The External Affairs Power

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This topic is within Federal Constitutional Law.


Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014) pp.896-908.


Section 51 (xxix) confers upon the Commonwealth Parliament the power to legislate with respect to external affairs. This is known as the external affairs head of power. At the time of federation, Australia had strong legal ties to Britain which was not seen as a 'foreign power', and thus this power was probably conferred to legislate with regards to such relevant matters. However, the power has since changed as Australia became entirely independent.

Consequently, the scope of the external affairs power has been subject to extensive judicial and academic debate. The High Court has recognised three limbs of the head of power:

  1. Australia’s relations with other countries
  2. Matters external to Australia (geographically)
  3. Implementation of treaties (‘treaty limb’)

Relations with other countries

Any matter which relates to the relation of Australia with another country (including other dominions) falls directly within the external affairs head of power: R v Sharkey.

  • In addition, even domestic conduct can be validly regulated under the external affairs power if it is necessary to do so in order to maintain good relations with other countries: R v Sharkey.
  • Relations with 'international persons' including contemporary range of international organizations & especially the UN: Koowarta v Bjelke-Petersen.

This limb of the external affairs power was also discussed in NSW v Commonwealth ('Seas and submerged lands case')

  • Extended external affairs power to include territorial sea; Commnowealth Parliament can rely on the external affairs power to legislate with regards to the Australian continental shelf.
  • “It is international intercourse between nation states which is the substance of a nation's external affairs”
  • “"External affairs" will also include matters which are not consensual in character; conduct on the part of a nation, or of its nationals, which affects other nations and its relations with them are external affairs of that nation” – such as those which are in ‘violation of the international community".
  • “I would not think that it is essential to validity that such a law be restricted to the protection of good relations within the King's Dominions”.

And in Thomas v Mowbray:

Matters external to Australia

There is a view (following Mason J in the 'Seas and submerged lands case') that the extenal affairs power enables the Commonwealth Parliament to legislate with respect to anything which is merely geographically external to Australia.

This was discussed in Polyukhovich v Commonwealth:[1]

  • Facts: legislation was passed in order to punish Australian who committed war crimes in Europe during WWII. The defendant was accused of committing war crimes in the Ukraine during World War II. The question was whether the Commonwealth was allowed to legislate to matters occurring many years ago in a different territory which didn't really have any connection to Australia.
  • Held: ‘mere geographic externality’ is sufficient to validate the exercise of power.
    • Dissent (Brennan J): "the ‘affairs’ which are the subject matter of the power are ... the external affairs of Australia, not affairs which have nothing to do with Australia... There must be some nexus, not necessarily substantial, between Australia and the ‘external affairs’”.
    • Two of the majority judges agreed on the need for a nexus, however they found that a nexus indeed existed.
    • Still, the rule is that mere externality is enough.

And in Horta v Commonwealth:[2]

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Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

  1. (1991) 172 CLR 501.
  2. (1994) 181 CLR 183.
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