Koowarta v Bjelke-Petersen and Others

153 CLR 168

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(Judgment by: Gibbs CJ)

Koowarta
vBjelke-Petersen and Others

Court:

Judges:
Gibbs CJStephen J
Mason J
Murphy J
Aickin J
Wilson J
Brennan J

Legislative References:
Racial Discrimination Act 1975 (Cth) - The Act
Land Act 1962 (Qld) - The Act
Aboriginal Land Fund Act 1974 (Cth) - s 20; s 21
Land Act 1962 (Qld) - s 286
Aboriginal Development Commission Act 1980 - s 27; s 28; s 29; s 51
Charter of the United Nations Act 1945 (Cth) - The Act
Crimes Act 1914-1946 (Cth) - s 24A(1)
Air Navigation Act 1920 (Cth) - s 4
Acts Interpretation Act 1901 (Cth) - The Act; s 22(a)
Narcotic Drugs Act 1967 - The Act
Racial Discrimination Act 1975 (Cth) - s 9; s 12
Treaty of Peace Act 1919 - The Act
Seas and Submerged Lands Act 1973 (Cth) - The Act
International Covenant on Civil and Political Rights (1966) - The Act
Human Rights Commission Act 1981 - The Act
Vrededorp Stands Act 1907 - The Act
Railway Clauses Act 1845 - s 68

Case References:
Airlines of New South Wales Pty Ltd v New South Wales (No 2) - (1965) 113 CLR 54
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd - (1920) 28 CLR 129
Andrews v Howell - (1941) 65 CLR 255
Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia - (1978) 52 ALJR 254; 17 ALR 513
Attorney-General (Vic) v Commonwealth - (1945) 71 CLR 237
Attorney-General for Canada v Attorney-General for Ontario - [1937] AC 326
Attorney-General for Queensland v Attorney-General for the Commonwealth - (1915) 20 CLR 148
Attorney-General of NSW v Brewery Employees Union of NSW - (1908) 6 CLR 469
Attorney-General of the Gambia v N'Jie - [1961] AC 617
Attorney-General v Antigua Times - [1976] AC 16
Australian Communist Party v Commonwealth - (1951) 83 CLR 1
Australian National Airways Pty Ltd v Commonwealth - (1945) 71 CLR 29
Australian Textiles Pty Ltd v Commonwealth - (1945) 71 CLR 161
Bank of New South Wales v Commonwealth - (1948) 76 CLR 1
Bradley v Commonwealth - (1973) 128 CLR 557
Buck v Bavone - (1976) 135 CLR 110; 9 ALR 481
Buxton v Minister of Housing and Local Government - [1961] 1 QB 278
Chow Hung Ching v R - (1948) 77 CLR 449
Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc - (1960) 103 CLR 422
Dowal v Murray - (1978) 143 CLR 410; 22 ALR 577
Fairfax v FC of T - (1965) 114 CLR 1
Ffrost v Stevenson - (1937) 58 CLR 528
Forster v Jododex Aust Pty Ltd - (1972) 127 CLR 421
Foster v Neilson - (1829) 2 Pet 253
Fry v United States - (1975) 421 US 542
Gazzo v Comptroller of Stamps (Vic) - (1982) 56 ALJR 143; 38 ALR 25
Geofroy v Riggs - (1890) 133 US 258
James v Commonwealth - (1936) 55 CLR 1
Janson v Driefontein Consolidated Mines Ltd - [1902] AC 484
Jolley v Mainka - (1933) 49 CLR 242
Jumbunna Coal Mine (No Liability) v Victorian Coal Miners' Association - (1908) 6 CLR 309
Madrassa Anjuman Islamia v Johannesburg Municipal Council - [1922] 1 AC 500
McGraw-Hinds (Aust) Pty Ltd v Smith - (1979) 53 ALJR 423; 24 ALR 175
McKelvey v Meagher - (1906) 4 CLR 265
Melbourne Corporation v Commonwealth - (1947) 74 CLR 31
Missouri v Holland (the Migratory Birds case) - (1920) 252 US 416
National League of Cities v Usery - (1975) 426 US 833
New South Wales v Commonwealth (the Seas & Submerged Lands case) - (1975) 135 CLR 337; 8 ALR 1
Oregon v Mitchell - (1970) 400 US 112
Polites v Commonwealth - (1945) 70 CLR 60
Powell v Birmingham Vinegar Brewery Co - [1894] AC 8
Quazi v Quazi - [1980] AC 744
R v Burgess Ex parte Henry - (1936) 55 CLR 608
R v Burgess Ex parte Henry R v Poole Ex parte Henry (No 2) R v Sharkey - (1949) 79 CLR 121
R v Chief Immigration Officer Ex parte Bibi - (1976) 1 WLR 979
R v Foster - (1949) 79 CLR 43
R v Poole Ex parte Henry (No 2) - (1939) 61 CLR 634
R v Public Vehicles Licensing Appeal Tribunal (Tas) Ex parte Australian National Airways Pty Ltd - (1964) 113 CLR 207
R v Sharkey - (1947) 79 CLR 121
Roche v Kronheimer - (1921) 29 CLR 329
Shipping Corporation of India Ltd v Gamlen Chemical Co (A/asia) Pty Ltd - (1980) 32 ALR 609
South Australia v Commonwealth - (1942) 65 CLR 373
Spratt v Hermes - (1965) 114 CLR 226
Trendtex Trading v Bank of Nigeria - [1977] QB 529
Victoria v Commonwealth - (1971) 122 CLR 353
Victoria v Commonwealth and Hayden - (1975) 134 CLR 338
Wragg v State of New South Wales - (1953) 88 CLR 353

Hearing date: 2-4 March 1982
Judgment date: 11 May 1982

Canberra

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Judgment by:
Gibbs CJ

These two matters raise for decision important questions as to the validity of certain sections of the Racial Discrimination Act 1975 (Cth) as amended (the Act).

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 North 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 co-operated 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 (Qld) 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.

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.

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 Commonwealth and Hayden (1975) 134 CLR 338 at 381, 401; ; 7 ALR 277 at 314, 330, 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) 127 CLR 421 at 435-8; ; [1972-73] ALR 1303 at 1310-2, and Attorney-General for Queensland v Attorney-General for the Commonwealth (1915) 20 CLR 148 at 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, ie whether its principal provisions are validly enacted under para (xxvi) or para (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.

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 measure 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;

...

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 ss 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 Distrimination Act

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 Aboriginals 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 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.

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 Aboriginals 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 Article 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 paras (d)(v) and (ix) and (e)(i) and (iii) of Article 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 assembly 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 Aboriginals 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 use 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 Article 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.

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 Article 5 to "the right of everyone", suggests that those provisions are concerned with the rights of natural persons. Indeed most of the rights mentioned in Article 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 24-26 ; [1975] 3 All ER 81, where the word refers to the person whose right is impaired. The context provided by s 9 and Article 5 leads me to conclude that s 9 is not intended to apply to the rights of artificial persons such as corporations.

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 "

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 Re Sidebotham (1880) 14 Ch D 458 at 465; Buxton v Minister of Housing and Local Government [1961] 1 QB 278 at 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 10, 12; Attorney-General of NSW v Brewery Employees Union of NSW (1908) 6 CLR 469 at 497, 519, 550; Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422 at 427. However, in Attorney-General of the Gambia v N'Jie [1961] AC 617 at 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 (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

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.

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.

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-s xxvi the Federal Parliament wil have power to pass special and discriminating laws relating to the '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 (1966) 2 Federal Law Review 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.

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 para (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 para (xxvi) as if it read simply "The people of all races". In the context provided by para (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 law".

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 para (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.

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

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).

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 16 Law Quarterly Review , 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 CJ said (at 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" (see at 643).

Starke J said, at 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 at 669: "I think it is evident that its purpose [ie 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, at 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 s 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."

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, 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 , supra, 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) 61 CLR 634. In Airlines of NSW Pty Ltd v New South Wales (No 2 ) (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 Commonwealth (1975) 135 CLR 337 ; 8 ALR 1, 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 exerciseable 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 CJ, 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: see 135 CLR at 360, 470-1 and 497. It is unnecessary to consider whether the words of para (xxix) can have this dual operation, ie 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.

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 ; R v Poole ; Ex parte Henry (No 2 ); R v Sharkey (1949) 79 CLR 121; and Airlines of NSW Pty Ltd v New South Wales (No 2 ). 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): see at pp 136-7, 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.

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 para (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 Commonwealth expressly imposes (eg by such sections as ss 92 and 116): see R v Burgess ; Ex parte Henry (55 CLR) at 642-3, 658, 687; Airlines of NSW Pty Ltd v New South Wales (No 2 ) (113 CLR) at 85, 87, 118, 165. In R v Burgess ; Ex parte Henry , Starke J (at 658) 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 NSW Pty Ltd v New South Wales (No 2 ) at 85)) Barwick CJ 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 Commonwealth (1947) 74 CLR 31, and the other cases which I discussed in Victoria v Commonwealth (1971) 122 CLR 353 at 416-24, 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 para (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.

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 ; R v Poole ; Ex parte Henry (No 2 ); Airlines of NSW Pty Ltd v New South Wales (No 2 ); and New South Wales v Commonwealth , supra> 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 "the 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": v Burgess ; Ex parte Henry , per Dixon J at 670; since "not 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 interstate and overseas air operations in Australia": Airlines of NSW Pty Ltd v New South Wales (No 2 ) at 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 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 (see 29 CLR at 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.

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 for Canada v Attorney-General for Ontario [1937] AC 326 at 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 Commonwealth where his Honour said (135 CLR) at 445; (8 ALR) at 71-2; "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, (at 446/72) as follows: "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." 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 503/118), 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 for Canada v Attorney-General for Ontario ([1937] AC) at 353-4, 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 (at 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.

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.

The question with which we are now concerned was fully discussed in R v Burgess ; Ex parte Henry , 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) 133 US 258 at 267 ; 33 Law Ed 642 at 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 (55 CLR) at 680-1: "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 (at 681): "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 (at 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 (55 CLR at 687). They did suggest, however, that if the entry into a convention was a mere device to produce for the Commonwealth an additional domestic jurisdiction the position might be different (see at 687). Latham CJ seems to have been of a similar opinion, although he expressed his views less categorically. He rejected (at 640) 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 (at 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 (at 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 (at 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 (at 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'."

In Ffrost v Stevenson (1937) 58 CLR 528 at 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 Commonwealth (135 CLR) at 502-3. 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 NSW Pty Ltd v New South Wales (No 2 ), (113 CLR) at 85 Barwick CJ said:--

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 (at 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 said in that case (at 153) 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 Commonwealth when he said (135 CLR at 470; 8 ALR at 91): "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."

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 (55 CLR) at 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 Comonwealth 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.

Of course if has been established, since Amalgamated Society of Engineers v Adelaide Steamship Co (the Engineers' case ) (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 s 51, as that grant is reasonably construed, unless that reservation is as explicitly stated" (see at 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 NSW v Commonwealth (1948) 76 CLR 1 at 184-5, per Latham CJ. 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) 79 CLR 43, in the joint judgment of Latham CJ and Rich, Dixon, McTiernan, Williams and Webb JJ, the following appears (at 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 Commonwealth (1951) 83 CLR 1 at 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 NSW Pty Ltd v New South Wales (No 2 ) (113 CLR) at 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."

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 (55 CLR) at 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 join 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 fide would at best be a frail shield, and available in rare cases.

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) 114 CLR 226 at 274 It is apparent that a narrower interpretation of para (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 (55 CLR) at 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. If 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 (at 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.

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 affair, 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.

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 paras (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 para (xxix) interacts with those given by other paragraphs of s 51.

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 429-30 ; 22 ALR 577 at 590, 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.

Similarly, the argument for the Commonwealth is not advanced by pointing to the fact that, under Article 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.

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 (55 CLR) at 659-60. 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 NSW Pty Ltd v New South Wales (No 2 ) (113 CLR) at 141) but it is unnecessary for me to choose between the competing views for the purposes of the present case.

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 R (1948) 77 CLR 449 at 462, 477 and more recently in England in Trendtex Trading v Bank of Nigeria [1977] QB 529 at 553-4, 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 Commonwealth (1945) 70 CLR 60 at 68-9, 74, 75-6, 77, 79, 80-1. The provisions of s 286 of the Land Act 1962 (Qld) 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.

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 Articles 1(3), 13, 55(c), 56, and 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" (1972) 66 American Journal of International Law , at 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), at 248) and Judge de Aréchaga (in 1978) 159 Recueil des Cours , at 174-7) 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; Namibia (SW Africa ) ( Advisory Opinion ) (1971) ICJR 16, and 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, at 289) and that "racial 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, at 464). In the second case the International Court said (at 57) 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". In the Barcelona Traction case, it was said (at 32) 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) at 596-7, 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 Convention 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."

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" ((1968) 124 Recueil des Cours , at 436, and see Lauterpacht: International Law and Human Rights (1950), at 177-8) or if there are "gross violations or consistent patterns of violations" ((1968) 124 Recueil des Cours , at 436 and see (1978) 159 Recueil des Cours , at 175, and Sohn: "The Human Rights Law of the Charter" (1977) 12 Texas International Law Journal , at 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 extent 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, ie if the subject matter is not within Commonwealth power, by a law of a State.

Conclusions

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), at 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).

In Koowarta v Bjelke-Petersen and Others , I would allow the demurrer.

In State of Queensland v Commonwealth of Australia , 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.