Activity 8k

1. 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.
• A broad reading of the external affairs power actually keeps the Court out of political decisions – the argument of the minority, the narrow reading, asks the Court to decide on a case-by-case basis what it thinks is a matter of appropriate international concern. This is based on the idea that the Court should not trust the judgment of the government when it comes to entering treaties, and should instead substitute its own judgment of what treaties should be considered “international” and which should not.

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.
• The proportionality test asks the Court to use its own subjective judgment in a way that makes it political – if the federal parliament thinks that its legislation is an appropriate implementation of the treaty, the Court should accept its judgment.

Arguments in support of the balance between federal and state powers include:

• Because Australia is treated as one country on the international stage, and other nations do not recognise the sovereignty of each individual state to enter into its own international agreement, it is only appropriate that the Commonwealth be given this power.
• The current reading of the external affairs power does not allow the Commonwealth to legislate on all matters of international concern – the Commonwealth is still restricted by clear constitutional prohibitions, and there are a range of conditions regarding treaties that limit it.
• The Commonwealth consults with states prior to the ratification of, or withdrawal from, virtually every treaty, allowing them to contribute their point of view and influence the action Australia takes.

Arguments against the balance between federal and state powers include:

• The external affairs power has been interpreted to include, through its connection with treaties, matters that go far beyond matters that are truly external to Australia.
• It has been said by members of the Court on a number of occasions that the range of matters available to be considered ‘external affairs’ is virtually limitless – if this is the case, residual powers either cease to exist, or exist only on the whim of the Commonwealth to allow them.

Arguments in support of the power to enter into international agreements include:

• The Commonwealth undertakes a consultation process before almost every action in relation to treaties: ratifying new ones, agreeing to amendments, or withdrawing from existing ones – the treaty or amendment is tabled in parliament at least 15 days beforehand, and the Joint Standing Committee on Treaties then investigates and makes recommendations.
• The power to make treaty provisions binding in domestic law is spread across two arms of government: the executive and the legislature (the executive government has the power to enter into treaties, but only the parliament has the power to use section 51(xxix) to implement the terms of the treaty in legislation) – the judiciary then has the power to decide whether that legislation is an appropriate response to the agreement.

Arguments against the power to enter into international agreements include:

• The executive government has the power to enter into international agreements that, because of the interpretation of the High Court, have the ability to radically change the division of powers – this side-steps the role of the people at referendum.
• The executive government is given the power, in practice, to decide what the powers of the federal legislature will be – this is not one of its roles under the separation of powers.
• Changing the interpretation of the Court and removing the ability of ratified treaties to add to the list of federal powers would not necessarily reduce the scope of external affairs – the Court’s definition of section 51(xxix) includes all matters of sufficient international concern, regardless of whether or not they are covered by a treaty. If a treaty exists in the world, even if Australia has not ratified it, this might demonstrate the necessary level of international concern, and the topic might be an external affair anyway.

2. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the impact of international declarations and treaties on the interpretation of the external affairs power requires students to write about arguments in support and arguments against the impact that international declarations and treaties have on the interpretation of the external affairs power. Responses will vary according to the arguments selected.

3. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that international declarations and treaties have impacted on the interpretation of the external affairs power. In this case, ‘evaluating’ the impact ofinternational declarations and treaties on the interpretation of the external affairs power requires students to write about relevant strengths and weaknesses.

This question asks for an evaluation by feature – this means that students should point out strengths and weaknesses by feature. For example, in relation to the power to enter into international agreements, the Commonwealth undertakes a consultation process before almost every action in relation to treaties: ratifying new ones, agreeing to amendments, or withdrawing from existing ones. The treaty or amendment is tabled in parliament at least 15 days beforehand, and the Joint Standing Committee on Treaties then investigates and makes recommendations. However, the executive government has the power to enter into international agreements that, because of the interpretation of the High Court, have the ability to radically change the division of powers – this side-steps the role of the people at referendum. For example, a number of proposals have been put forward over the last fifty years to limit the scope of the external affairs power, and require a referendum for the kinds of changes made by the Tasmanian Dams Case or the Koowarta Case. These have all failed, and would themselves have required a successful referendum. Overall, while the High Court’s interpretation the external affairs power does have the ability to radically change the division of powers, the Commonwealth undertakes a consultation process before almost every action in relation to treaties: ratifying new ones, agreeing to amendments, or withdrawing from existing ones.