ISSUE CASE Matters geographically external to the Cth – War crimes Polyukhovich v Cth Polyukhovich was charged with war crimes in the Ukraine and contested the validity of an Aus Act which provided that war crimes committed in Europe in WWII were punishable in Australia Held: the Act was a valid exercise of legislative power: ‘Regulating conduct which took place outside Australia… is properly characterised as a law with respect to external affairs (Mason CJ) ‘any law which can properly be characterised as a law with respect to any matter, thing or person occurring or situated outside Australia is a law with respect to 'External affairs'’ (Deane J) s 51(xxix) provides “the authority for Commonwealth legislation extending to circumstances which are geographically external to Australia, without reference to the other legislative powers conferred by s 51” (Dawson J) – doesn’t need additional head of power The term 'external affairs' “should be interpreted to include any matter, thing, even or relationship existing or arising or which might exist or arise outside Australia” (McHugh J) A law “is necessarily a law with respect to external affairs to the extent that it operates upon acts, matters and things external to Australia” (Gaudron J) Matters geographically external to the Cth – Sex tourism XYZ v The Commonwealth Crimes Act 1914 (Cth) prohibited Australians from engaging in sexual activity with children in other countries . Designed to stop child sex tourism by Australians XYZ was charged for an alleged sex offence in Thailand, and challenged the validity of the legislation under s 51(xxix). Held: affirmed the broad construction in Vic v Cth (and Polyukhovich). Conduct involved places, persons, matters, or things outside of Australia and was therefore within s 51(xxix). Matters geographically external to the Cth – Treaties Tasmanian Dam Case Mason, Murphy, Brennan Deane JJ confirmed the broad view: all treaty obligations can be incorporated into law under xxix: Murphy J, who probably had the broadest view of xxix, said that a law with respect to xxix could also include ‘the implementation of ‘any recommendation or request of the United Nations Organization or subsidiary organizations such as the World Health Organization, The United Nations Education, Scientific and Cultural Organization, The Food and Agriculture Organization or the International Labour Organization.’
Matters geographically external to the Cth – Treaties Vic v Cth (IR Case) Did Federal Government's industrial relations legislation conform with international obligations and matters of international concern. Provisions which closely followed requirements of the treaty were valid As were equal remuneration provisions. However, unfair dismissal provisions, which were based on the criterion of 'harsh, unjust or unreasonable' dismissals, were beyond the scope of treaty obligations that dealt only with dismissals that were not 'valid'. Anti-discrimination provisions were valid, except those that dealt with mental disability, which was not in the treaty. Partial implementation of a treaty? “Deficiency in implementation of a supporting Convention is not necessarily fatal to the validity of a law; but a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention” Matters geographically external to the Cth – Treaties Koowarta Mason, Murphy Brennan JJ Broad view: the Cth had power to implement any treaty obligation, regardless of subject matter Mason J was concerned that a narrower view could fragment the decision making process and weaken Australia’s participation and standing in international matters Mason J was also critical of the narrow view because it relied on the fallacy that internal and external affairs were mutually exclusive categories Gibbs CJ, Aickin and Wilson JJ: Narrow view: the Cth can only implement treaties under xxix where the subject matter was international in character Gibbs CJ was concerned with the possibility that the Cth might be able to acquire unlimited legislative power, and that the distribution of powers/the federal balance would be ‘obliterated’ Stephen J resolved the 3:3 split when he found that the Cth could implement a treaty that related to a ‘matter of international concern’ The topic of racial discrimination was such a matter Matters geographically external to the Cth – Treaties The power is not confined to the subject matter of another head of power granted to the Cth: Racial Discrimination (Koowarta) Heritage listed areas (Tasmanian Dam Case) Employment conditions Vic v Cth (IR Case)