Koowarta v Bjelke-Petersen [1982] HCA 27

High Court of Australia Gibbs C.J. Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ. Koowarta v Bjelke-Petersen [1982] HCA 27

ORDER Koowarta v Bjelke-Petersen Demurrer overruled with costs. State of Queensland v The Commonwealth Demurrer allowed. Action dismissed with costs.

Cur. adv vult.

The following written judgments were delivered:—

May 11 Gibbs C.J.

These two matters raise for decision important questions as to the validity of certain sections of the Racial Discrimination Act 1975 Cth, as amended ("the Act").

In the first matter, an order has been made for the removal into this Court of parts of a cause pending in the Supreme Court of Queensland between John Koowarta, as plaintiff, and the Honourable Johannes Bjelke-Petersen and others, as defendants. The facts alleged in the statement of claim delivered in that action include the following. The plaintiff is an Aboriginal, and is and at all material times has been a member of a group of Aboriginal people known as the Winychanam Group resident at Aurukun and elsewhere in the State of Queensland ("the group"). The Aboriginal Land Fund Commission ("the Commission") is a body corporate constituted by the Aboriginal Land Fund Act 1974 Cth. (That Act has now been repealed, but that is not material.) At all material times prior to June 1977 John Herbert Broinowski and others were lessees from the Crown in right of the State of Queensland of land in Northern Queensland known as Archer River Pastoral Holding. In the years 1974 to 1976, the plaintiff on behalf of himself and other members of the group requested the Commission to acquire the said lease to enable the land to be used by or for the plaintiff and other members of the group for grazing purposes and otherwise; the Commission acceded to the said request; the plaintiff and the Commission cooperated and combined in making inquiries and taking steps with a view to the acquisition of the said lease and with a view to the use of the land for the said purposes of the plaintiff and other members of the group; and the Commission in February 1976 entered into a written contract with the lessees for the purchase of the said lease and certain cattle and horses thereon. By virtue of cl. 25 of the said contract and of the provisions of the Land Act 1962 Q any sale or transfer of the lease was subject to the approval or permission of the Minister for Lands of the State of Queensland. By letter dated 23 March 1976 the solicitors for the Commission, with the approval of the lessees, sought the consent or permission of the second defendant, who was then Minister for Lands of the State of Queensland, to the transfer of the lease to the Commission. In or about June 1976 the second defendant refused to grant consent or permission to the transfer of the said lease. On or about 8 December 1976 the second defendant, in his capacity as Minister for Lands, stated the reason for refusing to grant approval or permission to such transfer. The statement contained the following passage: