Can treaties expand Commonwealth power?

This video addresses viewer questions about treaties and the external affairs power in Australia - namely whether the Commonwealth, by entering into a treaty, can expand Commonwealth legislative power, and whether the Commonwealth could induce other countries to enter into treaties with it for the purpose of expanding its powers on domestic Australian matters.
In answering these questions, the video explores the history of the power to make treaties and implement them in Australia, from colonial times when treaty-making was solely a British power, to the modern day. It discusses relevant cases, including R v Burgess; ex parte Henry, the Koowarta case, the Tasmanian Dam case and Victoria v Commonwealth. It identifies the limits on the external affairs power, including the need for a bona fide treaty and the need for specific treaty obligations, rather than mere aspirations.

[@cesargodoy2920]

hey i was the viewer that asked! thanks for the video!

[@constitutionalclarion1901]

See, I do actually listen to my viewers (although I now have a very long list of potential videos!)

[@aPeaceOfAdam]

Wonderful question. And a great thanks to @constitutionalclarion1901 for providing such incredible information about our country and society.

[@cloaker416]

These are great resources, thank you for your time.

[@constitutionalclarion1901]

Thanks. Much appreciated.

[@j.w.osullivan429]

My students and I thank you for an excellent video.

[@constitutionalclarion1901]

That's terrific if you are using these for teaching purposes. Do pass on what is useful and what other topics it would be helpful to address.

[@frankbanks7549]

I've only just discovered your lectures. Wow, they are good. My only duties surrounding a Constitution are getting Sporting Clubs and associations to update theirs. I shall enjoy your back catalogue and recommend you to friends etc.

[@constitutionalclarion1901]

Terrific. Thanks for advertising - it's quite hard to build an audience of interested people.

[@morrisbarnes3356]

In the Tasmanian dams case, wouldn’t the clause about no treaty or international agreement to affect the free use of internal water ways have enough weight to silence the commonwealth argument without getting into any one these other arguments?

[@constitutionalclarion1901]

I'm not sure what you mean here. There is a section in the Constitution, s 100, which is concerned with Commonwealth laws abridging the rights of a State or its residents to the reasonable use of the waters of rivers for conservation or irrigation, but it wasn't really relevant to the Tasmanian Dams case.

[@williamsutter2152]

Great lecture. I've actually read a book you helped author some chapters of -- the Oxford Handbook of the Australian Constitution. It's great to see Australian constitutional content here on KZbin.

[@constitutionalclarion1901]

Glad you find it interesting.

[@shawnbenson7696]

Have you done a video about if Australia is one realm or if each state is its own realm.

[@constitutionalclarion1901]

No, I've not yet done a video on it (as it is rather obscure), but I have written quite a bit about it in my book on the Australia Acts and my book 'The Chameleon Crown'.

[@sheriff0017]

It seems to me that the kinds of evidence that could prove that a treaty was not bona fide are excluded under the Commonwealth's Evidence Act. Section 140(4)(a) and (f) are the relevant sections.

[@constitutionalclarion1901]

Yes, s 130(4) may be relevant to the extent that evidence concerns 'matters of state' - but then a public interest test would apply. I think the High Court was really issuing a warning to Executive Governments not to try it on, and that warning has been heeded, so the evidential problems have not arisen.

[@DDIzenhowa]

A wonderful lecture, Professor. Thank you so much. While my career took me into commercial law, I do retain a love for constitutional law and thoroughly enjoyed this one. One topic I would love to hear more about is a comparative analysis of sources of executive power in Australia vs (for example) the UK or the United States. Do any differences potentially arise as a result of a directly-elected executive with loosely defined powers deriving from a constitution and a popular mandate vs executive power of crown (through ministers empowered under statute). Seems to me this may become very topical as we await the US Supreme Court’s potential views on the scope of a president’s official role. Appreciate you have a ton of topics, but I’ll wait! Thanks in advance!

[@constitutionalclarion1901]

Yes, a really interesting topic, but I'm afraid my US Constitutional law knowledge is not great enough to do it justice. Hopefully some colleagues who do comparative US/Australian constitutional law might take it up.

[@petergale9200]

The way we are seeing the US Supreme court operate, eg external private supplementary funding of justices, and explicit views expressed by spouses, seems like an anathema to Australians. Whilst we may know the political leanings and views on the law of some justices, it is not obvious to the public for most. Could you speak about the informal input into the choosing High Court Justices. Is there an informal balance between states, backgrounds, and areas of expertise ( as a small no of cases would be constitutional.

[@neilgarrad4931]

Thanks

[@johnlonie7899]

Thank you. Yet another informative presentation. You spell these constitutional matters out quite clearly. Could you cover the Love case at some stage and the notion of implied powers being found by some High Court judges?

[@constitutionalclarion1901]

That's quite a tricky one - I'll have a think about it.

[@petergale9200]

May I humbly complement you on your wit throughout your episodes. How did the parliament / committee respond to your title “ Trick or Treaty “ ?

[@constitutionalclarion1901]

@@petergale9200 The committee initially looked a bit surprised, and then unanimously supported it. Curiously, that report has been very widely cited overseas. I suspect that having a catchy title helped.

[@learningmore8047]

Thanks for the video, however, more questions than answers, especially with regards the "co-existing sovereignties " of the numerous pre-colonial Aboriginal Nations whose sovereignty is neither ceded nor extinguished. As mentioned, the colonies were never sovereign, and neither are the States meaning state-based treaties are not treaties in the true sense of the word. This would leave only the Commonwealth as being sovereign enough to enter into treaties with the numerous continuing pre-colonial Aboriginal Nations. As Prof Craven stated in 2015 or 2016, State-based-treaties are not treaties, and simply another burden hung around the necks of the Aboriginal people like the old breast plates. As mentioned in the book by Profs. Williams and Davis, "Everything you need to know about the Voice",the constitutional experts unanimously agreed that the continuing sovereignty of those Aboriginal Nations is not affected by the referendum indicating that their continuing sovereignty is foreign to the Commonwealth. A very difficult situation for the Commonwealth, how will it handle this?????

[@constitutionalclarion1901]

The problem here is that people are using the word 'sovereignty' and 'treaty' to mean different things. Claims to Indigenous 'sovereignty' are quite different to being an internationally recognised sovereign state. Equally, the sort of 'treaty' to be negotiated between Indigenous groups and federal or State governments is really just an agreement. It is unfortunate that we cause so much confusion by using the same words to mean different things. We definitely need more precise language to articulate these different meanings.

[@divarachelenvy]

amazing complexity.

[@constitutionalclarion1901]

Quite so. It is hard to know how far treaties go to support legislation. The Commonwealth tends to take a rather aspirational view, while the courts are not always consistent on the matter.

[@kendawg_mcawesome]

Fascinating. Thanks so much. I don't know if I could ever bring myself to use that Commonwealth pronunciation of bona fide though. Is that obligatory in the legal profession? Sorry if that seems a silly question, but it's sincere.

[@constitutionalclarion1901]

Yes, that's how it is commonly pronounced. But there are no laws about such things. As far as I understand it, we have no idea about how Latin was originally pronounced, so all pronunciation is dubious.

[@kendawg_mcawesome]

@@constitutionalclarion1901 Awesome, thanks so much for getting back to me.

[@BungoPls]

Thanks Prof Twomey. What is your view on how the external affairs power would interact with UN Security Council Resolutions? Would they enliven s 51(xxix)? And if so, would the power be subject to the same requirements? A similar question could be asked of the implementation of ICJ orders too

[@constitutionalclarion1901]

The issue of whether it extends to the implementation of recommendations or resolutions was raised in the Pape case. I didn't include it in the video because of length, and also because the discussion wasn't decisive. The Pape case concerned the payment of money to taxpayers to help stimulate the economy during the Global Financial Crisis. One claim in the case was that this was implementing international resolutions and recommendations about the GFC. The four judges in the majority did not deal with the issue, because they found a different ground to support the law. But the other three found that international recommendations and resolutions are not enough to support a law, unless they are interpreting or giving effect to treaty obligations. But as this was only the view of three judges - not a majority - we don't know for sure.

[@BungoPls]

Could a hypothetical binding UN Security Council Resolution be distinguished from the “recommendations” in Pape? That case dealt with some very limp OECD and IMF resolutions that did not have binding force (in addition to the issues identified re: specificity). And the more plausible case might be a binding ICJ order to, for instance, take certain actions that would involve the Cth legislating to prevent an Australian state from doing something (necessitating an intrusion into exclusive state competence).

[@mitchhoneysett7674]

These aboriginal councils that the states have, that only aboriginals can vote in. Does those contradict section 25. That was what I got from one of your videos. I have another question does I think section 5 para 16, does that affect any regilous legislation e. g. who scholls can employ. Can Sharia law be practiced and implemented in Australia. Can this be legislated to prevent it. As we could not do this in a Islamic country.

[@tigertiger1699]

We don’t know how our own nations work….🙏

[@karenm7449]

I am very concerned about the proposed WHO Pandemic Treaty, the terms of which have not been explained and consequently, rumours abound about risking the removal of our national sovereignty/ bypassing our laws. I'm politically homeless and I feel that any Treaty that has the capacity to affect each and every citizen and resident needs to go to a Referendum with the terms and conditions fully explained before signing on.

[@davidunwin7868]

Karen by name, Karen by nature 😅

[@sammitchell7909]

@@davidunwin7868 Tell me you are loser without telling me you are a loser.

[@constitutionalclarion1901]

While treaties bind Australia at international law, they have no domestic application to individuals, unless Parliament passes a law that implements them. The impact of a treaty on Australians is therefore really a matter for elected representatives to decide. A parliamentary committee (the Joint Standing Committee on Treaties) also scrutinises the benefits and detriments of proposed treaties, before ratification. So there are avenues for you to express your concerns to Members of Parliament, including the parliamentary committee, if you wish.

[@Robert-xs2mv]

So a treaty with the aboriginal people is only possible if an aboriginal nation is created?

[@constitutionalclarion1901]

No - as I said to another commentator, people use the words 'sovereignty' and 'treaty' to mean quite different things. A 'treaty' within Australia between an Indigenous group and the Commonwealth or a State is a form of agreement - not a treaty in the international sense.

[@TTTzzzz]

Commonwealth power?