The External Affairs Power

The Federalism Project
Issues Paper No. 1

INTRODUCTION

The Australian Federation will have its centenary on 1 January 2001, but it is already one hundred years since its Founding Fathers began their deliberations which led to the passage of the Act of the British Parliament we know as the Australian Constitution.  Enormous changes, social, economic and political, have occurred through the twentieth century and it would be surprising, indeed alarming, if our Constitution had not been flexible enough to accommodate its operation to the demands of such a challenging century.  The "external affairs power", assigned to the Commonwealth under that Constitution, has been the focal point of some of these most difficult demands.

In the long list of powers given to the Commonwealth (39 in all), it is sandwiched between powers concerning "the influx of criminals" and "the relations of the Commonwealth with the islands of the Pacific".  The power is couched in very wide terms -- just the two words -- but that is not unusual in a Constitution.  To confuse the nature of this power even more, the addition of the words "and treaties" to that of "external affairs" was removed during the Convention debates, on the ground that these matters would be outside Commonwealth power -- the negotiation and ratification of treaties then being seen as the responsibility of the United Kingdom.  It cannot be said that the Founding Fathers had very clear ideas about the nature of the power.  That is not surprising;  the States were self-governing colonies within the British Empire and the new Commonwealth of Australia would not have any higher status until the idea of dominionhood evolved some decades later.

The development of Australian nationhood has clearly been one of the most notable changes which the Federation has had to accommodate.  The existence of the external affairs power has been of vital importance in that process.  Indeed, if it had not been there it would have to have been invented.  Although the power to make a treaty arises under the executive power, ⁽¹⁾ that in itself would have been insufficient.  Australia had to develop the trappings of nationhood, such as the creation of a diplomatic corps and the reception of diplomats.  It even itself became a colonial power in Papua, and received a mandate from the League of Nations to govern the former German colony of New Guinea.

The external affairs power is much wider than a power with respect to treaties.  "Treaties" cover a range of international agreements, some of which are called by other names;  for instance, conventions, covenants, protocols and declarations.  Even an "exchange of notes" may be included.  Laws relating to diplomatic relations, extradition, war crimes (overseas) and sovereignty over the continental shelf do not require a treaty to give them validity.  The problem only arises when the provisions of a treaty have to be implemented within Australia.  Of course, if a treaty deals only with subjects which are already included in the list of powers assigned to the Commonwealth, there is no problem.  A problem arises when it is desired to implement the provisions of a treaty within Australia when there is no other specific power to do so under the Constitution.

The first test of the ambit of the treaty-making power occurred in the High Court in 1936, in Burgess's Case. ⁽²⁾  The Commonwealth had entered into an international civil aviation convention which laid down rules for the safety of aviation between and within the nations which were parties to it.  Not unnaturally, air travellers are concerned about their safety and not about any nice distinctions between interstate and intra-state travel within Australia.  The Commonwealth legislation therefore raised the nub of the problem.  Unfortunately, the legislation set out its own rules about the safety of air travel in Australia and did not specifically implement the rules of the convention.

The High Court held that the treaty-making power did not permit the Commonwealth to make its own laws on the subject matter of the treaty.  It said, however, that if the legislation had followed the provisions of the convention, then it would have been a valid exercise of the external affairs power, notwithstanding the fact that it applied to travel within a State and was not otherwise within the Commonwealth's heads of power.  Only one of the five Judges (Dixon) was seemingly troubled by this conclusion, and as events have turned out his misgivings were fully justified.  To allay his concern, Mr Justice Dixon expressed the view that this effect of a treaty could only occur if the subject matter of the treaty was "indisputably international" in character.  Another decision of the High Court, in 1965, on the implementation within Australia of another civil aviation convention regarding safety, upheld the local regulations, but it is not clear whether the decision was based on the external affairs power or the "trade and commerce" power.  It did not take the arguments beyond what we found in Burgess's Case.

In 1973, the Federal Parliament implemented two international treaties concerning the continental shelf and the territorial sea.  All the States challenged the validity of the legislation.  At the end of 1975, the High Court, in a decision known as the Seas and Submerged Lands Case, ⁽³⁾ upheld the Commonwealth legislation in its entirety.  A number of the Judges did so on the basis of the treaties.  A majority of the Court, however, held that sovereignty over the territorial sea had never belonged to the States because of their status as colonies.  With regard to the continental shelf, its ownership was itself an external affair and the Commonwealth did not require a treaty to give it the power to acquire it.  Although the various reasons for their decision in this case included these other issues, there remained solid support by the Court for the ambit of the external affairs power extending to the implementation of a treaty.  This was again, however, a case where the matters at issue could be said to be indisputably international in character.

This case was decided within a week of the 1975 election which returned the Fraser Government.  At that stage, there was wide support in legal and political circles for an interpretation of the external affairs power which went beyond the limitations which had been prescribed by Sir Owen Dixon as far back as 1936.  The view was that the treaty itself attracted the power, and that no other "external" element was necessary.  There was, however, no clear-cut High Court decision which took the ambit of the power as far as that.

The Fraser Government, meanwhile, embarked upon a policy of cooperative federalism, and deliberately sought to avoid a confrontation with the States over this issue.  Had the Whitlam or any Labor Government continued in power, I feel sure that this question would have been brought to a head earlier than it was.  This political observation is an important one.  It shows that the resolution of the problem of the external affairs power lies perhaps more at the political level than at the legal level.  I will be returning to this theme at a later stage of this paper.

Despite the best policy efforts of the Fraser Government and at least two most notable achievements of cooperative federalism, namely the National Companies and Securities Scheme and the Offshore Constitutional Settlement, another test of the ambit of the external affairs power arose in the High Court in 1982, in Koowarta v. Bjelke-Petersen. ⁽⁴⁾  The case concerned the validity of a key section of the Racial Discrimination Act, which had been passed by the Federal Parliament in 1975 and had survived any challenge for seven years.  The Act was based on a treaty seeking to outlaw racial discrimination throughout the world.  It was a clear test of the ambit of the power because the case concerned the treatment of an Australian in Australia by an Australian.  On the authorities as they stood, the only way the Act could be upheld would be through the Dixon doctrine or some variation of it.  It was, of course, important for the credibility of the Fraser Government's policy on cooperative federalism that its argument in support of the legislation was consistent with existing decisions and reasoning.  It would have been most provocative for the Commonwealth to argue for the full ambit of the power which fashionable legal and political opinion clearly desired.

The Commonwealth was not directly a party to the dispute, because it arose under a complaint by Mr Koowarta against the Queensland Government.  It was necessary, however, for the Commonwealth to intervene and endeavour to uphold the validity of the Racial Discrimination Act.  It did so on the basis of the Dixon view.  The Act was upheld because one Judge (Stephen J) was prepared to follow that limitation on the power.  The other three Judges of the majority supported a wider interpretation of it, while the three dissenting Judges, led by the Chief Justice Sir Harry Gibbs, took the view that the power could not extend to provisions of a treaty unless there was a relationship between conduct overseas and within Australia.  The civil aviation cases, of course, were a classic example of that.  In Koowarta, that was clearly absent;  but Mr Justice Stephen was able to identify an international concern on the subject of racial discrimination which in his view was sufficient to uphold the implementation of the treaty solely within Australia.

THE LEGAL POSITION

I come now to the last of the great cases on the ambit of the treaty-making power:  the Tasmanian Dam Case of 1983. ⁽⁵⁾  The Tasmanian Government proposed to build a dam on the Franklin River in the south-west corner of the State.  This wilderness area of the State had been placed on the "World Heritage List".  The Fraser Government had tried to dissuade the Tasmanian Government from going ahead with its plans, but -- in accordance with its own policy -- refused to use the external affairs power.  Following the election of the Hawke Government in March 1983, legislation was speedily introduced and passed by the Federal Parliament, relying on the power (among others).  The Tasmanian Government challenged the validity of the legislation in the High Court.  The Court's decision was unambiguous and it seems unlikely that the present High Court will change its view of the ambit of the power as it was laid down in that case.  The law as it stands today can therefore be summarised as follows:

1. The Federal Parliament can implement the obligations of any treaty which the Commonwealth has ratified.  The Parliament can disregard any questions such as degrees of international concern, mutuality of obligations or whether it is purely international in character.  It is, of course, likely that there will be disputes about whether, or what sort of, obligations have been created by a treaty.  Many treaties are couched in very general terms and the nature of the obligation could be obscure.
2. The treaty must be bona fide.  This means that it must not have been entered into as a means of attracting the power.
3. The law must actually implement the treaty obligation and it must do so in a proportionate and reasonable way.  The Parliament cannot simply make a law with respect to the subject matter of the treaty.
4. The power to implement a treaty is subject to the various constitutional restrictions on Federal power such as section 92 (free trade), 116 (freedom of religion) or section 80 (trial by jury).
5. The power is controlled by certain implied limitations on Commonwealth power, no matter how acquired, which prevent the Commonwealth from discriminating against the States or any State or which interfere with their capacity to function as such. ⁽⁶⁾

The High Court has already made some further expansion of its decision in the Tasmanian Dam Case.  It has approved the establishment by the Commonwealth of a commission of inquiry to ascertain the facts relating to the possible exercise of the Commonwealth's power under a treaty:  namely, whether or not certain forests in Tasmania come within consideration for World Heritage listing. ⁽⁷⁾  It has also held -- in a challenge by the Queensland Government to the nomination of the wet tropical forests of north east Australia for inclusion on the World Heritage list -- that there was no legal ground available for Queensland to challenge the claim that such forests are of sufficient environmental importance to warrant this action. ⁽⁸⁾  This, of course, leaves the Commonwealth's Executive in even greater control of its own power and, in my opinion, is quite unacceptable.  The High Court may further expand the power to extend it to any provision of a treaty regardless of whether there is a clear obligation.

Not surprisingly, the Tasmanian Dam Case has led to an enormous amount of concern and controversy which has continued and will continue until some more satisfactory resolution of the problem can be achieved.  Indeed, one might say that only the Mabo Case has displaced it from its place at the top of the charts of famous or, depending on the point of view, infamous High Court decisions.

The Labor Government which initiated the legislation on which the decision was based has not made great use of its new power.  This policy, however, seems to be changing, and we are likely to see an acceleration of its use.  The most recent example is the Commonwealth's Industrial Relations Reform Act (1993) which draws on International Labour Organization Conventions for some of its major provisions.  There is also the proposed legislation aimed at overcoming Tasmania's laws on homosexual conduct, arising out of a finding by the United Nations Human Rights Committee that they are in breach of the International Covenant on Civil and Political Rights.  This interpretation of the Covenant is, incidentally, itself highly contentious.  Even the threat of using the power, also, could force the States to act as the Commonwealth desires.  The concern so far, however, is more about its potential than its actual impact.

It is interesting to contrast the impact of the external affairs power on the operation of the federal structure in Australia with the impact on it of the financial powers of the Commonwealth.  Since the uniform taxation scheme in 1942 at least, the Commonwealth has been slowly widening its influence on a whole range of State responsibilities such as health, education, housing and roads by the power of the purse.  The combined effect of its taxation power and its power to make grants to the States on any terms it thinks fit (section 96) has totally changed the way our federal system operates.  No such claim can yet be made about the external affairs power.  How seriously, then, should its potential be rated?

On its face, it would appear that the power could be used to destroy the federal nature of our Constitution.  This assumes that sufficient material could be found in the treaties which have been entered into over the life of the Commonwealth to extract a basis for Commonwealth legislation on virtually all the areas which still remain within State powers.  Although there seems to be great doubt about the actual number of treaties that the Commonwealth has entered into or which are still current, there are at least hundreds of such treaties which could be ransacked to assist the Commonwealth if it adopted the policy of totally destroying the federal system.  Of course, federalism could be effectively destroyed without any specific such intention by a government in pursuit of other ends.  This, together with even the current use of the power by a Federal Government, would seem to justify an effort to achieve some modification of the existing power.

The most up-to-date official statement about the number of treaties which Australia has entered into or is bound by comes from the Minister for Foreign Affairs, Senator Gareth Evans, in a letter dated 21 July 1994 and published in the Sydney Morning Herald on 1 August 1994.  Senator Evans states that "... there are currently only about 920 treaties which apply to Australia." (emphasis added).  He goes on to say that this is "about average for an OECD country".  He fails to spell out what exactly he means by a treaty "applying" to Australia.  For someone with his legal and political experience this is rather odd.  I assume that he means that those treaties have been ratified by Australia.  In the context, however, of the present debate about the external affairs power, in which Senator Evans was participating in his letter, it is more important, surely, to know how many of those treaties create obligations for Australia.  He extols the benefits of those treaties but ignores the price Australia pays.

THE FAILED SOLUTIONS

It certainly can't be said that the question has been ignored these last eleven years, or that no genuine effort in fact has been made to find a solution to the problem.  On the contrary a great deal of thought and action has been given to it, and a number of proposals have been debated and some partial modifications of Federal policy have been agreed.  Nevertheless, no substantial agreement has been reached on any amendment to the Constitution itself.  This means that no change to the Constitution is in sight.

This conclusion must be very disappointing for those who do feel not only a sense of concern but a real sense of betrayal by Australian politicians (and not just Federal politicians) of the federal principle.  To ease these feelings, if for no other reason, it behoves those who believe in the federal principle to keep searching for and promoting a solution to this most intractable problem.

The Australian Constitutional Convention sat periodically from 1973 through to 1985, when it was disbanded by the Hawke Government and replaced by a Constitutional Commission which was set up to report on changes to the Constitution to mark the national Bicentenary in 1988.  At the Adelaide session of the Australian Constitutional Convention in 1983, a motion was passed about the external affairs power which expressed "... concern that the traditional balance of legislative, executive and judicial powers between the Commonwealth and the States may be destroyed by an expansionary interpretation of section 51(29)".  The motion also requested that a sub-committee be established to consider the effect of this power on the division of powers "... which has traditionally existed in the Australian Federation". ⁽⁹⁾  The External Affairs Sub-Committee, duly established, reported back to the next session of the Convention which was held in Brisbane in 1985.  The Brisbane session accepted a number of recommendations which were designed to improve the role played by State officials in the negotiation of treaties, including also the establishment of a Treaties Council.  The members of this council were to have expertise in international law and inter-governmental relations and the council was to report to and advise both Commonwealth and State Governments on proposed treaties and on the implementation of treaties.  It was to report regularly to all Australian Parliaments.  No recommendation, however, could be achieved through the Convention process for any constitutional change to the ambit of the external affairs power.

In 1984, a bill was developed for an amendment to the external affairs power.  This bill was drafted by a former Commonwealth Parliamentary Counsel, and it was hoped that it would have been considered by the External Affairs Sub-Committee of the Convention.  For some reason, however, that committee finished its deliberations before the bill was introduced.  Accordingly, it was referred to the Brisbane session of the Convention seeking its further consideration by the External Affairs Sub-Committee.  That proposal was narrowly defeated.  Had it been supported by the delegation of the then Queensland Government, it would have been passed.

The bill was designed to confine the power in the way which had been proposed in broad terms by Sir Harry Gibbs in his dissenting judgment in the Koowarta Case to which I have already referred.  It proposed that a new section should be inserted in section 51(29) of the Constitution following the phrase "external affairs", to provide that the power did not authorise laws operating with respect to persons, matters or things in the Commonwealth except to the extent that

1. Those persons, matters or things have a substantial relationship to other countries or to persons, matters or things outside the Commonwealth and the enactment deals with, or with all matters affecting or arising out of, that relationship;  or
2. The operation of the enactment is related to the movement of persons, matters or things into or out of the Commonwealth.

It also proposed to declare that this sub-section was to operate notwithstanding any treaty or international agreement.

The Constitutional Commission was set up in 1986 with a view to major changes to the Constitution being considered for the Bicentenary in 1988.  Unlike the Constitutional Convention -- which comprised delegates from all Australian Parliaments together with delegates from Local Government -- this Commission was hand-picked by the Federal Government.  All the members of the Commission itself were lawyers, although two of them (Mr Gough Whitlam and Sir Rupert Hamer) had had long political experience.  It was chaired by a former Solicitor-General of the Commonwealth, Sir Maurice Byers QC, and its other two members were distinguished Law Professors, Zines and Campbell.

The Commission was also assisted by four advisory committees, which widened considerably the number of people who gave it their experience and views on all the issues which the Commission had to consider.  Nevertheless, the Commission could not be described as representative of Australian opinion.  All the Commissioners came from Sydney, Melbourne and Canberra.  Both the Commission and its advisory committees did, however, carry out a very thoughtful and extensive examination of most aspects of the Constitution -- including the external affairs power.  They considered the history of the power, and the principal proposals which had been made to change or modify it.  Having done this, however, they came to the conclusion that no change to the Constitution was desirable, and they merely adopted the suggestions which had been put forward by the Australian Constitutional Convention.

Sir Rupert Hamer dissented strongly from this conclusion;  while Professor Zines made a valuable suggestion about parliamentary involvement in the ratification of treaties.  As with the Australian Constitutional Convention, however, the bottom line was again that no agreement could be reached about any change to the constitutional power itself.

The reason advanced by the majority of the Commission for preserving the power as it now stands was as follows:

Unless Australia was to withdraw from active participation in many fields of international negotiation and agreement it would be necessary in many circumstances (if the external affairs power was not available) to seek the agreement of the States to the ratification and implementation of treaties.  This would prove in many cases to be slow and cumbersome and in many other cases to be wholly impracticable.  It could in some circumstances permit one or more States to determine in effect the policy for Australia. ⁽¹⁰⁾

This argument overlooks a number of most important considerations.

First, the statement ignores the fact that there are a number of other notable Federations which are also active participants in international affairs -- not least the United States, Germany and Canada.  It is ridiculous to claim that these countries, along with Australia, cannot fully participate in international affairs.  The facts totally refute such a proposition.  It may, of course, be said that some Australian governments have been over-anxious to prove their virility as participants in international affairs, to the extent that considerations of other countries' attitudes and reactions are more important than those of Australia itself.

In the United States, the government may enter into treaties but they have to be ratified by the United States Senate.  That requirement has not stopped the United States from being a party to treaties.  The mere fact of the US government's signing a treaty does not mean it will or can be implemented in that country.  Germany is in much the same situation as Australia.  As far as Canada is concerned, its Constitution assigns some exclusive powers to the Provinces, as their States are known. ⁽¹¹⁾  This gives the Provinces much greater power than the States in the US or Australia and the Laender in the Germany, but Canada has been a most notable participant in the post-war international community.  Even in Australia and Germany, the government alone cannot guarantee the domestic implementation of a treaty.  That requires parliamentary approval.

Second, in 1982, an agreement was reached at the Premiers' Conference setting out rules for co-operation between the Commonwealth and State in regard to the making of treaties.  The agreement was as follows:

1. Information would be given to the States by the Commonwealth at an early stage in the negotiation of a treaty.
2. There would be consultation during the negotiations with the relevant State ministers and officials.
3. In appropriate cases, State representatives would be included in the delegations at international conferences -- at least when State matters were being considered.
4. "Federal clauses" would be sought in treaties which involved matters within State powers.
5. The States would be given the first opportunity of implementing treaty provisions that affected their areas of responsibility.

This agreement was the result of the policy of cooperative federalism which was pursued by the Fraser Government.  It was largely based upon the experience that the Federal and State Governments and their officials had had in operating that process.  The last provision -- whereby States were given the first opportunity of implementing those parts of a treaty which were within their traditional responsibility -- had already been put into practice in some cases.  This was working perfectly well.  It can be highlighted by the nature of the Offshore Constitutional Settlement, which was negotiated as a result of the High Court decision in the Seas and Submerged Lands Case.  There was some reluctance, and indeed resistance, by Federal officials at times, but the States were very alert to complain.  It was the Federal ministers' duty to make such an agreement work.

Unfortunately, when the Hawke Government came into power, it made substantial qualifications to this agreement, to the effect that:

1. The procedures under it should not be allowed to result in unreasonable delay in negotiating a treaty.  (This is really quite absurd when one considers the delays that already occur in the international process of negotiating a treaty.)
2. The Government did not favour the inclusion of federal clauses in treaties.  (It is very difficult to see what possible objection there can be to that, unless it is based upon the notion that Australia would be an international cripple if it didn't commit itself to every word or wish of the international community.  It is true that it is difficult to achieve the acceptance of federal clauses by the unitary states which predominate in these discussions;  but in the event that such a clause could not be agreed, the appropriate course would be for Australia simply to make a reservation about matter within the States' powers.)
3. The Federal Government would not accept any limitation on its power to enact legislation which is "constitutionally subject to Commonwealth power".  (This obviously includes the external affairs power as interpreted in the Tasmanian Dam Case.  This particular qualification therefore totally destroys the objects of the agreement, and simply affirms the aggressively centralist attitude of the Federal Government.)

As stated earlier, Sir Rupert Hamer vigorously and at length dissented from the majority recommendations of the Constitutional Commission.  He emphasised the widely-held view that the High Court, by its interpretation of the external affairs powers, had totally changed the nature of the Constitution from that envisaged by its Framers.  They, indeed, went to great trouble to detail the list of powers assigned to the Commonwealth;  and in his view "... it is inconceivable that they intended to give power to the Parliament to make a law on any other matter merely because it happened to be the subject of a treaty." ⁽¹²⁾  He found it even more remarkable that this could be achieved merely by a decision of the Executive Government without even the requirement to inform, much less consult, the Parliament or be governed by the Parliament on the matter.  I totally agree with these views.

Before I proceed to discuss what could and should be done to overcome this grave failure in the operation of our Constitution, I should refer to two other proposals which have been put on the table, both of which have come from academic lawyers.

One was made by Dr Finnis of Oxford University, who was then an adviser to the Bjelke-Petersen Government of Queensland.  He proposed that the phrase "external affairs" should be expanded with the following words:

but notwithstanding the executive power of the Commonwealth with respect to external affairs nothing ... shall be taken to authorise laws regulating matters within Australia ... other than laws giving effect to Australia's international obligations in relation to fugitive offenders, diplomatic relations with other countries and international organisations, air traffic (or matters otherwise within the power of the Commonwealth).

This represents a small expansion of Sir Rupert Hamer's view, which is that the external affairs power should not allow the Commonwealth to expand its powers using a treaty.  It is interesting to note that Dr Finnis has included laws with respect to fugitive offenders and air traffic as well as diplomatic relations.  In all these cases there is a relationship between people in one country and those in Australia.  These are but particular examples of the matters which are covered in broader terms by my proposal based on the dissenting judgment of Sir Harry Gibbs in the Koowarta Case.

The other proposal has come from Professor Crommelin of Melbourne University.  It is based upon the Canadian scheme of federation, which assigns some exclusive powers to the provinces.  He suggests allocating to the States a rather limited number of such powers, largely to ensure their continuing functioning.  Other exclusive powers are given to the Commonwealth, such as defence, foreign affairs, citizenship, currency and coinage.  All other powers would be concurrent, with paramountcy for the Federal Parliament.  This proposal has not found much favour and it does seem to me that the exclusive powers to be given to the States are too restrictive to be of much value. ⁽¹³⁾

WHAT SHOULD BE DONE

I have dealt with the nature of the problem, and attempted to assess its magnitude and significance for the future of the Australian federal system.  I have discussed the present ambit of the power, and the likelihood that it will be extended rather than reduced by the High Court for the time being at least.  There must undoubtedly be a real question as to whether anything can in fact be done about the situation, however strongly one may feel that something should be done about it.  I must emphasise again that it is not a new problem.  Its roots can be seen in some of the early decisions of the Court.  It is instructive to recall some observations of the then Chief Justice, Sir John Latham, in Burgess's Case.  He wrote:

The Department of External Affairs of the Commonwealth published on 15 August 1935, a "List of International Agreements" (treaties, conventions, etc) to which Australia is a party or which affect Australia, together with prefatory notes.  The list of bilateral international agreements extends over eighteen pages and the list of general and multi-national international agreements extends over eleven pages.  The subjects are so various that it is impossible to classify them.  They include matters affecting extradition, trade and commerce, navigation, legal proceedings, joint stock companies, war graves, commercial arbitration, international arbitration, tariffs, trademarks and other industrial property, friendship and amity, postal matters, medical practitioners, lunatics, submarine telegraph cables, maritime and land warfare, sanitation, white slave traffic, use of white phosphorus in manufacturing matches, copyright, obscene publications, peace after the Great War, labour matters, contagious diseases, dangerous drugs, economic statistics, limitation and reduction of armaments and other subjects.  It will be seen therefore that the possible subjects of international agreement are infinitely various.  [Emphasis added.]

It is interesting to note that very few of these treaties have given rise to any constitutional problem.  It is also interesting to note that the vast majority of these treaties dealt with subjects which involved a relationship between people and matters in Australia, and those overseas.  It is also striking that none of them, except "labour matters", relates to the subjects which have caused the recent problems with the power -- human rights and the environment.  It seems fairly clear, therefore, that it is largely the frenetic activity of treaty-making over the past forty years which is at the root of the problem.  It is important to realise that the High Court has been faced with a significantly different problem from the one which it faced in the period before the Second World War:  treaties now are likely to mandate solutions to social and economic issues on a world-wide scale.

THE HIGH COURT

Until the Engineers' Case, in 1920, the High Court had interpreted the Constitution by reference to two implied limitations on its actual wording. ⁽¹⁴⁾  The Engineers' Case held that full effect should be given to the words of any Commonwealth power without regard to limitations of these kinds.  The High Court, however, never lost sight of the view that it was interpreting a document which set up a federal system.  In 1947 in the Melbourne Corporation Case, the High Court held that, despite the specific banking power (section 5l.xiii), the Commonwealth had no power to force State and Local Authorities to bank with the Commonwealth Bank.  It has also developed a doctrine, of somewhat limited application, which places some restraints on Commonwealth power no matter how clear it may otherwise be.  The most recent case which has given effect to this doctrine is Queensland Electricity Commission v. The Commonwealth, of 1985.  I quote from Sir Harry Gibbs, Chief Justice:

... it is now clear in principle and established by authority that the powers granted by Section 51 of the Constitution are subject to certain limitations derived from the Federal nature of the constitution.  The fundamental purpose of the Constitution and its very frame reveal an intention that the power of the Commonwealth to affect the States by its legislation must be subject to some limitation.  It is clear that there are two distinct rules each based on the same principle but dealing separately with general and discriminatory laws.  A general law will be invalid if it would prevent a State from continuing to exist and function as such.  A Commonwealth law will also be invalid if it discriminates against the States in the sense that it imposes some special burden or disability on them.  [Emphasis added.]

The implied limitation also extends to such a discrimination against one State only, as had occurred in the Queensland Electricity Case.

It may be said that this implied limitation does no more than recognise the fact that a Federal Constitution by its very nature guarantees the existence of its constituent bodies -- which in Australia we call States.  In a unitary state, the central government can do what it likes about local systems of government;  but in a Federation their continued existence is part and parcel of the federal principle.  In the Tasmanian Dam case, the present Chief Justice of the High Court, Sir Anthony Mason (then Mason J) did express the view that this implied limitation might have invalidated the Commonwealth legislation under challenge in that case, if large areas of the State of Tasmania had been brought under its prohibitions.

There can also be some encouragement from the fact that the High Court Justices in the most notable recent cases of Koowarta and Tasmanian Dam have been divided four to three;  although it does seem most unlikely that the present Court will overturn its approach.  There must, however, be a real possibility that a differently-constituted Court may take a different view;  without totally rejecting the existing doctrine, it could at least develop some means of modifying it.  I have shown that there are a number of precedents over the history of the High Court's interpretation of the power, which would enable the Court to develop some greater limits to the power.  I have already mentioned the dissenting judgment of Sir Harry Gibbs in the Koowarta case, and the fact that I had adopted his formula for my bill to amend the external affairs power.  I have no doubt that State governments will keep challenging the Commonwealth's use of the power.  They have done so in the case of the Commonwealth's recent Industrial Relations Reform Act, which has relied on International Labour Organization Conventions to widen the impact of Commonwealth industrial laws.  If the Commonwealth Parliament seeks to overturn Tasmania's laws relating to homosexual conduct, I am sure there will be another High Court battle about that.

Over time, therefore, if the Commonwealth Government follows a policy of putting this power to greater use, there will be many more opportunities for the High Court to consider how far it will allow the Commonwealth to go.  A great deal will depend upon the people who are appointed to it.  But even without a wholesale change in the membership of the Court, the process of public debate, academic discussion, State protests and all those subtle pressures in a democratic community, may convince the Judges of the Court -- or at least a majority of them -- that there are dangers to the federal system in the present interpretation of the Commonwealth's powers. ⁽¹⁵⁾

There is one other ground for hoping that the High Court may be persuaded to review the ambit of its decision in the Tasmanian Dam Case.  Until that case, the Court's best-known decision was the Bank Nationalisation case which held that Section 92 of the Constitution prevented the Commonwealth Government from nationalising the Australian private banks. ⁽¹⁶⁾  After well over one hundred decisions on the interpretation of Section 92, it was by the 1980s a complete shambles.  In 1988, the High Court was persuaded to make a fundamental review of its various interpretations of the section;  and in the subsequent decision (Cole v. Whitfield), it overruled a number of previous approaches and cases and laid down a new principle for the interpretation of the section.  There is no need here to go into to the details of this decision, other than to point out that in this judgment the current High Court has itself made a major reversal of previous decisions.  Cole v. Whitfeld is a powerful precedent for arguing that an interpretation of a section in the Constitution by the High Court which is proving overly controversial or virtually unworkable should be reviewed and may well be reversed.

A POLITICAL SOLUTION

The most promising means of limiting the ambit of the external affairs power lies, in my view, within the political arena.  As I have already pointed out, there have been a number of initiatives in the political sphere which would enable Australia adequately to perform its role as an active member of the international community, but at the same time to observe the federal principle in the exercise of the external affairs power.  The political road does not usually lead to hard and fast solutions, and is certainly not an easy option.  Nevertheless, there is enough experience and evidence to conclude that it is a viable option and more likely to succeed substantially in achieving limits on the external affairs power than by seeking change through the High Court or through amendment to the Constitution itself.

The obvious drawback with the political solution is the major difference between the political parties in Australia about the desirability of limiting the external affairs power.  The Fraser Government followed a consistent policy of restraint in its use of the power and did put in place a framework of cooperative arrangements about its use.  The Labor Party has opposed in principle a policy of restraint in the use of Commonwealth powers, whether of external affairs or corporations or any other.  When the legislation giving effect to the Offshore Constitutional Settlement was being debated in the Parliament, the official Labor view was that in government they would repeal the legislation.  In fact they have never done so, and have continued this major scheme of cooperative federalism for eleven years without any significant change.

As I have said, the Labor government, seen from the perspective of its total legislative programme over some eleven years, has not made much use of the external affairs power although that may now be changing.  There are nevertheless a number of political restraints which would apply to a Labor Government seeking to make full use of the power.  There is still strong State sentiment in Australia.  The Labor Party is, too, strongly based on State organisations and frequently enjoys government at the State level.  I cannot see a Federal Labor government pursuing a policy of deliberately using the external affairs power to the hilt in order to destroy the federal system.  Even if a Federal Labor government embarked upon such a policy, I am certain that the political objections and difficulties would convince it to desist.  Even if I am wrong in this assessment, the government would still have to get its legislation through the Senate and I am sure that that would be a very difficult process.

Political solutions are, of course, never black and white.  Constitutional purists would no doubt prefer a change of attitude in the High Court or a successful referendum which introduced a definite limit on the external affairs power.  Neither of these solutions, however, can be said to be certain and predictable.  A constitutional amendment may turn out to have some ambiguities which qualify or even defeat what its drafters intended.  The High Court may, of course, again change its interpretation or attitude to the power.  Although, therefore, the political solution may be blurred from time to time, it is in my opinion more likely to last as a satisfactory basis for handling this problem than either of the other two solutions.

It is important to note that the current problems with the Federal use of the external affairs power have arisen mainly in relation to issues concerning human rights and the environment.  I have already noted that in Sir John Latham's list of subjects dealt with by treaties up to 1936, neither of these issues was involved.  Interestingly, "labour matters" were, although no problem seems to have arisen until the recent Industrial Relations Reform Act.  I have pointed out that the Civil Aviation Conventions or the Australian sovereignty over the continental shelf or the war crimes legislation in 1988 have not led to the sort of Federal-State controversies which treaties about human rights and environment have caused.  It may well be that in a temperate climate of renewed co-operative federalism, an agreement could be reached whereby human rights treaties could be implemented by the Federal Parliament.  When all is said and done, there is likely to be general agreement about the objects of such treaties.  Similarly, it may well be possible to reach agreement with the States whereby those environmental issues which clearly do have an international significance -- such as pollution of the sea and air, the escape of nuclear particles, major climatic change and such like -- could be implemented by the Commonwealth, and matters which are clearly within the States -- such matters as the Franklin Dam and forestry control -- would be dealt with by them.

There are two positive initiatives on the table which would assist a solution to the problem.  Both can be implemented by Parliament and do not need a constitutional change.  I refer to the proposed Treaties Council, and the need for parliamentary ratification of treaties.  Their drawback is that -- with 920 treaties already applying to Australia -- the horse has bolted.  But not all these treaties have been given legislative effect as part of Australian law, and there is obvious scope for co-operative arrangements about their implementation.

The great art of operating a sophisticated federal system is in constant consultation and frequent if not exhaustive meetings of people at all levels of government.  This impressed me in the way the German Federation seemed to be working when I made a short study of it many years ago.  Australia has already developed a sophisticated system of Federal-State consultations which have led to many co-operative arrangements.  It is not always necessary for the Commonwealth and all States and Territories to agree on a particular arrangement.  Some, like the Loan Council, may be made to which all are parties;  others may be made between States with or without the Commonwealth, such as the Snowy Mountain Scheme.  There seems to me to be every reason for optimism about improving this method of government in Australia.

AMENDING THE CONSTITUTION

I now come to the third solution to the problem, which is a constitutional amendment to the power.  This is the most difficult solution to formulate and the most doubtful of success.  I have already mentioned a number of proposed amendments, including my own.  All have their difficulties and disadvantages, but the overwhelming difficulty with the referendum path is to have it accepted by the Australian people.  Despite the controversy about the Tasmanian dam case and the proposed legislation to decriminalise homosexual conduct by consenting adults in Tasmania, I very much doubt that the Australian electorate as a whole is much disturbed about this issue at the present moment.  That, of course, might change if a Federal government embarked upon a more extensive use of the power.  Even if a Federal government was persuaded to go ahead with such a referendum, therefore, I am satisfied that it would not succeed.  The short answer to the referendum solution is that a Labor government would never entertain it, while a Liberal government would be most unlikely to proceed with such a proposal unless it was likely to have bipartisan support.  I feel quite sure that the chosen solution by a Liberal government would be the one of cooperative federalism.  That is not to deny that the States lobby within the Liberal party would not bring a lot of pressure to bear on a new Liberal government to seek a referendum about the matter.  I just think it is most unlikely that a Liberal government with so many other important policies to implement would succumb to such pressure.

Another difficulty with the referendum road is that of achieving a satisfactory agreement about the precise details of the amendment.  I have already mentioned the experience in failing to get support for the proposal at the Brisbane Constitutional Convention when the delegates of the Bjelke-Petersen government would not support it even though their own proposal had been lost.  I fully admit that the proposal has its problems, and it was strongly criticised by the Constitutional Commission as likely to prove ineffective for its purpose.  This indicates the other difficulty with the referendum proposal:  even if one could be formulated and popularly supported it may well turn out to be a lemon.  For all these reasons, therefore, I dismiss this route as a viable solution to the problem.

CONCLUSION

The external affairs power could be used to destroy the nature of the federal system in Australia, but there is no indication that the Federal Government has deliberately set out to do so.  The Commonwealth has not used it to anything like the same extent as its financial powers in changing the nature of the Federal Constitution.  However, the steady expansion of Commonwealth influence by the use of the power would over time severely alter the federal system.  The potential of the power remains as a serious threat and it should be modified to accord with the federal principle of the Constitution.  Neither a change in approach by the High Court nor an amendment of the power by a constitutional referendum are likely solutions.  The use of the power could and should be modified by political convention.  A policy of cooperative federalism has worked and could quite easily be revived.

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ENDNOTES

1.  That is, the power to undertake executive action, identified in s.61 of the Constitution and embodied in the existence of the Federal Government.

2.  R v. Burgess;  Ex parte Henry (1936) 55 Commonwealth Law Reports, 608.

3.  New South Wales v. Commonwealth (1975) 135 Commonwealth Law Reports 337.

4.  Koowarta v. Bjelke-Petersen (1982) 153 Commonwealth Law Reports 168.

5.  Commonwealth v. Tasmania (1983) 158 Commonwealth Law Reports 1.

6.  Queensland Electricity Commission v. Commonwealth (1985) 159 Commonwealth Law Reports 192.

7.  Richardson v. Forestry Commission of Tasmania (1988) 77 Australian Law Reports 237.

8.  Queensland v. Commonwealth (1989) 167 Commonwealth Law Reports 232.

9.  Australian Constitutional Convention, Proceedings, Adelaide, 1983, volume 1, page 322.

10.  Final Report of the Constitutional Commission, Canberra, AGPS, 1988, para 10.497, page 740.

11.  This means that the Federal Government is prevented from legislating on the areas of government covered by those powers.

12.  Final Report. .., op. cit., para 10.536, page 747.

13.  For the proposals of Dr Finnis and Professor Crommelin, see Final Report ..., op. cit., paras 10.511-14, pages 743-744.

14.  Known as the immunity of instrumentalities and the reserved powers of the States.

15.  The Chief Justice has recently alluded to the role of community attitudes in helping form the High Court's decisions.  Cf his article, "Changing the Law in a Changing Society", Australian Law Journal, volume 67, 1993, page 568.  It is not clear, however, what procedures might be used to ascertain such attitudes.

16.  Bank of New South Wales v. Commonwealth (1948) 76 Commonwealth Law Reports 1.