Constitutional Adjudication of the External Affairs Power

TITLE: ‘Areas of what are of purely domestic concern are steadily contracting and those of international concern are ever expanding’ by Stephen J in Koowarta v Bjelke-Peterson (1982) 153 CLR 168, [217].

(i) Introduction
The Commonwealth of Australia Act (‘Constitution’) confers the principle that the powers of the Commonwealth are received from and limited by it. That is, the Commonwealth Government is subjected to the law like everybody within Australia. Under the Constitution the Commonwealth Government is also responsible for ‘’. This power has allowed the Commonwealth to create laws in a widespread manner. In instances, overriding State Government (‘States’) powers which are specifically protected in the Consitution. The States have appealed to the High Court of Australia (‘HC’) disputing that the Commonwealth Government’s legislation is constitutionally invalid.

The following cases will display the arguments the States have taken in an attempt to place limits on the Commonwealth Government’s power under the external affairs banner. More specifically the proposal that the Commonwealth Government may abuse its power by passing legislation and simply attaching it to a related signed treaty. The HC has a history of giving the term ‘external affairs’ a broad meaning and effectively giving the Commonwealth Government extensive legislative opportunities. It will be discussed how the HC has recognised minimal practical legal restraints when the Commonwealth Government is utilising its external affairs power when implementing treaties.

(ii) The Separation Of Powers & Responsible Government
To fully understand the issues the States are confronting it is necessary to give a brief understanding of the Constitution . The Constitution defines the functioning bodies of the Commonwealth, the matters it has the power to legislate over and the HC. The Constitution implies that there is a distinct separation of powers between the three institutions, being the legislature, executive and judiciary. However Australia adopted the responsible government model where the Executive Government members come from the Commonwealth Parliament that holds office in the House of Representatives. Australia also adopted a Federal system of government so that effectively the States preserved their legislative powers, except those given to the Commonwealth by the Constitution. The States could legislate on any matter but become invalid if contrary to Commonwealth legislation made pursuant to s51.

(iii) Treaty
Treaty is a universal word compiling of agreements, conventions, exchanges of notes and letters, protocols and other instruments administer by ‘international law and giving rise to international rights and obligations.’ The Constitution does not give specific powers to the Governor General to sign treaties with other Countries , but the power is fundamentally an adopted prerogative power of the Crown.

(iv) Treaties
As Australia is a contracting party to the ‘Vienna Convention on the Law of Treaties’ it must align its implementation of treaties in accordance with the provisions of treaty. However Australia, like other nations have the right not to partake, abandon and to make provisions about some concerns of the treaty. This leads into the later discussed argument of whether a treaty should be appropriately adapted in law.

(v) Scope of External Affairs Power
Many aspects of the Commonwealth Government’s power to pass laws with respect to ‘external affairs’ under s51(xxix) have not yet been fully examined. There are however three current distinct perspectives. Firstly, being ‘relations’ with other countries. In R v Sharkey it was held that seditious acts incorporated treasonable acts against any Commonwealth country, and therefore could affect Australia’s relations within the Commonwealth. . However in this case Latham J broadened external affairs by concluding that the power extended to Australia’s relations with all other countries.

This broad ‘relations’ perspective can also help to validate the implementation of treaties into legislation by arguing that if treaties are not implemented appropriately it could possibly effect the relations with other countries or with international organisations. This was shown in the case of XYZ v Commonwealth where Kirby J indicated that maintaining relations with international organisations, such as ‘United Nations treaty body with responsibility for implementation of the Convention on the Rights of the Child,’ may be sufficient to validate legislative provisions.

Secondly, affairs that are essentially external to the land mass of the Australian continent. In the New South Wales v Commonwealth (Seas and Submerged Lands Case) it was found that the Commonwealth legislation was a valid exercise of external affairs power granted by s51(xxix). As it dealt with issues that were ‘geographically situated outside Australia’ and therefore appropriately fell under the umbrella of the external affair powers. Mason J in this case elaborated on the scope of the power, holding that external affairs should be interrupted in a very broad and general way. In XYZ v Commonwealth the joint judgment of Gummow, Hayne and Crennan JJ held that this broad view was sufficient to validate legislation if it simply dealt with conduct that had occurred outside Australia.

Thirdly, which will be largely discussed below, is in relation to how the Commonwealth has produced legislation for their obligations when it enters into international treaties. It has been argued by some of the States that the Commonwealth is acting unconstitutionally when it implements legislation which effects the operations and legislation of the States. The Commonwealth Government countering this argument by indicating that if legislation comes under the umbrella and protection of s51(xxix) then it makes it constitutional.

(vi) Scope broadening
The HC has for many years continued to allow a very broad interpretation of external affairs. For example, in the Polyukhovich v Commonwealth (War Crimes Act Case) it was held that any legislation that is characterized with respect to anything ‘occurring or situated outside Australia is a law with respect to “External affairs”’ is constitutional. It was further stated by Brennan J, that Australia must be seen to be able to make laws that are ‘conducive to international peace and order’ that are derived from international agreements. This addresses the later argument whether restraints should be very limited.

(vii) Implementing Treaties
Professor Harrison Moore expressly held that implementing legislation in response to treaty obligations under external affairs power must be limited to matters that were actually external to Australia and did not encompass matters that were ‘purely domestic’. In R v Burgess; Ex parte Henry, Moore’s view was considered but was over turned, holding that Australia could not be limited in signing treaties in advance of the fluctuating international environment. This highlights the concern if the current constitutional federal system can appropriately deal with the new global environment and if practical legal restraints may only further burden the Commonwealth Government’s approach with dealing with it. Alternatively if the Commonwealth Government is simply abusing its constitutional powers under s51(xxix).

This case also endorsed the position that external affairs is extended to international recommendations, draft international conventions or international requests. But in Victoria v Commonwealth (IndustrialRelations Act Case) a practical restraint was placed on recommendations that related to treaties, in that they must embody the treaty. The HC did not conclusively restrict this restraint when recommendations were independent of a treaty, however offered that the legislation would have to be seen to be ‘appropriate and adapted’ to the international recommendation.

(viii) Conformity with the Treaty
In R v Burgess; Ex parte Henry case it highlights that legislation passed in response to a ratified international treaty should be in ‘conformity’ with the treaty, however this will depend on the treaty provisions. As an ‘inflexible and rigid adherence’ to the treaty would not allow the Commonwealth Government to apply legislation that is suited to the Australia conditions. This approach was strengthen in R vPoole; Ex parte Henry (No 2) where laws were valid if they were ‘sufficiently stamped with the purpose’ of the treaty or in another case, where the laws were not inconsistent with carrying out the treaty. This altered to a test of ‘reasonable proportionality’ where the laws purpose must be to embody the treaty. Deane J held that the court would not invalidate legislation if it only “‘partially’” realise the treaty but only if the terms were contrary to the treaty.

It was later considered that a better test would be that the legislation ‘must be reasonably capable of being considered appropriate and adapted to implementing the treaty’. This test allowed for a measure of practical legal restraint by invalidating some sections of the legislation that were adverse to the treaty. Therefore this test could be argued that it enables the States to practically restrain the Commonwealth legislation by requiring it to be aligned with the treaty. However, as the Commonwealth is a party to a treaty that which is to be embodied in the legislation, it may be able to influence the treaty to meet the Commonwealth’s agenda. If this is achieved then the only legal restraint would be to argue that the treaty was created in bad faith, which will be discussed later.

(ix) Further Widening of the Power & Reducing Legal Restraints.
The scope of the external affairs power was certainly widened in the following mentioned cases of Koowarta v Bjelke-Peterson and Commonwealth v Tasmania (Tasmanian Dam Case). In the first case, Koowarta v Bjelke-Peterson three decisions of the majority judgment held that there should be no limitation that the power had to relate to a sufficient international significance. However, three minority decisions held that a treaty must be ‘indisputably [of] international character’. The other majority decision effectively held that this was to narrow and formed that it only must be of an ‘international concern’.

(x) International Concern
Stephen J holds that external affairs may include things outside of treaties, being where Australia has to serve international concerns. This brings about the idea that laws may be implemented by the Commonwealth simply through an international obligation in matters of worldly fundamental individual’s rights which have evolved into customary international law. This idea incorporates a jurisprudence approach to the issue of how the HC would act in response to individual rights.

Individual rights was also discussed by Dixon J in R v Burgess; Ex parte Henry which illustrated that if the Commonwealth Government implemented legislation that affected the rights of individual citizens in a ‘particular way’ would not be valid as a matter of external affairs. This would lead to jurisprudence type reasoning in relation to judicial activism and whether rights are absolute. Perhaps this could be an effective legal constraint but the legislation would have to dispose of significant rights in order to invoke an argument of this calibre.

In the Commonwealth v Tasmania (Tasmanian Dam Case) Gibbs CJ continues to interpret ‘international concern’ by indicating that it will depend on the level to which other countries regard it to be an international duty to act. As this question can only be answered by assessing the international environment at the time the legislation was implemented, it will cause the HC to decide on a constantly changing factual matter. The HC has stated that these types of matters which involved weighing up internal and external social, political and economic matters are for the Commonwealth and not the court. This effectively allows the Commonwealth Government the power to evolve legislation under the external affairs powers into many new areas, including the matter of preserving land normally considered a States domestic domain. For this reason it is difficult for the court to apply any practical legal constraints on the Commonwealth Government in advance of any future legislation. In Addition, it asked the question if legal restraints would only create paralysing problems for the Commonwealth Government in adapting to the world environment.

(xi) Expansion of International Law Impacts
Dawson J dismisses the expansion of international concerns must influence the expansion of the external affairs power by holding that a domestic law matter can remain just that and does not have to evolve into an external affair. However, the majority decision in Industrial Relations Act case conclusively held that as the Constitution was created in a time where there were significant worldly changes happening the term ‘external affairs’ should not be frozen in the 1900. Therefore, adding to the argument whether there should be any restraints on the external affairs power.

(xii) Reciprocal Benefits
In Commonwealth v Tasmania (Tasmanian Dam case) Mason J addresses the States’ argument that where there is no reciprocal benefit with other countries, then how can it be regarded as an international concern. Mason puts forward the proposition that it is difficult to measure the reciprocal benefits to other nations and therefore this should not be a factor in determining external affairs. If a benefit is required for it to become an external affair matter then this should be adjudicated by holding that countries would not labour with nonsense issues, and therefore, just the mere fact that Australia has entered into a treaty is sufficient to establish an international concern. Mason J takes this position under the assumption that it is not the role of the court to assess the subject matter of treaties and then as a matter of fact determine them to be of international concern, as this is for the Commonwealth Government. As questions about treaty benefits or international relations are informative judgments that should be done by the politically elected and accountable government. Therefore, Mason J has effectively given the Commonwealth Government no practical legal limits of ensuring it does not abuse its external affairs power. This effectively would undermine the Federation levels of legislative power, which Dawson J rejects as unconstitutional.

(xiii) Bad faith or Bona vide treaties
The Koowarta case highlighted that the Commonwealth Parliament could effectively be able to create laws in a universal way across Australia. This would be contrary to the ideology of federalism found in the Constitution, where it is suppose to retain domestic type concerns to the States. Gibbs CJ held that if the Commonwealth was entering into a treaty in order to create broader legislative powers then this would be in ‘bad faith’ and would invalidate the power. However, it would be difficult to conclude that if a treaty was entered into for this purpose, but was already of an international concern, then this would not be held to be in bad faith.

Similar problems would arise in order to legally restrain the Commonwealth Government in examining if the treaty was ‘bona vide’ as suggested by Dawson J in a later case of Richardson v Forestry Commission. However, it does leave a small opportunity for a practical legal argument that if it isn’t a bona vide treaty, therefore it can not be utilised to implement legislation under the external affair power.

(xiv) Unconstitutional
If the court continues to allow a very broad interpretation to external affairs power, it is effectively undermining other sections of the Constitution. These other sections positively separate powers into Commonwealth and State matters. However, if the Commonwealth can bring the matter under the umbrella of the external affairs power it has effectively limited the use of the Constitution as the other sub sections in s51 are not utilised. This in itself is unconstitutional as it is for the majority of the people of Australia that have the capacity to change the Constitution. The broad interpretation of external affairs has been drawn from the fact that most international matters are very complicate and sensitive and the HC has decided that these matters should be left to the Commonwealth Government to adjudicate on.

(xi) Conclusion
It becomes apparent that as the world is becoming more connected and overlapped, matters of international affairs will increase. The HC has appeared to reflect this proposition by allowing the Commonwealth Government to bring many once held to be State domestic concerns under the umbrella of external affairs. However they have held that as the power relates to ‘external affairs’ it does allow the HC to examine the circumstances of a treaty and to invalidate legislation if the treaty was made in bad faith. However, this would be in limited circumstances that the HC would take this view as it is seen, essentially, as a politically matter.


1. Articles/Books/Reports
Blackshield, Tony and Williams, George, Australian Constitutional law and Theory, Federation Press, 2006.
Coorey LJM and S Ratnapala, The High Court and the Constitution- Literalism and Beyond (1986).
Craven Gregory, The Convention Debates: Commentries, Indices and Guide, (1986), 203.
Dworkin Ronald, Taking Rights Seriously, 1977
Greig D. W, The Australian Year Book of International Law, (1981-1983) Vol 10 at 528.
Lewis David, The external affairs power & child sex tourism offences, Litigation Notes (2006) 14.
Moore Harrison, Commonwealth of Australia, (1910) 2nd Ed, 461.
Omar, Imtiaz, Constiutional Law, Butterworths 2003.
2. Case Law
Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54.
Al-Kateb v Godwin (2004) 219 CLR 562.
Andrews v Howell (1941) 65 CLR 255.
Case of Proclamations (1611).
Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1.
Koowarta v Bjelke-Peterson (1982) 153 CLR 168.
New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337.
Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501.
R v Burgess; Ex parte Henry (1936) 55 CLR 608.
R vPoole; Ex parte Henry (No 2) (1939) 61 CLR 634.
R v Sharke (1949) 79 CLR 121.
Richardson v Forestry Commission (1988) 164 CLR 261.
Roche v Kronheimer (1921) 29 CLR 329.
Spratt v Hermes (1965) 114 CLR 226.
Victoria v Commonwealth (Industrial relations Act Case) (1996) 187 CLR 416.
XYZ v Commonwealth (2006) 227 ALR 495.

3. Legislation

Commonwealth of Australia Constitution Act.

4. Treaties

5. Other Sources

Other notes cut out of assignment and to be used for study only purposes.

(iv) Political view
The Commonwealth Government has shown that as it has the inherent prerogative power to sign treaties and the constitutional power to legislate accordingly to them, it has taken a very firm position reducing the States’ legislation. This is politically evident when in 1983 the Commonwealth Government adopted provisions for the need of consultation with the States in regards to treaties. The following provision is an example of the firm view held by the Commonwealth Government that they were not going to be hindered by the States, even though they acknowledged that as the States were going to be effected they should be consulted. The provision states,
‘The Commonwealth endorses the principles and procedures, subject to their operations not being allowed to result in unreasonable delays in the negotiating, joining or implementing of treaties by Australia.’

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