On 11 May, Alex Reilly participated in a Symposium at the Melbourne Law School to commemorate the 30th anniversary of Koowarta v Bjelke-Petersen (1982) 153 CLR 16.
Koowarta was of great significance in relation to the interpretation of the external affairs power. The Commonwealth Aboriginal Land Fund Commission (ALFC) brought a pastoral lease on the Archer River in Queensland on behalf of John Koowarta and the Winchinam Indigenous community. The Queensland government refused to consent to the transfer of the lease to the ALFC, stating as the reason for its refusal that ‘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.’ The refusal to consent to the purchase was challenged under the Racial Discrimination Act 1975 (Cth) (RDA). In its defence, Queensland challenged the validity of the RDA. The High Court concluded that the RDA was a valid law under the external affairs power and in reaching this conclusion, confirmed that the external affairs power could be used to pass laws implementing international treaty obligations entered by the executive government.
As well as its significance for confirming the validity of laws implementing Australia’s human rights obligations, the case was significant for Indigenous land rights. However, in this respect, despite success in the Koowarta case, the Winchinan people did not secure title to the lease. Having lost in the courts, the Queensland government thwarted the purchase by declaring the area including the lease to be a National Park. When John Koowarta died in 9 years later, the lease had still not been transferred. A long standing promise to transfer the lease was finally honoured by the Bligh Labor government.
Alex’s contribution to the symposium focused on the work of the Aboriginal Land Fund Commission (ALFC) from 1974 to 1980. It was the ALFC’s determination to complete land purchases in Queensland that led to Koowarta v Bjelke-Petersen. The ALFC came into direct conflict with the Queensland Department for Aboriginal and Islander Advancement, which reflected a broader conflict between Commonwealth and Queensland government policies on the purchase of land for Aboriginal peoples in Queensland. This conflict brought into play the Racial Discrimination Act (RDA). The Queensland government rejected the validity of the RDA and in any case maintained that its policies were not racially discriminatory. The ALFC also found itself in conflict with the Commonwealth as it pushed ahead with land purchases in Queensland against the express wishes of the Minister for Aboriginal Affairs. It was the persistence of the ALFC, and ultimately its willingness to pursue the purchase of land without the support of the Commonwealth, that led to the High Court intervention in Koowarta.
The symposium brought together leading Indigenous and non-Indigenous legal scholars, including Hilary Charlesworth, Marcia Langton, and Michael Kirby to interrogate Koowarta from a range of perspectives. Further details of the symposium can be found at: www.law.unimelb.edu.au/event/5995.
Alex Reilly is an Associate Professor at the Adelaide Law School who has published extensively on Indigenous issues in Australia, including co-authoring Rights and Redemption: History, Law and Indigenous People (UNSW Press, 2008) with Ann Curthoys and Ann Genovese.