#7323 - External Affairs Power - Federal Constitutional Law

The power under s 51(xxix) to legislate with respect to “external affairs” is strictly circumscribed by those two words – but apart from the implementation of treaties, the actual scope of the words is yet uncertain

In Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1 the HCA refused to abolish the ACP

• But in cases after WWII the HCA upheld prosecution of communists for sedition (e.g. R v Sharkey)

R v Sharkey

• Facts: s 24A of the Crimes Act defined “seditious intention” as including an intention to “excite disaffection against the Government or Constitution of any of the King’s Dominions”

• Held: s 24A is a valid law with respect to external affairs

• Latham CJ:

  • The relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters falling directly within the subject of external affairs

  • The preservation of friendly relations with other Dominions is an important part of the management of the external affairs of the CTH

  • The prevention and punishment of disaffection within the CTH against the govt or Constitution of any other dominion may reasonable be thought by Parliament to constitute an element in the preservation of friendly relations with other Dominions

• Note: The whole issue in this case on considering other nations in the British dominion follows a practice of treating the term “external” affairs as encompassing those nations outside of the Dominion (“foreign” affairs)

The statements in R v Sharkey about “preservation of friendly relations..” was taken further by Brennan J in Koowarta v Bjelke-Petersen to relations with “other international persons” incl. International organizations (e.g. UN)

New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337

• Facts: The issue arose as to whether s 51(xxix) entitled the CTH to assert its sovereignty over the Australian territorial sea (the majority agreed it did) and to the extent of the application of the Geneva Convention (McTiernan solely applying it and Jacobs J refusing to). All of them did agree that assertion of sovereignty over a continental shelf was within power since the idea of rights over them emerged distinctly as a product of international relations and international law

• Stephen J:

  • Not only does external affairs include treaties but other matters of non-consensual character – conduct of a nation and its nationals that affect other nations and its relations with them are also included

Thomas v Mowbray (2007) 233 CLR 307

• Facts: The issue arose as to whether terrorist attacks under Pt 5.3 of the CCC fell within the definition of external affairs. The relevant provisions criminalized intimidation of the public/section of the public of a country outside of Australia.

• Gummow and Crennan JJ

  • XYZ v CTH – Gleeson CJ accepted that the external affairs power at least includes powers to enact laws in respect of matters affecting Australia’s relations with other countries

  • The “commission of terrorist acts”, even if before were not, are such a matter – they cited Suresh v Canada for reasons of this change in approaches:

    • Global transport and money which feed terrorism

    • Terrorism being a worldwide phenomenon focussing on a distant locale

    • Preventative action can be justified as protecting from not only immediate but future risks

    • National security can be promoted by reciprocal co-operation with other states in combating international terrorism

• In dissenting, Kirby J agreed that terrorism was a matter of concern to the community of nations but held the provision invalid since they did not affect “international relations”

Barwick CJ in the Seas and Submerged Lands Case said the external affairs power extends to anything “which in its nature is external to...Australia” – this was reinforced in Polyukovich

Toohey J concurred with Brennan J that there had to be some sort of connection but found this in the mere fact of Australia’s involvement in WWII

Gaudron J agreed that such “external affairs” have to have an element of national interest/concern but that the decision to legislate shows conclusively that this was present

Just as the majority in Horta imply that externality is enough, in Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416, the joint judgment quoted Dawson J in Polyukovich as “now...representing the view of the Court”

• BUT in XYZ v Commonwealth (2006) 227 CLR 532 a challenge to the “externality” principle was rejected by 4 judges; 2 of the judges accepted the challenge and Kirby J left the question open.

• Facts: The plaintiff faced prosecution for sexual offences committed in Thailand contrary to provisions of the Crimes Act 1914 inserted by Crimes (Child Sex Tourism) Amendment Act.

• Gleeson CJ, Gummow, Hayne and Crennan JJ – reaffirmed the externality principle and upheld the legislation

• Kirby J doubted the principle but did upheld the law as “one with respect to the international relationships of Australia with other nation states and international organizations”

Even if the challenge to the principle was successful it doesn’t mean that Polyukovich and Hrota would have been overruled since the challenge didn’t extend to the narrower version of “externality” accepted by Brennan and Toohey JJ.

• In Horta the joint judgment mentioned the “substantial nexus” of the issue with Australia and in Polyukhovich the plaintiff was an AU citizen and the charges arose out of events in the Soviet Union to which AU was allied during WWII

• Hence in both cases the legislation “touched and concerned” Australia and hence the narrow reading would have been sufficient

• Kirby J...