Koowarta v Bjelke-Petersen

High Court of Australia|1976-03-23|Before: Brennan JJ

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.

I would make the orders proposed by the Chief Justice.

Lord Atkin in delivering the reasons for judgment of the Judicial Committee in Attorney-General (Canada) v Attorney-General (Ontario) [16] 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 [17] :

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. 1. [1937] A.C. 326, at p. 347. 2. [1937] A.C., at p. 348.

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.

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 [18] :

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. 1. (1975) 135 C.L.R. 337, at p. 446.

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 [19] , Barwick C.J., speaking of the regulations considered in R. v Burgess; Ex parte Henry [20] , 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 subjects. 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 relationships with the members of the international community but an increase in the subjects of international co-operation, agreement and concern, an increase that would not have been generally anticipated in 1901.

(1975) 135 C.L.R., at p. 365. 2. (1936) 55 C.L.R. 608.

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 [21] ), for the reciprocal surrender of persons charged with criminal offences (Ffrost v Stevenson [22] ), to carry into execution within Australia the provisions of Pt X of the Treaty of Versailles (Roche v Kronheimer [23] ; and see R. v Burgess; Ex parte Henry [24] ), to give effect to the Paris Convention for the Regulation of Air Navigation (R. v Poole; Ex parte Henry [No. 2] [25] ), 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] [26] ) and to give effect to the Convention on the Territorial Sea and the Continguous Zone (New South Wales v The Commonwealth [27] ). 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] [28] : "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 [29] 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.

(1933) 49 C.L.R. 242, at pp. 250, 281, 286. 2. (1937) 58 C.L.R. 528, at p. 557. 3. (1921) 29 C.L.R. 329, at pp. 338-339. 4. (1936) 55 C.L.R., at p. 641. 5. (1939) 61 C.L.R. 634, at pp. 644-645, 654. 6. (1965) 113 C.L.R. 54. 7. (1975) 135 C.L.R., at pp. 361, 364-365, 377, 475-476, 503. 8. (1965) 113 C.L.R., at p. 143. 9. (1920) 28 C.L.R. 129.

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".

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 [30] ; Fairfax v Federal Commissioner of Taxation [31] ). 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 [32] :

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. 1. (1948) 76 C.L.R. 1, at p. 187. 2. (1965) 114 C.L.R. 1, at p. 7. 3. (1936) 55 C.L.R., at p. 669.

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 [33] :

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 [1] : 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. 1. (1975) 135 C.L.R., at p. 390. 2. (1975) 135 C.L.R., at p. 470.

Can a matter of internal concern be or become an external affair? In R. v Sharkey [2] , 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. [3] :

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 [4] : 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. 1. (1949) 79 C.L.R. 121. 2. (1949) 79 C.L.R., at pp. 136-137. 3. (1949) 79 C.L.R., at p. 157.

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.

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 [5] :

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. [6] . 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. 1. (1975) 135 C.L.R., at pp. 449-450. 2. (1936) 55 C.L.R., at p. 669.

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 [7] :

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 [8] : 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 [9] : 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] [10] and by Evatt J. in Ffrost v Stevenson [11] . They were repeated in Airlines of N.S.W. [No. 2] by Windeyer J. [12] : "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. 1. (1936) 55 C.L.R., at p. 644. 2. (1936) 55 C.L.R., at p. 657. 3. (1936) 55 C.L.R., at p. 681. 4. (1939) 61 C.L.R. 634. 5. (1937) 58 C.L.R., at pp. 585-586. 6. (1965) 113 C.L.R., at p. 152.

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.

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] [13] 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. [14] 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" [11] :

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. 1. (1965) 113 C.L.R., at p. 85. 2. (1965) 113 C.L.R., at p. 153. 3. (1937) 58 C.L.R., at pp. 585-586.

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.

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. [15] ).

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.

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, irrespective 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.

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.

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.

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.

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 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.

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.) [16] 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.

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.

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. (Alasia) Pty Ltd [17] ; Reg. v Chief Immigration Officer; Ex parte Bibi [18] ). 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 [19] ). 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 [20] ).

(1980) 147 C.L.R. 142, at p. 159. 2. [1976] 1 W.L.R. 979, at p. 984; [1976] All E.R. 843, at p. 847. 3. [1980] A.C. 744, at pp. 808, 822. 4. (1945) 71 C.L.R. 237, at p. 267.

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:

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.

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 sub-section. 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.

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.

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 rght" 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.

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".

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 [21] , 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 [22] :

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 [23] : 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. 1. [1922] 1 A.C. 500. 2. [1922] A.C., at p. 504. 3. [1922] A.C., at p. 505.

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 [24] , "having no corporeal existence, could not occupy the stand in the above sense".

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 distinguished 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.

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.

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.

High Court of Australia Gibbs C.J. Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ. Koowarta v Bjelke-Petersen [1982] HCA 27

At a glance

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Before

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Judgment (61 paragraphs)

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Cases Cited (1)