* Discuss the impact of international declarations and treaties on the the interpretation of the external affairs power.

Question 1

Outline what a treaty is with a relevant example.

Answer 1

A treaty is an agreement between countries to be bound by international law. When a country signs a treaty it agrees to adopt the treaty and incorporate its conditions into its nations law.

An example is the convention for the protection of the World cultural and natural heritage, which means that the commonwealth is obligated to protect any environmental areas on the world heritage list.

Question 2

Outline what a declaration is with a relevant example

Answer 2

A document that outlines a set of standards that nations agree to follow but are not legally bound to implement. For example, the United Nations declaration of human rights, which Australia agreed to follow.

Question 3

Whats an international treaty?
Give an example.

Answer 3

An international treaty is a legally binding agreement between countries in which they agree to follow the obligations set out in the treaty and include them in their local laws.

An example is the world heritage convention.

Question 4

What is the external affairs power?

Answer 4

• This power is contained under section 51 (xxix), outlining that the Australian government has the power to make laws in relation to “external affairs”.

The external affairs power gives the commonwealth parliament power to make legislation that reflect the international agreements that Australia has entered into. International agreements include treaties and declarations.

Question 5

What is ratification?

Answer 5

When parliament sets out laws that adopts the rights and responsibilities set out in the treaty, confirming its approval of the international treaty set out by the government.

Question 6

What kind of power, in terms of the separation of powers, is the exercised when entering into international treaties?
According to which Section of the Constitution?

Answer 6

the power to enter treaties is considered an executive power
S61

Question 7

Does the executive have the right to remove itself from the obligations under a treaty if it considers that the treaty no longer serves Australia’s interests?

Answer 7

yes

Question 8

When does a treaty become an Australian law?

Answer 8

Can only become a statue if the parliament passes legislation that includes the provisions set out in the treaty.

Question 9

List some facts of the Tasmanian dam case.

Answer 9

• In 1974, the commonwealth government signed a treaty called the convention for the protection of World Cultural and Natural heritage, which meant that they had to protect any environmental areas on the World Heritage list.
• In 1982, the Tasmanian government passed legislation to construct a dam on the franklin river. The environmental impact of this worried many people.
• Shortly after this, the franklin river was listed on the World Heritage list.
• As the commonwealth parliament had signed an international treaty to protect any area listed on the heritage list, it passed legislation that prohibited the construction of the dam.

Question 10

What was the issue of the case? What did Tasmania do?

Answer 10

Tasmania challenged this legislation as it argued that the commonwealth parliament did not have powers in the constitution to make laws relating to environmental or electrical production. Instead Tasmania argued that this was an area of residual law making.

Question 11

What was the decision?

Answer 11

The high court decided that the commonwealth could pass legislation preventing the construction of the dam, as such legislation was an exercise of the commonwealths external power.

Question 12

Why was the case so significant?

Answer 12

this case determined that the commonwealth parliament has the ability to legislate on any mater covered by a treaty, even if it is an area of residual power that was left to the states.

Question 13

What are some of the
impacts of the treaties and declaration on external affairs power

Answer 13

• The external affairs power gives the commonwealth parliament the power to pass laws to give effect to the treaties it has signed with other nations.
• If the resulting legislation enters a topic that is normally within the residual law making power, the legislation is valid.
• The commonwealth parliament must ensure that the legislation accurately reflects the content of the treaty.

Question 14

Limitations of treaties and declarations on the interpretation of the external affairs power.

Answer 14

• The commonwealth parliament cannot legislate beyond what is required to fulfil its obligation under the relevant treaty.

-The international treaty must be genuine. The commonwealth parliament cannot just enter into agreement just to make laws on a particular.

• Any legislation created under the external affairs power cannot limit express rights found elsewhere in the constitution.