LLB203 Study Guide - Final Guide: Crimes Act 1914, Sex And The Law, Daryl Dawson
- External Affairs
The Parliament [has] power, subject to this Constitution, to make laws for the peace, order
and good government of the Commonwealth with respect to:- (xxix) external affairs
Constitution s 51(xxix)
INTRODUCTION
Federation created a new entity – the Commonwealth – which would represent the
whole on the world stage.
Commonwealth v Tasmania at 255 per Deane J
The Commonwealth did not really exercise international
personhood until post-WWI
NSW v Commonwealth at per 373 Barwick CJ
It was nevertheless considered by the Constitution that Australia were moving towards
nationhood and independence
So the external affairs power cannot be read as referring to particular subject matter as at 1901.
Victoria v Commonwealth at 482 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow
JJ
Because of constant evolution of States at the time, impossible to treat phrase ‘external affairs’ as crystallised at
the commencement of federation
The phrase “external affairs” has been interpreted widely
Jumbanna Coal Mine v Victorian Coal Miners’ Association (No 2) at 368 per
O’Connor J
However, since federation Australia has signed a great many treaties and so the areas the
Commonwealth can regulate via the external affairs power has expanded considerably. This
has given rise to some concern that the Commonwealth’s power has expanded too far, and
at the expense of the States.
Commonwealth v Tasmania (the Tasmanian Dam case)
FACTS: Federal Parliament passed World Heritage Properties Conservation Act 1983 (Cth), which would
prevent the building by Tasmania of a dam in a world heritage area. The area had been listed as a world
heritage area under a Convention, which was ratified in 1974.
ISSUE: could the Commonwealth intrude on what was thought to be exclusively state territory (dam
construction, land management) through the external affairs power.
HELD: by a majority, that the Federal Government could legislate to implement any
international obligation under a bona fide international treaty.
GIBBS J (dissent): international agreement applies widely to modern life, therefore subject to
Commonwealth legislative power. The decision to enter international agreement is with
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Document Summary
The parliament [has] power, subject to this constitution, to make laws for the peace, order and good government of the commonwealth with respect to:- (xxix) external affairs. Federation created a new entity the commonwealth which would represent the whole on the world stage. Commonwealth v tasmania at 255 per deane j. The commonwealth did not really exercise international personhood until post-wwi. Nsw v commonwealth at per 373 barwick cj. It was nevertheless considered by the constitution that australia were moving towards nationhood and independence. So the external affairs power cannot be read as referring to particular subject matter as at 1901. Victoria v commonwealth at 482 per brennan cj, toohey, gaudron, mchugh and gummow. Because of constant evolution of states at the time, impossible to treat phrase external affairs" as crystallised at the commencement of federation. The phrase external affairs has been interpreted widely. Jumbanna coal mine v victorian coal miners" association (no 2) at 368 per.
