EXTERNAL AFFAIRS POWER The Commonwealth executive has an inherent power to ratify international treaties however a ratified treaty needs to be incorporated into domestic law to become enforceable.1 Section 52 (xxix) of the Constitution confers power on the Commonwealth to legislate with respect to “external affairs”. It has been established that the Commonwealth can implement treaty obligations under s51(xxix) regardless of subject matter, when related to a matter of “international concern”.2 The International Convention on the Prevention of Terrorism is a valid multilateral treaty and can be implemented into Australian domestic law. It has been indicated in a number of High Court decisions that the Commonwealth can only implement treaties entered into in good faith, not “merely as a means of conferring legislative power upon the Commonwealth”.3 Establishing that the treaty was not bona fide would be difficult to establish4 and unlikely to prove the legislation unconstitutional. The Tasmanian Dam case indicated that “the Commonwealth cannot use s51(xxix) to implement treaty provisions which impose no actual obligation on state parties”.5 Both Article 1 and Article 2 of the treaty impose actual obligation on the Commonwealth and the legislation could not be deemed unconstitutional on the “obligation” issue. This is irrelevant however, as Victoria v Commonwealth (the ILO case)6 overturned the notice of “obligation” and replaced it with a “specificity” criterion. The majority in the ILO case stated that “when a treaty is relied on under s51(xxix) to support a law, it is not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of an ideal. This case also highlights the importance of whether the treaty is reasonably specific as to what states are expected to do. In this case the treaty obligation is to ‘take appropriate measures with a view to preventing terrorist offences’. Preventing terrorist offences can arguably be achieved in a large number of ways and there is no specific domestic or international method. This treaty gives the Commonwealth a large amount of discretion as a specific regime is not given to guide them in implementing the treaty. It is obvious that the distinction between sufficient and insufficient specificity is difficult to ascertain. More recent case’s have helped to clear this distinction, especially Thomas v Mowbray (2007).7 According to the principles of this case, the phrase “take appropriate measures with a view to preventing terrorist offences and their negative effects” could parallel with the phrase used in the Thomas v Mowbray decision as a “phrase of almost limitless reach”.8 This case “noted the different paths taken by UN member nations to combat terrorism”9 and that on this ground the treaty could fail the specificity test. Another test used in assessing the validity of the external affairs power is the conformity principle. This principle arises with regard to the nature of the implementing legislation.10 The conformity principle prescribes that “legislation will not be authorised as an exercise of treaty implementations under s51(xxix) if it plainly undermines the object and purpose of the treaty”.11 The purpose of the treaty is to take effective measures to prevent terrorism. The legislation must be based around the purpose or object of the treaty and hence why it has been noted that the external affairs power has ‘a purposive aspect’.12 The legislation to request warrants for detention as well as the legislation monitoring suspicious financial activity could be seen as “reasonably capable of being considered appropriate and adapted to achieving the purpose or object of giving effect to the treaty”.13 In regards to Colony’s claim, it would be unlikely that he could deem either piece of legislation unconstitutional on the scope of the external affairs power. The Commonwealth has extensive scope under…
Legal research is the process of finding existing information that supports legal a legal premise and documenting the source. Properly conducting research can help an attorney with preparing documents which is the value of legal research. Legal materials are divided into primary and secondary. This includes textbooks, practice manual, and documents. When conducting legal research it is good to start out with the secondary source. Restatements of law are “to promote the clarification and simplification…
Legal essay – David Hicks and Bikes
The legal system has responded to the challenges created by contemporary issues we have studied in class recently such as David Hicks and Bikies in multiple ways and areas. There are 3 categories legal responses to organised motorcycle gangs fall into, these are; passing laws to prosecute individuals for the specific crime that they have committed, such as assault, drug offences or money laundering. The second being creating police task forces or police powers…
to perform or to refrain from performing some act
now or in the future. Generally, contract disputes
arise when there is a promise of future performance.
In contract law, intent is determined by what is called
the objective theory of contracts, The theory is that a party’s intention to enter into a legally binding agreement, or contract, is judged by outward, objective facts as interpreted by a reasonable person,
Implied Contract Requirements. For an implied
contract to arise, certain…
“Should Marijuana Be Legal?”
October 17, 2013
The debate for the legalization of marijuana is a touchy subject for some, but is becoming more and more prominent and open in today’s society as old fallacies are proved false, and new discoveries prove this substance to be beneficial. Abraham Lincoln once stated that “to control a man’s appetite by legislation makes a crime out of things that are not crimes…”…
Legal Essay Plan
Domestic and Legal Systems are highly effective at responding to an initiating change.
The act of examining existing laws and implementing changes in a legal system is called law reform, and is due to the changes within a society. It is the response to these changes and the implementing of that which is called into question in this essay. Legal systems will often have to reform the law, to keep it fair, just and relevant. Domestic Legal systems are effective at initiating…
LEGAL STUDIES ASSESSMENT
CONTEMPORARY HUMAN RIGHTS
Year 12- 2015
INTRODUCTIONWhat are human rights?
WHAT ARE HUMAN RIGHTS?
“Human rights are entitlements that are
fundamental. They are things to which every
human being is entitled just because they are
All people have a claim to human rights as they
are fundamental in ensuring peace and security
for all peoples. They cannot be ‘given’ by
governments, instead they are an inherited set
of rights which automatically…
and generalizing nature of theory. For example in the arts philosophy, the term "theoretical" may be used to describe ideas and empirical phenomena which are not easily measurable. And by extension of the philosophical meaning, "theoria" is also a word still used in theological contexts. As already in Aristotle's definitions, theory is very often contrasted to "practice" (from Greek praxis, πρᾶξις) a Greek term for "doing", which is opposed to theory because pure theory involves no doing apart from…
meaning of crime
Crime is an act or omission committed against the community at large that is punishable by the state. Crimes are made as a result of moral and ethical judgments by a society. They also vary from state to state e.g. in Australia it is legal for sex outside of marriage and the consumption of alcohol whilst in other countries it’s not.
A crime is any conduct which violates the rights of the community at large. The crime will be punishable by a recognised criminal sanction upon proof of…
desirable job suddenly becomes something not so desirable.
The employment at will doctrine has been in place for many years. It is a legal rule that developed in the “nineteenth century giving employers unfettered power to dismiss their employees at will for good cause for no cause or even for cause morally wrong without being thereby guilty of a legal wrong”(Halbert & Ingulli, pg.49). To some, it may seem a bit unfair. To others it may have positive sides as well. The following discussion…