International Concern

Has Stephen J’s ‘international concern’ test from Koowarta v Bjelke – Petersen[1] been effectively rejected following the decision of XYZ v Commonwealth[2]? What practical role, if any, could the test play in future cases?

By Paul McKay (87/100 – High Distinction)

Abstract

During the 1980’s some High Court judges suggested that the external affairs power[3] includes a power to legislate on matters of ‘international concern’. This paper will trace the development of the ‘international concern’ doctrine. The paper will show that the doctrine was briefly elevated to a principle in Koowarta,[4] however this principle was restated by subsequent decisions, and that no High Court has decided a case on this basis alone. This paper will discuss the difficulties facing a court attempting to apply the test and conclude that the test may still have a practical role in Australia, and has not been effectively rejected.

Koowarta v Bjelke – Petersen

The facts were that Koowarta applied for Federal funding to buy a Crown pastoral lease in Queensland. The Queensland Minister for Lands refused to transfer the land on the basis that it was contrary to State Government policy to grant consent to large Aboriginal land claims. Koowarta challenged this decision on the basis that it was unlawful under the Racial Discrimination Act.[5] The State of Queensland argued that the mere existence of the Convention was not an external affair. It was also argued that extension of the external affairs power to authorise Federal law applying to State Government decisions might undermine the Federal balance.

The minority judges were concerned about the destructive effect this would have on the sovereignty of the states, and this occupied their judgements.[6] Mason, Murphy,[7] and Brennan JJ upheld the law, and its application to the States. They confirmed the acceptance of an international treaty obligation and implementations of that obligation were external affairs

Bibliography: 1. Articles Lewis, David, ‘The external affairs power and child sex tourism offences’, Australian Government Solicitor Litigation Notes, (No 14, 29 November 2006) p 10 -13 Blackshield, Tony, and Williams, George, Australian Constitutional Law and Theory (4th ed, 2006) Hanks, Peter, Constitutional Law in Australia (2nd ed, 1996) Harris, Bede, Essential Constitutional Law (1st ed, 2000) Keyzer, Patrick, Constitutional Law, (2nd ed, 2006) 2. Case Law Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1 Commonwealth v Tasmania (Tasmania Dam Case) (1983) 158 CLR 1 Koowarta v Bjelke – Petersen (1982) 153 CLR 168 Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 Richardson v Forestry Commission (1998) 164 CLR 261 Soulitopoulos v La Trobe University Liberal Club (2002) 120 FCR 584 Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 XYZ v Commonwealth (2006) 227 ALR 495 3. Legislation [1] Koowarta v Bjelke – Petersen (1982) 153 CLR 168,217 (‘Koowarta’) (Stephen J). [4] Koowarta (1982) 153 CLR 168. [6] Koowarta (1982) 153 CLR 168, 198 – 200 (Gibbs CJ, Wilson and Aickin JJ). [11] Koowarta (1982) 153 CLR 168. [13] Koowarta (1982) 153 CLR 168. [14] Tony Blackshield and George Williams, Australian Constitutional Law (4th ed, 2006) 912. Both are Professors of Law at the University of New South Wales. [15] Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmania Dam Case). [16] Koowarta (1982) 153 CLR 168. [17] Tasmania Dam Case (1983) 158 CLR 1,125 (Mason JJ), 192 (Murphy JJ), 260 (Brennan and Deane JJ). [19] Hanks, Peter, Constitutional Law in Australia (2nd ed, 1996) 430. [21] Koowarta (1982) 153 CLR 168. [22] Tasmania Dam Case (1983) 158 CLR 1. [27] (1988) 164 CLR 261 (Mason CJ, Brennan, Dawson, Toohey and Wilson JJ). [28] (1983) 158 CLR 1. [30] (1996) 187 CLR 416 (Industrial Relations Act Case). [32] (1983) 158 CLR 1. [33] (1991) 172 CLR 501, 561 (War Crimes Act Case). [35] (1982) 153 CLR 168, 217 (Stephen J). [36] Soulitopoulos v La Trobe University Liberal Club (2002) 120 FCR 584, pursuant to the Disability Discrimination Act 1992 (Cth). [38] Patrick Keyzer, Constitutional Law, (2nd ed, 2006) 178. Keyzer is an Associate Professor at the Faculty of Law, University of Technology, Sydney. [39] (1983) 158 CLR 1. [40] (1996) 187 CLR 416. [46] (1983) 158 CLR 1. [48] Soulitopoulos v La Trobe University Liberal Club (2002) 120 FCR 584. [49] James Faulkner, ‘XYZ v Commonwealth – A paper for the 2007 UNSW Constitutional Law Conference’ (2007) 3. [50] Tasmania Dam Case (1983) 158 CLR 1, 220 (Brennan J), 260 (Deane J), 131-2 (Mason J), 171 (Murphy J). [53] Koowarta (1982) 153 CLR 168, 217 (Stephen J); Tasmania Dam Case (1983) 158 CLR 1, 55 (Gibbs CJ, Dawson and Wilson JJ). [56] Australian Communist Party v Commonwealth (1951) 83 CLR 1. [66] Koowarta (1982) 153 CLR 168, (Gibbs CJ, Aickin and Wilson JJ); Tasmania Dam Case (1983) 158 CLR 1, 101 (Gibbs CJ, Dawson Wilson JJ); XYZ [2006] HCA 25, 219 (Callinan and Heydon JJ).