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Decisions for the Commonwealth

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1982 Koowarta v. Bjelke-Petersen, Queensland

 In 1976, John Koowarta convinced the Aboriginal Land Fund Commission to purchase a lease of land in Northern Queensland. The lease was to enable an Aboriginal community to start a cattle property. Permission to lease the land was refused by the Queensland National Party government led by Bjelke-Petersen; the party was opposed to Aborigines buying leasehold land.

 The Koowarta group took the case to the High Court, arguing that the Queensland government’s decision breached the Commonwealth 1975 Racial Discrimination Act. This 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 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.

 In 1982 the High Court ruled, by the narrowest of margins (4-3), that the Racial Discrimination Act was valid and that it could override State laws using the external affairs powers under section 51 (xxix) of the Commonwealth Constitution.                        

1983 The Tasmanian Dam Case

The decision by the Tasmanian government to dam the Franklin River and flood a substantial heritage wilderness area led to a challenge in the High Court by the Commonwealth.

 The court ruled that the Commonwealth had the power to prevent construction because Australia was a party to an international convention protecting world culture and natural heritage.  The Franklin River was listed on the World Heritage List and, as the Commonwealth held external affairs powers under section 51 (xxix) of the Commonwealth Constitution, it had the power to bind the States to any international treaties to which Australia was a party.

 The decision raised another issue for the States. It ruled that statutory authorities such as the Tasmanian Hydro Electricity Commission (which generates electricity to sell) could be trading corporations under Section 51 (xx) of the Commonwealth Constitution and therefore subject to Commonwealth legislation.  This permits the Commonwealth to regulate the activities of such trading corporations.

 This case opened the door for future Commonwealth regulation because most State economic activities are carried out by trading corporations. The decision gives the Commonwealth power over certain activities that previously have been governed by State laws and policies.