External Affairs Power

External Affairs Power

• Section 51 gives Parliament the power to make laws for peace, order, and good governance in relation to external affairs, as dictated by the constitution.
• The Commonwealth can make laws regarding matters geographically external to Australia and international relations under the external affairs power.
• The Commonwealth Parliament can make laws to implement Australia’s international legal obligations.

Geographical Externality

• The Commonwealth Parliament can legislate on matters, things or persons physically outside Australia.
• New South Wales v Commonwealth ('Seas and Submerged Lands Case') (1975) 135 CLR 337 established that the Seas and Submerged Lands Act of 1973 was valid under the external affairs power, which regulated Australia's territorial sea.
• The external affairs power extends to 'any affair which in its nature is external to the continent of Australia.'
• Polyukhovich v Commonwealth (1991) 172 CLR 501 concerned The War Crimes Act of 1945 which retrospectively criminalized war crimes committed in Europe during WWII.
• Polyukhovich v Commonwealth held that concerned law related to acts that occurred outside Australia and was supported by external affairs power; the externality of conduct is enough for law regarding external affairs.
• Polyukhovich v Commonwealth further stated that merely being external enlivens the geographical aspect of the power.
• In Polyukhovich v Commonwealth, Brennan J dissented, arguing s 51(xxix) cannot support laws 'affecting affairs which, though geographically external, have nothing to do with Australia'.
• In Horta v Commonwealth (1994) 181 CLR 183 the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 (Cth) was for a treaty between Australia and Indonesia for joint petroleum exploration in the Timor Gap.
• The High Court unanimously held in Horta v Commonwealth that the Act was valid because it concerned petroleum resources, a ‘thing’ geographically external to Australia and having substantial nexus with Australia.
• Mere externality is enough to enliven the external affairs power as seen in XYZ v Commonwealth (2006) 227 CLR 532.
• The Crimes Act 1914 (Cth), made it an offense for an Australian to engage in certain sexual activities with minors while outside Australia; provisions were valid under the external affairs power.
• XYZ v Commonwealth saw Kirby J express 'doubt in my mind concerning the geographical externality principle.'
• In XYZ v Commonwealth, Callinan and Heydon JJ dissented, holding that the external affairs power could not support laws solely concerned with matters geographically external to Australia.

International Relations

• The Commonwealth Parliament can legislate on Australia's relations with other countries as seen in R v Sharkey (1949) 79 CLR 121.
• Crimes Act 1914-1946 (Cth) provisions prohibiting seditious activity against the UK government and Dominion governments were upheld as preserving ‘friendly relations’ with the United Kingdom and Commonwealth nations; an important part of external management.
• Australia's relations with other countries would be affected if sedition was promulgated with impunity.
• The Commonwealth Parliament can legislate on Australia's relationships with ‘other international persons’ as seen in Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
• International legal persons include nation-states and non-state entities.
• Australia's relationships with international persons are ‘the substance of Australia's external affairs’.
• Three judges held that a control order regime in Part 5.3 of the Criminal Code (Cth) was validly enacted under the international relations aspect of the external power in Thomas v Mowbray (2007) 233 CLR 307
• The external affairs power supported Commonwealth laws aimed at preventing terrorist acts against foreign countries.
• The external affairs power includes making laws that affect Australia’s relations with other countries and terrorist acts is now one of these matters.
• Kirby J dissented for Thomas v Mowbray, finding invalidity does not affect Australia's international relations.

International Legal Obligations

• The external affairs power supports domestic laws implementing Australia's international legal obligations.
• This aspect of the external affairs power has a purposive nature.
• The law must be capable of being considered reasonably appropriate and adapted to implementing a binding and sufficiently specific international obligation.
• The power to sign and ratify treaties rests with the Commonwealth Executive Government under s 61.
• Australia is a dualist state.
• Ratification of a treaty does not make it part of Australian law; it must be implemented by legislation.
• Australian states do not have 'international personality’ and cannot establish formal international treaties.
• The Commonwealth Parliament can regulate conduct within Australia to implement Australia’s international legal obligations.
• R v Burgess; Ex parte Henry (1936) 55 CLR 608 saw Section 4 of the Air Navigation Act 1920 (Cth) confer power to the Governor-General to implement International Convention Relating to the Regulation of Aerial Navigation.
• R v Burgess; Ex parte Henry ruled that HCA held s 4 was valid, passing laws in conformity with the convention which they profess to be executing.
• Koowarta v Bjelke-Petersen (1982) 153 CLR 168 saw that the Racial Discrimination Act 1975 (Cth) gave effect to the International Convention on the Elimination of All Forms of Racial Discrimination.
• Sections 9, 12 prohibited various forms of racial discrimination in Australia under an external affairs power
• While Koowarta v Bjelke-Petersen's provisions concerned domestic matters, the Act's purpose was to give effect to Australia's obligations under the Convention.
• In Koowarta, views emerged about the scope of the external affairs power.
• Wide view: the external affairs power supports a law giving effect to treaty obligation on any subject matter.
• Middle view: the subject-matter of the treaty is of 'international concern.'
• Gibbs CJ, Aickin, and Wilson JJ dissented, determining the treaty must be an international subject.
• Commonwealth v Tasmania (1983) 158 CLR 1 ('Tasmanian Dam Case') saw Australia being party to the Convention for the Protection of the World Cultural and Natural Heritage 1972.
• In 1982, the World Heritage Committee entered West Tasmania Wilderness National Parks on the World Heritage List after being nominated by Australia.
• The Tasmanian government proposed constructing a dam on the Franklin-Lower Gordon Wild River National Park.
• The World Heritage Convention imposed obligations on Australia to ensure cultural and natural heritage conservation and security.
• Act applied to 'identified property', that forms part of the cultural/natural heritage including the parks whole area.
• Proclamations were made under s 6(2) respecting the property, which attracted the operation of s 9, prohibiting various work and certain activities
• The National Parks and Wildlife Conservation Act confers that a governor-general can formulate regulations to give effect to the Convention
• The regulations prohibited construction work concerning the dam and other prohibited activities within area
• It was a 4:3 majority High Court ruling held that the legislation was a valid exercise of the external affairs power, implementing the obligations under the Convention.
• In dissent, Gibbs CJ, Wilson and Dawson JJ held that the external affairs power only supported a law implementing treaty obligations on an international concern subject.
• The external affairs power empowers the Parliament to make laws to implement the international obligations.
• Tasmanian Dam ruling stated that relevant treaty obligation was to protect and conserve natural heritage.
• Regarded as reasonably appropriate/adapted to fulfill relevant treaty obligations, being valid considering it only prohibited development for preparatory construction.
• Regulations were capable of being considered well thought out to give effect to obligations to under Convention.
• Principles from Tasmanian Dam Case (1983) 158 CLR 1 established that external affairs supports Commonwealth laws implementing treaty obligations on any subject matter.
• Test is whether the law is capable of being appropriate and adapted to implement treaty obligations-proportionality.
• The Industrial Relations Act 1993 (Cth) was a Industrial Relations Act 1988 (Cth) amendment in Victoria v Commonwealth (‘Industrial Relations Act Case’) (1996) 187 CLR 416.
• Pt VIA conferred worker's rights to minimum wages, equal pay, unfair dismissal and parental leave'.
• The ILO's Conventions and Recommendations gave rise to these protections.
• It was a valid exercise of the external affairs power as it effectuated obligations, according to the ILO.
• The treaty obligation need be ‘sufficiently specific to direct general movement by the signatory nations.
• The 1983 Tasmanian dam case stated regarding ‘absence of precision does not mean absence of international obligation.
• Embodied within a treaty must be precise obligation, as opposed to aspirational, to be supported by external powers.
• Industrial Relations stated reasonably consideration must be taken to implementing treaty obligations under external powers.
• Art 4 placed burden of proof for valid reason termination, in the Employment Convention of '84's Termination of Employment Convention.
• Employer must establish valid reason upon employee claim, though enabling response of unjust circumstances: where placed proof burden on employee.
• Invalid sections were marked by overreach of the convention, in sections 170DE(2) and 170EDA(1)(b).
• Partial implementation is adequate according to Industrial Relations, as the Convention on Economic, Social and Cultural Rights provided limited strike rights.
• If it is not consistent of the convention, validity can be effected by its deficiency.
• Treaty obligations must be specific to take general direction to enliven the external affairs power
• A treaty that provides minimum guidance is to contrary with obligation, in this partial law.

Limits on the External Affairs Power

• The external affairs power does not support matter laws in international concerns.
• A greater number of matters are now international, the criterion federal law is potentially destructive of Australia’s arrangement.
• Enliven is provided to the external affairs power by connect international recommendations to a treaty
• International recommendation must give rise to obligation that provides base for Pape legislation.
• The external affairs power in s 51(xxix) is ‘subject to the Constitution’.
• The Commonwealth's legislative power provides the override to the expression under external powers.
• Questions must be explored on legislation- relation to other, existence or relation to matter, to decide if valid enactments under s.

The Defence Power

• Defence is empowered to constitutionally pass laws regarding peace, order, and good government , with the ability to military defence, and law enforcement through the control of the forces...
• With Defence , laws can may be conducive to defense.
• In Private R v Cowen the ruling was found to be necessary

Nature and Scope of the defence power

• Defences expand and shrink depending on various degrees.
• It is necessary to factor in the power when deciding factual condition in its elastic nature.
• Peacetime: limitations take place against wide wartime power.
• The defence extends to internal issues for the legislation.

Wartime

• Broad powers under defence are created.
• Regulations fixed bread prices under wartime defence
• Legislation gave permission to those in power to detain disloyal, according to Hc of Lloyd v Wallach (1915) 20 CLR 299.
• The Commonwealth seized exclusive tax by enacting laws during WWII.
• Commonwealth is authorized to receive officer by the 1942 acts.
• Common is authorized.
• The 1942 laws are recognized because of power contexts.
• Defence law can’t be sustained after the war.
• Law of wartime must have connections to defence.

Peacetime

• For personnel, the defence must control relations, and those armed.
• In unsteady time, the powers expand from their current force.
• The 1935 Commonwealth case provided clothing for soldiers.
• The Hc was able to create and charge defence against service in the power of jurisdiction
• S 51, comprehended by Commonwealth’s defense provisions for personnel that demand forces’ disciplines.
• As defence, they could punish what is good discipline, as an act reasonably necessary
• Recastings had the ability to protect Australia.

The Communist Party Dissolution Act 1950

• To protect communist’s ability to overthrow, it was passed.
• Act was needed for the security of Australia.
• This Act declared the communist’s to be a dissolved organization, also confiscating property.
• The Governor could declare groups able to confiscate.
• Individuals could not serve the public office due to their affiliations
• In invalid defence, no connections were found between act and power

Internal Security

• Defence reaches internal threats - terrorism
• Thomas v Mowbray ruling was because protection needed.
• 104 criminal code and those actions under act needed appropriate actions in context

Summary

• The defence protects by elastic security.
• High court decides acts, that must be necessary for defence.
• Power for internal was needed.