australian constitutional law - external affairs
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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 treaties1. 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
2 P. Keyzer, J. Clarke and J. Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary,
(LexisNexis Butterworths, 2009) p 240
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looking at precedent cases, 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.
Treaty-implementation
In Australia, the signing of a treaty by the Minister for Foreign Affairs, who is
authorized by the federal Executive Council to enter into treaties on behalf of Australia,
and subsequent ratification by the Commonwealth Parliament do not automatically
confer the terms of the treaty with legal status. To implement a signed and ratified treaty
in Australia, the Commonwealth Parliament must legislate in reliance on its legislative
power given to it by s 51(xxix) of the Constitution. 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, while the performance of its obligations, if
they entail alteration of the existing domestic law, requires legislative
action.”
3 [1937] AC 326 at 347
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In the past century, 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. 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.
Geographical constraint
In New South Wales v Commonwealth5, all six states challenged the validity of
The Seas and Submerged Lands Act 1973 (Cth). 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. In respect of the externality element of s 51(xxix), 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
5 (1975) 135 CLR 337
6 Ibid, at 368
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legislation in question dealt with matters geographically external to Australia7. 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, there is no division with
respect to matters which lie outside Australia.”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, the treaty-entering process will be severely impaired and will perhaps
make Australia an ‘international cripple’9. 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 community10. Therefore, any reform in the treaty-implementation process in
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 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 638
9 New South Wales v Commonwealth (1975) 135 CLR 337 at 503
10 PH Hogg, Constitutional Law of Canada, 3rd ed, Carswell, Toronto, 1992, p 295
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Australia must strike a balance between federalism and democracy on one hand and
Australia’s national interest in external affairs on the other.
From New South Wales v Commonwealth and Polyukhovich v Commonwealth, 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, the subject matter must be geographically external to Australia and the
boundaries of Australia may change over time.
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. As observed by Mason J in
Commonwealth v Tasmania11, “the existence of international character or international
concern is established by entry by Australia into the convention or treaty”. In other
words, once Australia has entered into a binding treaty or convention, it creates an
international obligation where s 51 (xxix) of the Constitution can operate under.
However, as identified in the majority judgment of R v Poole; ex parte Henry No.
212, the mere act of entering into a treaty or convention does not grant the
11 (1983) 158 CLR 1 at 125
12 (No 2) (1939) 55 CLR 608 at 87
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Commonwealth Parliament a plenary legislative power in respect of that subject matter.
Instead, the domestic law giving effect to the provisions of the treaty or convention must
be “appropriate and adapted” to the terms of the treaty. In other words, 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 treaty13. 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.
In Commonwealth v Tasmania15, 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. Brennan J and Deane J identified two tests for conformity. 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, and
not fancifully, colourably, or ostensibly, referable to the purpose of the Convention”17.
13 Commonwealth v Tasmania (1983) 158 CLR 1 at 260; Richardson v Forestry Commission (1988) 164
CLR 261 at 311-312
14 H. P. Lee, ‘The High Court and External Affairs Power’ (Chpt 3) in: H. P. Lee and George Winterton
(Eds), Australian Constitutional Perspectives (1992) pp. 82-83
15 (1983) 158 CLR 1
16 Ibid, at 232
17 Ibid, at 260
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If the test of conformity must be satisfied for a treaty-implementing legislation to
be valid, will partial implementation of a treaty affect the validity of the treaty-
implementing 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; 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, when coupled
with other provisions of the law, make it substantially inconsistent with the
Convention”19.
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
19 Ibid, at 489
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States”20. 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. In addressing this intrusion of State powers,
the High Court has held that even though the Commonwealth Parliament can implement
a treaty concerning the internal affairs of Australia, the treaty in question must be bona
fide21. In Koowarta v Bjelke-Petersen, 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
matter22. Therefore, 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. Gibbs C. J.
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, and available in rare cases”24. Gibbs C.J.’s judgment
suggests that this bona fide limitation will only come into operation where the treaty-
implementing legislation is an absolute intrusion in a State’s autonomy, caused
20 A. B. Keith, The Dominions as Sovereign States, McMillan & Co, London, (1938), p. 444
21 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 224
22 Ibid, at 664
23 A. Twomey, ‘Federal Parliament’s Changing Role in Treaty Making and External Affairs’, in: G. Lindell
and R. Bennett (Eds), Parliament – The Vision in Hindsight (Federation Press, 2001)
24 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 220
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perverse of justice or violates fundamental ideologies of the Constitution (e.g.
federalism and democracy).
Constitutional constraint
The legislative powers listed in s 51 of the Constitution are “subject to [the]
Constitution”25 and must be “for the peace, order, 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 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).
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
26 Ibid
27 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 10
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cannot legislate so as to discriminate against the States or inhibit or impair their
continued existence or their capacity to function”28. In Chu Kheng Lim v Minister for
Immigration, Local Government and Ethnic Affairs29, 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, 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. Similarly, provisions directing State judges to exercise their judicial power
in a certain manner would also become void based on the same reasoning30. Such
examples of implied limitations are non-exhaustive and, similar to the bona fide
limitation discussed above, the court can readily invalidate a legislation on the basis that
it violates fundamental constitutional principles of Australia.
Whether the words “for the peace, 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. 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. Such proposition was supported by Lord Mansfield in Campbell
28 Ibid, at 226
29 (1992) 176 CLR 1
30 Re Australian Education Union; Ex parte Victoria (1995) 128 ALR 609 at 629-632
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v Hall where the learned judge characterized the phrase “for the public peace, welfare
and good government” as directions to the governors31. In R v Foster; Ex parte Eastern
Australian Steamship Co. Ltd, 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 of the Commonwealth.”32
Even as a limitation, the scope of the words “for the peace, order and good
government” has also been disputed. The High Court has not derived an objective test
for this limitation but however the words are to be interpreted, 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.
International concern
In Koowarta v Bjelke-Petersen33, Stephen J took the view that in order for the
Commonwealth Parliament to legislate under s 51 (xxix) of the Constitution, the treaty in
question must be related to a matter of international concern. The case involved a
31 (1774) Cowp. 204
32 (1991) 65 ALJR 521 at 525
33 (1982) 153 CLR 168
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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. Section 9(1) of the Racial
Discrimination Act 1975 provided that it is unlawful to distinct, exclude, restrict or give
preference based on race, colour, descent or national or ethnic origin. Stephen J
acknowledged that even though the Racial Discrimination Act 1975 only addressed
racism domestically, its validity should nevertheless be upheld because the legislation
implemented a treaty which a addressed a matter of international concern.
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 support34. In
Commonwealth v Tasmania35, 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”.
One critical problem with the test of international concern is that it lacks clear
guidelines. The test has been applied differently by different judges and it is difficult to
see from the precedents how this test operates precisely. Some judges have taken the
34 Commonwealth v Tasmania (1983) 158 CLR 1 and Victoria v Commonwealth (1996) 187 CLR 416
35 (1983) 158 CLR 1 at 125
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view that international is something which will affect Australia’s relations with other
nations36, some held that it is a topic of international debate, discussion and
negotiation37 and whilst some believed that international concern can be evidenced by
the norms of the international community38.
Conclusion
The Commonwealth Government has unlimited power to enter into treaties under
s 61 of the Constitution on behalf of Australia. The power to enter into treaties is plenary
to prevent Australia from being an “international cripple”. Australia as a whole should be
able to bind itself to international obligations to maintain its competitive edge in the
international arena. On the other hand, as evident in precedents from the past century,
the Commonwealth Parliament’s treaty- implementation power under s 51 (xxix) of the
Constitution is not plenary in nature. To safeguard federalism and separation of powers
in Australia, the High Court has identified several limitations and checks on the external
affairs power.
The scope and how these limitations and checks operate has been under much
judicial and academic debate. Several limitations have been identified above of which
the test of conformity has perhaps been invoked the most often in invalidating a treaty-
36 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 216-217 (Stephen J)
37 Ibid, at 234 (Mason J)
38 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 561 (Brennan J)
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implementing legislation by the High Court. 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: 2,613
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Bibliography
A. Articles/Books/Reports
George Winterton, ‘Limits to the Use of the “Treaty Power”’ (Chpt 2) in: Philip Alston and
Madelaine Chiam (Eds), Treaty-Making and Australia : Globalisation versus Sovereignty
(Federation Press, 1995) pp. 29-51
H. P. Lee, ‘The High Court and the External Affairs Power’ (Chpt 3) in: H. P. Lee and
George Winterton (Eds), Australian Constitutional Perspectives (Law Book Co of
Australiasia, 1992) pp. 60-91
Donald R. Rothwell, ‘The High Court and the External Affairs Power: A Consideration of
its Outer and Inner Limits’ (1993) 15 Adelaide Law Review 209
A. Twomey, ‘Federal Parliament’s Changing Role in Treaty Making and External
Affairs’, in: G. Lindell and R. Bennett (Eds), Parliament – The Vision in Hindsight
(Federation Press, 2001)
P. H. Hogg, Constitutional Law of Canada (Carswell, 2011)
A. B. Keith, The Dominions as Sovereign States, McMillan & Co, London, (1938)
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P. Keyzer, J. Clarke and J. Stellios, Hanks’ Australian Constitutional Law: Materials and
Commentary, (LexisNexis Butterworths, 2009)
Lan D. Killey, ‘Peace, Order and Good Government: A Limitation on Legislation
Competence’ (1990) 173 Melbourne University Law Review 25
I. Omar, Butterworths Questions and Answers Constitutional Law (LexisNexis
Buttherworths, 2010)
B. 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; ex parte Henry (No 2) (1939) 55 CLR 608
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Victoria v Commonwealth (1996) 187 CLR 416
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Re Australian Education Union; Ex parte Victoria (1995) 128 ALR 609
Campbell v Hall (1774) Cowp. 204
C. 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
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Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April
1958 (entered into force 10 September 1964)
International Convention on the Elimination of All Forms of Racial Discrimination,
opened for signature 21 December 1965 (entered into force 4 January 1969)
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