Lecture Notes on Section 5129 - External Affairs Power

Introduction

• Presenter: Renato Costa from Aussie Law
• Topic: External affairs power under Section 5129 of the Australian Constitution
• Mention of previous content on the topic, including the Tasmania Dam case

Overview of Section 5129

• Section 5129: Considered initially to be narrower in scope
• Compared to Section 5120 (corporations power)

Nature of the Power

• Purposive Aspect: Involves the implementation of international treaties
  • High Court uses proportionality test instead of sufficient connection test
• Initially linked to international representation, defense, immigration, naturalization, etc.
• Described as an independent and plenary power by Chief Justice Bawek

Categories of External Affairs Power

1. External Representation: Representation by accredited agents
2. Conduct of Business and Promotion: Interests outside Australia
3. Extradition: Of fugitive offenders

Current Components

• Extraterritorial Power: Legislate on matters outside Australia
• Legislative Power: Relationships with other nations (e.g., extradition)
• Implementation of International Treaties

Constitutional Ambiguity

• Vague wording led to a "constitutional battleground"
• Growth in legislative power to implement international treaties
• Increase in the number and content of international treaties

Debate and Controversy

• Debate on the scope related to implementation of treaties
• Question whether the Commonwealth can legislate on any treaty-related matter

Key Cases

• R. N. Burgess (1936): Power to implement treaties independently of subject matter
• Guata and Jell Peterson (1982): Wider interpretation of external affairs power
  • Majority (4-3) adopted a broader view
  • Justices Mason, Murphy, and Brennan emphasized international concern
• Tasmania Dam Case: Supported wider interpretation
  • High Court allowed broad use of Section 5129
• Paul Yukovic (1991): Justice Dean emphasized broad, literal interpretation

Limits and Restrictions

• Cannot evade other constitutional prohibitions (Sections 92, 116)
• Bona Fide Requirement: Parliament must act in good faith
  • Hard to establish bad faith
• Conformance to Treaties: Must substantively conform to the international treaty

Conclusion

• Summary of the wide and evolving interpretations of Section 5129
• Restrictions that exist on the use of external affairs power
• Encouragement to engage with related content and further educational resources
• Ending remarks and engagement prompts (likes and subscriptions)