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“There are few practical legal limits to the Commonwealth’s power to implement

treaties, the principal constraint being that the legislation must truly implement

the treaty and not use it as a peg upon which to hang legislation on the general

subject-matter regulated by the treaty.” Examine this statement critically in the

light of case-law and commentary.

By virtue of s 61 of the Commonwealth of Australia Constitution Act (the

“Constitution”), the Commonwealth Government is vested with the prerogative to enter

into international treaties1. In order for an international treaty to have legal effect in

Australia, the Commonwealth Parliament must implement the treaty in reliance on its

legislative power conferred to it by s 51 (xxix) of the Constitution. S 51(xxix) of the

Constitution empowers the Commonwealth Parliament to make laws with respect to

external affairs and comes into play in three different situations:

matters geographically external to Australia;

implementing international obligations into Australia’s legal system; and

relationship between Australia and other countries 2.

As evident in the last century, the High Court’s view on the definition and scope

of and limitations on the operation of s 51 (xxix) has been far from unanimous. By

1 Commonwealth v Tasmania (1983) 158 CLR 1 at 299

2 P. Keyzer, J. Clarke and J. Stellios, Hanks’ Australian Constitutional Law: Materials and Commentary,

(LexisNexis Butterworths, 2009) p 240

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looking at precedent cases, it can be seen that the judiciary has attempted many times

to create limitations on the Commonwealth Parliament’s external affairs power to ensure

that the legislature will not abuse its legislative power under s 51 (xxix) of the

Constitution and to safeguard democracy in the treaty-implementation process.

Treaty-implementation

In Australia, the signing of a treaty by the Minister for Foreign Affairs, who is

authorized by the federal Executive Council to enter into treaties on behalf of Australia,

and subsequent ratification by the Commonwealth Parliament do not automatically

confer the terms of the treaty with legal status. To implement a signed and ratified treaty

in Australia, the Commonwealth Parliament must legislate in reliance on its legislative

power given to it by s 51(xxix) of the Constitution. This arrangement is in accordance

with a well-established common law doctrine of separation of powers and was

highlighted by the Privy Council in Attorney-General for Canada v Attorney-General for

Ontario3:

“Within the British Empire there is a well-established rule that the making

of a treaty is an executive act, while the performance of its obligations, if

they entail alteration of the existing domestic law, requires legislative

action.”

3 [1937] AC 326 at 347

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In the past century, High Court has adopted a broad interpretation on the

Commonwealth Parliament’s power to implement treaties but this power is by no means

plenary in nature4. As an attempt to safeguard the ideology of separation of powers and

federal framework in Australia, the High Court has identified several limitations on the

treaty-implementation aspect of the Commonwealth Parliament’s external affairs power

under s 51 (xxix) of the Constitution.

Geographical constraint

In New South Wales v Commonwealth5, all six states challenged the validity of

The Seas and Submerged Lands Act 1973 (Cth). The Seas and Submerged Lands Act

was enacted by the Commonwealth Parliament to give effect to two international

conventions namely the Convention on the Territorial Sea and Contiguous Zone and the

Convention on the Territorial Shelf and declared that the sovereignty over the territorial

sea from the low-water mark to three nautical miles seaward was vested in the

Commonwealth. In respect of the externality element of s 51(xxix), the majority of the

High Court found that the states’ jurisdiction terminated at the low-water mark6 and thus

the Commonwealth Parliament validly exercised its external affairs power under s

51(xxix) of the Constitution in enacting the Seas and Submerged Lands Act as the

4 Commonwealth v Tasmania (1983) 158 CLR 1 at 131 and 172

5 (1975) 135 CLR 337

6 Ibid, at 368

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legislation in question dealt with matters geographically external to Australia7. The High

Court’s decision in New South Wales v Commonwealth received support in subsequent

cases such as Polyukhovich v Commonwealth where Dawson J further explained the

geographical externality limb of s 51(xxix) of the Constitution:

“although the sovereignty of the Australian nation is divided internally

between the Commonwealth and the States, there is no division with

respect to matters which lie outside Australia.”8

One argument supporting such unification of Australia in dealing with matters

external to Australia is that if each State were to have their own autonomy in entering

into treaties, the treaty-entering process will be severely impaired and will perhaps

make Australia an ‘international cripple’9. Such impairment and additional burden can be

seen in Canada where certain treaties must be implemented by Provincial governments

and certain scholars have viewed this arrangement a burden on Canada in the

international community10. Therefore, any reform in the treaty-implementation process in

7 The low-water mark boundary has been altered by the Coastal Waters (State Powers) Act 1980 (Cth)

and the Coastal Waters (State Title) Act 1980 (Cth). The two legislations provide the states with

sovereignty over coastal waters adjacent to their coastlines and such coastal waters extend out to three

nautical mile territorial sea limit.

8 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 638

9 New South Wales v Commonwealth (1975) 135 CLR 337 at 503

10 PH Hogg, Constitutional Law of Canada, 3rd ed, Carswell, Toronto, 1992, p 295

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Australia must strike a balance between federalism and democracy on one hand and

Australia’s national interest in external affairs on the other.

From New South Wales v Commonwealth and Polyukhovich v Commonwealth, it

can be seen that where the Commonwealth Parliament wishes to legislate in reliance on

the geographical aspect of the external affairs power under s 51(xxix) of the

Constitution, the subject matter must be geographically external to Australia and the

boundaries of Australia may change over time.

Test of conformity

Another situation where the Commonwealth Parliament can exercise its

legislative power under s 51 (xxix) of the Constitution is when implementing an

international obligation into the Australian legal system. As observed by Mason J in

Commonwealth v Tasmania11, “the existence of international character or international

concern is established by entry by Australia into the convention or treaty”. In other

words, once Australia has entered into a binding treaty or convention, it creates an

international obligation where s 51 (xxix) of the Constitution can operate under.

However, as identified in the majority judgment of R v Poole; ex parte Henry No.

212, the mere act of entering into a treaty or convention does not grant the

11 (1983) 158 CLR 1 at 125

12 (No 2) (1939) 55 CLR 608 at 87

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Commonwealth Parliament a plenary legislative power in respect of that subject matter.

Instead, the domestic law giving effect to the provisions of the treaty or convention must

be “appropriate and adapted” to the terms of the treaty. In other words, the measures

adopted by the Commonwealth Parliament to implement the terms of a treaty or

convention must be reasonably proportional to the purposes of the treaty13. As observed

by Professor Lee, “[i]t is now widely accepted that it is within the domain of the

Commonwealth Parliament to determine what constitutes the appropriate legislative

means to give effect to a treaty”14.

In Commonwealth v Tasmania15, the court upheld that one important limitation on

treaty-implementation is the requirement for the enactment which implements the treaty

to conform to that treaty. Brennan J and Deane J identified two tests for conformity. The

former judge took the view that a legislation would be in conformity with the treaty if it

could be “reasonably considered conducive to the performance of the obligation

imposed by the [treaty]”16 whilst the latter judge highlighted that conformity can be

established where the legislation in question can reasonably be seen “to be really, and

not fancifully, colourably, or ostensibly, referable to the purpose of the Convention”17.

13 Commonwealth v Tasmania (1983) 158 CLR 1 at 260; Richardson v Forestry Commission (1988) 164

CLR 261 at 311-312

14 H. P. Lee, ‘The High Court and External Affairs Power’ (Chpt 3) in: H. P. Lee and George Winterton

(Eds), Australian Constitutional Perspectives (1992) pp. 82-83

15 (1983) 158 CLR 1

16 Ibid, at 232

17 Ibid, at 260

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If the test of conformity must be satisfied for a treaty-implementing legislation to

be valid, will partial implementation of a treaty affect the validity of the treaty-

implementing legislation? In Victoria v Commonwealth18, the majority’s judgment seems

to suggest that partial implementation would not cause the treaty-implementing

legislation to be void:

“deficiency in implementation of a supporting Convention is not

necessarily fatal to the validity of a law; but a law will be held invalid if the

deficiency is so substantial as to deny the law the character of a measure

implementing the Convention or it is a deficiency which, when coupled

with other provisions of the law, make it substantially inconsistent with the

Convention”19.

Bona fide

One major challenge against the wide interpretative approach to international

obligation and the discretion given to the Commonwealth Parliament to decide the best

means of implementing such international obligations is that “there are serious dangers

in the use of a power of this sort to interfere in the conduct of any subject matter by the

18 (1996) 187 CLR 416

19 Ibid, at 489

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States”20. The external affairs power provides the Commonwealth Parliament with

legislative powers on subject matters which are normally part of the States’ jurisdictions

and thus hindering federalism in Australia. In addressing this intrusion of State powers,

the High Court has held that even though the Commonwealth Parliament can implement

a treaty concerning the internal affairs of Australia, the treaty in question must be bona

fide21. In Koowarta v Bjelke-Petersen, Brennan J elaborated on this limitation and

explained that the court would strike down any provisions enacted by the

Commonwealth Parliament in the process of treaty-implementation if it is of the view

that it was a “colourable attempt” to convert a matter of internal concern into an external

matter22. Therefore, the Commonwealth Parliament cannot implement a treaty with

another country which has no bearing but was only an attempt by the Commonwealth

Government to attract jurisdiction under s 51 (xxix) of the Constitution23. Gibbs C. J.

criticized such approach and was of the view that it is not an effective limitation to

protect the “federal character of the Constitution” and that “the doctrine of bona fides

would at best be a frail shield, and available in rare cases”24. Gibbs C.J.’s judgment

suggests that this bona fide limitation will only come into operation where the treaty-

implementing legislation is an absolute intrusion in a State’s autonomy, caused

20 A. B. Keith, The Dominions as Sovereign States, McMillan & Co, London, (1938), p. 444

21 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 224

22 Ibid, at 664

23 A. Twomey, ‘Federal Parliament’s Changing Role in Treaty Making and External Affairs’, in: G. Lindell

and R. Bennett (Eds), Parliament – The Vision in Hindsight (Federation Press, 2001)

24 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 220

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perverse of justice or violates fundamental ideologies of the Constitution (e.g.

federalism and democracy).

Constitutional constraint

The legislative powers listed in s 51 of the Constitution are “subject to [the]

Constitution”25 and must be “for the peace, order, and good government of the

Commonwealth”26. Mason J’s judgment in Koowarta v Bjelke-Petersen highlighted that

the Commonwealth Parliament’s external affairs power under s 51 (xxix) of the

Constitution is “subject to the express and to the implied prohibitions to be found in the

Constitution”27.

The express limitation “subject to [the] Constitution” stipulated in s 51 of the

Constitution means that any legislations enacted in reliance on s 51 of the Constitution

by the Commonwealth Parliament must not contravene other provisions of the

Constitution such as s 116 (Commonwealth not to legislate in respect of religion) and s

115 (States not to coin money).

Mason J went on further to explain that the Commonwealth Parliament’s external

affairs power is also limited by implied limitations in the sense that the “Commonwealth

25 S 51 of the Constitution

26 Ibid

27 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 10

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cannot legislate so as to discriminate against the States or inhibit or impair their

continued existence or their capacity to function”28. In Chu Kheng Lim v Minister for

Immigration, Local Government and Ethnic Affairs29, the High Court held that if the

Commonwealth Parliament enacted provisions in reliance on s 51 of the Constitution

which interferes federal judges by directing them to exercise their judicial power in a

certain manner, the court would invalidate the provision based on the ground that such

acts hinder the implied yet fundamental ideology of separation of powers in Australia’s

Constitution. Similarly, provisions directing State judges to exercise their judicial power

in a certain manner would also become void based on the same reasoning30. Such

examples of implied limitations are non-exhaustive and, similar to the bona fide

limitation discussed above, the court can readily invalidate a legislation on the basis that

it violates fundamental constitutional principles of Australia.

Whether the words “for the peace, order and good government” operate as a

limitation or a phrase granting the Commonwealth Parliament plenary to legislate on

matters listed in s 51 of the Constitution has been subject to many judicial and

academic discussions. The words were derived from instruments that defined colonial

governors’ powers. The original purpose of the words was to control the use of the

legislative powers given to the governor by instructing the governors as to the limits and

purpose of their powers. Such proposition was supported by Lord Mansfield in Campbell

28 Ibid, at 226

29 (1992) 176 CLR 1

30 Re Australian Education Union; Ex parte Victoria (1995) 128 ALR 609 at 629-632

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v Hall where the learned judge characterized the phrase “for the public peace, welfare

and good government” as directions to the governors31. In R v Foster; Ex parte Eastern

Australian Steamship Co. Ltd, the High Court judges concluded that:

“…it is now for Parliament alone to judge whether a measure in respect of

any topic on which it has power to legislate is in fact for the peace, order

and good government of the Commonwealth.”32

Even as a limitation, the scope of the words “for the peace, order and good

government” has also been disputed. The High Court has not derived an objective test

for this limitation but however the words are to be interpreted, the Commonwealth

Parliament should be aware their legislative power conferred to them by s 51 of the

Constitution is not absolute and that the judiciary can and will challenge the legislations

enacted them if there is abuse of power.

International concern

In Koowarta v Bjelke-Petersen33, Stephen J took the view that in order for the

Commonwealth Parliament to legislate under s 51 (xxix) of the Constitution, the treaty in

question must be related to a matter of international concern. The case involved a

31 (1774) Cowp. 204

32 (1991) 65 ALJR 521 at 525

33 (1982) 153 CLR 168

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dispute on the validity of the Racial Discrimination Act 1975 which was enacted by the

Commonwealth Parliament to implement the International Convention on the

Elimination of All Forms of Racial Discrimination. Section 9(1) of the Racial

Discrimination Act 1975 provided that it is unlawful to distinct, exclude, restrict or give

preference based on race, colour, descent or national or ethnic origin. Stephen J

acknowledged that even though the Racial Discrimination Act 1975 only addressed

racism domestically, its validity should nevertheless be upheld because the legislation

implemented a treaty which a addressed a matter of international concern.

The test of international concern was rejected by the High Court in subsequent

cases and the recognition that international concern is no longer a limitation to the

external affairs power under s 51 (xxix) of the Constitution but may merely operate as

an independent limb of the external affairs power received judicial support34. In

Commonwealth v Tasmania35, Mason J rejected Stephen J’s test of international

concern by holding that the test is redundant as “the existence of international character

or international concern is established by entry by Australia into the convention or

treaty”.

One critical problem with the test of international concern is that it lacks clear

guidelines. The test has been applied differently by different judges and it is difficult to

see from the precedents how this test operates precisely. Some judges have taken the

34 Commonwealth v Tasmania (1983) 158 CLR 1 and Victoria v Commonwealth (1996) 187 CLR 416

35 (1983) 158 CLR 1 at 125

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view that international is something which will affect Australia’s relations with other

nations36, some held that it is a topic of international debate, discussion and

negotiation37 and whilst some believed that international concern can be evidenced by

the norms of the international community38.

Conclusion

The Commonwealth Government has unlimited power to enter into treaties under

s 61 of the Constitution on behalf of Australia. The power to enter into treaties is plenary

to prevent Australia from being an “international cripple”. Australia as a whole should be

able to bind itself to international obligations to maintain its competitive edge in the

international arena. On the other hand, as evident in precedents from the past century,

the Commonwealth Parliament’s treaty- implementation power under s 51 (xxix) of the

Constitution is not plenary in nature. To safeguard federalism and separation of powers

in Australia, the High Court has identified several limitations and checks on the external

affairs power.

The scope and how these limitations and checks operate has been under much

judicial and academic debate. Several limitations have been identified above of which

the test of conformity has perhaps been invoked the most often in invalidating a treaty-

36 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 216-217 (Stephen J)

37 Ibid, at 234 (Mason J)

38 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 561 (Brennan J)

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implementing legislation by the High Court. However, the Commonwealth Parliament

should be aware that the High Court’s divided views on the scope its power under s 51

(xxix) of the Constitution leaves open the possibility for the judiciary to interfere and

create new limitations in the future.

Word count: 2,613

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Bibliography

A. Articles/Books/Reports

George Winterton, ‘Limits to the Use of the “Treaty Power”’ (Chpt 2) in: Philip Alston and

Madelaine Chiam (Eds), Treaty-Making and Australia : Globalisation versus Sovereignty

(Federation Press, 1995) pp. 29-51

H. P. Lee, ‘The High Court and the External Affairs Power’ (Chpt 3) in: H. P. Lee and

George Winterton (Eds), Australian Constitutional Perspectives (Law Book Co of

Australiasia, 1992) pp. 60-91

Donald R. Rothwell, ‘The High Court and the External Affairs Power: A Consideration of

its Outer and Inner Limits’ (1993) 15 Adelaide Law Review 209

A. Twomey, ‘Federal Parliament’s Changing Role in Treaty Making and External

Affairs’, in: G. Lindell and R. Bennett (Eds), Parliament – The Vision in Hindsight

(Federation Press, 2001)

P. H. Hogg, Constitutional Law of Canada (Carswell, 2011)

A. B. Keith, The Dominions as Sovereign States, McMillan & Co, London, (1938)

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P. Keyzer, J. Clarke and J. Stellios, Hanks’ Australian Constitutional Law: Materials and

Commentary, (LexisNexis Butterworths, 2009)

Lan D. Killey, ‘Peace, Order and Good Government: A Limitation on Legislation

Competence’ (1990) 173 Melbourne University Law Review 25

I. Omar, Butterworths Questions and Answers Constitutional Law (LexisNexis

Buttherworths, 2010)

B. Cases

Commonwealth v Tasmania (1983) 158 CLR 1

Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326

New South Wales v Commonwealth (1975) 135 CLR 337

Polyukhovich v Commonwealth (1991) 172 CLR 501

R v Poole; ex parte Henry (No 2) (1939) 55 CLR 608

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Victoria v Commonwealth (1996) 187 CLR 416

Koowarta v Bjelke-Petersen (1982) 153 CLR 168

Re Australian Education Union; Ex parte Victoria (1995) 128 ALR 609

Campbell v Hall (1774) Cowp. 204

C. Legislation

Australian Constitution

Seas and Submerged Lands Act 1973 (Cth)

Coastal Waters (State Powers) Act 1980 (Cth)

Coastal Waters (State Title) Act 1980 (Cth)

Racial Discrimination Act 1975 (Cth)

D. Treaties

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Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April

1958 (entered into force 10 September 1964)

International Convention on the Elimination of All Forms of Racial Discrimination,

opened for signature 21 December 1965 (entered into force 4 January 1969)

18