KK8: The impact of international declarations and treaties on the

interpretation of the external affairs power

Key skillDiscuss the impact of international declarations and treaties on the interpretation of the external affairs power

What is the external affairs power?Under section 51 (xxix) of the Constitution, the Commonwealth Parliament has the power to create laws in relation to ‘external affairs’.

This means that the federal parliament can pass legislation that reflects international agreements.

This gives the government the power to make laws on treaty topics that are not listed as powers in the Constitution.

Key termsTreaty: An agreement between countries that is governed by international law. Eg. The Convention Concerning the Protection of the World Cultural and Natural Heritage.

The power to enter into (sign) a treaty is considered an executive power (under section 61 of the Constitution), however parliament must ratify the treaty to make it binding

Declaration: A non-binding agreement between countries which set out certain aspirations of the parties to the agreement (Eg - The Declaration on the Rights of Disabled Persons)

Commonwealth v Tasmania (Tasmanian Dam Case)Facts: The Tasmanian government wanted to dam the Franklin River to create a source of hydroelectricity for the state’s power needs. To do so, the Tasmanian parliament passed the Gordon River Hydro-Electric Power Development Act 1982 (Tas).

The federal government intervened and passed the World Heritage Properties Conservation Act 1983 (Cth) to stop the construction of the dam. They did this in accordance with obligations set out under the Convention Concerning the Protection of the World Cultural and Natural Heritage.

In response the Tasmanian government argued that the federal government had passed law in an area of state responsibility. The Commonwealth government responded that it had the power to intervene because its external affairs power gave it authority to make laws that related to an issue covered in an international treaty.

High Court’s DecisionThe High Court decided that the external affairs power gave the Commonwealth Parliament power to make laws to fulfil Australia’s obligations under international treaties.

In this case, the federal government introduced a law that reflected obligations that were referred to within an international treaty, therefore the law was valid. Therefore the federal act was valid and the Commonwealth was able to stop the Tasmanian government from constructing the dam.

What was the impact of this decision?

ImpactThis case was significant because it demonstrated how obligations within conventions and treaties like the Convention Concerning the Protection of the World Cultural and Natural Heritage can broaden the scope of the external affairs power.

The decision extended the meaning of the external affairs power to include law-making necessary to uphold obligations under an international treaty.

ImpactThis case greatly expanded the law making powers of the Commonwealth, as they were able to make laws on a range of topics including in areas like the environment that were previously residual powers for the states.

Since the decision, the Commonwealth has used this external affairs power to create a variety of laws to uphold international treaties and address issues of global concern, including the Human Rights (Sexual Conduct) Act 1994 (Cth).

Limitations to the external affairs powerAs Justice Mason stated in Tasmanian Dam, the external affairs power doesn’t give parliament unlimited power in relation to the subject matter of the treaty. Rather, it must relate to specific sections of the treaty.

Parliament will still be limited by any express rights contained in the Constitution.

Exit PassExplain the impact of an international declaration or treaty on the interpretation of the external affairs power