It becomes relevant when looking at a purposive power. Some powers are purposive.

Transcription

1 External affairs Purpsive pwer and prprtinality test We dn t lk at the purpse f the pwer n subject matter characterisatin when lking at whether r nt the Cth is valid It becmes relevant when lking at a purpsive pwer. Sme pwers are purpsive. Gives Cth pwer t make legislatin fr the purpse f a relevant matter Purpsive pwers carry a test called the prprtinality test: Whether the legislatin that has been passed is apprpriately adapted t the purpse prpsed under the purpsive pwer (Murphy; Cleman) Exceptin t this test: When lking at the validity Incidental pwer Purpse shuld be cnsidered in the incidental range f the pwer, as shuld prprtinality f the prpsed act The dminant test is if the law in questin is a reasnable and apprpriate means f furthering an bject r purpse in the pwer (R v Burgess). Other tests are the reasnably necessary test r reasnable fulfilment f the purpse. Justice Masn preferred a 'prprtinality' test that tk int accunt the adverse effects f incidental laws. Every legislative pwer carries with it authrity t legislate in relatin t matters the cntrl f which is necessary t effectuate its main purpse, and thus carries with it pwer t make laws affecting many matters incidental t the subject matter : (Grannall v Marrickville Margarine Pty Ltd) If in incidental range, als cnsider: Prprtinality is nt relevant t the characterisatin except where the curt is balancing between a head f pwer and a cnstitutinal limitatin n the pwer. 1

2 Brennan CJ in this same case said that where there is a challenge t a nn-purpsive law n the grund that there is nt a sufficient cnnectin, prprtinality is a cncept used t ascertain whether an Act achieves an effect r purpse within pwer. Relatins with ther cuntries External affairs pwer extends t relatins with internatinal rganisatins (Kwarta v Bjelke-Petersen per Brennan J) External affairs pwer has the ability t encmpass assertin f svereignty ver territrial sea, even thugh internatinal relatins in this respect may be nn-cnsensual (Seas and Submerged Lands Case) External affairs pwer desn t nly extend t cnsensual pwers (Seas and Submerged Lands Case) External affairs isn t cnfined t gd relatins between natins; it just needs t affect relatins between cuntries (Seas and Submerged Lands Case) Prviding fr cntrl rders are a valid exercise f external affairs pwer since effrts t cmbat terrrism is cnnected t Australia s relatins with ther cuntries. This is because terrrism cerces and affects gvernments f ther cuntries (Thmas v Mwbray) Relatins with all cuntries utside f Australia fall within cncept f external affairs this includes keeping gd relatins (R v Sharkey) Law which prhibits abve is reasnably capable f affecting relatins with ther cuntries and therefre external affairs pwer applied here (R v Sharkey) This pwer is brader than nly applying t gd relatins (R v Sharkey) The Cmmnwealth is able t use the external affairs pwer t legislate with respect t relatins with freign natins. In R v Sharkey Latham CJ stated: The preservatin f friendly relatins with ther Dminins is an imprtant part f the management f the external affairs f the Cmmnwealth. The preventin and punishment f the excitement f disaffectin within the Cmmnwealth against the Gvernment r Cnstitutin f any ther Dminin may reasnably be thught by Parliament t cnstitute an element in the preservatin f friendly relatins with ther Dminins (R v Sharkey) Matters external t Australia If law is passed by the Cth in relatin t r effects anything gegraphically utside f Australia, then it falls within external affairs pwer (Seas and Submerged Lands Case; Plyukhvich v Cth) 2

3 S 51 (xxix) cntains a sufficient grant f pwer t supprt such a law. This is because the war crimes that the legislatin was being made in relatin t fell physically utside f Australia i.e. Eurpe (Plyukhvich v Cth) Brennan J dissented in the afrementined case he argued that the external affairs being regulated must have sme cnnectin/nexus t Australia (Plyukhvich v Cth) Hrta case prved the validity f Brennan s pint in the previus mentined case (Hrta v Cth) The mere externality apprach (aka ignring Brennan s views) was cnfirmed in 5 judge jint judgement where it was agreed that the external affairs pwer extends t places, persns and matters f things physically external t Australia (XYZ v Cth) Callinan & Heydn J disagreed stating that yu need a nexus (XYZ v Cth) Hayne and Kiefel stated that it is irrelevant that the cause f the GFC may be external; the stimulus package was directed at the Australian ecnmy, and is therefre an internal matter (Pape v Cmmissiner f Taxatin) Internatinal law Brennan J stated that a law which vested in an Australian curt a jurisdictin recgnised by internatinal law as a universal jurisdictin is a law with respect t Australia s external affairs (Plyukhvich v Cth) Brennan accepted that external affairs pwer indeed extends t making laws with regards t prsecutin f internatinal crimes, but rejects argument in this instance because War Crimes Act define war crimes in a way that was significantly different frm internatinal law definitin (Plyukhvich v Cth) Nt yet a settled issue, althugh Kirby accepted the understanding f pwer in (Thmas v Mwbray) Entering int treaties The pwer t cmmit Australia t internatinal agreements lies with the federal executive as an aspect f its prergative pwer. Hwever, refrms in recent decades have ensured that Parliament des play a part in the deliberative prcess. The mst cntrversial questin cncerning s 51(xxix) has been the extent t which Australia s entry int internatinal treaties r cnventins can trigger a cnstitutinally permissible exercise under the paragraph f Cth legislative pwer. Treaty implementatin law and the limitatins This aspect f the external affairs pwer allws the Cmmnwealth t alter federal laws in a manner that wuld be beynd pwer, were the Parliament t seek t use any ther head f 3

4 pwer granted under the Cnstitutin. The HC has cnsidered the relatinship between the executive and the Parliament, the nature and scpe f the treaty, the implementatin aspect f the pwer and the limitatin f its use. The relatinship between the executive and the parliament The Cth executive, thrugh the act f the Gvernr-General, has inherent pwer in relatin t the making f internatinal treaties and ther similar instruments such as cnventins, charters, cvenants r pacts. The signing and ratificatin f such internatinal instruments indicates t the wrld that Australia intends t be bund by internatinal law and adhere t the treaties prvisins. But such a treaty des nt becme enfrceable in Australian dmestic law until expressly incrprated r implemented, by an Act f Parliament. Sectin 51 (xxix) empwers the Cth Parliament t incrprate prvisins f internatinal treaties t which Australia is a party int Cth legislatin Unincrprated treaties have prcedural effects in Australian law, but cannt alter substantive rights and duties until implemented in dmestic law (Minister fr Immigratin & Ethnic Affairs v Teh 1995) McHugh, Gummw & Callinan expressed their displeasure with the precedent in Teh and suggested it was a vulnerable ne shuld the issue cme directly befre the HC again (Re Minister fr Immigratin & Ethnic Affairs v Lam 2003) The rule in this case seemingly established that the Cth Parliament culd legislate t give effect t any bligatin r even nn-binding recmmendatin cntained in an internatinal treaty nce ratified cntrl n Cth Parliament via back-end requirement that law actually gives effect t the treaty (R v Burgess; Ex parte Henry) Masn, Murphy & Brennan saw n limitatin n Cth legislative pwer t implement internatinal agreements, prvided law can be related t implementatin f bna fide agreement; it will be valid, even if it addresses purely dmestic issues. There was n majrity view in this case (Kwarta v Bjelke-Petersen) Murphy J said that a narrw interpretatin f clause wuld leave Australia an internatinal cripple (Kwarta v Bjelke-Petersen) Gibbs, Aickin and Wilsn JJ in dissent adpted qualified view that subject matter f agreement must itself be an external affair in sense that it in sme way invlves a relatinship with ther cuntries r with persns r things utside f Australia (Kwarta v Bjelke-Petersen) 4

5 The fact that many natins are cncerned that ther natins shuld eliminate racial discriminatin within their wn bundaries des nt cnvert racial discriminatin within the bundaries f ne cuntry int an internatinal affair (Kwarta v Bjelke-Petersen) An Australian law, perating within Australia, regulating the relatinship f Australians with ther Australians is nt internatinal in character (Kwarta v Bjelke-Petersen) Gibbs CJ rejected the dctrine f bna fides as prviding at its best, a frail shield available in rare cases (Kwarta v Bjelke-Petersen) Stephen J applied Starke J s test f internatinal cncern (Kwarta v Bjelke-Petersen) Fur judges held that external affairs pwer was nt unqualified in sense that it did nt extend t implementatin f all treaties. At the very least, s51(xxix) will supprt a Cth law implementing a treaty where the subject matter is f internatinal cncern (Kwarta v Bjelke-Petersen) The pwer might be attracted nt nly by a frmal agreement such as a treaty, but als by an infrmal agreement (R v Burgess; Ex parte Henry) In such a case, the Cth wuld be able t acquire an unlimited legislative pwer. The distributin f pwers made by the Cnstitutin culd in time be cmpletely bliterated; there wuld be n field f pwer which the Cth culd nt invade, and the federal balance achieved by the Cnstitutin culd be entirely destryed. (R v Burgess; Ex parte Henry) Since Engineers Case the reserve pwers dctrine has been ablished. Hwever, in determining the meaning and scpe f a pwer cnferred by s51 it is necessary t have regard t the federal nature f the Cnstitutin. Accrdingly, n single pwer shuld be cnstrued in such a way as t give the Cth Parliament a universal pwer f legislatin which wuld render absurd the assignment f particular carefully defined pwers t that Parliament (Bank f NSW v Cth) Tasmanian Dams case s6 f Act clearly drafted with prir cases in mind, seeking t defend legislative cnferral f pwer t issue prclamatin either as aspect f Australia s relatinship with internatinal rganisatin (Wrld Heritage Cmmittee); implementatin f treaty (with r withut bligatin); fulfilment f an internatinal law bligatin (whether created by treaty r therwise); r as addressing an issue f int cncern (in absence f any treaty r bligatin) (Tasmanian Dams Case) Majrity 4:3 (Masn, Murphy, Brennan & Deane JJ) adpt wide, unqualified view f external affairs pwer Masn J rejects internatinal cncern test as being t elusive (at 123) and yielding n acceptable criteria r guidelines (at 125): (Tasmanian Dams Case) 5

6 The existence f internatinal character r internatinal cncern is established by entry by Australia int the cnventin r treaty (at 125) Curt cannt secnd-guess executive and legislative judgments f this srt Murphy J: Internatinal cncern is ne f several criteria which is sufficient t attract s51(xxix). Others are (nn-exhaustively): (Tasmanian Dams Case) Law that implements any internatinal law Law that implements any treaty r cnventin Law that implements any request r recmmendatin f the UN r subsidiary wrld rganisatins (e.g. WHO) Law that affect relatinships between Aust r grups within Australia and ther natins r grups external t Australia Law that deals with dmestic matters that are f internatinal cncern If the nly cnnectin t s51(xxix) is a treaty, the Cth s pwer is cnfined t what is reasnably apprpriate t implement the treaty desn t mean yu have t implement all the prvisins f the treaty and rigidly stick t the terms used If the cnnectin t external affairs is sme ther nn-treaty criteria, the Cth s pwer extends t all that is reasnably apprpriate fr dealing with that criteria Brennan J adds qualificatin, viz. that law must implement bligatin (nt recmmendatin), failing which Stephen J s test fr internatinal cncern in Kwarta shuld be applied (Tasmanian Dams Case) Minrity (Gibbs CJ, Wilsn and Dawsn JJ) fllw Stephen J s internatinal cncern test as lwest cmmn denminatr rati in Kwarta (Tasmanian Dams Case) Gibbs CJ hlds that [t]he prtectin f the envirnment and the cultural heritage... cannt be said t have becme such a burning internatinal issue that a failure by ne natin t take prtective measures is likely adversely t affect its relatins with ther natins... TODAY abve argument wuldn t hld The relevant aspects f UNESCO deal with matters entirely internal t Australia N reciprcity in the actin required within Australia Desn t directly affect the interests f ther natin 6

7 Cnventin desn t impse an bligatin n Cth t enact legislatin t prtect heritage Because f qualificatin in Brennan J s judgment, the rati in Tasmanian Dam Case was restricted t implementatin f internatinal legal bligatins (nt recmmendatins) Is an external affair invlved? Executive pwer is vested in s61cc t deal with ther natins aka external affairs What are external affairs? If law is passed by the Cth in relatin t r effects anything gegraphically utside f Australia and is physically external, then it falls within external affairs pwer (Seas and Submerged Lands Case; Plyukhvich v Cth; Victria v Cth ILO Case) Has dmestic legislatin been affected? If yes, s 51(xxix) internatinal bligatins t incrprate treaties Extraterritrial pwer and territrial bundary If Parliament attempts t legislate fr matters beynd its brders such an act is said t be an exercise f extraterritrial pwer (s 51(xxix)). The territrial bundary is matters r things gegraphically situated utside Australia (NSW v Cth) HC fund that in internatinal law, the territrial brder f Australia was generally the lw water mark The territrial sea and the cntinental shelf wuld therefre be cnsidered utside Australian brders The entire HC fund that s 51(xxix) permitted the Cth t exercise pwer with regard t matters f things gegraphically situated utside Australia (Masn J at 471) Is a nexus (binding) required? Majrity fund that s 51(xxix) gave the Cth plenary extraterritrial pwer and there was n nexus requirement (Plyukvich v Cth) This was revisited in XYZ v Cmmnwealth where it was suggested that the nexus requirement needs t be revisited. 7

8 It was held that mere gegraphical externality is sufficient (XYZ v Cth) Callinan & Heydn dissented and rejected the mere externality test (XYZ v Cth) What abut with respect t ther natins? Cmmnwealth has pwer t legislate with respect t ther natins (R v Sharkey) Are we required t recgnize freign laws? Yes, freign judgments, evidence and extraditin are supprted under this aspect f the external affairs pwer (Vasiljkvic v Cmmnwealth) Revlutin against gvernment? The creatin f the ffence f seditin which prhibited the excitement f disaffectin against the gvernments f the UK was a valid exercise f pwer. (R v Sharkey) Urging anther persn t verthrw by frce r vilence is an ffence under: The Cnstitutin The Gvernment f the Cth, a state r a territry The lawful authrity f the gvernment f the Cth Anti-terrrism? Anti-terrrism Wuld prbably als been encmpassed within the ambit f the pwer as seen in Thmas v Mwbray [2007] HCA 33. This includes acts dne within Australia r beynd its territry and against any member f the United Natins (Thmas v Mwbray) What is the purpse f a treaty? Signals Australia s bligatin t the wrld (Tnen v Australia) Ratificatin means must take int accunt in decisin making (Minister fr Immigratin & Ethnic Affairs v Teh) What are the effects f internatinal laws n Australia? When Australia becmes a party t a treaty, Australia is bund in internatinal law t bey the terms f that treaty and is accuntable t ther natins. But a treaty is nt enfrceable in Australian dmestic law unless it is specifically incrprated int law by an Act f Parliament. 8

9 What are the limitatins n incrprating treaties? Cannt alter substantive rights until they are implemented in dmestic law (Minister fr Immigratin & Ethnic Affairs v Teh) Can all treaties be incrprated int dmestic law? Treaties that can be deemed cmpetent t legislate fr carrying ut f recmmendatins as well as draft internatinal bligatins may be incrprated (Re Burgess; Ex Parte Henry) The treaties that are incrprated d nt have t be cnfined t external aspects. Any tpic is within scpe f s51(xxix) if required. Limits f incrpratin f treaties int dmestic law Treaty must be bna fide The need fr a treaty bligatin The specificity principle The cnfrmity principle External affairs pwer nt limited t tpics f internatinal cncern Custmary laws are laws accepted as binding by all natins XYZ v Cth said that this matter wuld be revisited Implementing a treaty as a matter f internatinal cncern Implementing is a valid exercise f external affairs pwer (Kwarta v Bjelke- Petersen). The tests are as fllws: Any treaty is kay Subject matter must be external Internatinal cncern is acceptable The external affairs pwer is nt cnfined t external aspects f the ther heads f pwer enumerated in s51, nr is it limited t tpics f internatinal cncern r having internatinal character. In Cth v Tasmania Dams, it was granted that Cth had the pwer t incrprate all treaty bligatins t Australia (Cth v Tasmania Dams) This was recnfirmed in Richardsn v Frestry Cmmissin, where it was stated that the Cth was allwed t legislate against matters reasnably incidental t treaty bligatins (Richardsn v Frestry Cmmissin) 9