XYZ v The Commonwealth
[2006] HCA 25(Decision by: Gummow, Hayne, Crennan JJ)
XYZ
v The Commonwealth
Judges:
Gleeson CJ
Gummow
Hayne
Crennan JJKirby
Callinan
Heydon
Judgment date: 17 November 2005
Decision by:
Gummow
Hayne
Crennan JJ
[21] The plaintiff is an Australian citizen. On 18 September 2003, he was committed to stand trial in the County Court of Victoria on three charges of offences, each alleged to have been committed in Thailand between 4 July 2001 and 13 December 2001.
[22] The first charge was that the plaintiff engaged in sexual intercourse with a child under 16 years, contrary to s 50BA(1) of the Crimes Act 1914 (Cth) ("the Crimes Act"). The second charge was that he attempted to engage in sexual intercourse with a child under 16 years contrary to s 50BA(1) of the Crimes Act and s 11.1(1) of the Criminal Code (Cth) ("the Code"). The third charge was that he committed an act of indecency on a child under 16 years contrary to s 50BC(1)(a) of the Crimes Act. The child referred to in the charges is not and never has been an Australian citizen or resident.
[23] When committed to stand trial on the charges, the plaintiff entered a plea of not guilty. On 17 January 2005, the Commonwealth Director of Public Prosecutions filed an indictment in the County Court of Victoria alleging the commission by the plaintiff of the acts identified in each of the charges. In advance of his arraignment in the County Court, the plaintiff, on 25 February 2005, instituted an action in the original jurisdiction of this Court seeking a declaration that ss 50BA and 50BC of the Crimes Act are not valid laws of the Commonwealth. A Justice stated a case for consideration of the Full Court under s 18 of the Judiciary Act 1903 (Cth).
[24] The following questions were reserved by the case stated for the consideration of the Full Court:
- (1)
- Is either of ss 50BA and 50BC of the [Crimes Act] a law "with respect to ... External affairs" within s 51(xxix) of the Constitution?
- (2)
- If the answer to question (1) is "no", is either of ss 50BA and 50BC of the [Crimes Act] otherwise a valid law of the Commonwealth?
- (3)
- By whom should the costs of the case stated to the Full court of this Honourable court be borne?
[25] At the conclusion of the hearing by the Full Court on 17 November 2005, the Court answered the questions as follows:
- (1)
- Yes, both of them.
- (2)
- This question does not arise.
- (3)
- The plaintiff.
[26] What follows are our reasons for joining in the order made on 17 November 2005.
The legislation
[27] Sections 50BA and 50BC are included in Pt IIIA of the Crimes Act (ss 50AA-50GA). This Part is headed "Child Sex Tourism" and was inserted into the Crimes Act by s 3 of the Crimes (Child Sex Tourism) Amendment Act 1994 (Cth). The legislation has since been amended by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth) [32] . Section 50BA(1) states:
A person must not, while outside Australia, engage in sexual intercourse with a person who is under 16.
Penalty: Imprisonment for 17 years.
Paragraph (a) of s 50BC(1) states:
A person (the first person) contravenes this section if, while the first person is outside Australia:
- (a)
- the first person commits an act of indecency on a person who is under 16.
Section 50AD, so far as material, provides:
A person must not be charged with an offence against this Part that the person allegedly committed outside Australia unless, at the time of the offence, the person was:
- (a)
- an Australian citizen; or
- (b)
- a resident of Australia.
[28] The second charge, that of attempting to engage in sexual intercourse with a child under 16 years, is founded upon s 50BA(1) of the Crimes Act supported by s 11.1(1) of the Code. The Code provision states:
A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
[29] As already indicated, the plaintiff contended that ss 50BA and 50BC were invalid because neither was a law supported by the external affairs power in s 51(xxix) of the Constitution. The questions stated for and answered by the Full Court identified the two sections without confining them to s 50BA(1) and para (a) of s 50BC(1), but no point was taken on that account. We proceed on the footing that, if s 50BA(1) and para (a) of s 50BC(1) are valid, the provisions as a whole are valid. It also is to be remarked that the answer by the Full Court that s 50BA and s 50BC are valid did not confine the reach of the external affairs power to acts allegedly committed outside Australia by Australian citizens or residents.
The modern doctrine
[30] In the joint judgment of five members of the Court in the Industrial Relations Act Case [33] , it was said:
The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth [34] . Dawson J expressed the doctrine in these terms [35] :
'[T]he power extends to places, persons, matters or things physically external to Australia. The word "affairs" is imprecise, but is wide enough to cover places, persons, matters or things. The word "external" is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase "external affairs".'
Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ [36] ; Deane J [37] ; Gaudron J [38] ; and McHugh J [39] . They must now be taken as representing the view of the Court.
[31] In the present case, the "matter or thing" which lies outside the geographical limits of Australia is the conduct proscribed by the terms of ss 50BA and 50BC of the Crimes Act ("A person must not" and "A person ... contravenes this section if" respectively). The result is that the proscribed conduct falls within the meaning of the phrase "external affairs" and supplies a sufficient "constitutional fact".
[32] Such an outcome is consistent with what was foreseen by Dixon J in R v Burgess; Ex parte Henry [40] . His Honour accepted that the power conferred by s 51(xxix) would enable the Parliament to make laws operating outside the limits of the Commonwealth, even if the "primary purpose" of the head of power was not to regulate conduct occurring abroad. Dixon J added [41] :
The limits of the power can only be ascertained authoritatively by a course of decision in which the application of general statements is illustrated by example.
The case law
[33] The plaintiff's primary submission is that s 51(xxix) does not support a law "simply because that law operates on matters or events outside Australia". The Commonwealth submits to the contrary. The plaintiff further contends that, to the extent that this Court held otherwise in Polyukhovich [42] and Horta v The Commonwealth [43] , those decisions are incorrect and should be overruled. The considered statement in the Industrial Relations Act Case [44] , set out above, was said to be but comment made in passing.
[34] At the time the information against him was laid, Polyukhovich was an Australian citizen and resident [45] and the charges arose out of events in the then Soviet Union during the Second World War, in which Australia had been allied to the Soviet Union. As to Horta, there was an obvious and substantial nexus between Australia and exploration for petroleum resources in the Timor Gap [46] . Hence, the outcome in those cases might be supported upon a qualified view of the scope of the external affairs power.
[35] Two further authorities should be mentioned here. In De L v Director-General, NSW Department of Community Services [47] , the Court upheld the validity of regulations made under the Family Law Act 1975 (Cth), whose support by the Hague Convention respecting international child abduction was called into question. In the joint judgment of six members of this Court, it was said of this submission [48] :
The subject matter of the Regulations, the return of children abducted from Australia and the return of children abducted to Australia, is concerned with the movement of children between Australia and places physically external to Australia. It thus falls within the content of the phrase 'external affairs' in s 51(xxix) of the Constitution. Accordingly, the legislative authority for the making of the Regulations, found in s 111B [of the Family Law Act], is to be supported in this sense as a law with respect to external affairs [49] independently of the Convention [50] , and the Regulations, in turn, take this character.
The citation of the Industrial Relations Act Case as containing an authoritative exposition of the external affairs power should be noted.
[36] Thereafter, in R v Hughes [51] , the view was expressed by all members of this Court that a federal law regulating the placing by Australian investors of moneys in the United States would attract s 51(xxix). The law would relate to matters territorially outside Australia but would touch and concern Australia.
[37] Several points are to be made respecting these authorities. The first is that what was said in Hughes and decided in Polyukhovich, Horta and De L concerned legislation which touched and concerned Australia. Accordingly, these authorities may be supported on a narrower reading of s 51(xxix) than the requirement of a geographically external matter or thing, as urged by the Commonwealth and denied by the plaintiff. The second concerns the plaintiff's challenge to the broader reasoning apparent in these cases and the need for the plaintiff first to obtain leave before pressing his point to conclusion.
[38] It is unnecessary to embark upon the question of what is involved in the statement in the joint judgment in Evda Nominees Pty Ltd v Victoria [52] that leave of the Court is required before the Court hears argument urging it to depart from "the actual decision" in earlier cases [53] . That is because any re-opening would be futile. The reading of s 51(xxix) accepted in the Industrial Relations Act Case is correct and denies the reading for which the plaintiff contends in the present case.
The construction of s 51(xxix)
[39] The broad terms in which heads of legislative power may be expressed in the Constitution do not provide a sound basis for a reading which restricts their scope out of fear of some distorting or alarming possibility. The point has been made in this Court on various occasions [54] . One such distorting possibility has had an apparent influence upon some minority judgments in cases upholding legislation based upon treaties touching "domestic" matters. But that particular concern is of no moment in the present case.
[40] The distinction was explained as follows by Dawson J in the course of his judgment upholding the legislation challenged in Polyukhovich. His Honour remarked [55] :
In perceiving that the Constitution requires the exclusion of domestic matters from the ambit of the external affairs power, I have elsewhere pointed to the division of legislative power between the Commonwealth and the States and have observed that, if international concern over entirely domestic matters were sufficient to bring those matters within the external affairs power, par (xxix) would have the potential to obliterate the division which s 51 was intended to effect. To construe par (xxix) in that way would be to disregard entirely its constitutional setting.
However, Dawson J continued [56] :
But if, as I think to be the case, it is necessary to have regard to the scheme of the Constitution in construing the external affairs power, the result is different with regard to circumstances external to Australia. For although the sovereignty of the Australian nation is divided internally between the Commonwealth and the States, there is no division with respect to matters which lie outside Australia. There the sovereignty of the nation is the sovereignty of the Commonwealth which may act as if it were a unitary state without regard to the 'conceptual duality' within Australia to which Stephen J referred to in the Seas and Submerged Lands Case [57] . There is no corresponding capacity on the part of the States, either singly or together.
To that his Honour added [58] :
Indeed, any limitation upon the power of the Commonwealth to legislate with respect to matters outside the country would leave a gap in the totality of legislative power which the Constitution bestows upon the Commonwealth and the States. An interpretation of the Constitution which denies the completeness of Australian legislative power is unacceptable in terms of constitutional theory and practice. Apart from express or implied constitutional prohibitions or limitations, it is not to be contemplated that there are laws which no Parliament has the power to pass.
[41] Counsel for the plaintiff challenged this reasoning. They pointed to what was said to be the plentitude of the extraterritorial legislative competence of the States spelt out or confirmed by s 2 of the Australia Act 1986 (Cth) and the decision shortly thereafter in Union Steamship Co of Australia Pty Ltd v King [59] . Further, s 51(xxxviii) of the Constitution ensured there need be no "gap" between the competence of the Parliament at Canberra and that at Westminster, if there be the request or concurrence of State Parliaments [60] . The words "within the Commonwealth" in s 51(xxxviii) do not import a territorial limitation upon laws supported by that head of power [61] .
[42] Of these submissions two things may be said. First, they assume at a theoretical level a common legislative purpose among the States. However, practical considerations suggest that a common purpose may sometimes be absent. Secondly, it is appropriate to recall, in dealing with the interrelation between s 51(xxix) and other heads of legislative power, what was said by Latham CJ in Burgess. His Honour remarked [62] :
It has been argued that s 51(xxix) should be construed as giving power to make laws only with respect to some external aspect of the other subjects mentioned in s 51. Prima facie it would be as reasonable to argue that any other single power conferred by s 51 is limited by reference to all the other powers conferred by that section -- which is really an unintelligible proposition. There is no reason whatever why placitum xxix should not be given its natural and proper meaning, whatever that may be, as an independent express legislative power.
[43] Words of O'Connor J, uttered in 1908 and often repeated in this Court [63] , are in point when construing s 51(xxix). In Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association [64] , after noting that the broad and general terms of the Constitution were "intended to apply to the varying conditions which the development of our community must involve", O'Connor J continued [65] :
For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.
[44] Hence that branch of the argument for the Commonwealth in the Seas and Submerged Lands Case [66] that the sea and the shelf were external to Australia and therefore proper subjects for legislation under s 51(xxix) because "external" means external to the Australian land mass. That submission was accepted and developed by Barwick CJ, Mason J and Jacobs J [67] . Murphy J [68] said that the power was not limited to the making of laws for the implementation of treaties or conventions. In particular, Mason J emphasised that the term "affairs" was not limited to relationships with other countries [69] . From this basis there developed the statements of principle respecting the construction of s 51(xxix) encapsulated a decade ago in the passage in the Industrial Relations Act Case [70] set out earlier in these reasons.
[45] The plaintiff criticised this course of development in the construction of s 51(xxix), but it is in line with well-settled principles of constitutional interpretation.
Particular submissions by the plaintiff
[46] The plaintiff urged that the proposition that it suffices for validity of a law reliant upon s 51(xxix) that it operates on matters, persons or things external to Australia is contrary to the connotation of the phrase "external affairs" as understood in 1900. To that the following statement in the Industrial Relations Act Case [71] is in point:
[T]he external relations of the Australian colonies were in a condition of continuing evolution and, at that time, were regarded as such. Accordingly, it is difficult to see any justification for treating the content of the phrase 'external affairs' as crystallised at the commencement of federation, or as denying it a particular application on the ground that the application was not foreseen or could not have been foreseen a century ago.
With respect to the position in the United States, Holmes J spoke memorably to like effect in State of Missouri v Holland [72] .
[47] The plaintiff further submitted that what is supported by para (xxix) is the implementation of international obligations under treaties and under customary international law. That may readily be accepted, but there is no pregnant negative that the power has no other operation. The point is illustrated by what was said by Dawson J in The Tasmanian Dam Case [73] :
It is, of course, true that a law can be a law with respect to external affairs although it is not made in the implementation of any international obligation. The subject-matter of the law may of itself be within that category although it is not passed pursuant to any international obligation. Such matters as diplomatic rights and immunities, the treatment of fugitive offenders, the determination of external boundaries or the excitement of disaffection against other countries are affairs which, on their face and without more, are within the legislative power of the Commonwealth.
[48] Finally, the plaintiff referred to the territorial reach of other heads of legislative power in s 51 of the Constitution as bearing upon (and confining) the interpretation of s 51(xxix). That matter has been considered earlier in these reasons.
The Commonwealth's submissions
[49] The Commonwealth correctly submitted that legislation proscribing conduct engaged in outside Australia, such as s 50BA and s 50BC of the Crimes Act, is supported by the external affairs power. That is so without the further requirement, here imposed by s 50AD, that the person alleged to have committed the offence outside Australia must be an Australian citizen or a resident of Australia.
[50] However, the Commonwealth also submitted, as an independent ground for validity, that the subject-matter of the provisions in question is a "matter of international concern". Particular reliance was placed upon what had been said on that subject by Stephen J in Koowarta v Bjelke-Petersen [74] . His Honour remarked [75] :
A subject-matter of international concern necessarily possesses the capacity to affect a country's relations with other nations and this quality is itself enough to make a subject-matter a part of a nation's 'external affairs'.
[51] The phrase "matter of international concern" appears to have been introduced in the consideration by Willoughby of the treaty-making provisions of the United States Constitution [76] . In the first edition of his treatise, published in 1910, Willoughby sought to limit, not expand, the authority of the President in that regard by contrasting the use of the treaty-making power to regulate or control matters properly and fairly "matters of international concern", and its use to regulate or control matters of domestic law ordinarily relating "to the reserved powers of the States or to the private rights of the individuals" [77] . Thereafter, in 1920, arguments of that nature were rejected in State of Missouri v Holland [78] .
[52] In The Tasmanian Dam Case [79] , four Justices appear to have indicated that the presence of a subject-matter of international concern sufficed to attract the exercise of the external affairs power even in the absence of a treaty. Dawson J preferred to see the requirement of international concern as a restriction on the power [80] . The subject was revisited in Polyukhovich [81] .
[53] Some of the unsettled questions concerning the use of the notion of international concern were raised in argument in the present case. However, given the direct path by which the legislation in question is upheld, these questions may be left for a later occasion on which they arise.