Week 10: External Affairs

s51xxix: Commonwealth parliament can make laws with respect to external affairs. Note also s51xxx "Commonwealth can make laws with respect to the relations of the Commonwealth with the islands of the pacific", appears to be subsumed in para xxix.

General scope of the power (apart from implementing treaties):

Usually deals with its use in implementing treaties. It is worth noting first that the power enables Parliament to legislate generally with respect to matters external to Australia and relations with other countries. Specific examples are laws dealing with: (i) Australia's claim to sovereignty over the continental shelf and slope (Seas and Submerged Lands Act case) - because it dealt with a matter external to Australia (per Barwick CJ and Mason, Jacobs and Murphy JJ) or perhaps because it could affect our relations (Gibbs J); (ii) the extradition of fugitive offenders (McArthur v. Williams (1936) 55 CLR 324) or the extradition or deportation of aliens (Robtelmes v. Brenan (1906) 4 CLR 395); (iii) the prevention of sedition against the government of a sister-Dominion (or, presumably, any other nation) R. v. Sharkey (1949) Facts: S had been convicted of sedition under s24D(1) Crimes Act Cth, with respect to seditious material alleged to intend to excite disaffection against the government in any of the Kings Dominions. HC held s24D was valid under the external affairs power because it was concerned with the relationship of the Cth with other countries. The preservation of friendly relations with other Dominions is an important part of the management of the external affairs of the Cth. (iv) the recognition in Australia of rules of customary international law (dicta in Koowarta and the Dam case). It has also been held by three of a bench of seven that the power extends to: (v) the termination in Australia of the operation of an Imperial Act Kirmani v. Captain Cook Cruises (1985) Held: High Court ruled the Commonwealth could legislate the Navigation Amendment Act under the external affairs power to repeal provisions of the Merchant Shipping Act (UK) which extended to Australia. Mason, Murphy, Deane JJ: the NAA was supported by s51xxix; "the expression 'external affairs' was adopted in preference to 'foreign affairs' so as to make it clear relationships with the UK were included. Deane J: A law repealing the local operation of a UK Act is a law for the peace welfare and goog government of Australia with respect to external affairs, since relation of the Commonwealth with other dominions are matters falling directly within the subject of external affairs. (Note now effect of Aust Act) Gibbs CJ, Wilson, Dawson JJ (dissent): The Commonwealth could not repeal the MSA under the external affairs power. Gibbs CJ said that an act of the Commonwealth which denies recognition to a foreign law which purports to affect things done in Aust but which is not part of the law of Australia is a law with respect to external affairs. He said here the act did not deal with the relations between Australia and the UK but dealt with the law of an Australia State. The fact that the power extends to any matters external to Australia has been emphasised in two recent cases.

A. General Lack of Limitation

Prior to the adoption of the SoW the High Court was vary cautious about the ability of the Commonwealth to legislate XT. Merchant Service Guild of Australasia v Cth Steamship Owners (1920) Held: that s51.35 did not authorise the Commonwealth parliament to make laws for settlement of industrial disputes over conditions of employment outside Australia, only to make laws with respect to conciliation and arbitration extending beyond one state. But there are some laws under s51 which the High Court held have necessary implication of Extra Territorial powers. Crowe v Commonwealth 1935 Held: that s51.38 (external powers) implies Extra Territorial operation. Then the Cth adopted the SoW in 1942 (retrospectively to 1939). s3 provided that the Cth had full power to make laws having Extra Territorial operation. The principle of the Merchant Service Guild case was then reopened in: R v Foster; Ex Eastern and Australian Steamship 1959 Held: that laws made pursuant to s51.35 are valid and not territorially limited. Dixon CJ: "it cannot be invalid for Extra Territorial due to s3 SoW. And since the adoption of the SoW there can be no objection to the validity of a law of the Cth that purports to operate outside Australia. The result may be an enlargement of federal power but the SoW cannot object."

B. Extra Territorial Use of the External Affairs Power

s3 SoW expressly declares the Commonwealth can make laws having Extra Territorial operation (and provided there is a relevant head of power the Commonwealth can make Extra Territorial laws) NSW v Cth (Seas and Submerged Lands Case) 1975 Facts: Commonwealth passed the Seas and Submerged Lands Act to implement 2 international conventions to which Australia was party. s6 vested the Commonwealth with territorial sea rights. The treaty's recognised that at that time Australia's territorial sea extended 3 n. miles out from the low water mark. Commonwealth sovereignty was also vested in the continental shelf. The states sought declarations the acts were invalid. The HC in a 5:2 majority held the Act was valid primarily because the act gave effect to the international conventions and was therefore a law with respect to external affairs. On the scope of the Cth to legislate external affairs... Barwick J: The external affairs power extends to any affair which in its nature is external to the continent of Australia and the island of Tasmania, subject always to the Constitution as a whole. ie can inc foreign affairs, external affairs ... Mason J: external affair = matters and things geographically situated outside of Aust, as well as relationships, and a constitutional grant of plenary legislative power should be construed with all the generality which the words used admit. Jacobs J: the Cth has the power to make laws with respect to any person in any place outside and any matter or thing done or to be done or prohibited to be done outside the boundaries of the Cth, in exercise of its sovereignty. Does this mean that the Cth could legislate about anything outside Australia (provided there is a head of power)? YES Does there need to be a connection? NO Dicta from this SSLAC suggests the Act was valid simply because it applied outside Australia confirmed by the latest decision in this area. Polyukhovich v Commonwealth Facts: s.9 of the War Crimes Act 1945, as amended by the War Crimes Amendment Act 1988 provided that a person who committed a "war crime," as defined, between 1 September 1939 and 8 May 1945 was guilty of an indictable offence under the Act. For the most part, the Act dealt

with act done outside Australia and the allegations about the Plaintiff related to acts done in the Ukraine during World War II. Held: That s.9 of the War Crimes Act 1945, as amended by the War Crimes Amendment Act 1988 was valid in relation to the Plaintiff. Mason CJ, Deane, Dawson, Gaudron and McHugh JJ adopted a wide view of laws which were with respect to external affairs and accepted that such laws could validly deal with all matters, persons and things external to Australia. Mason CJ said that it was not necessary that Australia have an interest or concern in the subject matter of the legislation. Dawson J also said that there was no need to find any relationship between those external matters and Australia and that externality alone is sufficient. [Compare Dawson J's wide approach here with his much narrower approach when dealing with treaty implementation where he has evident concern about Commonwealth encroachment on areas of State power.] Toohey J, also forming part of the majority, took a narrower view of externality and was of the view that there had to be some connection between the external matter, person or thing and Australia. However, His Honour found this to be satisfied here because it was a matter which touched and concerned tha national interest in Australia. Brennan J dissented. Like Toohey J, His Honour said that there had to be some connection between the extra-territorial matter, person or thing, even if the connection was not substantial. In the circumstances here Brennan J could not find that the prosecution of war criminals for actions taken in Europe during World War II had that status. Horta v. Commonwealth Held: that Australia had power to enter into a treaty with Indonesia in respect of the waters between Australia and East Timor both as an exercise of the treaty-making aspect of the power and because the subject of the treaty was external to Australia, regardless of any argument that the treaty was in breach of international norms.

Implementation of treaties:
It is clear that in international affairs Aust is and can only be represented by the Commonwealth - Barwick CJ SSLAC: "Whilst the power with respect to external affairs is not expressed to be a power exclusively vested in the Commonwealth it must necessary be so as to international relations and affairs. Only the Commonwealth has international status. The colonies never were and States are not international persons." Under the external affairs power Australia commonwealth has access to international treaties. These treaties can deal with any subject matter. But under Aust law, signature of a treaty and ratification of a treaty has no effect on the law of Australia (PC in AG for Canada v AG for Ontario). In Koowarta Stephen J noted that "the exercise of treaty making was not to create municipal law." The Commonwealth enters into may treaties which may place Australia under obligations at international law, but they cannot become part of our internal law ("municipal" law, in international lawyers language) unless enacted by Parliament - note Bradley v Commonwealth Under international law the adoption by a nation of a treaty obligations may involve several stages 1. negotiation between the parties 2. representatives may initial the text as correct for subsequent signature. 3. The text of the treaty is signed by the persons with full powers from each head of state (in Australia the Minister for Foreign Affairs) 4. Ratification may be necessary (though in Australia this is the exception rather than the rule, as signature is generally enough) Elements 1. Is there a valid treaty; 2. Is Australia a signatory; and

3. Can the Commonwealth rely on a treaty to legislate in an area that would otherwise be a State concern. To the extent that the subject matter of a treaty falls within the Commonwealth's area of legislative power (eg posts and telegraphs, interstate or overseas trade), the Commonwealth can implement it whether or not it claims to rely on the external affairs power. The controversies arise when the Commonwealth relies on a treaty to legislate in an area which would otherwise be within the residue of State powers, ie the issue is how far the Commonwealth can legislate with respect to the subject matter of the treaty. There is a long running conflict between a wide view that any bona fide treaty could be implemented by Commonwealth law, and a narrow view that the power could only relate to matters "indisputably international in character" (note Burgess and Koowarta, and middle view suggested by Stephen J in Koowarta that the matter must be one of "international concern".) R v Burgess; Ex Henry Facts: Question of the validity of the Air Navigation Act, which empowered GG to make regulations pursuant to the Paris Convention. Held: Court unanimously found it was valid, and that the Commonwealth Parliament could legislate to implement the provisions of the convention, even though some of the provisions fell within matters otherwise within the competence of the states. Different Views: Broad View: Evatt, McTiernan JJ (Latham CJ had similar views): its no longer possible to assert that there is AN Act subject matter which must necessary be excluded from the list of possible subjects of international negotiation, international dispute or international agreement. And the fact an international convention has been made about a subject brings that subject within the field of international relations so far as such subject is dealt with by the agreement. They implied that in order to provide the basis for legislation under s51xxix a treaty must no be "merely a device to procure for the Cth an additional domestic jurisdiction" Narrow view: Dixon, Starke JJ: the Paris convention dealt with matters indisputable international in character - international recognition of sovereignty over air traffic - and accordingly the Commonwealth parliament could legislate so as to implement its terms even on the relatively narrow view of s51xxix. All agreed that when the Commonwealth parliament claimed to implement an international treaty "the partic law or reg which are passed by the Cth should be in conformity with the treaty which they profess to be executing." R v Poole; Ex Henry #2 Held: Rich J: a law for carrying out and giving effect to a convention need not be a reproduction of the rules contained in the Convention. Starke J: within reason it is for the discretion of the law making body to determine the appropriate and effective means of carrying out and giving effect to a Convention. Airlines of NSW v NSW No 2 Issue: was the validity of Air Navigation Regulations made under the Commonwealth constitution pursuant to the Chicago Convention. Held: (unanimously) that the Commonwealth parliament could legislate to implement the Convention (or authorise regulations for implementing the Convention) Barwick CJ, McTiernan, Menzies, Owen JJ majority: the regulations were directed toward implementing the treaty and were thus valid. Barwick noted that: "choice of legislation means by which to implement the treaty is up to the Commonwealth parliament, but it is for the High Court to determine whether such provisions are appropriate and adapted to the means."

Kitto, Windeyer, Taylor JJ minority: decided the regulations did not allow the Commonwealth to discharge obligations consequent upon the treaty. They said that the legislation must implement a treaty obligation, and that here the legislation failed to do so. Note SSLAC where the court held that Act was valid because it gave effect to 2 conventions, as well as the fact it was supported by s51xxix. Koowarta v Bjelke-Petersen 1982 HC Facts: In 1975 Aust ratified the International Convention on the Elimination of Racial Discrimination. In 1975 the Commonwealth parliament enacted the Racial Discrimination Act (RDA) pursuant to the treaty. In 1976 the Qld Minister for Lands refused to approve the transfer of certain land to Aboriginal control on grounds of government policy opposing aboriginal acquisition of large areas of freehold or leasehold land for development by aboriginal groups in isolation. Koowarta, a member of the aggrieved clan in question brought an action under the RDA claiming the Premier of Qld had breached the act. The Premier argued the RDA was invalid and that K had no standing. Issue: could the commonwealth parliament rely on s51xxix to enact a law in the execution of a treaty (to which it is a party) whatever the subject matter, and in partic for the execution of a treaty which deals with matters that are purely domestic involving no relationship with other countries. Stephen, Mason, Murphy JJ majority: argued s51xxix should be read so as to allow the Commonwealth to legislate on matters of international concern even where those matters were not included in a treaty to which Aust was a party. (upholds Sharkey) s51xxix allows Aust to enter into and ratify treaties, tho we must enact them into legislation in order to give them effect. (Mason J thought that a qualification to this was that the treaty must be genuine) The exercise of this power is subject to the express and implied prohibitions in the constitution. eg ss92, 116, 128 He said the issue here was whether the law was with respect to external affairs, not whether it was with respect to internal affairs (and that a law may have both qualities ie in Burgess the law was external because it related to the carrying into effect of the treaty, and internal because the legislation was internal, operating substantially domestically. Thus a law can be external even tho it has internal operation) He said that as every nation stands to benefit from the elimination of activity which may contribute to the disturbance of international peace and security by way of reducing racial oppression, it was an international and external matter. He concluded that s51xxix extended to the implementation on the Convention because it was an international treaty binding Aust to enact domestic legislation to eliminate racial disc. Brennan J said that where a partic aspect of internal legal order of Aust is made the subject of a treaty, that is a powerful indicator that the subject affects the relations of the parties to the treaty, and stamps the subject of the obligation with the character of an external affair. It follows that to search for some further quality in the subject "indisputably international" is not need. The international quality of the subject is established by its effect or likely effect upon Australia's external relations and that effect or likely effect is sufficiently established by the acceptance of a treaty obligation with respect to that subject. He said however that any colourable attempt to enter a treaty merely to expand the Commonwealth's internal powers would fail because in truth the subject matter of the legislation would not affect or be likely to affect Australia's relations with other nations. Stephen J: said that the Commonwealth could only implement those treaties which dealt with a subject matter of "international concern", [will our standing in the international community suffer if we fail to legislate?] but this was rejected by the other 6 J. However he upheld the validity of the RDA (and so was a majority J)

Gibbs CJ, Wilson, Dawson Minority: The section of the RDA in Q were not valid. It has never been doubted that that s51xxix is wide enough to empower the Commonwealth parliament, in some circumstances at least, to pass a law which carries into effect within Aust the provisions of an international agreement to which Aust is a party. There is no question of Australia's power to enter Conventions and treaties, although the treaties must be given effect by statute in order to give rights or impose duties. Gibbs CJ said if that the view was taken that the Commonwealth had power to carry into effect any treaty it was a part of it meant the executive could by its own act determine the scope of Commonwealth power, and acquire unlimited legislative power, eventually obliterating the distribution of powers under the Commonwealth Constitution, and destroying the balance achieved by the constitution. Wow! Gibbs CJ said thus it was apparent that a narrower interpretation of s51xxix would be more consistent with the federal nature and more calculated to carry out the true object and purpose of the power which is expressed to relate to external affairs (not internal or domestic) He rejected the view of Evatt & McTiernan JJ in R v Burgess. He said here the implementation of the treaty with respect to internal domestic affairs had no relationship with external affairs power and that the RDA was invalid. However note that Gibbs CJ repeated these views in the Tasmanian Dam case. Is that an echo I hear in the High Court? The broad view gained Victory in the Dam case. Tasmanian Dam case (Tas v Cth) 1983 Facts: Australia ratified a UNESCO Convention for the Protection of the World Cultural and Natural Heritage in 1974. In 1981 the Tas Premier requested the Cth to select 3 parks for World Heritage Listing, which it did, and they were listed. In the meantime the Tas Parl had enacted the Gordon River Hydro-Electric Power Development Act 1982 auth the Tas HEC to construct a dam on the Gordon River within the national parks nominated for listing in the World Heritage List. Construction commenced in 1982. In 1983 the Commonwealth GG enacted regulations under the National Parks and Wildlife Conservation Act prohibiting the construction of a dam or associated works, in the area covered by the Tas legislation, except without ministerial approval. Then the Commonwealth enacted the World Heritage Properties Conservation Act (partic s9), prohibiting certain things like building dams, earthworks etc without Ministerial consent. The GG issued a proclamation pursuant to this legislation that the legislation applied to the land where the dam was being constructed. The Commonwealth began proceedings seeking a declaration that the Franklin Dam was unlawful, Tas argued the Commonwealth legislation was invalid. Held: Majority: concluded that the Commonwealth parliament could legislate so as to implement for Aust any international obligations which the Commonwealth had assumed under a bona fide international treaty, and that the subject matter of the obligation, which might otherwise lie outside the powers conferred on the Commonwealth parliament, was not relevant to this position. It cleared the way for significant expansion of Commonwealth legislation authority, but did not represent unequivocal endorsement of Commonwealth legislation hegemony. Deane J: he accepted and approved R v Burgess. A law cannot be characterised as a law with respect to external affairs if its direct operation is upon a domestic subject matter which is not in itself within the ambit of external affairs and if it lacks the partic operation which justifies such characterisation. Thus a law would not be a law with respect to external affairs if its failed to carry into effect or comply with the partic provisions of a treaty which it was said to execute (Burgess) or if the treaty which the law was said to carry into effect was demonstrated to be no more than a device to attract domestic leg power (Burgess). The law must be considered as being reasonably appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs. Thus there must be

reasonably proportionality between the laws designated purpose and the means the law tries to achieve this. He said that s51xxix confers on the Commonwealth general legislation power necessary for carrying the Convention into effect including the power to make laws for procuring the performance within Aust of all or any of the obligations assumed by Aust under it. He held the World Heritage Regulations valid, because they were capable of being considered as an implementation of the Convention (principally because of the extremely wide restrictions which they imposed applied only in that area of the national parks where the HEC were constructing a dam) But certain paras of the Act could not be supported by s51xxix because they applied to all land proclaimed regardless of their appropriateness for the purpose of protecting or conserving the property and regardless of whether any relationship existed between any of the prohibited acts and the likelihood of damage to the property - there was a lack of "reasonable proportionality" between those provisions and the purpose of protecting and conserving the relevant property and thereby complying with obligations under the Convention. But Brennan J had a slight qualification of the broad view: any international obligation can be enforced internally under the power, but other matters (acceptance of benefits?) might be subject to the required that the topic be one of international concern. (He did not see the World Heritage Convention as dealing with a matter of international concern, nor did Gibbs CJ who said that conservation was not a burning international issue such that Australia's failure to take protective measures would affect its relations with other nations.) Mason J Brennans concept raised no real barrier to the implementation of international agreements as the existence of international character/concern is est by Australia's entry into the convention or treaty. Nearly all the J's who have adopted the broad view have qualified it by the requirement that it only applies to the implementation of treaties which are "bona fide" or "not merely colourable", but Gibbs CJ noted in Koowarta that this qualification was "at best a frail shield".

Are the provisions of the Act sufficient related to the treaty

Once it is established that the Commonwealth has the power to implement a partic treaty, there is a further requirement that the provisions of the act be sufficiently related to the terms of the treaty., ie conform with the treaty. Note that even in the recent Dam and Lemonthyme cases the divergence of views between those who required a "reasonable proportionality" between the Act and the purpose of the treaty, and those who accept any measure which can be seen to be a "reasonable and appropriate means" of achieving the purpose. The latter view now commands majority support. Tasmanian Dam case Held: The legislation which implements a treaty must conform to that treaty. Brennan & Deane JJ said the legislation enacted under the Convention was that which could be "reasonable considered conducive to the performance" of the obligation imposed by the Convention, or that which was capable of being reasonable seen to be "really and not fancifully, colourably or ostensibly" referable to the purpose of the Convention. Applying this approach they found that certain parts of s9 went beyond what was required to implement the Convention and were invalid, but otherwise the rest of s9 was a valid law with respect to external affairs. (See Deane above) The law must be considered as being reasonable appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs. Thus there must be reasonable proportionality between the laws designated purpose and the means the law tries to achieve this. Deane J Mason J said the legislation must be appropriate and adapted to the desired end. Murphy J required the legislation to be reasonable regarded as appropriate for implementation of provisions of the treaty. Richardson v Forestry Commission 1988

Facts: An act pursuant to the same Convention in the Tas Dam case was under fire. Was it valid. (YES) Held: The court endorsed the Tas dam case that s51xxix will support Commonwealth legislation which discharges obligations imposed on Australia by an international treaty, what ever the subject matter of the obligations. They held the protective provisions of the Act amounted to an implementation of the Conventions obligations. Dawson J said the question thus was whether the legislation was reasonable capable of being considered reasonable appropriate by the legislature for the discharge of the Conventions obligations. Deane J required that there be "reasonable proportion" between the legislation and the purpose of protecting potential world heritage areas, a test which the legislation failed. Toohey ( and similarly Gaudron) required the legislation viewed objectively, must be capable of being reasonable considered appropriate and adapted to the implementation of the Convention. Qld v Cth (The Rainforest case) Facts: This case turned on the question of whether the High Court could review a recommendation by Australia for listing an area as part of the natural heritage, and the listing by World Heritage Committee. Held: The court held that under the terms of the Convention the listing concluded the issue.

Less formal international decisions:

International bodies such as the International Labour Organisation (ILO) and the United Nations Educational, Scientific and Cultural Organisation often pass resolutions or make recommendations which do not (immediately at least) become formally embodied in a Treaty or Convention. The Commonwealth Parliament has not yet tried to implement any of these in reliance on the external affairs power. Dicta of Evatt and McTiernan JJ in Burgess and Murphy and Deane JJ in the Dam case suggest that such laws could be within the power. Victoria, SA & WA v. Commonwealth (IR Case) 4th Sep 1996 Conventions of ILO - Minimum wages, equal remuneration for work of = value, termination of employment, parental leave, discrimination in employment, the right to strike and engage in industrial arbitration. Exceptions as to termination of employment - caused a shifting of onus and an additional requirement not in convention - Beyond. Discrimination - a provision as to disability - did not appear to be supported by convention. Strikes - a provision which related to an employer lock out was not adapted to a right to strike. All others were okay. Implementation - A treaty with little precise content and widely divergent policies may not be easily implemented but absence of precision is not an inherent impediment. As long as there is some indicia as to implementation. Brennan + the rest T G M G: was the lead judgment. Said the "notion of "reasonable proportionality" will not always be particularly helpful. Not was he but he set this as the upper limit to the test and continued by saying definitely "not substantially inconsistent". So it is somewhere between those two marks.

Inherent "Nationhood" Power again

In the Seas and Submerged Lands Act case several Justices suggested that even in the absence of an express external affairs power the Commonwealth would have inherent power, as a sovereign power in international affairs, to claim sovereignty over off-shore seas and lands. However, in

the legislation challenged in the Dam case the Parliament had included a provision (para. 6(2)(e)) applying to conservation matters which were "particularly appropriate [to] the national parliament and government of Australia". Four Justices mentioned this paragraph and all ruled it invalid. (c) 1996. Ian Connor. <- Back