LAWS1116 T5 Questions

Week 8: Federal Legislative Power – External Affairs

Question 1

In October 1995, X is arrested by an Australian Federal Police Officer for burning an Indonesian flag in the Queen Street Mall. X is wearing a T-shirt which reads, 'Indonesia get out of Timor'. He is demonstrating alone. Just before the policeman arrested X, he was punched by an Indonesian seaman who was in the Mall. He is prosecuted pursuant to the Foreign Relations Advancement and Improvement Act 1986 (Cth) which provides in part, as follows:-

5. Any person who does any act which may prejudice Australia's relations with any foreign country is guilty of an offence.
Penalty: Five years imprisonment.

X is convicted pursuant to section 5. X wishes to challenge the constitutionality of his conviction on the basis that the legislation is invalid as not being within the external affairs power - s. 51(xxix).

Would the position be different if Australia and Indonesia had entered into a treaty on these matters? Could X be convicted under s.10 of the statute which provides as follows:-

10. It is an offence to burn the flag of a foreign country without a permit granted by the Minister for Foreign Affairs being first had and obtained.

Penalty: Two years imprisonment

Question 2

Article 6(1) of the World Heritage Convention (1972) provides:

The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and preservation of the cultural and natural heritage … if the States on whose territory it is situated so request.

The Commonwealth decides to seek the assistance and expertise available in a number of nations in the South Pacific Region in the identification, protection, conservation and preservation of the cultural heritage within Australia. It creates the Australian Cultural Heritage Commission (the 'Commission') under the Australian Cultural Heritage Act 2000 (Cth). The Commission is empowered, with the consent of the national governments concerned, to enter into agreements with cultural organisations established in other countries within the region, for co-operative educational efforts directed to the preservation of indigenous communities and the promotion of indigenous cultures.
Is the Act authorised under s 51(xxix) of the Constitution of the Commonwealth of Australia, specifically in view of Article 6(1) of the Convention?

Question 3

The Preamble to the Constitution of the International Labour Organization (ILO) (of which Australia is a foundation member) recites as follows:
Whereas universal and lasting peace can be established only if it is based upon social justice; And whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required: as, for example, by … the prevention of unemployment ….

The Commonwealth Parliament enacts the Termination of Employment Act 2001. The Act recites as its purpose the implementation of a specific aspiration (viz., 'the prevention of unemployment') mentioned in the Preamble to the ILO Constitution. The Act relies solely on this expression of international concern to ground its legislation (assume that no other international conventions or recommendations address the issue).

Subsequently, the General Conference of the ILO adopts an Equal Remuneration Recommendation which recommends that members of the ILO consider giving effect to the principle that rates of remuneration for labour be established without discrimination based on gender. (Assume that there are no International Conventions which impose obligations on member states to implement measures relating to this issue.) The Recommendation, in accordance with the Constitution of the ILO, is communicated to Australia (as a member of the ILO) for 'consideration with a view to effect being given to the Recommendation by national legislation or otherwise.' The Commonwealth passes the Equal Remuneration in Employment Act 2002. The Act provides that it is an offence for employers to determine an employee's remuneration by reference to factors which are 'irrelevant' to the value of the work performed by the employee. The Commonwealth also passes the University Employees Act 2002. The Act provides that rates of remuneration for university employees be established without discrimination based on gender.

Given the circumstances outlined above, are the Termination of Employment, Equal Remuneration in Employment and University Employees Acts supported by the external affairs power?