4. External Affairs Flashcards
4 modes of external affairs under s51(29)
Modes of s51(29)
* extraterritoriality
* relations with other countries
* treaty implementation
* “international concern” (not necessary for this course)
Extraterritoriality
Polyukhovich (1991)
XYZ v Commonwealth (2006)
Majority decision that no need of nexus under s51(29) - Australia therefore has plenary extraterritorial power to legislate and enact laws regarding things outside Australia.
Enforced by XYZ v Commonwealth (2006): minority argued in originalist approach, “external affairs” meant something different in 1901 - it did not mean “foreign affairs”. So it would be odd for Australia to have power to legislate on all matters external to Australia?
Relations with other countries
R v Sharkey (1949)
XYZ v Commonwealth (2006)
Koowarta v Bjelke-Petersen (1982)
Thomas v Mowbray (2007)
Cth can legislate with respect to relations with foreign nations.
In R v Sharkey, the creation of the offence of sedition, which prohibited excitement of disaffection against the governments of the UK/King’s Dominions was a valid exercise of power under s51(29) for preservation of friendly relations with other Dominions.
In Koowarta v Bjelke-Petersen (1982), it was held that the principle extends to international persons such as the UN and other intergovernmental organisations.
In XYZ, Cth’s child sex tourism laws was held valid, as the law concerned Australia’s relations with the nations in which the offences occurred (Thailand) as well as with the UN Committee on the Rights of the Child (578-579).
* Minority decision: As there was no evidence that the conduct in question had worsened Australia’s relations with other nations (605). Claimed that this law may adversely affect relations, as an intrusion into the sovereign affairs of other nations (assumption that the head of power s51(29) must always improve foreign relations - not just the ties).
In Thomas v Mowbray, when considering the definition of “terrorist acts” for federal law - destructive acts or threats designed to coerce foreign governments or intimidate public in other countries - 3 judges found that application of anti-terrorism laws against terrorist threats in other countries fell within HOP s51(29).
Implementation of Treaties, regardless of subject matter
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Commonwealth v Tasmania (Tas Dam case) (1983) 158 CLR 1
Richardson v FOrestry Commission (1988) 164 CLR 261
Cases have confirmed Australia can in fact implement international treaties it has ratified into legislated domestic laws, regardless of subject matter.
In Koowarta v Bjelke-Petersen, the majority view was that the Cth had power to implement any treaty obligation regardless of subject matter under s51(29). The reasoning was because if Cth didn’t then the international obligations would be handed down to the individual States as well, which reduce the Cth legislative power to implement the treaty fully. Having a division of responsibility betwen the Cth and each States would seriously weaken Australia’s stance and standing in international affairs (225, Mason J).
Minority believed that it should only be possible if subject matter of treaty was extraterritorial. Protection of people within Cth jurisdication was not part of that.
In the Tasmanian Dam case, majority confied that s51(29) granted Cth legislative power to incorporate all treaty obligations into Australian law, which allowed them to enact a law to implemment the UNESCO World Heritage Convention to prevent the construction of a dam by the Tas Governement on protected heritage land.
Richardson case gained unanimous acceptance by the court that the Cth can implement all its treaty obligations regardless of their subject matter, under s51(29).
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 - Racial discrimination issue
An issue is to what extent does that Cth have power to incorporate international treaties (which it is a party to) into domestic law? This is an important issue because if the Cth can implement law on any topic from treaty, then it would undermine the legislative powers of the States and give unlimited legislative power to the Cth. This was the main argument of Gibbs CJ in Koowarta - the federal balance achieved by the Constitution could be entriely destroyed.
Effect of international treaties on Australian law
- If party to treaty, Australia is bound in international law to oblige
- Does not however become enforceable in domestic law unless treaty is specifically incorporated into a domestic law by Parliament (International Covenant on Civil and Political Rights 1966 (ICCPR) for example)
- Unincorporated treaty can have effect on a judge’s interpretation of domestic law, as long as the domestic law does not contradicts international law (DL prevail unless unconstitutional)
Judge’s interpretation: “The Australian Use of International Human Rights Norms: From Bangalore to Balliol - A View from the Antipodes” (1993) 16 University of NSW Law Journal 363, Kirby J.
Limits to treaty implementation
Bona fide ratification
Federal government should ratify treaties in good faith
Koowarta, 260
Does the treaty need to use obligatory language? (not sure yet) Does it use obligatory language?
Not necessarily, but undecided. As treaties are often drated in broad language, Justices will not read the words of a treaty pedantically in orer to establish the existence of an obligation.
Dams
Richardson
Specificity principle (ILO)
Victoria v Commonwealth (ILO case) (1996) 187 CLR 416
The law must prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken by the States (ILO, 486).
Aspiration alone is not enough. A bare duty to “combat HIV/AIDS” is not specific enough to pass the ILO test. However, the duty can change over time as knowledge advances. The line between sufficient/insufficient specificity can be argued both ways (ILO).
Comformity principle
(Richardson)
Comformity principle dictates that legislation will not be authorised as an exercise of treaty implementation if it plainly undermines the object and purpose of the treaty.
The questions is whether the law selects means which are reasonably capable of being considered appropriate and adapted to achieving the purpose or object of giving effect to the treaty (ILO, 486-488).
Where a treaty relating to a domestic subject matter is relied on, the validity of the law depends on whether its purpose or object is to implement the treaty (ILO, 486-488).
Judicial ambiguity on “proportionality” - as seen in divide in Richardson.
Extraterritoriality
- External: It is outside the georgraphical limit of the country
- Affairs: Places, persons, matters or things
- Nexus to Australia: not necessary
Test for Implementation of treaties
- Kind of Treaties
Obligation
* External affairs power does not enable the Parliament/Cth to make laws with respect of any matter from an international convention to which Australia is a party if that convention imposes no obligation on the Cth (Tas Dam case, 106).
* If only a recommendation is given by treaty, Cth can only persuade the States to give effect to the recommendation by exercising legislative power they possess.
* As international agreements are not commonly expressed with precisely, but this does not mean absence of obligation.
Benefits - no clear binding opinion
Vague aspirations - need sufficient specificity to direct general course to be taken (Industrial Act)
** Recommendation** - no clear binding opinion. However, the joint judgement in Industrial Act
- Scope of the treaty
* Any genuine treaty on any topic can be implemented
* Conformity and reasonable proportionality - wider departure from purpose of treaty is not permissible, deficiency in implementation is not fatal unless it is so substantial as to deny the law the character of a measure implementing the treaty - Aspect of the power
- Proportionality
Roles and power of the exec and legislative branches
Fed Exec: The Crown represents the nation in the conduct of foreign affairs and possesses the perrogative power to enter into international treaties.
Legislative: Treaties must be incorporated through an implementing statue enacted by the parliament.
