External Affairs Power

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  • Topic: High Court of Australia, Australia, Constitution of Australia
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  • Published : November 1, 2012
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Week 9 – External Affairs Power
1. Categories of External Affairs
External affairs is a purposive head of power. we look first at the interpretation of the commonwealth head of power. this one says external affair in s51 (29). Kinds of areas that come within the scope of s 51 (29) are; 4 main types of external affairs power; it is a broad concept. First; laws dealing with foreign relations with our relationships with other countries, Second; we can have acts that deal with things occurring geographically outside Australia, those could be external affairs, it is expanding, the Polyucich decision dealing with whether the war crimes legislation that dealt with war criminals particularly those in ww2 was war crimes legislation allowing those people to be punished sometime later, the validity of the war crimes act being tested there and aprt of the grounds in which it was found to be valid legislation was that it dealt with matters external geographically outside of Australia things that happened in Europe during ww2 were covered here and that was a valid application of this legislation helding that ww2 war criminals could be punished under that legislation not withstanding they could be punished in Australia from something that they did in Europe, the Xyz decision deals again with legislation dealing with child sex tourism where pedophiles will go overseas on certain tours and be engaged in underage sex overseas, can they be punished in Australia for that? Also valid legislation on this ground dealing with a subject matter that is geographically outside Australia but that we can not deal with this within Australia regardless of the fact that the crimes have taken place outside Australia. There are always arguments that if we’re allowing legislation to deal with acts or events that have occurred outside Australia but that we aren’t going to punish those that there should be some Australian connection with what is going on outside, the cases above, confirm that we don’t even have to have a connection requirement, so that area of the external affairs power is extremely broad, treaties are main focus of the external affairs power, but this one about geographically externality to Australia, Third; the application as a universal jurisdiction which comes from international law, to deal with pirates, doesn’t matter what country you are from, you can punish that pirate. Example if there is a universal jurisidcition to punish individuals for war crimes then there’s certain rules and concepts that apply to that and certain punishments etc, an act made within Australia can not go into different areas of punishing those, or setting different rules for how certain people are to be trialed or punished, the internal domestic legislation hat purportably exercises a universal jurisdiction must conform to the international content of that universal jurisdiction, Fourt; conformity in context of treaties part of external affairs. Foreign relations, subject matter geographically external to Australia, universal jurisdication and treaties.

2. Ratification and Implementation of Treaties
How treaties function ; first up though we as Australia joined an international treaty also we might see things as conventions or international agreements, what happens is that our executive arm of government joins the treaty, they sign the treaty in their executive capacity and that is called Ratification. So that point, Australia has ratified the treaty. For instance Australia has ratified the kooyato protocol happily, however that does not mean that that treaty now applies as a matter of law within Australia or domestically within Australia. Ratification is the international signing of that treaty but in order for that treaty to take effect in Australia it does need to be implemented by domestic legislation within Australia and it will be the commonwealth parliament that passes that legislation, we are looking for commonwealth acts that implement the...
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