MLL 323 – CONSTITUTIONAL LAW

TOPIC 4 – COMMONWEALTH LEGISLATIVE POWERS

Question 1

Assume that at 10.00am on 1 April 2015 a Report is released by the Federal

Minister for the Environment which concludes that a significant number of
Australian animals are currently endangered. Koalas have seen their habitat
decimated by logging and timber companies and by urban development. The
Australian Koala Foundation reports that there may be as few as 40,000 Koalas
left in the wild. Koalas primarily survive on leaves which grow on eucalyptus
trees.

Assume that there is an international treaty that concerns threatened animal

species, called the Convention for the Conservation of Endangered Species.
Article 1 of the treaty states that “Signatories to this treaty shall take all
reasonable steps to ensure that animal species identified as endangered are
protected by the Signatory. The obligation also extends to protection of the
species’ natural environment”. Also assume that Australia has recently added
Koalas to a UN-sanctioned conservation list that specialises in recording rare
and threatened fauna. The List is administered under the auspices of UNESCO.

The Minister seeks to rely on s 51(xxix) to protect the natural habitat of Koalas.
The Minister states, at a press conference, that tackling declining Koala
numbers would make Australia a good “international citizen”. He notes in the
Report that addressing the environmental damage caused by loss of Koala
habitat would increase Koala numbers by 10% and would assist Australia in
meeting its commitment to animal conservation under the treaty.

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At 4.00pm the same day the Minister for the Environment meets the Danish
Ambassador in Canberra. The Ambassador hands the Minister a petition signed
by 10,000 Danes urging the Australian Government to take steps to protect
wallabies from harmful acts. Wallabies are not currently considered endangered
by the Australian Government.

On 30 May 2015 the Commonwealth Parliament enacts the Environment Act

2015 (Cth). The Act contains the following sections:

1. No person in Australia may cut down a eucalyptus tree under any

circumstance, unless prior consent has been given by the Minister for
the Environment.
2. Any person that breaches s 1 is liable to a civil penalty of $50,000.
3. Harming a Wallaby by any means is an offence punishable by penal
servitude for two years.
4. Mistreatment of Wallabies in zoos outside Australia is an offence
punishable by penal servitude for two years.

Advise a would-be challenger on grounds of challenge to this Act.

As we discussed in our lectures, the external affairs power appears to have

the following four aspects:

1. Geographic externality – the Cth may legislate on any

thing/matter/event/transaction/person etc beyond Australia’s
constitutional boundary which is the low water mark (Seas and
Submerged Lands case). In terms of the relevant connection between
the subject matter of a Cth law that seeks to operate extra-

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 territorially and Australia the HC has confirmed that that is a
matter/judgment of the Parliament not the Courts (Polyukovich).

2. Relations with other countries – the subject matter of this aspect of

the power is what we might traditionally call “international or
foreign affairs” – it includes things like diplomatic privileges,
extradition etc – but the HC has confirmed that it also covers
unfriendly international relations (so would for eg. support legislation
that imposed trade sanctions on Iran/Russia/North Korea) and the
HC in Thomas v Mowbray held that it would cover the subject matter
of terrorism. It also extends to Australia’s relationship with
international organisations/NGO’s such as the UN, WTO, World
Bank etc.

3. Treaty Implementation – is now, arguably, the most important aspect

of the external affairs. The framework for analysis is as follows:

 C/W HAS POWER TO LEGISLATIVELY IMPLEMENT ANY TREATY OBLIGATION

(WIDELY DEFINED/CONSIDERED) IRRESPECTIVE OF SUBJECT MATTER (TAS
DAMS CASE 1983)

 BUT THE LAW MUST SUBSTANTIALLY CONFORM TO THE TREATY – IN OTHER

WORDS, THE LAW MUST BE A REASONABLY APPROPRIATE AND ADAPTED
WAY OF IMPLEMENTING THE TREATY (IE. THERE MUST BE A REASONABLE
PROPORTIONALITY BETWEEN THE LEGISLATIVE MEASURES USED TO
IMPLEMENT THE TREATY OBLIGATION). THE TREATY MUST OUTLINE WITH
“SUFFICIENT SPECIFICITY” THE ACTION A NATION MUST TAKE BUT THE
FACT THAT A LAW DOES NOT ENACT ALL THE TREATY MEASURES WON’T
INVALIDATE THE LAW BUT IT MAY IF THE “DEFICIENCY IS SO SUBSTANTIAL”.
(TAS DAMS CASE 1983)

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 4. In the absence of treaty obligation, the subject matter is nevertheless
a “matter of international concern”. In Tas Dams (1983) Brennan J,
Deane J and Murphy J all seemed to endorse this as a free-standing
aspect of the external affairs power. It was said that a subject matter
was one “international concern” if it had the capacity to/was capable
of “affecting Australia’s external relations”. On the possible/likely
scope of this aspect of the external affairs power see further Hanks
pp401-403.

This question requires characterisation analysis for the Environment Act

2015 (Cth) and specifically each of the four impugned provisions.

Sections 1 and 2:
These rely primarily on the treaty implementation aspect of the power (see
above) – the subject matter of the treaty (endangered species) is fine and it
contains relevant obligations re: species and their natural environment. So
it’s fine (and consistent with the treaty obligation) to prohibit the cutting
down a eucalyptus tree without ministerial consent. But clearly enough the
issue is whether the sections “go too far” in 1. Extending the prohibition to
“under any circumstance” and 2. Making the civil penalty $50000. What is
important is to undertake the reasonably appropriate and
adapted/proportionality analysis detailed above. Based on Tas Dams there
is an argument that section 1 goes too far – it may need to be limited to
those areas identified where koalas are (likely to be) living in eucalyptus
trees – a blanket prohibition like section 1 is not likely to be proportionate
in the relevant sense. On the other hand, and maybe the stronger
argument, is that the Cth may quite reasonably argue that as koalas (on the
facts) are endangered and risk extinction if their habitat and food source is

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not adequately protected then there is a real need to have such a strong
(near blanket) rule prohibiting the cutting down of eucalyptus trees.

In the alternative, one might argue that the 4 th aspect of the power detailed
above – the subject matter is nevertheless one of “international concern” as
they’re on the UNESCO rare and threatened fauna list so may have affect
on Australia’s external relations – which might be supported by Australia’s
view that protecting them makes us a “good international citizen”; or
relatedly as UNESCO is an international legal person that the second –
foreign relations - aspect might also provide support for section 1.

In terms of section 2, if s 1 does not implement the treaty (or find support
in either/or the second and fourth aspects of the external affairs power)
then it too is invalid. But if s 1 is nevertheless supported by the treaty
aspect of the power (which is likely) and/or a subject matter of
“international concern” then it might be argued that s2 (the civil penalty) is
supported by the treaty aspect of the power as power. Relevantly, that it is
reasonably appropriate and adapted measure to impose a penalty which
may provides a genuine deterrent to those who may, for example,
contemplate the cutting down of eucalyptus trees for commercial gain as so
endanger the habitat of koalas.

Section 3
For this section to be valid requires an argument that either (or both) the
2nd (relations with other countries) or 4 th (matter of international concern)
aspects of the power supplies the necessary legislative power.

It might be argued that ordinarily that the protection of an animal which is

not endangered would not be a subject matter which has the capacity to

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affect with other nations. But on these facts that argument might be made
due to the meeting with the Danish ambassador and the petition which he
gives to the Environment Minister. Relevantly, that the protection of
wallabies by Australia became a subject matter of international concern as
failure to do so may adversely affect our relationship with the Danish
Government. On the other hand, and probably the stronger argument, is
that the facts do not disclose that it is the foreign policy of the Danish
Government itself (as opposed to 10,000 of its citizens) to pressure the
Australian government to protect wallabies. Those facts simply state that
the former provided to the latter a petition which suggests that a cohort of
its citizens is concerned that Australia take steps to protect its wallaby
population. That being so, it is difficult to make the argument on these facts
that unless Australia took legislative action to protect wallabies that it
would adversely impact its relationship with the Danish Government.
Section 3 would not, then, be supported by the “international relations”
aspect of the external affairs power.

Section 4
Would be supported by the geographic externality of the power. The fact
that there is only a tenuous connection between the subject matter of s 4
and Australia will not imperil its validity for the reason stated above.

Question 2

If the referendum proposed by the Albanese Government to change the

Australian Constitution is successful, will this amend section 51(xxvi) – the
race power – as well?

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No – the referendum proposed is to incorporate a new section into the
Australian Constitution which will establish an Indigenous Voice to
Parliament. That is, an advisory body to make representations to
Parliament and the Executive Government on matters relating to
Aboriginal and Torres Strait Islander peoples.

Notwithstanding earlier proposals to repeal the race power in its current

form by the Expert Panel in 2012 and the Joint Select Committee on
Constitutional Recognition of Aboriginal and Torres Strait Islander
Peoples in 2015, it will not be part of the referendum proposed by the
Albanese Government to be held in 2023. The view was taken at the First
Nations Constitutional Convention in 2017 that the top constitutional
reform priorities were the incorporation of a Voice to Parliament and the
establishment of a ‘Makarrata Commission’ to co-ordinate a process of
‘Treaty’ between governments and Aboriginal and Torres Strait Islander
Peoples. Only the first of these priorities is being addressed in the
referendum proposed by the Albanese Government. In addition, it was
recognised that important Commonwealth statutes which benefit or protect
Aboriginal and Torres Strait Islander law and culture eg. Native Title Act
1993 (Cth) are supported by s 51(xxvi). To repeal the race power would,
then, likely require a new head of Commonwealth legislative power be
incorporated into the Australian Constitution to secure the validity of laws
like the Native Title Act 1993 (Cth).