External Affairs Power

Question 1

What is a nexus?

Answer 1

Connection b/w 2 places where a law must have a reason to be enacted if it affects the state

Question 2

What are Extraterrestrial Powers?

Answer 2

Parliament legislates w respect to acts or matters beyond its borders

Question 3

What is the ‘nexus requirement?’

Answer 3

• British colonies always seen to have a ‘nexus’ when legislating –> Real nexus is still needed for extraterritorial legislation

Question 4

What are State Limits?

Answer 4

• Extraterritorial power of States may be limited where the exercise of powers interferes unduly w the legislative powers of another State

Question 5

What section allows Commonwealth to legislate w foreign nations?

Answer 5

s.51

Question 6

What are the 4 qualifications the Commonwealth must consider to implement Treaty Provisions?

Answer 6

1. The need for a bona fide ratification = ‘good faith’ (assume good faith if no bad intentions are found)
2. Need for a treaty obligation
3. Need for sufficient specificity –> ILO case (cannot be vague)
4. Need to implement legislation to conform to the treaty requirements –> implementing law MUST conform w the purpose of treaty –> ILO proportionality test

Question 7

Does the Executive have power to ratify Treaties?

Answer 7

Yes –> w prerogative powers

Question 8

Do the States have power to ratify treaties?

Answer 8

No –> lack international personality
e.g. agreement b/w AUS State and another country is seen as ‘international contract’ rather than ‘international treaty’

Question 9

What are the consequences of ratification of a treaty?

Answer 9

• Indicates AUS BOUND by international law
• If a STATE breaches a treaty –> seen as commonwealth broke it since AUS is seen as ‘one’ due to federation

Question 10

Does international law affect AUS Domestic Law?

Answer 10

No –> unless specifically incorporated into AUS law by Parliament
- Can still end up INFLUENCING judge’s interpretation of AUS law

Question 11

The treaties can only be implemented into AUS Domestic Law if it is in ‘good ….’

Answer 11

Faith!

Question 12

Are AUS bound by other international documents?

Answer 12

• Not at all! They are merely ‘aspirational’ such as ‘recommendations, Declaration’

Question 13

What is the significance of the Polyukhovich case?

Answer 13

Confirmed external affairs powers allows Commonwealth to legislate matters outside AUS –> even retrospective cases

Question 14

Significance of XYZ case?

Answer 14

Tested whether Commonwealth could legislate under s.51 Crimes Act overseas (external affairs power)
–> Reaffirmed broad scope of external affairs power under s.51

Question 15

Significance of Koowarta?

Answer 15

Racial Discrimination Act challenged –> statute incorporated provisions of International Convention which AUS ratified
- Majority upheld that Commonwealth could implement ANY treaty obligation regardless of subject matter
- Minority dissented and argued could only implement if it was ‘external affair,’ meaning it concerned extraterritorial matters

Question 16

Significance of Tasmanian Dam Case (lead on from Koowarta)

Answer 16

• Majority upheld Commonwealth’s use of external affair –> reinforce that Commonwealth could implement International treaties into AUS Law

–> Overall expand broad scope of AUS power

Question 17

Significance of ILO case?

Answer 17

Determined whether Commonwealth could pass laws based on International Treaties if they were vague?

• Court suggested that it MUST be specific in its obligations