XYZ v The Commonwealth
[2006] HCA 25(Judgment by: Gleeson CJ.)
XYZ
v The Commonwealth
Judges:
Gleeson CJGummow
Hayne
Crennan JJ
Kirby
Callinan
Heydon
Judgment date: 17 November 2005
Judgment by:
Gleeson CJ.
[1] The issue in this case concerns the constitutional validity of legislation enacted by the Parliament which makes it a criminal offence, punishable by the law of Australia, for an Australian citizen or resident, while outside Australia, to engage in certain forms of sexual activity involving children. The Court was informed that legislation of that nature (aimed primarily at what is sometimes called "sex tourism") has been enacted by some 34 countries. The power relied upon to support the legislation is that conferred by s 51(xxix) of the Constitution, that is, the power to make laws for the peace, order, and good government of the Commonwealth with respect to external affairs.
[2] Sections 50BA and 50BC of the Crimes Act 1914 (Cth) respectively make it an offence for a person, while outside Australia, to engage in sexual intercourse with a person under 16, or to commit an act of indecency on a person under 16. By virtue of s 50AD, the first-mentioned "person" relevantly means a person who was, at the time of the offence, an Australian citizen or a resident of Australia.
[3] The plaintiff is an Australian citizen. He has been committed for trial in Victoria for offences against the above laws. The offences are said to have been committed in Thailand in 2001. The alleged victim is neither a citizen nor a resident of Australia. By a case stated, questions as to the validity of the laws were reserved for the decision of a Full Court. Those questions were answered at the conclusion of argument. The Court held that the legislation is valid, and said that reasons would be given at a future date.
[4] No issue of statutory construction arises. That the legislation has, or purports to have, extra-territorial effect is clear. In terms, it relates to conduct outside Australia, but is limited in its operation to the conduct of Australian citizens or residents. Within Australia, territorial legislative jurisdiction with respect to crimes involving sexual abuse of children is exercised by the State and Territory legislatures. The assertion of extra-territorial criminal jurisdiction is not, in itself, contrary to the principles of international law. As has already been noted, an exercise of extra-territorial jurisdiction in respect of this kind of offence has been undertaken by many other countries. The territorial principle of legislative jurisdiction over crime is not the exclusive source of competence recognised by international law. Of primary relevance to the present case is the nationality principle, which covers conduct abroad by citizens or residents of a state. Jurisdiction is also exercised by states under the passive nationality principle, under which foreigners are punished for conduct harmful to nationals of the legislating state, the principle which enables protection of the security of the state, and principles concerning the repression of certain kinds of crime [1] .
[5] The fact that international law does not regard criminal jurisdiction as limited to jurisdiction based upon the territorial principle is relevant to the nature of external affairs. It identifies a topic of potential concern to a national legislature. The relevance does not result from any limiting effect upon the construction of the Constitution. Section 51 is a grant of legislative power, and the fact that conceptions of state sovereignty, both at common law and in international law, embrace the existence of a power of the kind exercised by the legislation in question is of assistance in giving content to the constitutional idea of external affairs. The considerations that there are other bases of jurisdiction, that their boundaries are not entirely clear, that the practice of states in asserting extra-territorial jurisdiction varies, and that such assertions may give rise to difficulties in international relations are additional reasons for not giving the power a narrow and confined meaning. Although the present case is not concerned with legislation governing, or purporting to govern, the conduct of foreigners in foreign countries, there are well-known examples of assertions by states of legislative competence of that kind, extending to conduct of foreigners which is lawful where it occurred. Antitrust legislation of the United States of America is one such case. In cases of ambiguity, rules of construction may guide the interpretation of legislation so as to conform to international law [2] . In this Court, in Meyer Heine Pty Ltd v China Navigation Co Ltd [3] , early Commonwealth legislation against anti-competitive conduct was construed as applying only to conduct within Australia. Three aspects of that decision should be noted. First, the legislation was enacted in 1906, and amended in 1910, at a time when there was still "an uncertain shadow upon the competence of the Australian Parliament to pass an Act having extra-territorial operation" [4] . Secondly, there was in the language of the legislation itself a very clear indication that its operation was territorially confined. That was a decisive consideration in the reasoning of the majority. Thirdly, Taylor J said that the presumption of territoriality was a rule of interpretation only "and, if by a local statute otherwise within power, provision is made 'in contravention of generally acknowledged principles of international law' it is binding upon and must be enforced by the courts of this country" [5] . Anti-terrorist legislation provides another example of circumstances in which many states are concerned to legislate with respect to conduct occurring outside their territorial borders, and with respect to conduct of foreigners.
[6] Where a state legislates with respect to the conduct abroad of its citizens and residents, and exercises judicial power only upon their return, there is ordinarily no invasion of the domestic concerns of the place where the conduct occurred. Plainly, however, it may be otherwise when other jurisdictional principles are invoked in aid of extra-territorial legislative competence. Professor Brownlie has summarised the effect of international law as follows [6] :
Extra-territorial acts can only lawfully be the object of jurisdiction if certain general principles are observed:
- (i)
- that there should be a substantial and bona fide connection between the subject-matter and the source of the jurisdiction;
- (ii)
- that the principle of non-intervention in the domestic or territorial jurisdiction of other states should be observed;
- (iii)
- that a principle based on elements of accommodation, mutuality, and proportionality should be applied. Thus nationals resident abroad should not be constrained to violate the law of the place of residence.
[7] No doubt the provisions of s 50AD of the Crimes Act, confining (so far as is presently relevant) the operation of the legislation to the conduct of Australian citizens and residents, are explained in part by a desire on the part of the Parliament to conform to international expectations, and to confine the operation of extra-territorial legislation to a basis that is internationally accepted. As was noted earlier, we are not here concerned with a problem of construction of the Crimes Act. Legislation, including criminal legislation, is commonly expressed without territorial reference, and is construed and applied on the understanding "that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State" [7] . This legislation is expressed to apply to conduct outside Australia, but only where engaged in by persons over whom Australia, according to the comity of nations, has jurisdiction. Nor are we concerned with legislation which manifests a clear intention to reach beyond bounds that would be regarded as acceptable according to the comity of nations.
[8] The issue raised in the present case is whether a law which applies to conduct outside Australia by Australian citizens or residents is within the legislative competence of the Parliament as being a law for the peace, order, and good government of Australia with respect to external affairs. The resolution of the issue turns upon the construction of the Constitution and, in particular, the expression "external affairs". It is not argued that the formula "for the peace, order, and good government of the Commonwealth" imports any relevant limitation on legislative power [8] .
[9] The argument for the plaintiff is that the Parliament's power to make laws with respect to external affairs is, and is only, a power to make laws with respect to relations between Australia and other countries. Because, in 1901, those other countries included Great Britain and other parts of the British Empire, "external affairs" was regarded as a more appropriate expression than "foreign affairs". Great Britain was not then "foreign". The power, it is said, was conferred to allow the Commonwealth Parliament to enact legislation regulating "relations between Australia and other countries, including other countries within the Empire" [9] . This, in 1901, and for many years thereafter, was seen as "the substantial subject matter of external affairs" [10] . The corollary of the argument is that s 51(xxix) does not confer a general power to legislate extra-territorially.
[10] For this argument to succeed, it would be necessary for the Court to depart from the decision in Polyukhovich v The Commonwealth [11] , and to decide that the construction placed upon s 51(xxix) by every member of the Court in that case was wrong. In my view, the Court, upon reconsideration, should hold that Polyukhovich was correctly decided insofar as the decision bears upon the question of construction that arises in this case. Insofar as the decision goes beyond that, and bears, for example, upon Ch III of the Constitution, it is not presently relevant and it is unnecessary and inappropriate to say anything further about it. There was a difference between the view of s 51(xxix) taken by Mason CJ, Deane J, Dawson J, Gaudron J and McHugh J, on the one hand, and the views of Brennan J and Toohey J on the other. That difference does not affect the point presently in issue. Polyukhovich held that the external affairs power covers, but is not limited to, the matter of Australia's relations with other countries. It also includes a power to make laws with respect to places, persons, matters or things outside the geographical limits of, that is, external to, Australia [12] . That conclusion represents the current doctrine of the Court on the external affairs power, and should be maintained because it is correct.
[11] In Victoria v The Commonwealth ("the Payroll Tax Case") [13] Windeyer J, explaining the constitutional consequences of certain developments during the twentieth century, said:
The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in any strict legal sense; and certainly the Constitution did not make them so. They were self-governing colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former powers and gained no new powers. They became components of a federation, the Commonwealth of Australia. It became a nation. Its nationhood was in the course of time to be consolidated in war, by economic and commercial integration, by the unifying influence of federal law, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations.
[12] The development of Australia's nationhood, which included the shedding of inhibitions on its capacity to legislate extra-territorially, and the attainment and maturing of its international status as an independent state rather than a component part of the British Empire, inevitably had consequences for the practical content of the constitutional concept of external affairs. No clearer example of the consequences of that development could be given than one which touches a matter of history upon which the argument for the plaintiff relies. It is true that, in considering the matter of Australia's relations with Great Britain and the other parts of the Empire, Australians in the late nineteenth century would not have described those as "foreign" relations or affairs. Yet, 100 years later, four members of this Court [14] , in Sue v Hill [15] , held that the United Kingdom was a "foreign power" within the meaning of that expression in s 44 of the Constitution. Reference was made to statements by Windeyer J in Bonser v La Macchia [16] that the law had followed the facts, and that Australia had become "by international recognition ... competent to exercise rights that by the law of nations are appurtenant to, or attributes of, sovereignty" [17] . The developments in nationhood and international status that affected so profoundly Australia's relationship with the United Kingdom have also affected the nature of the external affairs that are now of potential legislative concern. The same developments have been recognised for their effect upon the practical content of the power to make laws with respect to naturalization and aliens. An example of such recognition is Nolan v Minister for Immigration and Ethnic Affairs [18] .
[13] The rights that, by the law of nations, are regarded as appurtenant to, or attributes of, sovereignty include the right to regulate, by legislation, the conduct outside Australia of Australian citizens or residents. That is not the full extent of the right, but it is sufficient for present purposes. If the argument for the plaintiff is correct, how is that right now to be exercised by, or on behalf of, Australia? This was the concern raised by Jacobs J in New South Wales v The Commonwealth ("the Seas and Submerged Lands Act Case") [19] . In that case counsel for Victoria put the same argument as has been put for the plaintiff in this case. The argument is reported as follows [20] : "A law is not within s 51(xxix) simply because it deals with or operates upon a thing which is outside Australia. The subject matter is restricted to things which are the subject of the relations between Australia and other countries. The word 'affairs' in para (xxix) is apt to describe relationships between governments." Jacobs J's response [21] to that argument is worth quoting in full, because of its influence on later decisions, especially Polyukhovich:
The words 'external affairs' must be given their ordinary meaning. It is true that the operation of the power may have been limited in 1900 by the concept that Australia, lacking sovereignty, could legislate only for its territory; but that limitation, if it existed, did not alter the meaning of the words. It is not a sufficient reason for reading down the meaning of these words that there are other provisions of the Constitution, eg s 51(xxx), which expressly confer power to legislate with extra-territorial effect or which, eg s 51(x), may place a particular limitation in favour of the States on the power to legislate extra-territorially.
The express power of the Australian Crown to make laws with respect to places outside, or matters or things done outside the boundaries of the Commonwealth is no more fettered by notions of extra-territoriality than is the power possessed by the British Crown. That power attached to the British Crown by virtue of the pre-eminence and excellence which it claimed and which, even though there be limitations imposed by the common law itself as well as by statute on its exercise by the Crown in Council, is wholly without limit when exercised by the Crown in Parliament. Hence sprang the sovereignty of the British Parliament at Westminster and it followed that no statute of that Parliament could be held invalid on any ground whatsoever, even if it invaded the rights of the Crown or of the subject under the common law, even if it operated extra-territorially and even if it violated international law.
Clearly the Crown in the Australian Executive Council and in the Australian Parliament has one bound which the British Parliament has not, for it cannot transgress the Constitution. But subject to that Constitution it in Council and in Parliament has that pre-eminence and excellence as a sovereign Crown which is possessed by the British Crown and Parliament. Exactly when it attained those qualities is a matter of the constitutional history of the British Commonwealth of Nations largely reflected in the Imperial Conferences following the Great War. Legal recognition came through the Statute of Westminster, 1931 and its later adoption by Australia. Now the Constitution is the only limitation. There is no gap in the constitutional framework. Every power right and authority of the British Crown is vested in and exercisable by the Crown in Australia subject only to the Constitution. The State legislatures do not have that sovereignty which the British legislature and now the Australian legislature possess. A State can only legislate in respect of persons acts matters and things which have a relevant territorial connexion with the State, a connexion not too remote to entitle the law to the description of a law for the peace welfare and good government of the State ... The words of s 51 of the Constitution do not import any similar territorial limitation and there now is none in the case of the Australian legislature. The words 'external affairs' can now be given an operation unaffected by any concept of territorial limitation. The result is that the Commonwealth, outside the boundaries of the States and subject to any particular constitutional injunctions, may make laws on all subject matters in exercise of its sovereignty.
[14] That reasoning was criticised in argument in the present case as having been based upon a misconception as to the limits of State legislative power. The capacity of State Parliaments to enact legislation with extra-territorial reach, a matter now dealt with in the Australia Act 1986 (Cth), s 2(1), was discussed in Union Steamship Co of Australia Pty Ltd v King [22] , and more recently in Mobil Oil Australia Pty Ltd v Victoria [23] . State legislation requires a relevant territorial connection, but the test of relevance is to be applied liberally, and even a remote or general connection will suffice [24] . Jacobs J was writing before Union Steamship, but Polyukhovich was decided after that case, and in Polyukhovich Deane J (who had been a party to the joint judgment in Union Steamship) expressly agreed with the passage from the judgment of Jacobs J quoted above [25] . Dawson J also emphasised the point that had been made by Jacobs J [26] .
[15] The legislation presently in question provides a compelling example of the matter that concerned Jacobs J. Let it be assumed that, consistently with conceptions of sovereignty, it is of legitimate concern for Australia to regulate the conduct, outside Australia, of Australian citizens and residents in relation to sexual abuse and exploitation of children. The proposition that Australia's capacity to respond to that concern depends upon legislative activity by the States and Territories is surprising. The plaintiff is a citizen of Australia. Presumably, on the plaintiff's argument, it would be for the Parliament of Victoria to regulate his conduct in Thailand. And, presumably, legislative competence would be based upon his Victorian residence. Even if that were sufficient connection, on the plaintiff's approach, Australia's capacity to deal with the phenomenon of sex tourism would be limited to the existence of a pattern of potentially different State and Territory legislation. The problem would be even more obvious in cases of extra-territorial legislation based upon the passive nationality principle or the principle of protecting Australia's security. What State power would extend to the enactment of a law aimed at conduct of foreigners, abroad, threatening or damaging Australians or their property? Would a State law against terrorist activity abroad aimed at Australian persons or property be limited to activity aimed at persons or property in that State?
[16] There are some forms of extra-territorial legislation that would not have even a remote or general connection with the States. If the Commonwealth Parliament cannot legislate with respect to such matters, then the federal system "denies the completeness of Australian legislative power"; a conclusion which, as Dawson J said in Polyukhovich, "is unacceptable in terms of constitutional theory and practice" [27] .
[17] To deny to the Commonwealth Parliament the power for which the defendant contends would expose a substantial weakness in Australia's capacity to exercise to the full the powers associated with sovereignty. The plaintiff argues that this potential weakness is either non-existent, or exaggerated. In that respect only, the plaintiff invokes State and Territory legislative power and additionally points to s 51(xxxviii). If the power of the Commonwealth Parliament to legislate extra-territorially to the same extent as could the Parliament of the United Kingdom at 1901 depends upon the concurrence of the Parliaments of all the States, that supports the point made by Jacobs J.
[18] Although the plaintiff points to State legislative power to answer the defendant's argument, the dispute about the meaning of s 51(xxix) that arises in this case is not one that raises the kinds of concern about what is sometimes referred to as the federal balance that are raised by some other disputes about that provision [28] . It is the aspect of the external affairs power that the plaintiff acknowledges, and asserts constitutes its entire content, that gives rise to problems of that kind. The plaintiff accepts that the power at least includes power to make laws with respect to matters affecting Australia's relations with other countries, and that includes matters the subject of treaties entered into by Australia. It has sometimes been said that, if a subject matter is of international and not purely domestic concern, that is itself enough to make that subject matter a part of Australia's external affairs. This was said, for example, by Stephen J, in Koowarta v Bjelke-Petersen [29] , in a context where his Honour equated matters of international concern with areas properly the subject matter of international agreement. Indeed, in this case, the defendant, as an alternative submission, put that prohibition of conduct involving the abuse and exploitation of children is itself a matter of international concern, and of concerted international action. Because the defendant's primary argument, based on externality, should be accepted, it is unnecessary to resolve that question. The argument, however, and the potential width of a concept which may go beyond obligations assumed by Australia under a treaty, to matters that could properly be the subject of a treaty (if that be what is meant), illustrates the potential for extension of Commonwealth legislative capacity by resort to what is, in this case, the uncontroversial aspect of s 51(xxix). The range of topics that might, on one view, be described as being of international concern, is wide and constantly increasing. We do not need, in this case, to address the problem that arises from the need to relate the external affairs power to the federal scheme. That problem arises out of what is, on the plaintiff's argument, the essence of s 51(xxix). We are here concerned with that aspect of s 51(xxix) that allows the Australian body politic to exercise the plenitude of power which flows from nationhood and independence. That involves no threat to the legislative capacity of the States.
[19] The reasoning in Polyukhovich was criticised as being based upon inappropriate literalism. In particular, it was said to be erroneous to consider, separately, the meanings of "external" and "affairs", and build a composite meaning from the result. There are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts [30] . In the law of defamation, "public interest" does not mean "of interest to the public"; and it may be doubted that a topic is relevantly of international concern simply because it is discussed at an overseas conference. The argument, however, does not do justice to the reasoning in Polyukhovich, which was based upon a consideration of the constitutional consequences of Australia's emergence as a nation, and its independence of Great Britain. Furthermore, the alternative solution offered by the plaintiff, said to involve a purposive construction, is in truth founded upon an incomplete and inadequate description of the relevant purpose. As was emphasised in Sue v Hill [31] , the framers of the Constitution were building for the future, and creating a union that would become an independent nation. The Constitution's purpose is not to be taken to be circumscribed by the circumstances of dependence which then applied. Indeed, in 1901 much of what was involved in Australia's relations with other countries was attended to in London rather than in Australia. If the grant of power were not forward-looking, its scope would have been quite limited. Just as the United Kingdom has now become a foreign power, Australia has attained full independence, and the kinds of matters of extra-territorial legislative concern that were potentially the subject of regulation by the United Kingdom Parliament are now potentially part of the external affairs with which the Australian Parliament may be concerned.
[20] It is for those reasons that I joined in the answers to the questions in the case stated that were announced at the conclusion of argument.