Activity 8j

1. In 1983 (in his decision on the Tasmanian Dams Case) Justice Murphy said that the use of the external affairs power will be increasingly unexceptional or unextraordinary but will become “a regular way in which Australia will harmonise its internal order with the world order”. Justice Murphy noted that the Constitution recognises that most Australians are part of humanity as well as being residents of States as well as of the Commonwealth. The Constitution gives the Parliament the power to take Australia into the global world – “sharing its responsibilities as well as its cultural and natural heritage.”

In 1988 (in an essay for the Australian Law Journal) Anthony Mason wrote that Australia’s role in international affairs would become a “nightmare”if each of the States legislatively implemented our treaty obligations.

In 1995 (in a submission to an investigation into treaties and the external affairs power by the Senate Standing Committee on Legal and Constitutional Affairs) George Winterton, wrote that there were two sides to the assessment of any reform of the external affairs power. Firstly, the concerns of the States in regard to the virtually limitless range of matters available that might be considered to be external affairs, which has the “potential for destroying State autonomy and thereby reducing the federal system to a mere façade”. On the other hand, there is a national interest in Australia fully participating in international affairs – and it is therefore appropriate for the Commonwealth to be given this power. The national interest “requires a government able both to undertake international commitments and to ensure that they are carried out”.

2. Arguments in support of the broad interpretation of the external affairs power include:

• The broad reading given by the Court enables the Australian Constitution to endure over time and stay relevant to a changing society.
• The broad reading given by the High Court has allowed the Commonwealth to enact nationwide social change that benefits the people, and to make laws that are more efficient and streamlined.

Arguments against the broad interpretation of the external affairs power include:

• The current broad reading of the external affairs power is a progressive political act that ignores the intentions of the founders – if the Commonwealth was intended to have power over topics such as natural heritage and the rights of children, the founders would have included those items in the enumerated powers.
• A broad reading by the High Court changes the meaning of the Constitution in a way that is undemocratic: the people have rejected changes at referendum that have subsequently been implemented through a combination of Court interpretation and treaties, and the will of the elected parliament has been overridden.
• Broad readings of the external affairs power are often justified on the grounds that the interpretations are “implied” by the wording – this is intellectual dishonesty, because often the implied readings are achieving the opposite of what the founders wanted, or things they had expressly chosen to leave out.