order to dispose of the argument that the external
affairs power if not read down from its natural meaning could authorize Parliament to abolish the
States or impose censorship pursuant to some treaty obligation. Such laws would be invalid because
the Constitution contemplates the continuance of the States, and impliedly contemplates freedom of
expression. (at p240)

12. The opening words of s. 51 show the power to make laws "for the peace, order, and good
government of the Commonwealth" with respect to the various subjects, including external affairs,
is to make laws which will operate in Australia to confer rights on or impose obligations on people
whether unorganized or organized into State territories or other organs. In order that a law which
operates on persons and events in Australia, that is on internal affairs, may come within the
constitutional power, it is necessary and sufficient that it be with respect to external affairs. Thus it
is no valid objection that the Racial Discrimination Act 1975 deals, as it does, with internal affairs.
Preservation of the world's endangered species, maintenance of universal standards of human rights,
control of traffic in drugs of dependence, elimination of infectious diseases, and many others, are
for Australia as well as other nations, internal as well as external affairs. The States' contentions are
a hardly disguised representation of the State reserved powers doctrine rejected in Amalgamated
Society of Engineers v. Adelaide Steamship Co. Ltd. [1920] HCA 54; (1920) 28 CLR 129 ("the
Engineers' Case"), but now having a new lease (see Gazzo v. Comptroller of Stamps (Vict.) (1981)
149 CLR 227 ). The argument is that the external affairs power in insufficient to implement certain
treaties into which the Executive Government can enter (of which the Convention is an example),
and that implementation can be secured only by the co-operation of State Parliaments. Victoria
contended that certain provisions of the Narcotic Drugs Act 1967 (Cth) (implementing the Single
Convention on Narcotic Drugs) were invalid as beyond the competence of the Parliament; and that a
law (pursuant to a treaty obligation) to prevent the emergence of slavery in any part of Australia
would also be invalid. No satisfactory test was advanced for deciding which treaties Parliament
could implement and which would require action by the States. If these contentions are correct, then
as I said in New South Wales v. The Commonwealth [1975] HCA 58; (1975) 135 CLR 337, at p 503
("the Seas and Submerged Lands Case") "Australia would be an international cripple unable to
participate fully in the emerging world order." The Constitution envisages no division of external
affairs power between the Parliament and the State Parliaments. The Parliament, in exercising the
external affairs power (as well as its other powers), is entitled to make laws for the peace order and
good government of the Commonwealth, that is, of the people as a whole, notwithstanding the
opposition of any State Government or Parliament. The exercise of that power is not an intrusion
upon the people of the States. The people of the States are entitled as well as obliged to have the
legislative and executive conduct of those affairs which are part of Australia's external affairs
carried out by the Parliament and Executive Government of Australia. (at p241)

13. It was conceded by Queensland, rightly in my opinion, that the challenged sections of the Act
conform to the Convention. The legislation thus falls easily within the external affairs power as an
implementation of this treaty. Further the Act relates to matters of international concern, the
observance in Australia of international standards of human rights, which is part of Australia's
external affairs, so that the Act's operative provisions would be valid even in the absence of the
Convention. Thus it is immaterial whether the Act precisely conforms to the terms of the
Convention. (at p242)
14. The challenged sections are completely authorized by the external affairs power. They need no
support from the power in the Constitution, s. 51, to make laws . . . with respect to: (xxvi) the
people of any race for whom it is deemed necessary to make special laws. It is therefore
unnecessary to deal with the extent to which that power can lend support to those sections and other
parts of the Act, although in my opinion, it can do so in the way submitted by the Commonwealth.
In par. (xxvi) "for" means "for the benefit of". It does not mean "with respect to", so as to enable
laws intended to affect adversely the people of any race. If "with respect to" or some similar
expression were intended, it would have been used, as it is in other parts of s. 51 (see the opening
words and pars. (xxxi) and (xxxvi)). (at p242)

15. For the reason stated by Stephen J. Mr. Koowarta has standing as plaintiff; there was an act of

discrimination against him. The demurrer should be overruled. The challenged sections of the

Racial Discrimination Act 1975 are valid. The action by the Government of Queensland for a

declaration         of      invalidity   should                             be   dismissed.

APPENDIX. (at p242)

16. Numerous books, articles and government reports starkly outline the discrimination suffered by

Australian                  Aborigines,                                          including:

Annual Reports of Commissioner for Community Relations, especially Annual Report 1978, Ch.5,

Discrimination          in              Queensland,                         pp.            9-22.

Australian Law Reform Commission Discussion Paper no. 17, Aboriginal Customary Law -

Recognition? 1980.

Bandler, Wacvie (1977).
Berdoukas, et al., Content Analysis of N.S.W. Primary School Social Studies

Textbooks with respect to the Development of Racial Attitudes in Children (1970)
Brown, Hirschfeld and Smith, Aboriginals and Islanders in Brisbane, Australian Government
Commission of Inquiry into Poverty (1975).

Coombs, Kulinma - Listening to Aboriginal Australians (1978).
Eggleston, Fear, Favour or Affection (1975).
Evans, Saunders and Cronin, Exclusion, Exploitation and Extermination: Race

Relations in Colonial Queensland (1975).
Foley, "Black Queenslanders on Reserves - What Laws do They Want?" (1978) Legal Service
Bulletin 3, p. 97.

Gale and Brookman, Race Relations in Australia - The Aborigines (1975).
Gilbert, Because a White Man'll Never Do It (1973).
Gilbert, Living Black (1977).
Hunt, "Aboriginal Women and Colonial Authority", in In Pursuit of Justice;

Women in Australia 1788-1979, Mackinolty and Radi, eds. (1979) p. 32.

Kalokerinos, Every Second Child (1974).
Lippman, Words or Blows: Racial Attitudes in Australia (1973).
Malezer, Foley and Richards, Beyond the Act (1980).
Nettheim, Outlawed - Queensland's Aborigines and Islanders and the Rule of
Law (1973).

Nettheim, Victims of the Law - Black Queenslanders Today (1981).
Parker, "Social Agents as Generators of Crime" Case Study: Aborigines in

Western Australia (1974).
Report on Aboriginals and Torres Strait Islanders on Queensland Reserves, Senate Standing
Committee on Constitutional and Legal Affairs (1978).

Reynolds, The Other Side of The Frontier (1981).
Rowley, Destruction of Aboriginal Society (1970).
Rowley, A Matter of Justice (1979).
Ryan, The Aboriginal Tasmanians (1981).
Stone, Aborigines in White Australia: A Documentary History of the Attitudes

Affecting Official Policy and the Australian Aborigines 1697-1973 (1974).
Taft, Attitudes of Western Australians Towards Aborigines in Attitudes and Social Conditions
(1970).
Tatz, "Aborigines: Equality or Inequality", (1966) Australian Quarterly, p. 38.

Torry, Double Jeopardy - Black and a Woman (1975).
Walker, My People (1976).
Watson, "Black on Black", in Future Directions 1980 Conference Report, Henry

and Thomson, eds. (1980) p. 142.
Women's Health Conference Report 1975, Health, 25, p. 4. (at p243)

AICKIN J. In these two matters I have had the advantage of reading the reasons for judgment
prepared by the Chief Justice. I am in full agreement with those reasons and the conclusions which
follow therfrom. There is nothing which I can usefully add. (at p243)

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
suplementary 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). (at p244)

2. 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. (at p244)

3. 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. (at p245)

4. 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). (at p245)

5. In R. v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608, at p 642 , Latham C.J.
said: "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. (at p245)

6. 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] HCA 56; (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] HCA 25; (1921) 29 CLR 329, at p 339 Higgins J. 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. (at p246)

7. Again, since Burgess there has been little occasion for the Court to examine the external affairs
power. In R. v. Sharkey [1949] HCA 46; (1949) 79 CLR 121 all the members of the Court
acknowledged that s. 24A(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". (at
p246)

8. In Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) [1965] HCA 3; (1965) 113 CLR 54 ,
the validity of certain of the Air Navigation Regulations (Cth) was again in question. Barwick C.J.,
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. (at p246)

9. In New South Wales v. The Commonwealth [1975] HCA 58; (1975) 135 CLR 337 , 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. (at p246)

10. 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 C.J. 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. (at p247)

11. 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 affect 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. The Commonwealth [1942] HCA 14; (1942) 65
CLR 373, at pp 424-426 ; Bank of N.S.W. v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1,
at pp 186-187 ; Fairfax v. Federal Commissioner of Taxation [1965] HCA 64; ; (1965) 114 CLR 1,
at pp 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? (at p247)

12. 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
humanitarian importance than the obligation to strive for racial equality. As Egon Schwelb observed
in 1966 in an article in the International and Comparative Law Quarterly, vol. 15 (1966), 996, at p.
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. (at p248)

13. 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 situation 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.
(at p249)

14. 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. The Commonwealth (1975) 135 CLR, at pp451-455 . 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. (at
p249)

15. 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. (at p249)

16. 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. The Commonwealth (1975) 135 CLR, at p503 . 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", Federal Law
Review, vol. 9 (1978), p.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. (at p250)

17. The Chief Justice has referred to the decision of the Judicial Committee in Attorney-General
(Canada) v. Attorney-General (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 pp. 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; . . . "
Cf. also the decision of the Constitutional Court of West Germany in the Concordat Case (1957) 6 B
Verf GE, 309 , which provides another example of a federation confronted with an international
relationship in the context of 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. (at p251)

18. 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. (at
p251)

19. 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 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. The Commonwealth (1975) 135 CLR, at p503 ,
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. (at p252)
20. 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] USSC 207; (1970) 400 US 112, at p 128 (27 Law Ed (2d) 272, at p 283) , 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 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" (1970) 400 US, at p 126 (27 LawEd (2d), at p
282) . See also Fry v. United States [1975] USSC 98; (1975) 421 US 542, at p 547 n 7 (44
LawEd(2d) 363, at p 369) , and the dissenting opinion of Rehnquist J. (1975) 421 US, at p 549 (44
LawEd (2d), at p 370) . Again, in National League of Cities v. Usery [1976] USSC 136; (1976) 426
US 833 (49 Law Ed (2d) 245) , 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" (1976) 426 US, at p 852 (49 Law Ed (2d), at p 257) . (at p252)

21. 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(xxix) 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. (at p253)

22. I would make the orders proposed by the Chief Justice. (at p253)

BRENNAN J. Lord Atkin in delivering the reasons for judgment of the Judicial Committee in
Attorney-General (Canada) v. Attorney-General (Ontario) (1937) AC 326, at p 347 distinguished
between the formation and the performance of treaty obligations. The making of a treaty is a
function of the executive, but legislation to implement a treaty is a matter for the legislature. He said
in reference to the Canadian Constitution (1937) AC, at p 348 :

"The obligations imposed by treaty may have to be performed, if at all, by several Legislatures; and
the executive have the task of obtaining the legislative assent not of the one Parliament to whom
they may be responsible, but possibly of several Parliaments to whom they stand in no direct
relation. The question is not how is the obligation formed, that is the function of the executive; but
how is the obligation to be performed, and that depends upon the authority of the competent
Legislature or Legislatures." (at p253)

2. Section 51(xxix) of our Constitution confers a power upon the federal Parliament to make laws
"with respect to external affairs". The extent of that power is in question. Does par. (xxix) confer
upon the Commonwealth Parliament the competence to legislate for the performance of treaty
obligations? If the answer is negative, the Commonwealth will on occasions require the concurrence
of the State Parliaments to perform its treaty obligations. If the answer is affirmative, a large and
increasing area of Commonwealth legislative power is recognized. Neither of these considerations
determines the conclusion. (at p253)

3. A denial of Commonwealth power to legislate in performance of some treaty obligations might
inhibit the conduct of Australia's relations with the member States of the international community,
but the status of Australia as an international person would not be diminished thereby. If inhibition
results from a constitutional limitation upon Commonwealth legislative powers, the political
consequence must be accepted. As Stephen J. said in New South Wales v. The Commonwealth
[1975] HCA 58; (1975) 135 CLR 337, at p 446 :

"Whatever limitations the federal character of the Constitution imposes upon the Commonwealth's
ability to give full effect in all respects to international obligations which it might undertake, this is
no novel international phenomenon. It is no more than a well recognized outcome of the federal
system of distribution of powers and in no way detracts from the full recognition of the
Commonwealth as an international person in international law."

An inability on the part of the Commonwealth to legislate in performance of some treaty obligations
is not a constitutional imperative for giving an affirmative answer to the question posed. (at p254)

4. The principal argument proffered against an affirmative answer is that it would empower the
Crown in right of the Commonwealth - in effect, the Executive Government of the day - by entering
into an international agreement on any subject to acquire for the Commonwealth Parliament a
legislative power with respect to that subject, although the Constitution had not conferred that
power upon the Parliament. It is argued that legislative powers so deliberately distributed by the
Constitution might be redistributed by executive action and the powers of the States eroded by the
making of treaties. (By treaty I mean to include all agreements made by Australia with other
international persons so as to be binding upon Australia and one or more other international
persons.) Yet there is no doubt that par. (xxix) is an independent and plenary head of power which
will support legislation for the performance of treaty obligations, at least in some instances. In New
South Wales v. The Commonwealth (1975) 135 CLR, at p 365 , Barwick C.J., speaking of the
regulations considered in R. v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 , said:
" . . . it is clear from the reasons for judgment that if the regulations had been apt to carry out the
convention, the fact that they operated upon matters which otherwise did not fall within the power
of the Parliament would not have invalidated them. Being laws validly made under the plenary
power given by s. 51(xxix), they would not have needed any other power to support them." Whether
the content of par. (xxix) be large or small, the external affairs power is an addition to the other
powers conferred upon the federal Parliament. The subjects upon which the Parliament may
legislate are necessarily enlarged by any enlargement of what is truly comprehended in "external
affairs", and it is irrelevant that such an additional subject-matter is not also within another head of
power. Whatever construction be placed on par. (xxix), it is clearly a growth point of federal power,
for its content grows with the growth in Australia's external affairs. The connotation of external
affairs is constant, but it denotes a widening range of subject. When the Australian federation came
into being, the Commonwealth's external relations were almost wholly with England. Australia
established its High Commission in London in 1910. But the years since 1940, when Australia first
established other diplomatic posts overseas, have seen not only a widening of Australia's
relationship with the members of the international community but an increase in the subjects of
international cooperation, agreement and concern, an increase that would not have been generally
anticipated in 1901. (at p255)

5. It has not been doubted that federal legislative power under par. (xxix) has grown since 1901.
Paragraph (xxix) has been held to support legislation for the acceptance and government of the
Mandated Territory of New Guinea (Jolley v. Mainka [1933] HCA 43; (1933) 49 CLR 242, at
pp250, 281, 286 ), for the reciprocal surrender of persons charged with criminal offences (Ffrost v.
Stevenson [1937] HCA 41; (1937) 58 CLR 528, at p 557 ), to carry into execution within Australia
the provisions of Pt X of the Treaty of Versailles (Roche v. Kronheimer [1921] HCA 25; (1921) 29
CLR 329, at pp 338-339 ; and see R. v. Burgess; Ex parte Henry (1936) 55 CLR, at p 641 ), to give
effect to the Paris Convention for the Regulation of Air Navigation (R. v. Poole; Ex parte Henry
(No. 2) (1939) 61 CLR634, at pp 644-645, 654 ), to carry out certain provisions of the Chicago
Convention on International Civil Aviation (Airlines of N.S.W. Pty. Ltd. v. New South Wales (No.
2) [1965] HCA 3[1965] HCA 3; ; (1965) 113 CLR 54 ) and to give effect to the Convention on the
Territorial Sea and the Continguous Zone (New South Wales v. The Commonwealth (1975) 135
CLR, at pp 361, 364-365, 377, 475-476, 503 ). It would embrace an old and descredited fallacy to
read down par. (xxix) in order to deny the Commonwealth Parliament power to legislate with
respect to a subject-matter which had hitherto been the subject of State legislation alone. Menzies J.
laid that fallacy to rest in Airlines of N.S.W. (No. 2) (1965) 113 CLR, at p 143 : "Arguments based
upon the extent of State legislative power, or, the extent to which that power has been exercised, to
measure or confine the legislative power of the Commonwealth, must, since the Engineers' Case
[1920] HCA 54[1920] HCA 54; ; (1920) 28 CLR 129 fall upon deaf ears." There is no
constitutional imperative for rejecting the affirmative answer to the questions posed. If an
affirmative answer be given, it remains for decision in the case of each treaty obligation whether a
law to perform the obligation should be enacted by the federal Parliament or by the Parliaments of
the States or whether no law be enacted; but that decision would be taken having regard to political,
administrative and financial considerations, and not according to constitutional constraints. (at
p255)

6. The validity of a law enacted in reliance on par. (xxix) does not turn upon broad considerations of
the desirability or otherwise of conferring power upon the Commonwealth Parliament to perform
treaty obligations; inevitably it turns upon the words of the Constitution. The elements of the
external affairs power are to be found in the two phrases which in combination confer and define the
relevant power to make federal laws: "with respect to" and "external affairs". (at p256)

7. The former phrase imports a connexion between a law and the subject-matter which falls within
the constitutional head of power. The effect of a law is the touchstone for determining whether it is
a law with respect to one of the several heads of power enumerated in the paragraphs of s. 51, at all
events where the relevant head describes a field of activity. And the effect of the law is ascertained
by reference to the character of the rights, duties, powers or privileges which the law creates or
affects (Bank of N.S.W. v. The Commonwealth [1948] HCA 7 [1948] HCA 7; ; (1948) 76 CLR 1, at
p 187 ; Fairfax v. Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1, at p 7 ). If
a law is enacted in performance of a treaty obligation, that law is not a law with respect to the
making or ratification of or accession to the treaty, but with respect to the subject of the obligation.
It is the character of that subject as an external affair which may attract the support of par. (xxix),
not the antecedent making, ratification or accession to the agreement. That distinction appears to
underlie what Dixon J. said in R. v. Burgess; Ex parte Henry (1936) 55 CLR, at p 669 :

"If a treaty were made which bound the Commonwealth in reference to some matter indisputably
international in character, a law might be made to secure observance of its obligations if they were
of a nature affecting the conduct of Australian citizens. On the other hand, it seems an extreme view
that merely because the Executive Government undertakes with some other country that the conduct
of persons in Australia shall be regulated in a particular way, the legislature thereby obtains a power
to enact that regulation although it relates to a matter of internal concern which, apart from the
obligation undertaken by the Executive, could not be considered as a matter of external affairs." (at
p256)
8. When the subject-matter of a law is the subject of a treaty obligation and is "indisputably
international in character", par. (xxix) is available to support the law. The present question is
whether a law which creates or affects rights, duties, powers or privileges regulating a field of
activity which is the subject of a treaty obligation is a law with respect to an external affair, or
whether some additional quality, "indisputably international", must be found in the subject of the
treaty obligation. That question did not fall for decision in New South Wales v. The
Commonwealth, and the judgments in that case which harked back to what Dixon J. had said in R.
v. Burgess; Ex parte Henry left that question open. Thus Gibbs J. said (1975) 135 CLR, at p 390 :

"The external affairs power authorizes the Parliament to make a law for the purpose of carrying out
or giving effect to a treaty, at least if the treaty is in reference to some matter indisputably
international in character."

And Mason J. said (1975) 135 CLR, at p 470 :

"There is abundant authority for the proposition that the subject matter extends to Australia's
relationships with other countries and in particular to carrying into effect treaties and conventions
entered into with other countries, provided at any rate that they are truly international in character
(R. v. Burgess; Ex parte Henry; Airlines of New South Wales Pty. Ltd. v. New South Wales (No.
2))."

The question resolves itself into an inquiry as to what it is that stamps " a matter of internal
concern" with the character of an external affair, for a law in respect of a matter of internal concern
will be supported by par. (xxix) if the matter of internal concern is an external affair. (at p257)

9. Can a matter of internal concern be or become an external affair? In R. v. Sharkey [1949] HCA
46; (1949) 79 CLR 121 , a law with respect to sedition was held to be supported by par. (xxix) in so
far as the purpose of the seditious conduct was exciting "disaffection against the Government or
Constitution of any of the King's Dominions". A law defining a crime was supported because such a
crime, though locally committed, had the potential to affect Australia's external relations. The
reason for upholding the provision was stated by Latham C.J. (1949) 79 CLR, at pp 136-137 :

"The preservation of friendly relations with other Dominions is an important part of the
management of the external affairs of the Commonwealth. The prevention and punishment of the
excitement of disaffection within the Commonwealth against the Government or Constitution of any
other Dominion may reasonably be thought by Parliament to constitute an element in the
preservation of friendly relations with other Dominions."

And McTiernan J. said (1949) 79 CLR at p 157 :

"Section 24A (1) refers to the Constitutions and Governments of other Dominions. To the extent to
which the sections punish the expression in Australia of dissatisfaction of a seditious character with
those Constitutions and Governments, I think that the sections are justified by the power vested by s.
51(xxix.) to legislate with respect to external affairs. This expression . . . covers the relations
between the Government of this country and the Government of another Dominion. These relations
could be affected if seditious offences against the Government or Constitution of another Dominion
were committed here with impunity. The power to legislate with respect to external affairs extends
to the punishment in Australia of such offences." (at p258)
10. When a particular subject affects or is likely to affect Australia's relations with other
international persons, a law with respect to that subject is a law with respect to external affairs. The
effect of the law upon the subject which affects or is likely to affect Australia's relationships
provides the connexion which the words "with respect to" require. (at p258)

11. Those relationships, various in form and significance, are the substance of Australia's external
affairs. I would adopt with respect what Stephen J. said in New South Wales v. The Commonwealth
(1975) 135 CLR, at pp 449-450 :

"It is international intercourse between nation states which is the substance of a nation's external
affairs. Treaties and conventions to which a nation may become a party form, no doubt, an
important part of those affairs, but 'external affairs' will also include matters which are not
consensual in character; conduct on the part of a nation, or of its nationals, which affects other
nations and its relations with them are external affairs of that nation, for instance, conduct in
'violation of international comity', R. v. Burgess; Ex parte Henry, per Dixon J. (1936) 55 CLR, at
p669 ".

Today it cannot reasonably be asserted that all aspects of the internal legal order of a nation are
incapable of affecting relations between that nation and other nations. No doubt there are questions
of degree which require evaluation of international relationships from time to time in order to
ascertain whether an aspect of the internal legal order affects or is likely to affect them, but
contemporary experience manifests the capacity of the internal affairs of a nation to affect its
external relationships. (at p258)

12. Where a particular aspect of the internal legal order of a nation is made the subject of a treaty
obligation, there is a powerful indication that that subject does affect the parties to the treaty and
their relations one with another. They select that aspect as an element of their relationship, the
obligee nations expecting and being entitled in international law to action by the obligor nation in
performance of the treaty. And therefore to subject an aspect of the internal legal order to treaty
obligation stamps the subject of the obligation with the character of an external affair. That is
consistent with the view of the majority of the Court in R. v. Burgess; Ex parte Henry where Latham
C.J. said (1936) 55 CLR, at p 644 :"The Commonwealth Parliament was given power to legislate to
give effect to international obligations binding the Commonwealth or to protect national rights
internationally obtained by the Commonwealth whenever legislation was necessary or deemed to be
desirable for this purpose."

Starke J. said (1936) 55 CLR, at p 657 : "The Constitution, in the legislative power to make laws
with respect to external affairs, recognizes that the Commonwealth will have political relations with
other Powers and States, and legislative power is conferred upon it in comprehensive terms, so that
it may control those foreign or external relations, and implement obligations that may have been
assumed in the course of those relations."

And Evatt and McTiernan JJ. said (1936) 55 CLR, at p681 : "In truth, the King's power to enter into
international conventions cannot be limited in advance of the international situations which may
from time to time arise. And in our view the fact of an international convention having been duly
made about a subject brings that subject within the field of international relations so far as such
subject is dealt with by the agreement."
These views were adhered to in R. v. Poole; Ex parte Henry (No. 2) [1939] HCA 19[1939] HCA 19;
; (1939) 61 CLR 634 and by Evatt J. in Ffrost v. Stevenson (1937) 58 CLR, at pp 585-586 . They
were repeated in Airlines of N.S.W. (No. 2) by Windeyer J. (1965) 113 CLR, at p152 : "A law
necessary to give effect to a particular treaty obligation of the Commonwealth is a law with respect
to external affairs." If Australia, in the conduct of its relations with other nations, accepts a treaty
obligation with respect to an aspect of Australia's internal legal order, the subject of the obligation
thereby becomes (if it was not previously) an external affair, and a law with respect to that subject is
a law with respect to external affairs. (at p259)

13. It follows that to search for some further quality in the subject, an "indisputably international"
quality, is a work of supererogation. The international quality of the subject is established by its
effect or likely effect upon Australia's external relations and that effect or likely effect is sufficiently
established by the acceptance of a treaty obligation with respect to that subject. (at p260)

14. I would agree, however, that a law with respect to a particular subject would not necessarily
attract the support of par. (xxix) if a treaty obligation had been accepted with respect to that subject
merely as a means of conferring legislative power upon the Commonwealth Parliament. Such a
colourable attempt to convert a matter of internal concern into an external affair would fail because
the subject of the treaty obligation would not in truth affect or be likely to affect Australia's relations
with other nations. And so Barwick C.J. in Airlines of N.S.W. (No. 2) (1965) 113 CLR, at p85
expressed his opinion that "the mere fact that the Commonwealth has subscribed to some
international document does not necessarily attract any power to the Commonwealth Parliament".
Windeyer J. (1965) 113 CLR, at p153 also reserved his opinion upon the controversial question
"whether the mere making of a treaty between the Commonwealth and some foreign country upon
any subject can enlarge the constitutional powers of the Commonwealth Parliament". But the
circumstances surrounding the making of the treaty there in question - the Chicago Convention
earlier mentioned - clearly attracted the external affairs power to sustain the validity of a law
enacted in conformity with the obligations accepted under the Convention. The Chief Justice listed
the indicia which excluded any suggestion that the treaty was not an "external affair" (1937) 58
CLR, at pp 585-586 :

"Suffice it now to say that in my opinion the Chicago Convention, having regard to its subject
matter, the manner of its formation, the extent of international participation in it and the nature of
the obligations it imposes upon the parties to it unquestionably is, or, at any rate, brings into
existence, an external affair of Australia." (at p260)

15. The treaty in performance of which the Racial Discrimination Act 1975 (Cth) ("the Act") was
enacted is the International Convention on the Elimination of All Forms of Racial Discrimination
("the Convention"). Its origins, the extent of international participation in it and the long and
profound international concern as to its subject-matter are recounted in the judgment of my brother
Stephen. To his summary I would add nothing except to say that I should think that the
implementing of that Convention by Australia must be of the first importance to the conduct of
Australia's relations with its neighbours, if not indeed to Australia's credibility as a member of the
community of nations. (at p260)

16. It remains to inquire whether ss. 9 and 12 of the Act, which are the only provisions upon which
Mr. Koowarta's claim for relief might depend, were enacted in performance of Australia's obligation
under the Convention. It was rightly conceded that ss. 9 and 12 were enacted in implementation of
the Convention. If there were a disconformity between ss. 9 and 12 on the one hand and the
Convention obligation on the other, the Convention obligation might fail to stamp the character of
an external affair upon some part of the subject-matter of ss. 9 and 12, and further consideration
would have to be given to their validity (cf. R. v. Burgess; Ex parte Henry; Airlines of N.S.W. (No.
2), esp. per Menzies J. (1965) 113 CLR, at p 141 ). (at p261)

17. If there had been a material disconformity, it may have been necessary to consider whether any
parts of ss. 9 and 12 which were not in implementation of the Convention might have been
supported as an appropriate legislative means of performing an obligation to eliminate racial
discrimination as an obligation binding in international law dehors the Convention. It is unnecessary
to examine the nexus between a non-treaty obligation and a law enacted in purported reliance on
par. (xxix) in performance of such an obligation. I would defer that examination until the
circumstances of some particular case require it. It suffices in this case that ss. 9 and 12 were
enacted in performance of the Convention obligation and are therefore valid. (at p261)

18. It was sought to uphold the validity of these sections in reliance also upon s. 51(xxvi) of the
Constitution. I would not hold these sections to be a law with respect to "The people of any race for
whom it is deemed necessary to make special laws". It is of the essence of a law falling within par.
(xxvi) that it discriminates between the people of the race for whom the special laws are made and
other people, whereas the Act seeks to eliminate racial discrimination. Sections 9 and 12 of the Act
protect any person aggrieved by a contravention of their respective provisions, irrespec tive of his
race or of the race of the person whose conduct he considers to have contravened these provisions.
These provisions sweep into their protection the people of all races, whether or not they are the
people of a race for whom it is deemed necessary to make special laws. The Convention itself
exhibits the difference between a law which discriminates between the people of a particular race
and other people and a law which is calculated to eliminate racial discrimination. The general
proscription of racial discrimination is made subject to an exception in favour of "Special measures
taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or
individuals requiring such protection as may be necessary in order to ensure such groups or
individuals equal enjoyment or exercise of human rights and fundamental freedoms" (Art. 1, cl. 4).
Were it not for that exception, beneficial discriminatory laws would have fallen within the
Convention obligation "to prohibit and to eliminate racial discrimination in all its forms" (Art. 5).
Paragraph (xxvi) is not, in my opinion, a foundation for the validity of ss. 9 and 12 of the Act. (at
p262)

19. The action brought by the State of Queensland against the Commonwealth in this Court seeking
a declaration that the Act is invalid or alternatively a declaration that particular sections of the Act
are invalid has been argued together with those parts of Mr. Koowarta's action against Mr. Bjelke-
Petersen and others pending in the Supreme Court of Queensland which have been removed into
this Court. The relevance of ss. 9 and 12 to Mr. Koowarta's cause of action has been treated without
objection as sufficient to warrant the determination of their validity in the action in which the State
of Queensland seeks a declaration. In the latter action it was not appropriate to consider other
sections of the Act. The conclusion that ss. 9 and 12 are valid therefore disposes of the live issues in
that action, but it leaves outstanding a further issue for determination upon the defendants' demurrer
to Mr. Koowarta's statement of claim. (at p262)

20. The whole of the defendants' demurrer was removed into this Court. The grounds of the
demurrer were the invalidity of the provisions of the Act upon which Mr. Koowarta relies to found
his claim for relief and a further ground, namely, "the Plaintiff is not, within the meaning of the
Racial Discrimination Act 1975, a person aggrieved by the matters alleged in the Statement of
Claim and does not otherwise have locus standi to bring this action". The ground must now be
considered. Mr. Koowarta seeks to enforce statutory rights conferred by the operation of s. 24(1) of
the Act upon ss. 9 and 12 respectively. Section 24(1) provides:

"A person aggrieved by an act that he considers to have been unlawful by reason of a provision of
Part II may subject to this section institute a proceeding in relation to the act by way of civil action
in a court of competent jurisdiction for any one or more of the remedies specified in section 25."
Part II includes ss. 9 and 12. The remedies claimed by the plaintiff included damages specified in s.
25. Section 25(d) provides that where a defendant does an act which is unlawful by reason of a
provision of Pt II, the court may award

       "damages against the defendant 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". (at p263)

21. As Mr. Koowarta's action rests on ss. 9 and 12 of the Act, he is not a person aggrieved and he
has no standing to institute proceedings in the Supreme Court unless he claims relief upon facts
which fall within those sections or within some part of them. The defendants submit that the facts
alleged in the statement of claim do not fall within any part of those sections and that there is no
statutory right upon which the plaintiff might rely. It was not argued that the defendants were not
bound by ss. 9 and 12 in respect of the acts alleged in the statement of claim. It is necessary briefly
to examine the allegations made by the plaintiff and the sections upon which he relies. (at p263)

22. The Aboriginal Land Fund Commission ("the Commission"), established by s. 4 of the

Aboriginal Land Fund Act 1974 (Cth), entered into a written agreement with the lessees of the

Archer River Pastoral Holding in Queensland for the purchase of the lease of that Pastoral Holding.

The Commission was authorized to do so by s. 21 of its Act. The lease was transferable from the

vendor Crown lessees to the Commission with the written permission of the Minister for Lands

which the Minister was empowered to grant or refuse in his absolute discretion (The Land Act 1962

(Q.), s. 286). Permission was refused. The second defendant, who was then the Minister for Lands,

gave a statement of reasons for the refusal, recalling an earlier declaration of government policy in

these                                                                                          terms:

"The Queensland Government does not view favourably proposals to acquire large areas of

additional freehold or leasehold land for development by Aborigines or Aboriginal groups in

isolation."

He then quoted the decision of the Queensland Cabinet with respect to the transfer of the Archer
River Pastoral Holding:
"(1) That Cabinet's policy regarding Aboriginal reserve lands . . .

       remain uncharged.(2) That in accordance with such policy and as it is considered that
       sufficient land in Queensland is already reserved and available for use and benefit of
       Aborigines, no consent be given to the transfer of Archer River Pastoral Holding No.
       4785 to the Aboriginal Land Fund Commission." (at p263)
23. Upon these allegations, which were admitted, it would be open to find that the reason for refusal
of permission was the race of the persons who were the proposed users of the Pastoral Holding. So
much was conceded. Mr. Koowarta, the plaintiff, alleges that he, an Aboriginal and a member of the
Winychanam Group of Aboriginal people, had moved the Commission to enter into the agreement
for the purchase of the Pastoral Holding with a view to its use by the group for grazing and other
purposes. The Commission was empowered by its Act to grant an interest in land to an Aboriginal
corporation for the purpose of enabling the members of the corporation to occupy that land or to an
Aboriginal land trust for the purpose of enabling Aboriginals to occupy that land (Aboriginal Land
Fund Act, s. 20(1)). In In re Ross; Ex parte Attorney-General (N.T.) [1980] HCA 2; (1980) 54
ALJR 145, at p 149 it was held that "when the Commission acquires an interest in land it must be
for the purpose of enabling Aborigines to occupy it". The statement of claim implies that, had
permission for the transfer to the Commission been granted, the Winychanam Group including the
plaintiff would have used the land. The plaintiff alleges that he is a person aggrieved, that he has
suffered loss, and that he has suffered loss of dignity, injury to feelings and humiliation, and he
claims damages. (at p264)

24. The provisions which, upon the facts alleged, appear to have the greatest relevance are ss. 9(1)
and 12(1)(d). Section 9(1) of the Act reads as follows:
"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(1)(d) of the Act provides:

       "It is unlawful for a person, whether as a principal or agent -
       (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." (at p264)

25. Section 9(1) has enacted as municipal law important provisions of the Convention in conformity
with the obligation in Art. 5 to prohibit racial discrimination in all its forms. In particular s. 9(1) has
made unlawful the doing of any act which involves racial discrimination within the meaning of that
term in the Convention as defined by Art. 1, cl. 1. That definition of racial discrimination is
reproduced precisely by the words of the sub-section. The Act thus makes part of Australia's
municipal law, enforceable by curial process, a key provision of the Convention. When Parliament
chooses to implement a treaty by a statute which uses the same words as the treaty, it is reasonable
to assume that Parliament intended to import into municipal law a provision having the same effect
as the corresponding provision in the treaty (cf. Shipping Corporation of India Ltd. v. Gamlen
Chemical Co. (A/asia) Pty. Ltd. [1980] HCA 51; (1980) 147 CLR 142, at p 159 ; Reg. v. Chief
Immigration Officer; Ex parte Bibi (1976) 1 WLR 979, at p 984; (1976) All ER 843, at p 847 ). A
statutory provision corresponding with a provision in a treaty which the statute is enacted to
implement should be construed by municipal courts in accordance with the meaning to be attributed
to the treaty provision in international law (Quazi v. Quazi (1980) AC 744, at pp 808, 822 ). Indeed,
to attribute a different meaning to the statute from the meaning which international law attributes to
the treaty might be to invalidate the statute in part or in whole, and such a construction of the statute
should be avoided (Attorney-General (Vict.) v. The Commonwealth [1945] HCA 30; (1945) 71
CLR 237, at p 267 ). (at p265)

26. The method of construction of such a statute is therefore the method applicable to the
construction of the corresponding words in the treaty. The leading general rule of interpretation of
treaties is expressed by Art. 31 of the Vienna Convention on the Law of Treaties:

"1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and purpose."

That is the general rule for the construction of s. 9(1) of the Act. Clearly the sub-section is not to be
construed, as the learned Solicitor-General for Victoria submitted, as meaningless. (at p265)

27. The recognition, enjoyment and exercise of human rights and fundamental freedoms by all

persons on an equal footing irrespective of race, colour, descent or national or ethnic origin is the

purpose of the Convention to which Art. 1, cl. 1, in conjunction with other Articles (especially Arts.

2 and 5), gives effect. The denial or impairment of such recognition, enjoyment or exercise of

human rights and fundamental freedoms is proscribed ("distinction, exclusion, restriction or

preference"). The question which was argued under s. 9(1) was whether the benefit of using the

Archer River Pastoral Holding which the plaintiff had sought for himself and the other members of

the Winychanam Group was a human right or fundamental freedom within the meaning of that term

in  the  subsection.                          Section  9(2)  provides  that:

"The reference in sub-section (1) to a human right or fundamental freedom in the political,

economic, social, cultural or any other field of public life includes a reference to any right of a kind

referred to in Article 5 of the Convention."

The enjoyment of a licence to use property is undoubtedly a "civil right" within the meaning of that
term in par. (d) of Art. 5. From the facts alleged, it is implied that the plaintiff might reasonably
have expected to be granted and to be able to enjoy such a licence in respect of the Archer River
Pastoral Holding if permission to transfer the lease to the Commission had not been refused. (at
p266)

28. But no licence was granted to the plaintiff. He acquired no right which he was entitled to enjoy.
Is he "aggrieved" by the refusal of permission to transfer the lease to the Commission because he
has lost an expectancy of a licence, albeit an expectancy which was not founded upon any legal or
equitable right vested in him? It is unusual for a statute to impose a duty not to prevent another from
getting, having or using a mere opportunity to obtain a legal right; it is unusual for a statute to
confer a statutory right reciprocal to such a duty. Nevertheless, as that appears to be the object and
purpose of the Convention, it is the effect of the act. The essence of the problem which the
Convention sets out to remedy is not merely the denial of equality in the enforcement of legal rights
but the denial of an opportunity to acquire legal rights or to avoid the incurring of legal liabilities
when that denial of opportunity is based on race, colour, descent or national or ethnic origin. The
Convention seeks not only the equal protection of the law for persons of all races, but equal
opportunity to obtain the rights and freedoms which the law protects. The effect of s. 9 of the Act,
though reproducing the Convention definition of racial discrimination, would be small indeed if "the
recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental
freedom" related only to rights which might be enforced or freedoms which might be defended
under the laws otherwise in force. In forbidding any act involving racial discrimination, s. 9 fulfils
the Convention undertaking to prohibit racial discrimination in all its forms (Arts. 1 and 5). The
generality of s. 9 is not limited by the subsequent more particular provisions of Pt II (s. 9(4)). The
scope of s. 9 is recognized by the provision in s. 25(d)(i) for the recovery of damages for the "loss
of any benefit that that person might reasonably have been expected to obtain". The loss of a benefit
which was expected to be obtained would not be linked causally to an act contravening s. 9 unless
that section (and perhaps the more particular provisions of Pt II) prohibited conduct which might
occasion the loss of an expectation of benefit as well as conduct which might occasion the loss of a
benefit to which the person aggrieved was entitled. (at p267)

29. Thus "a distinction, exclusion, restriction or preference" which has the "effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing" of a "civil right"
comprehends the denial of an opportunity to acquire a legal right to use land. It follows that a denial
of an opportunity for the plaintiff to obtain a licence to use land satisfies that element of s. 9(1)
upon which argument was presented in the present case. As such a denial is implied in the facts
alleged in the statement of claim, I would uphold the plaintiff's standing to sue under s. 9. (at p267)

30. The plaintiff's standing under s. 12(1) depends upon whether, on the facts alleged, he is "a
second person" or, if the Commission is a second person, he is an "associate of that second person"
within the meaning of those terms in the sub-section. The second person mentioned in par. (d) of s.
12(1) is a person who is refused permission "to occupy any land". (at p267)

31. When an Act relating to racial discrimination refers to the occupation of land, prima facie the
reference is to the physical occupation of the land by natural persons. In Madrassa Anjuman Islamia
v. Johannesburg Municipal Council (1922) 1 AC 500 , the Judicial Committee considered a
provision of the Vrededorp Stands Act 1907, that the owner of a stand should not "permit any
Asiatic, native or coloured person (other than the bona fide servant of a white person for the time
being residing on the stand) to reside on or occupy the stand or any part thereof". Viscount Cave,
who delivered their Lordships' judgment, said (1922) AC, at p 504 :

"The word 'occupy' is a word of uncertain meaning. Sometimes it denotes legal possession in the
technical sense, as when occupation is made the test of rateability; . . . At other times 'occupation'
demotes nothing more than physical presence in a place for a substantial period of time, as where a
person is said to occupy a seat or pew, or where a person who allows his horses or cattle to be in a
field or to pass along a highway, is said to be the occupier of the field or highway for the purpose of
s. 68 of the Railway Clauses Act, 1845 . . . Its precise meaning in any particular statute or document
must depend on the purpose for which, and the context in which, it is used. In the present case it
appears reasonably clear that the word is used in the second or more popular sense above described.
..."
And later (1922) AC, at p 505 :
". . . it is plain, from the fact that the prohibition is made to depend on race or colour, that it is the
physical presence of the persons described, and not their right of possession in a legal or technical
sense, which the statute has in view." (at p268)

32. In my opinion, "occupy" in s. 12(1)(d) connotes physical occupation by a natural person. On this
construction, the Winychanam Group were the proposed occupants of the land, not the Commission.
It may be doubted whether a corporation could occupy land in the sense in which that term is used
in s. 12(1)(d). In the Madrassa Case, a company had been formed by the Asiatic persons occupying
the stand, and the company became the lessee of the stand. Their Lordships rejected the proposition
that the company was in occupation of the Stand. The company, said Viscount Cave (1922) AC 505
, "having no corporeal existence, could not occupy the stand in the above sense". (at p268)

33. Occupation for the purposes of par. (d) is not necessarily exclusive occupation. It may be
occupation with others; it may be as a licensee or invitee of another occupier (see sub-s. (2)). It is to
be distinguised from the right to occupy mentioned in par. (e). It follows that if an owner of land or
another with the requisite authority refuses permission to a person physically to occupy it, that is a
refusal of permission to occupy land within par. (d). The nature or source of the right in enjoyment
of which an intending occupant would otherwise have occupied the land is not material to the
question whether the intending occupant is refused permission to occupy. (at p268)

34. On the facts alleged in the statement of claim, it was the proposed physical occupation of the
Pastoral Holding by an Aboriginal group (including, as it happened, the plaintiff) which the
Minister refused to permit. The Minister refused permission to occupy by refusing permission to
transfer the lease to the Commission. The plaintiff, as one of those who was refused permission to
occupy the Pastoral Holding, is "a second person" within the meaning of that term in par. (d) and he
is a person aggrieved by the refusal. It is unnecessary to consider whether the plaintiff might be an
"associate" of the Commission, or whether the Commission could have gone into occupation of the
land if permission to transfer had not been refused. I would uphold the plaintiff's standing to sue
under s. 12. (at p268)

35. The demurrer in Mr. Koowarta's action must therefore be overruled with costs and the action
remitted to the Supreme Court of Queensland. The action in this Court between the State of
Queensland and the Commonwealth of Australia should be dismissed with costs. (at p268)

ORDER

KOOWARTA V. BJELKE-PETERSEN

       Demurrer overruled with costs.

STATE OF QUEENSLAND V. THE COMMONWEALTH

Demurrer allowed. Action dismissed with costs.

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