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External Affairs Power Notes

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This is an extract of our External Affairs Power document, which we sell as part of our Federal Constitutional Law Notes collection written by the top tier of University Of New South Wales students.

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External Affairs Power A


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 a)

Relations with other countries

In Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1 the HCA refused to abolish the ACP o But in cases after WWII the HCA upheld prosecution of communists for sedition (e.g. R v Sharkey)

R v Sharkey o 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" o Held: s 24A is a valid law with respect to external affairs o 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 affairsThe 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 o 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 o 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 o 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 o 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. o 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 cooperation with other states in combating international terrorism o 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" b)

Matters External to Australia


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 Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 Facts: The issue arose as to whether the CTH could legislate to identify crimes committed in Europe during WWII as "war crimes" to provide for the trial of now Australian citizens who committed them. Everyone except Brennan J held that s 51(xxix) could support such a law. Mason CJ, Deane, Dawson and McHugh JJ held that the mere fact of physically external geographical location brought it within the power. Deane J:

* "It should now be accepted that any law which can properly be characterized as a law with respect to any matter, thing or person occurring or situate outside of Australia is a law with respect to "External Affairs" for the purposes of s



The reason for this is that, since States have no power to legislate with respect to these matters, there would be a lacuna in the combined legislative powers of the Commonwealth and States in this area. And since Australia is an independent sovereign nation, there is no reason to retain such a lacuna in extraterritorial matters (beyond those the constitution expressly or impliedly imposes)
? Since the laws provide for trial/punishment of Australian citizens committing acts outside of Australia, the provisions are clearly laws with respect to matters occurring outside of Australia. They are hence a law with respect to "External affairs" as used in s 51(xxix) Brennan J
? Pointed to the fact that for extraterritorial operation of State law a connexion between the law and the persons, things or events on which it operates - but if the majority judgment holds this does not need to be so for CTH laws.
? His honour disagreed with the "lacuna" argument- suggesting that the powers granted by Constitution can't be extended because of convenience - the scope of the words "external affairs" have to be ascertained from their context and purpose
? His honour disagreed that the phrase encompassed everything outside of Australia, to affairs that had nothing to do with Australia - "There must be some nexus, not necessarily substantial, between Australia and the "external affairs" which a law purports to affect before the law is supported by s 51(xxix)"
? Parliament determines whether such a connexion exists - but if legislative judgment cannot be supported then it will be held to be outside s 51(xxix)
? As a matter of policy his honour suggested that it does not leave a great lacuna in the plenitude of legislative power to deny that a law is not one with respect to external affairs it does no more than affect something unconnected with Australia


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 Horta v Commonwealth (1994) 181 CLR 183 Facts: The court in this case was inconclusive on the idea raised in Polyukovich that the mere fact of geographical externality was sufficient to enliven the power. The case concerned the exploitation by AU and Indonesia of petroleum resources in the Timor Gap which was not within the territorial waters of either - but within both their continental shelves. The plaintiffs challenged the validity purely on the basis of international law, arguing that the relevant treaty was invalid. The Court: Regardless of whether geographical externality is sufficient for s 51(xxix), exploitation/exploration of the Timor Gap for Petroleum resources fallwithin the phrase o Both of these are not only geographically external but there is a substantial nexus between them and Australia - the enactment of the Act demonstrates they are matters Parliament recognizes as touching/affecting AustraliaThe court disposed of the argument that the Acts were void under international law on the basis that the Constitution imposes no such limitation on s 51(xxix) to be consistent with the requirements of International law


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" o 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. o 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. o Gleeson CJ, Gummow, Hayne and Crennan JJ - reaffirmed the externality principle and upheld the legislation o 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. o 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 o Hence in both cases the legislation "touched and concerned" Australia and hence the narrow reading would have been sufficient o Kirby J also saw such a connection in the response of nation states to crimes of universal jurisdiction, and Callinan and Heydon J also thought a broad overruling would not be necessary

The CB writers also discuss an argument against mere externality which critiques the statements of Jacobs J in the Seas and Submerged Lands Case on the idea of a lacuna in Australia's legislative power o It is said this underestimates the States' ability to legislate extraterritorially since the Australia Act and also that anyway States could procudre CTH legislation by request or concurrence under s 51(xxxviii).Gummow, Hayne and Crennan JJ respond that reliance on these ways of filling such gaps assume a theoretical common legislative purpose between states where practically this would be absent


An attempt to rely on externality in Pape v Commissioner of Taxation was met adversely o Argument: The fiscal stimulus package could be supported since the origins of the crisis were geographically external to Australia o Heydon J (joined by Hayne and Kiefel JJ): Didn't completely rejecting the externality principle since it wasn't actually invokedThe externality principle doesn't mean that laws relating to "matters and things within Australia" could be enacted because of a perceived need for it arose from a cause outside AustraliaLaws relating to consequences are not necessarily laws relating to its cause - and if such a law could be enacted most of the s 51 placita would be unnecessary

Note: His honour also stressed that the stimulus was related to an "Australian" economic crisis, Australian jobs - its object was stimulating domestic demand and involved no reference to matters outside Australia. The Act was "directed to internal Australian affairs, not external affairs" o Heydon J also responded tot he argument that the principle had effect because the law would held to ease the GFC outside Australia - he rejected this since the Act was not structured to achieve these effects
? Q: What if these effects were one of the Acts's stated objects?c)

International Law

In Polyukhovich other grounds were relied on to bring the Act within s 51(xxix) - they were only addressed by Brennan J who based his arguments on the fact that the statutory definition of war crimes was different to that under international law o Argument: The prosecution of war crimes was a matter of "serious international concern" or was a response to "resolutions and recommendations of the UN General Assembly" or because international law recognizes a "universal jurisdiction to prosecute perpetrators of international crimes (piracy iure gentium - pirates can be convicted anywhere since it is contrary to the law of nations, a "universal jurisdiction" that Australia could avail itself to as of right o Brennan J: Laws vesting in an Australian court a jurisdiction recognized by international law as a universal jurisdiction are laws with respect to Australia's external affairs.International law recognizes a state to have Universal jurisdiction to try war criminals whether or not they have an obligation to do so and whether or not there is any international concern that they should do soBut the claim to exercising this jurisdiction could only be valid or an international crime as defined by international law - but the


disconformities between laws here was fatal to the CTH's argument o Toohey J: Agreed with Brennan J but was prepared to accept the "universal jurisdiction" even despite the artificiality of the legislation, he was satisfied that it sufficiently evinced an intention to conform to international law The effect of the United Nations Security Council resolutions was considered by Kirby J in Thomas v Mowbray o

Argument: The legislative responses to perceived threats of terrorism were supported by overlapping aspects of the "external affairs power" incl. a claim that the legislation implemented Australia's obligations under SCR 1373 which was adopted by all member states and required members to "take the necessary steps to prevent the commission of terrorist Acts" (para 2(b))


Kirby J: It undoubtedly contains obligations binding on member states and was binding on Australia but para 2(b) was "insufficiently specific" as compared to other treaties. As it uses a "phrase of almost limitless reach...
[that]...does not provide a specific constitutional basis for the Commonwealth to pursue any goal that it might regard as preventative

Implementing Treaties a) Entering into treaties

* The CB writers note that Australia is part of 920 substantive treaties (and 2641 international agreements - most of these are already entered into or have been terminated/replaced)


The power to commit Australia to international agreements lie with the federal executive as an aspect of its prerogative power but reforms in recent decades have ensured that Parliament has some role to play in deliberating

Hilary Charlesworth, Madelaine Chiam, Devika Hovell and George Williams, "Deep Anxieties: Australia and the International Legal Order"


The authors note that until the late 1970s the process of entering treaties was relatively ordered but after which treaties became tabled in bulk - many of them being already ratified, causing Australia to assume new international obligations without any parliamentary scrutiny


As a result of this "democratic deficit" a 1995 Senate inquiry prompted reforms which were introduced by resolution - these included a requirement that all treaties be tabled 15 days before binding action is taken (unless urgent or sensitive), the preparation of national interest analysis for each treaty and the establishment of: the parliamentary JSC on Treaties (JSCOT), the Treaties Council (PM, Premiers, CMs) and the Australian Treaties Library on the Internet


Of the reforms the establishment of JSCOT is pointed to as the most influential o

They work in tandem with the parliament - reviewing treaties within the sitting

period and eventually issuing a report containing their recommendations



Though JSCOT is generally on the side of the government it is not unusual for them to criticize the Government where appropriate; the Coalition government took particular note of the political ramification of ignoring their recommendations


One analysis of its process has pointed out that the committee has been unable to substantially alter the way in which foreign economic policy is made
- but also that its main role has been in trade diplomacy as a tool of political management

The CB writers draw particular attention to the fact that in 2007 JSCOT has been more practiv in issuing reports on specific treaties with general recommendations o

For example Report 95 supported a free trade agreement with Chile and recommended that it be reviewed in 2 years in light of sanitary/environmental concerns and that future negotiations be contingent upon assessing economic, social, cultural, regulatory and environmental impacts


Furthermore certain reports have caused division in party linesReport 100 saw a sharp division on the Kyoto Protocol - the government having outlined the steps it would take to reduce climate change were met with the members of the Committee dissenting, rejecting what they called the "reckless" result of an "inflexible ideological approach"

b) First Approaches

* The most controversial question concerning s 51(xxix) has been the extent to which obligations imposed on Australia as a party to treaties can be carried out under s 51(xxix) by legislation impllimenting treaties in Australia


The view that it does authorize such laws was recently iterated in the Industrial Relations Act Case quoting earlier statements from McKelvey v Meager [1904]
HCA. The first clearest judicial use of it was in Roche v Kronheimer [1921] HCA

R v Burgess; Ex parte Henry (1936) 55 CLR 608 Facts: It was held that the Air Navigation Act was not supported by s 51(i) but was valid insofar as it authorized the making of regulations to carry out/give effect to the IC for Regulation of Aerial Navigation (though the actual regulations were held invalid since they did not adhere sufficiently to the convention. Evatt and McTiernan J in particular went further than the rest of the judges to suggest that the legislative power under s 51(xxix) extended to incorporating recommendations of the International Labour Organization.

Evatt and McTiernan JJ disposed of the argument that the power to effect international

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