Correct interpretation

[Platypus]

I know this deals forum deals with the US constitution, but i'd like to raise one of the more interesting interpretations of the Australian constitution, which occured in 1983. The "Tasmanian Dams Case".

Section 51 of the Australian Constitution reads:

"Australian Constitution - Section 51 - Legislative powers of the Parliament
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:-

...

(xxix.) External Affairs:"

Basically, section 51 outlines the specific powers of the federal parliament. One of those 'heads of power' is external affairs. Now the background.

In the early 1980s, the state government planned to dam a section of the Franklin River which was subject to a world heritage listing. There was significant popular protest, in Tasmania and on the mainland, and the federal government opposed it. Anyway, it ended up in the High Court and it was ruled that 'external affairs' included international treaties.

This significantly increased the power of the federal government.

Was it correct?

[Emsworth]

In this case, Tasmania proposed the construction of a dam on the Franklin River. Soon thereafter, UNESCO (of which Australia is a member) declared that the river was a "world heritage site." Thereafter, the federal Parliament passed the World Heritage Properties Conservation Act 1983, which forbade the construction of the dam. The law was based on Parliament's power to "make laws for the peace, order, and good government of the Commonwealth with respect to ... External Affairs." In Commonwealth v. Tasmania, the High Court upheld the exercise of power 4-3.

It appears to me that the High Court's interpretation of the Constitution was excessively broad. It is true that the term "External Affairs" is very broad and vague. However, I would argue that the phrase properly extends only to matters of international character. As Justice Sir Ninian Stephen wrote in Koowarta v. Bjelke-Petersen, the power relates to "such of the public business of the national government as relates to other nations or other things or circumstances outside Australia."

The provision does not, however, grant the Commonwealth the power to regulate any matter simply because it is the subject of a treaty. If this were the case, the enumeration of powers would be of no effect at all. Australia could merely include any subject it desires in an international treaty, and thereby assume the power to regulate it. If the notion of limited powers is to mean anything at all, then such a broad interpretation of s. 51 (xxix) must be rejected.