#7101 - Commonwealth Law - Constitutional Law

• Identify the Cth law

• Identify arguments of both parties

The Commonwealth has the power to makes laws with respect to external affairs (EA) under CC s 51(29).

• The Cth will argue that [the law] is a law with respect to EA

• [X] will argue that the law cannot be so characterised.

To be valid, the law must be shown to fall within one of the three aspects (or four, if matters of international concern is considered a separate aspect) of the EA power. Here, the law is most likely to be valid under [identify any likely aspects].

Law

s 51(29) gives the Commonwealth power to make laws implementing treaties ratified by the executive under its prerogative power into domestic law.

Treaties will not become effective if not implemented due to Australia’s dualist system. They may have some effect: Australia is bound by IL to follow the treaty once ratified and is responsible for its violation, so this may affect the decisions of administrators. Judges are also permitted to take IL into account in developing CL. Unincorporated treaties have procedural effect in Aus law, as they impact on the procedures to be followed in the case of administrative decisions (Minister for Immigration v Teoh). However this principle has been expressed in a later judgment to be vulnerable to being overruled (Re Minister for Immigration, ex parte Lam).

The general principle is that the Cth can implement treaties into legislation regardless of their subject matter (Tasmanian Dams Case; Richardson). Accordingly, a law implementing a treaty is prima facie valid, subject to any limitations.

Whether international documents that do not have treaty status (such as declarations, recommendations, and draft treaties) can be implemented is uncertain.

• In the ILO Case, it was held that the Cth could implement international recommendations from a major international organisation (the International Labor Organization), so it may be that only recommendations from organisations with similar status can be implemented (eg, World Health Organization, the United Nations Education, Scientific and Cultural Organization, the Food and Agricultural Organization or the ILO itself).

• ILO appears to make it clear that the Commonwealth can implement at least some international declarations and recommendations.

Limitations may restrict the power of the Cth to implement the treaty. Here, it is possible that [whichever applicable]

A limitation of ‘bona fide’ may apply. This restriction states that a treaty may only be entered in good faith, and not merely as a device to assume additional legislative power (Brennan J in Koowarta; also mentioned in Tasmanian Dams).

[Apply to facts]

However, this limitation may be very difficult to prove and may not provide a solid ground for challenge without clear evidence, so it may be preferable to rely on another limitation.

This limitation is controversial. High Court justices have sometimes held that in order for the Commonwealth to be free to implement a treaty, the treaty must impose actual obligations (see, eg, minority in Tasmanian Dams; Richardson). However, there has never been a clear majority in favour of the limitation.

Additionally, the case of Victoria and Ors v Commonwealth (the ‘ILO’ case) indicated that documents that do not impose obligations (including draft treaties and international recommendations) may be implemented, and may have impliedly replaced the obligation requirement with one of specificity. However, the High Court has never expressly overruled the obligation requirement. Accordingly, this should be considered. In any case, if a treaty does contain an obligation, it is clear that it can be implemented (Tasmanian Dams case).

It also appears that the Cth can legislate with respect to matters reasonably incidental to treaty obligations under the incidental scope of the EA power (Richardson).

To decide if there is an obligation, the language of the treaty must be considered.

• Does the language impose obligations?

• Language that is ‘aspirational’ rather than obligatory may not satisfy the limitation (minority judgments in Tasmanian Dams).

• Recommendations would not be considered obligations

• However, the majority in Tasmanian Dams noted that an international treaty cannot be expected to be written with the same precision as a domestic commercial contract or document, due to structural differences in official languages and other factors.

[Discuss if the treaty includes words of obligation]

[if unclear from words] Although the language here may not at first glance appear to be of obligation, courts have noted that the language of treaties will not always be as clear as that used in commercial contracts (Tasmanian Dams), so they may be willing to accept that an obligation is imposed here.

[Discuss if the legislation has implemented an obligation, or at least a matter reasonably incidental to the obligation; conclude on this limitation]

Since the EA power has a purposive element (the purpose of incorporating a treaty into Australian law), a proportionality test applies. The conformity limitation states that the law being enacted must be reasonably capable of being considered appropriate and adapted to implementing the provisions of the treaty (Tasmanian Dams; Richardson; ILO). In comparing the law with the treaty, if the law is not reasonably proportionate to the purpose or object of the treaty (ie it goes far beyond the treaty) it is not appropriate and adapted (ILO).

• the words ‘reasonably capable of being considered’ give the Cth at least some discretion; as long as a reasonable mind might think it capable of being considered appropriate and adapted, even if the judges personally do not think the legislation meets the conformity test, the legislation should be allowed.

• A law that plainly undermines the object and purpose of the treaty will not meet the conformity requirement

• The majority in ILO held that partial implementation of a treaty can still be seen as adequately conforming to the treaty’s object and purpose IF:

  • the deficiency in implementation is not so substantial as to deny the law the character of a measure implementing the treaty; and

  • The deficiency, when coupled with other provisions of the law, does not make it substantially inconsistent with the treaty.

[Compare legislation with the treaty; decide if legislation has gone too far or if conformity is satisfied]

The specificity limitation requires that the law must prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken (ILO). The treaty must define a regime or series of steps to be taken towards a goal or aspiration.

The language of the treaty may be sufficiently specific if:

• The Commonwealth has not been given wide discretion in how to achieve the treaty’s aims

  • Being able to implement it in any way will fail specificity (eg a requirement to ‘eradicate poverty’ would likely fail specificity)

• If there is a consensus over how to achieve goals/aspirations, it may be unnecessary for the treaty to be specific in guidance to States (eg AIDS: to ‘contain the spread of AIDS’ may not have been sufficiently specific in the past, but since much more is now known it may be specific enough)

[Decide if specificity is satisfied; no need to consider legislation itself here]

The Commonwealth’s power to incorporate international treaty provisions into domestic law is controversial, due to the potential to vastly expand the scope of Cth power beyond its enumerated powers. Many HCA judges over the years have expressed such concerns, and it is not out of the question that a narrower view of the treaty implementation power than current may be adopted.

• However, as pointed out by Murphy J in Tasmanian Dams and Mason J in Koowarta, objection to expansion of Commonwealth powers or complaint about upsetting the ‘federal balance’ is arguably a revival of the long-rejected ‘reserved state powers’ doctrine not accepted as law since Engineers. It is unlikely that a majority of the court would accept that the Cth treaty implementation power should be narrowed on this basis, but it may be prudent to mention such objections to [client’s] attention. Additionally, as pointed out by Mason J in Koowarta, an inability to implement treaties would weaken Australia’s standing in international affairs.

Here, the law is likely/unlikely to be validly enacted under the treaty implementation aspect of the EA power. [other aspects? International concern?]

Law

S 51(29) gives the Commonwealth plenary extraterritorial power (Polyukovich). It has power to make any laws that have application to places, persons, matters or things outside Australia’s geographical borders (Polyukovich; XYZ).

• There is no need for a nexus (connection) between Australia and the law passed (Polyukovich...