Challenging the power of the Commonwealth

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Part A It is obvious, from the facts presented, that this question is primarily concerned with the implementation of the international convention in Australian domestic law, and the validity of the process of this implementation in accordance with section 51(xxix) of the Constitution, also known as the ‘external affairs power’. Before such a conclusion can be reached, it is firstly important to understand the limits and scope of this power and hence comprehend whether the Commonwealth has exceeded its legislative limits in ratifying such an international convention. The courts have taken the liberty, over the years, of setting certain restrictions on the ability to exercise this external affairs power, as well as defining its scope of application.

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The term ‘external affairs’ in generally used instead of ‘foreign affairs’ in order to distinguish between the affairs of the United Kingdom and other countries, as the Australian judiciary has generally not regarded the UK as a foreign entity, given that the Australian constitution is essentially an act of the UK Parliament.[1] Thus, the courts have sought to further define the notion of external affairs in order to avoid this ambiguity. In the same case, Latham CJ expressed that this notion was not confined to the “preservation of friendly relations with other Dominions”, but also extended to relations with “all countries outside Australia”.[2] In attempting to further define this notion Gibbs CJ, in the case of Koorwata v Bjelke-Petersen, expressed: It has never been doubted that the words of s51(xxix) are wide enough to empower the Parliament, in some circumstances at least, to pass a law which carries into effect within Australia the provisions of an international agreement to which Australia is a party.[3] In the Koorwata case, Gibbs CJ also went on to refer to the case of Roche v Kronheimer (1921) 29 CLR 329, where Higgins J considered the constitutional validity of regulations made by the Commonwealth legislature to implement an international convention in relation to aerial navigation. The court held, in this case, that such an act by the Commonwealth was valid in a constitutional sense; however they held that the regulations themselves did not actually give effect to the international convention, hence overturned the legislation. This also followed the ratio decidendi of Evatt and McTiernan JJ in the case of R v Burgess; Ex parte Henry, where it was held: But it is a consequence of the closer connection between the nations of the world (which has been partly brought about by the modern revolutions in communication) and of the recognition by the nations of a common interest in many matters affecting the social welfare of their peoples and of the necessity of co-operation among them in dealing with such matters, that it is no longer possible to assert that there is any subject matter which must necessarily be excluded from the list of possible subjects of international negotiation,

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