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AUSTRALIAN CONSTITUTIONAL LAW

ASSIGNMENT 1 COMMONWEALTH POWER, TREATIES AND LEGISLATION

Commonwealth Power, Treaties and Legislation

Introduction
By dint of the operation of s51 (xxix) of the Constitution, the Commonwealth Parliament has been provided with plenary legislative power in respect of external affairs. One aspect of this authority is the power to enter into international treaties and to pass compatible Australian legislation (the passing of legislation being necessary to give effect to international treaties as under common law1 the signing of a treaty does not make the treaty law within Australia).2

Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 (at 347) Lord Atkin, delivering the judgment of the Privy Council, stated that: Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes.
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Brown v Lizars (1905) 2 CLR 837, at 851 per Griffith CJ; Roche v Kronheimer (1921) 29 CLR 329; Chow Hung Ching (1948) 77 CLR 449 at 478 per Dixon J; Bradley v Commonwealth (1973) 128 CLR 557 at 582 per Barwick CJ and Gibbs J, 593 per Stephen J; Simsek v Macphee (1982) 148 CLR 636 per Stephen J; Tasmanian Wilderness Society v Fraser (1982) 152 CLR 270; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 193 per Gibbs CJ, 212 per Stephen J, 224 per Mason J; Kioa v West (1985) 159 CLR 550 at 570 per Gibbs CJ; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 55 per Brennan J (Mason CJ and McHugh J concurring), 79 per Deane and Gaudron JJ; Chu Kheng Lim v Commonwealth (1992) 176 CLR 1 at 74 per McHugh J; Dietrich v R (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J, 359-60 per Toohey J; Coe v Commonwealth (1993) 118 ALR 193 at 200-1 per Mason CJ; Minister for Immigration and Ethnic Affairs v Teoh supra n 1 at 287 per Mason CJ and Deane J (Gaudron J concurring), 370 per Toohey J, 384 per McHugh J; Kruger v Commonwealth (1997) 146 ALR 126 at 161 per Dawson J.

The High Courts wide interpretation of the Commonwealths powers under s51 (xxix)3 has enabled the Commonwealth to legislate in areas that it otherwise could not under the Constitution. This has impinged directly on areas once considered the preserve of the States and caused concern that the distribution of power between the States and Commonwealth agreed on at Federation can effectively be undermined by the Commonwealths use of its external affairs power combined with the treaties that it adopts.

Section 51 (xxix) External Affairs Power

The Powers of the Commonwealth Parliament are laid out in s 51 of The Constitution. S51 (xxix)4 simply states external affairs, however these two words have been interpreted by the High Court as conveying the Commonwealth Parliament with wide powers, including the power make laws in respect of affairs external to Australia, in relation to other countries and to enter into international treaties. Of these powers, the power to enter into international treaties may be the most controversial. In the century since federation the world has changed substantially, many issues which may have in earlier times been considered to be local concerns, such as pollution or deforestation, are now regarded as international issues. Justice Stephen in Koowarta v Bjelke-Peterson5, stated that Areas of what are of purely domestic concern are steadily contracting and those of international concern are

Australian Constitution s 51 (xxix). Ibid. (1982) 153 CLR 168

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ever expanding. Australia is currently signatory to approximately 1000 international treaties.6

The Commonwealth may enter into any international treaty, regardless of the subject matter7 and the Commonwealth Parliament alone has the power to decide whether or not a treaty concerns external affairs.8

Commonwealth Law Arising From International Treaties

In line with its international treaties, the Commonwealth Parliament is empowered to implement its international treaty obligations by enacting compatible Australian legislation. Higgins, J, was the first to suggest that the Commonwealths power to legislate with respect to external affairs is to a large extent unlimited. In Roche v. Kronheimer9 the validity of the Treaty of Peace Act 1919, the purpose of which was to give effect to the Versailles Treaty, was challenged. The Act was upheld under s51 (vi), however in the course of his judgment, Higgins, J, stated that the Act could also be upheld under s51(xxix); It is difficult to see what limits, if any, can be placed on the power to legislate as to external affairs. There are none expressed. No doubt, complications may arise should the Commonwealth Parliament exercise the
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Senator the Hon Gareth Evans QC, Minister for Foreign Affairs, International Treaties: Their Impact On Australia (Speech delivered at the International Treaties Conference, Canberra, 4 September 1995). 7 Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1. 8 R v Burgess; Ex parte Henry (1936) 55 CLR 608. 9 Roche v. Kronheimer (1921), 27 A.L.R. 254; 29 C.L.R. 329.

power in such a way as to propose a conflict between the relations of the Commonwealth with foreign governments and, the relations of the British government with foreign governments. It may be that the British Parliament preferred to take such a risk rather than curtail the self-governing powers of the Commonwealth; trusting with a well founded confidence, in the desire of the Australian people to act in co-operation with the British people, in regard to foreign government. The Burgess' case 10 and subsequently R v Poole: ex parte Henry (No 2) (1939) 61 CLR 634 confirmed the legislative power of the Commonwealth, but also highlighted divergent views between the High Court judges. In R v Poole: ex parte Henry (No 2)11 the Court accepted the view expressed by Starke, J., in the earlier Burgess' Case,12 to allow some flexibility in design and approach to the drafting of regulations provided that generally they faithfully represented the intent of the Convention. Latham,C.J.,13 in the minority, favoured a much narrower and tighter translation of the obligations cast by the Convention.

Later decisions by the High Court resolved these differences, and expanded the scope of legislative power. In Koowarta v Bjelke-

Peterson (1982),14 the High Court examined the validity of the Racial Discrimination Act 1975, which was passed in response to Australias commitment to the International Convention on the Elimination of all Forms of Racial Discrimination 1965. The legislation was upheld, with the international concern doctrine briefly elevated to a principle.

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R v Burgess; Ex parte Henry (1936) 55 CLR 608. (1939) 61 CLR 634. R v Burgess; Ex parte Henry (1936) 55 CLR 608. R. v. Poole, supra, at p. 642, per Latham, C.J. 153 CLR 168

Mason J observed that the doctrine of reserved powers had been decisively rejected in the Engineers case,15 and stated that: The power applies to a treaty to which Australia is a party, for it is not in question that such a treaty is an external affair or a matter of external affairs, subject only to the qualification, if it be a qualification, that the treaty is a genuine treaty ... It would seem to follow inevitably from the plenary nature of the power that it would enable the Parliament to legislate not only for the ratification of a treaty but also for its implementation by carrying out any obligation to enact a law that Australia assumed by the treaty. It is very difficult to see why such a law would not be a law with respect to an external affair, once it is accepted that the treaty is an external affair. Mason Js view was later adopted when the majority in the Tasmania Dam case16 rejected Stephen Js argument that the

treaty implementation aspect of s51 (xxix)17 was limited to those treaties relating to matters of international concern. Their

honours held that the existence of a treaty obligation was sufficient to give rise to an external affair. This approach was

confirmed in Queensland v Commonwealth (Tropical Rainforests case)18 and expanded by the High Court in Richardson v Forestry Commission19 to include non-obligatory or reasonably

apprehended obligation arising under a treaty as being legitimate subject matters for legislation. The question as to whether there is an additional requirement when implementing an international treaty that the subject-matter deal with a matter of international concern was resolved in Victoria v Commonwealth20 in which the
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Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' Case) (1920) 28 CLR 129(at p224). 16 Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1. 17 Australian Constitution s 51 (xxix). 18 [1989] 167 CLR 232. 19 (1988) 164 CLR 261. 20 Victoria v Commonwealth (Industrial Relations case) [1996] 187 CLR 416.

majority21 reaffirmed the Tasmania Dam case.22

Callinan &

Heydon JJ made mention of the issue in the XYZ case23 stating; There is no case in this Court deciding that the international concern doctrine exists. There are dicta which support the view, or which some contend support the view, that it does. But there is less to these dicta than meets the eye. Referring to this aspect of Merkel J's judgment, they criticised the doctrine in the following terms: These statements reflect the possibility that at different times a matter may not be of international concern, may then become of international concern, and may then cease to be of international concern again. But if validity is to depend on the position not only at the time of enactment but also at the time of contravention, the outcome will be that legislation which was once invalid can later become valid, and legislation which was valid when enacted can become invalid. This volatility, and the elusiveness connected with attempts to define "international concern", strongly suggest that the international concern doctrine does not exist; for if it did, it would operate antithetically to the rule of law.24

Limitations on legislation
Where the Commonwealth enters an international treaty and subsequently enacts legislation in reliance of s51(xxix) then that legislation is subject to the Constitution and its express and implied constitutional limitations. 25

Further, the High Court has established a number of parameters for consideration.

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Ibid 482-83 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1. XYZ v Commonwealth [2006] HCA 25 (at 607). XYZ v Commonwealth [2006] HCA 25 (at 608). Victoria v Commonwealth (Industrial Relations case) [1996] 187 CLR 416.

In Burgess26 the Court stated that any international treaty which Australia is party of must be bona fide. This was further refined in Koowarta v Bjelke-Petersen.27 In this case the Court stated that the Commonwealth could not enter into an international treaty merely to attract jurisdiction {An interesting aside to this is that the Court has also found that if the Commonwealth enters into a treaty which is void or unlawful under international law this does not invalidate the corresponding Commonwealth legislation}.28

The High Court has reserved itself the power to decide whether or not an international obligation arises from an international treaty.29

Any Commonwealth Act must be an appropriate means of giving effect to the object of the relevant international treaty or agreement,30 thus imposing an important limit on the scope of the external affairs power. While the Commonwealth is not obliged to implement every provision of treaty in order for the law to be valid, it may be cause to invalidate the law. In the Industrial Relations case31 it was found that partial implementation may invalidate the law if the deficiency is so substantial as to deny the law the character of implementing the treaty or where

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R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 642, 658, 669 and 687. (1982) 153 CLR 16. 28 Horta v The Commonwealth (1994) 181 CLR 183. 29 Ibid. 30 R v Burgess; Ex parte Henry (1936) 55 CLR 608, 646; R v Poole; Ex Parte Henry (No 20) (1939) 61 CLR 364; Airlines of New South Wales v New South Wales (No 2) (1965) 113 CLR 54, 82, 102, 118, 126, 141; Commonwealth v Tasmania (1983) 158 CLR 1; Richardson v Forestry Commission (1988) 164 CLR 261. There remains legislative discretion to choose among appropriate means for implementing those obligations: Commonwealth v Tasmania (1983) 158 CLR 1, 130131. 31 Victoria v Commonwealth (Industrial Relations case) [1996] 187 CLR 416.

the deficiency, when coupled with other provisions of the law, make it substantially inconsistent with the treaty.

Conclusion
Section 51 (xxix) of the Constitution grants the Commonwealth Parliament wide powers to enter into international treaties and pass corresponding legislation. However, there are genuine limits to this power. The treaty must be Bona Fide32, 33, 34 and have a clear regime with sufficient specificity with respect to the course to be taken in the treaty.35

The Commonwealth Parliament has the power to enact laws to meet international obligations, international recommendations and to confer benefits arising from international treaties. Again the extent to which the laws need to adhere to the treatys provisions depends on whether or not the law is reasonably proportionate to the objects of the treaty.36

While the Commonwealth is not obliged to implement every provision of a treaty in order for the law to be valid, there are limitations. The implementation must be sufficient so as to not deny the character of a measure of implementing the treaty and where there is a deficiency it must not, when combined with other provisions of the law, make it largely inconsistent with the treaty.37 Thus all laws must be
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R v Burgess; Ex parte Henry (1936) 55 CLR 608. Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1. 34 Koowarta v Bjelke-Peterson (1982) 153 CLR 168. 35 Victoria v Commonwealth (Industrial Relations case) [1996] 187 CLR 416. 36 Ibid. 37 Ibid.

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reasonably incidental to the execution of the purpose but wide departure from the purpose and obligations of the treaty is not allowed.

The High Court has maintained that it is Parliaments prerogative to determine whether or not a treaty concerns external affairs.38 However, the Court has asserted that it is the arbiter of whether or not a treaty in fact creates an international obligation for Australia.

The wide powers granted to the Commonwealth under S51(xxix) will continue to be the subject of debate as the High Court has not yet established the full principles of interpretation relevant to this important power and the interplay with the Federal nature of the Australian constitution.39

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R v Burgess; Ex parte Henry (1936) 55 CLR 608. Professor George Winterton, A Framework for Reforming the External Affairs Power <http://www.samuelgriffith.org.au/papers/html/volume5/v5chap2.htm)>.

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BIBLIOGRAPHY
A Books
Butterworths Concise Australian Legal Dictionary (LexisNexis

Butterworths,2007) Imtiaz Omar: Constitutional Law (LexisNexis Butterworths 2010, 3rd ed) Jennifer Clarke, Patrick Keyzer and James Stellios, Hanks Australian Constitutional Law (LexisNexis Butterworths, 2009, 8th ed)

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B Cases
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' Case) (1920) 28 CLR 129 Commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 Horta v The Commonwealth (1994) 181 CLR 183 Koowarta v Bjelke-Peterson (1982) 153 CLR 168 New South Wales v Commonwealth (Seas and Submerged Lands case) (1975) 135 CLR 337 Queensland v Commonwealth (Tropical Rainforests case) [1989] 167 CLR 232 R v Burgess; Ex parte Henry (1936) 55 CLR 608 R v Poole: ex parte Henry (No 2) (1939) 61 CLR 634 Richardson v Forestry Commission (1988) 164 CLR 261 Victoria v Commonwealth (Industrial Relations case) [1996] 187 CLR 416 XYZ v Commonwealth [2006] HCA 25

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C Legislation
Australian Courts Act 1928 (UK) Australian Constitutions Act 1842 (No 1) (UK) The Australian Constitutions Act 1842 Australian Constitutions Act 1850 (No 2) (UK) Colonial Laws Validity Act 1865 (UK) Federal Council of Australasia Act 1885 (UK) Commonwealth of Australia Constitution Act 1900 Treaty of Peace Act 1919 Statute of Westminster 1931 (UK) Statute of Westminster Adoption Act 1942 (Cth) Racial Discrimination Act 1975 (Cth)