Koowarta V Bjelke-Petersen - Judgment

Judgment

By a majority of five to one, the court found that the Racial Discrimination Act was not valid under the "race" power. However, by a narrow majority of four to three, the court also found that the Act was within the "external affairs" power.

Three judges (Gibbs, Aickin, and Wilson) adopted a very narrow view, endorsing a test proposed by Justice Dixon in R v Burgess; Ex parte Henry, which focuses on whether a treaty is "indisputably international". They also suggested that reading the external affairs power too widely would destroy the balance of powers between the Commonwealth and the States. They felt that the external affairs power had to be read in light of federalism in the Constitution. In effect, they proposed that any treaty had to meet an additional test and be 'indisputably international in character'. Their view was therefore concerned with the subject-matter of racial discrimination. In this case, the legislation was not sufficient to satisfy their test, and they held that the legislation was not valid.

Three other judges (Mason, Murphy, Brennan) took a wide view, saying that the mere existence of a treaty obligation was sufficient to render the matter an 'external affair', regardless of the particular subject in question. This view was therefore not concerned with the international character of racial discrimination, but with the activity of treaty-making. Justice Murphy, characterised the arguments advanced by the States' as an attempt to resurrect the reserved State powers doctrine rejected in the 1920 Engineers' Case, and said that without the ability to implement treaties, Australia would be an "international cripple". Here, Australia clearly had obligations under the treaty, and as such the legislation was valid.

The deciding opinion was that of Ninian Stephen, who ultimately agreed with Mason, Murphy and Brennan on the facts, but took a somewhat narrow middle path in order to arrive at the same conclusion. He adopted a test based on whether or not the subject matter of the treaty being implemented is of 'international concern'. This test was not as broad as the wide view, and not as restrictive as the 'indisputably international' test. On the facts, Stephen found that the prevention of racial discrimination was indeed a matter of international concern, and as such the Racial Discrimination Act was valid.

In total, four judges held the legislation was valid under the external affairs power, but there was not a majority of judges agreeing on the test for determining validity. As a result, there was no clear ratio decidendi in the case; at best, a majority of the court might hold that s51(xxix) would support legislation implementing treaties with subject-matter of 'international concern'.