External Affairs Power Research Articles

Labor, the External Affairs Power and the Rights of Aborigines

The Australian Constitution gave the Commonwealth not a “treaty power” but a vague power over “external affairs,” the precise meaning of which was elusive for most of the twentieth century. From the 1930s, Labor judges and politicians such as H. V. Evatt saw its potential to extend Commonwealth power by legislating international agreements throughout Australia. The non-Labor parties rejected the idea of using the “external affairs” power to legislate in areas formerly the responsibility of the states but the federal Labor Party continued in the Evatt tradition. After significant uncertainties, the Whitlam government used the external affairs power to pass the Racial Discrimination Act 1975, the first significant human rights legislation in the country, which in turn had a profound effect on the law of the land in the country by making the second Mabo Case possible.

Australia’s Journey to Ratification of the ICESCR and ICCPR

Abstract This article explores Australia’s journey to ratification of the ICESCR and ICCPR. From a somewhat languorous consideration of the Covenants following their adoption by the General Assembly in 1966, the Australian federal government moved to enthusiastically support signature and ratification after the election of the Whitlam government. However, tensions over federal-State demarcations and the potential use of the external affairs power stymied progress. It was not until the Fraser government period that each Covenant was ratified. Exploring this history reveals the depth of divisions concerning respective roles of the Commonwealth and the States in the human rights arena and highlights the role of ‘lighter’ interpretations of obligations in facilitating consensus.

Internal and external affairs: the Koowarta case in context

This article is partly based on observation of the High Court deliberations on the Koowarta case in 1982 and partly on reflection on its significance in defining the relationship between the Australian legal system and international law. It also contrasts the broad approach of the majority to the external affairs power with its analysis of the races power. The article suggests that the intense legal debates about the proper spheres of international, national and state law contained in the judgments are reflected in political debates today.

Koowarta: constitutional landmark, transition point or missed opportunity?

Beyond the immediate significance to Wik-Mungkan people and Aboriginal peoples more generally, Koowarta v Bjelke-Petersen was an important constitutional case for several reasons. First, it confirmed that the Australian parliament could enact national human rights laws binding on the states. Second, the decision showed how close the High Court of Australia in the early 1980s came to revisiting the propulsive centralism of the Engineers decision, a central tenet of Australian constitutional doctrine, but also exposed the elusiveness at the heart of the pro-federalist interpretation of the external affairs power, thereby setting the stage for the affirmation of central government power a year later in the Tasmanian Dam case. Third, the court failed to persuasively address credible arguments that the races power in s 51(xxvi) of the Constitution could support a national law prohibiting racial discrimination. The Koowarta decision was, in these three respects, simultaneously a landmark, a turning point and a missed opportunity. In a contemporary sense, when alterations to the Australian Constitution in respect of Aboriginal and Torres Strait Islander peoples are under active consideration, Koowarta underlines the importance of choosing amending words carefully – history suggests the court may not, of its own volition, bring a non-discriminatory mindset to the question of constitutional interpretation.

Back to ABC after XYZ: Should we be Concerned about ‘International Concern’?

The recent High Court decision of XYZ v Commonwealth ('XYZ')2 has strengthened the aura of uncertainty surrounding the concept of 'international concern' and its role in widening the application of s 51(xxix) of the Commonwealth Constitution. This article considers the XYZ decision in light of past judicial exegesis and addresses what may lie ahead for this aspect of the external affairs power.

Why wasn't genocide a crime in Australia? Accounting for the half century delay in Australia implementing the Genocide Convention

Australia ratified the Convention on the Prevention and Punishment of the Crime of Genocide on 8 July 1949 but did not legislate to make genocide a crime in Australia until 2002. This article addresses the question as to why there was such a delay. It finds that at first the sticking point was constitutional uncertainty regarding the use of the external affairs power where the detail of the implementing legislation needs to differ from the terms of the obligations Australia has assumed by treaty. As time went on the delay became an embarrassment for Australia and the matter was relegated to the ‘too hard’ basket. It was the complementarity provisions of the Rome Statute of an International Criminal Court that finally prompted the Australian Government into belatedly implementing its obligations under the Genocide Convention. The prospect of litigation by Indigenous Australians no doubt ensured that when the Commonwealth Government finally legislated to make genocide a crime in Australia it did not do so retrospectively.

Treaties and Intergovernmental Relations in Australia: Political Implications of the Toonen Case

This article explores the political implications of the Toonen case for studies of Australian federalism. The case involved a finding by the United Nations Human Rights Committee that Tasmania’s anti‐gay laws breached Australia’s human rights obligations, and the subsequent passing of the Human Rights (Sexual Conduct) Act 1994 (Cth) designed to override sections of Tasmania’s criminal law.The Commonwealth’s use of the external affairs power to ratify international treaties is outlined, and some questions regarding Commonwealth and state responsibilities and areas of concern flowing from treaty ratification are examined. The Privacy Act is discussed, and the character of intergovernmental relations and cooperation in this instance analysed.The case raises the question of whether the Commonwealth’s capacity to use and expand its powers is subject to effective checks and balances, or is limiting or eroding the powers of the states to the extent that the division and sharing of powers no longer represents that of a federal system. The article concludes that Australian federalism is dynamic and flexible, and reaffirms that a differentiation between the process and outcome of intergovernmental relations will enhance our understanding of its machinations.

The External Affairs Power and Environmental Protection in Australia

The External Affairs Power and Environmental Protection in Australia

The External Affairs Power and Environmental Protection in Australia

The External Affairs Power and Environmental Protection in Australia

The ILO to the Rescue? A Mote on Japanese and Australian Experiences

In the aftermath of the Victorian State election in 1992, the election of a conservative administration and the enactment of new State labour laws, momentum gathered within the labour movement to utilise ILO Conventions as a means of striking down the Victorian laws. The idea was: the ILO to the rescue; that the external affairs power of the Commonwealth Constitution together with legislation based on ratified ILO Conventions might be utilised to salvage some important trade union and related rights.At different periods in the post-War histories of the Australian and Japanese labour movements, there have been calls for utilising International Labour Organisation Conventions in order to salvage some important trade union rights that those movements have fought to achieve over this century.

The External Affairs Power: Another Province for Law and Order?

Although there was some surprise when the prime minister announced that the government would legislate to give effect to certain conventions of the International Labour Organisation, the way has been open to take this initiative for many years. The possibility of relying on the external affairs power in the Constitution to invoke the conventions, and thereby regulate labour conditions, was first canvassed in the High Court in 1936. Since 1982, there has been a series of cases involving Common wealth legislation founded on conventions to which Australia is party and it is now well established that the external affairs power will support domestic legislation giving effect to Australia's international commitments. To date, Commonwealth legislative initiatives have been in such areas as prohibiting racial discrimination and the protection of world heritage properties, but the reasoning which has been applied by the High Court is equally relevant to legislation providing for regulation of labour conditions. Commonwealth legislation in this field has meant an erosion of state responsibility and the cumulative effect of such legislation raises questions about the disturbance of the federal balance established by the Constitution.

Australian Federalism and the Debate Over a Bill of Rights

Successive Australian Labor governments have tried to nationalize standards for the protection of rights either by means of a statutory bill binding on the states under the Commonwealth's much expanded external affairs power, or by further entrenching specific rights in the Constitution. All these attempts have failed for a variety of political and constitutional reasons including, importantly, the strength of Australia's established system of federalism and parliamentary responsible government. The article examines the constitutional issues underlying the debate over a bill of rights for Australia, arguing that Labor's attempts to implement a bill of rights have been inspired by a preference for more centralized government whereas the defeat of such initiatives indicates the established strength of Australian federalism.

EXTERNAL AFFAIRS AND FEDERALISM IN THE TASMANIAN DAM CASE

As a result of Commonwealth v. Tasmania (the Tasmanian Dam case), the broad view of the Commonwealth's legislative competence to implement treaties under the external affairs power in s. 51(29) of the Constitution has been established. The members of the majority founded their argument on canons of constitutional interpretation deriving from the decision in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (The Engineers case). In their attempt to justify a more restrictive view of s. 51(29), the minority referred to general reasoning and implications arising from their conception of the federal nature of the Constitution.What this article offers is a view of the merits of the competing approaches — federal considerations contra Engineers principles — advanced with respect to the meaning of s.51(29)5.

Koowarta v Bjelke-Peterson and Others State of Queensland v Commonwealth of Australia

Constitutional law — Constitution (Cth) s 51(xxix) —external affairs power — whether racial discrimination a matter of international concern — Constitution (Cth) s 51(xxvi) — laws for the people of any race — Racial Discrimination Act 1975 (Cth) ss 9, 12 — locus standi — “person aggrieved”. Racial Discrimination — Racial Discrimination Act 1975 (Cth) ss 9, 12 — constitutional validity — Constitution (Cth) s 51(xxvi), s 51(xxix).

Education and the External Affairs Power: Implications for the Governance of Australian Schools

The High Court of Australia continued to develop its broad interpretation of the external affairs power of the Commonwealth Constitution (section 51(xxix)) in the Koowarta case in 1982. The arguments of the justices and the implications of the decision for the governance of schooling in the Australian federal system — given the several international conventions which have education as a central concern or allude to it and to which Australia is a signatory — are explored in this paper. The broad interpretation oy the Court both gives the Commonwealth powers over education not hitherto held and negates the commonly held view that education is a States’ right. The Court's decision, in which education is incidentally mentioned as being affected by the broad interpretation, necessarily involves the Commonwealth in the governance of Australian schooling, given its obligation to implement treaties to which it is a signatory.

Policy without Authority: Singapore's External Affairs Power

External affairs have exercised the minds and loyalties of a sizeable section of Singapore's politically articulate population ever since the first preparations towards self-government were taken in 1955. Even though questions of defence and foreign policy were until September 1963 the responsibility of Whitehall exclusively and thereupon transferred to the Malaysian central government, Singapore developed its own informal relationships with several foreign or Commonwealth states during those years and hotly debated international problems which seemed to impinge on the island's political future.