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Comment on the External Affairs Power

Published online by Cambridge University Press:  24 January 2025

Dennis Rose
Dennis Rose*
Affiliation:
Attorney-General’s Department, Canberra
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Extract

I want to mention one implication of the views of the minorities in Koowarta and the Franklin Dam case.

Suppose that a State had agreed to the Commonwealth incurring an international obligation (or had even requested it to do so) on a matter such as racial discrimination or the natural heritage. Suppose that, after Australia had incurred the obligation, the State refused to enact legislation needed to fulfil Australia’s international obligation. Or suppose that the State repealed legislation already enacted for that purpose. If the Commonwealth lacked power to implement the international obligation, such State action would result in Australia being left “high and dry” in breach of that obligation.

This possibility of a “backsliding” State, leaving the nation in breach of treaties entered into with State agreement, would be a totally unacceptable position. No doubt the High Court majority in the Franklin Dam case saw this implication of the States’ arguments. The majority’s wide view ofthe external affairs power was the only course available, by means of judicial interpretation, to prevent this from happening.

Type
Article Commentary
Information
Federal Law Review , Volume 14 , Issue 3 , March 1984 , pp. 216 - 218
Copyright
Copyright © 1984 The Australian National University

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Footnotes

The views expressed above are the author’s personal views: they are not necessarily those of any Commonwealth Minister, Department, or other officer.

References

1 Koowarta v Bjelke-Petersen (1982) 39 ALR 417.

2 Commonwealth v Tasmania (1983) 46 ALR 625.

3 See UNESCO Convention for the Protection of the World Cultural and Natural Heritage (hereinafter “the Convention”), Article 3.

4 39 ALR 417, 480.

5 Ibid, 473.

6 lbid, 480.

7 A-G for Canada v A-G for Ontario [1937] AC 326.

8 Lederman, W R, Continuing Canadian Constitutional Dilemmas (1981) 357Google Scholar; see also Hogg, PL, Constitutional Law of Canada (1977) 193.Google Scholar

9 Eg Koowarta (1982) 39 ALR 417, 463 per Mason J.