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 and politicians such as H. V. Evatt saw its potential to extend Commonwealth power by legislating interna- tional agreements throughout . 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; ; 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 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 0023-6942 50 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. , 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 (: 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, , 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) 183 286–87. 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 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 ’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 Pouring Dirt into the Hand of Gurindji Leader, Vincent Lingiari, on 16 August 1975 Whitlam’s symbolic handing back Commonwealth land to the 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 ; held by the Museum of Applied Arts and Science, Sydney. Courtesy of the National 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 . 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 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 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 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 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 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 1975Seas 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 , 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 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 , supported by Justices and , 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 to 66 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 : 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.