Chapter Two:
A Framework for Reforming the External Affairs Power

Professor George Winterton


The most logical framework for evaluating any reform proposal is to identify the deficiencies in the current position, determine criteria for overcoming or at least ameliorating them, and then evaluate the proposed reform by reference to those criteria. This paper will adopt such an approach.

 

1. Deficiencies in the current position

The Commonwealth's external affairs power (section 51(xxix)) is frequently criticized for undermining three of the fundamental political principles upon which the Commonwealth Constitution is based: federalism, and representative and responsible government. Federalism is imperilled, it is claimed, because the present liberal interpretation of the power enables the Commonwealth Parliament to legislate on subjects which the Constitution did not specifically confer on the Commonwealth, and representative and responsible government are allegedly undermined by leaving treaty making solely in the hands of the executive.

Federalism

An indication of the potential ambit of the external affairs power appears from Justice Murphy's summary in the Tasmanian Dam Case.

"To be a law with respect to external affairs it is sufficient that it: (a) implements any international law, or (b) implements any treaty or convention whether general (multilateral) or particular, or (c) implements any recommendation or request of the United Nations Organization or subsidiary organizations such as the World Health Organization, the United Nations Educational, Scientific and Cultural Organization, the Food and Agriculture Organization or the International Labour Organization, or (d) fosters (or inhibits) relations between Australia or political entities, bodies or persons within Australia and other nation States, entities, groups or persons external to Australia, or (e) deals with circumstances or things outside Australia, or (f) deals with circumstances or things inside Australia of international concern."

While it is true that not all these limbs or aspects of the power have been established by a decision of the High Court, all have been endorsed by at least some justices of the Court, if not by a majority.

The potential breadth of controversial aspects of the power, such as the power to legislate on matters of "international concern" (which has not been established by a decision of the Court) is readily apparent; a leading commentator has remarked that the power would become "unlimited in scope". The great scope of the external affairs power is underlined by considering its well-accepted and relatively uncontroversial aspects, such as the power to regulate domestic matters which could affect Australia's relations with other countries, which was established by the High Court as long ago as 1949 and has never been judicially questioned since, and to regulate the relations between persons or bodies in Australia and persons or bodies overseas, which was endorsed not only by Justice Murphy, but also by Chief Justice Gibbs.

"A law which regulates transactions between Australia and other countries, or between residents of Australia and residents of other countries, would be a law with respect to external affairs, whatever its subject-matter."

Thus it would seem that the Commonwealth could, for example, prohibit protests or demonstrations by Australians in Australia against the actions of a foreign country or organization, and could prescribe where Australian students may study abroad and with what overseas persons or organizations they may communicate.

However, notwithstanding the considerable breadth of the non-treaty aspects of the external affairs power, it is the Commonwealth's power to implement treaties which has attracted most controversy. It is now established that, subject to express and implied constitutional limitations, the external affairs power authorizes "the legislative implementation of any (genuine) international treaty, regardless of subject matter". Sir Harry Gibbs recently quipped that

"It is hardly an exaggeration to say that it would not make any practical difference if the word `anything' were substituted for `external affairs' in [section 51(xxix)]".

With respect, this is a considerable overstatement for, while it is true that any subject may potentially fall within the power, legislation implementing a treaty, for instance, must be reasonably appropriate to that end, and all aspects of the external affairs power are subject to express and implied constitutional limitations, the latter appearing to be a continually expanding category.

The potential for virtually any subject to fall within the treaty implementation or "international concern" aspects of the power has led some commentators to suggest that the States effectively exercise power at the sufferance and by the grace of the Commonwealth, with only political considerations restraining the Commonwealth from legislating on virtually all subjects, thereby reducing the States at best to mere administrative agencies of Commonwealth programmes, hardly the image of a healthy federation. Sir Harry Gibbs, for example, has remarked that if the external affairs power's potential were realized,

"the Constitution ceases to be a federal one in point of legal theory. The States are no longer autonomous within any area of legislative power .... The Commonwealth ... can completely annihilate State power .... The States lose all legal independence .... Federalism in Australia at present therefore appears to have a political rather than a legal basis."

Former Liberal Commonwealth Attorney-General Peter Durack has similarly commented that "the power could be used to destroy the federal nature of our Constitution", although he rightly conceded that it had not yet done so; and some years earlier Professor Colin Howard had noted that

"the only effective constraint on a wholesale invasion of areas of State legislative power which have hitherto been regarded as properly within their competence is political, not legal."

However, as the Commonwealth's reluctance to employ the external affairs power to override Tasmania's laws on sexual privacy recently demonstrated, the force of political constraints should not be under-estimated. Even former Senator Durack conceded that the Hawke and Keating governments had "not made much use of the external affairs power", and he could not envisage

"a Federal Labor government pursuing a policy of deliberately using the external affairs power to the hilt in order to destroy the federal system."

Indeed, Durack abandoned his earlier proposal to amend the Constitution to confine the ambit of the power, believing restraint through "political convention" to be not only more feasible, but indeed more satisfactory.

Constitutional reform should be based upon constitutional and political realities, not exaggerated apprehension of potential, but as yet unrealized, exploitation of power. The reality is that a few causes clbres have raised the external affairs power to unwarranted prominence in CommonwealthState relations.

Moreover, fears regarding the potential exercise of the external affairs power must be balanced against the national interest in effective Australian participation in international affairs. While it may be an exaggeration to suggest, as did Justice Murphy, that Australia would be an "international cripple" if some treaties could be implemented legislatively only by the States, Australia's capacity to conduct foreign relations would undoubtedly be impaired if that were so. This is demonstrated by the experience of Canada, where some treaties must be legislatively implemented by the Provinces, which a leading Canadian constitutional lawyer considered had "impaired Canada's capacity to play a full role in international affairs."

I lack the knowledge and expertise in international relations to assess the impact a limited legislative treaty-implementation power would have on Australia's participation in international affairs. However, Sir Anthony Mason, a former Commonwealth Solicitor-General, has expressed the opinion that

"Conduct of international affairs would be a nightmare if legislative implementation of Australia's treaty obligations were to become a matter for each State to decide."

An example of the sort of difficulty that could arise was given by the Constitutional Commission in 1988:

"A State Government may cause to have enacted legislation to implement a treaty, leading to its ratification by the Commonwealth and the creation of obligations binding on the Commonwealth. A later State Government, perhaps of a different political persuasion, might repeal the legislation. The result would be that the Commonwealth was in breach of its obligations, but without power to do anything about it."

These observations reflect the commonsense proposition that, in general, those who are empowered to undertake commitments should have the power to carry them out. Since the Commonwealth's executive power to enter into treaties on any subject (subject to constitutional limitations) is unquestioned, the Commonwealth ought to have power to ensure compliance.

Of course, this general principle is not absolute since, even on this argument, it would be the Commonwealth executive which executes treaties but the Commonwealth Parliament, including the Senate, which enacts legislation to implement them. But the Commonwealth government is effectively represented in the Senate and is generally able to secure passage of its legislative proposals. So the general principle remains applicable, and is illustrated by the converse arguments of some Canadian Provinces that, since they alone have legislative power to implement some treaties, they ought to have a correlative (executive) treaty making capacity.

Any assessment of appropriate reform of the external affairs power must weigh and balance the considerations which have been noted: on one side, the States' concerns regarding the as yet largely untapped legislative power conferred by the provision, with its potential for destroying State autonomy and thereby reducing the federal system to a mere facade; on the other, the national interest in full Australian participation in international affairs, which can only be undertaken by the Commonwealth government, which requires a government able both to undertake international commitments and to ensure that they are carried out. The resulting balance will depend upon personal political judgement influenced, no doubt, by one's general perspective on the spectrum of Commonwealth and State powers.

Moreover, constitutional reform is achieved through political action. So, while the specific subjects regulated by treaties and other forms of international co-operation are strictly irrelevant to evaluation of competing domestic constitutional considerations, they are nevertheless bound to affect attitudes toward reform of the external affairs power. So while the States must have power to be wrong as well as to be right (in other words, to implement policies of which we disapprove as well as those we support), the easy slogans "Human Rights over States' Rights" or "Environmental Rights over States' Rights" are bound to influence reform of the power. In other words, the desire of many Australians for human rights and environmental protection legislation, for example, is likely to make them unsympathetic to any proposal to restrict the external affairs power.

Finally, on the federation aspect of reform of the external affairs power, it is appropriate to note the criticism that the High Court's interpretation contradicts the intention of the framers of the Constitution, or in one critic's colourful language, "the compact which our High Court judges have been steadily tearing up". The identification of the constitutional framers, the extent to which their intention can be discerned, and its current relevance are all highly contentious issues both in Australia and the United States, but need not detain us here. Suffice it to say that, as Sir Anthony Mason has noted,

"there can be little doubt that the founders of the Constitution intended that the Parliament should have legislative power to carry into effect treaties and Conventions."

This power was expressly acknowledged by Quick and Garran in 1901 and by Harrison Moore a year later, and shortly thereafter Sir Edmund Barton, the principal drafter of the Constitution, remarked that it was "probable" that the external affairs power "includes power to legislate as to the observance of treaties between Great Britain and foreign nations."

As is well known, early drafts of section 51(xxix), including the 1891 Bill drafted principally by Sir Samuel Griffith, after whom this Society is named, had conferred on the Commonwealth Parliament power over "external affairs and treaties". The reference to treaties was dropped in 1898 in the mistaken belief that it followed from recognition that, as a self-governing British colony, the Commonwealth would not possess an independent treaty-making capacity, legislative implementation of Imperial treaties apparently being momentarily overlooked. Hence deletion of the reference to treaties in section 51(xxix) was mistakenly considered a necessary consequence of the excision of "treaties made by the Commonwealth" and "treaties of the Commonwealth" in covering clause 5. In other words, the reference to treaties was dropped from section 51(xxix) for "Imperial, rather than States' rights" reasons, the intention apparently being that the external affairs power would extend to the legislative implementation of treaties executed by the Imperial government, as Quick and Garran and Harrison Moore noted. The question whether Imperial treaties on all subjects were included appears not to have been addressed until, in 1910 in the second edition of his treatise, Harrison Moore suggested that the power was "limited to matters which in se concern external relations", a view later adopted by his student Sir Owen Dixon. Hence the evidence hardly supports a contention that the constitutional framers intended a narrow interpretation of the treaty-implementation power or, a fortiori, no Commonwealth treaty-implementation power at all. They simply never considered the question whether the treaty-implementation power should extend to treaties on all subjects.

Democratic deficit

The other major complaint regarding the external affairs power concerns the allegedly undemocratic nature of treaty-making. Treaties are made by the executive pursuant to section 61 of the Constitution, but do not have direct legal effect in the Australian domestic legal system until implemented by legislation, for otherwise the executive, not Parliament, would effectively be making law. However, treaties can have indirect domestic legal effect because it is a well-established rule of statutory interpretation that where legislation is ambiguous it should if possible be construed compatibly with treaties executed by the government, since Parliament is presumed to have "intended to legislate in conformity" with the nation's treaty obligations. This principle has been applied particularly with respect to international human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR), which has been employed not only to construe legislation, but also in the development of the common law.

Since ratified treaties bind Australia in international law, Parliament may feel that it has little choice but to enact implementing legislation, since Australia will otherwise be in breach of its international obligations. This will surely be a particularly significant influence on occasions when the executive has granted Australian citizens the right to complain to international bodies regarding Australian governmental conduct, as occurs pursuant to the Commonwealth government's accession to the Optional Protocol of the ICCPR.

As the Commonwealth Parliament may realistically have little choice but to pass legislation implementing treaties, it has rightly been argued that there should be broad democratic input into the treaty- making process; the treaty-implementation stage may be too late for real influence. Hence, the Commonwealth Parliament, State and Territory governments, and the general public, especially individuals and groups whose business and other interests would be affected, ought to be informed of proposed treaty- making and have the opportunity to influence Commonwealth government policy and action thereon.

Both federalism and executive accountability to the Australian community would be promoted by enabling States and Territories to influence the treaty-making process. At its Brisbane session in 1985, the Australian Constitutional Convention urged (inter alia) "full and effective" State consultation and involvement "prior to the preparation of the brief for the Australian delegation" to treaty negotiations, and recommended that the Premiers' Conference establish an Australian Treaties Council, including experts in international law and intergovernmental relations, to identify and co-ordinate State interests in treaty negotiations, provide advice on the effect of proposed treaties, and report "regularly" to State Parliaments and annually to the Premiers' Conference. This proposal was endorsed by the Constitutional Commission and two of its Advisory Committees in 1987-1988, but has not yet been implemented in its entirety.

However, the Premiers' Conference document "Principles and Procedures for Commonwealth-State Consultation on Treaties", revised in 1992, provides for the States and Territories to be informed "in all cases and at an early stage of any treaty discussions in which Australia is considering participation", for their views to be taken into account in formulating policy in regard thereto, and for State representatives to be included "in appropriate cases" in the Commonwealth delegation to conferences dealing with "State subject matters" (a concept presumably intended to be interpreted colloquially, not constitutionally, in view of the demise of the doctrine of reserved State powers in 1920). A Standing Committee of senior Commonwealth and State/Territory officers has also been established to provide assistance to the Commonwealth on the negotiation and implementation of treaties, including the identification of treaty negotiations of "particular sensitivity or importance to States", and to propose appropriate mechanisms for State involvement in the negotiations.

This would seem to represent a partial implementation of the Australian Treaties Council proposal, which the States continue to press, and which former federal Opposition Leader Alexander Downer promised to introduce if he were elected.

Commonwealth parliamentary participation in treaty-making is essential to ensure wide community involvement in what is essentially the first step in the legislative process of treaty implementation. The tabling of treaties in Parliament dates back at least to the 1920s, and in 1961 Prime Minister Sir Robert Menzies undertook to table treaties "as a general rule" at least twelve sitting days before Australia became bound by them. However, although never formally revoked, the Menzies rule is "honoured mostly in the breach", with treaties generally being tabled in bulk twice each year, frequently after Australia has become bound by them, thereby foreclosing any parliamentary participation in the treaty-making process. A government statement in October, 1994 suggested a renewed commitment to tabling treaties prior to ratification, but in a later statement the Foreign Minister refused to agree to a minimum period for tabling, confirmed that tabling would continue in twice-yearly batches, and remarked that

"Tabling treaties is not intended to be an exercise in ascertaining Parliament's views about whether or not Australia should become a party."

Tabling is, therefore, presumably intended merely to inform Members of Parliament and the general public of action already taken, which is hardly consistent with principles of executive accountability and democratic government. Recent tabling practice confirms this perspective: of 36 treaties tabled on 30 November 1994, for instance, approximately two-thirds had already come into force.

The principle of responsible government entails governmental accountability to Parliament for all executive action relating to treaty-making, not merely the final step of ratification or accession. This can be effected only if proposed treaties are laid before Parliament at the latest prior to ratification or accession. Thus former Opposition Leader Downer's promise to enact legislation requiring treaties to be tabled in Parliament prior to ratification, and to establish a Joint House Treaties Committee to consider the implications of proposed treaties is a commendable reform which it is hoped his successor will honour. But is laying before Parliament sufficient? Should Parliament, and thus effectively the Senate, be able to veto executive ratification of treaties?

Parliamentary veto or disallowance was proposed by a former State Premier and two distinguished constitutional lawyers on the Constitutional Commission and its relevant Advisory Committee, and the Australian Democrats recently introduced a Bill in the Senate to effect it. The principal argument in its favour is that it would give "teeth" to parliamentary consultation, which could otherwise become a merely empty ritual even if tabling prior to ratification were required. However, the proposal runs counter to the political separation of powers notions in Westminster systems, under which treaty-making is a purely executive function, even if it is the first step in a process which may (but need not) eventually lead to legislative implementation. Unlike the United States, in our legal system treaties do not have domestic legal effect, as has been noted. For that to occur, they require legislative implementation, which can always be blocked by the Senate, subject to the operation of section 57 of the Constitution.

Moreover, it is conceivable that parliamentary veto of treaty-making would fall foul not merely of the political separation of powers, but the legal separation of powers as well, the argument (which I do not endorse) being that it would unconstitutionally interfere with the vesting of executive power in the government by section 61 of the Constitution. Professor Enid Campbell, for example, has queried whether Parliament "could legislate to make itself party to the treaty-making power", and remarked:

"Although the separation of the legislative and executive powers has not been enforced with the same strictness as the separation of the judicial power from the other powers, it may well be that the legislative authority of the Parliament does not extend to the making of laws under which the Parliament takes unto itself or its Houses power which is considered to be executive in character."

In any event, the significance of parliamentary veto of treaty-making should not be overrated for, while it would probably make parliamentary consultation more effective, it is unlikely greatly to reduce the range of multilateral treaties entered into by Australia. It is, for example, improbable that State or Senate consultation or even a Senate veto would have prevented ratification of at least some of the treaties upon which controversial domestic legislation has been based. Thus, the International Covenant on Civil and Political Rights would almost certainly have been ratified in any event, and the same is probably true of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage which was in issue in the Tasmanian Dam Case. On the other hand, that may not be so in respect of the ILO Conventions underpinning portions of the Industrial Relations Reform Act 1993.

 

2. Criteria for reform

In light of the above, the criteria for evaluating reform of the external affairs power can be stated briefly.

1. In view of the difficulty in securing the referendum majorities to amend the Constitution, and thus of correcting any ill-advised alteration, constitutional amendment should be attempted only for reforms for which a very strong case has been established; as former-Senator Peter Durack aptly noted, the amendment "may well turn out to be a lemon". So, in general, to adopt a much-quoted aphorism: If it ain't broke, don't fix it.

2. The principal motive underlying proposed reform of the power is concern regarding its effect on the federal balance of power. But that balance should be viewed organically, not statically, and thus as capable of evolution and adaptation to changing circumstances. That is essentially what has occurred in the case of the external affairs power: a power to implement treaties and enact legislation necessitated by international relations has evolved in tandem with the expansion in volume and diversity of international intercourse, including treaty-making.

However, it is not so much the present exercise of the external affairs power which appears to concern those advocating a contraction of the power, as apprehension regarding its potential future use. But the first criterion for constitutional reform suggests that only a clear and present threat to State autonomy would warrant constitutional amendment. Hence, it seems premature to undertake preventive constitutional reform which may well prove unnecessary.

3. Any contraction of the external affairs power must be balanced against the national interest in effective Australian participation in world affairs, bearing in mind that requiring the Commonwealth to rely upon the States to implement some treaties necessarily involves some impairment of its conduct of foreign relations. How much impairment is acceptable in the interest of preserving State autonomy is a matter for political judgement.

4. To prove workable, any limitation on the treaty-implementation power must define the subject-matter of treaties eligible for implementation under section 51(xxix) by reference to criteria suitable for judicial determination; in other words, by reference to issues falling within judicial expertise, and not largely dependent upon the exercise of political judgement. Limiting the treaty-implementation power to treaties involving matters of "international concern", for instance, would not satisfy this requirement, for that criterion inherently requires judgement on matters of politics and international affairs, which ought not to be the province of judges. As Chief Justice Mason has remarked:

"[I]t is impossible to enunciate a criterion by which potential for international action can be identified from topics which lack this quality.... [There are no] acceptable criteria or guidelines by which the Court can determine the `international character' of the subject-matter of a treaty."

Indeed, as he rightly noted:

"It is scarcely sensible to say that when Australia and other nations enter into a treaty the subject-matter of the treaty is not a matter of international concern obviously it is a matter of concern to all the parties."

One limitation which would satisfy the requirement of imposing criteria suitable for judicial resolution is that adopted by Chief Justice Gibbs in 1982 in defining "a law with respect to external affairs" as one which, "whatever its subject-matter", "regulates transactions between Australia and other countries, or between residents of Australia and residents of other countries."

This criterion was essentially adopted by Liberal Senator Peter Durack in proposing a constitutional amendment in 1984, although he has since abandoned it. One may query whether this limitation would not excessively impede the conduct of Australian foreign relations.

5. The constitutional principles of federalism and representative and responsible government entail that the Commonwealth Parliament and the States be consulted on treaty-making prior to treaty ratification or accession, but a Commonwealth parliamentary veto on treaty-making would appear to be inconsistent with the separation of powers. That inconsistency would not, of course, preclude a constitutional amendment to authorize such a veto.

 

3. Evaluation of Dr. Howard's proposal

Dr. Colin Howard has proposed that section 51(xxix) be amended by adding after the words "external affairs":

"Provided that no such law shall apply within the territory of a State unless:

(a) the Parliament has power to make that law otherwise than under this sub-section; or

(b) the law is made at the request or with the consent of the State; or

(c) the law relates to the diplomatic representation of the Commonwealth in other countries or the diplomatic representation of other countries in Australia".

This proposed amendment would reduce the Commonwealth's independent power over external affairs to one dealing with diplomatic representation. The only treaties which the Commonwealth could implement legislatively without State consent would be those dealing with diplomatic representation or subjects otherwise within Commonwealth legislative power, thus effectively reversing the opinion of every High Court justice who has considered the power.

The proposed amendment would clearly protect State autonomy but, with respect, can hardly be considered a finely-tuned attempt to balance concerns regarding State autonomy with the effective conduct of Australian foreign relations. It is probably the narrowest view ever proposed for the power; certainly far narrower than Chief Justice Gibbs' view in Koowarta, and narrower even than the proposal of Dr John Finnis, supported by the governments of Queensland and Tasmania, which would have included power to give effect to Australia's international obligations in relation to air traffic and fugitive offenders, as well as diplomatic representation. That proposal was considered "unduly restrictive", and was therefore rejected by the Constitutional Commission and its Advisory Committee.

Moreover, the proposed amendment appears to restrict the external affairs power beyond the constraints warranted by the preservation of State autonomy for, depending upon the interpretation of the words "apply within the territory of a State", it seems that it would exclude legislation penalizing overseas conduct, which the High Court upheld in the War Crimes Act Case in 1991. It is difficult to see what purpose is served by disempowering the Commonwealth from enacting such legislation, since it would generally fall outside the legislative capacity of the States. So, in this respect at least, the proposed amendment would restrict Commonwealth power without conferring any corresponding benefit upon the States.

In conclusion, it will be apparent that I do not favour this proposed amendment. I consider it unduly restrictive of Commonwealth power, and as likely to hamper the conduct of Australian foreign relations beyond the reasonable requirements of protecting State autonomy. Moreover, it is so restrictive of Commonwealth power that no Commonwealth government of either political party would support it, making its prospect of adoption zero. On the other hand, I agree with former Senator Peter Durack that political constraints offer a more appropriate means for confining the operation of the power. To that end, greater participation in treaty-making and implementation by the Commonwealth Parliament, State and Territory governments, and the general public should be encouraged, and secured by institutional mechanisms established, if necessary, by Commonwealth legislation. Only if such political constraints have been given a fair trial and proven inadequate to address the States' reasonable concerns should constitutional amendment be contemplated.