Week 3: External Affairs Power PDF

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Lecture notes for Week 3 of Constitutional Law, Dr. Anna Olijnyk ...

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Week 3: External Affairs Power - Transformation - in the US if they have international law it automatically becomes domestic law - Incorporation - you need to actually pass the laws through parliament for it to become domestic

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law. (unless the international obligations you enter into are passed through parliament, its not domestic law) - this is the point of external affairs power, where we get our power to take on international obligations. in the case of ambiguity; if there are international obligations you’ll interpret them in favour of our international obligations. - influence in constitutional interpretation? Justice Kirby says yes; international law and practice can influence statutory interpretation. - But this was disputed and conventional law is that international law would not influence constitutional interpretation. international law in various ways can affect our domestic law, but if the government wants to make international norms part of Australian law, they need to rely on legislation (because international law does not automatically become law in Australia)

The High Court has found that laws can be made with respect to external affairs on 3 bases: - 1) law that affects Australia’s relation with other countries. - 2) they are about matters geographically external to Australia; - 3) they implement international obligations that Australia has voluntarily assumed.

- 1) Law that affects Australia’s relation with other countries. - One major case on this: R v Sharkey (1949) 79 CLR 101. “The prevention and punishment of the excitement of disaffection within the Commonwealth against the Government or Constitution of any other dominion may reasonably be thought by parliament to constitute an element in the preservation of friendly relations with other Dominions,” page 137 (text 896). Latham's CJ's comment in R v Sharkey extended to relations with “all countries outside Australia,” page 136. - This meant you could pass a law stopping people insisting against other nations. - This was confirmed in Thomas v Mowbray (2007) 233 CLR 307 Gummow and Crennan JJ

- 2) Matter Geographically External to Australia - when commonwealth wants to regulate something geographically external to australia it can do so through external affairs power - examples were continental shelf; territorial seas etc.

- Sovereignty over the continental shelf - Is there any limit to this power? Can you regulate anything outside of Australia? (Polyukhovich v Commonwealth (War Crimes Act Case) - war crimes act made it a crime to have committed a war atrocity back in WWII - therefore regulating things outside of Australia and for that reasons came under external affairs power. - Natural limit for legislation is whether it has capacity to enforce (for example; you can’t make an aussie law against littering in Paris 1) how would you even enforce that?) - therefore with external affairs, they usually concern matters still quite close to Aussie, something we can still enforce. -An example of a law that did apply in a sovereign nation was XY v Commonwealth (2006) Crimes (Child Sex Tourism) Amendment Act 1994; made it a crime for child sex/porn stuff in asia - we cooperated with asian to enable enforcement possible. - Pape v Commission of Taxation (2009) - fiscal stimulus package to respond to the GFC.

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- 3) they implement international obligations that Australia has voluntarily assumed. - Treaty implementation - only the implementation of bona fide treaties - treaties entered into in

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good faith (Court was worried about how broad external affairs power could be; would this give executive the power to just enter international obligations SO THAT they could then just essentially start making domestic laws Gibbs CJ said this limitation is a frail shield (Koowarta’s Case 1983), because its difficult to determine whether its a bona fide treaty or not.

- Case of Burgess - There was an international treaty about air regulation; the commonwealth relied on the external affairs power to bring about some laws in relation to aviation; by using the treaty to trigger it - this was allowed BUT - they said the convention was undoubtably a matter of international concern (all good for using external affairs) but Lanthan CJ said governing principle: that the Commonwealth laws, ‘must in substance be ‘laws’ for the carrying out and giving effect to the convention.’ (646) -Evatt and McTiernan JJ: laws ‘should be in conformity with the convention’ (687) Starke J (in dissent): All means which are appropriate, and are adopted to the enforcement of the convention and are not prohibited, or are not repugnant to or inconsistent with it, are within power. -> So after Burgess, once you enter a treaty of international concern this triggers the external affairs power - but the substance of the law you’re making must align with the treaty itself, the scope really isn’t that broad (Starke disagreed). Case of Koowarta - Commonwealth was trying to help Koowarta purchase land; queensland was refusing to allow the purchase to occur - the commonwealth said the refusal to hand over the land was in contrary to the Racial Discrimination Act (Cth) 1975 - QLD then challenged the validity of that Act saying that it relied on external affairs power when it shouldn’t have. - 3 judges said in the majority that we’ve entered an international treaty of “International Convention on the Elimination of All Forms of Racial Discrimination,” this law applies to that and therefore its a valid law. - 3 judges said yep we agree with that; but on top of that the treaty itself needs to be a matter of international concern -> they said racial discrimination was not a matter of international concern but rather domestic concern and therefore it was not a valid law - 1 judge left in the middle, Justice Steven who did require the extra component of international concern, but said racial discrimination is a matter of international concern. therefore its valid. - Now; you can only pass laws implementing treaty obligations, if the treaty obligations themselves are matters of international concern. A year later, we come to the Tasmanian Damns case.

Tasmanian Damn Case - Tasmanian Damns took the next step after Koowarta, and said that ANY treaty triggers the external affairs power, you don’t need to ask the question of international concern. - We also know that having an international treaty can trigger external affairs power; but the big question that came through Tasmanian Damns is what extent of conformity between the law and the treaty do you need? - Any international treaty is capable of enlivening the power, AS LONG AS: Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 - Treaty must be bona fide (we said this before) - But it must also require ‘precise obligations rather than mere vague aspirations’ per Brennan CJ, Toohey, Gaudron, McHugh and Gummow BW 923-926 - ‘the law must prescribe a regime that the treaty itself has defined with sufficient specificity’ BW 923. 9

- eg if you have a treaty saying the ‘state must aspire to full employment’ is purely aspirational and therefore not eligible.

- So how does the Court determine whether its sufficient? Through the Reasonable Proportionality Test: “the law must be capable of being reasonably considered to be appropriate and adapted to [implementing the treaty/convention]” Tasmanian Dam Case (1983) 158 CLR 1 at 259 per Deane J -For example, if theres a treaty safeguarding against the spread of disease, can you just place any law which stops the spread, eg. slaughtering people? No, you can’t just make any law - its a test of reasonable proportionality - the law has to be reasonably considered to be appropriate and adapted to implementing the treaty. More wording for reaonsbale proportionality: Industrial Relations Case, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at 488 The law must select means of implementing the treaty which are reasonably capable of being considered appropriate and adapted to achieving the purpose or object of giving effect to the treaty.” (Textbook 924) Does the law need to replicate exactly / mirror the treaty obligations? No; BUT “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’ (emphasis added).’ (Text 925)

Problem Questions

1. Seditious tweeting Rachel, a second year law student, is upset that the United States surveillance has been targeting her internet searches through Google. She decides to tweet her disaffection using the Australian Constitutional Law hashtag. She is then charged under s 5 of the Surveillance Act which states: 5. All persons within Australia shall not cause disaffection or bring into disrepute United States intelligence gathering operations. Penalty: 10 years imprisonment. Rachel seeks your advice as to whether it is a valid law, in particular can it characterised as a law with respect to external affairs?

- External Affairs s51 (xxix); laws can be with respect to external affairs on 3 bases: - 1) law that affects Australia’s relation with other countries/states. - 2) they are about matters geographically external to Australia; - 3) they implement international obligations that Australia has voluntarily assumed. There is no mention in the question of any international treaty obligations, so it must be under one of the other two bases - its not a matter geographically external to Australia, its internal affecting its citizens. It’s about our relationship with other countries - our one comparison is R v Sharkey. So we go and have a look at R v Sharkey and there is a quote: 10

- R v Sharkey (1949) 79 CLR 101 Latham CJ “The prevention and punishment of the excitement of disaffection within the Commonwealth against the Government or Constitution of any other dominion may reasonably be thought by parliament to constitute an element in the preservation of friendly relations with other Dominions,” page 137 (text 896). Latham's CJ's comment in R v Sharkey extended to relations with “all countries outside Australia,” page 136. The challenge in answering this question is answering one of two things; we compare to our High Court authority Rv Sharkey, and we either say yes I believe it is very similar to Sharkey and therefore is a valid law as it is concerned with our external relationship with other countries OR saying I don’t believe it’s similar enough to R v Sharkey, for these reasons and is therefore NOT a valid law in terms of external affairs power. In Sharkey it talks about infighting disaffection within the commonwealth against any other dominion - is this disaffection against the US and its constitution? arguably not - all their doing is saying the CIA is overstepping the mark, its not inciting disaffection against the US as a nation that might lead to rebellion or war, they’re just saying they don’t like what the US is doing in this regard. It doesn’t matter what you put though, it could go the other way - the point is how you argue it. But what Rachel says is not relevant to the validity of the law - this is important - the facts of the case do not determine the validity; for only if the law is valid does it matter what Rachel says. " Does it matter that the penalty is 10 years? It could go to proportionality - BUT proportionality is not apart of this ‘base’ of external affairs, it is only apart of the base of the third aspect; whereas we’re talking about the 1st. So we’re looking to see if this law can be aligned under the head of power of external affairs and yes it can IF it affects Australia’s relations with other countries. Only if it does is it a law with respect to external affairs. A law that tries to prevent people criticising external governments could perhaps be too remote. Even if it Was a valid law - do we have another question to ask? This law is impacting on her freedom of communication, so normally we’d have to say yes we’ve got a valid law under s51 but its subject to a limitation (THIS IS LATER IN THE COURSE).

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3. Infectious Disease Control Treaty for the Suppression of Infectious Diseases (entered into force December 2014). Ratified on December 2014. Recognising the growing economic and social cost of the spread of infectious disease, this Convention supports and encourages educational and health awareness in order to eradicate the spread of infectious disease across borders and within and between States. Article 1: Healthy societies are recognised by all state parties to this convention as the basis for a healthy life. Each state party shall endeavour to create a healthy society. Article 2: State Parties shall endeavour to control and limit the use of antibiotics, as an important policy measure in responding to resistant strains of infectious disease. Article 3: State Parties shall ensure that there are basic educational and health promotion activities in relation to the control of infectious diseases provided to the public. The Commonwealth enacts the following legislation implementing the above treaty: Infectious Disease Control Act 2014 (Cth) 1. Persons who are over 55 years of age who are patients in Public Hospitals and have any type of infectious disease of any kind shall be quarantined from all other persons and shall not be permitted any visitors. 2. General practitioners who prescribe antibiotics to persons with drug-resistant infections shall be removed from the medical register for a period of 10 years. 3. All schools and hospitals shall have public educational programs on effective methods of washing of hands to stop the spread of infectious disease. You asked for advice as to the validity of the legislation under section s51(xxix) of the Australian Constitution.

This question relates to the treaty aspect of the power base (3rd base) first thing we need is a bona fide treaty - no problems here Article 1 is very vague - good example of something that won’t trigger external affairs power because its too vague and aspirational, doesn’t have a specific enough obligation to enliven external affairs Article 2 - specific obligation here, no worries Article 3 - again, seems very specific so all good At least 2 articles enliven the external affairs power Now lets turn to our law s 1 - anything on infectious diseases in the treaty? we’ve already eliminated article 1. the law is about preventing the spread of infectious diseases -> there doesn’t seem to be enough connection here so you just need to talk about how there isn’t a sufficient nexus between treaty requirements and what the law is asking s 2 - this is about limiting use of antibiotics; the fact that its tough isn’t anything to do with the laws valididty; so therefore yes this is probably valid! 12...