David Lee
In 1900 the Australian Constitution gave the Commonwealth Parliament not a ‘treaty power’ but a vague power over ‘external affairs’. Its precise meaning remained elusive for most of the twentieth century. But from the 1930s, Labor politicians, beginning with H. V. Evatt, Attorney-General and Minister for External Affairs in the Curtin and Chifley governments in the 1940s, saw the potential of the ‘external affairs’ power. They envisaged extending Commonwealth power by legislating international agreements concluded by federal governments throughout Australia. In the 1950s and 1960s, non-Labor governments rejected the idea of using the ‘external affairs’ power to legislate in areas which were the responsibility of the states, but the Federal Labor Party continued in the Evatt tradition. After coming to office in 1972, the Whitlam Labor government used the external affairs power to pass the Racial Discrimination Act 1975, the first significant human rights legislation in the country. This in turn had a profound effect on the law of the land in the country by making the second Mabo case granting Indigenous people their land rights possible.
In 1967 the Australian people voted overwhelmingly for the Commonwealth to have a ‘races power’, i.e. ‘power to legislate for the people of any race for whom it is deemed necessary to make special laws’. The Gorton and McMahon governments considered advice that they should pass legislation forbidding discrimination against Indigenous people. Their legal advisers, however, advised that the new ‘races power’ for particular races would not be sufficient to underpin legislation to forbid discrimination between all races. The Holt Liberal-Country Party government had signed the International Convention on the Elimination for Racial Discrimination (CERD) on 13 October 1966. But the Commonwealth was unable, between 1966 and 1972, to ratify the convention because of disagreement with the states, some of which continued to discriminate against Indigenous populations.
The Whitlam Labor government, elected in 1972, took a much more urgent approach than had coalition governments to signing and ratifying human rights treaties and passing legislation to improve the lives of Aboriginal people. Whitlam set up the first independent Commonwealth Department of Aboriginal Affairs and increased federal appropriations in such areas as health, education and housing. He also took active steps to ratify the CERD by encouraging the state of Queensland to remove its discriminatory legislation. Frustrated with Queensland’s lack of action, Whitlam and his Attorney-General, Lionel Murphy, decided in 1973 to use the external affairs power as the basis for its Racial Discrimination Bill knowing with certainty that states would challenge the legislation in the High Court. On Murphy’s reasoning, the Commonwealth would be able to legislate important obligations incurred by Australia under international conventions by national legislation applicable throughout all of Australia subject only to any relevant constitutional prohibition. This reasoning aligned with Evatt’s views of the Constitution, but it was by rejected by many lawyers and politicians.
On 31 October 1975 the Racial Discrimination Act passed both houses of Parliament. It purported to bind the states and was also drafted to override any state legislation that may have been inconsistent with the aims of the CERD. With it, Australia’s first substantial human rights legislation came into effect. Several years later, in 1982, the legislation was tested in the High Court. The case concerned the attempt of an Aboriginal man, John Koowarta, to purchase a grazing property in Queensland on behalf of a group whom he represented. The Queensland Minister for Lands refused to permit the sale of the land because state policy was against permitting Aboriginal groups from purchasing large areas of freehold or leasehold land. Koowarta argued that the Bjelke-Petersen government’s actions were discriminatory, while the state argued that the Racial Discrimination Act was unconstitutional. The High Court, now with Murphy sitting on the bench, was split over Koowarta’s challenge to the Bjelke-Petersen government, but eventually decided in Koowarta’s favour. It ruled that the races power did not justify the legislation but that the Act could be upheld by the ‘external affairs’ power insofar as the legislation was giving effect to an international convention, signed and ratified by the Commonwealth Parliament. The High Court thus confirmed that the Commonwealth Parliament could enact national human rights laws binding on the states.
When the Hawke Labor government came to power in 1983, the Australian Labor Party’s Platform included a commitment to securing national land rights for Aboriginal people throughout Australia. The ALP’s ambition was to build on land rights established in the Northern Territory in 1976. The project to establish uniform land rights legislation was, however, frustrated by opposition from the Western Australian Labor government.
Nevertheless, Indigenous Australians did obtain a different kind of land rights in the early 1990s through the High Court’s Mabo judgement. This did not involve the grant of interests under Commonwealth or state legislation but rather recognition under the common law of the pre-existing rights and interests of Indigenous people in relation to land and waters.
Labor’s prior use of the external affairs power to pass the Racial Discrimination Act was essential to Indigenous Australians winning recognition of native title rights to land and water. Indeed, but for the Racial Discrimination Act, the native title revolution would not have taken place. When Eddie Mabo in the early 1980s sought to prove native title rights for Murray Islanders in the Torres Strait, the Queensland government moved retrospectively to quash any native title rights that might exist by passing the Queensland Coast Islands Declaratory Act. Mabo’s lawyers were able to argue successfully that the Coast Island Act was invalid because it was inconsistent with the Racial Discrimination Act. In 1988 a majority of the High Court agreed and Eddie Mabo’s lawyers were thus enabled to proceed to argue the large case for native title. On 3 June 1992 the court rejected the legal doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement. It also held that the common law recognised a form of native title where Indigenous people had maintained their connection with the land and where the title had not been extinguished by acts of imperial, colonial, state, territory or Commonwealth governments.
David Lee is Associate Professor in History at the University of New South Wales. This piece is drawn from David’s article in Labour History, No. 1, 2021.
Radical Currents, Labour Histories, No. 1 Autumn 2022, 11-12.