STS Tute One Notes final

There is no need for a nexus between australia and

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There is no need for a nexus between Australia and the subject matter of the law: Mason CJ, Deane, Dawson and McHugh in Polyukhovic ; affirmed by Gummow, Hayne and Crennan JJ in XYZ 3. Laws that implement treaties Initially, it was thought the external affairs power only supported the implementation of treaties which are international in character [Gibbs CJ, Aickin and Wilson JJ in Koowarta ] or which have as their subject matter international concern [Stephen J Koowarta ]. However, authority shows s 51(xxix) supports the implementation of obligations under any treaty that is entered into by the executive: Industrial Relations Case 6:1, affirmed in Tas Dams Case . Caveats on this stipulation: i. The treaty must be entered into in good faith Treaties must be bona fide or entered into in good faith by the executive: Mason, Murphy and Brennan JJ in Tas Dams However, difficult to show a treaty was entered into in ‘bad faith:’ Dawson J in Industrial Relations Case STS Constitutional Law [email protected] s 51(xxix) of the Commonwealth Constitution Provides ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: external affairs
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ii. The treaty must not be too vague or aspirational a. Is there a treaty obligation? For Gibbs CJ in Tas Dams it was essential there is an obligation ‘duty to ensure’ and ‘parties endeavour’ are sufficient to show an obligation: Deane J in Tas Dams b. Specificity of the treaty obligation Must not be ‘too aspirational’ or provide ‘too wide a choice’ – failing to specify a common course of actions fro the signatories: Industrial Relations Case Industrial Relations Case established treaties will not by supported by s 51(xxix) where they have: o Broad Objectives o Little Precise content o Widely divergent policies by parties iii. Characterisation The law must be ‘appropriate and adapted’ for the purpose of implementing the treaty. The implementation must conform to the requirements of the treaty: Industrial Relations Case . The means adapted to achieve the treaty must be ‘reasonably proportional’ to its original purpose. 4. Matters of International concern (uncertain) Suggested by the dicta of Stephen and Murphy JJ in Koowarta (and Kirby J in XYZ ) to be a separate and independent limb of the external affairs power. However, it has not yet formed the ratio of an authoritative HCA decision. Callinan and Heydon JJ in XYZ (dissenting) question the use of international concern However, Murphy J in Tas Dams Case , Mason J in Koowarta and Brennan J in Polyukovich favour the expansion of s 51(xxix). The current law stands matters of international concern will not be considered an independent limb. POLICY CONSIDERATIONS An expansive scope of s 51(xxxix) means that the Cth can obtain potentially unlimited powers, disrupting the federal balance: Gibbs CJ in Koowarta , Dawson J in Tas Dams . Cf Mason CJ in Koowarta – the disturbance in the federal balance is essential to Australia’s participation in world affairs. Similary Murphy J suggests without a broad interpretation of s 51(xxix) Australia will become ‘an international cripple.’ STS Constitutional Law [email protected]
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CORPORATIONS POWER: s 51 (xx)
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