The High Court and the division of law-making powers Flashcards
The High Court has jurisdiction under section 75 of the Australian Constitution to hear and determine cases involving disputes:
- in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party
- between states, or between residents of different states, or between a state and a resident of another state.
what did the High Court interpret in the tasmanian dam case?
In Commonwealth v Tasmania (1983), the High Court interpreted the “external affairs” power in Section 51(xxix) of the Australian Constitution, which grants the Commonwealth Parliament the authority to make laws concerning “external affairs.”
define international treaty
a legally binding agreement between countries or intergovernmental organisations, in which they undertake to follow the obligations set out in the agreement and include them in their own local laws (also known as an international convention)
international treaties
Definition: An international treaty (or convention) is a formal and legally binding agreement between countries. Treaties are governed by international law and are designed to regulate various aspects of relations between countries, such as trade, human rights, and environmental protection.
Role in International Relations: Treaties play a crucial role in global cooperation and ensure that countries adhere to agreed-upon standards and obligations. They can cover a wide range of issues, from trade agreements to environmental protocols.
Incorporation into Australian Law
Not Automatically Binding: While Australia may sign and ratify international treaties, these treaties do not automatically become part of Australian domestic law. For a treaty to have legal effect within Australia, it must be incorporated into Australian law through legislation passed by the Australian Parliament.
Statutory Implementation: The Commonwealth Parliament may pass statutes (laws) to give effect to the provisions of an international treaty. This means that the treaty’s provisions become part of Australian law only when a relevant statute is enacted.
The “External Affairs” Power
Section 51(xxix) of the Constitution: This section grants the Commonwealth Parliament the power to legislate on “external affairs,” which includes implementing international treaties and agreements.
High Court Interpretation: The High Court has interpreted the term “external affairs” broadly, allowing the Commonwealth to legislate on matters covered by international treaties. This broad interpretation enables the federal government to enact laws that align with international obligations, even if these laws affect areas traditionally managed by the states.
Significance of the “External Affairs” Power
Expanding Federal Authority: By interpreting the “external affairs” power broadly, the High Court has expanded the scope of federal authority. This allows the Commonwealth to address international obligations in areas where it may not have had traditional legislative power, thus impacting various aspects of domestic policy.
Balancing State and Federal Powers: The ability of the Commonwealth to legislate in accordance with international treaties can sometimes lead to conflicts with state laws. In such cases, Section 109 of the Constitution ensures that federal law prevails in the event of a conflict.
Examples of Treaties and Legislation
Environmental Protection: The World Heritage Properties Conservation Act 1983 (Cth) was enacted to implement Australia’s obligations under the UNESCO World Heritage Convention, demonstrating how international treaties influence domestic legislation.
Human Rights: Treaties such as the International Covenant on Civil and Political Rights (ICCPR) influence Australian law, leading to the creation of statutes that protect human rights in accordance with international standards.
In summary…
while international treaties themselves are not directly enforceable in Australian law, the “external affairs” power under Section 51(xxix) of the Constitution allows the Commonwealth Parliament to create laws that give effect to international obligations. This process underscores Australia’s commitment to international cooperation and ensures that domestic law aligns with global standards and agreements.
Impact of the External Affairs Power
Broadened Federal Powers:
Use of Treaties: The High Court’s interpretation of Section 51(xxix) has allowed the Commonwealth to legislate on areas that were previously considered to be within the residual powers of the states, particularly by using international treaties as a basis for federal legislation.
Tasmanian Dams Case: The case expanded the Commonwealth’s power into environmental law, a traditionally state-controlled area, by upholding federal legislation that aimed to protect the Franklin River based on Australia’s obligations under the UNESCO World Heritage Convention.
Precedent Cases: The decision in the Tasmanian Dams Case was reaffirmed in subsequent cases like Richardson v Forestry Commission of Tasmania (1988), which solidified the High Court’s broad interpretation of the external affairs power.
Examples of Commonwealth Legislation:
Human Rights (Sexual Conduct) Act 1994: This Act was passed to uphold Australia’s obligations under the International Covenant on Civil and Political Rights. It conflicted with Tasmanian laws criminalizing consensual homosexual conduct, illustrating how the Commonwealth could legislate on matters traditionally within state jurisdiction if it aligns with treaty obligations.
Concerns and Limitations
Scope of Power:
Potential for Overreach: Critics argue that the broad interpretation of the external affairs power could lead to the Commonwealth exercising control over areas traditionally managed by states, potentially leading to an imbalance of power.
Calls for Constitutional Reform: Some suggest amending the Constitution to narrow the external affairs power to prevent excessive federal intervention in state matters.
Limitations on the External Affairs Power:
Conformity to Treaties: Commonwealth legislation must align with the provisions of the relevant treaty. The legislation cannot go beyond what is stipulated in the treaty.
Respect for Express Rights: The Commonwealth cannot use the external affairs power to enact laws that infringe upon express rights protected by the Constitution. For instance, laws affecting freedom of religion must not contravene constitutional protections.
Genuine Treaties: The treaties used as the basis for legislation must be genuine and valid. While this is generally not an issue, it ensures that the legislation is grounded in authentic international agreements.
State Powers Retained: Even though the Commonwealth can legislate in areas traditionally held by the states under the external affairs power, states retain their law-making authority. State laws remain in effect unless they are inconsistent with federal laws enacted to meet treaty obligations.
summary
The external affairs power has indeed expanded the Commonwealth’s legislative reach into areas previously managed by states, especially through the implementation of international treaties. While this has allowed the federal government to address global concerns and obligations, it has also sparked debates about the balance of power between the federal and state governments. The limitations imposed by the High Court ensure that this power is exercised within the bounds of the treaty obligations and constitutional protections.
Interpretation of Section 51(xxix) - External Affairs Power
The central issue was the interpretation of Section 51(xxix) of the Australian Constitution, which grants the Commonwealth power to legislate on “external affairs.” This power has been interpreted by the High Court to include the ability to enact laws that give effect to international treaties.
