The external affairs power, international declarations and treaties
- The Commonwealth legislated regarding airplanes that only flew within the borders of one state, because the Imperial Crown had ratified the Paris Convention for the Regulation of Aerial Navigation 1919. In R v Burgess, the High Court decided that a treaty makes the subject matter of the agreement an external affair, as long as the treaty is a bona fides one, on an issue of proper international character.
- The Queensland Government refused to consent to a pastoral lease for the Aboriginal Land Fund Commission because Government policy opposed the acquisition of large areas of land in the state by Aborigines. Koowarta, one of the Indigenous people affected, challenged the Government on the basis of the Commonwealth’s Racial Discrimination Act 1975, passed in support of the Convention on the Elimination of All Forms of Racial Discrimination 1965. Queensland challenged the validity of the Act. The High Court decided that the Act was a valid law, but the majority was split. Three justices held that the external affairs power extended to implementing a legitimate treaty, but the final justice in the majority held that the subject matter must be ‘international in character’ even without the treaty.
- The Commonwealth legislated to prevent Tasmania damming a state river to produce hydroelectricity, on the basis that it would destroy cultural and environmental heritage. The Commonwealth had ratified the Convention for the Protection of the World Cultural and Natural Heritage 1972. The High Court decided that the Commonwealth law was valid, because a treaty makes the subject matter of the agreement an external affair.