Section 51(xxix) of the Australian Constitution is a subsection of
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia enumerates the legislative powers granted to Federal Parliament by the Australian States at Federation.
The list contains 39 subsections, each referred to as a 'head of power' under which the parliame ...
that gives the
Commonwealth Parliament of Australia the right to legislate with respect to "external affairs".
In recent years, most attention has focused on the use of the power to pass legislation giving effect within Australia to its obligations under international
treaties and conventions. In some cases, as with human rights or
environmental protection
Environmental protection is the practice of protecting the natural environment by individuals, organizations and governments. Its objectives are to conserve natural resources and the existing natural environment and, where possible, to repair dam ...
, the activities regulated by treaty-implementing legislation have not been international in nature but rather located solely within Australia or even solely within a particular State.
In Australia, developments in international law have no direct effect for domestic purposes unless a deliberate law-making act by the proper law-making authority has "transformed" the international rule into a domestic rule.
Origins
According to Constitutional law academic Michael Coper, it is "not entirely clear what the founding fathers intended" by conferring upon the Commonwealth Parliament the right to legislate with respect to "external affairs".
Section 51(xxix) was amended a number of times in the Constitutional Conventions that debated the draft Constitution in the 1890s. The draft Constitution adopted by the 1891 Sydney Convention allowed the Parliament to make laws with respect to "External affairs and Treaties". This wording carried through the 1897 Adelaide Convention but the
New South Wales Legislative Council
The New South Wales Legislative Council, often referred to as the upper house, is one of the two chambers of the parliament of the Australian state of New South Wales. The other is the Legislative Assembly. Both sit at Parliament House in th ...
, when considering whether to ratify the draft, resolved to omit the words "and Treaties" on the basis that only the
Imperial Parliament ought to enter treaties that bound Australia. The removal of the explicit reference to treaties was confirmed by the delegates to the 1897 Sydney Convention and the 1898 Melbourne Convention.
In 1901,
Robert Garran
Sir Robert Randolph Garran (10 February 1867 – 11 January 1957) was an Australian lawyer who became "Australia's first public servant" – the first federal government employee after the federation of the Australian colonies. He served as th ...
and
John Quick suggested that the external affairs power would "prove to be a great constitutional battle-ground."
Some 86 years later, Coper remarked that their prediction "showed remarkable foresight".
External affairs
Relations with other countries
The term "external affairs" was used in section 51(xxix) rather than "foreign affairs" to make it clear that relations with the United Kingdom and other parts of the
British Empire
The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts esta ...
were intended to be included. When the
Australian Constitution
The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the ...
was created in 1901, the United Kingdom and its possessions were not conceived of as "foreign" to Australia.
Chief Justice Latham said in ''R v Sharkey'' (1949) that "external affairs" was not confined to the "preservation of friendly relations with other Dominions", but extended to relations with "all countries outside Australia".
Justice Brennan in ''
Koowarta v Bjelke-Petersen
''Koowarta v Bjelke-Petersen'',. was a significant court case decided in the High Court of Australia on 11 May 1982. It concerned the constitutional validity of parts of the ''Racial Discrimination Act 1975'', and the discriminatory acts of ...
'' (1982) extended this to relations with other "international persons", especially the United Nations and its various specialised agencies.
The judges in ''
Seas and Submerged Lands case'' (1975) differed as to whether the "external affairs" power entitled the Commonwealth to assert its sovereignty over Australia's
territorial sea
The term territorial waters is sometimes used informally to refer to any area of water over which a sovereign state has jurisdiction, including internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, and potenti ...
, though a majority held that it did.
[.] The underlying reason for this was that the idea of national rights with respect to the "
continental shelf
A continental shelf is a portion of a continent that is submerged under an area of relatively shallow water, known as a shelf sea. Much of these shelves were exposed by drops in sea level during glacial periods. The shelf surrounding an island ...
" had emerged since 1945 distinctly as a product of
international relations
International relations (IR), sometimes referred to as international studies and international affairs, is the scientific study of interactions between sovereign states. In a broader sense, it concerns all activities between states—such as ...
and
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
.
Matters external to Australia
According to Chief Justice
Barwick in ''Seas and Submerged Lands Case'', the external affairs power extends to anything "which in its nature is external to" Australia, or according to Justice
Mason
Mason may refer to:
Occupations
* Mason, brick mason, or bricklayer, a craftsman who lays bricks to construct brickwork, or who lays any combination of stones, bricks, cinder blocks, or similar pieces
* Stone mason, a craftsman in the stone-cut ...
"to matters or things geographically situated outside Australia".
[.] These suggestions were reinforced in later cases, and finally assumed decisive importance in ''
Polyukhovich v Commonwealth
''Polyukhovich v The Commonwealth'' 991HCA 32; (1991) 172 Commonwealth Law Reports, CLR 501, commonly referred to as the ''War Crimes Act Case'', was a significant case decided in the High Court of Australia regarding the scope of the exte ...
(War Crimes Act Case)'' (1991).
[.][.] In this case, all judges other than Justice
Brennan held that s 51(xxix) contained a sufficient grant of power to support a law to identify and
prosecute
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal tria ...
"
war crimes" committed in Europe during World War II. Chief Justice Mason, and justices Deane, Dawson and McHugh held that this conclusion was sufficiently based on the fact that the geographical location in which the relevant acts were alleged to have been done was physically external to Australia.
Implementing treaties (international law)
To some extent, there has been debate over whether the ratification of an international treaty may justify the exercise of Commonwealth legislative power for the purpose of the implementation of that treaty. There is a marked difference between earlier and modern approaches to this issue. Initial approaches produced an unqualified view that Parliament could legislate to give effect to any obligation or even non-binding recommendation contained in an international treaty once ratified. It was later qualified by Stephen J that it was necessary that the treaty at the very least deals with an area of international concern. However, this test of 'international concern' was rejected by Mason J in ''Tasmanian Dam Case'' in 1983, which outlines the current approach to implementing treaties and was later confirmed by subsequent cases.
[ and .]
See also
*
Section 51(xxx) of the Constitution of Australia
Section 51(xxx) of the Constitution of Australia grants the Commonwealth the power to make laws with respect to "the relations of the Commonwealth with the islands of the Pacific".
History
At the time of drafting, there were concerns that the pow ...
References
Cited texts
*
* (1990) 16 University of Queensland Law Journal 123 .
*
{{DEFAULTSORT:Section 51(Xxix) Of The Australian Constitution
Australian constitutional law