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4.1 [s51(xxix)] External affairs.doc

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Queensland University of Technology

External Affairs Power: s51(xxix) 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. • Plenary and independent power—not to be read down by reference to other powers o Not to be confined to external aspects of other powers o Great and important power: Burgess per Evatt J • Central idea—relations with other countries • Significant growth of power since federation—HC has said it would be a serious error to construe the power to conditions of 1900 (external relations were limited). There are two aspects to the external affairs power: o Treaty (Part 1); and o Non-treaty (Part 2) P ART 1: THE TREATY ASPECT OF THE EXTERNAL AFFAIRS POWER SUMMARY • no need for strict treaty obligation, but an obligation is sufficient: Tasmania Dams • existence of a treaty is sufficient to put subject matter within s51(xxix), no need for the subject to be one of international concern: Tasmania Dams • legislation will reasonably conform to the treaty if it is reasonably appropriate and adapted to implementing the treaty: R v Poole; ex parte Henry affirmed in Tasmania Dams • partial implementation will be unacceptable if: Industrial Relations Act case (1996) o the deficiency is so substantial that the law cannot be said to be a measure implementing the convention o the deficiency means that the act is substantially inconsistent with the convention • Industrial Relations Act case (1996) is latest case re-affirming the position of the court in Tasmania Dams History • R v Burgess—no clear majority on wide/narrow—all agreed the legislation must be in conformity with the treaty • Koowarta v Bjelke-Petersen—Wide view almost prevailed in • Tasmania Dams—Wide view accepted o Further accepted in Richardson v Forestry Commission (1988); Qld v Cth (Qld Rainforest case) (1989); Horta v Cth (1994) [Entry into a Treaty] • Only the Cth has international legal personality—not the States: R v Burgess; Ex parte Henry (1936) o However States can enter into contractual obligations Andrew Trotter LWB242 2009-1 • Cth executive may enter into any treaty which the government sees fit: ss 2 & 61 • Assent to a treaty not by actual signing o Accession = concent without signing o Ratification = formal consent after signing [Effect of Treaty on Domestic Law] • No direct effect unless implemented by legislation: Bradley v Cth o Except for some treaties that don’t affect rights and duties within Australia • Otherwise only an indirect effect o Statutory interpretation—to comply with international law: Polites v Cth o Interpretation of common law: Mabo (No. 2) per Brennan J o Creation of legitimate expectation in administrative law  but denied by executive (Keating and Howard governments), right to deny acknowledged in MIEA v Teoh Power to Implement Treaties • External affairs power covers the power to implement a treaty: Koowarta v Bjelke-Petersen (1982); Tas Dams Narrow view: Only treaties of international subject-matter or significance can be implemented R v Burgess (Paris convention 1919 to regulate aerial navigation—could be implemented through either view—court in agreeance dispite different approaches) Narrow View: • Dixon J – “Indisputably international in character” • Starkee J – “Sufficient international significance” Wide View—Evatt & McTiernan in favour of wide view Undecided—Latham CJ did not rule out.  Wide/narrow view did not affect result (court split) [Airlines of NSW v NSW (No.2)] Barwick CJ – rejected wide view. Koowarta v Bjelke-Peterson (sections of Racial Discrimination Act to implement International convention on elimination of all forms of racial discrimination—majority said could be implemented, minority said could not) Narrow view—Gibbs, Wilson & Dawson JJ – “International in character” Middle view—Stephen J – “International concern” (conclusion the same as wide view) Wide view—Mason, Murphy & Brennan JJ  Verdict in favour of wide view, but still no consensus on wide test Broad view: Any bona fide treaty, irrespective of subject-matter, can be implemented Tasmanian Dams Case Andrew Trotter LWB242 2009-1 Mason, Murphy, Brennan & Deane JJ – wide view Gibbs CJ, Wilson & Dawson JJ – shift from narrow view to international concern test • Wide view established • Further accepted in o Richardson v Forestry Commission (1988); o Qld v Cth (Qld Rainforest case) (1989); o Victoria v Cth (IR Act) o Horta v Cth (1994) Limits on Power to Implement Treaties Mostly Insignificant Limitations 1. Treaty as bona fide—must be genuine and the govt must be bone fide in entering a treaty (doesn’t really limit the power) 2. No treaty “obligation” required - No necessity for an obligation to be found in the treaty Real Limitations 3. Express and implied constitutional limits to which other 51 powers are limited 4. Conformity—implementation adhere to the terms of the convention: Tasmanian Dams Case (court divided) 5. Treaty regime sufficiently specific- if it lays down some sort of conduct or course of action that can be adopted, the treaty can not be too imprecise or vague- this will bar it implementing the treaty into legislation W EAK B ARRIERS Bona Fide • The Cth may not enter into an international treaty merely as a device to attract jurisdiction to itself which it would not otherwise have: Tasmanian Dams Case per Brennan J; Koowarta v B-P per Stephen J o However—difficult to prove because should be left to the Executive: Cth v Tas per Mason J • Very difficult to prove that a treaty is not bona fide—at best a weak shield for use in rare cases: Koowarta per Gibbs CJ (in dissent) Necessity of Obligation in Treaty • Seemingly no need for a treaty to contain an obligation on Australia to implement: Tasmanian Dams (very relaxed approach—cf Gibbs J dissent: treaty must contain obligation as found in domestic law) • Extends to reasonably apprehended obligations / fulfilment of general purpose of convention, even without specific obligation: Richardson v Forestry Commission 1988 (General obligation to protect WH areas—Interim protection while making enquiries to determine whether natural areas in Tas qualified for WH listing  no obligation to make enquiries—but contributed to purpose of convention → upheld → interim protection reasonably incidental) o Interim protection while making enquiries • Determine presence or absence of obligation in light of expectations of international community: Qld v Cth (with reference to world heritage listing in determining whether the Cth had an obligation to protect certain rainforests) Andrew Trotter LWB242 2009-1 • Can implement conventions that confer benefits rather than impose obligations: Airlines of NSW (No. 2) Case (implementation of uniform safety regulations) R EAL L IMITATIONS Conformity • Domestic provisions well adapted and appropriate to ensure the observance of the convention or it was an appropriate and effective means of giving effect to the convention then it would be within the power: R v Burgess per Starke J (dissent) (Air navigation regulation—convention prohibited flying low in landing areas—government prohibi
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