#7106 - External Affairs Power Theory - Constitutional Law

Cth amended the War Crimes Act 1942 (Cth) to retrospectively criminalise certain war crimes committed in Europe in WWII. It prohibited crimes outside Australia, regardless of the nationality of the victim or perpetrator when the crime was committed. Liability only attached to Australian citizens/residents at the time the charge was brought but the perpetrator needed no connection to Australia at the time of the alleged act.

DECISION: the legislation was validly enacted under EA power, as it gives power to makes laws for places, persons, matters or things external to Australia. No nexus is required.

Involved international agreements between Australia and Indonesia regarding the exploitation of resources in the Timor Gap

Horta argued the agreements were invalid in IL and the legislation was therefore invalid

DECISION: even if the agreements were invalid, the legislation would be valid simply because it concerned matters physically external to Australia.

Two sections of the Cth Crimes Act allowed prosecution in Australia of Australian citizens or residents if they committed sexual offences against children under 16 years while overseas.

P was charged for such a crime that occurred in Thailand.

DECISION: majority held that s 51(29) granted plenary extraterritorial power and the Cth could legislate for any offence overseas.

• Callinan and Heydon JJ in dissent seemed to indicate that the EA power only gave power regarding treaty implementation and relations with other countries (an even narrower view than that of Brennan and Toohey JJ in Polyukovich).

Wik people incl John Koowarta wanted to buy some land; the owner agreed to sell

Bjelke-Petersen (Premier) told Minister of Lands to block the sale as did not believe Aboriginal people should be able to own large tracts of land

Koowarta appealed on the basis of the Racial Discrimination Act 1975 (Cth)

Queensland challenged the validity of the Act, which was implementing the UN Convention on the Elimination of All Forms of Racial Discrimination, so the case was moved to the HCA

DECISION

• Minority: thought Act invalid; held the subject matter of the treaty itself had to be an external affair’ regarding extraterritorial matters or relations with other states.

• Majority: Act valid. 3 judges said Cth can implement any treaty regardless of subject matter, while Stephen J held that Cth can implement a treaty if its subject matter is of international concern (important judgment).

  • Mason J: thought Australia’s international standing would be weakened if it could not mostly freely implement treaties

Australia became party to the Convention for the Protection of the World Cultural and Natural Heritage.

The Convention required each State Party should endeavour, in so far as possible and as appropriate for each country, to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of that heritage.

Each State party was required to submit properties suitable for World Heritage listing. Australia did so and an area of national parks in Tasmania was accepted onto the list.

Tas Government wanted to flood the area for a dam,

Cth passed legislation to stop the government doing this: it prohibited cutting down trees, building roads, construction within the area of land. Tas Govt challenged this legislation.

DECISION

• Majority: held s 51(29) gave full power to implement all treaty obligations into Australian law. They also purported to adopt Stephen J’s approach in Koowarta but held that the fact that an international agreement is entered by other countries is enough to show the subject matter is of international concern.

• The majority also thought ti was inappropriate for judges to be making subjective policy judgments about what treaties are of international concern; the executive must have the power to make binding commitments and it is not for judges to say the executive’s international agreements are not of international concern.

• Conformity (‘appropriate and adapted’) limitation on treaty implementation power adopted; majority found the legislation appropriate and adapted.

• No majority decision requiring obligations in treaties.

• Minority: held that the obligation to protect world heritage sites was not of international concern (not a ‘burning international issue’: Gibbs J) and that only treaty subject matter of international concern could be implemented.