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(xxix) external affairs (International treaties (Victoria v Cth…
(xxix) external affairs
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International treaties
Power to enter treaties lies with executive (s.61), but are not self-executing in Aus. Generally must be legislated by Parliament in order to have effect locally
Any legislation passed under s.51(xxix) must 'represent the fulfilment of the treaty obligations'. Anything beyond this is beyond the power.
'Everything must depend upon the terms of the convention & upon the rights & duties it confers & imposes' (R v Burgess ex parte Henry)
Some discretion as to the way in which conventions are implemented, so long as the implementation is not improper & are appropriate & effective (R v Poole ex parte Henry)
Treaty need not be regarding a matter relating to international concerns, so long as it is a bona fide international treaty it can be re any subject matter (Cth v Tasmania (Tas Dam Case))
Victoria v Cth (Industrial Relations Case) clarified a lot of aspects of international treaties arm of power
Matter of international concern: validity of the law depends on whether its purpose is to implement the treaty (i.e. not the topic of the treaty itself). Therefore, can be any subject matter, not one of international concern (confirmed Cth v Tas)
To be a law with respect to 'external affairs', law must be reasonably capable of being considered appropriate & adapted to implementing the treaty
International recommendations: external affairs power not limited to treaty obligations, but recommendations aren't binding so can only support legislation where appropriate to give effect to the related convention
Conformity: so long as law is reasonably able to be considered appropriate & adapted to implementing the treaty, it'll be valid. Where it goes out of proportion, may be invalid. Partial implementation of treaties isn't necessarily fatal, but may be held invalid where lack is so substantial as to not be implementing the convention.
Must be 'bona fide' treaty: a government can't enter a treaty for sole purpose of gaining access to some subject matter for legislation. (Koowarta v Bjelke-Petersen and Tas Dam Case)
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Geographical basis
'Any affair which in nature is external to continental Australia & Tasmania' (therefore, would include sea & land below it) (NSW v Cth)
'External' is a precise term & is used unqualified, so includes this geographically external to Australia, be it a matter, thing, event, person etc (Polyukhovich v Cth)
XYZ v Cth also confirmed this view, and placed all conduct involving places, persons, matters or things occurring outside Australia within this power. Power to be construed broadly.