FEDERAL-STATE RELATIONS COMMITTEE
Report on
2.0 The following case studies illustrate in more detail the nature of Commonwealth intrusion into areas of traditional State control by means of the external affairs power. They show how it is that the external affairs power is able to be used by the Commonwealth to override State legislation and policy.
2.1 The Koowarta case is the first example of the Commonwealth using the external affairs power as the basis for legislation able to limit the actions of State Governments.
2.2 The Koowarta case, decided in 1982, concerned the validity of certain sections of the Racial Discrimination Act 1975 (Cth), which implemented the International Convention on the Elimination of all Forms of Racial Discrimination. The Queensland Government, which was alleged to have breached the act by refusing to grant a lease to the Aboriginal Land Fund Commission, challenged the Act's constitutional validity in the High Court. The Court held that the legislation was valid as an exercise by the Commonwealth of the external affairs power.
2.3 All members of the Court agreed that a law must possess a connection to matters external to Australia, in order to constitute a law with respect to external affairs. But the Court expressed three distinct views as to what that connection must be.
2.4 Justices Mason and Murphy took the view that legislation implementing Australia's treaty obligations constitutes legislation with respect to Australia's treaty obligations. As Australia's treaty obligations are a matter of international law, they are matters external to Australia. Thus, legislation implementing Australia's treaty obligations is legislation with respect to external affairs.2
2.5 Justices Stephen and Brennan took the view that matters of international concern, likely to affect Australia's relations with other nations, constituted external affairs.3 Legislation dealing with such matters, therefore, would be legislation with respect to external affairs. The two judges differed, however, on their view of the significance of treaties. Justice Brennan thought that Australia's entry into a treaty with other nations was sufficient evidence of the requisite international concern,4 whereas Justice Stephen felt that this was a question needing to be decided case by case.5 In this case, he felt that the elimination of racial discrimination was an issue of sufficient international concern to be relevant to Australia's international standing, and therefore that it constituted an external affair. He therefore upheld the validity of the Commonwealth Act.16
2.6 Considering the requirement of international concern, Justice Mason endorsed Justice Brennan's approach:
Agreement by nations to take common action in pursuit of a common objective evidences the existence of international concern and gives the subject-matter of the treaty a character which is international.7
2.7 These four judges - Justices Stephen, Mason, Murphy and Brennan - made up the majority in the Koowarta case. The minority - Chief Justice Gibbs and Justices Aickin and Wilson - held that, in order for legislation to constitute legislation with respect to external affairs, that which it regulates must actually be something external. As the Racial Discrimination Act does not regulate anything external, but merely regulates the behaviour of people within Australia, the minority held that it is not legislation with respect to external affairs.8
2.8 The minority judgments, and the judgment of Justice Stephen, all expressed concern that an interpretation of the external affairs power which placed no constraints on the capacity of the Commonwealth to implement treaties could undermine Australia's federal arrangements.9
2.9 The Tasmanian Dam case was the first case which made it clear that the external affairs power permitted the Commonwealth Parliament to override State legislation by implementing treaty obligations.
2.10 The Tasmanian Dam case, decided in 1983, arose out of the placing of the Franklin Lower Gordon Wild Rivers National Park on the World Heritage List by the Commonwealth government. The Tasmanian Government subsequently proposed to build a dam on the Gordon River, and legislation introduced by the Hawke government to stop the dam was challenged by the Tasmanian government as a breach of the power of the States over their own land and resources. The Court upheld the Commonwealth legislation on the basis of the external affairs power.
2.11 Justices Murphy and Brennan reiterated the opinions they expressed in the Koowarta case.11 Justice Deane shared their view, that Australia's treaty obligations in and of themselves are external affairs, and that the implementation of those obligations is therefore within the scope of Commonwealth legislative power.12
2.12 Justice Mason reiterated his point that a treaty is itself sufficient evidence of international concern.13 On this basis he concluded that Justice Stephen's reasons in Koowarta were not significantly different to those of the other three majority judges, and he again held that the external affairs power extends to the implementation by the Commonwealth Parliament of treaty obligations, whatever the subject matter of those obligations.
2.13 Chief Justice Gibbs, following the precedent of Koowarta and therefore departing from his view in that case, accepted that the external affairs power would, in some circumstances, permit the Commonwealth Parliament to implement treaty obligations dealing with purely domestic matters.14 However, he also noted that four of the Koowarta judges had felt some limitation on the external affairs power was appropriate, in order to protect the federal balance.15 He therefore adopted Justice Stephen's test of "international concern", and found that, in this particular case, there was not sufficient international concern for the Commonwealth legislation to be valid under the external affairs power.16 Justices Wilson and Dawson adopted similar reasoning.17
2.14 The minority judges again expressed concerns about the implications for Australian federalism of a broad interpretation of the external affairs power.18
2.15 One of the most recent High Court decisions on the external affairs power is Victoria v The Commonwealth. It provides a very clear account of the scope of and limits upon the Commonwealth Parliament's external affairs power.
2.16 The decision in Victoria v The Commonwealth confirms that
where. . . the Executive ratifies a Convention which calls for action affecting powers and relationships governed by the domestic legal order, legislation is needed to implement the Convention.20
Where such legislation is enacted by the Commonwealth,
the intrusion of Commonwealth law into a field that has hitherto been the preserve of State law is not a reason to deny validity to the Commonwealth law provided it is, in truth, a law with respect to external affairs.21
And the Court re-affirms that the power to legislate with respect to external affairs will "authorise the implementation of treaty obligations which [bind] Australia."22 The opinion of Justices Mason, Murphy and Brennan in the Koowarta and Tasmanian Dam cases, and of Justice Deane in the latter case, is now without doubt the law in Australia.23
2.17 For a treaty to provide a legitimate basis for Commonwealth legislation, it is necessary that parties to it incur definite obligations: the legislation is under the external affairs power, and it is the obligations created by the treaty which are an aspect of external affairs.24 The Commonwealth cannot legislate on the basis of a treaty, the text of which is merely aspirational. In stating how definite a treaty must be if it is to provide a foundation for Commonwealth legislation, the Court endorses a passage from the Tasmanian Dam case:
[A]bsence of precision does not, however, mean any absence of international legal obligation. . . it would be contrary to both the theory and practice of international law to. . . deny the existence of international obligations unless they be defined with the degree of precision necessary to establish a legally enforceable [contract].25
The Court makes it clear that the obligations will be definite enough if they direct the parties to the treaty to take some general course of action.26 This leaves the Commonwealth a lot of scope to decide the details of its legislative implementation.
2.18 For a law to be a valid law for the implementation of a treaty, it is not necessary that it implement the treaty in its entirety.27 Nor do the obligations imposed by a treaty set the outer limits of possible Commonwealth legislation.28 It is for the Commonwealth Parliament to choose how it will ensure the fulfilment of Australia's treaty obligations.29 The only constraint is that the legislation in question be reasonably capable of being considered appropriate to give effect to the treaty.30
2.19 The Court's opinions on these issues have practical effect. For example, in this particular case, the Court was obliged to consider Article 8 (1) (a) of the International Covenant on Economic, Social and Cultural Rights,31 which provides that
The States Parties to the present Covenant undertake to ensure. . . the right to strike, provided that it is exercised in conformity with the laws of the particular country.
On the basis of this article, the Commonwealth had legislated to protect striking workers from being sued for the losses caused by their industrial action. The Court found this legislation valid.32
2.20 The Industrial Relations Act uses two distinct techniques to implement treaty requirements in Australian law. Some sections of the legislation simply follow the text of the treaty being implemented,33 or create industrial relations mechanisms of the sort mandated by the treaty.34 These can be contrasted with section 170BC (3) (b), which provides that the Industrial Relations Committee may make an order dealing with a certain matter
only if. . . the order can reasonably be regarded as appropriate and adapted to giving effect to : (i) one or more of the Anti-Discrimination Conventions; or (ii) the provisions of the Recommendation referred to in paragraph 170BA (b) or (c) [certain International Labour Organisation Recommendations].
The Court upheld both techniques as constitutional.35 The second technique leaves every act of the Commission under the section subject to judicial scrutiny, to determine whether it can be reasonably regarded as appropriate and adapted to giving effect to the treaty.36
2.21 The Toonen case led to one of the most recent examples of the Commonwealth legislating under the external affairs power, on the basis of an international agreement, to override State legislation. The legislation in question was certain provisions of the Tasmanian Criminal Code.
2.22 Australia became a party to the First Optional Protocol to the International Covenant on Civil and Political Rights in 1991. The Protocol allows Australian individuals, who have exhausted all domestic remedies, to submit complaints alleging breach of the Covenant to the United Nations Human Rights Committee. This provided a new avenue for gays and lesbians in Tasmania who were seeking the repeal of sections 122 and 123 of the Tasmanian Criminal Code. These sections made sexual activity "against the order of nature" and sexual activity between men a criminal offence.
2.23 The Tasmanian Gay and Lesbian Rights Group submitted to the United Nations Human Rights Committee that the Tasmanian laws contravened article 17 of the Covenant. Article 17 of the Covenant states:
no one shall be subjected to arbitrary or unlawful interference with his privacy.
2.24 Nick Toonen, in whose name the complaint was submitted, argued that although he had not been charged under the law, the mere existence of the law, and the possibility of his conduct being investigated and found criminal, constituted an abridgment of his right to privacy. He drew the Human Rights Committee's attention to similar cases heard by the European Court of Human Rights. The Committee found that the Tasmanian laws were in violation of Article 17. The Committee's view (it has no binding force in Australian law) was communicated to the Commonwealth Government on the 8 April 1994.
2.25 The United Nations Human Rights Committee's view is an interpretation of a treaty to which Australia is a party. Under the external affairs power the Commonwealth may legislate to implement the treaty obligations. Therefore, it may legislate to make the Committee's view law in Australia. This is what the Commonwealth did, by means of the Human Rights (Sexual Conduct) Act 1994. Section 4 (1) of this legislation provides that:
Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.
This effectively nullified the Tasmanian laws.
2.26 Although no charges had been laid under the Tasmanian law, the High Court held that members of the Tasmanian Gay and Lesbian Rights Group had sufficient legal interest in the matter to bring a challenge to the validity of Tasmania's laws.38 This challenge was cut short when the Tasmanian Parliament repealed the offending provisions of its Criminal Code on 1 May 1997. Had the case proceeded, it is likely that the Tasmanian laws would have been found unconstitutional, because in conflict with Commonwealth legislation. This is an obvious example of "international human rights mechanisms hav[ing] exerted an influence on state legal systems through Commonwealth initiatives."39
2.27 The reasoning of the Tasmanian Dam case and of subsequent cases virtually ensures that the Commonwealth can "impose its will on state governments if they can invoke an international agreement."40
2.28 The only limitations the High Court has placed on treaty implementation is that the implementing legislation must not violate other provisions of the Constitution (for example, those protecting free trade between the States),41 and that treaties must be entered into in good faith, without simply the intention to extend the powers of the Commonwealth.42 Provided that this is not its sole purpose in entering into a treaty, the Commonwealth has the potential to invade all areas of state activity.
2.29 The Committee therefore endorses the following passage from the judgment of Justice Brennan in Koowarta:
it remains for decision in the case of each treaty obligation whether a law to perform the obligation should be enacted by the federal Parliament or by the Parliaments of the States or whether no law be enacted; but that decision would be taken having regard to political, administrative and financial considerations, and not according to constitutional constraints.43
Finding 7:
High Court decisions show that the jurisdiction of the Commonwealth Parliament can grow with the growth in Australian treaty making. The Commonwealth Parliament, through the external affairs power, can thereby acquire jurisdiction over areas traditionally under the control of the States.
1Koowarta v Bjelke-Peterson (1982) 153 CLR 168 (hereafter referred to as Koowarta).
2Ibid at 223-5 (per Mason J), 240-1 (per Murphy J).
3Ibid at 216, 217, 220 (per Stephen J), 258 (per Brennan J).
4Ibid at 258-60.
5Ibid at 217.
6Ibid at 218-221.
7Ibid at 231.
8Ibid at 200-3 (per Gibbs CJ), 243 (per Aickin J), 246-7, 251 (per Wilson J).
9Ibid at 198-200 (per Gibbs CJ), 213-216 (per Stephen J), 243 (per Aickin J), 251-2 (per Wilson J).
10The Commonwealth v Tasmania (1983) 158 CLR 1 (hereafter referred to as the Tasmanian Dam case).
11Ibid at 169-79 (per Murphy J), 218-9 (per Brennan J).
12Ibid at 253-260.
13Ibid at 121-5.
14Ibid at 97-8.
15Ibid at 98-100.
16Ibid at 100-2.
17Ibid at 184-198 (per Wilson J), 300-12 (per Dawson J).
18Ibid at 99-100 (per Gibbs CJ), 196-8 (per Wilson J), 298, 302-4 (per Dawson J).
19(1996) 138 ALR 129.
20Ibid at 143.
21Ibid at 145.
22Ibid at 144.
23Ibid at 138.
24Ibid at 146-8.
25Above n 10 at 261-2 (per Deane J), cited ibid at 146.
26Victoria v The Commonwealth, above n 19 at 146.
27Ibid at 147-8.
28Ibid at 146-7.
29Ibid at 146.
30Ibid at 146-7.
31Australia became a party to the Covenant in 1975.
32Industrial Relations Act 1988, s 170PM.
33For example, s 170DE (1) is almost identical to art 4 of the Termination of Employment Convention, 1982.
34For example, Division 1 of Part VIA creates a mechanism for setting minimum wages which satisfies the requirements of the Minimum Wage Fixing Convention, 1970.
35Victoria v The Commonwealth, above n 19 at 164-5, 168-71.
36Ibid.
37Toonen v Australia, UN Doc CCPR/C/50/D/488/1992 (8 April 1994) (hereafter referred to as the Toonen case). The facts and history of the case are set out in Tim Tenbensel, "International Human Rights Conventions and Australian Political Debates: Issues Raised by the 'Toonen Case' ", Australian Journal of Political Science, Vol 31, No 1, pp 15-16.
38Croome v Tasmania (1997) 71 ALJR 430.
39Tenbensel, above n 37, p 16.
40P Boyce, "International relations of federal states: responsibility and control" in Wood, Williams & Sharman (eds), Governing Federations: Constitution, Politics, Resources, Hale & Iremonger, Sydney, 1989, p 193.
41Koowarta, above n 1 at 191-2 (per Gibbs CJ), 213 (per Stephen J), 225-6 (per Mason J), 240 (per Murphy J), 243 (per Aickin J), 250 (per Wilson J).
42Ibid at 196 (per Gibbs CJ), 216-7 (per Stephen J), 231 (per Mason J), 260 (per Brennan J); Peter Durack, The External Affairs Power, The Federalism Project Issues Paper No 1, Institute of Public Affairs, 1994, p 5; Tasmanian Dam case, above n 10 at 218-9 (per Brennan J); Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Canberra, 1995, p 76, para 5.64; George Winterton, "Limits to the Use of the 'Treaty Power' " in Philip Alston and Madelaine Chiam, Treaty-Making and Australia: Globalisation versus Sovereignty?, Federation Press, Sydney, 1995, pp 30-2.
43Koowarta,
above n 1 at 255.
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