Challenging the Power of the Commonwealth

Part A It is obvious, from the facts presented, that this question is primarily concerned with the implementation of the international convention in Australian domestic law, and the validity of the process of this implementation in accordance with section 51(xxix) of the Constitution, also known as the ‘external affairs power’. Before such a conclusion can be reached, it is firstly important to understand the limits and scope of this power and hence comprehend whether the Commonwealth has exceeded its legislative limits in ratifying such an international convention. The courts have taken the liberty, over the years, of setting certain restrictions on the ability to exercise this external affairs power, as well as defining its scope of application. The term ‘external affairs’ in generally used instead of ‘foreign affairs’ in order to distinguish between the affairs of the United Kingdom and other countries, as the Australian judiciary has generally not regarded the UK as a foreign entity, given that the Australian constitution is essentially an act of the UK Parliament.[1] Thus, the courts have sought to further define the notion of external affairs in order to avoid this ambiguity. In the same case, Latham CJ expressed that this notion was not confined to the “preservation of friendly relations with other Dominions”, but also extended to relations with “all countries outside Australia”.[2] In attempting to further define this notion Gibbs CJ, in the case of Koorwata v Bjelke-Petersen, expressed: It has never been doubted that the words of s51(xxix) are wide enough to empower the Parliament, in some circumstances at least, to pass a law which carries into effect within Australia the provisions of an international agreement to which Australia is a party.[3] In the Koorwata case, Gibbs CJ also went on to refer to the case of Roche v Kronheimer (1921) 29 CLR 329, where Higgins J considered the constitutional validity of regulations made by the Commonwealth legislature to implement an international convention in relation to aerial navigation. The court held, in this case, that such an act by the Commonwealth was valid in a constitutional sense; however they held that the regulations themselves did not actually give effect to the international convention, hence overturned the legislation. This also followed the ratio decidendi of Evatt and McTiernan JJ in the case of R v Burgess; Ex parte Henry, where it was held: But it is a consequence of the closer connection between the nations of the world (which has been partly brought about by the modern revolutions in communication) and of the recognition by the nations of a common interest in many matters affecting the social welfare of their peoples and of the necessity of co-operation among them in dealing with such matters, that it is no longer possible to assert that there is any subject matter which must necessarily be excluded from the list of possible subjects of international negotiation, international dispute or international agreement.[4] Furthermore: In truth, the King's power to enter into international conventions cannot be limited in advance of the international situations which may from time to time arise. And in our view the fact of an international convention having been duly made about a subject brings that subject within the field of international relations so far as such subject is dealt with by the agreement.[5] And, finally they concluded: It would seem clear, therefore, that the legislative power of the Commonwealth over ‘external affairs’ certainly includes the power to execute within the Commonwealth treaties and conventions entered into with foreign powers.[6] Accordingly, based upon the persuasive authorities cited above, it is clear that the Commonwealth legislature has the power to implement international conventions to which Australia is a party. However, it has also been prescribed by the courts that such an action must make inroads in implementing such a convention, and must not attempt to push a government’s own agenda in relation to an international agreement.[7] In other words, the relevant implementing legislation must substantially implement the convention in its entirety; otherwise the court may be obliged to overturn the legislation. In regards to the legislation in question, it is clear that it does not make significant progress in implementing the aims of the international convention. It tends to omit key provisions from the relevant operative clauses of the convention, such as that in relation to the research body. The legislation does, however, make more definitions that are specific to the Australian context, such as the definition of key time slots for the banning of junk food, and the identification of means of reducing junk food consumption (such as the ban of sale to anyone under the age of 12). It is permitted to do this under the scope of the convention, as well as the relevant case law relating to the implementation of international conventions. The definition of junk food outlets in section 3 of the legislation appears to comply with the definitions in the international convention, and thus does not raise a problem of constitutionality. However, the convention does not specify that the Commonwealth should prescribe compulsory daily exercise programs, as has been implemented in section 17 of the Act. This, combined with the fact that the Act does not implement the research body prescribed in the convention, would illustrate that the Commonwealth is unable to rely on its external affairs power to implement this legislation. The relevant authorities do allow for the Commonwealth to ratify international agreements to which Australia is a party, provided that the legislation conforms somewhat to the convention to be implemented.[8] Clearly, the legislation does not conform enough to the international standard set by the convention, thus the Commonwealth cannot rely solely on section 51(xxix), and thus the legislation is constitutionally invalid based on this head of power. Part B Based on the precedents in Australian constitutional law, it would be difficult not to support the claim made by Dawson J. This is based on a number of factors, not the least of which relates to the manner that the High Court has interpreted the external affairs power, section 51(xxix). As a general rule, if the laws of Australia require a change in order to conform to the standards set by an international treaty or convention, then section 51(xxix) will support that change.[9] However, the High Court has also sought to place further restrictions on the reliability of this rule, in order to prevent the Commonwealth legislature from taking advantage of the external affairs power and hence possibly interfering with matters that would normally be left to the jurisdiction of the States. The High Court has said that, in order for section 51(xxix) to be relied on in regards to international treaties, the proposed Commonwealth law must seek to implement legislative regimes that the treaty itself has sought to prescribe for its signatory states,[10] and hence not seek to push its own legislative agenda. In the context of Dawson J’s statement, it is clear that while the subject-matter of an international agreement must be limited, the law that implements it must essentially conform to the strict standards of that international agreement.[11] In regards to the subject-matter of an international agreement, the High Court has addressed this issue on a number of occasions. The court has held previously that the limits of international agreements that the Commonwealth may ratify into law need not only be restricted to the areas where they have legislative competence.[12] Additionally, the High Court has also said that it may not also be limited to areas of international concern, or Commonwealth jurisdiction under international law.[13] Essentially, this elaboration by the High Court grants substantial discretionary power onto the Commonwealth in regards to international agreements, with the general rule being that entry into such an agreement represents the executive and the legislature claiming that the subject-matter of the agreement is of significant concern to the Australian jurisdiction, and hence the High Court will generally support this exercise of judgement.[14] Thus, it would appear that the High Court is willing to support an essentially unlimited discretion by the Commonwealth in relation to international agreements, as the court has prescribed that there are no practical limits to the subject-matter of international agreements. Previous examples of such support by the High Court include Commonwealth legislation ratifying international treaties in relation to:

• Enforcing basic minimum safety standards in Australia in relation to air navigation;[15]
• The control of territorial sea and the continental land shelf;[16]
• Acts of racial discrimination;[17]
• Protection of world heritage listed land;[18] and
• Protection of land pending a decision on its world heritage status.[19]

These cases show that, where the States have challenged Commonwealth power in relation to reliance upon section 51(xxix) for implementation of international agreements, the challenges have generally failed, and the Commonwealth has received the support of the High Court. Therefore, at least in relation to international agreements, it would appear that the scope of application of the external affairs power of section 51(xxix) is somewhat unlimited, and the entering into of such an agreement by the Commonwealth represents an exercise of discretion which the High Court will generally support. Thus, it appears that Dawson J’s claims do have some merit, as the string of High Court authorities tend to support. Bibliography Books

• Blackshield, T, and Williams, G, Australian Constitutional Law and Theory: Commentary and Materials (2006, 4th ed), Sydney: Federation Press
• Joseph, S, and Castan, M, Federal Constitutional Law: A Contemporary View (2001), Sydney: Lawbook Co

Legislation

• Air Navigation Act 1920 (Cth)
• Australian Constitution
• Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth) (repealed)
• Racial Discrimination Act 1975 (Cth)
• Seas and Submerged Lands Act 1973 (Cth)
• World Heritage Properties Conservation Act 1983 (Cth) (repealed)

Cases

• Airlines of New South Wales Pty Ltd v New South Wales (Airlines Case) (No 2) (1965) 113 CLR 54; [1965] ALR 984; (1965) 38 ALJR 388
• Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR 1, 125-6; 46 ALR 625; 57 ALJR 450
• Horta v Commonwealth (1994) 181 CLR 183, 195; 123 ALR 1; 68 ALJR 620;
• Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417; 56 ALJR 625
• New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337, 497; 8 ALR 1; 50 ALJR 218
• Queensland v Commonwealth (1989) 167 CLR 232; 86 ALR 519
• R v Burgess; Ex parte Henry (Aviation Case) (1936) 55 CLR 608; [1936] ALR 482; (1936) 10 ALJ 335
• R v Sharkey (1949) 79 CLR 121; [1949] ALR 828
• Richardson v Forestry Commission (1988) 164 CLR 261; 77 ALR 237; 62 ALJR 158
• Roche v Kronheimer (1921) 29 CLR 329
• Victoria v Commonwealth (1996) 187 CLR 416, 484; 138 ALR 129; 70 ALJR 680; 66 IR 392

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Footnotes

[1] R v Sharkey (1949) 79 CLR 121; [1949] ALR 828 (Latham CJ). [2] R v Sharkey (1949) 79 CLR 121; [1949] ALR 828 (Latham CJ). [3] (1982) 39 ALR 417, 431 (Gibbs CJ). [4] R v Burgess; Ex parte Henry (1936) 55 CLR 608, 680-1. [5] R v Burgess; Ex parte Henry (1936) 55 CLR 608, 681. [6] R v Burgess; Ex parte Henry (1936) 55 CLR 608, 687. [7] Roche v Kronheimer (1921) 29 CLR 329. [8] Victoria v Commonwealth (1996) 187 CLR 416. See also Koorwata v Bjelke-Petersen (1982) 39 ALR 417. [9] Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR 1; Richardson v Forestry Commission (1988) 164 CLR 261; Victoria v Commonwealth (1996) 187 CLR 416, 483 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). [10] Victoria v Commonwealth (1996) 187 CLR 416, 486 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). [11] Victoria v Commonwealth (1996) 187 CLR 416, 489 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). [12] R v Burgess; Ex parte Henry (Aviation Case) (1936) 55 CLR 608, 640 (Latham CJ), 680 (Evatt and McTiernan JJ); [1936] ALR 482; (1936) 10 ALJ 335; Victoria v Commonwealth (1996) 187 CLR 416, 485; 138 ALR 129; 70 ALJR 680; 66 IR 392 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). [13] Horta v Commonwealth (1994) 181 CLR 183, 195; 123 ALR 1; 68 ALJR 620; Victoria v Commonwealth (1996) 187 CLR 416, 484; 138 ALR 129; 70 ALJR 680; 66 IR 392 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). [14] Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR 1, 125-6; 46 ALR 625; 57 ALJR 450 (Mason J). [15] Airlines of New South Wales Pty Ltd v New South Wales (Airlines Case) (No 2) (1965) 113 CLR 54; [1965] ALR 984; (1965) 38 ALJR 388 in regards to the Air Navigation Act 1920 (Cth). [16] New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337, 497; 8 ALR 1; 50 ALJR 218 (Mason J) in relation to the Seas and Submerged Lands Act 1973 (Cth). [17] Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417; 56 ALJR 625 regarding the Racial Discrimination Act 1975 (Cth). [18] Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR 1; 46 ALR 625; 57 ALJR 450; Queensland v Commonwealth (1989) 167 CLR 232; 86 ALR 519 regarding the World Heritage Properties Conservation Act 1983 (Cth) (repealed). [19] Richardson v Forestry Commission (1988) 164 CLR 261; 77 ALR 237; 62 ALJR 158 regarding the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth) (repealed).

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