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KOOWARTA V. BJELKE-PETERSEN (1982) 153 CLR 168

Constitutional Law (Cth)

COURT
High Court of Australia
Gibbs C.J.(1), Stephen(2), Mason(3), Murphy(4), Aickin(5), Wilson(6)
and Brennan(7) JJ.
HRNG
1982, March 2-4; May 11. #DATE 11:5:1982
JUDGE1
May 11.
  The following written judgments were delivered: -
  GIBBS C.J. These two matters raise for decision important questions as to
the validity of certain sections of the Racial Discrimination Act 1975 (Cth),
as amended ("the Act"). (at p175)

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 (That Act has now been repealed, but that is not material.)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