Constitutional Law Essay
Constitutional Law (Part II)
Currently, Australia has signed more than 900 international treaties but not all of them are successfully implemented into domestic law. Basically, when Australia and other countries sign the treaties then they enter into force however, there are many issues that arise when treaties are applied before municipal courts. Since 1901, more often than not, the international law plays a much wider role in Australian society and its law than Federation. After World War II, since the notion of international law in Australia began to conceptualise, Canberra began to take a more active role in the international system with external affairs assuming an increasingly significant role in both the making and conduct of foreign policy.
This paper will discuss the capacity of the Commonwealth Parliament to enact legislation after Australia enters into an international treaty or convention, how the scope of this legislative power is confined to matters of 'international concern' and why the case of Commonwealth v Tasmania (1983) is the best available interpretation of the external affairs power. This paper will also review the Koowarta v Bjelke-Petersen (1982)  case and explain why this case should be considered as a yardstick case for implementing treaty obligations into domestic law.
The Implementation of International Treaty Obligations into Domestic Law
The profound legal debate about the scope of constitutional power compared to that of the external affairs has continued for many decades. From the perspective of international law, States must implement their international obligations in good faith. This principle, known as pacta sunt servanda, is one principal expectation that international law has of municipal law. This principle has two instances where there may be conflict between international and municipal law but the rule is that the latter prevails. First, when a State is unsure about how to interpret or implement international law vis-a-vis its own law, the rule is that the State must act in good faith and bring its international law into conformity with its international obligation. International law has certain expectations of municipal law and lays those expectations out in clear and concise language. The States determine their own primacy vis-a-vis municipal law, although, doing that does not invalidate the latter.
The ultimate argument of monists is that international law is superior to national law and when there is a conflict between the two the international law prevails: Mabo v Queesland (No 2). Dualists believe that international law and municipal law operate in different areas, that they do not belong to same realm, and rejects the notion that international law is superior to municipal law. There have been proposals to amend section 51 of the Constitution, suggesting that it should be amended to suggest that the external affairs power only allows the Commonwealth to legislate on matters truly external to Australia such as diplomatic relations, extradition and Commonwealth’s enumerated powers. Although the amendment has not been made effective, as it requires a referendum, there have been arguments that there are no genuine requirements to the amendment.
Article 27 of the Vienna Convention on the Law of Treaties lays down the general principle governing the approach of international law to municipal law. It provides that:
A party may not invoke the provision of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 36.
Currently, due to the large number of international obligations that Australia has accepted under international treaties, the external affairs power in section 51(xxix) gives the Australian Government a very wide constitutional power to make laws on many subjects including protecting the environment. The scope of the external affairs power in section 51(xxix) are:
- relations with other countries;
- geographical external to Australia;
- translating international treaty obligation into domestic laws.
External affairs power is a purpose power therefore the proportionality test is applied: Polyukhovich ('War Crimes Act Case') (1991). This power was first identified in an early case, R v Burgess; Ex parte Henry. Evatt and McTiernan JJ states that:
"The legislative power of the Commonwealth over 'external affairs' certainly includes the power to execute within the Commonwealth treaties and conventions entered into with foreign power." 
The both judges had also concerned that mere 'recommendations' of the International Labour Organisation ('ILO') might also be the occasion for legislation under section 51 (xxix) .
Before Commonwealth v Tasmania (‘Tasmanian Dam’), the external affairs power was first recognised in R v Burgess; Ex parte Henry, however the scope of the external affairs power was not clearly defined because of its possible limitation by the Commonwealth Parliament. This problem was resolved after 46 years by Koowarta v Bjelke-Petersen. Justice Mason, Murphy and Brennan agreed that mere existence of the external affairs power extends to the making of laws implementing a bona fide treaty or other international agreement. The High Court concluded that external affairs powers have played a significant role in the interpretation of the external powers clause provided under the Constitution and upheld the validity of the Racial Discrimination Act 1975 as supporting the external affairs power. However, the scope of the constitutional power regarding 'international concern' remained unclear.
Until 1983, the issue of 'international concerns' of constitutional power was not clarified. This was solved by the Tasmania Dam case which is the best example showing that the external affairs powers prevailed in the High Court in Australia. In this case, the High Court adopted the non-relevance test of the 'international concern' as a requirement for the validity of the external affairs power. Since then, this ruling in the Tasmanian Dam case was strongly reiterated in Victoria v Commonwealth ('Industrial Relations case') (1996) and other cases. Its interpretation of the external affairs power as a 'literal' interpretation also gives the impression that there is some connection between that case and Engineers.
In my opinion, even though the meaning of 'international concern' was defined in the Tasmanian Dam case, Koowarta v Bjelke-Peterson could be a yardstick case for the implementation of treaty obligation into domestic law. Without the precedent of the Koowarta case, the Tasmania Dam case would not have been able to adopt the validity test of 'international concern' and the scope of external affairs power could have remained very limited.
External Affairs Power and the Tasmanian Dam case
In the 19th century, the politicians from the Parliaments of the six colonies gathered together and created the Constitution but they also limited the constitutional power of the new Commonwealth Parliament at that time. Among other sections, section 51 is important in that it allows the Commonwealth Parliament to make laws. If a subject is not mentioned in the Constitution, only a State Parliament may legislate in relation to it. In Australian history, Commonwealth v Tasmania is the most well-known and significant environmental law case used as a landmark in Australian constitutional law. In the Tasmanian Dam case, the rigour with which the reasonable proportionality test and appropriate and adapted test are applied has generally been decisive.
The Tasmanian government owned the Hydro-Electric commission and in 1978 attempted to construct a hydro-electric dam on the Franklin River. However, it was not successfully completed because of the protests and the objections of the federal government arguing that the Franklin area was listed on the United Nations Educational, Scientific and Cultural Organization ('UNESCO') World Heritage List. The Commonwealth Parliament passed the World Heritage Properties Conservation Act 1983  which declared that the Franklin-Gordon River was part of the Tasmanian Wilderness World Heritage Area. Tasmanian government sued the Commonwealth for applying the invalid Act which was not supported by any head of State.
In contrast, Tasmania government argued that Commonwealth does not have the power to pass the legislation. The minority in the Tasmanian Dam case reluctantly abandoned, having been precluded by Koowarta, the view that the subject matter of an international agreement would only come within the external affairs power if the manner in which it was treated involved a relationship with countries, persons or things outside Australia. They fell back to the position of the fourth majority justice in Koowarta, Justice Stephen, in requiring that the subject matter should be of international concern.
The justices, with the exception of Mason J., agreed that the Commonwealth legislation seeking to prevent the construction of the Gordon-below-Franklin Dam by the Tasmanian government was valid. They noted that once Australia entered into an international treaty, the Commonwealth Parliament could legislate with respect to the subject matter of the treaty. Therefore, the Commonwealth had authority under section 51(xxix) and adopted the World Heritage Properties Conservation Act of1983 (Cth). Section 6(2) of the Act states that the Commonwealth can proclaim property in a State to be "world heritage" if Australia protecting or conserving the property is a matter of international obligation. It does not matter if it is by reason of the Convention or otherwise. The World Heritage Properties Conservation Act (1983) together with the National Parks and Wildlife Conservation Act (1975) enabled the government to prohibit clearing, excavation and other activities within the Tasmanian Wilderness World Heritage Area. The World Heritage Act was passed and interpreted as giving effect to an international treaty to which Australia was a party which in this case was the Convention Concerning the Protection of the World Cultural and Natural Heritage.
Nowadays, large parts of Australia's main national environmental law, the Environment Protection and Biodiversity Conservation Act of 1999 (Cth), derives its constitutional validity from the decision in the Tasmanian Dam case regarding the external affairs power. In my opinion, since the Tasmania Dam case, external affairs power under section 51(xxix) of the Australian Constitution is firmly established by the 'conformity test.' This gives effect to other key cases such as Queensland v Commonwealth ('Tropical Rainforest case') and Richardson v Forestry Commission. Overall, Commonwealth has the discretionary power to enact legislation that is reasonably capable of being considered appropriate and adapted to fulfil Australia’s international legal obligations. I consider myself as a monist supportive of the argument that the monism of each state should consider international treaties prior to the domestic law.
The Limitation of External Affairs Power
There are many issues which can be raised with respect to the limitation of external affairs powers. When the Commonwealth rectifies the treaty for the sole purpose of giving itself power over a particular subject, a law implementing a international treaty will not be valid: R v Burgess; Ex parte Henry; Commonwealth v Tasmania and Koowarta v Bjelke-Petersen.
According to my research, even though the Tasmanian Dam case is a landmark case in Australian history, it does not fully cover the limitation of external affairs power. While it clarified and broadened the scope of the external affairs power, showed how to interpret treaty obligation with regard to municipal law, and applied the 'international concern' test, it did not sufficiently focus on its limitations. A number of justices express concern that if every international treaty gives Commonwealth law-making power, the federal balance will be lost. A former liberal Commonwealth Attorney General, Peter Durack, mentioned that: 
"the power could be used to destroy the federal nature of our Constitution."
In Koowarta v Bjelke-Peterson, Chief Justice Gibbs, Aickin, and Wilson said that not every international treaty gives Commonwealth power to make laws under section 51 (xxix). Gibbs CJ added that:
"If section 51 (xxix) empowers the Parliament to legislate to give Commonwealth would be able to acquire unlimited legislative power. There would be no filed of power which the Commonwealth could not invade, and the federal balance achieved by the Constitution could be entirely destroyed."
He also dissented that the external affairs power should be distinguished from the other powers under section 51 in its capacity for almost unlimited expansion. Defining which affairs were of “international character” was a difficult task for the court. The interpretation has been criticized following the court decision in R v Burges; Ex parte Henry (1936).
High Court held that the Constitution gives no general legislative control over civil aviation to the Commonwealth Parliament and therefore section 4 was invalid to the extent that it authorized the making of regulations for the purposes of controlling navigation in Australia. The regulations were therefore invalid as they did not give effect to the Convention. This created a great question of what external affairs consisted of. The Justices of the High Court argued that it should be restricted to matters concerning external relations and should not include laws on domestic matters such air transport within Australia. Chief Justice Lathan also made a contribution stating how difficult it was to come up with appropriate characteristics and to him there was no absolute rule that can be laid down to define what encompasses external affairs. The court further made a conclusion that even though the Commonwealth had no direct constitutional power to legislate in relation to air transport it could do so if it were implementing a treaty. That legislation would then prevail over a conflicting state legislation as provided for under section 109 of the Constitution.
In this respect, I believe that Koowarta v Bjelke-Peterson and R v Burges; Ex parte Henry are better examples than the Tasmanian Dam case to show the limitations of the external affairs power under section 51 (xxix) since the Tasmanian Dam case focus on the scope of external affairs power, its proportionality, appropriateness and adaptability of treaty and the matter of the international concerns rather than focusing on the power of limitation.
The Commonwealth Parliament has plenary legislative power under section 51 (xxix) of the Constitution. The issue of the interpretation and translation of international treaty obligation into municipal laws has been controversial I agree that the Tasmanian Dam case is the best example of the High Court indicating that the Commonwealth can conform to any international treaty obligation that it enters into. Even though the Tasmanian Dam case does not fully cover the limitation of external affairs power, it clarified the scope of the external affairs power, showed how to interpret treaty obligation into municipal law and applied the 'international concern' test as well as the reasonable proportionality test and the appropriate and adapted test.
The last reason why the Tasmanian Dam case should become the best available interpretation of the external affairs power is that it opened the door for future Commonwealth regulation as most State economic activities are carried out by trading corporations. The decision gives the Commonwealth power over certain activities that previously have been governed by State laws and policies.
However, Koowarta v Bjelke-Peterson could be considered a yardstick case for the implementing of treaty obligation into domestic law before the Tasmanian Dam case, as the Tasmania Dam case was not able to adopt the validity test of 'international concern' and the scope of external affairs power could be very limited without the precedent of the Koowarta case.
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Abass Ademola, International Law (Oxford University Press, 2014)
Andrew C. Byrnes, The Implementation of Treaties in Australia After the Tasmanian Dams Case: The External Affairs Power and the Influence of Federalism, 8 B.C. Int'l & Comp. L. Rev. 275 (1985), <http://lawdigitalcommons.bc.edu/iclr/vol8/iss2/2>
Donald Rothwell et al, International Law: Cases and Materials with Australian Perspectives (Cambridge University Press, 2014) 199- 201; Ademola, International law (Oxford University Press, 2ed 2014).
A. Mediansky, Australian Foreign Policy: Into the New Millennium (Macmillan Education AU, 1997).
P. Lee and George Winterton, Australian Constitutional Landmarks (Cambridge University Press, 2004)
Nicholas Aroney et al, The Constitution of the Commonwealth of Australia (Cambridge University Press, 2015).
P Durack, The External Affairs Power, Federalism Project Issues Paper No.1, Institute of Public Affairs, October 1994.
Commonwealth v Tasmania  HCA 21
Koowarta v Bjelke-Petersen (1982) 153 CRL 168
Mabo v Queesland (No 2) (1992) 175 CLR 1 42
Polyukovich v The Commonwealth  HCA 32
Queensland v Commonwealth (1989) 167 CLR 232
R v Burges; Ex parte Henry (1936) 55 CLR 608
Richardson v Forestry Commission (1988) 164 CLR 261
Victoria v Commonwealth (1996) 187 CLR 416
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National Parks and Wildlife Conservation Act 1975
World Heritage Properties Conservation Act 1983 (Cth)
World Heritage Properties Conservation Act
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Horta v Commonwealth (1994) 181 CLR 183
R v Hughes (2000) 202 CLR 535
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 F. A. Mediansky, Australian Foreign Policy: Into the New Millennium (Macmillan Education AU, 1997) 33.
 Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam case).
 Koowarta v Bjelke-Petersen (1982) 153 CRL 168. This case was an important court case decided in the High Court of Australia as it concerned the constitutional validity of parts of the Racial Discrimination Act 1975. The discriminatory acts of the Government of Queensland limited the purchase of land by Aboriginal people in northern Queensland.
 In this context, State is a nation.
 Ademola Abass, International Law (Oxford University Press, 2014) 324-330.
 Mabo v Queesland (No 2) (1992) 175 CLR 1 42. Brennan J states that the common law does not need necessarily conform with international law but international law is a legitimate and important influence on the development of the common law.
 Donald Rothwell, et. al., International Law: Cases and Materials with Australian Perspectives (Cambridge University Press, 2014) 199- 201; Ademola, International law (Oxford University Press, 2nd Ed., 2014) 328-330.
 Polyukovich v The Commonwealth  HCA 32.
 R v Burgess; Ex parte Henry (1936) 55CLR 608.
 Ibid, 687.
 Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
 Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relation Act Case). This case considered whether or not certain elements of the Commonwealth’s Industrial Relations Act (1988) were validly enacted under the external affairs power (section 51(xxix)).
 H. P. Lee and George Winterton, Australian Constitutional Landmarks (Cambridge University Press, 2004) 47.
 Andrew C. Byrnes, The Implementation of Treaties in Australia After the Tasmanian Dams Case: The External Affairs Power and the Influence of Federalism, 8 B.C. Int'l & Comp. L. Rev. 275 (1985). <http://lawdigitalcommons.bc.edu/iclr/vol8/iss2/2>.
 Supreme Court of Tasmania, Tasmanian Cases in the High Court of AUSTRALIA (1 December 2015) < http://www.supremecourt.tas.gov.au/publications/speeches/blow_cj/tasmanian_cases_in_the_high_court_of_australia>.
 Commonwealth v Tasmania (1983) 158 CLR 1.
 H. P. Lee and George Winterton, Australian Constitutional Landmarks (Cambridge University Press, 2004).
 Nicholas Aroney, et. al., The Constitution of the Commonwealth of Australia (Cambridge University Press, 2015) 194.
 On 21 April 1983, The World Heritage Properties Conservation Bill was first introduced by, the then Minister for Home Affairs and the Environment, Barry Cohen.
 Mason J. in Tasmanian Dam case said "I reject the notion that once Australia enters into a treaty, Parliament may legislate with respect to the subject matter of the treaty as if that subject matter were a new and independent head of Commonwealth legislative power."
 The World Heritage Properties Conservation Act of 1983 was replaced in 1999 by parts of the Environment Protection and Biodiversity Conservation Act of 1999. This Act provided for certain protections for World Heritage listed places in Australia.
 Queensland v Commonwealth (1989) 167 CLR 232.This case considered whether the external affairs power of the Commonwealth under section 51(xxix) should or should not protect an area of tropical rainforest in Queensland as a matter of international obligation.
 Richardson v Forestry Commission (1988) 164 CLR 261. It is the first environmental protection case after the Tasmanian Dams case. The High Court upheld that a Commonwealth law, providing interim protection of an area of Tasmanian wilderness whilst an inquiry assessed what parts of the wilderness, should be listed for World Heritage protection.
 P. Durack, The External Affairs Power, Federalism Project Issues Paper No.1, Institute of Public Affairs, October 1994, p 7.
 Jim Reeves, Implications of the External Affairs Power <www.beyondfederation.org.au/jr_12.html>.
 Government of Western Australia, Decisions for the Commonwealth < https://www.constitutionalcentre.wa.gov.au/ResearchAndSeminarPapers/ChangingConstitutions/Pages/DecisionsfortheCwlth.aspx>.