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Koowarta V Bjelke-Petersen: The Legal Analysis


Task: Provide a detailed insight into the case of Koowarta v Bjelke-Petersen [1982].


From the perspective of the political and legal history of Australia, the verdict made by the High Court jury in the case of Koowarta v Bjelke-Petersen [1982] HCA 27 is considered to be a milestone that brought tremendous shift on the insight towards various issues. The case has brought a major shift in the perception regarding intricate topics like race, ethnicity, etc. The conventions followed in the federal political constitutionalism, and other international laws witnessed a paradigm shift by the verdict made by the High court in the case of Koowarta v Bjelke-Petersen (Genovese, 2014).

Koowarta v Bjelke-Petersen

The Archer River cattle station that was an integral portion of the native land of Wikis' people was strained to be acquired by John Koowarta and parties in 1976 by pitching finances from the Aboriginal Fund Commission. The major intention behind this move was to provide a functional and exclusive cattle property for the Aboriginal community. Though the lease was agreed to be sold by the current holders, Bjelke- Peterson who led the Queensland National Party resisted this transaction. The idea of allotting large areas exclusively to the Aboriginal community was opposed by the Bjelke – Peterson. The sense of validation prevailed in their approach since the cabinet adopted the same stance against the Aborigines. The lands department under Queensland Ministry was instructed by Peterson to dismiss the transaction. Facing all this opposition, Koowarta group decided to move on with their plea in the High Court. The point of content put forward by the Koowartha group was that the conventions mentioned under the Commonwealth 1975 Racial Discrimination Act were breached by the Queensland government by the act of denying the purchase of Archer River cattle station (Tehan, 2014).

Legal Specifics
 It is the legal norm that the transaction of the lease could not be conducted without the permission of the government of Queensland. As per the policy adopted by the government of Queensland, it made fairly clear that the Aborigine community is already allotted and reserved with required land in the territory of Queensland which could be used for its benefits and advancements. Though any sort of discrimination or impartiality considering the race was obliterated by the guidelines mentioned under the international treaty of The Discrimination Act. Opposing the conventions mentioned under the Act, the government led by Bjelke – Petersen questioned the validity of The Discrimination Act in Australia. The major contradicting argument was that the power exercised by the Commonwealth’s external affairs breached the restrictions made under the Constitution. It was strongly argued by them that by no constitutional authority that the Commonwealth has the power to intervene in the legislation on the racial discriminations in Australia (Kirby, 2014).

Arguments put forward by both parties.
The act of discrimination and bad faith was highlighted by John Koowarta and parties since the sale of the lease was restricted by the Queensland government on false grounds. Though, the defendant party made it clear that the Aboriginal community of Australia already had a fair share of control over the land of Queensland. Hence classifying further area of land exclusively under the control of the Aboriginal community is not feasible. The conventions mentioned under RDA were strongly questioned by the Queensland government before the High Court relying on the verity that the Commonwealth has no power to breach the guidelines mentioned under the Constitution. The High Court was approached with the Major query by the defendants whether the Commonwealth has the right to imply the Racial Discrimination Act in the domain of Australia.

Koowarta v Bjelke-Petersen

It was by pointing out section 9 and 12 of the Racial Discrimination Act, 1975 that the Koowarta and parties claimed the act of restricting the lease as discriminatory before the High Court. Section 9 of the act has greater significance in this context since it deals with the breach of human rights by discrimination against people based on their race. Whereas the act of prohibiting any person or group of people from taking acquisition of land or restricting a particular race in a particular geographical location was perceived as illegal under act 12 in Racial Discrimination Act (Koowarta v Bjelke-Petersen and Others, 1982).

As mentioned earlier, the defending party of Bjelke – Petersen, the real validity of the Racial Discrimination Act, 1975 in the domain of Australia was questioned before the High Court jury. The Queensland government under the leadership of Bjelke – Petersen further expanded their argument by further challenging the authority of the Australian Government in extending the external affair power of the Commonwealth to surpass the conventions mentioned under the Constitution. It was pointed out before the jury of the High Court that section 51 of the Australian Constitution restricts such activities of the central and provincial governments. It is further in the subsection xxvi of Section 51 of the Constitution that the RDA is not applicable which specifies that “Community belonging from any race, is empowered to draft special laws.” Section 51 of the Australian Constitution already bans any existence of discrimination (Koowarta v Bjelke – Petersen and Others, 1982).

The ruling given out by the High Court
The limitation of external affairs power and the exclusive race authority had posed a challenge before the High Court. The major issue regarding race power was the question on the legality of the Racial Discrimination Act in Australian dominion. The authority of the Commonwealth was allowed to legislate the laws regarding every minority regardless of race as per the section 51 (xxvi) in the Australian Constitution, though somehow the Aborigine community was exempted from it. The Aborigine community were freed off from this convention in a referendum conducted in 1967 and thus were included under the jurisdiction of the Commonwealth (Act & Act 1976).

The major challenge faced by the Jury of the High Court regarding the query over external affairs authority was whether the legislation could be classified as an affair of external matters since it was practised within the dominion of Australia. The universal agreements were granted to the external land affairs by rulings made under the Submerged land Case and the Paris Convention case. However, the court has made it clear in its verdict that the authority of external affairs was not limited to the foreign issues of Australia, though the suspicion remains whether it has the authority to involve in the local issues which don't involve any foreigners or foreign countries. The major argument that there would be a negative impact on the international reputation of Australia if they do not abide by the guidelines mentioned under the convention was put forward before the jury by the Commonwealth. The legislative body of Australia was empowered to make policies and laws regarding the external affairs as per the norms laid down under Section 51 (xxix) of the Constitution. Though the jury pointed out the term external affairs is not well defined and could bring ambiguity towards the intend. Countering the points, the Commonwealth body has argued that it has an inseparable role in the external affairs since Australia is also a signatory in CERD (Trlin, 1984)

By taking into account the provision of section 52 (xxix), the liability of the state laws in abiding with the Racial Discrimination Act by dint of external affairs authority was made clear under the verdict of the High Court. The decision was made by a narrow margin of 4 against 3 by the jury. The International Convention on the Elimination of All Forms of Racial Discrimination was to be formed under the conventions laid under the Racial Discrimination Act. Thus the Commonwealth authorities have all the right to pass it under the powers mentioned under external affairs (United Nations, 1966).

The legitimacy of the Racial Discrimination act before the Australian government was reaffirmed by the court ruling in the case of Koowarta v Bjelke-Petersen . The judgment also brought the clarity on the jurisdictions of the external affairs in the matter of state laws (which was clearly mentioned under section 52 (xxix) of the commonwealth constitution). The verdict made by the jury under this case is considered to be a milestone that was later referred to in the context of Tasmanian Dam and Industrial Relations Acts to reaffirm its position in Australian law.

The issue of blocking the sale of the lease in the Koowarta v Bjelke-Petersen case further appealed to the Supreme Court. The jury of the Supreme court has sustained a similar stance as that of the High Court and legitimized further proceeding in the transaction of the lease. The government of Queensland declared the Archer River cattle station as a National Park as an act of defiance, which was later labeled as a deed of prejudice on behalf of the Australian Conservation Foundation. The government under Bjelke – Peterson tried t ensure that the Aborigine community should not have further access to land in Queensland dominion. Though the court intervened and declared on October 6th of 2010 that the particular 75000 hectares of the national park should be relapsed as the freehold land for the community of Wik – Mungkana (Koowarta v Bjelke-Petersen and Others, 1982).

Critical Analysis
Any damage to the native entitlement or the inconsiderate extinguishment of the native community was prohibited by means of the Racial Discrimination Act, though some conditions laid down by the Native Title Act 1993 is exempted from it (Edelman, 2009). The provisions mention under Section 109 of the Constitution empowers the Racial discrimination Act to supersede the inconsistent laws legislated by the State. By the case of Koowarta v Bjelke-Petersen, the provision against racial discrimination was constitutionalized. It has been specifically mentioned under the Section 9 (1) of the Racial Discrimination Act that the practice of any form of restriction, discrepancies, and the prohibition based on ethnic origin, nationality, race, descent, color, etc. with an intent to invalidate or annul the implication or delight of fundamental human rights in cultural, political public, social and cultural aspect is illegal. In contrast, the racial discrimination in the context of clearance of various interests in various estates and land is prohibited under section 12. The above-provided arguments were the spine of the major arguments put forward by the plaintiff. The inclusion of these arguments has drifted the whole debate towards the plaintiff. Whereas the defendants have entangled themselves in questioning the validity of the Racial Discrimination Act in Australian dominion and the limit to which the Aborigine community was relieved from it. It was initially clear that the defendant was bound to lose since they had a destructive attitude towards the prohibition of racial discrimination from both the international and local communities (high Court of Australia, 1982).

The reference of “any race-related to aborigine community” in the special law weakened the whole argument of the defending parties in the case of Koowarta v Bjelke-Petersen. However, the jury has taken an impartial stance in this context since the Racial Discrimination was never limited to certain races only and was implacable on every person, which declassified it from the division of special law (Koowarta v Bjelke-Petersen and other, 1982).

Before the case of Koowarta v Bjelke-Petersen, there existed a general conception that the legislative authority of the local government's crucial position in the eradication of racial discrimination from the public. Reaffirming the authority of the Racial Discrimination Act by the verdict made under the case of Koowarta v Bjelke-Petersen has given the good reputation of stand in solidarity for the local government before the global community. The laws which existed earlier in the legislative system were incompetent to cure the discrimination against color, race, nationality, ethnicity, and other grounds in implicating basic human rights (High Court of Australia, 1982). It was a blunder on behalf of the defending party in the case of Koowarta v Bjelke-Petersen that the context of discrimination was introduced in it. The defending party has used the wrong approach to present their issues before the jury.

The act of converting the contentious piece of land into a National Park is considered to be an unfair and unprincipled approach on behalf of the Bjelke – Peterson government to deny the Koowarta and their parties of victory. The act of Bjelke – Peterson to convert the Archer River cattle field into a national park was proposed which was reversed by Prime Minister Anna Bligh in 2010. The stance taken in Koowarta v Bjelke-Petersen was supported by the later prime Minister Campbell Newman which after a long wait of 35 years reversed the injustice conducted against the Aborigine community (High Court of Australia, 1982).

Act, A. & Act, S.D., 1976. Race Relations Act 1976 1976. Current, (c), pp.1–88.

Edelman, D., 2009. Broader native title settlements and the meaning of the term “ traditional owners .” In AIATSIS Native Title Conference. p. 12.

Genovese, A., 2014. Critical decision, 1982: Remembering Koowarta v Bjelke-Petersen. Griffith Law Review, 23(1), pp.1–15.

High Court of Australia , 1982. Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 (11 May 1982). [Online]

Available at:

[Accessed 23 May 2018].

Kirby, H.M., 2014. Koowarta: A vital turning point for Aboriginal rights and Australia summing up the symposium. Griffith Law Review, 23(1), pp.127–144.

Koowarta v Bjelke-Petersen and Others (1982)

Tehan, M., 2014. Practising law and politics in 1980s’ Australia: The liberating effect of Koowarta v Bjelke-Petersen. Griffith Law Review, 23(1), pp.92–109.

Trlin, A.D., 1984. Australia’s Racial Discrimination Act 1975: A review of difficulties encountered by the Commissioner for Community Relations, 1975–1982. Ethnic and Racial Studies, 7(4), pp.494–516.

United Nations, 1966. International convention on the elimination of all forms of racial discrimination. United Nations Treaty Series, 660(January 1969), p.195.

Vertovec, S., 2007. Super-diversity and its implications. Ethnic and Racial Studies, 30(6), pp.1024–1054.


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