Constitutional Law

“There are few practical legal limits to the Commonwealth’s power to implement treaties, the principal constraint being that the legislation must truly implement the treaty and not use it as a peg upon which to hang legislation on the general subject-matter regulated by the treaty.” Examine this statement critically in the light of case-law and commentary.

By virtue of s 61 of the Commonwealth of Australia Constitution Act (the “Constitution”), the Commonwealth Government is vested with the prerogative to enter into international treaties 1 . In order for an international treaty to have legal effect in Australia, the Commonwealth Parliament must implement the treaty in reliance on its legislative power conferred to it by s 51 (xxix) of the Constitution. S 51(xxix) of the Constitution empowers the Commonwealth Parliament to make laws with respect to external affairs and comes into play in three different situations:

  

matters geographically external to Australia; implementing international obligations into Australia‟s legal system; and relationship between Australia and other countries 2.

As evident in the last century, the High Court‟s view on the definition and scope of and limitations on the operation of s 51 (xxix) has been far from unanimous. By
1

Commonwealth v Tasmania (1983) 158 CLR 1 at 299 P. Keyzer, J. Clarke and J. Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary,

2

(LexisNexis Butterworths, 2009) p 240

1

Constitutional Law looking at precedent cases. if they entail alteration of the existing domestic law. Treaty-implementation In Australia. who is authorized by the federal Executive Council to enter into treaties on behalf of Australia. To implement a signed and ratified treaty in Australia. This arrangement is in accordance with a well-established common law doctrine of separation of powers and was highlighted by the Privy Council in Attorney-General for Canada v Attorney-General for Ontario3: “Within the British Empire there is a well-established rule that the making of a treaty is an executive act. the Commonwealth Parliament must legislate in reliance on its legislative power given to it by s 51(xxix) of the Constitution. while the performance of its obligations.” 3 [1937] AC 326 at 347 2 . requires legislative action. it can be seen that the judiciary has attempted many times to create limitations on the Commonwealth Parliament‟s external affairs power to ensure that the legislature will not abuse its legislative power under s 51 (xxix) of the Constitution and to safeguard democracy in the treaty-implementation process. and subsequent ratification by the Commonwealth Parliament do not automatically confer the terms of the treaty with legal status. the signing of a treaty by the Minister for Foreign Affairs.

the majority of the High Court found that the states‟ jurisdiction terminated at the low-water mark6 and thus the Commonwealth Parliament validly exercised its external affairs power under s 51(xxix) of the Constitution in enacting the Seas and Submerged Lands Act as the 4 Commonwealth v Tasmania (1983) 158 CLR 1 at 131 and 172 (1975) 135 CLR 337 Ibid. Geographical constraint In New South Wales v Commonwealth5. The Seas and Submerged Lands Act was enacted by the Commonwealth Parliament to give effect to two international conventions namely the Convention on the Territorial Sea and Contiguous Zone and the Convention on the Territorial Shelf and declared that the sovereignty over the territorial sea from the low-water mark to three nautical miles seaward was vested in the Commonwealth. High Court has adopted a broad interpretation on the Commonwealth Parliament‟s power to implement treaties but this power is by no means plenary in nature4. at 368 5 6 3 .Constitutional Law In the past century. all six states challenged the validity of The Seas and Submerged Lands Act 1973 (Cth). As an attempt to safeguard the ideology of separation of powers and federal framework in Australia. the High Court has identified several limitations on the treaty-implementation aspect of the Commonwealth Parliament‟s external affairs power under s 51 (xxix) of the Constitution. In respect of the externality element of s 51(xxix).

Constitutional Law legislation in question dealt with matters geographically external to Australia7. Such impairment and additional burden can be seen in Canada where certain treaties must be implemented by Provincial governments and certain scholars have viewed this arrangement a burden on Canada in the international community 10 . Therefore. Constitutional Law of Canada. p 295 rd 9 10 4 . 1992. the treaty-entering process will be severely impaired and will perhaps make Australia an „international cripple‟9. any reform in the treaty-implementation 7 The low-water mark boundary has been altered by the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth). The two legislations provide the states with sovereignty over coastal waters adjacent to their coastlines and such coastal waters extend out to three nautical mile territorial sea limit.”8 One argument supporting such unification of Australia in dealing with matters external to Australia is that if each State were to have their own autonomy in entering into treaties. there is no division with respect to matters which lie outside Australia. 8 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 638 New South Wales v Commonwealth (1975) 135 CLR 337 at 503 PH Hogg. Carswell. 3 ed. The High Court‟s decision in New South Wales v Commonwealth received support in subsequent cases such as Polyukhovich v Commonwealth where Dawson J further explained the geographical externality limb of s 51(xxix) of the Constitution: “although the sovereignty of the Australian nation is divided internally between the Commonwealth and the States. Toronto.

Test of conformity Another situation where the Commonwealth Parliament can exercise its legislative power under s 51 (xxix) of the Constitution is when implementing an international obligation into the Australian legal system. In other words. it creates an international obligation where s 51 (xxix) of the Constitution can operate under. once Australia has entered into a binding treaty or convention. the subject matter must be geographically external to Australia and the boundaries of Australia may change over time. ex parte Henry No. 2 12 . As observed by Mason J in Commonwealth v Tasmania11.Constitutional Law process in Australia must strike a balance between federalism and democracy on one hand and Australia‟s national interest in external affairs on the other. it can be seen that where the Commonwealth Parliament wishes to legislate in reliance on the geographical aspect of the external affairs power under s 51(xxix) of the Constitution. as identified in the majority judgment of R v Poole. the mere act of entering into a treaty or convention does not grant the 11 (1983) 158 CLR 1 at 125 (No 2) (1939) 55 CLR 608 at 87 12 5 . From New South Wales v Commonwealth and Polyukhovich v Commonwealth. “the existence of international character or international concern is established by entry by Australia into the convention or treaty”. However.

Lee. 13 Commonwealth v Tasmania (1983) 158 CLR 1 at 260. at 260 16 17 6 . at 232 Ibid. the court upheld that one important limitation on treaty-implementation is the requirement for the enactment which implements the treaty to conform to that treaty. In Commonwealth v Tasmania15. and not fancifully. or ostensibly. The former judge took the view that a legislation would be in conformity with the treaty if it could be “reasonably considered conducive to the performance of the obligation imposed by the [treaty]” 16 whilst the latter judge highlighted that conformity can be established where the legislation in question can reasonably be seen “to be really. Richardson v Forestry Commission (1988) 164 CLR 261 at 311-312 14 H.Constitutional Law Commonwealth Parliament a plenary legislative power in respect of that subject matter. Lee and George Winterton (Eds). Instead. the measures adopted by the Commonwealth Parliament to implement the terms of a treaty or convention must be reasonably proportional to the purposes of the treaty 13 . colourably. the domestic law giving effect to the provisions of the treaty or convention must be “appropriate and adapted” to the terms of the treaty. P. In other words. 82-83 15 (1983) 158 CLR 1 Ibid. Australian Constitutional Perspectives (1992) pp. As observed by Professor Lee. “[i]t is now widely accepted that it is within the domain of the Commonwealth Parliament to determine what constitutes the appropriate legislative means to give effect to a treaty”14. referable to the purpose of the Convention” 17. Brennan J and Deane J identified two tests for conformity. „The High Court and External Affairs Power‟ (Chpt 3) in: H. P.

make it substantially inconsistent with the Convention”19. will partial implementation of a treaty affect the validity of the treatyimplementing legislation? In Victoria v Commonwealth18. the majority‟s judgment seems to suggest that partial implementation would not cause the treaty-implementing legislation to be void: “deficiency in implementation of a supporting Convention is not necessarily fatal to the validity of a law. at 489 19 7 .Constitutional Law If the test of conformity must be satisfied for a treaty-implementing legislation to be valid. but a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which. Bona fide One major challenge against the wide interpretative approach to international obligation and the discretion given to the Commonwealth Parliament to decide the best means of implementing such international obligations is that “there are serious dangers in the use of a power of this sort to interfere in the conduct of any subject matter by the 18 (1996) 187 CLR 416 Ibid. when coupled with other provisions of the law.

the treaty in question must be bona fide 21 .‟s judgment suggests that this bona fide limitation will only come into operation where the treatyimplementing legislation is an absolute intrusion in a State‟s autonomy. J. caused 20 A. Parliament – The Vision in Hindsight (Federation Press. the High Court has held that even though the Commonwealth Parliament can implement a treaty concerning the internal affairs of Australia. Gibbs C. criticized such approach and was of the view that it is not an effective limitation to protect the “federal character of the Constitution” and that “the doctrine of bona fides would at best be a frail shield. Keith.J. In addressing this intrusion of State powers. Lindell 21 22 23 and R. In Koowarta v Bjelke-Petersen. (1938). p. and available in rare cases”24. The Dominions as Sovereign States.Constitutional Law States” 20 . Brennan J elaborated on this limitation and explained that the court would strike down any provisions enacted by the Commonwealth Parliament in the process of treaty-implementation if it is of the view that it was a “colourable attempt” to convert a matter of internal concern into an external matter 22 . London. The external affairs power provides the Commonwealth Parliament with legislative powers on subject matters which are normally part of the States‟ jurisdictions and thus hindering federalism in Australia. 2001) 24 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 220 8 . „Federal Parliament‟s Changing Role in Treaty Making and External Affairs‟. Therefore. Gibbs C. B. the Commonwealth Parliament cannot implement a treaty with another country which has no bearing but was only an attempt by the Commonwealth Government to attract jurisdiction under s 51 (xxix) of the Constitution23. in: G. Twomey. 444 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 224 Ibid. McMillan & Co. Bennett (Eds). at 664 A.

The express limitation “subject to [the] Constitution” stipulated in s 51 of the Constitution means that any legislations enacted in reliance on s 51 of the Constitution by the Commonwealth Parliament must not contravene other provisions of the Constitution such as s 116 (Commonwealth not to legislate in respect of religion) and s 115 (States not to coin money). order.g. Constitutional constraint The legislative powers listed in s 51 of the Constitution are “subject to [the] Constitution” 25 and must be “for the peace. federalism and democracy). Mason J went on further to explain that the Commonwealth Parliament‟s external affairs power is also limited by implied limitations in the sense that the “Commonwealth 25 S 51 of the Constitution Ibid Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 10 26 27 9 .Constitutional Law perverse of justice or violates fundamental ideologies of the Constitution (e. and good government of the Commonwealth”26. Mason J‟s judgment in Koowarta v Bjelke-Petersen highlighted that the Commonwealth Parliament‟s external affairs power under s 51 (xxix) of the Constitution is “subject to the express and to the implied prohibitions to be found in the Constitution”27.

the court would invalidate the provision based on the ground that such acts hinder the implied yet fundamental ideology of separation of powers in Australia‟s Constitution. Whether the words “for the peace. provisions directing State judges to exercise their judicial power in a certain manner would also become void based on the same reasoning 30. the court can readily invalidate a legislation on the basis that it violates fundamental constitutional principles of Australia. at 226 (1992) 176 CLR 1 Re Australian Education Union. the High Court held that if the Commonwealth Parliament enacted provisions in reliance on s 51 of the Constitution which interferes federal judges by directing them to exercise their judicial power in a certain manner. order and good government” operate as a limitation or a phrase granting the Commonwealth Parliament plenary to legislate on matters listed in s 51 of the Constitution has been subject to many judicial and academic discussions. The words were derived from instruments that defined colonial governors‟ powers.Constitutional Law cannot legislate so as to discriminate against the States or inhibit or impair their continued existence or their capacity to function” 28. Such examples of implied limitations are non-exhaustive and. Local Government and Ethnic Affairs 29 . Ex parte Victoria (1995) 128 ALR 609 at 629-632 29 30 10 . similar to the bona fide limitation discussed above. Similarly. Such proposition was supported by Lord Mansfield in Campbell 28 Ibid. In Chu Kheng Lim v Minister for Immigration. The original purpose of the words was to control the use of the legislative powers given to the governor by instructing the governors as to the limits and purpose of their powers.

the High Court judges concluded that: “…it is now for Parliament alone to judge whether a measure in respect of any topic on which it has power to legislate is in fact for the peace. order and good government” has also been disputed. the treaty in question must be related to a matter of international concern. The High Court has not derived an objective test for this limitation but however the words are to be interpreted. Ex parte Eastern Australian Steamship Co. welfare and good government” as directions to the governors31. the scope of the words “for the peace. In R v Foster. Stephen J took the view that in order for the Commonwealth Parliament to legislate under s 51 (xxix) of the Constitution.Constitutional Law v Hall where the learned judge characterized the phrase “for the public peace.”32 Even as a limitation. Ltd. the Commonwealth Parliament should be aware their legislative power conferred to them by s 51 of the Constitution is not absolute and that the judiciary can and will challenge the legislations enacted them if there is abuse of power. order and good government of the Commonwealth. International concern In Koowarta v Bjelke-Petersen33. 204 (1991) 65 ALJR 521 at 525 (1982) 153 CLR 168 32 33 11 . The case involved a 31 (1774) Cowp.

The test has been applied differently by different judges and it is difficult to see from the precedents how this test operates precisely. In Commonwealth v Tasmania 35 . restrict or give preference based on race. One critical problem with the test of international concern is that it lacks clear guidelines. its validity should nevertheless be upheld because the legislation implemented a treaty which a addressed a matter of international concern. Stephen J acknowledged that even though the Racial Discrimination Act 1975 only addressed racism domestically. The test of international concern was rejected by the High Court in subsequent cases and the recognition that international concern is no longer a limitation to the external affairs power under s 51 (xxix) of the Constitution but may merely operate as an independent limb of the external affairs power received judicial support 34 . Some judges have taken the 34 Commonwealth v Tasmania (1983) 158 CLR 1 and Victoria v Commonwealth (1996) 187 CLR 416 (1983) 158 CLR 1 at 125 35 12 .Constitutional Law dispute on the validity of the Racial Discrimination Act 1975 which was enacted by the Commonwealth Parliament to implement the International Convention on the Elimination of All Forms of Racial Discrimination. Mason J rejected Stephen J‟s test of international concern by holding that the test is redundant as “the existence of international character or international concern is established by entry by Australia into the convention or treaty”. descent or national or ethnic origin. colour. exclude. Section 9(1) of the Racial Discrimination Act 1975 provided that it is unlawful to distinct.

the Commonwealth Parliament‟s treaty.implementation power under s 51 (xxix) of the Constitution is not plenary in nature. at 234 (Mason J) Polyukhovich v Commonwealth (1991) 172 CLR 501 at 561 (Brennan J) 37 38 13 . discussion and negotiation37 and whilst some believed that international concern can be evidenced by the norms of the international community38. Several limitations have been identified above of which the test of conformity has perhaps been invoked the most often in invalidating a treaty36 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 216-217 (Stephen J) Ibid.Constitutional Law view that international is something which will affect Australia‟s relations with other nations 36 . the High Court has identified several limitations and checks on the external affairs power. To safeguard federalism and separation of powers in Australia. Conclusion The Commonwealth Government has unlimited power to enter into treaties under s 61 of the Constitution on behalf of Australia. as evident in precedents from the past century. The scope and how these limitations and checks operate has been under much judicial and academic debate. Australia as a whole should be able to bind itself to international obligations to maintain its competitive edge in the international arena. The power to enter into treaties is plenary to prevent Australia from being an “international cripple”. On the other hand. some held that it is a topic of international debate.

Constitutional Law implementing legislation by the High Court.613 14 . However. the Commonwealth Parliament should be aware that the High Court‟s divided views on the scope its power under s 51 (xxix) of the Constitution leaves open the possibility for the judiciary to interfere and create new limitations in the future. Word count: 2.

1992) pp. Articles/Books/Reports George Winterton. Constitutional Law of Canada (Carswell. „Limits to the Use of the “Treaty Power”‟ (Chpt 2) in: Philip Alston and Madelaine Chiam (Eds). Lindell and R. „The High Court and the External Affairs Power: A Consideration of its Outer and Inner Limits‟ (1993) 15 Adelaide Law Review 209 A. „Federal Parliament‟s Changing Role in Treaty Making and External Affairs‟. Keith. Australian Constitutional Perspectives (Law Book Co of Australiasia. 60-91 Donald R. Rothwell. Lee and George Winterton (Eds). 2011) A. 29-51 H. Parliament – The Vision in Hindsight (Federation Press. H. London. in: G. (1938) 15 . Treaty-Making and Australia : Globalisation versus Sovereignty (Federation Press. McMillan & Co. Hogg. 1995) pp. P. Lee. „The High Court and the External Affairs Power‟ (Chpt 3) in: H.Constitutional Law Bibliography A. Twomey. B. 2001) P. P. Bennett (Eds). The Dominions as Sovereign States.

Killey. Clarke and J. Stellios. 2010) B. Keyzer. Cases Commonwealth v Tasmania (1983) 158 CLR 1 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 New South Wales v Commonwealth (1975) 135 CLR 337 Polyukhovich v Commonwealth (1991) 172 CLR 501 R v Poole. (LexisNexis Butterworths. „Peace. ex parte Henry (No 2) (1939) 55 CLR 608 16 . J. Butterworths Questions and Answers Constitutional Law (LexisNexis Buttherworths. 2009) Lan D.Constitutional Law P. Hanks’ Australian Constitutional Law: Materials and Commentary. Omar. Order and Good Government: A Limitation on Legislation Competence‟ (1990) 173 Melbourne University Law Review 25 I.

Legislation Australian Constitution Seas and Submerged Lands Act 1973 (Cth) Coastal Waters (State Powers) Act 1980 (Cth) Coastal Waters (State Title) Act 1980 (Cth) Racial Discrimination Act 1975 (Cth) D. Treaties 17 .Constitutional Law Victoria v Commonwealth (1996) 187 CLR 416 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 Re Australian Education Union. 204 C. Ex parte Victoria (1995) 128 ALR 609 Campbell v Hall (1774) Cowp.

Constitutional Law Convention on the Territorial Sea and Contiguous Zone. opened for signature 21 December 1965 (entered into force 4 January 1969) 18 . opened for signature 29 April 1958 (entered into force 10 September 1964) International Convention on the Elimination of All Forms of Racial Discrimination.

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