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Published online by Cambridge University Press: 24 January 2025
The recent High Court decision of XYZ v Commonwealth (‘XYZ’) has strengthened the aura of uncertainty surrounding the concept of ‘international concern’ and its role in widening the application of s 51(xxix) of the Commonwealth Constitution. This article considers the XYZ decision in light of past judicial exegesis and addresses what may lie ahead for this aspect of the external affairs power.
‘International concern’ has, for some years, hovered as a possible basis for the subject matter of legislation to attract the Commonwealth external affairs power, alongside other grounds such as the implementation of an international convention or recommendation, geographical externality, relations with other countries or customary international law. The head of power relies upon such grounds to colour a piece of Commonwealth legislation with the hue of ‘external affairs'. This ‘colouring’ therefore enables a subject matter to be within the Commonwealth Parliament's legislative competence.
The author is indebted to Dr Peter Johnston for his invaluable recommendations on an early draft of this paper.
1 Transcript of Proceedings, Thomas v Mowbray (High Court of Australia, 21 February 2007).
2 (2006) 227 ALR 495.
3 The offences had been included in the Crimes Act 1914 (Cth) following amendments made by the Crimes (Child Sex Tourism) Amendment Act 1994 (Cth).
4 Section 50BA(1) ‘A person must not, while outside Australia, engage in sexual intercourse with a person who is under 16'.
5 Section 50BC targeted offences committed outside Australia relating to acts of indecency involving a person under 16 or engaging in sexual intercourse in the presence of a person under 16.
6 See Twomey, Anne, ‘Geographical Externality and Extraterritoriality: XYZ v Commonwealth’ (2006) 17 Public Law Review 253, 256.Google Scholar
7 Opened for signature 20 November 1989, 1577 UNTS 44 (entered into force 2 September 1990).
8 Opened for signature 25 May 2000, 2171 UNTS 247 (entered into force 12 February 2002).
9 XYZ (2006) 227 ALR 495, 513 [63] (Kirby J); see also 556 [214] (Callinan & Heydon JJ).
10 Ibid 511 [53] (Gummow, Hayne and Crennan JJ).
11 Ibid 502 [18] (Gleeson CJ).
12 Ibid 502-3 [18]–[19].
13 Ibid 527 [120].
14 Ibid 529 [124].
15 Ibid.
16 (1983) 158 CLR 1 ('Tasmanian Dam Case’).
17 (1991) 172 CLR 501 (‘Polyukhovich’).
18 XYZ (2006) 227 ALR 495, 511 [52]–[53].
19 Ibid 557-6 [217].
20 (2002) 120 FCR 584.
21 XYZ (2006) 227 ALR 495, 557 [218].
22 Ibid.
23 Ibid 558 [219].
24 Ibid 558-9 [219]–[220].
25 Ibid 558.
26 Ibid 559 [221].
27 Ibid.
28 (1951) 83 CLR 1.
29 XYZ (2006) 227 ALR 495, 559 [222].
30 Ibid 560 [225].
31 Ibid 561 [226] (Callinan and Heydon JJ).
32 See generally Rothwell, Donald, ‘The High Court and the External Affairs Power: a Consideration of its Outer and Inner Limits’ (1993) 15 Adelaide Law Review 209Google Scholar; See also Donald Rothwell, ‘International Law and Legislative Power', in Brian Opeskin and Donald Rothwell (eds), International Law and Australian Federalism (1997) 104, 118–20.
33 XYZ (2006) 227 ALR 495, 557 [217].
34 Westel Willoughby, The Constitutional Law of the United States (1910) cited in XYZ (2006) 227 ALR 495, 510-11 [51]. Their Honours also cite an alternative view that the phrase might not have arisen until a 1929 speech given by Charles Evan Hughes: 510 [51].
35 (1936) 55 CLR 608, 640.
36 (1982) 153 CLR 168 (‘Koowarta’).
37 Ibid 217.
38 Ibid 216–19. Stephen J's reasons for upholding the RDA (one of these being on the basis of ‘international concern’) resulted in his alignment with the majority of Mason, Murphy & Brennan JJ in accepting the constitutional validity of the legislation. Stephen J, however, took a narrower approach in not accepting the existence of an international convention as alone sufficient to attract the external affairs power. See XYZ (2006) 227 ALR 495, 556-7 [217] (Callinan and Heydon JJ).
39 Koowarta (1982) 153 CLR 168, 234.
40 Ibid 231.
41 Ibid 242.
42 Ibid 207.
43 (1991) 172 CLR 501.
44 Ibid 561.
45 Ibid 561–2.
46 Ibid 657–8 (Toohey J agreeing).
47 (1983) 158 CLR 1, 131 (Mason J), 171–2, 174 (Murphy J), 258–9 (Deane J), 220 (Brennan J); cf 194 (Wilson J), 101–2 (Gibbs CJ), with Gibbs CJ requiring the topic to be seen ‘as a proper subject for international action’ of which the environment did not qualify when it was not ‘such a burning international issue'.
48 Ibid 171.
49 Ibid.
50 Ibid 220.
51 Ibid 259.
52 Ibid.
53 XYZ (2006) 227 ALR 495, 560 [224] (Callinan and Heydon JJ).
54 Tasmanian Dam Case (1983) 159 CLR 1, 131–2; see XYZ (2006) 227 ALR 495, 560 [224] (Callinan and Heydon JJ); see also Leslie Zines, The High Court and the Constitution (3rd ed, 1997) 294 where Zines interpreted Mason J's comment as referring to the case where the topic of ‘international concern’ had, by virtue of a Convention, been ‘negotiated to a conclusion'.
55 Rothwell, ‘The High Court and the External Affairs Power: a Consideration of its Outer and Inner Limits', above n 32, 229; See also Rothwell, ‘International Law and Legislative Power', above n 32, 104, 119–20.
56 (1983) 159 CLR 1, 131–2.
57 (1988) 164 CLR 261, 325 (‘Richardson’).
58 Ibid.
59 Ibid.
61 Ibid 322–3, 326–7.
62 (1996) 187 CLR 416, 570 ('Industrial Relations Act Case’).
63 Polyukhovich (1991) 172 CLR 501, 561–2.
64 Richardson (1988) 164 CLR 266, 571.
65 Ibid.
66 Ibid.
67 See Sarah Joseph and Melissa Castan, Federal Constitutional Law – A Contemporary View (2nd ed, 2006) 127.
68 XYZ (2006) 227 ALR 495, 560 [225] (Callinan and Heydon JJ).
69 XYZ (2006) 227 ALR 495, 529 [125] (Kirby J); see also 559 [221] (Callinan and Heydon JJ).
70 Ibid 530 [127](Kirby J).
71 Ibid 529 [125].
72 Ibid 530 [127].
73 Polyukhovich (1991) 172 CLR 501, 561–2.
74 XYZ (2006) 227 ALR 495, 502 [17] (Gleeson CJ).
75 Polyukhovich (1991) 172 CLR 501, 561.
76 Ibid 561–2.
77 See Tasmanian Dam Case (1983) 158 CLR 1,171 where Murphy J indicated that legislation said to be valid by virtue of s51(xxix) should ‘be stated in terms of what is sufficient, even if categories overlap'. See also Brennan J in Polyukhovich (1991) 172 CLR 501, 561.
78 Of interest on this note is the dissenting view recently taken by McHugh J in Austin v Commonwealth (2003) 215 CLR 185, [224] where his Honour was reluctant to see the two Melbourne Corporation limbs collapsed into one on the basis that, although such a change may be of no consequence, ‘[i]f there is a difference…it may lead to unforeseen problems in an area that is vague and difficult to apply. If there are no differences, no advantage is to be gained by jettisoning the formulation'.
79 Joseph and Castan, above n 67,127.
80 Tasmanian Dam Case (1983) 158 CLR 1,102 (Gibbs CJ).
81 (1949) 79 CLR 121 (‘Sharkey’).
82 (1985) 159 CLR 351 (‘Kirmani’).
83 Koowarta (1982) 153 CLR 168,258 (Brennan J); Tasmanian Dam Case (1983) 158 CLR 1,171 (Murphy J); XYZ (2006) 227 ALR 495, [134] (Kirby J).
84 Tasmanian Dam Case (1983) 158 CLR 1,171, where Murphy J applied the ‘international concern’ label to a hypothetical fear within scientific circles that something needed to be done internationally.
85 (1982) 153 CLR 168, 217.
86 See XYZ (2006) 227 ALR 495, 530-531 [129]–[132] (Kirby J).
87 See for example Koowarta (1982) 153 CLR 168, 217 (Stephen J); Tasmanian Dam Case (1983) 158 CLR 1,102 (Gibbs CJ), 194 (Wilson J), 220 (Brennan J).
88 Zines, above n 54, 292–293; see also Sharkey (1949) 79 CLR 121, 136-7 (Latham CJ).
89 Sharkey (1949) 79 CLR 121.
90 Vasiljkovic v Commonwealth (2006) 228 ALR 447.
91 Kirmani (1985) 159 CLR 351.
92 However, see Kirby J in XYZ (2006) 227 ALR 495, 532 [138] where his Honour takes a very broad approach in referring to the ‘subject-matter’ of the relevant provisions as being ‘one relevant to the external relations of Australia with the international organisations concerned'.
93 (1991) 172 CLR 501, 561–2.
94 See Industrial Relations Act Case (1996) 187 CLR 416,571 where Dawson J considered that Brennan J's approach diverged from other expositions of ‘international concern'.
95 Polyukhovich (1991) 172 CLR 501, 561.
96 Ibid 561–2.
97 Ibid 561.
98 There is judicial support for matters within customary international law themselves falling within the scope of s 51(xxix) of the Commonwealth Constitution. See Tasmanian Dam Case (1983) 159 CLR 1, 258 (Deane J); Polyukhovich (1991) 172 CLR 501, 558 (Brennan J), 657 (Toohey J); Industrial Relations Act Case (1996) 187 CLR 416, 545 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
99 (1991) 172 CLR 501, 561–2. On the facts, Brennan J concluded that the evidence was ‘insufficient…to show that the apprehension and trial of such war criminals before courts of countries other than those in which the crimes were committed were ever matters of international concern'.
100 Ivan Shearer, Starke's International Law (11th ed, 1994) 33–34; North Sea Continental Shelf (Judgment) [1969] ICJ Rep 44,[77]; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v the United States of America),(Merits)(Judgment) [1986] ICJ Rep 108-109, (‘Nicaragua Case’) [207]. See also Stephen J in Koowarta (1982) 153 CLR 168, 220 where his Honour was of the view that ‘non-discrimination on the grounds of race, is now part of customary international law'.
101 Although as recognised in Nicaragua Case (Merits)(Judgment) [1986] ICJ Rep 98, [186], completely flawless evidence of practice is not essential; see also Michael Akehurst, ‘Custom as a Source of International Law’ in Martti Koskenniemi (ed), Sources of International Law (2000) 251, 264, 266.
102 Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment) [1985] ICJ Rep 31-32, [29–30].
103 Akehurst, above n 101, 251; Rebecca Wallace, International Law (5th ed, 2005) 15.
104 Shearer, above n 100, 36. See also D'Amato, Anthony, ‘Trashing Customary International Law’ (1987) 81 American Journal of International Law 101CrossRefGoogle Scholar and Gillian Trigg, International Law – Contemporary Principles and Practices (2006) 45 who refers to customary international law as often ‘proving unpredictable and variable’ and as being ‘ill-suited to resolv[ing] contemporary international legal problems’ in the face of ‘multilateral treaties'. As to the need for greater clarity see G.M Danilenko, Law-Making in the International Community (1993) 128.
105 Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) (Judgment) ICJ Rep 1974, [12].
106 Cf ‘a rule de lege ferenda'; Shearer, above n 100, 36.
107 See especially XYZ (2006) 227 ALR 495, 558 [219] (Callinan and Heydon JJ).
108 Ibid 503 [19] where Gleeson CJ thought it dubious that airing at an international form would suffice to render something of ‘international concern'; see also 558 [219] (Callinan and Heydon JJ).
109 Rothwell, ‘The High Court and the External Affairs Power: a Consideration of its Outer and Inner Limits', above n 32, 229–30.
110 Ibid; see also Sawer, Geoffrey, ‘The External Affairs Power’ (1984) 14 Federal Law Review 199.CrossRefGoogle Scholar