Week 5 Content Tutorial - External Affairs Power PDF

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Week 6 Tutorial - External Affairs Power (Week 5 Content) Required Reading s 51 (xxix) Constitution BW7:

974-1012 [External Affairs Power] 902-931 [Corporations Power]

SHORT ANSWER QUESTIONS 1.

Over what matters can Australia enact legislation under the External Affairs head of power?   



Laws relating to RELATIONS with other countries Laws relating to matters PHYSICALLY external to Australia Laws relating to International obligations (Treaties / International Instruments) o Not restricted to obligations o Recommendations (IE: ILO) more controversial but maybe Laws relating to MATTERS of “International Concern” o Potentially could be room for it – o Trend of Authority is against it o Minority Judgements o Practically speaking ask whether this LIMB would really ADD anything. o Matters of International Concern NOT subject to TREATIES  CUSTOMARY INTERNATIONAL LAW  Would flagrant breaches of Customary International Law HARM Australia’s relations with other countries?  Yes it could – so there is a least an argument that the “relations with other countries” LIMB would take out those matters of “International Concern” anyway

About DOMESTIC legislation too – NATIONHOOD POWER – NATIONAL CRISIS EG- Global Financial Crisis 2. Within those matters, what limits have been imposed by the High Court and how effective are those limits in practice? First Limb (PHYSICALLY EXTERNAL) 

What is scope of the power? – Seas and Submerged Land Act Case o In Pulyukhovich:  Just because something is EXTERNAL to Australia isn’t enough it needs to have some CONNEXION to Australia, some significance to Australia  Applying it to this Law did it have an Connexion to Australia  About WWII and Australia was a protagonist to the conflict is this enough to establish this LIMB

Second Limb (RELATIONS) 

No Limits in this area

Third Limb (TREATIES) 



Need to be BONA FIDES o CTH can’t enter into a Treaty just to appropriate legislative power that it doesn’t otherwise have o Needs to genuinely want to achieve the end of the TREATY Needs to impose some sort of CONCRETE obligation o What is the inverse (wouldn’t amount) to that?  Vague and Aspirational  IE: Statement that says “Nation States must take measures to create safer communities”  Can’t use that to legislate for policing as to vague

Similar to CONFORMITY – limb is a PURPOSE power – means the law needs to be committed to achieving the end of the TREATY (conform to the treaty per se)

EXAM One way it might be slightly different is if the TREATY gives the CTH a broad AMBIT not in a Vague an Aspirational way there is a zone of decisional freedom where the CTH could choose different ways of implementing the TREATY obligation   

Is there some LIMIT that MIGHT hold? PROPORTIONALTIY What if the CTH chose a really drastic way to respond to the TREATY obligation which was disproportionate to the TREATY? EG: IF a TREATY obliged Australia to reduce Animal born diseases and the CTH passed a LAW requiring ppl to slaughter all cattle in Australia – that would achieve the end or assist in achieving that end – RATIONAL CONNEXTION to the power would be found – but it would be disproportionate to the end to be achieved

Is it a limit on this LIMB that the Law has to CONFORM to INTERNATIONAL LAW?  3.

General proposition is NO – court will not need to look at that By reference to relevant cases, what consequences (if any) has the jurisprudence on s51(xxix) had on the federal-state balance? In what ways have the cases discussed in lecture EXPANDED or CONTRACTED the Federal / State balance of Power?

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Principally in the area of TREATY IMPLEMENTATION that the CTH Head of Power has been expanded As early as R v Burgess it was accepted that it is not restricted to s 51 SUBJECT MATTERS so the CTH can leverage TREATIES to regulate matters which are otherwise outside of CTH power Not limited to OBLIGATIONS but can expand into softer things like RECOMMENDATIONS

 

4.

Not limited to matters of International CONCERN FLIP SIDE o CTH can regulate matters that would be wholly domestic In a speech delivered just months after the decision in the Tasmanian Dams case was delivered, Sir Daryl Dawson stated that “it is patent that the construction of the external affairs power which has now found favour offers Commonwealth new and independent heads of power on a potentially limitless range of subjects, whatever restrictions are imposed or latitude allowed in the implementation of a particular treaty”. Other commentators have described the decision in the Tasmanian Dams case as the culmination of a “transformation” of the Constitution by “extraordinary legal subterfuge” (see BW6, 918-920). Do you agree with the above statement? Why or why not?

Because there are more international treaties now, it gives the CTH much greater powers

EXAM WHAT HAS THE HIGH COURT DONE to expand the Head of Power itself?    

Any treaty About any matter Provided its proportionate In conformity with the terms (not necessarily all of the terms)

Are the things that need to be talked about if get a question about this

HYPOTHETICAL A In January 2003, Australia entered into a treaty with New Zealand (“The Trans-Tasman Gaming Treaty”) to establish a uniform gambling policy between the two countries. Recent media coverage in both Australia and New Zealand has highlighted the links between the gambling industry and organized crime in both countries. The relatively unregulated travel between both countries has resulted in Trans-Tasman money laundering schemes and other crimes associated with the gaming industry. Article 1 of the Trans-Tasman Gaming Treaty states: “Both state parties to this Treaty hereby agree to regulate, prohibit and control gambling on a uniform basis to control the problems of organized crimes associated with the gaming industry.” Article 2 of the Treaty further provides in relevant part: (a)

“Both State parties to this Treaty agree there shall be no more than 1 pokie per 200 club members in any facility where gambling takes place. No more than 2 gambling facilities shall be allowed within a two mile radius in any city.”

(b)

“Both state parties to this Treaty agree to prosecute in their ordinary criminal courts offences specified in Schedule 1 to this Treaty, committed in either State, all of which are associated with the gaming industry.”

Pursuant to the Trans-Tasman Gaming Treaty, the Commonwealth government enacted the Uniform Gaming Act 2003 (Cth). Section 1 of the Uniform Gaming Act provides: (a)

There shall be no more than 1 gambling facility within a two mile radius in any city or town within Australia.

(b)

There shall be no more than 1 pokie per 150 club members in any facility where gambling takes place within Australia.

Section 2 of the Act provides: “Any criminal activity associated with organized crime in the gaming industry, as specified in Schedule 1 to this Act, shall be punishable in the ordinary criminal courts in this country, whether the criminal offence takes place in Australia or New Zealand.” Section 3 of the Act establishes a new Ministerial portfolio for Gaming. The Federal Minister for Gaming is empowered under this section to veto or approve any advertisement whatsoever which has the effect of criticising the Trans-Tasman Gaming Treaty. Section 3 specifically provides: (a)

No person, Corporation or Authority shall without the Approval of the Minister publish any advertisement, handbill, leaflet or badge advocating the repeal or denunciation of the Trans-Tasman Gaming Treaty;

(b)

Any person, corporation or authority may apply to the Minister for approval to publish material which would otherwise be prohibited under this Section;

(c)

The Minister may in his or her absolute discretion approve or veto any advertisement whatsoever which has the effect of advocating repeal or denunciation of the Treaty;

(d)

Notwithstanding anything else contained in this section, the Minister shall not approve an application by or on behalf of a State government or instrumentality.

After the enactment of this law, the Prime Minister issued the following Press Release: “The Commonwealth government is concerned over the mounting evidence of links between organized crime and gambling in both New Zealand and Australia which is destroying the fabric of our society. The creation of a new Ministerial portfolio for Gaming as well as the recently enacted Uniform Gaming Act will allow us to monitor and control the spiralling crime rate associated with the gaming industry as well as prevent the wealthy gambling lobby from propping up political parties or otherwise spending funds to undermine our ability to regulate Australia’s currently out of control gaming industry.” A few months after the enactment of the Uniform Gaming Act, a letter from the Australian Minister of Foreign Affairs to the New Zealand Minister of Foreign Affairs was disclosed under the Freedom of Information Act 1982 (Cth). The letter states in pertinent part: “I am delighted we entered into the Trans-Tasman Gaming Treaty because my government will now be able to gain extensive control over gambling which was previously within the domain of the State legislatures. State governments have demonstrated time and again that they lack the political courage to tackle the key players in organized crime associated with the gaming industry. The Federal government is now in a position to take the lead on these issues.” Discuss separately whether Sections 1, 2 and 3 of the Uniform Gaming Act 2003 (Cth) are a valid exercise of the external affairs power found in s 51(xxix) Constitution. PURPOSE of the Law is to implement a TREATY - on section that does not

EXAM – Express yourself in terms of rules and application Does not have to be FULL rule for uncontroversial things Discuss each Section Individually Address each LIMB of the HOP in EACH section DON’T address as one LAW If you are looking at a problem that involves EXTERNAL AFFAIRS and you are REGULATING a matter that is OUTSIDE of Australia and it’s a MATTER that is unambiguously of Australia concern you probably don’t need to ask about Treaties and things like that. Easy LIMB that applies in a straight forward way.

If you are arguing about RELATIONS with other countries, with a difficult question where you are identifying things going both ways and it’s a more flexible LIMB, then you may want to go on and consider the others as well because the PURPOSE of that question is probably to address ALL of them. EASY and HARD questions –HARD ones need to be looked at from all angles EXAMPLE ANSWER STRUCTURE Commonwealth power is limited, therefore the Commonwealth must bring its Law within a Head of Power for it to be VALID. S 51 (29) is the relevant Head of Power for this Law There are several LIMBS to the HOP (then you can turn to / consider section1) Section 1 (a) Under the Treaties Limb –expand what this entails Looking at the FACTS    

Treaty says 1 pokie per 200 club member Law says 1 pokie per 150 club members (Australia Law is Stricter) Treaty says No more than 2 gambling facilities shall be allowed within a two mile radius in any city Law says no more than 1 gambling facility within a two mile radius in any city or town within Australia

ISSUE 1 - POKIES Is Section 1 a Law with Respect to s 51 (29) more particularly: 

Is it the implementation of an International Treaty?

RULE 

The Law must conform to the terms of the Treaty (need more of a rule generally) SUB-RULE Some deficiency in the implementation of the law will not deprive it of that character, provided it is still substantially compliant and conforms to the treaty (site the relevant cases). Exceeding is a problem APPLICATION The Treaty says that you have to have 1 pokie per 200 members the Australian law says 1 per 150 members. This would be determined to go beyond the terms of the Treaty. So would be outside of conformity. The treaty and law differ in what is acceptable in placement of facilities within a certain radius, ultimately expanding the initial scope of the Treaty itself.

CONCLUSION TREATY is not supported on that basis SECTION 1 (b) Similar set up as (a) Are any of the other Limbs relevant? If time permits – say that even if this does conform to the Treaty, we have a problem about BONA FIDES Are any of the other Limbs relevant? POSSIBLY – RELATIONS LIMB R v Sharkey Thomas v Mowbury HC said activities which might adversely affect foreign nations are matters of concern to Australia. So in that case you could make a control order about a suspected domestic terrorist if it was likely they would engage in a terrorist act, which included and act to prejudice a GVT of another country. MAJORITY said these days Terrorism isn’t just a DOMESTIC concern because of the flow of money between countries. FACTS are about links to gambling and organised crime in both countries, Trans-Tasman money laundering schemes create problems with crime in both as well. In this problem would have had to of spoken about RELATIONS with other COUNTRIES Not same connexion in this question as Thomas and Mowbury as only talks about poker machines in Australia – would still need to make the argument WILDLY different to the one in the Treaty – may have a CONFORMITY problem therefore my advice may change depending on what that is. SECTION 2 - Letter Treaty Spectre the most and unambiguously conforms to the terms of the Treaty     

Is there a more fundamental issue with the Treaty? Does it impose a clear OBLIGATION? YES Is the Law reasonably appropriate and adapted to achieve the end? YES Is it proportionate? YES Is it entered into BONA FIDES? NO

ISSUE 

Has the Treaty been entered into BONA FIDES? (ulterior motive)

RULE o

o

The Commonwealth cannot in reliance on the EXTERNAL AFFAIRS power pass a LAW where it is merely entered into a TREATY to aggregate extra legislative power Recite the Facts and apply the LAW to the facts APPLICATION  Look at historic context of the letter – NZ ministers intention  States where not doing anything  CTH didn’t have the power to do it so it entered into the treaty

ARGUMENT either way – so need to keep going with the analysis RELATIONS with Other Countries – same as section 1 INTERNATIONAL Concern – same as section 1 GEO EXTERNAL – makes it an offence to engage in an activity in NZ – so at least as it refers to in this section – crimes committed in NZ – it is VALID – this is the conclusion that should be reached SECTION 3 Nothing in the TREATY about establishing a new portfolio. GEO EXTERNAL limb out. Possibly RELATIONS with other countries. R v Sharkey – offence to pronounce ‘sadicious’ words – anything that would cite disaffection with a GVT of a Foreign Country. Incidental aspect of the RELATIONS limb and you would just be arguing whether there was a sufficient connexion Sweeping prohibition about the TREATY not the COUNTRY the minister can in their absolute discretion allow or not allow anything with no criteria expressed and that State governments or instrumentalities couldn’t criticise it - all point against it being RELATIONS COUNTER ARGUMENT Treaty is obviously part of the relationship between Australia and NZ and to the extent Australian citizens and bodies politic that are under the CTH are criticising the Treaty. They are harming the relationship.

HYPOTHETICAL B – PREVIOUS EXAM 65 member states of the United Nations signed a joint statement condemning the participation of foreign fighters in domestic civil conflicts. The joint statement relevantly provides: We call on states to take steps to minimise the participation of their citizens in foreign conflicts, other than as part of United Nations sanctioned interventions and in accordance with the rules of International Humanitarian Law. The participation of private citizens in, and their return from, foreign conflicts poses a significant threat to member states. To that end, we also call on states to take responsibility for their citizens who do take part in foreign conflicts when they return and ensure that they are appropriately dealt with according to law. After signing the statement, 23 states (including Australia, New Zealand, Canada, the United Kingdom and the United States) entered into a multi-lateral treaty, the Convention on the Condemnation and Suppression of Foreign Fighters (“the Treaty”). The Treaty imposes obligations on party states to suppress foreign fighters’ participation in the domestic civil conflicts and to deal with foreign fighters when they return to their home state. The Treaty states: Convention on the Condemnation and Suppression of Foreign Fighters Preamble State parties face a serious and ongoing terrorist threat. Existing international conventions do not adequately address the domestic security threats posed by the return of citizens who have participated in foreign conflicts or undertaken training with terrorist groups overseas. This Treaty is intended to suppress that conduct into the future and to ensure states take responsibility for citizens who participate in such conflicts and return to their country. Art 1: State parties undertake to adopt immediate measures to prevent the participation of their citizens in foreign conflicts for, or in the service of, a terrorist organisation. Art 2: State parties acknowledge that they are responsible for their citizens who, from the date of this Convention, participate in foreign conflicts and will take steps to rehabilitate those citizens who return to the State to minimise the threat of future terrorist activity.

After Australian becomes a signatory to the Treaty in October 2018, the Prime Minister says to journalists that the Government intends to take a “tough stance” on foreign fighters. He also sees this as a convenient way to implement a national service obligation, which he says will improve young peoples’ skills as well as foster a sense of national pride that will suppress engagement in international terrorist organisations. Parliament then passes the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2019 (the “Act”) providing a suite of measures to strengthen and improve Australia’s counter-terrorism legislative framework. The Act provides: Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2019 Section 1: Any Australian citizen who was at any time, a foreign fighter, is guilty of an offence. Section 2: If a foreign fighter who is an Australian citizen fights in a foreign conflict and returns to Australia, the Minister for Immigration and Border Protection may make an order: (a) deporting the person from Australia; and

J s t o t J a a offence under Section 1 of the Act in relation to his 2008 involvement in the Finnish Civil War. Finally, James’ son has just turned 18 and James does not want him to have to undergo national service. By reference to s51(xxix) of the Constitution, advise James of the constitutional validity of Sections 1, 2 and 3 of the Act....