Koowarta v Bjelke-Petersen (1982): A Landmark Case in Australia's Legal and Political History

Running Head: KOOWARTA V BJELKE-PETERSEN AND OTHERS (1982)
Koowarta v Bjelke-Petersen and Others (1982)
<Name>
<University>

KOOWARTA V BJELKE-PETERSEN AND OTHERS (1982) 2
The High Court’s decisions in Koowarta v Bjelke-Petersen [1982] HCA 27 is among
the landmark cases in Australia that represents a turning point in Australia’s legal and
political history. Marked a shift on the political arena on complex issues such as race. The
ruling marked a decisive jurisprudential turn, a consideration of a different engagement by
the High Court of Australia with both international law and the politics of federal
constitutionalism(Genovese 2014).
a. Case introduction
In 1976, John Koowarta together with others through funds from the Aboriginal Land
Fund Commission wanted to acquire rights for the Archer River cattle station that was part of
the Wiks’ people native land. The purpose of the lease was to allow the Aboriginal
community to start a cattle property. The current owners of the lease agreed to sell the lease,
but before the agreement was complete, the Queensland National Party government led by
Bjelke- Petersen opposed the purchase of the lease. Bjelke- Petersen was not of the idea that
the Aboriginal people should be allowed to secure vast areas of land. This was the same
position taken by the cabinet. Petersen had therefore directed the Queensland Minister of
Lands to terminate the sale. The Koowarta group moved the case to the high court arguing
that the Queensland government’s decision to deny them the purchase contravened the
Commonwealth 1975 Racial Discrimination Act(Tehan 2014).
b. The facts of the case
The lease could not be transferred without the approval of the Queensland
government. The government policy believed that, “sufficient land in Queensland is already
reserved and available for the use and benefit of Aboriginals.” The Discrimination Act
implemented the terms of an international treaty that sought the abolition of all forms of
discrimination based on race. In opposition, the Bjelke-Petersen government insisted that the
Act should be declared invalid on the grounds that it extended the Commonwealth's external

KOOWARTA V BJELKE-PETERSEN AND OTHERS (1982) 3
affairs power beyond that intended by the Constitution. Indeed, the Commonwealth did not
have the Constitutional authority to legislate on racial discrimination in the States(Kirby
2014).
c. The issues raised by both plaintiff and defendant
The plaintiff John Kowaarta complaint was because blocking the sale of the lease by
the government was done in bad faith and was discriminatory. On the other hand, the
defendant believed that the Aboriginal people already had enough tracks of land and were not
allowed to acquire large pieces of land. The Government responded by challenging the
validity of the RDA, arguing that the Commonwealth Parliament had no constitutional power
to pass it. The main legal issue was whether the Commonwealth had the power to pass the
Racial Discrimination Act(Vertovec 2007).
d. The arguments presented by both parties
John Koowarta argument to the Human Rights and Equal Opportunity Commission
was meant to oppose and seek reprieve from the Queensland Government position to block
the sale of the lease. The government was of the position that the Aboriginal did not have the
rights to buy leases to large pieces of land which Koowarta argued was discriminatory based
on section 9 and 12 of the Racial Discrimination Act of 1975. Section 9 of the Act illegalized
infringement of human rights based on a distinction made based on race. Section 12 of the
same Act made it illeagal for any groups of people or anybody to be denied an opportunity to
own land or deny them a chance to settle down on a piece of land on the grounds of race
(Koowarta v Bjelke-Petersen and Others, 1982).
Bjelke Petersen who represented the Queensland argument was of the view that the
Racial Discrimination Act 1975 was not valid hence his bid to challenge its validity.
Furthermore the Queensland government was of the position that the Australian government
had no rights to make it as it extended the commonwealth’s external affairs power beyond