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Constitutional Law

Topic 9 External Affairs Power

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External Affairs Power

• Power conferred under s 51(xxix) to make laws

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External Affairs Power

• Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501

• Horta v Commonwealth (1994) 181 CLR 183• R v Burgess; Ex parte Henry (1936) 55 CLR 608• Koowarta v Bjelke-Petersen (1982) 153 CLR 168• Commonwealth v Tasmania (Tasmanian Dams Case) (1983)

158 CLR 1• Richardson v Forestry Commission (1988) 164 CLR 261• Victoria v Commonwealth (Industrial Relations Act Case)

(1996) 187 CLR 416• Pape v Commission of Taxation (2009) 238 CLR 1

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Relations with other Countries

• R v Sharkey (Page 878) discusses the notion that “external affairs” deals with matters between Australia and any other “dominion” or “nation”, whether part of the Commonwealth or not.

• Latham CJ judgment highlights the then distinction between “foreign and external” affairs.

• Britain would be a foreign country in context of external affairs.

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Polyukhovich (War Crimes Case) p 880

• The plaintiff was an Australian citizen and a resident of South Australia. The second defendant, the Commonwealth Director of Public Prosecutions, alleged that the plaintiff committed war crimes in Ukraine during World War II.

• Each of the crimes was alleged to have been a “war crime” within the meaning of s 9 of the War Crimes Act 1945 (Cth) as amended (the Act), being a serious crime within the meaning of s 6.

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Polyukhovich (cont.)

• In each instance the crime was alleged to have been committed at a time when the Ukraine was under German occupation during the Second World War.

• It was common ground that at the time of the commission of the alleged offences there was no Australian legislation in force which purported to make it a criminal offence on the part of an Australian citizen or resident to do such acts in the Ukraine as the plaintiff was alleged to have done.

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Polyukhovich (cont.)

• In separate judgments, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ (Brennan J dissenting): Section 9 of the Act was valid as a law with respect to external affairs.

• Mason CJ: Section 9 was properly characterised as a law with respect to external affairs. Australian parliament’s interest in the outcome is not relevant to a law being valid under s 51(xxix).

• Deane J: The provisions of the Act were clearly laws with respect to matters or things which occurred outside Australia. At least to that extent, the Act was a law with respect to “external affairs” under s 51(xxix).

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Polyukhovich (cont.)• Dawson J: The Act dealt entirely with places, persons, matters or things which were physically

external to Australia. The external affairs power extended the legislative reach of the Commonwealth Parliament to those places, persons, matters or things because of their externality.

• Toohey J: A matter did not qualify as an external affair simply because it existed outside Australia. Nevertheless, there was no difficulty in concluding that, in the context of a war in which Australia was directly involved, in which many Australian service personnel and civilians were killed, wounded, imprisoned or ill-treated and which had such significant social, economic and political consequences for this country, an Act purporting to render those who are Australian citizens or residents liable for conduct associated with that war legislated with respect to a matter which was of concern to Australia and to which the public business of the national government related. The law was one with respect to “external affairs” within s 51(xxix).

• (v) Per Gaudron J: Section 9 of the Act was a law with respect to external affairs to the extent and by reason that it operated upon acts, matters or things outside Australia.

• (vi) Per McHugh J: In so far as the Act penalised conduct constituting a war crime which occurred outside Australia, the Act was validly enacted pursuant to the external affairs power.

• The retrospective operation of the Act was authorised by s 51(xxxix) of the Constitution since that operation was a matter “incidental to the execution of [a] power vested by this Constitution in the Parliament”.

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Horta v Commonwealth (1994)

• Following the 1975 Indonesian occupation of East Timor, in 1989, Australia and Indonesia executed an agreement for the cooperative exploration and exploitation of an area of the Timor Gap.

• In 1990, the Commonwealth Parliament enacted the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1900 (Cth) and amending “Consequential Act” under the external affairs power.

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Horta (cont.)

• The act passed domestic laws in line with the treaty and made amendments to other Commonwealth legislation to bring that legislation into line with the requirements of the treaty.

• The plaintiffs, who were alleged to be ``East Timorese’’ began proceedings seeking declarations that the Act and the Consequential Provisions Act were not valid laws of the Commonwealth, and were in breach of international conventions.

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Horta (analysis)

• Plaintiff’s action was dismissed, holding the Act and the Consequential Provisions Act were valid laws of the Commonwealth.

• The Act and the Consequential Provisions Act dealt with matters geographically external to Australia. There was an obvious and substantial nexus between those matters and Australia, and the parliament had recognised that they touched and affected Australia.

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Horta (analysis)

• The Acts were prima facie laws with respect to ``external affairs'’ within s 51(xxix) of the Constitution, applying Polyukhovich v Commonwealth.

• The Acts were with respect to``external affairs'’ even if the treaty were void under international law.

• The parliament's power with respect to ``external affairs'’ was not confined to the enactment of laws consistent with the requirements or constraints of international law.

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R v Burgess; Ex parte Henry (1936)

• Evatt and McTiernan JJ found that, as long as an international treaty or convention “having been duly made about a subject”, it was possible for the Commonwealth Parliament to pass a domestic law provided that law falls within the field of international relations so far as such subject is dealt with by the international agreement: (1936) 55 CLR 608, 681-682.