The External Affairs Power

The External Affairs Power – Section 51(xxix)

Introduction

• The External Affairs Power has four aspects:

  • Relations with other countries/nations

  • Extraterritorial power

  • Implementation of International Legal Obligations (e.g. treaties)

  • Matters of International Concern?

Relations with other countries

• Examples of laws involving relations with other countries:

  • Sedition laws (e.g. R v Sharkey (1949) 79 CLR 121)

  • Laws recognising foreign judgments and foreign evidence

  • Extradition laws

  • Anti-terrorism laws? (See 3 JJs in Thomas v Mowbray (2007) 233 CLR 307)

Sedition Laws (R v Sharkey 1949)

• Facts: It was an offence to excite disaffection against the Government or Constitution of any of the King’s Dominions.

• Sharkey was a communist and gave a speech expressing support for a Soviet invasion of the UK.

• Issue: Was this a valid law with respect to external affairs?

• Latham CJ: ‘The relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs. The preservation of friendly relations with other Dominions is an important part of the management of the external affairs of the Commonwealth.’

Anti-Terrorism Laws: Thomas v Mowbray (2007) 233 CLR 307

• This case concerned Australia’s control order regime designed to prevent terrorist acts.

• Gleeson CJ, Gummow and Crennan JJ held that terrorist acts are clearly a matter affecting relations with other countries and so the control order regime was supported by the EA power.

• Three other judges did NOT address the EA power and J Kirby held that such laws do not affect Australia’s relations with foreign countries.

Relations with other countries extends to:

• ‘International persons’ e.g., United Nations, ILO etc (see Brennan J in Koowarta v Bjelke- Petersen (1982); Kirby J in XYX v Cth (2006))

Extraterritorial Power

• How does the HCA determine whether there has been a valid exercise of extraterritorial power?

• What subject matter does the extraterritorial power cover – is it plenary power or is a nexus required?

• Traditionally, there was a “nexus requirement”. There needed to be a sufficient nexus, or genuine connection, between Australia and the matter being controlled.

Polyukhovich v Commonwealth (1991) 172 CLR 501

• The War Crimes Amendment Act 1988 (Cth) criminalised certain war atrocities committed in WWII Europe regardless of nationality of victim or perpetrator. Polyukhovich was charged under this law. Could the Cth prosecute?

• Majority (Mason CJ, Deane, Dawson & McHugh JJ) - Commonwealth has plenary power, no nexus required: ‘If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase “external affairs”.’ Dawson J @ 632.

• Gaudron J – nexus required, but legislation evidence of this.

• Toohey & Brennan JJ – need a genuine connection to Australia (Toohey – requirement satisfied; Brennan – not satisfied)

XYZ v Commonwealth (2006)

• The Crimes (Child Sex Tourism) Amendment Act 1994 (Cth) prohibits certain sexual crimes committed by Australians, outside Australia.

• XYZ was charged under the Act for offences committed while he was in Thailand.

• Majority upheld the Polyukhovich ‘geographic externality’ principle.

• Kirby J – had reservations, suggested a revisit of Brennan J in Polyukhovich.

• Minority (Callinan & Heydon JJ): Polyukhovich principle should be rejected.

Alqudsi v Cth (2015)

• Does ‘external’ aspect of EA power extend to ‘intangible’ concepts ?

• Cth law making it an offence for a person in Australia to give money or goods to, or perform services for, another person who intended to enter a foreign state with intent to engage in hostile activity.

• There were two geographically external elements in this case.

  • First, Alqudsi’s intangible mental state had a sufficient connection with something geographically external to Australia – his mental state involved an intention to assist those external activities.

  • Secondly, his tangible conduct within Australia had a sufficient connection with something geographically external to Australia – because his conduct within Australia in fact assists the conduct outside Australia.

• The case demonstrates that geographical externality not limited to tangible things and matters geographically external to Australia. Intangible things and matters (like intent, preparation and support) are included.

Implementation of International Legal Obligations

• Allows the Commonwealth to implement international treaties into Australian law.

• Most controversial aspect of the External Affairs Power:

  • Can potentially be on any topic.

  • Could undermine federal/state balance of legislative power.

• Commonwealth executive has prerogative power to enter into treaties.

• Treaties are not binding unless incorporated into domestic legislation.

Incorporation via Domestic Law

• The Cth Parliament can use EA power to incorporate treaties into domestic law. A treaty is not enforceable unless it is specifically incorporated into law by an Act of Parliament.

• In R v Burgess (1936) Cth had constitutional power to incorporate the Convention for the Regulation of Aerial Navigation into domestic law.

• It was argued that this Convention was about certain safety rules within Australia and nothing external involved to engage EA power.

• Evatt and McTiernan JJ: “It is true that such subject matters as air navigation, the manufacture of munitions, are not made express or separate subject matters of Commonwealth legislative power. But there is, in our view, an undoubted capacity in His Majesty to enter into international conventions dealing with any of these subject matters and necessarily binding upon and in respect of the Commonwealth.”

Scope of incorporation

• Any topic on which the Commonwealth has entered into a treaty becomes an ‘external affair’, despite it being a topic on which the Commonwealth Parliament would otherwise have no power.

• Early case: R v Burgess; Ex parte Henry (1936)

Koowarta v Bjelke-Petersen (1982)

• Involved the Racial Discrimination Act 1975 (RDA), which implemented the Convention on the Elimination of Racial Discrimination 1972

• Qld minister refused to approve sale of land to Koowarta because of government policy not to sell land to Aboriginal people.

• Koowarta challenged decision for breach of the RDA.

• Qld government challenged validity of the RDA – not supported by a head of power.

• Issue:

  • Could the EA power support a Cth law on ‘race discrimination’?

  • Could the EA Power support the Cwth implementing CERD (1966) in the form of the Racial Discrimination Act 1975 (Cth).

• High Court held (by 4:3 majority) that the RDA was valid.

  • Three of the majority (Mason, Murphy & Brennan JJ) – broad view, Cth can implement any treaty regardless of subject matter.

  • Minority (Gibbs CJ, Aickin & Wilson JJ) – narrow view, Cth can only legislate on treaties where subject matter relates to external affairs, ie extraterritorial matters or relations with other nations, discrimination isn’t such a matter.

  • Stephen J (also in majority) – Cth can legislate on treaties involving matters of international concern, discrimination is a matter of international concern.

Commonwealth v Tasmania (1983) 158 CLR 1

• Australia had ratified the World Heritage Convention.

• Tasmanian Wilderness Area was listed on the World Heritage List.

• Tasmanian government decided to build a dam in the Area.

• Commonwealth government passed legislation to prevent the dam from being built.

• Tasmanian government argued that the laws were invalid because they did not fall within the scope of the external affairs power.

• HCA held (by a 4:3 majority) legislation valid under EA power.

  • Majority (Mason, Murphy, Deane and Brennan JJ): Adopted the broad approach – confirmed that the external affairs power gave the Commonwealth legislative power to incorporate all of its treaty obligations into Australian law.

  • Minority (Gibbs CJ, Dawson and Wilson JJ): Adopted Stephen J’s approach from Koowarta’s Case – must be a matter of international concern. Here, environment was not a ‘burning international issue.’

  • Cth can implement ALL treaties regardless of subject matter!

Limitations on the power to implement treaties

• The treaty must have been entered into bona fide (in good faith).

• The treaty must impose obligations (?)

• The treaty must be reasonably specific.

• The laws implementing the treaty must conform to the treaty.

Treaty ratification must be bona fide

• ‘I would agree, however, that a law with respect to a particular subject would not necessarily attract the support of para (xxix) if a treaty obligation had been accepted with respect to that subject merely as a means of conferring legislative power upon the Commonwealth Parliament’. Brennan J in Koowarta @ 260 (see also Stephen J @ 216-17).

• How would we establish that the Commonwealth has entered into a treaty in bad faith?

• The ‘doctrine of bona fides would at best be a frail shield available in rare cases’. Gibbs CJ in Koowarta @ 200.

Treaty must impose obligations(?)

• Tasmanian Dams Case (1983) – High Court split on this issue:

  • 3 judges – can implement non-obligations: See Mason J @ 129-30; Deane J @ 258-9; Murphy J @ 170

  • 3? judges – do need obligations: See Gibbs CJ @ 106, Wilson J @ 187, Brennan J ambiguous.

  • 1 judge didn’t express a view on this issue (Dawson J).

• When applied to the facts:

  • Mason, Deane, Murphy and Brennan JJ – World Heritage Convention did impose obligations which could be implemented under s 51(xxix).

Victoria v Commonwealth (1996) (ILO Case)

• Majority said the Cth could implement the provisions of international instruments which did not have the status of treaties, e.g. draft treaties or recommendations. but only if, the terms of these Recommendations themselves can reasonably be regarded as appropriate and adapted to giving effect to the terms of the Conventions to which they relate

• The necessity for an ‘obligation’ has never been explicitly confirmed by a High Court majority, and was not explicitly jettisoned by the majority in ILO.

• NOTE: 3 JJs in Pape said an obligation is still needed, but 4 others didn’t comment at all.

Richardson v Forestry Commission (1988) 164 CLR 261

• Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth) established a Commission of Inquiry into the heritage value of two forests in Tasmania to ascertain whether any part of those areas should be identified as protected sites under the World Heritage Treaty.

• Australia had no obligation to protect the heritage value of the Forests. It was only obliged to protect properties of heritage value which were listed on the World Heritage List, and those Forests were not yet on that List.

• So law did not give effect to any specific existing Australian obligation under the treaty.

• High Court majority found law to be valid, despite the lack of an existing obligation.

• Shows us that the Commonwealth can legislate with respect to treaty obligations, as well as matters which are reasonably incidental to those treaty obligations.

• Richardson does not really extend the scope of s 51(xxix) beyond what had been confirmed in the Tasmanian Dam case, but it does demonstrate the use of the‘incidental’scope of the head of power.

Treaty must be reasonably specific

• “When a treaty is relied on under s 51(xxix) to support a law, it is not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of an ideal. 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 signatory states.” Majority @ 486 in Victoria v Commonwealth (ILO Case)

• Do the Convention’s provisions use reasonably precise terms?

• Is the general course of action to be adopted clear? Can you point to the provisions that are ‘specific’ instructions for implementing the Treaty?

• The treaty cannot be so vague so as to confer wide discretion on States especially with controversial issues (e.g. to promote full employment/to eliminate drug use.)

• HCA admitted that the line distinguishing sufficient specificity is hard to draw.

Proportionality: Law must conform to the treaty

• The Commonwealth’s implementing legislation must conform to the requirements of the treaty. Eg the Commonwealth cannot pass a law on anything at all related to‘World Heritage’it can only pass laws that are in conformity with the Treaty.

• Test: ‘To be a law with respect to “external affairs”, the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty.’ (ILO majority @ 487)

• This is a ‘proportionality’test, applicable to the purposive aspect of the External Affairs power.

Summary of the external affairs power:

• Extraterritorial Power (plenary power, no nexus required: Polyukhovich, ILO, XYZ)

• Relations with Other Countries (includes international organisations: Koowarta, XYZ)

• Implementation of Treaties:

  • Commonwealth can implement any treaty, regardless of subject matter (Tasmanian Dams, Richardson).

  • But 4 limitations need to be satisfied:

    • The treaty must have been entered into bona fide (in good faith)

    • The treaty must impose obligations (?)

    • The treaty must be reasonably specific

    • The laws implementing the treaty must be in conformity with the treaty

  • Consider status of non-treaties, eg recommendations, draft treaties etc (ILO)

Treaty Implementation Steps for Answering a Problem

• Is there a treaty and is it Bona fide/Good faith?

• What is the subject-matter of the treaty? Tas Dams

• Does the treaty impose IL obligations? ILO

• Are the terms sufficiently specific? ILO

• Does the Cth Act conform to the Treaty? Proportionate?

• Do any other aspects of the EA power apply? (E.g. Relations with Foreign Nations?)