#6944 - External Affairs Summary - Constitutional Law

POWER OF COMMONWEALTH: EXTERNAL AFFAIRS

Section 51(29) confers power on the Commonwealth Parliament to make laws with respect to ‘external affairs’. It extends to the following four areas:

Extraterritorial Powers

• Extraterritorial powers arise when the Parliament legislates with respect to acts or matters beyond its borders

• The Commonwealth has extraterritorial power conferred on in by the Statute of Westminster (s 3)

• These are plenary powers, you do not need a nexus (Polyukhovich, XYZ v Commonwealth)

• Power extends to placed, persons, matters or things physically external to Australia. ILO

Matters of International Concern

• The scope and existence of this aspect of s 51(29) remains decidedly unclear.

• It is arguable, given the decisions in ILO, that this sub-head of power gives the Commonwealth power to implement the international recommendations of the most respected and influential international organizations when those recommendations have sizeable international support.

• What is a matter which is of international concern?

  • Narrow view: Must be a concern to the majority of the world (Wilson J – Dams)

    • In XYZ Heydon and Callinan JJ noted it was not the role of the HC to determine what was or wasn’t

  • Broad view: Must be a subject of great international debate, negotiation or discussion. (Stephen J, koowarta)

    • In Dams Murphy J argued that EA powers should be extended to include matters of international concern

• These powers may provide an additional basis for grounding Commonwealth laws which implement non-binding standards emanating from international bodies.

• XYZ – expressed the view it was broad & too vague to exist as a separate branch

Relations with other Nations

• Commonwealth has power to make legislation in relation to foreign nations under s 51 Sharkey

• Can be related to any relation, not just a friendly relation Professor Zines

• Preservation of friendly relations with other Dominions is an important part of the management of the external affairs Sharkey

  • Sedition offences were thought to help preserve this relationship Sharkey

  • Includes terrorism (Thomas v Mobray) and Sex-tourism (XYZ) and Extraditions Laws (Vasilijikovic)

• Brennan in Koowarta and Kirby in XYZ suggested extending this power included “international persons” such as the UN and other intergovernmental organizations

Implementation of Treaties

1. Does the Commonwealth Act fall within a head of power?

   • Identify what is the document or treaty the Commonwealth is relying on

     • Pacts, protocols, charters, conventions are all treaties

   • Scope of power: If it is a treaty they are relying on, the commonwealth may legislate with respect to the External Affairs power under s 51 (xix) of the Constitution. The Commonwealth has prerogative power to ratify any treaty they wish to regardless of subject matter (Mason J, Tas Dam, received unanimous acceptance in Richardson v Forestry Commission)

     • The very fact there is a treaty means it is automatically of international concern

   • Incidental scope: In Richardson, HC conferred that S 51 (29) extended to matters which are reasonably incidental to those obligations (i.e. pending obligations)

   • What about non-treaties?

     • Section 51(29) can also be used to implement international instruments such as drafts, declarations or recommendations (ILO)

     • This includes bits in the treaty that are not obligations.

2. Subject to four limitations

   • Treaty must be bona fide

     • Low threshold

     • Made in good Faith and not as a means of conferring legislative power upon the Commonwealth Parliament(Brennan J in Koowarta)

     • Only available in obvious situations and it is a ‘frail shield’ because it is very hard to prove bad faith (Gibbs CJ. Dams)

     • Evidence:

       • What organisation is it supporting

       • How long did it take them to implement it: was it a power grab?

   • Treaty must have some sort of obligation (ILO)

     • Need for treaty obligations has never been confirmed nor denied by a High Court majority

     • Obligations

       • Commonwealth can implement treaty obligations (Dams)

       • No need for obligation because treaties are usually written in aspirational language and therefore do not require precision. Aspirational language may be ok (Deane in Dams)

         • The terms which are used to define obligation may be different for different countries.

         • If obligations are too precise, It is hard to get parties to sign on

         • Can be aspirational and obligatory at the same time and generally it is pretty lenient.

       • How can documents from international bodies that are not treaties ever be obligatory as you are never bound to follow them.

     • Recommendations/Matters incidental

       • Even if there isn’t an obligation, still might be able to implement under incidental scope. ILO

       • Matters which are reasonably incidental (helpful in fulfilling the obligation) to treaty obligations can be implemented even though they are not obligations themselves Majority in Richardson

       • The Commonwealth could implement the provisions of international instruments which did not have the status of treaties eg. draft treaties or recommendations Victoria v Commonwealth (ILO)

       • If it is a ‘mere recommendation’ (Those not related to a treaty) it is unclear whether courts would allow it to be implemented. If they allowed it, there would be no need for an obligation requirement.

   • Specificity

     • Treaty must define a regime with sufficient specificity to direct the general course to be taken by the signatory states.

     • The search for obligations is less important than if a law is specific ILO

     • When a treaty is relied on under s 51 to support a law, it is not sufficient that the law prescribes one of a variety of means that might be thought to be appropriate and adapted to the achievement of an ideal ILO

     • The higher the level of global consensus on the issue the lesser level of specificity required

     • Look for a regime, steps or a timeline

     • You may argue that recommendations in addition to the treaty make it specific

     • The line between sufficient and insufficient specificity is...