The External Affairs Power

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This topic is within Federal Constitutional Law.

Contents

Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014) pp.896-908.

Introduction

Section 51 (xxix) confers upon the Commonwealth Parliament the power to legislate with respect to external affairs. This is known as the external affairs head of power. At the time of federation, Australia had strong legal ties to Britain which was not seen as a 'foreign power', and thus this power was probably conferred to legislate with regards to such relevant matters. However, the power has since changed as Australia became entirely independent.

Consequently, the scope of the external affairs power has been subject to extensive judicial and academic debate. The High Court has recognised three limbs of the head of power:

  1. Australia’s relations with other countries
  2. Matters external to Australia (geographically)
  3. Implementation of treaties (‘treaty limb’)

Relations with other countries

Any matter which relates to the relation of Australia with another country (including other dominions) falls directly within the external affairs head of power: R v Sharkey.

  • In addition, even domestic conduct can be validly regulated under the external affairs power if it is necessary to do so in order to maintain good relations with other countries: R v Sharkey.
  • Relations with 'international persons' including contemporary range of international organizations & especially the UN: Koowarta v Bjelke-Petersen.

This limb of the external affairs power was also discussed in NSW v Commonwealth ('Seas and submerged lands case')

  • Extended external affairs power to include territorial sea; Commnowealth Parliament can rely on the external affairs power to legislate with regards to the Australian continental shelf.
  • “It is international intercourse between nation states which is the substance of a nation's external affairs”
  • “"External affairs" will also include matters which are not consensual in character; conduct on the part of a nation, or of its nationals, which affects other nations and its relations with them are external affairs of that nation” – such as those which are in ‘violation of the international community".
  • “I would not think that it is essential to validity that such a law be restricted to the protection of good relations within the King's Dominions”.

And in Thomas v Mowbray:


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Matters external to Australia

There is a view (following Mason J in the 'Seas and submerged lands case') that the external affairs power enables the Commonwealth Parliament to legislate with respect to anything which is merely geographically external to Australia.

This was discussed in Polyukhovich v Commonwealth:[1]

  • Facts: legislation was passed in order to punish Australian who committed war crimes in Europe during WWII. The defendant was accused of committing war crimes in the Ukraine during World War II. The question was whether the Commonwealth was allowed to legislate to matters occurring many years ago in a different territory which didn't really have any connection to Australia.
  • Held: ‘mere geographic externality’ is sufficient to validate the exercise of power.
    • Dissent (Brennan J): "the ‘affairs’ which are the subject matter of the power are ... the external affairs of Australia, not affairs which have nothing to do with Australia... There must be some nexus, not necessarily substantial, between Australia and the ‘external affairs’”.
    • Two of the majority judges agreed on the need for a nexus, however they found that a nexus indeed existed.
    • Still, the rule is that mere externality is enough.

And in Horta v Commonwealth:[2]

  • Facts: Parliament was making laws regarding offshore mining according to a treaty. The plaitniff brought a claim challenging the validity of the treaty and thus claiming that the law is invalid (since it is no longer the implementation of a treaty).
  • Held: first of all, the parliament was legislating wth respect to an area geographically external to Australia and thus the power is engaged - mere externality is enough. In addition, an act which legislates with respect to external affairs is still valid under the power regardless of any international law - it is not for the court to assess the validity of a treaty.
    • The act also does not need to be one which is otherwise under a Cth head of power, however it cannot be contradictory to it.


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Implementation of treaties

International treaties entered into by Australia have no legal effect unless they are then implemented in Australia through normal statutes. The external affairs power could be seen as enabling the Commonwealth Parliament to legislate laws in attempt to implement an international treaty entered into by Australia. This raises the questions of what are the limitations of this power and what relationship must exist in order for it to come into effect.

This was discussed in R v Burgess; Ex parte Henry:

  • Facts: Australia had entered into an international convention regarding airspace safety. A Commonwealth Act gave the Governor General the power to revoke give and revoke licenses (and prohibit flying without them). Henry was a (domestic) pilot who flew his plane after his license was revoked. The question was whether the external affairs power could be relied on because this was an implementation of a treaty, even though the subject matter was inherently domestic.
  • Held: Parliament is empowered to make laws in order to implement treaties regarding any matter and that it does not have to be related to s51. However, the treaties must be made bona fide (as opposed to being a mere excuse to engage the power), and also must comply with any constitutional limits and guarantees.
  • Dissent:
    • Dixon J: the treaties must have an indisputably international subject matter to engage the power, domestic treaties will not grant the Parliament jurisdiction - narrow approach.
    • Starke J: must be "sufficient international significance".
  • Note: although accepting the broad approach, the Court still ruled in favour of Henry since the regulations completely failed to give effect to the treaty.

And also in Koowarta v Bjelkie-Peterson:

  • Facts: The Racial Discrimination Act was passed on the basis that it was an implementation of human rights treaties entered to by Australia. The question here was whether this was a valid exercise of the external affairs power, since the matter involved no foreigners and was entirely domestic.
  • Held: whilst there was a majority finding that, in this instance, the act is valid, no clear ratio emerges from the case.
    • Three judges endorsed the concept that the external affairs head of power entitles the Commonwealth to pass law in order to implement any treaty, regardless of its subject matter (Mason, Murphy, Brennan). Thus, they found the law valid.
    • Stephen J took a slightly narrower view requiring the subject matter to have 'international concern'. He found that this was the case in this instance and thus the law was valid.
    • Three judges opined that the treaty's subject matter had to be 'indisputably international' in order for a law implementing it to come within the external affairs head of power - they found that this was not the case and that the law is invalid.
      • The argument was that this comprises the balance of power in the federal system (taking power away from the states)

And in Commonwealth v Tasmania (Tasmanian Dam Case):[3]

  • Facts: The Commonwealth passed the World Heritage Act, in order to implement an international treaty for the protection of heritage sites. Tasmania opposed the act alleging that this treaty only dealt with domestic concerns and thus was not international in character. They also argued that it would infringe on the States' power to legislate in many areas.
  • Held: the test of 'international concern' is rejected, the implementation of any treaty comes within the external affairs power. Mason J noted that it is difficult to assess 'international concern', and that in any case, the mere existence of an international treaty signifies that a matter is of international concern.
    • Note: the makeup of the court has changed, giving more power to this school of thought from Koowarta.
    • Dissent: three judges continued to endorse the 'international concern' test, and found no such presence in this case.

Richardson v Forestry Commission:

Victoria v Commonwealth (Industrial Relations Case):


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End

This is the end of this topic. Click here to go back to the main subject page for Federal Constitutional Law.

References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

  1. (1991) 172 CLR 501.
  2. (1994) 181 CLR 183.
  3. (1983) 158 CLR 1
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