1. Module 7 External Affairs power (s 51(xxix)) and Defence power (s 51(vi)) Bede Harris

2. The external affairs power Section 51 (xxix)
Legislative powers of the Parliament The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) External affairs;

3. The external affairs power
The wide ranging components of this power give the Commonwealth power to:
Give effect to any treaty, regardless of the topic of the treaty;
2. Regulate any activity occurring outside Australia.

4. Treaty implementation
The Commonwealth Executive has the inherent prerogative power to ratify international treaties. It does not make the terms of the treaty part of domestic law if the executive signs it – the s 51(xxix) external affairs power is interpreted as including the power to enact treaties into domestic law

5. The law must be sufficiently related to the treaty
Useful power as Australia enters into treaties on a wide range of matters many of which relate to topics not otherwise covered by the enumerated powers.
The conformity principle
Re Burgess; Ex parte Henry [1936] HCA 52
R v Poole; Ex parte Henry (No 2) (1939) 61 CLR 634

6. Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR 1
Commonwealth sought to implement the UNESCO Convention for the Protection of the World Cultural and Natural Heritage to prevent the Tasmanian state government from constructing a dam in an area of land that was protected by the Convention.
High Court confirmed s 51(xxix) granted the Commonwealth a legislative power to incorporate all of its treaty obligations into Australian Law even though the obligations related to domestic conduct

7. The treaty must impose specific obligations
Victoria v Commonwealth (1996) (Industrial Relations Case) 187 CLR 416: High Court considered municipal legislation introduced to implement Industrial Relations Conventions and Recommendations. The majority ruled: - Treaty implementation of the power can be used only when the treaty upon which the law is based imposes an obligation, that is, the document must not be merely aspirational and must require that countries do something to achieve the treaty’s objectives.

8. Events outside Australia
New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337:s 51(xxix) permitted the Commonwealth to exercise power with respect to matters and things geographically outside Australia Polyukhovich v Commonwealth (1991) 172 CLR 501, the War Crimes Amendment Act (1988) (Cth) sought to retrospectively criminalise certain war crimes committed in Europe during World War II. The majority confirmed that the Commonwealth had plenary (unlimited legislative capacity) therefore no nexus required.

9. International law and domestic law
Commonwealth is free to disregard, or even legislate in contravention of, international law.
Horta v Commonwealth (1994) 181 CLR 183: High Court held that Australia had the capacity to enter into the ‘Timor Gap treaty’ and that the Commonwealth is not restricted by international law in the exercise of its powers.

10. The states as international actors
In theory a State Parliament can legislate on external affairs since s 51 (xxix) is not an exclusive power of the Commonwealth. However in New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337Barwick CJ rejected the idea that States could enter into international treaties , stating that upon Federation the individual colonies had lost whatever personality they had at international alw.

11. The defence power Section 51 (xxix)
Legislative powers of the Parliament  
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.

12. The defence power
Exclusive power of the Commonwealth- s 114 expressly prohibits the States from raising or maintaining military forces
Unique- Commonwealth is obliged to exercise the defence power as s 119 requires the Commonwealth to protect the States

13. Executive power under s 61
Section 61 includes an executive power to defend the constitutional order. It states that the executive power: Extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. Farey v Burvett (1916) 21 CLR 433

14. External and internal threats
Thomas v Mowbray (2007) 233 CLR 307: a majority of the High Court found that s 51(v) also extends to legislation designed to confront internal threats when the Court upheld the validity of anti-terrorist provisions contained in the Criminal Code 1995 (Cth)

15. The purposive nature of s 51 (vi)
Section 51 (vi) - purposive provision therefore the ‘characterisation’ question is one of proportionality rather than sufficient connection to the subject matter. Stenhouse v Coleman (1944) 69 CLR 457 Australian Communist Party v Commonwealth (1951) 83 CLR 1: insufficient evidence to show how the dissolution of the Communist Party served the defence of the Commonwealth

16. Varying scope of the defence power
Farey v Burvett (1916) 21 CLR 433: defence power expands so as to permit the Commonwealth to legislate in wartime on topics that it cannot legislate on when the power has contracted to its narrower scope during peacetime

17. Varying scope of the defence power
Australian Communist Party v Commonwealth (1951) 83 CLR 1: three distinct phases identified by the High Court through which the power may expand and contract:
Aspects that are always available including those during peacetime
Expanded aspect- exists during times of increasing international tension falling short of war and during the period following war
Most expansive aspect- available during wartime

18. Applications of the defence power
Peacetime
Enlistment of armed forces personnel, manufacture of weapons, construction of fortifications: Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1.
Protection against internal subversion: Thomas v Mowbray (2007) 233 CLR 307
Maintenance of a separate judicial system for the enforcement of military discipline: Re Tracey; ex parte Ryan (1989) 166 CLR 518

19. Applications of the defence power
Wartime
Laws giving the Commonwealth overall control over the economy, including the fixing of prices: Farey v Burvett (1916) 21 CLR 433 and Victorian Chambers of Manufacturers v Commonwealth (1943) 67 CLR 34
Detention of persons thought to be subversive of the war effort: Lloyd v Wallach (1915) 20 CLR 299
The Commonwealth's monopolisation of income tax collection in order to put national finances on a war footing: South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 299

20. Applications of the defence power
Aftermath of war
Continued regulation of the economy: Dawson v Commonwealth (1946) 73 CLR 157
Regulate the sale of commodities: Morgan v Commonwealth (1947) 74 CLR 421
Legislate for the benefit of returned servicemen: Wenn v Attorney-General (Vic) (1948) 77 CLR 84