External affairs

The idea

Section 51(xxix) gives the Commonwealth power to make laws with respect to external affairs. The power reaches four things. Any one of them is enough to support a law. A law is valid under it where the law implements a treaty Australia has entered, or governs Australia's relations with other countries, or operates on a place, person, matter or thing outside Australia, or, on a contested view, deals with a matter of international concern.

Because any single limb carries the law, the first task is to find the limb the facts make live and prove that one. The limbs are independent. Failing the treaty limb tells you nothing about whether the law reaches something outside Australia, so each limb the facts make live must be run on its own.

Most external affairs questions turn on treaty implementation. A treaty supports a law only through four questions asked in order, and a law that fails any one of them is not saved by the others. First, the treaty must have been entered in good faith rather than manufactured to attract legislative power. Second, the treaty must be specific enough to prescribe a regime rather than merely aspirational. Third, the law must be reasonably capable of being considered appropriate and adapted to giving the treaty effect. Fourth, conformity is tested provision by provision, so a provision that outruns the treaty falls while the conforming provisions stand.

Where it comes from

The power grew case by case. In Burgess the Court upheld laws executing treaties entered with foreign powers, though the regulations there fell for not conforming to the aerial navigation Convention they were meant to carry into effect. Koowarta established that a bona fide treaty on a matter of international concern may be implemented, and it raised but did not settle whether international concern standing alone is a limb. The Tasmanian Dams Case is the high point. The World Heritage Properties Conservation Act protected the Franklin wilderness under the World Heritage Convention, and the Court held that any bona fide treaty may be implemented whatever its subject. The subject need not be a matter of international concern.

The Industrial Relations Act Case supplied the tests the treaty limb now runs on, that a treaty must be specific rather than aspirational and that the law must be reasonably capable of being considered appropriate and adapted to giving the treaty effect. XYZ v Commonwealth confirmed the externality limb, holding that conduct outside Australia is within power. Callinan and Heydon JJ doubted international concern as too vague to measure, and that limb remains unresolved.

How it is examined

External affairs is the anchor topic of the mid-semester paper, a ten mark Q1 staple that returns in the finals. The paper usually gives a Commonwealth Act and a treaty, then asks whether the Act is valid. Most of the marks sit in the treaty implementation analysis and in conformity.

1. Name the power and cite s 51(xxix). Never cite s 51(xxxv), which is conciliation and arbitration.
2. Ask whether a treaty is being implemented, and if so run the four questions in order.
3. Name the exact step that breaks rather than condemning the whole Act.
4. Where there is no treaty, or the treaty fails a step, turn to geographic externality first because it is the most secure.
5. Reserve one line for international concern and never rest a conclusion on it alone.

How to argue it

Work the limb the facts make live. Where a treaty is in play, the Commonwealth will argue that the Act implements it. The four questions run in a fixed order.

The Commonwealth will argue the treaty was entered in good faith. This is the threshold step, taken before conformity is examined. The harder question is specificity. The Commonwealth will argue the treaty prescribes a regime specific enough to direct signatory states. The challenger will point to words that only acknowledge the desirability of an end or merely recommend a standard, and will argue the treaty is aspirational and implements nothing. Quote the operative words of the treaty on this step.

If the treaty survives, conformity is the next fight. The Commonwealth will argue the law is reasonably capable of being considered appropriate and adapted to giving the treaty effect, choosing among reasonable means. The challenger will argue the law departs too far from the treaty's purpose. Deane J's proportionality formulation is available, but the appropriate and adapted test is primary and proportionality often merely restates the question.

Then test conformity provision by provision. This is the read down point. A provision that outruns the treaty's purpose falls while the conforming provisions stand. In Tasmanian Dams the prohibitions that banned even beneficial acts fell, while the provision tied to damage survived. Name the provision that breaks conformity and read the Act down to what conforms.

Where there is no treaty, the Commonwealth will argue geographic externality. That limb is close to absolute once any part of the law reaches conduct or a thing outside Australia. The relations limb is available where the law governs Australia's dealings with foreign powers. International concern comes last, argued in the alternative and never alone. On the conclusion, grade the confidence the facts allow. Where specificity or conformity sits near a line, the point is finely balanced and the conclusion should name the step that decides it.

Practice problems

One hundred exam-style problems across twelve topics. Pick a topic, read the problem, write your own answer in IRAC, then reveal the Pass and H1 exemplars and the examiner's comments. Step through in order or jump to a random one. Nothing you type is saved or sent anywhere.

The trap

The costliest error is jumping to conformity before asking whether the treaty is specific enough to be conformed to. A merely aspirational treaty is open to contradictory ways of being fulfilled. It prescribes nothing to conform to, so the analysis ends there. Ask specificity first, quote the treaty's operative words, then reach conformity.

A second error loses marks on sight. External affairs is s 51(xxix). A script that cites s 51(xxxv) has named the conciliation and arbitration power and signals that the writer does not know the head of power.

Key authorities

• s 51(xxix) — the external affairs power, valid on any one of its four limbs.★
• Burgess — laws executing treaties with foreign powers are within power, though the regulations there fell for not conforming.★
• Tasmanian Dams Case — any bona fide treaty may be implemented whatever its subject, and conformity is tested provision by provision.★
• Industrial Relations Act Case — a treaty must be specific rather than aspirational, and the law must be reasonably capable of being considered appropriate and adapted to giving it effect.★
• XYZ v Commonwealth — a law operating on a person or thing outside Australia is within power on the externality limb.★
• Koowarta — a bona fide treaty on a matter of international concern may be implemented, while international concern standing alone remains unsettled.