Lecture 6 External Affairs

Section 51(xxix) provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and
good government of the Commonwealth with respect to: [...]
(xxix) external affairs; [...]

Like the rest of s 51, this is a concurrent power. It is common to the Commonwealth and the
States, but if the States and Commonwealth have legislation that deals with the same aspect
of this power, then the Commonwealth law will prevail. This provision is very vague and has
left a great deal open for interpretation by the High Court.
Three Aspects
The phrase external affairs is vague. The High Court has interpreted the power as having
three main components:

The geographical power authorises legislation about matters, things or events

physically external to Australias borders.

The treaty power covers legislation implementing Australias treaty obligations.

The international relations power authorises laws aimed at preserving international

law and friendly relationships with other nations.

Geographical Power
One obvious interpretation of external affairs is as covering matters, things and events
physically outside Australia. The High Court has held that the power generally extends to
such matters.
There has been an ongoing debate about whether the matters need to have a demonstrable
connection to Australia. Some High Court judges have said that it is not enough for it to be
outside Australia, but that the must be a reasonable link to Australia as a nation. However,
in general, the High Court has held that absolutely anything outside the country may be
legislated upon by the Commonwealth.

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In New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975), the High
Court applied the power to Australias territorial sea. The territorial sea is defined by
international law. It extends from the low water mark to 12 nautical miles (approx. 22 km)
offshore. The Commonwealth and the states both claimed jurisdiction to regulate mining,
fishing and other activities in this region. The High Court upheld the Commonwealth statute
on two grounds. The law implemented international conventions. It therefore fell within the
treaty power. The law also fell within the geographical power. The territorial sea is within
Australian jurisdiction, but outside the Australian landmass.
Barwick CJ:
The external affairs power covers any affair which in its nature is external to the continent of
Australia [...] bounded by the low-water mark on the coasts.

Polyukhovich v Commonwealth (1991) concerned a Commonwealth law attempting to

retrospectively criminalise war crimes committed in Europe during the Second World War. A
majority of the High Court upheld the legislation under the geographical power. It
concerned acts that had occurred outside Australia. The case also raised a separate issue
about the validity of retrospective statutes.
Five judges in Polyukhovich held that the exercise of the geographical power did not require
any connection to Australia. Toohey J thought some connection was required. However, he
thought the test was met because Australia was a party to the war. Brennan J dissented. He
held that there was no sufficient connection between Australia and the events covered by
the law. At the time Polyukhovich committed the crimes in the Ukraine, he had no links to
Australia. There were no Australian victims of his actions.
Treaty Power
The most significant component of the external affairs power is the ability to implement
treaties. The power to sign and ratify treaties rests with the Commonwealth executive
under s 61. The power is essentially unlimited. However, the ratification of a treaty does not
make it part of Australian law. The treaty must be implemented by legislation.
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) illustrates the wide scope of the
treaty power. The Tasmanian government proposed to build a dam that would have flooded
the Franklin River. The plan was strongly opposed by conservationists and the federal
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government. In 1982, UNESCO declared the Franklin River a World Heritage Site. The federal
government passed legislation to protect the site, prohibiting the construction of the dam.
Mason, Murphy, Brennan and Deane JJ held that the legislation was authorised by the
external affairs power.
The treaty power is not limited by content. It can be used to regulate matters internal to
Australia. The existence of a treaty shows that the issue is of international concern. Gibbs
CJ wrote a strong dissent. He was joined by Wilson and Dawson JJ. The treaty power was not
intended to cover laws of purely domestic application. Tasmanian Dam was the culmination
of a series of High Court decisions that expanded the scope of the treaty power.
R v Burgess; Ex parte Henry (1936) concerned an unlicensed aviator who did loop the loops
near the Sydney Harbour Bridge. The aviator challenged the Air Navigation Act 1920 (Cth) as
outside power. The High Court upheld it under the treaty power. The majority thought the
power extends to all bona fide international treaties.
Koowarta v Bjelke-Petersen (1982) concerned a challenge by Queensland to the Racial
Discrimination Act 1975 (Cth). The legislation threatened to invalidate a Queensland statute
prohibiting indigenous people from owning large parcels of land. The High Court held by a 43 majority that the law was supported by the treaty power, since it implemented the
Convention on the Elimination of All Forms of Racial Discrimination.
The majority on the scope of the external affairs power comprised Mason, Murphy, Brennan
and Stephen JJ. Mason, Murphy and Brennan JJ took an expansive view of the power. Any
law implementing a treaty may be within federal power. Stephen J took a more moderate
view. The topic must be of international concern. Gibbs CJ and Aickin and Wilson JJ
dissented. They were concerned that a wide view of the power could destroy the federal
balance.
Limits on the Treaty Power
The High Court has taken a broad view of the treaty power, but there are some limits. The
treaty in question must be a bona fide international agreement. The Commonwealth
legislation must be reasonably related to the treaty. The treaty power is subject to other
constitutional limits on Commonwealth power. It has also been suggested by some judges

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that the Commonwealth law must implement a binding treaty obligation, not a mere
aspiration.
The treaty power only applies to bona fide international agreements.
The Commonwealth may not rely on treaties entered into merely to [] confer legislative power
upon the Commonwealth.

Tasmanian Dam (1983), Brennan J

However, this is not an onerous test. In the absence of contrary evidence, all treaties will be
assumed to be bona fide.
Nexus Requirement
The Commonwealth law must be reasonably related to the treaty. In Airlines of NSW Pty Ltd
v New South Wales (No 2) (1965), this requirement was interpreted strictly. The High Court
must strictly scrutinise whether the Commonwealth law is appropriate and adapted to the
implementation of the treaty. However, the High Court subsequently relaxed its approach to
this issue.
In Richardson v Forestry Commission (1988), a majority thought the question was whether
the legislature could reasonably form the view that the law was necessary to implement the
treaty. This case was also notable for unanimously reiterating the wide view of the treaty
power adopted in Tasmanian Dam.
The case of Victoria v Commonwealth (Industrial Relations Act Case) (1996) adopts a middle
position. The legislation must have a close enough connection to the treaty to be regarded
as an implementation of its provisions.
It is for the legislature to choose the means [of implementing the treaty] provided that the means
chosen are reasonably capable of being considered appropriate and adapted to that end.

(majority judgment)
Constitutional Limits
Section 51(xxix), like the other s 51 heads of power, is subject to this Constitution. This
means the power cannot be used to override constitutional rights and guarantees. It cannot
override, for example, the freedom of religion in s 116 or the freedom of interstate trade in
s 90. It cannot authorise an acquisition of property otherwise than on just terms (see s 51
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(xxxi)). On the other hand, the High Court has generally declined to read down the power by
reference to the jurisdiction of the states.
Binding Obligations
Can the treaty power only implement a binding obligation? Or can it also implement
recommendations or aspirations? The High Court has shifted its stance on this issue several
times over the years. The prevailing answer seems to be that a binding obligation is
required, but the High Court will take a flexible approach in determining whether such an
obligation exists.
In Tasmanian Dam, Brennan J thought a binding obligation was required. However, the
other majority judges disagreed. In Queensland v Commonwealth (Daintree Rainforest Case)
(1989), the majority held an obligation is needed. However, the High Court will not strictly
scrutinise the treaty to see whether or not it confers obligations. It is appropriate to defer to
the views of the international community.
Richardson concerned a federal law protecting a forest in Tasmania pending an enquiry into
whether it should be nominated for World Heritage listing. There was no current obligation
to protect the forest. However, the High Court upheld the legislation, as it anticipated a
possible future obligation. In the Industrial Relations Act Case, a majority held a mere
aspiration will not enliven the power. There must be a reasonably specific obligation.
However, the distinction can be difficult to draw, so the High Court will not apply it strictly.
International Relations Power
Finally, the external affairs power covers legislation aimed at preserving Australias relations
with other nations. The power covers matters falling within the doctrine of comity, which
provides that nations will recognise each others sovereignty, expressed in laws and
executive decisions. See R v Sharkey (1949). A prohibition on sedition against the British
Crown was upheld as maintaining comity with the United Kingdom and Commonwealth
nations.
The external affairs power will cover legislation recognising foreign laws. It will also extend
to laws relating to extradition and similar matters. Compare Kirmani v Captain Cook Cruises

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(No 1) (1985). The power extends to legislation excluding foreign laws that purport to apply
in Australia. This represents the negative dimension of the positive power mentioned above.
Matters of International Concern
The High Court has suggested the international relations power may authorise laws on
matters of international concern. This potentially represents a broad extension of the
external affairs power. Support for this position can be found in the judgments of Mason,
Murphy and Deane JJ in the Tasmanian Dam Case.
How should the High Court determine whether a matter is of international concern? Mason
J in Tasmanian Dam took a flexible view. He thought the issue is necessarily complex and
should be left to Parliament. Brennan J in Polyukhovich drew the opposite conclusion.
International concern is so vague that it must be approached with caution. The standards
in question must be clearly expressed by the international community and broadly adhered
to in international practice.
The High Court has recently backed away from the view that mere international concern can
enliven the external affairs power. In the Industrial Relations Act Case, the majority opined
that a mere aspiration in a treaty will not enliven the power, even if it concerns a matter of
international concern. However, contrast Thomas v Mowbray (2007), where three judges
suggested that international concern about terrorism could support Commonwealth
legislation.
External Affairs and Federalism
The external affairs power authorises a broad range of Commonwealth laws. Practically any
law implementing a treaty will fall within the power. It may even extend to matters merely
of international concern. It is hard to think of any subject matter that cannot potentially be
covered.
[T]here is almost no aspect of life which under modern conditions may not be the subject of an
international agreement, and therefore the possible subject of Commonwealth legislative power.

Tasmanian Dam (1983), Gibbs CJ

The power therefore poses a significant threat to the federal balance. This was a major
theme in Gibbs CJs dissents in Koowarta and Tasmanian Dam. There are signs in the
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Industrial Relations Act Case that the High Court is becoming more cautious in applying the
treaty power. However, this more cautious attitude may turn out to be too little, too late.

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