Section 51(xxix) of the Australian Constitution
Encyclopedia
Section 51 of the Australian Constitution is a subsection of Section 51
of the Australian Constitution that gives the Commonwealth Parliament of Australia
the right to legislate with respect to "external affairs".
In recent years, most attention has focused on the use of the power to pass legislation giving effect within Australia to its obligations under international treaties and conventions
. In some cases, as with human rights
or environmental protection
, the activities regulated by treaty-implementing legislation have not been international in nature but rather located solely within Australia or even solely within a particular State
.
In Australia, developments in international law have no direct effect for domestic purposes unless a deliberate law-making act by the proper law-making authority has "transformed" the international rule into a domestic rule.
, when considering whether to ratify the draft, resolved to omit the words "and Treaties" on the basis that only the Imperial Parliament
ought to enter treaties that bound Australia. The removal of the explicit reference to treaties was confirmed by the delegates to the 1897 Sydney Convention and the 1898 Melbourne Convention.
In 1901, Robert Garran
and John Quick
suggested that the external affairs power would "prove to be a great constitutional battle-ground." Some 86 years later, Coper remarked that their prediction "showed remarkable foresight".
were intended to be included. When the Australian Constitution was created in 1901, the United Kingdom and its possessions were not conceived of as "foreign" to Australia.
Chief Justice Latham said in R v Sharkey (1949) that "external affairs" was not confined to the "preservation of friendly relations with other Dominions", but extended to relations with "all countries outside Australia". Justice Brennan
in Koowarta v Bjelke-Petersen (1982) extended this to relations with other "international persons", especially the United Nations and its various specialised agencies.
The judges in Seas and Submerged Lands Case (1975) differed as to whether the "external affairs" power entitled the Commonwealth to assert its sovereignty over Australia's territorial sea, though a majority held that it did. The underlying reason for this was that the idea of national rights with respect to the "continental shelf
" had emerged since 1945 distinctly as a product of international relations
and international law
.
in Seas and Submerged Lands Case, the external affairs power extends to anything "which in its nature is external to" Australia, or according to Justice Mason "to matters or things geographically situated outside Australia". These suggestions were reinforced in later cases, and finally assumed decisive importance in Polyukhovich v Commonwealth
(War Crimes Act Case) (1991). In this case, all judges other than Justice Brennan
held that s 51(xxix) contained a sufficient grant of power to support a law to identify and prosecute "war crime
s" committed in Europe during World War II. Chief Justice Mason, and justices Deane, Dawson and McHugh held that this conclusion was sufficiently based on the fact that the geographical location in which the relevant acts were alleged to have been done was physically external to Australia.
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
of the Australian Constitution that gives the Commonwealth Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
the right to legislate with respect to "external affairs".
In recent years, most attention has focused on the use of the power to pass legislation giving effect within Australia to its obligations under international treaties and conventions
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
. In some cases, as with human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
or environmental protection
Environmentalism
Environmentalism is a broad philosophy, ideology and social movement regarding concerns for environmental conservation and improvement of the health of the environment, particularly as the measure for this health seeks to incorporate the concerns of non-human elements...
, the activities regulated by treaty-implementing legislation have not been international in nature but rather located solely within Australia or even solely within a particular State
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
.
In Australia, developments in international law have no direct effect for domestic purposes unless a deliberate law-making act by the proper law-making authority has "transformed" the international rule into a domestic rule.
Origins
According to Constitutional law academic Michael Coper, it is "not entirely clear what the founding fathers intended" by conferring upon the Commonwealth Parliament the right to legislate with respect to "external affairs". Section 51(xxix) was amended a number of times in the Constitutional Conventions that debated the draft Constitution in the 1890s. The draft Constitution adopted by the 1891 Sydney Convention allowed the Parliament to make laws with respect to "External affairs and Treaties". This wording carried through the 1897 Adelaide Convention but the New South Wales Legislative CouncilNew South Wales Legislative Council
The New South Wales Legislative Council, or upper house, is one of the two chambers of the parliament of New South Wales in Australia. The other is the Legislative Assembly. Both sit at Parliament House in the state capital, Sydney. The Assembly is referred to as the lower house and the Council as...
, when considering whether to ratify the draft, resolved to omit the words "and Treaties" on the basis that only the Imperial Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
ought to enter treaties that bound Australia. The removal of the explicit reference to treaties was confirmed by the delegates to the 1897 Sydney Convention and the 1898 Melbourne Convention.
In 1901, Robert Garran
Robert Garran
Sir Robert Randolph Garran GCMG KC was an Australian lawyer and public servant, an early leading expert in Australian constitutional law, the first employee of the Government of Australia and the first Solicitor-General of Australia...
and John Quick
John Quick (politician)
Sir John Quick , Australian politician and author, was the federal Member of Parliament for Bendigo from 1901 to 1913 and a leading delegate to the constitutional conventions of the 1890s.-Early life:...
suggested that the external affairs power would "prove to be a great constitutional battle-ground." Some 86 years later, Coper remarked that their prediction "showed remarkable foresight".
Relations with other countries
The term "external affairs" was used in section 51(xxix) rather than "foreign affairs" to make it clear that relations with the United Kingdom and other parts of the British EmpireBritish Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
were intended to be included. When the Australian Constitution was created in 1901, the United Kingdom and its possessions were not conceived of as "foreign" to Australia.
Chief Justice Latham said in R v Sharkey (1949) that "external affairs" was not confined to the "preservation of friendly relations with other Dominions", but extended to relations with "all countries outside Australia". Justice Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
in Koowarta v Bjelke-Petersen (1982) extended this to relations with other "international persons", especially the United Nations and its various specialised agencies.
The judges in Seas and Submerged Lands Case (1975) differed as to whether the "external affairs" power entitled the Commonwealth to assert its sovereignty over Australia's territorial sea, though a majority held that it did. The underlying reason for this was that the idea of national rights with respect to the "continental shelf
Continental shelf
The continental shelf is the extended perimeter of each continent and associated coastal plain. Much of the shelf was exposed during glacial periods, but is now submerged under relatively shallow seas and gulfs, and was similarly submerged during other interglacial periods. The continental margin,...
" had emerged since 1945 distinctly as a product of international relations
International relations
International relations is the study of relationships between countries, including the roles of states, inter-governmental organizations , international nongovernmental organizations , non-governmental organizations and multinational corporations...
and international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
.
Matters external to Australia
According to Chief Justice BarwickGarfield Barwick
Sir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...
in Seas and Submerged Lands Case, the external affairs power extends to anything "which in its nature is external to" Australia, or according to Justice Mason "to matters or things geographically situated outside Australia". These suggestions were reinforced in later cases, and finally assumed decisive importance in Polyukhovich v Commonwealth
Polyukhovich v Commonwealth
Polyukovich v The Commonwealth [1991] HCA 32; 172 CLR 501, commonly referred to as the War Crimes Act Case, was a significant case decided in the High Court of Australia regarding the scope of the external affairs power in section 51 of the Constitution and the judicial power of the...
(War Crimes Act Case) (1991). In this case, all judges other than Justice Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
held that s 51(xxix) contained a sufficient grant of power to support a law to identify and prosecute "war crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
s" committed in Europe during World War II. Chief Justice Mason, and justices Deane, Dawson and McHugh held that this conclusion was sufficiently based on the fact that the geographical location in which the relevant acts were alleged to have been done was physically external to Australia.