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Law Notes Constitutional Law Notes

External Affairs Power Theory Notes

Updated External Affairs Power Theory Notes

Constitutional Law Notes

Constitutional Law

Approximately 121 pages

These notes were used to achieve a High Distinction in Constitutional Law at Monash University, and include both policy and problem question notes. Be aware that at the time this exam was taken the unit did not include a separate policy question but rather included it within problem questions. The notes package also includes a list of case notes and constitutional theory separate to the problem structures.

The notes cover all course content.

They include clear and easily usable problem str...

The following is a more accessible plain text extract of the PDF sample above, taken from our Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

External affairs power

Cases

Polyukovich v Commonwealth

  • 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.

Horta v Commonwealth

  • 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.

XYZ v Commonwealth

  • 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).

Koowarta v Bjelke-Petersen (1982 HCA)

  • 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

Commonwealth v Tasmania (1983) (the ‘Tasmanian Dams Case’)

  • 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,...

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