1. Constitutional Law
Topic 9 External Affairs Power
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2. External Affairs Power
• Power conferred under s 51(xxix) to make laws
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3. External Affairs Power
• Polyukhovichv Commonwealth (War Crimes Act Case)
(1991) 172 CLR 501
• Hortav Commonwealth (1994) 181 CLR 183
• R v Burgess; Ex parte Henry (1936) 55 CLR 608
• Koowartav Bjelke-Petersen (1982) 153 CLR 168
• Commonwealth v Tasmania (Tasmanian Dams Case)
(1983) 158 CLR 1
• Richardson v Forestry Commission (1988) 164 CLR 261
• Victoria v Commonwealth (Industrial Relations Act
Case) (1996) 187 CLR 416
• Papev Commission of Taxation (2009) 238 CLR 1
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4. Relations with other Countries
• R v Sharkey (Page 878) discusses the notion that
“external affairs” deals with matters between
Australia and any other “dominion” or “nation”,
whether part of the Commonwealth or not.
• Latham CJ judgment highlights the then
distinction between “foreign and external”
affairs.
• Britain would be a foreign country in context of
external affairs.
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5. Polyukhovich (War Crimes Case)
p 880
• The plaintiff was an Australian citizen and a
resident of South Australia. The second
defendant, the Commonwealth Director of Public
Prosecutions, alleged that the plaintiff committed
war crimes in Ukraine during World War II.
• Each of the crimes was alleged to have been a
“war crime” within the meaning of s 9 of the War
Crimes Act 1945 (Cth) as amended (the Act),
being a serious crime within the meaning of s 6.
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6. Polyukhovich(cont.)
• In each instance the crime was alleged to have
been committed at a time when the Ukraine was
under German occupation during the Second
World War.
• It was common ground that at the time of the
commission of the alleged offences there was no
Australian legislation in force which purported to
make it a criminal offence on the part of an
Australian citizen or resident to do such acts in
the Ukraine as the plaintiff was alleged to have
done.
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7. Polyukhovich(cont.)
• In separate judgments, Mason CJ, Deane, Dawson,
Toohey, Gaudron and McHugh JJ (Brennan J
dissenting): Section 9 of the Act was valid as a law with
respect to external affairs.
• Mason CJ: Section 9 was properly characterised as a
law with respect to external affairs. Australian
parliament’s interest in the outcome is not relevant to
a law being valid under s 51(xxix).
• Deane J: The provisions of the Act were clearly laws
with respect to matters or things which occurred
outside Australia. At least to that extent, the Act was a
law with respect to “external affairs” under s 51(xxix).
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8. Polyukhovich(cont.)
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Dawson J: The Act dealt entirely with places, persons, matters or things which were physically
external to Australia. The external affairs power extended the legislative reach of the
Commonwealth Parliament to those places, persons, matters or things because of their externality.
TooheyJ: A matter did not qualify as an external affair simply because it existed outside Australia.
Nevertheless, there was no difficulty in concluding that, in the context of a war in which Australia
was directly involved, in which many Australian service personnel and civilians were killed,
wounded, imprisoned or ill-treated and which had such significant social, economic and political
consequences for this country, an Act purporting to render those who are Australian citizens or
residents liable for conduct associated with that war legislated with respect to a matter which was
of concern to Australia and to which the public business of the national government related. The
law was one with respect to “external affairs” within s 51(xxix).
(v) Per Gaudron J: Section 9 of the Act was a law with respect to external affairs to the extent and
by reason that it operated upon acts, matters or things outside Australia.
(vi) Per McHugh J: In so far as the Act penalised conduct constituting a war crime which occurred
outside Australia, the Act was validly enacted pursuant to the external affairs power.
The retrospective operation of the Act was authorised by s 51(xxxix) of the Constitution since that
operation was a matter “incidental to the execution of [a] power vested by this Constitution in the
Parliament”.
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9. Hortav Commonwealth (1994)
• Following the 1975 Indonesian occupation of East
Timor, in 1989, Australia and Indonesia executed
an agreement for the cooperative exploration
and exploitation of an area of the Timor Gap.
• In 1990, the Commonwealth Parliament enacted
the Petroleum (Australia-Indonesia Zone of
Cooperation) Act 1900 (Cth) and amending
“Consequential Act” under the external affairs
power.
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10. Horta(cont.)
• The act passed domestic laws in line with the
treaty and made amendments to other
Commonwealth legislation to bring that
legislation into line with the requirements of the
treaty.
• The plaintiffs, who were alleged to be ``East
Timorese’’ began proceedings seeking
declarations that the Act and the Consequential
Provisions Act were not valid laws of the
Commonwealth, and were in breach of
international conventions.
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11. Horta(analysis)
• Plaintiff’s action was dismissed, holding the
Act and the Consequential Provisions Act were
valid laws of the Commonwealth.
• The Act and the Consequential Provisions Act
dealt with matters geographically external to
Australia. There was an obvious and
substantial nexus between those matters and
Australia, and the parliament had recognised
that they touched and affected Australia.
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12. Horta(analysis)
• The Acts were prima facie laws with respect to
``external affairs'’ within s 51(xxix) of the
Constitution, applying
PolyukhovichvCommonwealth.
• The Acts were with respect to``external affairs'’
even if the treaty were void under international
law.
• The parliament's power with respect to ``external
affairs'’ was not confined to the enactment of
laws consistent with the requirements or
constraints of international law.
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13. R v Burgess; Ex parte Henry (1936)
• Evatt and McTiernan JJ found that, as long as
an international treaty or convention “having
been duly made about a subject”, it was
possible for the Commonwealth Parliament to
pass a domestic law provided that law falls
within the field of international relations so
far as such subject is dealt with by the
international agreement: (1936) 55 CLR 608,
681-682.
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