Case: Polyukhovich v The Commonwealth [1991] HCA 32 ; (1991) 172 CLR 501
Outcome: considered
The scope of the external affairs power has been considered by the High Court in a number of recent decisions. Both parties referred extensively to the decisions in Polyukhovich v The Commonwealth [1991] HCA 32 ; (1991) 172 CLR 501 (' Polyukhovich ') and Victoria v The Commonwealth (Industrial Relations Case) [1995] HCA 45 ; (1995) 187 CLR 416 (' Victoria v The Commonwealth '). 30 In Polyukhovich , Dawson J said of the external affairs power (at 632): '[T]he power extends to places, persons, matters or things physically external to Australia. The word "affairs" is imprecise, but is wide enough to cover places, persons, matters or things. The word "external" is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase "external affairs".' The reasons for judgment of the other Justices were to similar effect: Mason CJ at 528-531; Deane J at 599-603; Gaudron J at 695-696; McHugh J at 712-714. 31 In Victoria v The Commonwealth, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said (at 485) (footnotes omitted): 'Of course the scope of the legislative power is not confined to the implementation of treaties. The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth . Dawson J expressed the doctrine in these terms: "[T]he power extends to places, persons, matters or things physically external to Australia. The word 'affairs' is imprecise, but is wide enough to cover places, persons, matters or things. The word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'." Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ; Deane J; Gaudron J; and McHugh J. They must now be taken as representing the view of the Court.' 33 Gleeson CJ referred to the plaintiff's argument to the effect that the external affairs power was limited to a power to make laws with respect to relations between Australia and other countries. He said that to accept that argument would involve overruling the decision in Polyukhovich . Gleeson CJ held that Polyukhovich had been correctly decided and he said (at [10]) (footnotes omitted): 'For this argument to succeed, it would be necessary for the Court to depart from the decision in Polyukhovich v The Commonwealth , and to decide that the construction placed upon s 51(xxix) by every member of the Court in that case was wrong. In my view, the Court, upon reconsideration, should hold that Polyukhovich was correctly decided insofar as the decision bears upon the question of construction that arises in this case. Insofar as the decision goes beyond that, and bears, for example, upon Ch III of the Constitution , it is not presently relevant and it is unnecessary and inappropriate to say anything further about it. There was a difference between the view of s 51(xxix) taken by Mason CJ, Deane J, Dawson J, Gaudron J and McHugh J, on the one hand, and the views of Brennan J and Toohey J on the other. That difference does not affect the point presently in issue. Polyukhovich held that the external affairs power covers, but is not limited to, the matter of Australia's relations with other countries. It also includes a power to make laws with respect to places, persons, matters or things outside the geographical limits of, that is, external to, Australia. That conclusion represents the current doctrine of the Court on the external affairs power, and should be maintained because it is correct.' 34 Gummow, Hayne and Crennan JJ said (at [30]) that the modern doctrine of the scope of the power was as expressed by Dawson J in Polyukhovich (at 632). 35 Kirby J identified what he considered to be a number of difficulties with the 'geographical externality principle' and therefore put it to one side. He decided the case by reference to whether the laws were laws with respect to a 'matter of international concern' [66]-[117]. 36 It is well established that the grant of legislative power with respect to external affairs, as with other heads of power, should be construed with all the generality that the words admit. 39 The statement by Dawson J in Polyukhovich refers, among other things, to persons outside the geographical limits of Australia. 40 Clearly, a person not ordinarily resident in Australia might come to Australia from time to time, but I do not think that that means the concept of not being ordinarily resident in Australia lacks an element of externality. To say that a person is not ordinarily resident in Australia means that ordinarily that person is outside the geographical limits of Australia. 41 It follows that one matter, namely, a person not ordinarily resident in Australia, is a matter geographically external to Australia and the other matter, namely, the acquisition of Australian urban land is a matter geographically internal to Australia. 42 The question which arises is whether s 21A(4) and s 4(6)(a) must relate only to matters external to the geographical limits of Australia in order to fall within the external affairs power. If so, this law would fail to meet that test because it only operates when conduct is carried out in Australia, namely, the acquisition of urban land in Australia. The applicant submitted that Polyukovich was authority for the proposition that to fall within the external affairs power a law must deal 'entirely' or 'wholly' with a place, person, matter or thing geographically external to Australia. She referred to the reasons for judgment of Dawson J (at 641) and Gaudron J (at 695). The law in Polyukovich did deal entirely or wholly with acts, matters and things geographically external to Australia and it was held to be within the external affairs power. Their Honours' observations are to be read in that context and they are not authority for the proposition that a law only falls within the external affairs power if it deals entirely or wholly with a place, person, matter or thing geographically external to Australia. 43 I do not think the mere fact that the law is only engaged if conduct occurs within Australia of itself disqualifies the law from being a law with respect to external affairs. There seems to be no reason to say that simply because the law also relates to conduct in Australia or produces a certain result or effect in Australia that it is not a law with respect to external affairs. I reject the applicant's submission that s 4(6)(a) is invalid because it does not deal entirely with places, persons, matters or things outside the geographical limits of Australia. 44 The applicant submits in the alternative that the relevant provisions are not a law with respect to external affairs because the element of geographical externality is insufficient and because the pith and substance of the relevant provisions is conduct in Australia. 45 The question raised by that submission is not an easy one. It requires a characterisation of the relevant provisions. In Polyukhovich , Deane J said (at 602): 'Whatever may have been the position before the emergence of Australia as a fully independent sovereign State, it should now be accepted that any law which can properly be characterized as a law with respect to any matter, thing or person occurring or situate outside Australia is a law with respect to "External affairs" for the purposes of s 51(xxix). In referring to " a law with respect to any matter ... occurring ... outside Australia" , I intend to include, among other things, what Jacobs J described (see above) as "any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth". As has been mentioned, that broad view of the scope of the power conforms with settled principles of constitutional construction.' 46 The relevant provisions only operate in relation to a class of persons who are geographically external to Australia. I think this can be said even though the actual criterion is that the person is not ordinarily resident in Australia. They are the only persons affected by the relevant provisions. The location of the class of persons affected by the relevant provisions is an important characteristic of them, albeit that another feature of them is conduct within Australia, that is to say, the acquisition of Australian urban land. In my opinion, for the purposes of determining whether the relevant provisions are a law with respect to external affairs, it is sufficient that the relevant provisions apply only to a class of persons geographically external to Australia. 47 In my opinion, the relevant provisions are a valid exercise of the external affairs power.