Chapter 5

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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

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:

5.68 The Bill provided that the following provision be inserted after s. 51 of the Constitution.

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:

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:

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:

5.75 Professor Winterton has made the following criticism of this proposed amendment:

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:

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:

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:

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:

5.85 Professor Winterton suggested that the following issues need to be balanced:

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:

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:

5.90 Dr Thomson, from the Western Australian Attorney-General's Department, was of the same view, stating:

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:

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

  1. (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.
  2. (1936) 55 CLR 608.
  3. (1936) 55 CLR 608, 640.
  4. (1936) 55 CLR 608, 681.
  5. (1936) 55 CLR 608, 687.
  6. (1936) 55 CLR 608, 658.
  7. (1949) 79 CLR 121.
  8. (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.
  9. (1965) 113 CLR 54.
  10. (1965) 113 CLR 54, at 86.
  11. (1983) 158 CLR 1; (1988) 164 CLR 261.
  12. (1973) 128 CLR 557.
  13. (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.
  14. (1975) 135 CLR 337.
  15. (1982) 153 CLR 168.
  16. (1982) 153 CLR 168, per Mason J at 226.
  17. (1982) 153 CLR 168, per Mason J at 234; per Murphy J at 241-242.
  18. (1982) 153 CLR 168, per Mason J at 234.
  19. (1982) 153 CLR 168, per Mason J at 234.
  20. (1982) 153 CLR 168, per Stephen J at 216-217.
  21. (1982) 153 CLR 168, per Stephen J at 218.
  22. (1982) 153 CLR 168, per Stephen J at 220.
  23. (1982) 153 CLR 168, per Gibbs CJ at 201.
  24. (1982) 153 CLR 168, per Gibbs CJ at 201.
  25. (1983) 158 CLR 1.
  26. (1983) 158 CLR 1, per Mason J at 125.
  27. (1983) 158 CLR 1, per Wilson J at 198.
  28. (1983) 158 CLR 1, per Gibbs CJ at 100.
  29. (1983) 158 CLR 1, per Mason CJ at 130, Murphy J at 177-178, and Deane J at 258-259.
  30. (1983) 158 CLR 1, per Gibbs CJ at 102, per Wilson J at 198, per Dawson J at 300-301.
  31. (1988) 164 CLR 261.
  32. (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.
  33. (1988) 164 CLR 261, per Mason CJ and Brennan J at 289.
  34. (1988) 164 CLR 261, per Deane J at 311-312.
  35. (1988) 164 CLR 261, per Deane J at 318.
  36. (1988) 164 CLR 261, 295.
  37. (1988) 164 CLR 261, per Deane J at 311.
  38. 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.
  39. State of Queensland v The Commonwealth (1989) 167 CLR 232, 242.
  40. (1991) 172 CLR 501.
  41. (1991) 172 CLR 501, per Mason CJ at 531.
  42. (1991) 172 CLR 501, per Brennan J at 551-552, per Toohey J at 653.
  43. (1991) 172 CLR 501, per Brennan J at 552.
  44. (1991) 172 CLR 501, per Brennan J at 572.
  45. (1994) 181 CLR 183.
  46. (1994) 181 CLR 183, at 195.
  47. (1994) 181 CLR 183, at 195-196.
  48. (1995) 128 ALR 353.
  49. 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.
  50. Professor E. Campbell, Submission No 8, Vol 1, p 83. Mr H. Burmester, Attorney-General's Department, Submission No. 75, Vol 4, p 692.
  51. See for example: Mrs B. Kelly, Submission No. 48, Vol 2, p 426; Mr M. Brandon, Submission No. 61 Vol 4, p 490.
  52. Mr H. Burmester, Attorney-General's Department, Submission No. 75, Vol 4, p 69. Professor G. Winterton, Submission No. 89, Vol 5, p 1064.
  53. 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.
  54. 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
  55. Commonwealth v Tasmania (1983) 158 CLR 1, per Deane J at p 259.
  56. Mr P. Durack, 'The External Affairs Power', The Federalism Project Issues Paper No. 1, Institute of Public Affairs, Western Australia, 1994, p 9.
  57. Constitution Alteration (External Affairs) Bill 1984: s. 2.
  58. See description in: Constitutional Commission, Final Report of the Constitutional Commission, Vol 2, AGPS, Canberra, 1988, pp 743-44.
  59. Constitutional Commission, Final Report of the Constitutional Commission, Vol 2, AGPS, Canberra, 1988: p 744.
  60. Quoted in: Constitutional Commission, Final Report of the Constitutional Commission, Vol 2, AGPS, Canberra, 1988: p 743.
  61. Constitutional Commission, Final Report of the Constitutional Commission, Vol 2, AGPS, Canberra, 1988: p 743.
  62. 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.
  63. Professor G. Winterton, Submission No. 89, Vol 5, pp 1082-83.
  64. 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.
  65. Mr S. Gethin, Submission No. 97, Vol 6, p 1227. See also Hansard, SLCRC, 15 May 1995, pp 244 and 249.
  66. Hansard, SLCRC, 16 May 1995, p 404, per Professor G. Winterton and Professor M. Coper, Submission No. 156, Vol 10, p 2276.
  67. Hansard, SLCRC, 14 June 1995, p 758.
  68. 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.
  69. Hansard, SLCRC, 2 May 1995, p 198, per Ms K. Walker.
  70. Professor G. Winterton, Submission No. 89, Vol 5, p 1066.
  71. New South Wales v Commonwealth (1975) 135 CLR 337, 503; Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 241.
  72. Professor G. Winterton, Submission No. 89, Vol 5, p 1066.
  73. 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.
  74. 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).
  75. Professor G. Winterton, Submission No. 89, Vol 5, p 1068.
  76. Mr J. Marsden, Submission No. 24, Vol 2, p 248.
  77. The Hon. John Howard MP, 'The Role of Government: A Modern Liberal Approach', The Menzies Research Centre 1995 National Lecture Series, 6 June 1995.
  78. Mr D. Williams, AM, QC, MP, Member for Tangney, Submission No. 119, Vol 7, p 1558.
  79. 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.
  80. Mr Peter Durack, The External Affairs Power, The Federalism Project Issues Paper No. 1, Institute of Public Affairs, Western Australia, 1994, p 21.
  81. 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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