LAWS1116 Lecture 7

The External Affairs Power

  • Obtained from s51 (xxix) – the power to make laws with respect to “External Affairs”
  • Exclusive to the Commonwealth by its very nature
  • Considered a “purposive” power, not a person power (as opposed to corporations)
  • Extends to:
    • ANYTHING outside of Australia
    • International affairs
    • Implementation of International agreements/treaties
    • Matters of international concern

1. Matters external to Australian Territories

  • Traditionally held to only apply to areas of “sufficient international significance” (R v Burgess (1936))
  • Now held that ANYTHING external to Australia that the legislature make a law regarding is of sufficient significance
  • Note: This only applies to laws affects areas OUTSIDE of states/territories

NSW v Commonwealth (Seas & Submerged Lands) (1975)

  • Issue: Was an Act giving Cth sovereignty over territorial sea and the continental shelf valid?
  • Held: Yes
  • Reasoning: The external affairs power applies in this case, as it effectively puts into effect the 1958 Geneva Conventions on law of the sea, or alternatively it dealt with things geographically external to Australia
  • Note: Led to practical enforcement issues, ultimately resulted in offshore settlement restoring previous state powers (under section 51 (xxxviii))

Polyukhovich v Commonwealth (1991)

  • Issue: Did an amendment to the 1945 War Crimes Act to allow retrospective prosecution of Australian citizens/residents who weren’t citizens or residents of Australia at the time of their crimes fall under the ambit of the external affairs power?
  • Held: Yes
  • Reasoning: It dealt with matters external to Australia – and if the Commonwealth couldn’t legislate for it, it would be a constitutional gap prohibiting any government from doing so, which goes against the principle of sovereignty.

2. Management of Australian Relations with other Nations

  • Supports legislation concerning relations with other nations

R v Sharkey (1949)

  • Issue: Was a specific sub-section of the Crimes Act dealing with ‘relations with other dominions’ within the Commonwealth powers?
  • Held: Yes
  • Reasoning: Relations with other dominions was the responsibility of the Commonwealth government, and they could pass legislation to preserve friendly relations.

Kirmani v Captain Cook Cruises (1985)

  • Issue: Did the Commonwealth Government have the power to repeal/amend the Merchant Shipping Act (UK)?
  • Held: Yes
  • Reasoning: 3 held that it was covered by the external affairs power, as it dealt with relations with England, Brennan held it was covered by the Statute of Westminster, and 3 held it was an internal matter – so 4:3 but with no consistent ratio

3. Implementation of International Treaties

  • It is customary to observe treaties under international law, but not actually required
  • Implementing the international treaties into Australian law is necessary to actually observe them
  • Monist Doctrine: Treaty becomes law automatically when signed (Germany, etc.)
  • Dualist Doctrine Treaty is only binding if adopted into law by local legislature (Australia)
  • Non-adopted treaties may also be regarded when looking at common law (Mabo)
  • Treaty obligations can also influence statutory interpretation
  • Minister for Immigration v Teoh (1995) suggested that merely signing a treaty may be sufficient to infer the implication that Australia intended to abide by it – but this was condemned in Ex Parte Lam (2003), so shouldn’t be considered a hard rule
  • Kirby feels they can also affect constitutional interpretation, but like many of Kirby’s opinions, nobody else agreed with him
  • States have no legal personality at international law, can only enter international contracts, not treaties
  • Treaty implementation is heavily influenced by Engineers doctrine – power interpreted VERY broadly, supporting discrimination, environmental, etc. laws
  • Effectively grants the power to do ANYTHING to implement a treaty, even going all the way back to R v Burgess (1936)

Koowarta v Bjeke-Peterson (1982)

  • Issue: Was the anti-discrimination legislation passed to implement the International Convention on the Elimination of All Forms of Racial Discrimination covered under the external affairs power?
  • Held: Yes it was
  • Reasoning: 3 Held it was sufficient that it was implementing an agreement, 3 held it was NOT sufficient, and Stephen went narrower, saying it had to be a treaty on a matter ‘of international concern’ – but still held that this was of sufficient international concern.

Commonwealth v Tasmania (Tasmanian Dams) (1983)

  • Issue: Could Cth legislation passed under the World Heritage Properties Conservation Act prevent the construction of a Dam in Tasmania? Alternatively, did their attempt via regulation to make it unlawful without ministerial consent work?
  • Held: Yes, the majority of the Act WAS constitutional (some small portions were struck down, but had no effect on the outcome of the case)
  • Reasoning: 4:3 split, with 4 holding that Parliament can legislate to implement any treaty entered into under good faith – the portions of the Act that did not implement the treaty were struck down

Airlines of NSW v NSW (1965)

  • Issue: Did Cth legislation to allow the creation of regulations to carry out/give effect to a navigation Convention fall under the external affairs power? If so, did it extend to the creation of a licensing scheme NOT required by the convention?
  • Held: Yes it did
  • Reasoning: The licensing scheme was an appropriate way to implement the conventions goals, and as such was covered under the ambit of external affairs power – “substantial compliance” with the goals was achieved

Richardson v Forestry Commission (1988)

  • Issue: Could the Cth declare forests as “of potential world heritage value” and prevent construction/logging during the inquiry process?
  • Held: Yes
  • Reasoning: Sufficient obligation existed under the treaty to protect potential heritage sites (unanimous)

Limits to Treaty Implementing Power

  • Legislation MUST conform to the Treaty (Tasmanian Dams)
  • Requires some kind of international obligation (but the definition of “obligation” is very flexible, see Richardson v Forestry Commission (1988))
  • Subject to express/implied Constitutional limitations (But not from the federal balance/reserved powers doctrine – Melbourne Corporation/Austin limitations only)
  • Must be entered into in good faith, not just to gain legislative power (but realistically impossible to tell)

Matters of International Concern

  • No treaty or obligation may be required
  • As long as it is a “matter of international concern” it may be applicable under the external affairs power
  • Obiter only – but expressed by several judges in several cases, including Brennan in Polyukhovich, Deane in Tasmanian Damns, and Stephen in Koowarta