Labor, the External Affairs Power and the Rights of Aborigines
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Labor, the External Affairs Power and
the Rights of Aborigines
David Lee*
Rights of Aborigines
The Australian Constitution gave the Commonwealth not a “treaty power” but a
vague power over “external affairs,” the precise meaning of which was elusive for
most of the twentieth century. From the 1930s, Labor judges and politicians such as
H. V. Evatt saw its potential to extend Commonwealth power by legislating interna-
tional agreements throughout Australia. The non-Labor parties rejected the idea of
using the “external affairs” power to legislate in areas formerly the responsibility
of the states but the federal Labor Party continued in the Evatt tradition. After
significant uncertainties, the Whitlam government used the external affairs power
to pass the Racial Discrimination Act 1975, the first significant human rights
legislation in the country, which in turn had a profound effect on the law of the land
in the country by making the second Mabo Case possible.
Keywords: External Affairs; Racial Discrimination; Racial Discrimination
Act; Aborigines; Constitution; Australian Labor Party; Whitlam Government;
Native Title; Mabo
Since the High Court’s overturning of the doctrine of terra nullius in the early
1990s, historians, lawyers and political scientists have given considerable
attention to the struggle that led to that landmark decision. Taking a longer
view, several historians have charted the struggle for rights for Aborigines
in Australia. Constitutional lawyers, too, have demonstrated the importance
of the Constitution’s external affairs power in allowing the Australian
government to use treaty commitments to override the states in areas such
as the environment and human rights. The purpose of this article is to bring
together historical and legal scholarship about some of the most important
rights for Aborigines. Specifically, this article traces the thread from the
Commonwealth’s “external affairs” power to the gradual development in the
Australian Labor Party (ALP) of a radical view about how the power could
* The author would like to thank Labour History’s two anonymous referees as
well as Adam Henry, James Cotton, Frank Bongiorno and Roderic Pitty, who all
participated in a conference on the Whitlam Legacy at the Whitlam Institute on
21 November 2018.
Labour History, Number 120 (May 2021): 49–68 https://doi.org/10.3828/jlh.2021.4
© 2021 Australian Society for the Study of Labour History ISSN 0023-694250 Labour History • Number 120 • May 2021
be used. It then demonstrates the importance of the Whitlam government’s
Racial Discrimination Act 1975 in establishing protection against discrimi-
nation in Australian law and in paving the way for the Mabo decision of the
early 1990s. Thus, the establishment of some of the most important rights for
Australian Aborigines in the period since 1975 has come from international
human rights agreements, the Commonwealth of Australia’s adherence to
them and the federal ALP’s determination to override the Australian states
in legislating for them. Without these international agreements and Labor’s
use of the external affairs power to convert them into law, these rights may
never have been won.
Federation and the Commonwealth’s Power over “External Affairs”
When the six British colonies in Australasia federated in 1901, the
Commonwealth of Australia became a self-governing dominion. While
fully self-governing in respect of internal matters, the Commonwealth of
Australia was dependent on the UK in making treaties from which, like the
colonies earlier, it could opt in or out. In the debates on the making of the
Constitution in the 1890s some had suggested giving the Commonwealth
of Australia a treaty power.1 The Colonial Office thought that this would be
unwise and inconsistent with Australia’s status as a dependency. Edmund
Barton, who was to be Australia’s first Prime Minister, agreed.2
In the end, the view of the Colonial Office and Barton won. The
Australian Constitution, drafted by Australian delegates and enshrined
in an imperial Act, gave the Commonwealth of Australia in s 51(29) power
to legislate with respect to “external affairs.” What this phrase meant was
not clear and Quick and Garran, in their commentary on the Constitution,
observed that:
There is nothing in it indicative of an intention of the Imperial Parliament
to divest itself of all authority over the external affairs of Australia and
to commit them exclusively to the Parliament of the Commonwealth, any
more than it divests itself absolutely of any other of its supreme sovereign
powers.3
On 28 May 1901 Alfred Deakin, Attorney-General in Barton’s government,
gave an opinion on the “external affairs” arguing that:
1. See generally Gunther Doeker, The Treaty-Making Power in the Commonwealth of
Australia (The Hague: Nijhoff, 1966).
2. J. A. La Nauze, The Making of the Australian Constitution (Carlton: Melbourne
University Press, 1972), 184, 251–52.
3. John Quick and Robert Garran, The Annotated Constitution of the Australian
Commonwealth Part 1 (Sydney: Angus and Robertson, 1901), 631.Lee • Rights of Aborigines 51
The Empire as a sovereign independent state possesses full contracting
powers which are exercised by the Imperial Government alone. The
Commonwealth has no treaty powers of any kind under its Constitution
and being a dependency can acquire none save those with which it may
be specially endowed from time to time.4
Deakin’s main point was that henceforth only the Commonwealth and not
the states could speak for the nation and that the “Colonial Office should
think in terms of the Commonwealth, rather than the separate states, when
designating dependencies as adherents to a treaty entered into by the
Imperial government.”5 For Barton and his colleagues, the phrase “external
affairs” implied little more than Australia’s relations with the UK.6
Over the course of the twentieth century, Australia gradually became
a nation state with its own “international personality,” gaining legislative
independence, the capacity to make international agreements, and the
wherewithal to exchange diplomatic representatives with foreign powers.7
Australia’s progress toward national independence, however, left uncertain
the scope of the external affairs power until as late as the 1980s.
There were three reasons for this uncertainty. One was that Australia’s
national independence came about more from the evolution of public
opinion than legal device.8 Some of Australia’s first independent foreign
policy actions, such as appointing diplomats to foreign countries, making
treaties or declaring war, were executive and not dependent on legislation.9
4. Attorney-General’s Department, Opinions of Attorneys-General of the Commonwealth
of Australia: Volume 1, 1901–1914, Opinion 2 (Canberra: Australian Government
Publishing Service, 1981), 2.
5. Colin Howard, Australian Federal Constitutional Law (Melbourne: The Law Book
Company, 1985), 496.
6. W. G. McMinn, Nationalism and Federalism in Australia (Melbourne, Oxford University
Press, 1994), ch. 14; W. J. Hudson and M. P. Sharp, Australian Independence: Colony
to Reluctant Kingdom (Carlton: Melbourne University Press, 1988), 30–33.
7. Hudson and Sharp, Australian Independence; D. P. O’Connell, “The Evolution
of Australia’s International Personality,” in International Law in Australia, ed.
D. P. O’Connell (Sydney: Law Book Co., 1966); K. C. Wheare, The Statute of
Westminster and Dominion Status (London: Oxford University Press, 1953); Melissa
Conley-Tyler, Emily Crawford and Shirley V. Scott, “The Emergence of Australia’s
International Personality: Historical, Legal and Policy Perspectives,” in International
Law in Australia, ed. Donald R. Rothwell and Emily Crawford, 3rd edn (Pyrmont:
Thomas Reuters Professional, 2017); Leslie Zines, “The Growth of Australian
Nationhood and its Effect on the Powers of the Commonwealth,” in Commentaries
on the Australian Constitution, ed. L. Zines (Sydney: Butterworths, 1977), 1–49.
8. The exception was the Statute of Westminster 1931 but this was not ratified by
Australia until 1942 largely because of Commonwealth–state disputation. See David
Lee, “States Rights and Australia’s Adoption of the Statute of Westminster,” History
Australia 13, no. 2 (2016): 258–74.
9. Howard, Australian Federal Constitutional Law, 490–91.52 Labour History • Number 120 • May 2021
Australia became an independent nation state by the 1940s without the
Commonwealth’s constitutional power over “external affairs” needing to
be tested. A second reason for the continuing uncertainty was that treaties
did not themselves change laws. If a change in the law was required by a
treaty it had to be done by the appropriate parliament.10 When the UK and
later the Commonwealth of Australia made treaties, their subject matter
was often within the jurisdiction of the states. It was for this reason that
the South Australian Premier argued in the 1902 Vondel Case that while
the treaty power resided in London, its mechanical operation was through
the states.11 A third reason was that for many decades after federation, the
states argued that they retained at least some powers to make international
agreements. They also continued to appoint agents-general in London and
other representatives overseas.12
Even in the period of the Whitlam Labor government from 1973 to 1975,
the scope for states to make international agreements was raising problems
for the Commonwealth. This was evident when a senior official from the
Department of Foreign Affairs found it necessary to recommend to the
Prime Minister’s Department on 20 September 1974 that:
In the absence of a clear authoritative judicial determination of the High
Court inhibiting [state] action in the field, or even in the case of adverse
decision on this point by the High Court based on the existing legal
situation, we think that consideration should be given to legislation under
sec 51(xxix) to establish procedures for treaty making, or, if necessary, to
explicit instructions by the Crown to the States’ Governors that they are
not to exercise the Crown’s prerogative of treaty-making.13
The uncertainty about the responsibility for treaty-making as between
Commonwealth and states reflected the fact that there had been few
opportunities to test the “external affairs” power in the High Court before
the 1970s. The most important exception was the case R v. Burgess, ex parte
Henry in 1936. The case concerned the legality of the Air Navigation Act
1920, federal legislation that gave effect to an international convention on
civil aviation made in 1919 and purporting to operate within the Australian
10. Leslie Zines, Constitutional Change in the Commonwealth (Melbourne: Cambridge
University Press, 1991), 93. Chief Justice Mason and Justice Deane pointed out in
1995: “it is well established that an international treaty to which Australia is a party
does not form part of Australian law unless those provisions have been validly
incorporated into our municipal law by statute.” Minister of State for Immigration
and Ethnic Affairs v. Ah Hin Teoh (1995) 183 Commonwealth Law Reports 286–87.
11. The Adelaide Observer, 4 October 1902.
12. Campbell G. Sharman, “The Australian States and External Affairs: An Exploratory
Note,” Australian Outlook 27, no. 3 (1973): 307–18.
13. Richard Smith to Prime Minister’s Department, A432, 1971/3538, National Archives
of Australia (NAA).Lee • Rights of Aborigines 53
states as well as between them.14 All the judges of the High Court ruled the
regulations under the Commonwealth legislation invalid because they did
not carry out the conventions of the treaty.15
The joint judgement of the two Labor appointments to the High Court,
H. V. Evatt and Edward McTiernan, stands out in its appreciation of the
potential of the external affairs power as both a vehicle for centralisation
and a means for the Commonwealth to implement international obligations.
The Scullin Labor government had appointed Evatt and McTiernan, two
New South Wales ALP lawyers and parliamentarians, in 1930. McTiernan
remained on the court until 1976 while Evatt left it to become federal
Attorney-General and Minister for External Affairs from 1941 to 1949.16
In their joint judgement in 1936, Evatt and McTiernan argued for an
expansive interpretation of the “external affairs” power at odds with
conventional opinion and the opinions of some of their fellow judges. The
eminent legal scholar Harrison Moore, for example, insisted that a “matter
in itself purely domestic” could not be drawn into the range of federal
power “merely because some arrangement has been made for uniform
national action.”17 Justice Owen Dixon’s view was that the subject matter
of any treaty upon which legislation was based had to be “indisputably
international in character” before it could be used to supersede state
authority.18 Evatt and McTiernan, by contrast, argued that “the fact of an
international convention having been duly made about a subject brings that
subject within the field of international relations so far as such subject is
dealt with by the agreement.”19 They saw only two significant limitations
of the power: that it was subject to overriding prohibitions expressed
elsewhere in the Constitution and that any law enacted under s 51(29)
pursuant to an international agreement needed to “conform closely to the
exact terms of that agreement.”20 Later, as Minister for External Affairs,
Evatt was prominent in the international conference that drew up the
14. The Paris Convention of 1919 or more formally the Convention Relating to the
Regulation of Aerial Navigation.
15. McMinn, Nationalism and Federalism, 253–54.
16. Kylie Tennant, Evatt: Politics and Justice (Sydney: Angus and Robertson, 1970); Ken
Buckley, Barbara Dale and Wayne Reynolds, Doc Evatt: Patriot, Internationalist, Fighter
and Scholar (Melbourne: Longman Cheshire, 1974); Peter Crockett, Evatt: A Life
(Melbourne: Oxford University Press, 1993); John Murphy, Evatt: A Life (Sydney:
NewSouth Publishing, 2016).
17. Memorandum, “Federal State Clauses in International Agreements,” n.d., A1838,
926/4/2 part 1, NAA.
18. Howard, Australian Federal Constitutional Law, 499; McMinn, Nationalism and
Federalism, 253–54.
19. G. Sawer, Cases on the Constitution of the Commonwealth of Australia (Sydney: Law
Book Company, 1973), 466.
20. Howard, Australian Federal Constitutional Law, 502.54 Labour History • Number 120 • May 2021
Charter of the United Nations, and he was President of the United Nations
General Assembly in 1948 when the Universal Declaration of Human
Rights was adopted.21 Particularly after 1944, when the Curtin government
failed to expand the Commonwealth’s power through a referendum, Evatt
remained aware of the potential of s 51(29) as a “potentially powerful
vehicle for centralization.”22
Evatt and other ALP leaders such as John Curtin were well aware that
because many international agreements concluded after 1919 related to
matters for which the states were responsible, the process of concluding
and ratifying international agreements was often cumbersome.23 Australia,
for example, was able to ratify only a small proportion of agreements
adopted by the International Labour Organization (ILO): 20 of 107 interna-
tional agreements by 1957.24 Another casualty of the Commonwealth–state
divide was the International Convention on the Elimination for Racial
Discrimination (CERD), adopted and opened for signature by the United
Nations General Assembly in 1965.25 Paul Hasluck, the Liberal Minister
for External Affairs, signed it on behalf of Australia the following year
on 13 October 1966. When Hasluck did so, the Commonwealth Attorney-
General’s department assumed that it would eventually be ratified. This
was because, as senior official Clarence Harders noted, “Australia’s almost
invariable practice is not to sign a Convention unless it is intended to
proceed to ratification in due course. In this case, moreover, it could be
very difficult from the international standpoint, not to go ahead with
ratification.”26
How long ratification would take was another question. The CERD
entered into force in January 1969 after 27 nation states ratified it. Australia’s
ratification, however, could not take place until it had prohibited racial
discrimination in Australia. Until 1967, the Commonwealth had no
21. Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration
of Human Rights (New York: Random House, 2002); Johannes Morsink, The Universal
Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia: University
of Pennsylvania Press, 1999); Colin Milner, “Human Rights and International
Law,’ in Australia and the United Nations, ed. James Cotton and David Lee (Sydney:
Longueville, 2012), 345–47.
22. McMinn, Nationalism and Federalism, 274. See also Charlie Fox, “The Fourteen
Powers Referendum of 1944 and the Federalisation of Aboriginal Affairs,” Aboriginal
History 32, (2008): 27–48 and Stuart Macintyre, Australia’s Boldest Experiment: War
and Reconstruction in the 1940s (Sydney: NewSouth Publishing, 2015), 253–70.
23. Curtin had been a delegate to the International Labour Organization in 1924. David
Day, John Curtin: A Life (Sydney: HarperCollins, 1999), 284–86.
24. Mary Crock, “Federalism and the External Affairs Power,” Melbourne University
Law Review 14, no. 2 (1983): 246.
25. Milner, “Human Rights and International Law,” 348–49.
26. Harders to Snedden, n.d. 1966, A1838, 929/5/6 part 7, NAA.Lee • Rights of Aborigines 55
constitutional power to legislate for Aborigines.27 Moreover, much of the
discrimination against Aboriginals at that time was the consequence of
state laws that affected the rights of Indigenous people.28 In some cases,
this discrimination violated fundamental human rights as defined in the
Universal Declaration of Human Rights and successive pronouncements by
bodies such as the International Court of Justice. Discrimination included
measures restricting the movement of Aboriginals within a state, impairing
their voting rights and right to own property or discriminating against them
in payment of wages.29
There was some momentum towards ratification of the CERD after the
referendum on the “races power” in 1967.30 Because of the overwhelming
popular agreement with the questions put to popular vote, s 127 of the
Constitution, which had excluded Aboriginals from the official population,
was deleted.31 In addition, the referendum turned s 51(26) of the Constitution
into a “power to legislate for the people of any race for whom it is deemed
necessary to make special laws.”32 In the year after the referendum, Prime
Minister John Gorton appointed Billy Wentworth as Minister in Charge of
Aboriginal Affairs with the support of a Council of Aboriginal Affairs. In
1968 the Council recommended to Wentworth: “Unless there are consti-
tutional difficulties, legislation can be introduced to make unlawful any
racial discrimination against Aboriginals: or alternatively, if this is imprac-
ticable, the commonwealth propose to the states the adoption of uniform
Commonwealth and State legislation to this end.”33
The Attorney-General’s Department considered the possibility of using
s 51(26), the amended “races power,” to underpin legislation to make racial
discrimination against Aboriginals illegal. The department was forced,
27. Bain Attwood, Rights for Aborigines (Crows Nest: Allen & Unwin, 2003), 163–66.
A. J. Grassby, “Racial Discrimination Act: The First Two Years,” Tharunka,
19 September 1977.
28. Attwood, Rights for Aborigines, 181–83.
29. Garth Nettheim, “Queensland Laws vs Aboriginal Rights,” Tharunka, 16 April 1975.
30. Tom Frame, The Life and Death of Harold Holt (Crows Nest: Allen & Unwin 2005),
211–14; Murray Goot and Tim Rowse, Divided Nation? Indigenous Affairs and the
Imagined Public (Carlton: Melbourne University Publishing, 2007); John Gardiner-
Garden, The Origin of Commonwealth Involvement in Indigenous Affairs and the
1967 Referendum (Canberra: Department of the Parliamentary Library, 1997); Bain
Attwood and Andrew Markus, The 1967 Referendum: Race Power and the Australian
Constitution (Canberra: Aboriginal Studies Press, 2007).
31. Section 127 read: “In reckoning the numbers of the people of the Commonwealth,
or of a State or other part of the Commonwealth, aboriginal natives shall not be
counted.”
32. Section 51(26) originally read: “The people of any race, other than the aboriginal
race in any State, for whom it is necessary to make special laws.”
33. Dexter to Hook, 18 April 1968, A432, 1968/3151, NAA.56 Labour History • Number 120 • May 2021
however, to advise Wentworth that s 51(26) probably could not support
general anti-discrimination legislation because it was a power with respect
to a specific race or races not to all races.34 The anthropologist W. E. H. Stanner
found another problem with relying on s 51(26), namely that it was doubtful
whether any such entity as “of Aboriginal race” could be demonstrated
scientifically.35
The Attorney-General’s Department nevertheless began a process of
identifying and seeking to amend laws anywhere in Australia that discrim-
inated against Aborigines. Its hope was that Australia would thereby be able
to ratify the CERD in 1971, the year that had been slated as the “International
year for Action to Combat Racism and Racial Discrimination.”36 The problem
with meeting this milestone was identified by a senior official of the
Department of Foreign Affairs who noted that the process “might require
not only removal of discriminatory legislation [by the commonwealth and
states] but also the enactment of positive legislation forbidding discrimi-
natory practices.”37 The critical question was on what constitutional basis
could such a law be passed if not the races power. Would both common-
wealth and the states need to pass such legislation before the CERD could
be ratified? With no clear answer to these questions, the years 1971 and 1972
passed without Australia’s ratification on the CERD.38
The External Affairs Power and the Racial Discrimination Act
In December 1972, the ALP was elected at the federal level after more than
two decades out of power. The Whitlam government took a much more urgent
approach than had the coalition governments to signing and ratifying human
rights treaties and passing legislation to improve the lives of Australia’s
Aboriginal people. The federal ALP differed from the Liberal and Country
parties in so far as its disposition was to view the betterment of Australia’s
Indigenous people and the protection of their rights as international issues.
For many years in opposition E. G. (Gough) Whitlam (in both his role as
Deputy Leader and then Leader of the ALP) had supported the protection
34. Rose memorandum, “Constitution s. 51(xxvi): Aborigines Proposed Law to Prohibit
Racial Discrimination,” 26 April 1968; Hook to Prime Minister’s Department, 6 May
1968, A432, 1968/3151, NAA.
35. Stanner to Wentworth, A432, 1968/3151, NAA.
36. For public protests about racism in sport in 1971, see Larry Writer, Pitched Battle:
In the Frontline of the 1971 Springbok Tour of Australia (Brunswick, Vic.: Scribe, 2016).
37. J. W. C. Cumes minute, 18 March 1971, A1838, 929/5/10 part 2, NAA.
38. In April 1971, Liberal Prime Minister William McMahon hoped, after discussion
with the states on removal of remaining discrimination against Australian
Aborigines, to “move towards the complete enjoyment of normal civil liberties by
Aborigines generally.” McMahon media statement, 23 April 1971, M1369, 1, NAA.Lee • Rights of Aborigines 57
Figure 1: Prime Minister Gough Whitlam Pouring Dirt into the Hand of Gurindji Leader, Vincent
Lingiari, on 16 August 1975
Whitlam’s symbolic handing back Commonwealth land to the Gurindji people prefigured
the High Court’s Mabo decisions in 1988 and 1992 that native title existed for Indigenous
people. The passage of the Racial Discrimination Act 1975, which Whitlam championed,
was an essential step in the process that led to the Mabo decisions.
Photograph by Mervyn Bishop; held by the Museum of Applied Arts and Science, Sydney.
Courtesy of the National Indigenous Australians Agency and the family of Vincent Lingiari
of the rights of Australia’s Indigenous peoples as fundamental human rights
protected by international covenants. During the debate on the Electoral Act in
May 1961, for example, Whitlam sought to ensure the vote for all Aboriginal
Australians. For Whitlam this was not simply a matter of domestic jurisdiction
but a question of fundamental human rights. He declared:58 Labour History • Number 120 • May 2021
I believe that we are in breach of articles 55 and 56 of the United Nations
Charter as long as we deprive aborigines of the vote on the basis that
they are aborigines … We joined in declaring in the United Nations, as
far back as 1948, the Universal Declaration of Human Rights, and in it we
have said that one of the things that all human beings are entitled to is
the vote and representation in Parliament.39
More than a decade later, Whitlam gave notice in his 1972 election policy
speech of the ALP’s intention to introduce anti-discrimination legislation
and to ratify the CERD. Whitlam explicitly placed his commitment to the
rights of Aboriginal people in an international context, stating that:
Australia’s real test as far as the rest of the world, and particularly our
own region, is concerned is the role we create for our own Aborigines.
In this sense, and it is a very real sense, the Aborigines are our true link
with the region. More than any foreign aid program, more than any
international obligation which we meet or forfeit, more than any part we
play in any treaty or agreement or alliance, Australia’s treatment of her
Aboriginal people will be the thing upon which the rest of the world will
judge Australia and Australians.40
The Whitlam government started to implement its election commitments
on Aboriginal rights and racial discrimination soon after taking office.
Whitlam set up the first independent Department of Aboriginal Affairs,
increased federal appropriations in such areas as health, education
and housing and established the first national Aboriginal advisory
body.41 As early as 1972 Whitlam had promised to pass Aboriginal land
rights legislation and he selected the Northern Territory, where the
Commonwealth had exclusive jurisdiction, as the place to start.42 Whitlam
also wrote to the Premier of Queensland to seek amendments to discrimi-
natory provisions in that state’s Aboriginal and Torres Strait Islanders
Affairs Act 1968 to enable the Commonwealth to ratify the CERD.43 At
the same time, the Whitlam government signed two other human rights
conventions (the United Nations International Covenants on Economic,
39. Jenny Hocking, Gough Whitlam: A Moment in History (Carlton: Melbourne University
Press, 2008), 203. See also Whitlam press statement, 6 August 1972, M170, 72/120,
NAA.
40. Quoted in David Goldsworthy, ed., Facing North: A Century of Australian Engagement
with Asia: Volume 1, 1901 to the 1970s (Carlton: Melbourne University Press, 2001),
315.
41. Ronald T. Libby, Hawke’s Law: The Politics of Mining and Aboriginal Rights in Australia
(Nedlands: University of Western Australia Press, 1989), 9.
42. Jenny Hocking, Gough Whitlam: His Time (Carlton: Melbourne University Press,
2012), 185–87, 387.
43. Gough Whitlam, The Whitlam Government 1972–1975 (Ringwood, Vic.: Penguin
Books 1985), 67.Lee • Rights of Aborigines 59
Social and Cultural Rights and on Civil and Political Rights) and began
preparations on a Human Rights Bill.44
Whitlam and his Attorney-General Lionel Murphy were emboldened by
a shared confidence in the ambit of the external affairs power. As consti-
tutional lawyers steeped in the Evatt tradition, Whitlam and Murphy
regarded the Evatt/McTiernan interpretation of the external affairs power
in the Burgess Case as the correct constitutional interpretation.45 Indeed,
Murphy for some time had been advancing a view that critics came to call
the “Murphy doctrine.” In 1982, one such critic, Charles Court, the Liberal
Premier of Western Australia, reminded Prime Minister Malcolm Fraser
that Murphy, in government and opposition had consistently advanced the
view that “under external affairs powers provisions of the Constitution, a
Commonwealth Government could do anything in Australia – regardless of
the specific terms of the Constitution – if it had a requirement to undertake
the things under the terms of a treaty or similar arrangement with a foreign
country.”46
Court’s characterisation of Murphy’s thinking was not wide of the mark.
In an address in June 1973 to the Victorian Council for Civil Liberties,
for example, Murphy made clear that the federal government’s power to
legislate with respect to human rights, although circumscribed, was not as
“limited as people think.”47 The Australian parliament, he argued, could
insert human rights guarantees into Australian legislation through the
external affairs power. He explained:
[W]e can utilise the external affairs power of the Federal Parliament to
implement the undertakings and agreements we have made interna-
tionally. If we do that, those great rights and liberties which have been
declared, some of them as the common standard for men everywhere,
can be brought into our law at the Federal level and it may be not only
they will operate at the federal level but that because of the operation of
Section 109 of the Constitution they can be made to operate in what have
previously been areas of the States.48
Murphy set out his view of the external affairs power in discussions with
his departmental officers and ministerial colleagues in an Attorney-General’s
44. Milner, “Human Rights and International Law,” 347; Annemarie Devereux, Australia
and the Birth of the International Bill of Rights (Annandale, NSW: Federation Press,
2005).
45. For evidence of the influence of Evatt’s internationalist ideas on Whitlam, see
Hocking, Gough Whitlam: A Moment in History, 126–28.
46. Court to Fraser, 31 May 1982, A1209, 1982/719, NAA.
47. Lionel Murphy address, June 1973, A1209, 1973/6450, NAA.
48. Ibid. Section 109 states that “[w]hen a Law of a State is inconsistent with a law of
the Commonwealth, the latter shall prevail, and the former shall, to the extent of
the inconsistency, be invalid.”60 Labour History • Number 120 • May 2021
opinion. In the first half of 1973, the Department of Labour and Immigration
asked whether ILO Conventions came within the “external affairs” power
of the Australian Constitution.49 Noting that most ILO conventions dealt
with domestic matters that had been left in practice to the states, Murphy
explained that “[t]he main question that arises is therefore whether existing
practices could be changed by direct legislation of the Australian Parliament
pursuant to Section 51(xxix).”50 Referring to the judgments of Justices Evatt
and McTiernan in the Burgess Case, he was emphatic that “the judgement
of Evatt and McTiernan JJ, correctly states the law on the matter. On that
basis, the Australian Parliament undoubtedly could implement obligations
incurred by Australia under ILO Conventions by national legislation
applicable throughout the whole of Australia subject only to any relevant
constitutional prohibition.”51
If this interpretation applied to ILO conventions, it also applied to human
rights treaties. One such agreement that Murphy was particularly eager
to implement was the international commitment on racial non-discrimi-
nation. On 27 September 1973, Whitlam informed the state Premiers that
a Racial Discrimination bill would be introduced in the budget sittings.52
In the expectation that the legislation would eventually be challenged in
the High Court, the drafters of the legislation were mindful that it had
to conform closely to the exact terms of the CERD. This had been one of
the tests that Evatt and McTiernan had identified as determining whether
laws passed pursuant to international agreements would be valid. The
Racial Discrimination Bill was duly prepared by November 1973, with
the Parliamentary Counsel warning that “[t]he general validity of the Act
will depend on whether it carries into effect the Convention on Racial
Discrimination.”53
The Racial Discrimination Bill 1973 did not join the other legislation
that formed the basis of the double dissolution election of 1974 and the
subsequent joint sitting of the two houses of parliament.54 Following the
Whitlam government’s re-election in 1974, Murphy reintroduced it in the
Senate on 31 October 1974.55 After Murphy’s elevation to the High Court
in 1975, Kep Enderby, his successor as Attorney-General, introduced the
bill in the House of Representatives on 13 February 1975. By that time, the
Whitlam government was losing patience with the states, which continued
49. Ian Sharp to Clarence Harders, 14 January 1973, A432, 1973/3613 part 2, NAA.
50. Lionel Murphy to Clyde Cameron, n.d, A432, 1973/3613 part 2, NAA.
51. Ibid.
52. Lionel Murphy submission to Cabinet, 23 February 1973, A5931, CL207, NAA.
53. Memorandum, n.d. 1973, A5931, CL207, NAA.
54. Hocking, Gough Whitlam: His Time, 146–47.
55. Jenny Hocking, Lionel Murphy: A Political Biography (Melbourne: Cambridge
University Press, 1997), 189.Lee • Rights of Aborigines 61
to delay in removing remaining discrimination against Aborigines from
state laws. Consequently, Senator Jim Cavanagh, the Commonwealth
Minister for Aboriginal Affairs, introduced the Aboriginal and Torres Strait
Islanders (Queensland Discriminatory Laws) Bill to prepare the way for
the Whitlam government to ratify the CERD. This Act overrode state laws
that allowed Aboriginal property to be managed without the consent of
the local community, restricted property rights or imposed unequal wages
and conditions on Aboriginal workers. The special legislation paved the
way for the passage of the main legislation, which was debated extensively
in 1975.56 One of the main problems of the opposition Liberal and Country
parties with the Racial Discrimination Act (RDA) was that it was inconsistent
with their federalist principles. They amended the RDA in the upper house
but did not block it completely. In part this reflected the support for the
measure by some “small-l” liberals in the Liberal Party such as Victoria’s
Alan Missen.57
Consequently, on 31 October 1975, the RDA passed both houses of
parliament. The RDA 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.58 With it, Australia’s first substantial human rights legislation
came into effect. Although the Fraser-led Liberal–National Party opposition
had disagreed with the principle of using the external affairs power to
override the states, when the Coalition parties took government they were
left to implement a law that “cast serious legal doubt on quite large areas of
state legislation in Queensland and in Western Australia (and perhaps in
other states as well).”59
The External Affairs Power Tested
In March 1972, not long before the Whitlam government was elected,
the federal Attorney-General’s Department declared that the Australian
56. Whitlam, The Whitlam Government, 471.
57. See generally Anton Hermann, Alan Missen Liberal Pilgrim: A Political Biography
(Woden: The Poplar Press, 1993).
58. Section 10(1) of the Racial Discrimination Act 1975 states: “[i]f, by reason of, or of
a provision of, a law of the Commonwealth or of a State or Territory, persons of
a particular race, colour or national or ethnic origin do not enjoy a right that is
enjoyed by persons of another race, colour or national or ethnic origin, or enjoy
a right to a more limited extent than persons of another race, colour or national
or ethnic origin, then, notwithstanding anything in that law, persons of the first-
mentioned race, colour or national or ethnic origin shall, by force of this section,
enjoy that right to the same extent as persons of that other race, colour or national
or ethnic origin.”
59. Roger Holdich minute, October 1976, A1209, 1976/1896 part 1, NAA.62 Labour History • Number 120 • May 2021
government had no “view” on the scope of the external affairs power, the
Burgess Case notwithstanding, and that even if it did it would not be binding
on the High Court.60 By 1983, a decade later, the High Court had clarified
the scope of the external affairs power in three cases. Each of them resulted
from litigation on legislation enacted by Labor governments pursuant to
international agreements and Murphy was a judge in all three.
The first was the 1975 Seas and Submerged Land Case that resulted when the
states challenged the Whitlam government’s Seas and Submerged Lands Act
1973, an Act that purported to be pursuant to two international conventions
– the Convention on the Territorial Sea and the Contiguous Zone and the
Convention on the Continental Shelf. Murphy was part of a majority on
the court, including McTiernan in his last year as a judge, that held that the
“external affairs” power extended to the making of laws with respect to
places or matters or things done outside the boundaries of Australia.61
The second case, Koowarta v. Bjelke-Petersen, began as an action in the
Supreme Court of Queensland. It concerned a Queensland Aboriginal, John
Koowarta, who had tried to purchase a grazing property for use by a group
of Aboriginals whom he represented.62 The Queensland Minister for Lands
refused to permit the sale of the land because of state policy that “did not
view favourably proposals to acquire large areas of additional freehold
or leasehold land for development by Aborigines or Aboriginal groups in
isolation.”63 Koowarta thereupon brought action in the Supreme Court of
Queensland seeking damages because ss 9 and 12 of the RDA had been
infringed. At that point, the Queensland government sought a declaration
from the High Court that the RDA was beyond the legislative power of the
Commonwealth as unsupported either by the “races power” of 1967 or the
external affairs power.64
In a landmark constitutional decision, the High Court confirmed that the
Commonwealth parliament could enact national human rights laws binding
on the states. The path that the court took to validating the act, however,
was not simple. All the judges except Murphy decided that ss 9 and 12 of the
RDA could not be supported by the “races power.”65 In doing so, the court
proved correct the prediction of the Attorney-General’s Department in 1968
60. P. Brazil to D. S. Thomas, March 1972, A432, 1971/2438.
61. The Seas and Submerged Lands Case of 1976. See Howard, Australian Federal
Constitutional Law, 508–12.
62. Hilary Charlesworth, “Internal and External Affairs: The Koowarta Case in
Context,” Griffith Law Review 23 no. 1, (2014): 35–43; Sean Brennan and Megan David,
“Koowarta: Constitutional Landmark, Transition Point or Missed Opportunity,”
Griffith Law Review 23, no. 1 (2014): 79–91.
63. Howard, Australian Federal Constitutional Law, 513.
64. Whitlam, The Whitlam Government, 479.
65. Howard, Australian Federal Constitutional Law, 514.Lee • Rights of Aborigines 63
that the “races power” would not support a general racial discrimination
law. The RDA only survived because of a split decision of the High Court
on the interpretation of the external affairs power. Justices Anthony Mason,
Gerard Brennan and Murphy went as far as espousing the view of Evatt
and McTiernan that the mere fact of international agreement on a matter
was a sufficient basis to support legislation reliant on the external affairs
power. Mason, a former Commonwealth Solicitor-General, was particularly
influenced by his view that Australia would be crippled internationally if
forced to rely on the action of the states for the implementation of treaty
and other agreements.66 Justice Ninian Stephen supported this view that the
RDA was a valid use of the external affairs power, while not endorsing the
reasoning of his fellows.
In contrast, Chief Justice Harry Gibbs, supported by Justices Keith Aickin
and Ronald Wilson, strongly dissented. Gibbs was a former judge of the
Queensland Supreme Court and Wilson was a former Western Australian
Solicitor-General.67 The minority took judicial notice of the federal nature
of the Constitution to limit the scope of the external affairs power. Gibbs
concurred with Owen Dixon’s judgement in 1936, that “[a]ny subject matter
may constitute an external affair, provided that the manner in which it
is treated involves a relationship with other countries or with persons or
things outside Australia.”68 Gibbs drew a distinction between matters of
international concern and matters of international significance.69 For him,
racial discrimination was a matter of international concern, but of domestic
significance because it did not directly affect Australia’s relations abroad.
Gibbs’s argument for an implied limitation on the scope of the external
affairs power was not supported. The upshot was that the RDA was upheld
but only narrowly and only on the basis that it was supported by s 51(29) of
the Constitution.
While the Koowarta Case confirmed that a law to forbid racial discrimi-
nation fell within the ambit of the external affairs power, it left unclear
how much interference the court was prepared to allow in the domestic
jurisdiction of states. This question would be fully decided in 1983 in
another case in the High Court, the Tasmanian Dam Case. It had its origins in
the Whitlam government’s ratification of the World Heritage Convention in
1974 by which countries could nominate, and the United Nations list, sites
judged to be important for the interests of humanity. In the early 1980s, the
Tasmanian government sought to build a dam in south-western Tasmania
on a site that was world heritage-listed on the nomination of the Fraser
66. Crock, “Federalism and the External Affairs Power,” 253.
67. Howard, Australian Federal Constitutional Law, 515–18.
68. Ibid., 255.
69. Howard, Australian Federal Constitutional Law, 517.64 Labour History • Number 120 • May 2021
government. The Tasmanian initiative brought on the political struggle to
save the Franklin that remains “the single greatest environmental struggle
in Australian history.”70 The ALP won the 1983 federal election, in part,
because of its opposition to the dam. On coming to office, the Hawke
government quickly used its constitutional powers to stop the dam.71 After
legal challenge, the High Court confirmed, by a majority of four to three,
that the Commonwealth parliament had the power to legislate to give effect
“to any international obligation under an agreement binding on Australia,
no matter what its subject matter.”72
The External Affairs Power, the RDA and Native Title
When the Hawke Labor government came to power in 1983, the ALP’s
platform included a commitment to securing national land rights for
Aboriginal people throughout Australia.73 The ALP’s ambition was to build
on the land rights established in the Northern Territory by the Aboriginal
Land Rights (Northern Territory Act) 1976, which had recognised Indigenous
land rights for the first time in federal law.74 Whitlam had introduced the
legislation into parliament in 1975 but it had lapsed on the dismissal of the
government. The Liberal–National Party government led by Malcolm Fraser
did not kill the bill but passed an amended version in 1976.75 Between 1976
and 1983, within the states themselves, the Liberal and National parties
preferred that state governments deal with the issue of land rights. By
contrast, after 1983, the ALP wanted to achieve uniformity of land rights
in Australia and contemplated proceeding with Commonwealth legislation
that overrode state legislation where state laws remained inconsistent with
national standards.76 Labor was unhappy that some states had drafted
70. Frank Bongiorno, The Eighties: The Decade That Transformed Australia (Collingwood,
Vic.: Black Ink, 2015), 87.
71. Gareth Evans Cabinet Submission, “South-West Tasmania: Legal Strategy for
Stopping the Gordon-Below Franklin Dam,” 15 March 1983, A14048, DCD1983/27
part 1, NAA.
72. Zines, Constitutional Change, 93. See also Brian Galligan, Politics of the High Court:
A Study of the Judicial Branch of Government in Australia (St Lucia: University of
Queensland Press, 1987), 240–48.
73. “‘Undertaking’ on Land-Rights Legislation,” Canberra Times, 14 April 1983. Holding
submission to Cabinet, 26 February 1986, A14039, 3607, NAA.
74. Hocking, Gough Whitlam: His Time, 387. See also H. Goodall, Invasion to Embassy:
Land in Aboriginal Politics in New South Wales (St Leonards, NSW: Allen & Unwin,
1996).
75. Ibid. Viner submission, “Implementation of Party Policy on Aboriginal Land
Rights,” 15 April 1976, A12909, 265, NAA.
76. “Land Rights ‘Should Not Be Imposed on States,’” Canberra Times, 22 June 1983;
Libby, Hawke’s Law.Lee • Rights of Aborigines 65
legislation to recognise land rights while others, such as Queensland and
Tasmania, had totally rejected the concept.
The Aboriginal Affairs Minister, Clyde Holding, aimed at an outcome
that recognised five policy objectives: Aboriginal land to be held under
inalienable free-hold title with full legal protection of Aboriginal sites,
Aboriginal control in relation to mining on Aboriginal land, Aboriginal
access to mining royalty equivalents and compensation for lost land.77 To
achieve these objectives he was confident that the Commonwealth had
sufficient constitutional powers, noting that “[a]ny Federal legislation and
any ‘takeover’ of existing Aboriginal reserves or acquisition of other land
would be pursuant to Constitutional powers relating to the ‘people of any
race’ (section 51(xxvi)) and acquisition of property’ section 51 (xxxi)).”78 In
the course of the 1980s, however, opposition from the Labor state of Western
Australia, the mining industry and pastoralists led to failure of the campaign
by the federal ALP to secure uniform land rights for Aboriginal people.79
Nevertheless, Indigenous Australians did obtain a different kind of land
rights in the early 1990s through the High Court’s Mabo judgement. The
kind of land rights established through the Mabo decision did not involve
the grant of interests in land under federal or state legislation but rather the
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 legislate the RDA was essential to the winning by
Indigenous Australians of recognition of their native title rights to land and
water. Indeed, but for the RDA, the native title revolution would not have
taken place.
The litigation that led to the Mabo judgements began at about the time
that the Koowarta Case was decided when several Indigenous people of the
Mer Islands maintained that they held native title rights in the Murray
Islands in the Torres Strait. The most prominent of these Indigenous people
was Eddie Koiki Mabo.80 The Queensland government, led by Joh Bjelke-
Petersen, was alarmed at the possible ramifications of the case and sought to
quash Mabo’s claim by enacting the Queensland Coast Islands Declaratory Act
in 1985.81 This Queensland law sought to abolish retrospectively any native
title rights that might exist in the Murray Islands.
77. Clyde Holding submission to Cabinet, 19 December 1983, A13977, 619, NAA.
78. Ibid.
79. Bongiorno, The Eighties, 71–78; Libby, Hawke’s Law.
80. Noel Loos and Koiki Mabo, Edward Koiki Mabo: His Life and Struggle for Land Rights
(Hawthorn, Vic.: Penguin Books, 2014).
81. Section 3(a) read that “the islands were vested in the Crown in right of Queensland
freed from all other rights, interests and claims of any kind whatsoever and
became waste lands of the Crown in Queensland.” The act also declared that no
compensation was payable “in respect of any right, interest or claim alleged to66 Labour History • Number 120 • May 2021
Mabo and the plaintiffs contended that the Coast Islands Act was invalid
because it was inconsistent with the RDA.82 They maintained that the
Queensland legislation deprived them of equality before the law and the right
to own property and arbitrarily took away their property, thereby infringing
a human right protected by Article 5 of the CERD.83 The Queensland
government countered by arguing that its legislation had the effect of
extinguishing any native title rights that the plaintiffs might have had and
that might have survived Queensland’s annexation of the islands in 1879. In
deciding the question in 1988, the High Court presumed that the plaintiffs
did hold native title rights – although this question would not be definitively
decided until 1992. In the interim, a majority of the court found that native
title rights, if they did exist, should be treated as a broader human right
to hold or inherit property. In their view, the effect of the Coast Islands Act
had the effect of depriving one group, the Meriam people, of their property
rights and that this was contrary to s 10(1) of the RDA, which seeks to stop
any race or ethnic group from being deprived of rights enjoyed by another.
Like the Koowarta Case, Mabo v. Queensland (No. 1) of 1988 was decided by a
four to three decision.
The RDA thus allowed the High Court to proceed to deliberate on the
larger question of whether the common law recognised a native title to land.
Had it not been for the RDA, Mabo’s crusade may have been ended in 1988.
As it was, in a landmark common law case delivered on 3 June 1992 the
court rejected the doctrine that Australia was terra nullius (land belonging
to no one) at the time of European settlement.84 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.85 The Mabo judgement involved a reinterpretation of the
common law as it applied to Indigenous ownership of land. Although the
common law is a system of law independent of other sources of law and not
bound by international law, some of the judges in the Mabo Case saw interna-
tional law as influencing the common law. For one of the majority judges,
have existed prior to the annexation of the islands to Queensland or in respect of
ant right, interest or claim alleged to derive from such a right, interest or claim.”
82. See Nonie Sharp, No Ordinary Judgement: Mabo, the Murray Islanders’ Land Case
(Canberra: Aboriginal Studies Press, 2000); Peter H. Russell, Recognizing Aboriginal
Title: The Mabo Case and Indigenous Resistance to English Settler Colonialism (Toronto:
University of Toronto Press, 2005).
83. Ian Brownlie and Goodwin Gill, eds, Basic Documents on Human Rights (Oxford:
Oxford University Press, 2002), 163–64.
84. For tera nullius, see Henry Reynolds, The Law of the Land (Ringwood: Penguin, 1988).
85. Cabinet submission by Paul Keating, Michael Duffy and Robert Tickner, 9 October
1992, A14217, 738, NAA.Lee • Rights of Aborigines 67
Justice Brennan, the Whitlam government’s accession to the International
Covenant on Civil and Political Rights had brought “to bear on the common
law the powerful influence of the Covenant and the international standards
it impacts.”86 For him:
The common law does not necessarily conform with international law,
but international law is a legitimate and important influence on the
development of the common law, especially when international law
declares the existence of universal human rights. A common law doctrine
founded on unjust discrimination in the enjoyment of civil and political
rights demands reconsideration. It is contrary both to international
standards and to the fundamental values of our common law to entrench
a discriminatory rule which, because of the supposed position on the
scale of social organisation of indigenous inhabitants of a settled colony,
denies them a right to occupy their traditional lands.87
After the High Court confirmed the existence of native title in 1992, the
Keating Labor government developed a legislative framework for managing
native title claims through the Native Title Act 1993. Before it came into
operation, a Liberal–National Party government administration in Western
Australia sought to forestall the federal law by passing the Land (Titles
and Traditional Usage) Act 1993 (WA). This Western Australian legislation
attempted to extinguish native title in Western Australia and replace it with
statutory rights of traditional usage. The matter at issue between Western
Australia and the Commonwealth went to the High Court and again the
RDA would be important in the outcome.88 The state of Western Australia
argued to the High Court that the history of Western Australia showed
that native title had been extinguished there either by the establishment of
a settled colony from 1829 or, at the latest, by 1993. Furthermore, Western
Australia argued that the Commonwealth’s Native Title Act 1993 was beyond
the legislative power of the Commonwealth as justified neither by the races
power of the Constitution nor the external affairs power. In a joint judgment,
the High Court rejected the Western Australian contention that native title
was extinguished by the establishment of the colony of Western Australia.
It also held unanimously that the Western Australian legislation was
inconsistent with s 10 of the RDA.89
86. Mabo v. Queensland (No. 2) (1992) 175 Commonwealth Law Reports 42.
87. Ibid.
88. Prime Minister and Cabinet memorandum to Cabinet, May 1994, A14217, 1709,
NAA.
89. Prue Vines, “Western Australia and Native Title: Western Australia v the
Commonwealth,” Australian Journal of Human Rights, 1995, accessed January 2021,
http://classic.austlii.edu.au/au/journals/AUJlHRights/1995/9.html.68 Labour History • Number 120 • May 2021 Conclusion While the Constitution gave the Commonwealth power over “external affairs” in an imperial Act in 1900, it remained an elusive concept for several decades. From 1936, Evatt was alive to its potential to extend the constitutional power of the Commonwealth by allowing federal legislation in conformity with international treaties. He did not have occasion to use it in that way before 1949 and the scope of the power remained uncertain in the 1950s and 1960s. In the 1970s, two Labor politicians in the Evatt tradition, Whitlam and Murphy, relied on the external affairs power to pass the RDA and thereby to protect the human rights of Aboriginal Australians. Following the defeat of the Whitlam government in 1975, Murphy played an important part in determining the extent of the power as a judge of the High Court along the lines that Evatt and McTiernan had first articulated in 1936. Murphy was part of a majority on the court that confirmed that the Commonwealth parliament had the power to legislate on any international obligation under an agreement binding on Australia, regardless of its subject matter.90 The most significant law upheld by the external affairs power, the RDA, would go on to play a vital part in the Mabo Case. Indeed, the RDA was instru- mental in allowing the High Court to overturn terra nullius and establish common law rights for Indigenous people to land and water. In turn, the RDA could not have succeeded without the High Court’s affirmation of the Commonwealth’s power to legislate with respect to the Commonwealth’s power over “external affairs,” the power that had remained elusive for most of the twentieth century until Whitlam and Murphy deliberately relied on it to legislate Australia’s first substantial human rights legislation. David Lee is Associate Professor in history in the School of Humanities and Social Sciences, University of New South Wales, Canberra. His research interests range across political, diplomatic, economic, constitutional and strategic aspects of Australian history. His publications include Stanley Melbourne Bruce: Australian Internationalist (New York and London, 2010) and The Second Rush: Mining and the Transformation of Australia (Redland Bay, 2016). Among his current research projects is a history of Australian independence. 90. Zines, Constitutional Change, 93.
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