Section 51(xxix) of the Australian Constitution

Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs".

In recent years, most attention has focused on the use of the power to pass legislation giving effect within Australia to its obligations under international treaties and conventions. In some cases, as with human rights or environmental protection, the activities regulated by tready-implementing legislation have not been international in nature but rather located solely within Australia or even solely within a particular State.

In Australia, developments in international law have no direct effect for domestic purposes unless a deliberate law-making act by the proper law-making authority has "transformed" the international rule into a domestic rule. Nevertheless, international law is useful as an aid to interpretation where a statute has been enacted to give domestic effect to a treaty or convention. It has been taken into account in developing common law, and more controversially, the High Court of Australia has also had recourse to international norms in the scrutiny of federal administrative decision-making.

External affairs

Relations with other countries

The term "external affairs" was used in section 51(xxix) rather than "foreign affairs" to make it clear that relations with the United Kingdom and other parts of the British Empire were intended to be included. When the Australian Constitution was created in 1901, the United Kingdom and its possessions were not conceived of as "foreign" to Australia.

Chief Justice Latham said in "R v Sharkey" (1949) that "external affairs" was not confined to the "preservation of friendly relations with other Dominions", but extended to relations with "all countries outside Australia". Justice Brennan in "Koowarta v Bjelke-Petersen" (1982) extended this to relations with other "international persons", especially the United Nations and its various specialised agencies.

The judges in "Seas and Submerged Lands Case" (1975) differed as to whether the "external affairs" power entitled the Commonwealth to assert its sovereignty over Australia's territorial sea, though a majority held that it did. The underlying reason for this was that the idea of national rights with respect to the "continental shelf" had emerged since 1945 distinctly as a product of international relations and international law.

Matters external to Australia

According to Chief Justice Barwick in "Seas and Submerged Lands Case", the external affairs power extends to anything "which in its nature is external to" Australia, or according to Justice Mason "to matters or things geographically situated outside Australia". These suggestions were reinforced in later cases, and finally assumed decisive importance in "Polyukhovich v Commonwealth (War Crimes Act Case)" (1991). In this case, all judges other than Justice Brennan held that s 51(xxix) contained a sufficient grant of power to support a law to identify and prosecute "war crimes" committed in Europe during World War II. Chief Justice Mason, and justices Deane, Dawson and McHugh held that this conclusion was sufficiently based on the fact that the geographical location in which the relevant acts were alleged to have been done was physically external to Australia.