LAWS2011 Federal Constitution Law Notes
Fall
LAWS2011 Federal Constitution Law Notes
M a x G a o
14
Table of Contents
EXTERNAL AFFAIR TREATY IMPLEMENTATION LIMITATIONS CORPORATION POWER INTERSTATE TRADE AND COMMERCE S 92 TAXATION AND EXCISE GRANTS DEFENCE POWER IMPLIED FREEDOM OF POLITICAL COMMUNICATION
3 4 5 6-‐7 8 9-‐10 11-‐12 13-‐14 15
External Affairs Constitution – s 51(29) England + Australia • Transformation approach – o International and local legal system are separate, treaty has no effect on domestic law until it has been enacted by parliament – Teoh • Executive action of ratifying treaty only commits Australia externally, no legal consequence for subjects of the crown – Dietrich v Queen Constitutional scope • Difficult to ascertain as it is not easily envisaged that the scope of international interaction would be like the one we have today Geographic externality: If a matter lies outside of the limits of Cth, EA is triggered R v Sharkey (1949) • Relationships with other countries outside of Australia are matters fall directly within the subject of external affairs power • Preserving warm relationships with other states is an important part of the management of the external affairs power • Permits prohibition on citizens’ conduct which might affect our relationships with other countries Seas and Submerged Land Case (1975) • Barwick CJ – EA power extends to anything, which in its nature external to Australia, subject to the constitution as a whole. • Mason, Jacobs JJ – Extends to matters or things geographically situated outside of Australia War Crimes Act Case (1991) • Majority – plenary extra-territorial power o “Affairs” is imprecise but is wide enough to cover places, matters, persons and thing; o “External” is precise but unqualified, thus if a matter falls outside of Australia, Cth can legislate – per Dawson J • Minority – there requires some nexus, not necessarily substantial between the matter and Australia Industrial relations Act Case (1996) – unanimous • s 51(xxix) is a power for the Cth to legislate with respect to anything outside of the geographical limits of Australia Horta v Cth (1994) • Geographic externality is all that is needed for Cth to legislate (exploration and exploitation of resource in the Timor Gap is an “external affair” regardless of the existence of international treaty or claims by Indo.) XYZ v Cth (2006) • Affirms the geographic externality is all you need to enact legislation under s51(29) • Kirby: Geographic externality needs further elaboration • Heydon and Callinan: rejects GE, legislative power requires some nexus o International concern doctrine: isn’t the govt. deeming a constitutional fact? 3
Treaty Implementation Interpretation Issue – Treaty it self is the requisite international concern R v Burgess (1936) • Evatt and Mctiernan (Expansive) o Cth has power to implement ALL treaty obligations but subject to the constitution o Treaty must be bona fide o Can go beyond treaties to include: informal agreement, draft international conventions, recommendations • Starke and Dixon (Restrictive) o Subject matter must be “sufficient international significance, indisputably international in character, which affects Australian citizens” o Focus on the quality of international significance Koowarta v Bjelke-Petersen (1982) • Implementation of treaty is valid exercise of power as long as the subject matter being implemented is a matter of international concern, the mere existence of the treaty is NOT enough • Courts will determine this by looking at the context, subject-matter and parties • Purpose is for parliament to legislate with respect to external affairs, (it means they can do it to anything external, regardless of treaty?) – Mason J at 229 dicta o Mason, Brennan and Murphy (hindering relationship with other states) § Existence of treaty is proof that it is a matter of international concern provided the treaty is bona fide § Cannot use it to override constitutional prohibitions § Whether the subject matter is of international concern is immaterial o Gibbs, Wilson, Aicken, Stephen § The subject matter of the treaty itself must be an external affair, ie. Concerns with externality matters or relationships with other states and not purely domestic issues § Since the executive can enter treaties freely, there is danger that it would abuse the power and arrogate to the parliament the power to legislate on any subject-matter Tasmanian Dam Case (1983) • The mere existence of treaty is enough to show that there is an international concern on the subject-matter, the minority agrees if the subject-matter is of sufficient international significance – Mason J at 125 • Actual treaty obligation: treaty recommendation is suffice (dicta, there is no clear majority) and the minority insists that there is a treaty obligation • If there is a matter that is regarded by the international community as a proper subject for international action, then it is of sufficient international concern, doesn’t need a treaty – Gibbs CJ at 101 dicta Reform • Winterton: political reality is that capacity of Cth’s ability to conduct Australia’s foreign relations will be reduced if states are allowed to participate • Dr. Trone: norm of other federal states as well; the following is a huge success • Joint-Standing on Treaties – 1997 o Treaties tabled in parliament for at least 15 days before govt takes binding action o Treaties subject to National Interest Analysis to see why Australia should be a party e.g. obligations, benefits o Establishing Treaies Council Cth and a treaties database
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LAWS2011 Federal Constitution Law Notes
M a x G a o
14
Table of Contents
EXTERNAL AFFAIR TREATY IMPLEMENTATION LIMITATIONS CORPORATION POWER INTERSTATE TRADE AND COMMERCE S 92 TAXATION AND EXCISE GRANTS DEFENCE POWER IMPLIED FREEDOM OF POLITICAL COMMUNICATION
3 4 5 6-‐7 8 9-‐10 11-‐12 13-‐14 15
External Affairs Constitution – s 51(29) England + Australia • Transformation approach – o International and local legal system are separate, treaty has no effect on domestic law until it has been enacted by parliament – Teoh • Executive action of ratifying treaty only commits Australia externally, no legal consequence for subjects of the crown – Dietrich v Queen Constitutional scope • Difficult to ascertain as it is not easily envisaged that the scope of international interaction would be like the one we have today Geographic externality: If a matter lies outside of the limits of Cth, EA is triggered R v Sharkey (1949) • Relationships with other countries outside of Australia are matters fall directly within the subject of external affairs power • Preserving warm relationships with other states is an important part of the management of the external affairs power • Permits prohibition on citizens’ conduct which might affect our relationships with other countries Seas and Submerged Land Case (1975) • Barwick CJ – EA power extends to anything, which in its nature external to Australia, subject to the constitution as a whole. • Mason, Jacobs JJ – Extends to matters or things geographically situated outside of Australia War Crimes Act Case (1991) • Majority – plenary extra-territorial power o “Affairs” is imprecise but is wide enough to cover places, matters, persons and thing; o “External” is precise but unqualified, thus if a matter falls outside of Australia, Cth can legislate – per Dawson J • Minority – there requires some nexus, not necessarily substantial between the matter and Australia Industrial relations Act Case (1996) – unanimous • s 51(xxix) is a power for the Cth to legislate with respect to anything outside of the geographical limits of Australia Horta v Cth (1994) • Geographic externality is all that is needed for Cth to legislate (exploration and exploitation of resource in the Timor Gap is an “external affair” regardless of the existence of international treaty or claims by Indo.) XYZ v Cth (2006) • Affirms the geographic externality is all you need to enact legislation under s51(29) • Kirby: Geographic externality needs further elaboration • Heydon and Callinan: rejects GE, legislative power requires some nexus o International concern doctrine: isn’t the govt. deeming a constitutional fact? 3
Treaty Implementation Interpretation Issue – Treaty it self is the requisite international concern R v Burgess (1936) • Evatt and Mctiernan (Expansive) o Cth has power to implement ALL treaty obligations but subject to the constitution o Treaty must be bona fide o Can go beyond treaties to include: informal agreement, draft international conventions, recommendations • Starke and Dixon (Restrictive) o Subject matter must be “sufficient international significance, indisputably international in character, which affects Australian citizens” o Focus on the quality of international significance Koowarta v Bjelke-Petersen (1982) • Implementation of treaty is valid exercise of power as long as the subject matter being implemented is a matter of international concern, the mere existence of the treaty is NOT enough • Courts will determine this by looking at the context, subject-matter and parties • Purpose is for parliament to legislate with respect to external affairs, (it means they can do it to anything external, regardless of treaty?) – Mason J at 229 dicta o Mason, Brennan and Murphy (hindering relationship with other states) § Existence of treaty is proof that it is a matter of international concern provided the treaty is bona fide § Cannot use it to override constitutional prohibitions § Whether the subject matter is of international concern is immaterial o Gibbs, Wilson, Aicken, Stephen § The subject matter of the treaty itself must be an external affair, ie. Concerns with externality matters or relationships with other states and not purely domestic issues § Since the executive can enter treaties freely, there is danger that it would abuse the power and arrogate to the parliament the power to legislate on any subject-matter Tasmanian Dam Case (1983) • The mere existence of treaty is enough to show that there is an international concern on the subject-matter, the minority agrees if the subject-matter is of sufficient international significance – Mason J at 125 • Actual treaty obligation: treaty recommendation is suffice (dicta, there is no clear majority) and the minority insists that there is a treaty obligation • If there is a matter that is regarded by the international community as a proper subject for international action, then it is of sufficient international concern, doesn’t need a treaty – Gibbs CJ at 101 dicta Reform • Winterton: political reality is that capacity of Cth’s ability to conduct Australia’s foreign relations will be reduced if states are allowed to participate • Dr. Trone: norm of other federal states as well; the following is a huge success • Joint-Standing on Treaties – 1997 o Treaties tabled in parliament for at least 15 days before govt takes binding action o Treaties subject to National Interest Analysis to see why Australia should be a party e.g. obligations, benefits o Establishing Treaies Council Cth and a treaties database
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