Section 5129 has one of those highly disputed legislative powers of the Commonwealth. Just like the corporations power of section 5120, the external affairs power of section 5129 was conceived primarily to be narrower in scope than what it is today. Hello everyone, my name is Renato Costa, this is Aussie Law, and today we will talk about the external affairs power.
of section 5129 of the Australian constitution. In another video, the one that we did about the Tasmania Dam case, we already referred to this power, but of course this still needs some further explanation, so that's why we're doing this video. Here I'll be giving you more background.
and more substantive information about section 5129 the external affairs power let me start by saying that this power the external affairs power is purposive or at least one aspect of this power is purposive so when dealing with this aspect the implementation of international treaties that we'll look at later on the high court would generally apply the proportionality test instead of the sufficient connection test we mentioned this in another video that you can watch by clicking on the top right corner. Further, and as I said before, the scope of this power was supposed to be narrower than what it is today. For Quicken-Garren, for example, this external affairs power related primarily with the representation of the Commonwealth in international affairs. It was just another constitutional provision that gave the Commonwealth certain powers about external matters, just like defense, immigration, naturalization and aliens heads of power.
However, as Chief Justice Bawek once said, we have to remember that the external affairs power is an independent power and a plenary power. The idea then was that the external affairs could be summarized into three broad categories. The external representation of the Commonwealth by accredited agents, the conduct of business and promotion of interests of the Commonwealth in outside countries, and the extradition of fugitive offenders from outside countries.
These components of the external affairs power can today be summarized as follows. The extraterritorial power, which means that the Commonwealth can legislate about matters that are physically outside of Australia. The legislative power concerning the relationship with other nations, like for example the case of extradition.
And the power to implement international treaties. However, the fact that the words used in that Constitutional provisions were so vague suggested that from the outset, as Crick and Garron put it, this would be a Constitutional battleground. And they were right.
As some scholars comment today, the content of the Commonwealth's undoubted legislative power to implement international treaties has inevitably grown. The scope of the external affairs power with respect to the implementation of treaties has grown as the number of and content of those treaties has expanded. Look, there's no doubt that the Commonwealth has the power to legislate about external matters, matters of international interest, or to implement international treaties.
But particularly in terms of the latter dimension of the external offense power, the negotiation and implementation of international treaties, There's a lot of debate and this is quite controversial. That's because there's a question whether the scope of the external affairs power in relation to the implementation of treaties can be used and accommodated in section 5129 independently of the content of the international treaty. That is, since international treaties can be about virtually any subject matter, does that mean that the Commonwealth can use its powers to legislate about anything related to those international treaties? To start answering that question, we should go back and look at a case called R.
N. Burgess from 1936, where the majority of the High Court decided about the implementation of a treaty that related to air navigation. The majority of the High Court, following the literal approach to interpreting the Constitution after the engineers case, decided that the external affairs power authorized the implementation of treaties independently of their subject matter. And this wide interpretation of the external affairs power was later on addressed again by the High Court in some other cases. One of them, for example, was a case decided in 1982 called Guata and Jell Peterson.
I'll never know if I'm pronouncing this correctly or not. In this case three of the justices in the majority, the four against three majority, decided to adopt a wider approach to interpreting the external affairs power. Justices Mason, Murphy and Brennan all said that the sheer existence of the treaty also determined the existence of a matter of international concern.
And that would bring with it the appropriate exercise of the external affairs power in section 5129. Another case was the Tasmanian Dem case. Of course, if you want more information about that, you know what to do. You just have to click on the card above and watch the video, or go to the description of this video and click on the link that is appearing there.
Also, since you are at it, why don't you like this video and subscribe to our channel. The decision in the Tasmanian Dem case showed how the High Court of Australia adopted this wider view to interpreting the provisions in Section 5129 and the external affairs power. It has been the position of the High Court that it really doesn't matter the content of the international treaty. This position was clearly defended by Justice Dean in Paul Yukovic, a decision of the High Court in 1991. His honor said about Section 5129 that the paragraph does not refer to Australia's external affairs nor does it limit the subject matter of the grant of power to external affairs which have some special connection with Australia. The word external means outside.
As a matter of language it carries no implication beyond that of location. The word affairs has a wide and indefinite meaning. It is appropriate to refer to relations, matters or things.
So this approach, which is a form of literalism that's coming out of Gingin's case, once more, and I hope you can see that, gives power and extends the power of the Commonwealth. If the Commonwealth can legislate about anything that is within an international treaty, independently of the content, then the Commonwealth can legislate about virtually anything at all. But wait!
Does this mean that there are no limits at all to the external affairs power? Not really. There are some restrictions. We have to remember that this treaty implementing aspect of the external affairs power cannot be used to evade some other prohibitions that are in the text of the constitution, like for example sections 92 or 116. Also, the High Court has already established some principled limitations related to the bona fide requirement. That is, Parliament has to act in good faith and therefore cannot enter into a treaty just to legislate about matters that would otherwise be within the jurisdiction of the States.
The problem with that is just that to establish bad faith is really hard. And further, there is yet another restriction decided for example in the Tasmanian Dam case. It says that the law created by Parliament has to conform substantively to the terms of the international treaty. So, only minor deviations from the treaty are allowed.
Well, I hope this was useful in helping you understand a bit more about the external affairs power in section 5129 of the Australian Constitution. Don't go away without first liking this video and subscribing to our channel. And I hope to see you soon. Until then, tchau!