Koowarta v Bjelke-Petersen (1982) 153 CLR 168

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  • Mr John Koowarta, an Aboriginal Australian, belonged to the Winychanam nation of Indigenous peoples.
  • In 1974, Koowarta and a number of other stockmen planned to purchase the Archer River cattle station, which covered a lot of the Winychanam nation’s’ traditional homeland.  They planned to use funds provided by the Aboriginal Land Fund Commission.
  • In February 1976, the Commission made a contract to purchase the property, but the Government of Queensland, led by Sir Joh Bjelke-Petersen blocked the deal.
  • Bjelke-Petersen did not believe that Aboriginal people should be able to acquire large areas of land.
  • Koowarta complained to the Human Rights and Equal Opportunity Commission (HRC), arguing that the block of sale was racially discriminatory.
  • The HRC agreed with Koowarta, but the Government appealed to the Supreme Court of Queensland.  The Queensland Government also commenced proceedings in the High Court, arguing that the Racial Discrimination Act 1975 (Cth) (the Act) was invalid and that the Commonwealth had no power to pass the law.
  • Bjelke-Petersen argued that section 51(xxvi) of the Constitution, which allows the Parliament to make laws for “the people of any race, for whom it is deemed necessary to make special laws”, did not apply to the Act because it prohibited discrimination against all races.


  • Was the blocking of the sale to Koowarta by the Queensland Government discriminatory?
  • Did the Commonwealth have power under the races power of the Constitution (section 51(xxvi)) to pass the Act?


  • The High Court, by majority, held that the Act was not valid under the “races” power.
  • However, a narrow majority  also found that the Act was within the “external affairs” power, because the Act was enacted to give effect to the United Nations Convention on the Elimination of All Forms of Racial Discrimination. Australia had signed this convention on 13 October 1966.
  • There was no clear majority decision on what test should be used to determine the validity of legislation under the external affairs power:
    • Mason, Brennan and Murphy J took a wide view on the test which should be applied, saying that the simple existence of a treaty obligation was sufficient for the matter to be an “external affair”.
    • Gibbs, Aickin and Wilson J took a very narrow view, arguing that a treaty must be “indisputably international”.
    • Stephen J took an in-between viewpoint, arguing that the treaty must be of “international concern”, but other wise agreed the Act was valid under the external affairs power.

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