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Chapter 5
Interpretation of the external affairs power and reform
proposals
Section 51(xxix)
of the Constitution
5.1 Section 51 of the Constitution provides:
The Parliament shall, subject to this Constitution, have power to make
laws for the peace, order, and good government of the Commonwealth with
respect to:-
5.2 In the Seas and Submerged Lands Case, Chief Justice Barwick
explained the reason for the choice of the words 'external affairs' rather
than 'foreign affairs', as relating to Australia's status within the Empire.
As he observed:
The description of the subject matter of the power and the preference
for external affairs rather than foreign affairs in the Constitution
was doubtless designed to include within the subject matter inter-colonial
matters which in Imperial days may not have been regarded as foreign
affairs.[1]
Hence, 'external affairs' was considered to be a wider term.
The High
Court's interpretation of the external affairs power
5.3 The High Court has been the only authoritative interpreter of the
external affairs power. Following is a summary of the most important cases
on the external affairs power.
R v Burgess; Ex parte Henry
5.4 The first significant High Court judgment to consider the scope of
s. 51(xxix) of the Constitution was R v Burgess; Ex parte Henry.[2]
5.5 Mr Henry Goya Henry was charged with flying an aircraft while his
pilot's licence was suspended, contrary to the Air Navigation Regulations.
He challenged the validity of section 4 of the Aircraft Navigation
Act 1920, which authorised the Governor-General to make regulations
to give effect to the Convention for the Regulation of Aerial Navigation
and for the purpose of providing for the control of air navigation in
the Commonwealth and the territories. The Convention had been ratified
by King George V on behalf of the British Empire on 1 June 1922.
5.6 The High Court held that section 4 was valid to the extent that it
empowered the Governor-General to make regulations implementing the Convention,
because this was a valid exercise of the external affairs power in s.
51(xxix) of the Constitution. However, the Court held that the Constitution
gives no general legislative control over civil aviation to the Commonwealth
Parliament, and that section 4 was invalid to the extent that it authorised
the making of regulations for the purpose of controlling air navigation
in Australia.
5.7 The Court also held that the regulations were invalid because they
did not give effect to the Convention.
5.8 The Justices of the High Court took a broad view as to what falls
within the scope of external affairs. It was argued that it should be
confined to matters concerning external relations, and should not include
laws on domestic matters such as air navigation within Australia. Chief
Justice Latham responded to this argument by pointing out the difficulty
in making such characterisations:
No criterion has been suggested which can result in designating certain
matters as in se concerning external relations and excluding
all other matters from such a class. It is very difficult to say that
any matter is incapable of affecting international relations so as properly
to become the subject matter of an international agreement. It appears
to me that no absolute rule can be laid down upon this subject.[3]
5.9 Justices Evatt and McTiernan also took a broad view of s. 51(xxix),
concluding that once a treaty is entered into, it brings the subject of
that treaty within the external affairs power, to the extent that the
subject is dealt with in the treaty.[4] Their Honours even went on to
suggest that the external affairs power extends to legislation which carries
out recommendations of international bodies.[5]
5.10 Justices Starke and Dixon took a slightly narrower approach. Justice
Starke considered that the treaty had to be 'of sufficient international
significance to make it a legitimate subject for international co-operation
and agreement'.[6] Justice Dixon considered that the power of the Commonwealth
to implement treaties through legislation was necessarily limited by the
federal nature of the Constitution. Therefore, for legislation to fall
within the external affairs power, the subject matter of the treaty upon
which it was based had to be 'indisputably international in character'.
5.11 In conclusion, the High Court accepted that even though the Commonwealth
had no direct constitutional power to legislate in relation to air navigation,
it could do so if it were implementing a treaty. That legislation would
then prevail over any conflicting State legislation by reason of s. 109
of the Constitution.
R v Sharkey
5.12 Mr Sharkey was charged with sedition for saying that if Soviet forces,
in pursuit of aggressors, entered Australia, Australian workers would
welcome them. The validity of the legislation concerning sedition was
considered by the High Court in R v Sharkey.[7]
5.13 Among other things, the legislation extended to exciting disaffection
against the Government or Constitution of any of the King's Dominions.
Chief Justice Latham considered that this provision was supported by s.
51(xxix), because the 'relations of the Commonwealth with all countries
outside Australia, including other Dominions of the Crown, are matters
which fall directly within the subject of external affairs'.[8]
5.14 Unlike many other external affairs power cases, in R v Sharkey
s. 51(xxix) of the Constitution was not relied upon to implement Australia's
international obligations under a treaty. Rather, the sedition provision
was supported by s. 51(xxix) because the nature of the legislation, that
dealt with Australia's relations with countries outside Australia, was
considered to fall directly within the subject of external affairs.
Airlines of New South Wales Pty Ltd v New South Wales
5.15 An airline company had its licence to fly a certain route within
New South Wales revoked, under New South Wales legislation. The company
challenged the validity of the New South Wales legislation on the grounds
that it conflicted with the Commonwealth's Air Navigation Regulations.
The challenge was heard in the High Court in the case of Airlines of
New South Wales Pty Ltd v New South Wales. [9]
5.16 The Court held that there was no inconsistency between the Commonwealth
regulations and the State legislation. In the course of its judgment,
however, it addressed the validity of the Commonwealth regulations and
held that most of them were valid. There was some dissent amongst members
of the Court as to whether the regulations were supported by the external
affairs power, or the trade and commerce power, or both. Chief Justice
Barwick noted that although he considered them to be justified by the
external affairs power, because they are a means for securing obligations
under the Chicago Convention on International Civil Aviation, he
preferred to base their validity on the broader trade and commerce power
in s. 51(i) of the Constitution.
5.17 However, Chief Justice Barwick still commented on the legislative
implementation of treaties, stating:
Whilst the choice of the legislative means by which the treaty or convention
shall be implemented is for the legislative authority, it is for this
court to determine whether particular provisions when challenged are
appropriate and adapted to that end.[10] [emphasis added]
5.18 In later cases, such as Commonwealth v Tasmania, and Richardson
v The Forestry Commission,[11] the High Court developed the principle
that the law implementing treaty obligations under s. 51(xxix) must be
an appropriate means for giving effect to the object of the treaty.
Bradley v The Commonwealth
5.19 In 1973, the Postmaster-General issued a direction under the Post
and Telegraph Act 1901 that all postal and telecommunications services
for the Rhodesian Information Centre be withdrawn. This action was carried
out in accordance with a Security Council Resolution of the United Nations,
which, inter alia, condemned the 'illegal' regime in Rhodesia,
and called on all Member States not to recognise or to assist it. Mr Bradley,
the Director of the Centre, brought an action seeking to have the Postmaster-General's
direction declared invalid. The High Court considered the matter in the
case of Bradley v The Commonwealth. [12]
5.20 The Commonwealth Government argued that its direction was a valid
one, as Article 25 of the Charter of the United Nations imposed
an obligation upon Member States to carry out the decisions of the Security
Council. In their joint judgment, Chief Justice Barwick and Justice Gibbs
held that as neither the Charter nor the Resolutions had been legislatively
implemented, acts carried out by the Executive in reliance upon them would
fall outside the scope of the external affairs power.[13]
Seas and Submerged Lands Case
5.21 In 1973, the Commonwealth Parliament passed the Seas and Submerged
Lands Act 1973. It provided that sovereignty in the territorial sea
and the air above it and the sub-soil below it vested in the Commonwealth
(rather than the States). It also declared that the right to exploit the
natural resources of the continental shelf was vested in the Commonwealth.
It did this pursuant to two treaties to which Australia was a party; the
Convention on the Territorial Sea and Contiguous Zone and the Convention
on the Continental Shelf.
5.22 The States challenged the validity of this legislation, but the
High Court upheld its validity in New South Wales v The Commonwealth
[14] on the grounds that it was supported by the external affairs power
under s. 51(xxix) of the Constitution.
5.23 The Court held that the legislation fell within the external affairs
power because it implemented the treaties, and also because it related
to an area external to Australia.
Koowarta v Bjelke-Petersen
5.24 The Aboriginal Land Fund Commission entered into a contract to buy
a pastoral lease in Queensland. The Queensland Minister for Lands refused
to give his consent to the transfer of the lease on the basis that Queensland
Government policy was opposed to the acquisition of large parts of the
State by Aborigines. Mr Koowarta, who was one of the Aborigines who would
have benefited from the transfer of the lease, brought an action against
the Premier of Queensland, Mr Bjelke-Petersen, for breach of sections
9 and 12 of the Racial Discrimination Act 1975 (Cth). The Queensland
Government responded by challenging the constitutional basis of the Act.
5.25 In Koowarta v Bjelke-Petersen,[15] the High Court upheld
the validity of the Racial Discrimination Act 1975. The Court held
that the race power, under s. 51(xxvi) of the Constitution, did not support
the Act, because the Act applies generally to all persons and is not a
special law for people of any one race. However, the Court accepted that
the Act was supported by the external affairs power under s. 51(xxix)
of the Constitution, because it implements obligations under the Convention
on the Elimination of All Forms of Racial Discrimination, to which
Australia is a party.
5.26 Justices Mason, Murphy and Brennan all agreed that the external
affairs power extends to the making of laws implementing a bona fide treaty
or other international agreement. This is regardless of whether the subject-matter
of the treaty concerns Australia's internal affairs (assuming that such
a characterisation could be made),[16] or whether the Commonwealth would
otherwise have a constitutional head of power to implement it.
5.27 Their Honours also held that the external affairs power is not confined
to the legislative implementation of any bona fide international agreement.[17]
For example, Justice Mason noted that a law implementing obligations arising
under customary international law would be a law with respect to external
affairs.[18] In addition, he considered that any matter which has 'become
the topic of international debate, discussion and negotiation constitutes
an external affair before Australia enters a treaty relating to it.'[19]
5.28 Justice Stephen, who also upheld the validity of the Racial Discrimination
Act, and therefore formed part of the majority, took an intermediate
position. It was not enough for the legislation to give effect to treaty
obligations; the subject matter of the treaty had to be of 'international
concern'. In other words, the subject matter 'necessarily possesses the
capacity to affect a country's relations with other nations.'[20]
5.29 In this context, His Honour held that the prohibition of racial
discrimination had become a matter of international concern,[21] and that
the norm of non-discrimination had become a part of customary international
law. Thus, the enactment of the Racial Discrimination Act was a
valid exercise of the external affairs power, and would have been, even
if Australia had not ratified the Convention on the Elimination of
All Forms of Racial Discrimination.[22]
5.30 Chief Justice Gibbs and Justices Aickin and Wilson dissented, taking
a narrower view of the external affairs power. They considered that a
law implementing a treaty would only fall within the external affairs
power if it involved a relationship with other countries, or with persons
or things outside Australia.[23] However, on their view, even this sort
of law might fall outside the external affairs power; as Chief Justice
Gibbs observed, '...an agreement made between a number of countries does
not necessarily contain provisions which are international in character'.[24]
Tasmanian Dams Case
5.31 Australia ratified the Convention for the Protection of the World
Cultural and Natural Heritage in August 1974. Part of its scheme involved
the listing of properties under the World Heritage List. The Tasmanian
Government requested that a certain area of Tasmania be listed under the
Convention. A subsequent Tasmanian Government authorised the construction
of a dam on the Franklin River within this area. The area was accepted
by the World Heritage Committee for entry into the World Heritage List
in December 1982.
5.32 In March 1983, the newly elected Commonwealth Government made the
World Heritage (Western Tasmania Wilderness) Regulations, which
prohibited the construction of a dam in the area without the consent of
the Commonwealth Minister. The Commonwealth Parliament also passed the
World Heritage Properties Conservation Act 1983 which relied on
the external affairs power, amongst others, to prevent actions which would
damage areas submitted for inclusion on the World Heritage List.
5.33 The validity of the Commonwealth's legislation and regulations was
decided in Commonwealth v Tasmania.[25] The Court upheld the validity
of most of the regulations and legislation, on a variety of constitutional
grounds, one of which was the external affairs power.
5.34 A majority of the Court, comprising Justices Mason, Murphy, Brennan
and Deane, took the broad view of the external affairs power. They considered
that once a bona fide treaty had been entered into, the Commonwealth Parliament
obtained the power to legislate to implement the treaty obligations, subject
to implied and express constitutional prohibitions.
5.35 Justice Mason noted that if the 'international concern' position
of Justice Stephen had been adopted, the Court would be placed in the
invidious position of having to decide whether the subject matter of a
treaty is one of international concern. This is essentially a political
decision, which Justice Mason noted was best left to the executive government
for determination, rather than the courts.[26]
5.36 The minority, comprising Chief Justice Gibbs and Justices Wilson
and Dawson, adopted Justice Stephen's 'international concern' test, which
required them to make an evaluation of the 'subject matter, circumstances
and parties in order to determine the importance of the particular obligation
in terms of international relationships'.[27]
5.37 Chief Justice Gibbs, in particular, stated that the operation of
the external affairs power was necessarily limited by the federal nature
of the Constitution, and that if the power were given too broad an interpretation,
it would upset the 'federal balance'.[28]
5.38 As to the question of whether legislation implementing aspects of
treaties other than obligations could also be supported under the external
affairs power, Justices Mason, Murphy and Deane all held that the power
to make laws with respect to external affairs was not limited merely to
the implementation of treaty obligations.[29]
5.39 Chief Justice Gibbs, and Justices Wilson and Dawson all held that,
for the legislation to be valid, it had to implement treaty obligations.[30]
Justice Brennan did not decide on this point.
Lemonthyme Forest Case
5.40 The Lemonthyme and Southern Forests (Commission of Inquiry) Act
1987 (Cth) established a Commission of Inquiry to determine whether
the Lemonthyme and Southern Forests areas in Tasmania formed part of a
world heritage area, and should be listed under the Convention for
the Protection of the World Cultural and Natural Heritage. The Act
provided interim protection for the area, to prevent damage or destruction
prior to the Commission making its decision.
5.41 The Commonwealth Minister for the Environment, Senator Richardson,
commenced an action against the Forestry Commission of Tasmania and a
timber business, claiming that they breached the interim protection measures
of the Act. The validity of the legislation was challenged, and the matter
was determined by the High Court in Richardson v The Forestry Commission.[31]
5.42 The High Court held that the legislation was supported by s. 51(xxix)
of the Constitution. Chief Justice Mason, and Justices Brennan, Wilson,
Dawson and Toohey considered that as the Convention obliges parties to
identify areas appropriate for protection, as well as to protect those
which are already listed, the Convention provided a sufficient source
for the application of the external affairs power. Chief Justice Mason
and Justice Brennan considered that the legislation could 'reasonably
be considered appropriate and adapted' to attaining the object of the
Convention, and that it is only by taking those measures that the risk
of failing to discharge the Convention obligation can be avoided.[32]
5.43 The majority of the High Court held that it was not the role of
the Court to decide whether the legislation was 'appropriate and adapted'
to attaining the object of the Convention. In their joint judgment, Chief
Justice Mason and Justice Brennan noted:
...when Parliament exercises the external affairs power so as to carry
into effect or give effect to such a treaty, it is for Parliament to
choose the means by which this is to be achieved, provided at any rate
that the means chosen are capable of being reasonably considered to
be appropriate and adapted to that end.[33]
Thus, it is for the Court to decide whether the relevant legislative
scheme is capable of being 'reasonably considered' to be appropriate
and adapted to implementing the treaty.
5.44 Interestingly, Justice Deane sought to impose some limitations on
the Court's reasoning. He argued that, for the legislation to be reasonably
considered to be appropriate and adapted to implementing the treaty, the
means of legislative implementation had to be proportionate to the attainment
of the treaty object.[34] Thus, in this case, he held that the interim
protection measures could not be reasonably considered to be appropriate
and adapted, as the restrictiveness of the measures rendered them disproportionate
to the attainment of the treaty objects.[35] 5.45 Chief Justice Mason
and Justice Brennan concluded that the external affairs power extends
to apprehended obligations:
As the external affairs power is a plenary power, it extends to support
a law calculated to discharge not only Australia's known obligations
but also Australia's reasonably apprehended obligations. The power extends
to support a law required to discharge a treaty obligation which is
known to exist and also a law which is required to ensure the discharge
of a treaty obligation which is reasonably apprehended to exist.[36]
5.46 Justice Deane held that the external affairs power extended to laws
whose object was to obtain an international benefit.[37]
The Queensland Rainforest Case
5.47 A Proclamation was made by the Governor-General under the World
Heritage Properties Conservation Act 1983 (Cth), which subjected an
area of rainforest in Queensland to section 9 of the Act. The consequence
was that certain acts could not be done in relation to that area of rainforest.
The area had already been listed on the World Heritage List. The State
of Queensland brought an action for a declaration that the Proclamation
was invalid, on the basis that the area was not one in relation to which
a Proclamation could be made under the Act, and that World Heritage listing
was not conclusive of the area being part of Australia's 'natural heritage'.
5.48 Professor Lee has described the Court's judgment as follows:
In a joint judgment, Mason CJ, Brennan, Deane, Toohey, Gaudron and
McHugh JJ, held that the validity of the proclamation depended on whether
there was an "international duty" to protect or conserve the
property. The existence of the duty was a question of fact which the
court had to decide by reference to "the construction which the
international community would attribute to the Convention and on the
operation which the international community would accord to it in particular
circumstances".
According to the court, the inclusion of the property in the World
Heritage List consequent on Australia's nomination of the property for
inclusion in the list determined the existence of Australia's international
duty.[38]
5.49 The joint judgment concluded:
[T]he listing of the property determines its status for the international
community. There is no suggestion of bad faith either in the nomination
or in the listing. As the inclusion of the property in the List is conclusive
of its status in the eyes of the international community, it is conclusive
of Australia's international duty to protect and conserve it. Its inclusion
is therefore conclusive of the constitutional support for the proclamation.[39]
Polyukhovich v The Commonwealth
5.50 In 1988 the War Crimes Act 1945 (Cth) was amended to include
certain offences which occurred outside Australia during the period from
1939 to 1945.
5.51 Mr Polyukhovich was charged with offences under the Act, and challenged
its constitutional validity.
5.52 The High Court held in Polyukhovich v The Commonwealth[40]
that the legislation was supported by the external affairs power, to the
extent that it related to conduct which took place outside Australia.
This was because events which take place outside Australia are 'external'
for the purposes of 'external affairs'.
5.53 The position was summarised by Chief Justice Mason as follows:
The externality of the conduct which the law prescribes as the foundation
of the criminal offence is enough without more to constitute it as a
law with respect to external affairs.[41]
5.54 Justices Brennan and Toohey, who were both in dissent, held that
the mere fact that the law is on a topic geographically external to Australia
is not sufficient to make it a law with respect to external affairs. Australia
must have an 'interest' in the matter.[42] Justice Brennan provided the
following example:
It is, of course, for Parliament to determine in the first instance
whether there is any connection between Australia and a relationship,
set of circumstances or field of activity which exists or occurs outside
Australia and which a proposed law would purportedly affect, but, if
the legislative judgment cannot reasonably be supported, the law will
be held to be outside the power conferred by s 51(xxix).... To take
an extreme example, would a law be properly characterised as a law with
respect to external affairs if it imposed a criminal penalty upon a
person who, being a citizen and resident of France, had dropped litter
in a Parisian street 40 years ago?[43]
5.55 Having decided that point, Justice Brennan carried his reasoning
further, asking whether the subject matter of the legislation, the prosecution
of extraterritorial war crimes, had become a matter of 'international
concern', or a part of customary international law? Ultimately, His Honour
decided that even if there were an obligation at customary international
law to prosecute persons suspected of having committed extraterritorial
war crimes, the Commonwealth had failed to give effect to this obligation:
It is one thing to vest in a municipal court jurisdiction to administer
the law of nations, albeit that law is adopted by the municipal law.
It is another thing to vest jurisdiction to administer municipal law
that does not correspond with international law. The real objection
to the validity of the Act is that the Act rejects international law
as the governing law for the trial of persons allegedly guilty of war
crimes and adopts a municipal law definition which operates retrospectively.
That retrospectivity denies to the Act the capacity to satisfy an international
obligation or to meet an international concern or to confer a universal
jurisdiction recognised by international law.[44]
Horta v Commonwealth of Australia
5.56 In 1989 Australia and Indonesia executed a bilateral treaty defining
their relative jurisdictions in relation to the continental shelf in the
Timor Gap, and agreeing on a zone of co-operation for the exploitation
of natural resources. In 1990, the Commonwealth Parliament enacted the
Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 in
order to implement the requirements of the zone of co-operation in the
treaty.
5.57 Mr Horta, who came from East Timor, claimed that the legislation
was invalid, and the Executive had no power to enter into the treaty,
because it was contrary to international law, as it breached the right
of East Timor to self-determination and sovereignty over the area.
5.58 In Horta v The Commonwealth[45] the High Court upheld the
validity of the legislation. It noted that even without the treaty, the
legislation would still be valid because it relates to an area 'external'
to Australia.
5.59 The High Court did not consider the issue of whether the treaty
was void at international law, or whether Australia, by virtue of its
entry into the treaty, had contravened its international law obligations.
It was unnecessary for the Court to do so, as it held that the legislation
still fell within the external affairs power because it dealt with matters
which were physically external to Australia.[46] Therefore, the validity
of the treaty, or the legality of Australia's actions, were irrelevant
to the validity of the legislation under s. 51(xxix).
5.60 In addition, the Court noted that issues relating to Australia's
recognition of the sovereignty of a foreign nation over foreign territory
were generally not justiciable, except in cases where such recognition
is granted merely as a device for gaining greater legislative power.[47]
Minister for Immigration and Ethnic Affairs v Teoh
5.61 The case of Minister for Immigration and Ethnic Affairs v Teoh[48]
is discussed in detail in Chapter 6. Its relevance to the external affairs
power lies in the fact that the external affairs power was not
used to implement the Convention on the Rights of the Child. The
case shows that treaties may still have an indirect effect, even when
they are not implemented by the Commonwealth Parliament, in the exercise
of its powers under s. 51(xxix) of the Constitution.
Summary
of the extent of the Commonwealth's external affairs power
5.62 The external affairs power is an independent plenary head of power.[49]
It supports laws with respect to matters physically external to Australia
and laws affecting Australia's relations with other nations. The High
Court has held that the power enables the federal Parliament to legislate
to implement Australia's obligations under international agreements irrespective
of the subject matter of the agreements.[50] The external affairs power
has been held to extend even to areas that previously have been in the
traditional domain of the States.
5.63 The Committee received evidence from a number of individuals who
expressed concern about the High Court's wide interpretation of the external
affairs power.[51]
5.64 Some limitations have been identified to the scope of the power.
The power is subject to
a) those limitations that restrict federal power generally including
express constitutional guarantees (such as freedom of interstate trade)
and implied constitutional guarantees (such as the prohibition on legislation
discriminating against the States or preventing a State from continuing
to exist and function as such);[52]
c) the requirement that a law implementing the treaty be one that can
be regarded as a reasonable and appropriate means of giving effect to
its object.[53]
5.65 The Attorney-General's Department's submission has indicated that
the power extends not only to support a law calculated to discharge Australia's
known obligations, but also to those reasonably apprehended.[54] The power
may also extend to compliance with the recommendations of international
agencies and the pursuit of international objectives which have not been
reduced to binding obligations.[55]
Recent proposals
for the amendment of the external affairs power
5.66 In the past decade there have been a number of specific proposals
for amendment of the external affairs power.
5.67 In 1984, former Attorney-General Peter Durack QC introduced into
the Commonwealth Parliament, a private member's Bill to amend the external
affairs power. Mr Durack later described his Constitution Alteration
(External Affairs) Bill 1984 in the following terms:
My bill was designed to confine the power in the way which had been
proposed in broad terms by Sir Harry Gibbs in his dissenting judgment
in the Koowarta Case...[56]
5.68 The Bill provided that the following provision be inserted after
s. 51 of the Constitution.
51A. (1) An enactment passed after the commencement of this section
shall not be taken to be a law with respect to external affairs, in
so far as the enactment operates with respect to persons, matters or
things in the Commonwealth except to the extent that -
(a) those persons, matters or things have a substantial relationship
to other countries or to persons, matters or things outside the Commonwealth
and the enactment deals with, or with matters affecting or arising out
of, that relationship; or
(b) the operation of the enactment is related to the movement of persons,
matters or things into or out of the Commonwealth.
(2) Sub-section (1) of this section has effect in relation to an enactment
notwithstanding any treaty or other international agreement, resolution
or declaration, or any rule of customary international law, to which
the enactment may purport to give effect, but this section does not
derogate from the executive power of the Commonwealth, including its
treaty-making power.[57]
5.69 This proposal was put to the Constitutional Convention in Brisbane
in 1985, but was defeated.
5.70 Professor Crommelin of the University of Melbourne Law School made
a submission to the Constitutional Convention that the Constitution should
be restructured in a manner similar to the Canadian Constitution, where
the States are given certain exclusive legislative powers, with other
exclusive legislative powers being given to the Commonwealth, and the
balance of powers to be concurrent powers shared by the Commonwealth and
the States.[58] This proposal is intended to avoid the problem of Commonwealth
powers, such as the external affairs power, being interpreted in a manner
which derogates from traditional State powers.
5.71 This proposal was not supported by the Constitutional Convention,
or the Constitutional Commission.[59]
5.72 Dr Finnis, from the University of Oxford, submitted to the Constitutional
Convention that s. 51(xxix) should be amended to read as follows:
external affairs, but, notwithstanding the executive power of the Commonwealth
with respect to external affairs, nothing in this placitum or in placitum
(xxxix) shall be taken to authorise laws regulating matters within Australia
(including its territorial waters) other than laws giving effect to
Australia's international obligations in relation to fugitive offenders,
diplomatic relations with other countries and international organizations,
air traffic (or matters otherwise within the power of the Commonwealth).[60]
5.73 Once again, this proposal was not supported by the Constitutional
Convention or the Constitutional Commission. In essence, the Commission
concluded that the proposal of Dr Finnis was too narrowly construed and
as such it would not permit the Government to deal effectively with international
affairs and would not allow for unforeseeable changes such as technological
changes. The Constitutional Commission agreed with the following comments
that the Advisory Committee made in relation to the proposal of Dr Finnis:
In the view of the Committee there is considerable danger in relying
on a list of specified aspects of external affairs given the inability
to foresee new aspects of the same matter developing in the future.
Constitutions and provisions distributing powers should not be confined
to known examples of underlying concepts - they should deal with the
underlying concepts in order to ensure that those provisions endure
as a permanent instrument of government.[61]
5.74 A more recent proposal to amend the external affairs power was made
by Dr Colin Howard in 1995. He called for s. 51(xxix) to be amended by
adding after the words 'external affairs', the following:
(c) the law relates to the diplomatic representation of the Commonwealth
in other countries or the diplomatic representation of other countries
in Australia.[62]
5.75 Professor Winterton has made the following criticism of this proposed
amendment:
This proposed amendment would reduce the Commonwealth's independent
power over external affairs to one dealing with diplomatic representation.
The only treaties which the Commonwealth could implement legislatively
without State consent would be those dealing with diplomatic representation
or subjects otherwise within Commonwealth legislative power, thus effectively
reversing the opinion of every High Court justice who has considered
the power.
The proposed amendment would clearly protect State autonomy but, with
respect, can hardly be considered a finely-tuned attempt to balance
concerns regarding State autonomy with the effective conduct of Australian
foreign relations. It is probably the narrowest view ever proposed for
the power; certainly far narrower than Chief Justice Gibbs' view in
Koowarta, and narrower even than the proposal of Dr John Finnis,
supported by the governments of Queensland and Tasmania, which would
have included power to give effect to Australia's international obligations
in relation to air traffic and fugitive offenders, as well as diplomatic
representation. That proposal was considered 'unduly restrictive', and
was therefore rejected by the Constitutional Commission and its Advisory
Committee.[63]
Arguments
for and against the amendment of the external affairs power
5.76 The Committee received a number of submissions calling for the amendment
of the external affairs power.[64] For example, the Council for the National
Interest submitted:
The Constitution should be amended to provide that the external affairs
power only permits the Commonwealth to legislate on matters truly external
to Australia, diplomatic relations with other countries, extradition
of fugitive offenders, and matters otherwise coming within the Commonwealth's
enumerated powers. Some specific matters arising under treaties, such
as control of air traffic, ought to be within the jurisdiction of Commonwealth,
and these should be separately included. If any matter arises in the
future which genuinely needs to be made the subject of Commonwealth
power, then the constitution can be amended. If it can be clearly demonstrated
that an amendment is necessary, then there is no reason to suppose the
people will not pass an appropriate referendum.[65]
5.77 Others considered that a referendum would be unwise, because the
limitations proposed for s. 51(xxix) would inevitably involve the High
Court in making the political decision of whether a treaty does in fact
involve a matter of international concern or affect Australia's relations
with other countries. They considered that it is inappropriate for a Court
to have to make these judgements.[66]
5.78 Mr Cairns, from the ACTU, submitted to the Committee that any categorisation
of treaties on the basis of whether their effects were to be internal
or external in nature, would be difficult to define and maintain, and
would merely result in a great deal of litigation.[67]
5.79 It was also argued by Mr McGill SC, from the Queensland Bar Association,
that restricting the power to enter into treaties would not necessarily
restrict the legislative scope of the external affairs power, because
the basis of that power could be 'a matter of international concern'.
He stated:
For example, even if Australia had never been a party to a convention
or treaty dealing with racial discrimination, the fact that there was
a number of important international conventions and treaties dealing
with that subject matter could have provided a basis for legislative
power within Australia, under the external affairs power for the Commonwealth
Parliament to legislate in relation to racial discrimination. That was
a point which was made by Sir Ninian Stephen in the decision of Koowarta
v Bjelke-Petersen, which is the leading modern case in this area.
So the point about that is that confining the scope of treaties is not
necessarily going to confine the scope of the external affairs power
- or, at least, this aspect of the external affairs power.[68]
5.80 Similarly, the argument was raised that even without entering into
treaties, Australia may be obliged to implement their terms, to the extent
that those terms form part of customary international law.[69]
5.81 Others were concerned that if the external affairs power were to
be restricted in a manner which passed total responsibility for the implementation
of treaties to the States (in relation to matters which are not otherwise
within Commonwealth constitutional power) then this would unduly impair
Australia's ability to conduct is foreign policy.
5.82 Professor Winterton submitted that concern at the potential exercise
of the external affairs power 'must be balanced against the national interest
in effective Australian participation in international affairs.'[70] He
suggested that it was an exaggeration to suggest that Australia would
be rendered an 'international cripple'[71] were some treaties able to
be implemented legislatively only by the States, but nevertheless he was
concerned that 'Australia's capacity to conduct foreign relations would
undoubtedly be impaired if that were so.'[72]
5.83 Indeed Sir Anthony Mason, a former Commonwealth Solicitor-General
and former Chief Justice of the High Court, has expressed the opinion
that:
Conduct of international affairs would be a nightmare if legislative
implementation of Australia's treaty obligations were to become a matter
for each State to decide.[73]
5.84 Professor Winterton also noted that the Constitutional Commission,
in 1988, recognised the problems which could arise if the Commonwealth
did not have the power to implement the treaties that it ratified. The
Constitutional Commission gave the following example of such a problem:
A State Government may cause to have enacted legislation to implement
a treaty, leading to its ratification by the Commonwealth and the creation
of obligations binding on the Commonwealth. A later State Government,
perhaps of a different political persuasion, might repeal the legislation.
The result would be that the Commonwealth was in breach of its obligations,
but without power to do anything about it.[74]
5.85 Professor Winterton suggested that the following issues need to
be balanced:
Any assessment of appropriate reform of the external affairs power
must weigh and balance the considerations which have been noted: on
one side, the States' concerns regarding the as yet largely untapped
legislative power conferred by the provision, with its potential for
destroying State autonomy and thereby reducing the federal system to
a mere facade; on the other, the national interest in full Australian
participation in international affairs, which can only be undertaken
by the Commonwealth government, which requires a government able both
to undertake international commitments and to ensure that they are carried
out.[75]
5.86 Others considered that there were certain types of laws which must
be the same throughout Australia, and therefore it is only appropriate
for the Commonwealth to enact them, by using its external affairs power.
Mr Marsden, President of the NSW Council for Civil Liberties, argued that
it was essential that human rights legislation apply to all levels of
government. He stated that the Council was of the view that:
[t]he Commonwealth Government should exercise its external affairs
powers more widely and more often in the context of the protection of
human rights and should make a concerted effort to enact suitable human
rights legislation, which is sadly lacking.[76]
5.87 Another problem which has been raised in relation to proposals to
amend the external affairs power in the Constitution, is the difficulty
in getting a referendum passed in Australia, particularly without bipartisan
support.
5.88 The Leader of the Opposition, the Hon. John Howard, in his first
'Headland' speech stated that a Coalition Government will propose to the
People's Convention (that he proposes to establish) 'an amendment to the
Constitution to re-define the external affairs power'.[77] By taking the
issue out of the party political arena and into a People's Convention,
the intention is to gain broad community support for any amendments the
Convention might agree upon.
5.89 In the mean time, in the absence of any generally agreed upon limitation
to the external affairs power, several witnesses preferred to concentrate
on parliamentary limitation of the powers of the Executive. Mr Daryl Williams
QC, the Member for Tangney, submitted:
Since there is little prospect of a constitutional amendment to restrict
the Commonwealth power to legislate under s 51 (xxix), attention is
increasingly focussing on mechanisms for greater consultation in treaty
making with interested parties, including especially State and Territory
governments.[78]
5.90 Dr Thomson, from the Western Australian Attorney-General's Department,
was of the same view, stating:
Given the difficulty of amending the Commonwealth Constitution - and
I do not see it necessarily as a problem but as a difficulty - in a
practical and realistic sense, the Western Australian Government sees
Commonwealth legislation as being the most appropriate way to proceed.[79]
5.91 Former Attorney-General Mr Peter Durack QC, despite his earlier
proposal to amend s. 51(xxix) of the Constitution, has stated more recently
that he now considers that constitutional amendment is not the preferable
solution to the problem. He noted that the first problem with the referendum
path is to have it accepted by the people, and he expressed doubt that
any such referendum would succeed. He identified a further difficulty
in achieving agreement about the precise details of any proposed amendment.
Finally, he noted that even if the detail of a referendum proposal could
be agreed upon and it was popularly supported, 'it may well turn out to
be a lemon'.[80] He concluded that the solution lies in reviving co-operative
federalism:
Neither a change in approach by the High Court nor an amendment of
the power by a constitutional referendum are likely solutions. The use
of the power could and should be modified by political convention. A
policy of cooperative federalism has worked and could quite easily be
revived.[81]
Conclusion
5.92 Proposals to amend the external affairs power represent an attempt
to limit the width of the power by restricting the subject matter to which
it applies. The Committee considers that a constitutional amendment to
s 51(xxix) is unlikely to succeed at the current time, in the absence
of bipartisan support.
5.93 However, the Committee recognises that the concerns raised about
the external affairs power may be addressed by instituting a range of
mechanisms to improve the process by which Australia's treaty obligations
are entered into and implemented. The Committee makes recommendations
in relation to such matters in Chapters 12, 13, 15 and 16.
Endnotes
- (1975) 135 CLR 337, per Chief Justice Barwick at 360. See also: Hansard,
SLCRC, 13 June 1995, p 574, per The Hon. P. Connolly QC.
- (1936) 55 CLR 608.
- (1936) 55 CLR 608, 640.
- (1936) 55 CLR 608, 681.
- (1936) 55 CLR 608, 687.
- (1936) 55 CLR 608, 658.
- (1949) 79 CLR 121.
- (1949) 79 CLR 121, 136-7. The rest of the Court agreed. See Dixon
J at 149, McTiernan J at 157, and Webb J at 163.
- (1965) 113 CLR 54.
- (1965) 113 CLR 54, at 86.
- (1983) 158 CLR 1; (1988) 164 CLR 261.
- (1973) 128 CLR 557.
- (1973) 128 CLR 557, per Barwick CJ and Gibbs J at 582-583. The
Charter of the United Nations Amendment Act 1993 introduced provisions
authorising the Governor-General to make regulations giving effect to
UN Security Council Resolutions, 'in so far as those decisions require
Australia to apply measures not involving the use of armed force.' Any
regulations that are made can be enforced by means of financial penalties
and injunctions.
- (1975) 135 CLR 337.
- (1982) 153 CLR 168.
- (1982) 153 CLR 168, per Mason J at 226.
- (1982) 153 CLR 168, per Mason J at 234; per Murphy J at 241-242.
- (1982) 153 CLR 168, per Mason J at 234.
- (1982) 153 CLR 168, per Mason J at 234.
- (1982) 153 CLR 168, per Stephen J at 216-217.
- (1982) 153 CLR 168, per Stephen J at 218.
- (1982) 153 CLR 168, per Stephen J at 220.
- (1982) 153 CLR 168, per Gibbs CJ at 201.
- (1982) 153 CLR 168, per Gibbs CJ at 201.
- (1983) 158 CLR 1.
- (1983) 158 CLR 1, per Mason J at 125.
- (1983) 158 CLR 1, per Wilson J at 198.
- (1983) 158 CLR 1, per Gibbs CJ at 100.
- (1983) 158 CLR 1, per Mason CJ at 130, Murphy J at 177-178, and Deane
J at 258-259.
- (1983) 158 CLR 1, per Gibbs CJ at 102, per Wilson J at 198, per Dawson
J at 300-301.
- (1988) 164 CLR 261.
- (1988) 164 CLR 261, 295. See also H.P. Lee, 'The High Court and the
External Affairs Power' in H.P. Lee and G. Winterton, Australian
Constitutional Perspectives, Law Book Co., 1992.
- (1988) 164 CLR 261, per Mason CJ and Brennan J at 289.
- (1988) 164 CLR 261, per Deane J at 311-312.
- (1988) 164 CLR 261, per Deane J at 318.
- (1988) 164 CLR 261, 295.
- (1988) 164 CLR 261, per Deane J at 311.
- H.P. Lee, 'The High Court and the External Affairs Power' in H.P.
Lee and G. Winterton, Australian Constitutional Perspectives,
Law Book Co., 1992: p 74.
- State of Queensland v The Commonwealth (1989) 167 CLR 232,
242.
- (1991) 172 CLR 501.
- (1991) 172 CLR 501, per Mason CJ at 531.
- (1991) 172 CLR 501, per Brennan J at 551-552, per Toohey J at 653.
- (1991) 172 CLR 501, per Brennan J at 552.
- (1991) 172 CLR 501, per Brennan J at 572.
- (1994) 181 CLR 183.
- (1994) 181 CLR 183, at 195.
- (1994) 181 CLR 183, at 195-196.
- (1995) 128 ALR 353.
- Mr H. Burmester, Attorney-General's Department, Submission No. 75,
Vol 4, p 690. See also: New South Wales v The Commonwealth (Seas
and Submerged Lands Case) (1975)135 CLR 337, per Barwick CJ at 360,
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1
per Mason J at p. 127-128 and Polyukhovich v. Commonwealth (1991)
172 CLR 501 per Mason CJ at 528, Deane J at 599, Gaudron J at 695 and
McHugh J at p. 713.
- Professor E. Campbell, Submission No 8, Vol 1, p 83. Mr H. Burmester,
Attorney-General's Department, Submission No. 75, Vol 4, p 692.
- See for example: Mrs B. Kelly, Submission No. 48, Vol 2, p 426; Mr
M. Brandon, Submission No. 61 Vol 4, p 490.
- Mr H. Burmester, Attorney-General's Department, Submission No. 75,
Vol 4, p 69. Professor G. Winterton, Submission No. 89, Vol 5, p 1064.
- Constitutional Commission, Final Report of the Constitutional Commission,
Vol 2, AGPS, Canberra, 1988, paragraph 10.466. Professor E. Campbell,
Submission No. 8, Vol 1, p 83. Mr H. Burmester, Attorney-General's Department,
Submission No. 75, Vol 4, p 693.
- Mr H. Burmester, Attorney-General's Department, Submission No. 75,
Vol 4, p 692. Richardson v. Forestry Commission (1989) CLR 232
per Mason CJ and Brennan J at p 295
- Commonwealth v Tasmania (1983) 158 CLR 1, per Deane J at p
259.
- Mr P. Durack, 'The External Affairs Power', The Federalism Project
Issues Paper No. 1, Institute of Public Affairs, Western Australia,
1994, p 9.
- Constitution Alteration (External Affairs) Bill 1984: s. 2.
- See description in: Constitutional Commission, Final Report of
the Constitutional Commission, Vol 2, AGPS, Canberra, 1988, pp 743-44.
- Constitutional Commission, Final Report of the Constitutional Commission,
Vol 2, AGPS, Canberra, 1988: p 744.
- Quoted in: Constitutional Commission, Final Report of the Constitutional
Commission, Vol 2, AGPS, Canberra, 1988: p 743.
- Constitutional Commission, Final Report of the Constitutional Commission,
Vol 2, AGPS, Canberra, 1988: p 743.
- Dr C. Howard, 'Amending the External Affairs Power', Upholding
the Australian Constitution - Proceedings of the Fifth Conference of
the Samuel Griffith Society, Vol 5, p 11.
- Professor G. Winterton, Submission No. 89, Vol 5, pp 1082-83.
- Mr B. Hannaford, Submission No. 4, Vol 1, pp 22-23; Mr S. McRae, Submission
No. 5, Vol 1, p 26; Mr R. Slater, Submission No. 40, Vol 2, p 338; Ms
G. Grining, Submission No. 99, Vol 6, p 1254; Mr R. Hadler, Submission
No. 140, Vol 9, p 2097. Other submissions commented on the abuse of
the external affairs power: Mr L. Colless, Submission No. 33, Vol 2,
p 274 and some suggested that Australia should only enter into a treaty
after approval is obtained in a referendum: Mr B. Wood, Submission No.
7, Vol 1, p 77; J.D. Gration, Submission No. 36, Vol 2, p 281; Mr D.
Craig, Submission No. 34, Vol 2, p 277; Ms S. Barrett, Submission No.
59, Vol 3, p 483; C.E. Clark, Submission No. 60, Vol 3, p 487 and Mr
R. Johnstone, Submission No. 67, Vol 3, p 585.
- Mr S. Gethin, Submission No. 97, Vol 6, p 1227. See also Hansard,
SLCRC, 15 May 1995, pp 244 and 249.
- Hansard, SLCRC, 16 May 1995, p 404, per Professor G. Winterton
and Professor M. Coper, Submission No. 156, Vol 10, p 2276.
- Hansard, SLCRC, 14 June 1995, p 758.
- Hansard, SLCRC, 13 June 1995, pp 584-585. See also: Hansard,
SLCRC, 14 June 1995, p 726, per Mr F. Gulson from the NSW Farmers Association.
- Hansard, SLCRC, 2 May 1995, p 198, per Ms K. Walker.
- Professor G. Winterton, Submission No. 89, Vol 5, p 1066.
- New South Wales v Commonwealth (1975) 135 CLR 337, 503; Koowarta
v Bjelke-Petersen (1982) 153 CLR 168, 241.
- Professor G. Winterton, Submission No. 89, Vol 5, p 1066.
- Sir Anthony Mason, 'The Australian Constitution 1901-1988 ' (1988)
62 Australian Law Journal, 752, 755. Cited in Professor G. Winterton,
Submission No. 89, Vol 5, p 1066.
- Constitutional Commission, Final Report of the Constitutional Commission,
Vol 2, AGPS, Canberra, 1988, para 10.498. Cited in G. Winterton, Submission
No. 89, Vol 5, p 1067. It should be noted, however, that there are existing
cases of State legislation breaching Australia's international obligations,
with no sign of the Government taking action to legislate to remedy
such breaches. See, for example: Crime (Serious and Repeat Offenders)
Sentencing Act 1992 (WA).
- Professor G. Winterton, Submission No. 89, Vol 5, p 1068.
- Mr J. Marsden, Submission No. 24, Vol 2, p 248.
- The Hon. John Howard MP, 'The Role of Government: A Modern Liberal
Approach', The Menzies Research Centre 1995 National Lecture Series,
6 June 1995.
- Mr D. Williams, AM, QC, MP, Member for Tangney, Submission No. 119,
Vol 7, p 1558.
- Hansard, SLCRC, 15 May 1995, p 255, per Dr Thomson. Mr J. Daley,
from the Victorian Department of Premier and Cabinet, also stated that
there was no need for constitutional change because significant change
could be achieved by legislation: Hansard, 2 May 1995, p 139.
- Mr Peter Durack, The External Affairs Power, The Federalism
Project Issues Paper No. 1, Institute of Public Affairs, Western Australia,
1994, p 21.
- Mr Peter Durack, The External Affairs Power, The Federalism
Project Issues Paper No. 1, Institute of Public Affairs, Western Australia,
1994, p 21.
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