XYZ
v The Commonwealth

Judges: Gleeson CJ
Gummow
Hayne
Crennan JJ
Kirby

Callinan
Heydon

Judgment date: 17 November 2005

Judgment by:
Callinan
Heydon JJ

[150] The legislation and background circumstances are set out in other judgments. The defendant contended that ss 50BA and 50BC of the Crimes Act 1914 (Cth) were valid on four bases ^[224] .

(a)

A law that operates on conduct geographically external to Australia is necessarily a law with respect to external affairs within the meaning of s 51(xxix) of the Constitution ^[225] .

(b)

A law that operates on conduct geographically external to Australia necessarily affects Australia's external relations and is thus a law with respect to external affairs.

(c)

In any event, ss 50BA and 50BC are laws in fact concerning Australia's external relations.

(d)

Sections 50BA and 50BC are laws with respect to external affairs on the basis that the extraterritorial prohibition of the sexual exploitation of children is a matter of sufficient international concern.

[151] The arguments of the plaintiff denying validity are to be preferred. They correspond broadly with the reasoning set out below.

Is a law that operates on conduct geographically external to Australia a law with respect to external affairs?

[152] The defendant urged an affirmative answer. That answer is supported by three decisions of, and numerous dicta in, this Court. The view reflected in that answer will be called the "geographic externality" view of s 51(xxix) for short.

[153] Approaches to construction. The defendant submitted that the correct question in the present context is: what do the words "external affairs" mean "to us as late twentieth century Australians?" ^[226] This is hard to square with many statements by members of this Court ^[227] that the constitutional words bear the meaning "they bore in the circumstances of their enactment by the Imperial Parliament in 1900" ^[228] . It is also hard to square with the following unanimous statement by the Court about the history of s 92 ^[229] :

Reference to the history ... may be made, not for the purpose of substituting for the meaning of the words used the scope and effect -- if such could be established -- which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.

These inquiries seem pointless unless, in general, the meaning of an expression in the Constitution like "external affairs" comprises the meanings which skilled lawyers and other informed observers of the federation period would have attributed to it, and, where the expression was subject to "dynamism" ^[230] , the meanings which those observers would reasonably have considered it might bear in future. What individual participants in the Convention debates said it was intended to mean, or meant, either during those debates or later, is no doubt immaterial, save to the extent that their linguistic usages are the primary sources from which a conclusion about the meaning of the words in question can be drawn. Further, no doubt the mere fact that a particular instance of the expression "external affairs" was not foreseen, or could not have been foreseen, in 1900, does not conclusively indicate that the instance in question could not now fall within it ^[231] . But, subject to considerations of those kinds, it might be asked whether it is not legitimate to seek to measure the ambit of the power by reference to the meaning which, in 1900, that expression bore or might reasonably have been envisaged as bearing in the future.

[154] In this case, the question of the extent to which views contemporary with the federation period should be taken into account is not crucial and need not be decided. That is because in relevant respects the meaning held then and the meaning which the words bear now are identical.

[155] The constitutional structure. Dealings between Australia and the rest of the world rest on two constitutional foundations: the power vested in the executive under s 61 and the power granted to the legislature under s 51(xxix). At least for a time after 1901, the executive did not enter treaties directly with other nations to any significantly greater extent than the Australian colonies had. Now it does so routinely. But entry into a treaty or other international agreement may make it appropriate to enact legislation to give it domestic force, as, for example, where legislation is desirable to secure to Australian citizens the benefits which entry into the treaty was designed to bring. That is the function which the legislative power granted by s 51(xxix) serves.

[156] In Victoria v The Commonwealth (Industrial Relations Act Case) ^[232] the joint judgment demonstrated, by detailed reference to developments before and at the time of federation, that:

(a)

while before 1900 the Imperial Government negotiated treaties on behalf of itself and the colonies, there was a practice of consulting those colonies that, like the Australian colonies, had advanced towards constitutional independence, before concluding commercial treaties that applied to them;

(b)

there was also a practice of including in those treaties a clause providing for the voluntary adherence of a colony;

(c)

the number and range of treaties entered by the Imperial Government had increased and was continuing to increase;

(d)

there also existed international organisations in which constituent parts of the British Empire like the Australian colonies had the vote; and

(e)

there was a practice of leaving colonial legislatures free to determine whether it was necessary to legislate to give effect to a treaty entered into by the Imperial Government.

Contemporary lawyers would have foreseen that Commonwealth legislation of that kind would be needed in relation to the same type of treaty, whether with nation States or international organisations, after 1900. Now, of course, Commonwealth legislation implements only treaties entered into by the executive of the Commonwealth, rather than, as was the case in the early years after 1900, treaties largely entered into by the Imperial authorities. But that fact is, as counsel for the defendant said, merely a "fresh denotation" of s 51(xxix) arising out of the development of Australia's international personality ^[233] .

[157] Usages in the federation period. It is clear that in the federation period skilled lawyers and other informed observers gave "external affairs" a meaning which included relations between the Commonwealth and other parts of the British Empire, and also relations between the Commonwealth and nations outside the Empire. Evatt and McTiernan JJ were of that view in R v Burgess; Ex parte Henry ^[234] . In support of that view, they pointed to, among other things, linguistic usages, in 1887 and 1902 respectively, by British statesmen who were exceptionally knowledgeable about Imperial and colonial affairs -- Sir Charles Dilke and Joseph Chamberlain.

[158] Other examples of those usages can be found in the House of Commons debates on the Commonwealth of Australia Constitution Bill in 1900. The most distinguished lawyers and political thinkers in the House attended and participated in these debates -- for example, H H Asquith, R B Haldane, James Bryce and Sir William Anson -- and in this fact there lay a certain safeguard against any nonchalance or thoughtlessness on the part of members of the Government. The statements referred to below are cited, not necessarily as accurate accounts of the effect of s 51(xxix), but as examples of contemporary usage. In his speech introducing the Bill, Joseph Chamberlain, Secretary of State for the Colonies, made a plain allusion to the external affairs power and to s 61: "everything which has to do with the exterior relations of the six colonies concerned will be a matter for the Commonwealth, and not for the individual Governments" ^[235] . A little later in that speech, while arguing for the preservation of Privy Council appeals, the Secretary of State cited s 51(xxix) among other placita to which he called "special attention" because they involved interests outside Australia as well as "locally". He said "external affairs" was "a phrase of great breadth and vagueness, which, unless interpreted and controlled by some other provision, might easily ... give rise to serious difficulties". He went on: "It will be seen that almost all the points to which I have thus called special attention are matters in which the Imperial Government may have to deal with foreign countries . It is important, therefore ... that measures of this kind, which may involve the Imperial Government in the most serious responsibility, should be interpreted by a tribunal in which all the parties have confidence." ^[236] On 21 June 1900, Sir Robert Finlay, the Attorney General, said that s 51 contained "certain most important powers not now enjoyed at all by any of the Australian colonies, such as powers with reference to foreign affairs " ^[237] .

[159] It is not in dispute that the expression "external affairs" was used in s 51(xxix) in preference to "foreign affairs" in order, as Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ have said, "to make it clear that the power comprehended both the relationship between the Commonwealth of Australia and other parts of the then British Empire and the relationship with foreign countries" ^[238] . That language is significant. It points against the grant of a wider power to legislate on matters located externally to Australia. It points towards a more specific power for the legislature to act in a manner complementing the executive's conduct of Australia's relationships with foreign nations and international organisations.

[160] If "external affairs" are those which relate to relationships between countries, it is necessary to identify the particular relationship on which the legislation relying on s 51(xxix) rests. A "relationship" in this sense means a dealing between Australia and another country. That dealing can be a treaty, but it need not be: any of a vast range of diplomatic relationships between Australia and other countries could, depending on the circumstances and subject to the Constitution, be a relevant dealing. On this view, what "external affairs" cannot include is something which is the subject of a unilateral act or desire on the part of Australia. That lacks the mutuality inherent in the conduct of "affairs" in the sense of a relationship or dealing with another nation or an international organisation.

[161] The plaintiff's contention that the power to legislate in relation to external affairs extends beyond legislation implementing treaties to other relationships with other countries, but not beyond that point to include legislation about geographically external matters, is supported by other material reflective of the views of distinguished lawyers contemporary with the federation period, or persons acquainted with those views. While the writers and judges now to be referred to were not considering the precise point under consideration in this case, what they said suggests that the meaning of "external affairs" in the federation period did not include the geographic externality view.

[162] In chronological order, the first opinion to consider is that of Quick and Garran. Their conclusion on s 51(xxix) was ^[239] :

As already pointed out ^[240] , it can hardly be intended to confer extra-territorial jurisdiction; where that is meant, as in other sub-sections, it is distinctly expressed. It must be restricted to matters in which political influence may be exercised, or negotiation and intercourse conducted, between the Government of the Commonwealth and the Governments of countries outside the limits of the Commonwealth. This power may therefore be fairly interpreted as applicable to (1) the external representation of the Commonwealth by accredited agents where required; (2) the conduct of the business and promotion of the interests of the Commonwealth in outside countries; and (3) the extradition of fugitive offenders from outside countries.;

[163] The volume of the "matters" to which Quick and Garran referred has perhaps turned out to be much greater than they would have envisaged at the time. This has come about as a result of the United Kingdom authorities, particularly at the Imperial Conferences of 1923 and 1926, ceasing to oppose full diplomatic representation and treaty making power for the Dominions. But it does seem that Quick and Garran did not see the words of s 51(xxix) as bearing a meaning consistent with the existence of a power to legislate with respect to things identified by reference to their location externally to Australia.

[164] The defendant contended that the views of Quick and Garran were not shared by other prominent writers at the time. It cited only an article by W Harrison Moore suggesting that the effect of s 51(xxix) was to prevent Commonwealth statutes from being "impugned on the ground that they reach beyond local affairs; in other words, the rule against laws 'intended to operate extraterritorially' will within the Commonwealth be a rule of construction only, and not a rule in restraint of power" ^[241] . That statement did not exhaustively define the content of "external affairs". It is difficult to enlist W Harrison Moore as a supporter of the geographic externality view when regard is had to what he said in 1910 ^[242] :

[T]he 'external affairs' of the Commonwealth, like the foreign affairs of the Empire, are primarily matters of negotiation and administrative policy rather than of legislation. So far however as the conduct of external affairs may require the co-operation of the legislative power, the authority of the Parliament extends ... [I]n very many cases, legislation may be necessary to give effect to international obligations , or to assert international rights . So far as the exercise of such a power is consistent with the unity of the Empire, and the responsibility of the Imperial Government in respect to foreign affairs ... the Commonwealth Parliament would appear to have power to make provision.

The mere fact that conduct takes place outside Australia does not create an international obligation or an international right.

[165] Soon after federation, O'Connor J, one of the most prominent framers of the Constitution, said ^[243] :

The control of trade and commerce with other countries, the imposition of Customs duties, immigration, quarantine, and external affairs , are all different aspects of Australia's relations with other countries .

He also said that taken as a whole these powers "vest in the Commonwealth the power of controlling in every respect Australia's relations with the outside world" ^[244] .

[166] One lawyer whose early career was contemporary with federation -- he was studying law when the Constitution was enacted -- was Latham CJ. His language in R v Burgess; Ex parte Henry ^[245] is significant. He could "draw no distinction" between the terms "external or foreign affairs or relations ". He said:

The establishment of a political community involves the possibility, indeed the practical certainty in the world as it exists to-day, of the establishment of relations between that community and other political communities. Such relations are necessarily established by governments, which act for their people in relation to other peoples, rather than by legislatures which make laws for them.

He called this a "fact of international intercourse ". He said:

The regulation of relations between Australia and other countries, including other countries within the Empire, is the substantial subject matter of external affairs.

He also said:

The execution and maintenance of the Constitution, particularly when considered in relation to other countries, involves not only the defence of Australia in time of war but also the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane.

After discussing respectively s 61, s 51(xxix) and s 75(i) (conferring on this Court original jurisdiction in all matters "arising under any treaty") he said:

These provisions contemplate not the relations of the States of Australia with other countries but the relations of Australia, including all the States, with other countries .

[167] Another contemporary of federation was Starke J -- then a barrister in possession of a good practice, and destined to appear in many constitutional cases early in the life of this Court. He asked ^[246] :

[W]hat else are external affairs of a State -- or, to use the more common expression, the foreign affairs or foreign relations of a State -- but matters which concern its relations and intercourse with other Powers or States and the consequent rights and obligations ?

[168] The adult life of Dixon J began after federation, but his legal education and early professional life commenced only a short time later. In his view, it was not to "be supposed [of s 51(xxix)] that its primary purpose was to regulate conduct occurring abroad . ... I think it is evident that its purpose was to authorize the Parliament to make laws governing the conduct of Australians in and perhaps out of the Commonwealth in reference to matters affecting the external relations of the Commonwealth ." ^[247]

[169] Evatt and McTiernan JJ were in the same position as Dixon J, although a little younger. It has been seen that they treated "external affairs" as dealing not only with the "relationship" between the Commonwealth and other parts of the British Empire, but also with the "relationship" between the Commonwealth and foreign States. They also said that the expression "external affairs" ^[248] :

is frequently used to denote the whole series of relationships which may exist between States in times of peace or war. It may also include measures designed to promote friendly relations with all or any of the nations.

[170] These early statements about "external affairs", with their constant references to "relationships" and "relations", do not suggest that the contemporaries of federation perceived "external affairs" as bearing a meaning giving power to enact in legislation the unilateral desires of the executive to control conduct taking place externally to Australia without any relation with another country or an international organisation being involved. The view, shared by every member of the Court in R v Burgess; Ex parte Henry , that the expression "external affairs" refers to relationships between Australia and other countries or international organisations, does not limit s 51(xxix) to the implementation of treaties. For example, legislation related to the preservation of friendly relations with other Dominions ^[249] or other countries ^[250] may be supported by s 51(xxix). However, the geographic externality view of s 51(xxix) goes beyond these criteria.

[171] Extradition at federation. Any contention that a contemporary of federation would understand "external affairs" to include the conduct of Australian residents in regions external to Australia, so that s 51(xxix) could support legislation rendering that conduct criminal even though it was not criminal by local law, would be contradicted by the contemporary understanding of extradition. The passage quoted from Quick and Garran above reveals that extradition was well to the forefront of their minds, at least. In a later passage they discussed the nature of extradition, its general dependence on treaties, and the consolidation of extradition law in the Extradition Act 1870 (Imp). They then said ^[251] :

The Imperial Extradition Act (1870), 33 and 34 Vic c 52, consolidated the law then in force relating to the apprehension and surrender to foreign States of fugitive offenders. It provides that where an arrangement has been made by Her Majesty with any foreign State, respecting the surrender to such State of any fugitive criminals, Her Majesty may, by Order in Council, direct that the procedure and machinery of the Act should apply in the case of such foreign State: that Her Majesty may limit the operation of the Order to fugitive criminals in specified parts of Her dominions, and render it subject to such conditions, reservations, and exceptions as may be deemed expedient. The schedule to the Act contains a list of the crimes for which a suspected offender may be surrendered, subject to the restrictions that no fugitive shall be surrendered to a foreign State (1) for an offence of a political nature, or (2) unless provision is made by the law of that State that he shall not, when surrendered, be detained or tried in that State for any other offence committed prior to his surrender.

They then explained how it would be possible, by reason of s 18 of the Extradition Act, for Commonwealth legislation to be enacted regulating "all negotiations and proceedings for the enforcement of extradition treaties entered into by Great Britain with foreign powers" ^[252] .

[172] In the course of the 19th century, certain key rules evolved from State practice in relation to extradition. Two of them were stated by Quick and Garran in the passage just quoted -- the political offence doctrine and the speciality rule. A third was the double criminality rule. That rule required that the conduct constituting an extraditable offence should be punishable as a crime not only under the law of the requesting State but also under the law of the extraditing State. Thus the Extradition Act, s 9, prevented extradition unless the crime for which extradition was sought was an "extradition crime", namely a crime which, if committed within England or within English jurisdiction, would be one of the crimes described in the first schedule. That schedule listed numerous offences known to English law.

[173] Contemporaries of federation would have appreciated that the laws of the Australian jurisdictions, both before and after federation, often differed markedly from those of jurisdictions outside the Empire, and indeed from those of many jurisdictions within it. It is unlikely that contemporaries of federation would have perceived "external affairs" as used in s 51(xxix) as bearing a meaning sufficiently extensive to confer power to enact legislation rendering criminal conduct outside Australia which was not criminal by the law of the place where it occurred. A perception of that kind could not have stood with the contemporary understanding of the double criminality rule as part of the law of extradition. In the light of that understanding, it would have been seen as futile for Australia to enact legislation of that kind if the person contravening it could not be prosecuted outside Australia and could not be extradited to Australia.

Arguments for the geographic externality view

[174] Three broad lines of reasoning have been employed to support the geographic externality view. One turns on a textual analysis of the meaning of "external affairs" by inquiring what "affairs" means and what "external" means. The second rests on the absence of any territorial restriction in the opening words of s 51 of the Constitution. The third relies on the supposed existence of a "lacuna" in governmental power in Australia which would exist if the geographic externality view were wrong ^[253] .

External affairs" textually analysed

[175] The prevailing approach. Members of the Court in R v Burgess; Ex parte Henry propounded the view that "external affairs" refers to the relationships between Australia and other countries. That view prevents the expression from being dissected into two parts. This process of dissection, however, was the approach adopted in Polyukhovich v The Commonwealth (War Crimes Act Case) in which, for the first time, a clear majority of the Court decided, as distinct from saying, that the geographic externality view was correct: five Justices in an unqualified form and two Justices with a qualification. In that case, for example, Deane J said ^[254] :

The word 'external' means 'outside'. As a matter of language, it carries no implication beyond that of location. The word 'affairs' has a wide and indefinite meaning. It is appropriate to refer to relations, matters or things. Used without qualification or limitation, the phrase 'external affairs' is appropriate, in a constitutional grant of legislative power, to encompass both relationships and things: relationships with or between foreign States and foreign or international organizations or other entities; matters and things which are territorially external to Australia regardless of whether they have some identified connexion with Australia or whether they be the subject matter of international treaties, dealings, rights or obligations.

The reasoning is -- "affairs" are relations, matters or things; "external" means "territorially external to Australia"; therefore as long as a "matter" or "thing" is territorially external to Australia it is within the expression "external affairs"; and legislation may be enacted about it whether or not it relates to Australia's international relations with other countries or international organisations.

[176] The preferred approach. It is sometimes inappropriate to dissect a composite phrase into particular parts, give each part a meaning which that part has when used in isolation, and combine those meanings so as to give the composite phrase a meaning at odds with the meaning it has when construed as a composite phrase.

[It is a] fallacy ... to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole. ^[255]

[177] Here, the better view is that "external affairs" in its context in s 51(xxix) is to be construed as a composite term and that the plural form of the noun has importance. Indeed, Deane J himself had earlier and rightly adopted this view in The Commonwealth v Tasmania (The Tasmanian Dam Case) ^[256] :

The phrase 'external affairs' is, like the phrase 'foreign affairs' and 'foreign relations', a composite one in which the noun exists in its plural form ... The use of the singular 'external affair' to refer to a particular matter or aspect of 'external affairs' is not only inapposite: it is liable to convey incorrect shades of meaning which will assume added significance if one proceeds to engage in the reverse process of defining the limits of the external affairs power by reference to whether a particular matter or object can or cannot properly be described as an 'external affair'.

As noted above, Latham CJ could "draw no distinction" between the phrases "external or foreign affairs or relations" ^[257] , and Starke J appears to have been of the same opinion ^[258] . The meaning of "foreign affairs" is not usefully elicited by reasoning that an "affair" is anything and that "foreign" means anything that is situated outside a district. The expression "foreign affairs" means now what it meant in 1900: "international relations; activities of a nation arising from its dealings with other nations" ^[259] . And the expression "foreign relations" also means now what it meant in 1900: "the relationship between nations arising out of their dealings with each other" and "the field of foreign affairs" ^[260] . Contrary to what the defendant submitted, the expression "external affairs" has the same meaning.

[178] Once it is accepted, as this Court has, that the expression "external affairs" was selected to apply to relationships between Australia and places which were external to it, either because they were other parts of the British Empire or because they were foreign countries ^[261] , it becomes clear that not only is it wrong to analyse the meaning of the expression "foreign affairs" by looking at the meaning of each of the two words separately, but it is also wrong to adopt the same process for "external affairs".

[179] Criticisms of the prevailing approach. But even if it were right to analyse the expression "external affairs" by taking the meaning of each word in isolation, it does not follow that of the various meanings of "affairs", those which are least appropriate to the context should be selected to give a widening effect -- "matters", "things" -- while that which is most appropriate is given no more than a partial role -- "relationships". Nor, if "external affairs" is to be the subject of analysis by looking at the meaning of each word separately, is it legitimate to reason, as a matter of language, that the word "external" carries, as Deane J said it carried, "no implication beyond that of location" ^[262] . No doubt many of the meanings of "external" do have an implication of "location". But several go beyond mere location. One meaning is "[c]onnected with, or having reference to, what is outside; having an outside object or sphere of operation" ^[263] . Another is "[h]aving reference to dealings with foreign countries" ^[264] . A like meaning is "relating to or concerned with what is outside or foreign: external commerce" ^[265] . Another like meaning is "coming from or relating to a country or institution other than the main subject: a department of external affairs" ^[266] . If the meaning of "external affairs" to modern Australians is crucial to the construction of s 51(xxix), many of them will remember that while Australia was slower than other Dominions to develop its own diplomatic service and its own independent foreign policy, when it began to do so in the 1930s, that development proceeded through the "Department of External Affairs" before it was renamed the "Department of Foreign Affairs", and this institution, under both names, was the means by which Australia conducted its relations with other nations, whether they were inside or outside the British Empire, and with international organisations.

[180] For these reasons, textual analysis points against the correctness of the geographic externality view of s 51(xxix) ^[267] . The geographic externality of legislative subject-matter may afford a reason why the legislation bears directly on Australia's relations with other countries, but it does not necessarily mean, as the defendant contended, that the legislation is legislation with respect to external affairs. The grant of a legislative power may well need to be construed with all the generality which the words used admit ^[268] ; but the words "external affairs" are insufficiently general to include the geographic externality view, and the principle just referred to does not permit the widening of the constitutional words beyond what their meaning will permit.

Absence of territorial limitation on s 51

[181] The second basis advanced for the geographic externality view of s 51(xxix) rests on the fact that the words "peace, order, and good government of the Commonwealth" at the start of s 51 of the Constitution have no territorial limitation. Thus in New South Wales v The Commonwealth ("the Seas and Submerged Lands Act Case") ^[269] Jacobs J said that while a "State can only legislate in respect of persons acts matters and things which have a relevant territorial connexion with the State", s 51 imports no similar territorial limitation. The "Crown in the Australian Executive Council and in the Australian Parliament ... has that pre-eminence and excellence as a sovereign Crown which is possessed by the British Crown and Parliament". That position was attained, Jacobs J said, no later than the adoption by Australia in 1942 of the Statute of Westminster 1931 (Imp). "The words 'external affairs' can now be given an operation unaffected by any concept of territorial limitation." According to Mason CJ, who agreed with this reasoning in Polyukhovich v The Commonwealth ^[270] :

It follows that the legislative power of the Parliament with respect to matters external to Australia, using 'matters' in a comprehensive sense, is not less in scope than the power of the Parliament of the United Kingdom with respect to such matters.

[182] That reasoning supports the view that the "Crown in the Australian Executive Council" has power as extensive as the British Crown has (or at least had) in relation to dealings with the external world -- a position which has arguably obtained at least since the Imperial Conference of 1926. The reasoning also supports the view that whichever power in s 51 is under consideration is not limited in its territorial operation beyond any limitation inherent in the particular terms of the placitum granting the power. That flows from s 2 of the Statute of Westminster 1931 (Imp), nullifying the operation of the Colonial Laws Validity Act 1865 (Imp) and doctrines of repugnancy, and s 3, giving the Commonwealth Parliament full powers to make laws having extraterritorial operation. But to say that the relevant power is not limited as to its territorial operation beyond any limitation flowing from its terms is not to say anything about whether there is, in fact, any territorial limitation flowing from its terms. Hence it does not follow that the subject-matter on which legislation can be enacted under s 51(xxix) is wider now than it was in 1901. And it does not follow that a "concept of territorial limitation" which existed in s 51(xxix) before the Crown in the Australian Parliament attained "that pre-eminence and excellence as a sovereign Crown which is possessed by the British Crown and Parliament" was removed when that event took place. For, as Jacobs J accepted, there is one difference even after that event: in Australia the Constitution applies. Thus Menzies J, speaking of paras (i) to (xxxix) of s 51, was correct to say: "The Statute of Westminster does not remove any restriction stated expressly in, or to be inferred from, the language of these paragraphs." ^[271]

[183] Accordingly, the geographic externality view is not supported by recourse to the opening words of s 51 of the Constitution or the consequences of Australian independence.

A lacuna in Australian governmental power

[184] A third, and related, argument for the geographic externality view is that if it were not correct, a lacuna might exist. Thus in Polyukhovich v The Commonwealth Deane J said ^[272] :

... Commonwealth laws with respect to matters, things or persons outside Australia are likely to operate in areas where there will commonly be no competing State interests with the result that, in the absence of Commonwealth legislative power, there would be a lacuna in the plenitude of combined legislative powers of the various Parliaments of the Australian federation. It has long been recognized in this Court that, subject to express and implied constitutional limitations and guarantees, no such lacuna exists in legislative authority in relation to internal matters ... With the emergence of Australia as a fully sovereign and independent nation, there remains no acceptable basis for maintaining any such lacuna in the combined powers of the Parliaments of the federation to legislate for this country with respect to extraterritorial matters beyond that resulting from the limitations which the Constitution itself expressly or impliedly imposes.

[185] The argument that there is a lacuna is not an argument that there is a lacuna in the power of the Commonwealth under s 61 to deal with the external world. On the other hand, the capacity of the executive to deal with the external world under s 61 may be reduced if there is no corresponding legislative power to enact Australian laws which the dealings of the executive would make desirable.

[186] Underlying Deane J's reasoning is the assumption that at all costs the constitutional language must be construed so as to achieve the result most desired by the analyst. That assumption fails to recognise that the Constitution was a creation of a particular time and of particular circumstances by particular voters influenced by particular leaders to establish a particular form of federation. Its makers, both in Australia and in London, were hard-headed and unsentimental. Its form was moulded by pressures proceeding from conflicting interests. It is thus almost certain to contain what some observers, then and now, would regard as flaws. It is not a permissible approach to the Constitution to adopt strained constructions in order to avoid consequences which a particular analyst may dislike, such as a constitutional vacuum. Federation was a great achievement, but it was an achievement for which various prices had to be paid. It is possible that one of those prices is a limitation on the power of the Commonwealth to legislate extraterritorially which cannot be overcome efficiently by State legislative power or which, to an extent, cannot be overcome at all by the States. That possibility cannot be excluded merely because it is thought to be undesirable. Nature does not necessarily abhor a constitutional vacuum. Even if it did, velleity would not fill that vacuum.

[187] Is there in truth any relevant lacuna if the geographic externality view is wrong? In answering that question, it is necessary to bear in mind several considerations. First, even in the circumstances where s 51(xxix) does not give power to the Commonwealth to legislate extraterritorially, the Commonwealth may legislate extraterritorially in relation to matters over which it has some head of power other than s 51(xxix). Secondly, since 1986 it has been clear that State Parliaments have plenary power to enact laws having an extraterritorial operation: Australia Act 1986 (Cth), s 2(1); Australia Act 1986 (UK), s 2(1). There must be a relevant connection between the circumstances on which State legislation operates and the particular State, but it is clear that this requirement is liberally applied, and that even a remote and general connection between the subject-matter of the legislation and the State may suffice ^[273] . Thirdly, the apprehended lacuna would be narrowed further if uniform State legislation were enacted -- if necessary, at the Commonwealth's suggestion. Finally, the power conferred on the Commonwealth by s 51(xxxviii) to exercise, at the request or with the concurrence of the States, "any power which [could] at the establishment of [the] Constitution be exercised only by the Parliament of the United Kingdom", is one that may be exercised by the making of laws within the Commonwealth which operate outside the Commonwealth. Thus it operates to "ensure that a plenitude of residual legislative power is vested in and exercisable in co-operation by the Parliaments of the Commonwealth and the States" ^[274] . It may be that even if the last two possibilities reduce the theoretical existence of a lacuna to vanishing point, the requisite political cooperation may not always be easily achievable. But, if the matter is sufficiently important to the well-being of the nation, one should not be too pessimistic about the possibility of achieving consensus ^[275] .

[188] The reference at the end of the passage quoted from Deane J's reasons for judgment in Polyukhovich v The Commonwealth to limitations on extraterritorial legislation which the Constitution imposes is crucial. The question is: "does s 51(xxix) give power to legislate extraterritorially merely because the matter to which the legislation relates is geographically external to Australia?" That in turn raises the question: "is there some limitation on extraterritorial legislation created by the express terms of s 51(xxix)?" If there is no such limitation, the emergence of Australia as a fully sovereign and independent nation does not make s 51(xxix) wider than it was before. If there is any such limitation, it is hard to see how that emergence abolished it: for to abolish it would be to amend the Constitution, and the Constitution can only be amended by recourse to s 128. Either way, the emergence relied on is immaterial. And even if s 51(xxix) on its true construction were to leave a lacuna because of theoretical or practical limits on State power, that consequence cannot legitimately be avoided by wishing for, or applying, another construction.

Geographic externality view to be rejected in principle

[189] Independently of authority, the arguments advanced by the plaintiff are to be preferred. But the matter is not free from authority. The extent to which authority forms a barrier to their acceptance must now be examined.

Authorities in favour of the geographic externality view

[190] New South Wales v The Commonwealth . The geographic externality view of s 51(xxix) first appeared in developed form in New South Wales v The Commonwealth in the judgments of Mason J and Jacobs J, and perhaps in that of Barwick CJ ^[276] . Whether Barwick CJ shared the geographic externality view depends on what he meant by "affair" when he said: "The power extends ... to any affair which in its nature is external to" Australia. A brief remark by Murphy J ^[277] suggests that he shared this view, but his observations were undeveloped, and it is clear that his conclusion rested on the fact that the legislation under challenge effectively implemented the Convention on the Territorial Sea and the Contiguous Zone and the Convention on the Continental Shelf. In some measure the reasoning of Barwick CJ ^[278] and Mason J ^[279] also rested on Australia's adhesion to these Conventions. Contrary to what the headnote suggests, Jacobs J ^[280] specifically denied that the legislation could be upheld by recourse to the Conventions.

[191] There is thus a controversy about whether the geographic externality view is a basis for the decision in New South Wales v The Commonwealth . Gaudron J ^[281] and McHugh J ^[282] thought it was not. Mason J thought it was ^[283] . Deane J thought it arguably was ^[284] . Gibbs CJ thought that no more than three Justices stated the geographic externality view, and then only as an alternative ground of decision ^[285] . The controversy turns partly on what Barwick CJ meant by "affair", partly on whether Murphy J's brief statement about the geographic externality view was a ground of decision, and partly on the extent to which the reasoning of those Justices finding support in the Conventions can be regarded as having put the geographic externality view as an independent ground of decision or merely as a dictum.

[192] In New South Wales v The Commonwealth ^[286] , Mason J contended that the geographic externality view accorded with what Evatt and McTiernan JJ said in R v Burgess; Ex parte Henry ^[287] . As counsel for the plaintiff submitted, it is difficult to see why. The contention must depend on the discussion by Evatt and McTiernan JJ of Evatt J's judgment in Jolley v Mainka ^[288] and on their statement about the legislation for the Mandated Territory of New Guinea in that case: "[O]f necessity the legislation ... was in respect of matters geographically external to the Commonwealth." ^[289] To select those words as supporting the geographic externality view is to ignore the central basis of Evatt J's reasoning in Jolley v Mainka . He saw the legislation as directed solely towards the performance of international obligations in relation to the former German colony owed to the League of Nations by Australia in its capacity as a signatory of the Treaty of Versailles and a mandatory of the League. Evatt J traced these obligations through Arts 118 and 119 of the Treaty of Versailles, Art 22 of the Covenant of the League of Nations, and the resolutions of the Council of the League made on 5 August 1920, 1 December 1920 and 17 December 1920. The last of these issued the relevant mandate to "His Britannic Majesty, to be exercised on his behalf by the Government of the Commonwealth of Australia" ^[290] . That this was the basis of Evatt J's reasoning in Jolley v Mainka was stressed by Evatt and McTiernan JJ in R v Burgess; Ex parte Henry ^[291] .

[193] Developments before Polyukhovich v The Commonwealth . The geographic externality view was next advanced in Robinson v Western Australian Museum ^[292] and Viro v R ^[293] . The passages are brief obiter dicta. There is nothing to show that any argument was presented on the point. The geographic externality view was repeated in Koowarta v Bjelke-Petersen ^[294] . The relevant statements were brief, but were part of passages upholding the validity of the legislation in question as implementing a treaty. As noted above, it is questionable, however, whether it was right to say, as Mason J said, that in New South Wales v The Commonwealth ^[295] , "a majority of this Court decided that the power extends to matters and things, and ... persons, outside Australia" ^[296] . In The Commonwealth v Tasmania ^[297] Murphy J repeated the geographic externality view, but in a judgment turning on the opinion that the legislation under challenge was valid as implementing a treaty.

[194] Polyukhovich v The Commonwealth and after . There is no doubt that the statements by the majority in Polyukhovich v The Commonwealth supporting the geographic externality view were necessary to the conclusion that s 9 of the War Crimes Act 1945 (Cth) was valid to the extent that it operated on conduct outside Australia ^[298z] . The reasoning of Brennan J ^[299] and Toohey J ^[300] , supporting a version of the geographic externality view which is qualified by the need for some Australian nexus, was necessary to their conclusion also.

[195] In Horta v The Commonwealth ^[301] the Court upheld legislation relating to an area of the Continental Shelf independently of the fact that it implemented a treaty. The Court observed that whether or not the opinion of Brennan J and Toohey J that s 51(xxix) required some connection between affairs geographically external to Australia and Australia was correct, the requirement for which it called was, in any event, satisfied ^[302] .

[196] In Victoria v The Commonwealth ^[303] Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said that the unqualified geographic externality view on which the reasoning of the majority relied in Polyukhovich v The Commonwealth must now be taken as expressing the view of the Court. That was a significant pronouncement. At the time its significance lay in the fact that Brennan CJ and Toohey J, who had not adhered to the unqualified geographic externality view in Polyukhovich v The Commonwealth , now expressed adherence to it. It later became more significant when that pronouncement was referred to with approval by a majority of the Court in passages necessary for its decision in De L v Director-General, NSW Department of Community Services ^[304] . The actual result in Victoria v The Commonwealth , however, turned on the treaty implementation aspect of s 51(xxix).

[197] In De L v Director-General, NSW Department of Community Services ^[305] it was said that the Family Law (Child Abduction Convention) Regulations 1986 (Cth), dealing with the return of children abducted from Australia and the return of children abducted to Australia, were valid under s 51(xxix) independently of whether they implemented an international Convention to which Australia was party. It was said that movements of children between Australia and places physically external to Australia were "external affairs". These statements were necessary steps in the Court's reasoning.

[198] Horta v The Commonwealth was followed in R v Hughes ^[306] , but the geographic externality view was not a necessary step towards the conclusion that the relevant legislation was valid in that case, since the Court found its validity to be supported by s 51(i).

[199] The defendant relied on the following statement of Callinan J ^[307] in Shaw v Minister for Immigration and Multicultural Affairs : "'External affairs' is a simple and clear expression. It is concerned with events, places and people external to Australia and their relation to Australia." When that statement is read in context, it does not support the defendant's arguments. There are two dicta upholding the geographic externality view in Re Aird ; Ex parte Alpert ^[308] but they did no more than cite Polyukhovich v The Commonwealth . Another statement in Re Aird ; Ex parte Alpert ^[309] that the legislation in issue in the present case is valid was a dictum only, and of a very tentative kind. There is also a statement in the same case that legislation making all crimes committed by Australian nationals abroad triable and punishable in Australia could be supported by the external affairs power ^[310] . That was a dictum as well. The five statements referred to in this paragraph were each uttered in a case in which no argument of the kind advanced to the Court in this case was offered. Indeed the respondent in Re Aird ; Ex parte Alpert expressly disavowed reliance on the external affairs power.

[200] This survey suggests that although the geographic externality view has attracted considerable support within the Court since 1975, it formed the ratio decidendi only in Polyukhovich v The Commonwealth; Horta v The Commonwealth and De L v Director-General, NSW Department of Community Services . In view of the division of opinion on this point in relation to New South Wales v The Commonwealth , it cannot be said that the geographic externality view clearly forms part of the ratio decidendi of that case. The three relevant decisions were decided within a five year period. They are relatively recent. Polyukhovich v The Commonwealth was fully argued by counsel and the opinions of the Justices were fully reasoned. It stands in contrast with the later two cases. In neither of them was any application made for leave to reargue the correctness of Polyukhovich v The Commonwealth . In the former the Court held without elaboration that on any of the views stated in Polyukhovich v The Commonwealth the legislation was valid. In the latter it simply applied the majority view in Polyukhovich v The Commonwealth (which the majority in Victoria v The Commonwealth ^[311] had said "must now be taken as representing the view of the Court").

[201] Inconvenience and injustice. These three cases have not become so woven into the fabric of the law as to be irremovable without causing serious damage. The defendant argued, in answer to the plaintiff's contention that the cases resting on the geographic externality view should be overruled, that this view had produced results which were neither inconvenient nor unjust. This, it was said, was demonstrated by a "range of Commonwealth legislation that potentially relies on the principle". Thirteen enactments were referred to. It was submitted, without detailed examination of the enactments, that while some of these gave effect to international obligations, in all of them Parliament had relied on the geographic externality view, and in some Parliament had given the legislation an extraterritorial effect where the "relevant convention may not expressly impose such an obligation". The defendant did not, however, unequivocally submit that any of this legislation was supported only by the geographic externality view of s 51(xxix). In view of the speculative and tentative character of the submissions, and the undesirability of determining the constitutional validity of legislation where that is not in issue and has not been the subject of any specific argument by the parties, it is undesirable to examine in detail each piece of legislation referred to.

[202] There is no doubt that the geographic externality view is useful for the Commonwealth, but questions of inconvenience, even grave inconvenience, have little weight on issues of constitutional interpretation ^[312] . Further, no doubt the geographic externality view will often not operate unjustly, although it arguably does where the action prohibited by Australian legislation is not contrary to the law of the place in which the action occurs. What is significant, however, is that the defendant did not contend that its rejection would cause the collapse of significant legislative schemes, or would, by reason of its having been relied on in some other way, cause inconvenience or injustice beyond that which might flow from the existence of any lacuna which that would leave.

[203] But, in any event, even if inconvenience or injustice were the yardstick, a case brought under the legislation challenged here could itself produce inconvenience. Assume that an Australian national conducts himself in a foreign country in a way which is not criminal by the law of that foreign country but which would be criminal under the challenged legislation. Assume that he is charged in Australia but returns to the foreign country. Assume that the extradition law of that country adopts the double criminality doctrine. The double criminality doctrine would prevent the Australian national being extradited to Australia.

[204] Overruling. In The Commonwealth v Hospital Contribution Fund Gibbs CJ acknowledged that the Court has power to reconsider past authority but also held that such power was to be exercised "with restraint" ^[313] . Gibbs CJ then pointed to various matters relevant, in that case, to the reversal of earlier authority. Three of them were that the past decisions did not rest on a principle that had been carefully reasoned through a series of cases ^[314] , that the past authorities led to "no useful result, but [rather] considerable inconvenience" ^[315] and that the past decisions had not been acted upon by legislatures in a manner which would lead to adverse consequences if they were overruled ^[316] . Callinan J, in Esso Australia Resources Ltd v Federal Commissioner of Taxation ^[317] , was of the view that these matters were not to be applied in a mechanistic way and raised further questions relevant to a reconsideration of past authority. One was "whether the decision of a bench which itself may have overturned what had for a long time been regarded as settled legal orthodoxy should have a monopoly on the thinking on the topic in question for all time".

[205] The statements of Gibbs CJ and Callinan J suggest that the authorities under challenge should be overruled. A wholesale overruling will not be necessary, however. In this case the defendant concurred with the plaintiff's proposition that the results in Polyukhovich v The Commonwealth and Horta v The Commonwealth could be justified on other grounds. To state this proposition is not to deny that, if not overruled, the cases stand as authority for the reasoning they employed ^[318] ; but the proposition does diminish any inconvenience that might be thought to flow from those cases being overruled on this point.

[206] The geographic externality view should be rejected. To the extent that it was a necessary step in the reasoning of three cases, they should be overruled.

Are ss 50BA and 50BC laws that, since they operate on conduct geographically external to Australia, necessarily affect Australia's external relations?

[207] The defendant's argument was that since the legislation operated on a matter external to Australia, it had an "inevitable" effect on Australia's external relations. This does not follow. It might have such an effect; it might not. The effect is not established merely by pointing to the fact that the legislation operates on conduct geographically external to Australia.

Do ss 50BA and 50BC concern Australia's external relations?

[208] The defendant's argument was that the prohibition of child sexual exploitation by Australian residents and citizens abroad concerned, affected and was designed to protect Australia's relations with other countries. It relied on statements in the Second Reading Speech delivered by the Minister for Justice, Mr Duncan Kerr, on introducing the Crimes (Child Sex Tourism) Amendment Bill 1994, containing the clauses which became ss 50BA and 50BC. He said that a minority of Australian citizens and residents were now known internationally as major offenders in several Asian countries; that Australia was "gaining an unenviable reputation in the world press" in relation to child sex tourism; and that the Asian countries which are chiefly affected "welcome any assistance ... that other governments can give" ^[319] . The House of Representatives Standing Committee on Legal and Constitutional Affairs said that the sexual abuse of children by Australian men in Asia "brings Australia into disrepute and ought not to be tolerated by Australians at home" ^[320] .

[209] There are the following difficulties with these submissions. The statements relied on do not actually say that the conduct targeted by the legislation has worsened Australia's relations with other nations, or that enactment of the legislation would improve them. Even if they did, it is questionable whether assertions by members of the executive or by parliamentary committees (as distinct from the public and solemn acts of the executive in entering a treaty and of the legislature in implementing it ^[321] ) can establish a factual condition precedent to a constitutional power to legislate. To accept that they do would give the executive the power not only to enable the Commonwealth legislature to legislate on anything (whether inside or outside Australia) which may affect Australia's relations with other nations, and thereby radically alter the distribution of powers for which the Constitution provides ^[322] -- a course which the cases on treaty implementation323 permit, subject to safeguards ^[324] -- but also to do so on the strength of the "bare ipse dixit" ^[325] of an executive officer or member of Parliament without equivalent safeguards. The latter step is very different from the former.

[210] A further consideration relates to extradition. Extradition is a voluntary act of a sovereign power usually carried out pursuant to a treaty in the interests of comity between nations. For Australia to criminalise conduct in a foreign country, the law of which does not prohibit it, as has been seen, tends to futility by reason of the double criminality rule. It does not fit coherently with extradition law and custom. In addition, it might also affect the relations of Australia with other nations adversely, because, unless it results from a treaty with those nations and extradition arrangements are in place, it could be seen as an attempted intrusion, however ineffectual, into the affairs of those other nations.

[211] The defendant also pointed to two memoranda of understanding entered by Australia, one with the Philippines and the other with Fiji, for joint action to combat child sexual abuse. These, however, post-dated the introduction of ss 50BA and 50BC, and the operation of those provisions in any event is not limited to the territory of those nations or indeed of any other nations that may have requested Australia's assistance in combating child sexual abuse.

[212] Finally, the defendant's submission does not explain how it is to be reconciled with the fact that the operation of ss 50BA and 50BC may adversely affect Australia's relations with countries having a lower age of consent than the age of 16 referred to in ss 50BA and 50BC. A national of one of those countries who is a resident of Australia could be convicted under ss 50BA and 50BC for acts in his or her country of nationality even though those acts were lawful under the law of that country.

Are ss 50BA and 50BC laws with respect to external affairs on the basis that the extraterritorial prohibition of the sexual exploitation of children is a matter of international concern?

[213] The defendant's arguments. The defendant argued that laws on matters of international concern were supported by s 51(xxix). Below, this will be called the "international concern doctrine" for short ^[326] . The defendant argued that the sexual exploitation of children, and its extraterritorial prohibition, were matters of international concern.

[214] The defendant said there were 34 countries which had legislation similar to ss 50BA and 50BC -- about a sixth of the nations of the world; but the Court was told nothing of the legislative position in the other five-sixths of those nations.

[215] The defendant also relied on the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989; the Optional Protocol to that Convention on the Sale of Children, Child Prostitution and Child Pornography adopted by the General Assembly of the United Nations on 25 May 2000; declarations adopted at various World Congresses (including two World Congresses Against Commercial Sexual Exploitation of Children); and various resolutions of the United Nations Commission on Human Rights and the United Nations General Assembly. While the Convention on the Rights of the Child entered into force generally on 2 September 1990, was ratified by Australia on 17 December 1990, and entered into force for Australia on 16 January 1991, the Optional Protocol to that Convention on the Sale of Children, Child Prostitution and Child Pornography was not in force when ss 50BA and 50BC came into force. That Optional Protocol was adopted on 25 May 2000 and entered into force generally on 12 February 2002. Australia has signed it, but not ratified it; hence it is not a party to it. Further, the two World Congresses and many of the resolutions of the United Nations Commission on Human Rights and the United Nations General Assembly came into being after the challenged legislation came into force.

[216] If it be assumed that this material demonstrates that in some sense the sexual exploitation of children is a matter of international concern, the question arises whether the international concern doctrine exists -- the view that the Commonwealth has power by virtue of s 51(xxix) to legislate on a matter of international concern.

[217] The authorities. There is no case in this Court deciding that the international concern doctrine exists. There are dicta which support the view, or which some contend support the view, that it does ^[327] . But there is less to these dicta than meets the eye. Some of them do not in fact support the international concern doctrine as a means of widening s 51(xxix); rather, for example, they discuss whether it narrows s 51(xxix) in its treaty implementation aspect. It is curious that a doctrine potentially narrowing s 51(xxix) so far as it depends on treaties is said to widen s 51(xxix) where no treaty can be relied on. All the dicta, so far as they were approving, were unnecessary for the actual outcome of the particular reasoning in which they appeared. They tended to be passing remarks made in the course of enunciating some more final conclusion, but not all of them were directed to the international concern doctrine itself. Assuming that a matter of "international concern" can be interpreted and defined, the outer limits of and the difficulties in applying such a doctrine do not, with respect, appear to have been tested in the authorities.

[218] In addition to the dicta just discussed, there is also an actual decision of a single judge of the Federal Court of Australia applying the international concern doctrine ^[328] . In that case it was twice seen as important to state that the legislation related to matters of international concern both when it was enacted and when it was contravened ^[329] . These statements reflect the possibility that at different times a matter may not be of international concern, may then become of international concern, and may then cease to be of international concern again ^[330] . But if validity is to depend on the position not only at the time of enactment but also at the time of contravention, the outcome will be that legislation which was once invalid can later become valid, and legislation which was valid when enacted can become invalid. This volatility, and the elusiveness ^[331] connected with attempts to define "international concern", strongly suggest that the international concern doctrine does not exist; for if it did, it would operate antithetically to the rule of law. To those attempts it is now necessary to turn.

[219] What is a matter of international concern? The defendant endeavoured in various ways to overcome the criticism that the international concern doctrine is too vague to be employed as a basis on which to support legislation under s 51(xxix). The defendant submitted that it sufficed if the concern were expressed in resolutions passed at international meetings attended by the representatives of governments (as distinct from private interests). But many things are discussed at international meetings and many resolutions passed about them: are they all of international concern ^[332] ? The defendant submitted that one could list "a fairly small number of" matters which, though their boundaries were admittedly fuzzy, were clearly of international concern -- global warming, genocide, race relations, torture, terrorism, space exploration, air safety, marine safety and exploitation of children. It suggested that smoking cigarettes and drinking alcohol were not of international concern, unless some United Nations conference called for a prohibition on use of these substances. The submission did not, however, explain what the distinction was between these subjects and the many other subjects discussed at international conferences. The defendant could not explain how many nations, or which classes and numbers of persons within nations, must share a concern before a matter becomes one of "international concern". And it did not explain what evidence might demonstrate international concern. At least outside the field of constitutional law, the courts have taken judicial notice of governmental matters such as the existence of a state of war and the recognition of a foreign State by reliance on a certificate from the executive. The question of whether this should be done where the facts are disputed constitutional facts has been left open ^[333] . On the other hand, it has been said that the fact of entry into, and of ratification of, an international Convention evidences the judgment of the executive and of Parliament that the subject-matter of the Convention is of international character; and further that whether the subject-matter of a Convention is of international concern is not a question "on which the Court can readily arrive at an informed opinion" but rather one which involves "nice questions of sensitive judgment which should be left to the executive government for determination" ^[334] . Whether a subject-matter not dealt with by a Convention is of international concern involves equally difficult questions. But if international concern is to be demonstrated otherwise than by public and solemn acts like treaties, what other material, proved by what means, can be considered? The opinions of national governments, and the opinions of particular segments of their populations, can differ across the world: the defendant did not explain how conflicting "international concerns" are to be taken into account in evaluating the existence of Commonwealth legislative power under s 51(xxix) ^[335] .

[220] The difficulty of identifying "matters of international concern" is connected, then, with a difficulty in measuring the extent of the international concern. Which countries share the concern and which do not? Can the concern be said to exist, or to be international, if no treaty has been entered? No doubt many people in many different countries share concerns, but it has not been demonstrated that, in the absence of formal arrangements about them to which Australia is a party, those matters could possibly be regarded as external affairs within the placitum ^[336] .

[221] What limits are there to the Commonwealth's power to legislate? Further, assuming a matter of "international concern" could be identified, the defendant did not explain what boundaries there are to the Commonwealth's power to legislate in relation to it. Will the Commonwealth have plenary power under s 51(xxix) to legislate on a subject of "international concern"? If so, the external affairs power would be a power of very broad scope and would be capable of unduly disrupting the distribution of powers between the States and the Commonwealth -- an outcome which the Court, in developing the application of s 51(xxix) so far as treaty implementation is concerned, has endeavoured to minimise ^[337] . If the international concern doctrine does not give the Commonwealth plenary power, how is the power to be limited? Would the power of the Commonwealth be limited to legislation that is "capable of being reasonably considered to be 'appropriate and adapted'" to addressing the concern ^[338] ? That test, employed in applying s 51(xxix) in relation to implementing treaties ^[339] , seems very hard to apply to matters of international concern: for treaties, indeterminate though the language of some of them is, are normally incomparably more detailed and specific than "matters of international concern".

[222] Novelty of the doctrine. If s 51(xxix) could support legislation on matters of "international concern" it would be a means of upholding the legislation struck down in Australian Communist Party v The Commonwealth ^[340] . If anything could be described as being a matter of international concern, it was Communism in the 1950s. Yet it did not occur to any of the Justices or any of the many counsel during the lengthy arguments in that hard-fought case that the legislation banning the Australian Communist Party could be validated because it related to a matter of international concern. That is not logically fatal to the defendant's argument, but it weakens its credibility.

[223] The international concern doctrine is negated by another aspect of Australian Communist Party v The Commonwealth . It has been said that whether a subject-matter is of international concern is not a question on which the Court can "substitute its judgment for that of the executive government and Parliament" ^[341] . This was said in relation to the treaty aspect of s 51(xxix). If this statement is to be taken as part of the international concern doctrine, it is analogous to Latham CJ's approach to the defence power in Australian Communist Party v The Commonwealth ^[342] :

The decisions to fight Germany and Japan were not made by the Court. The Court was not asked, and did not presume, to hold laws valid or invalid on the ground that the war was or was not really a war for the defence of Australia. The laws were held valid not because the Court agreed with the policy of the Government and Parliament in regarding Germany and Japan as enemies, but because the legislation was held to have a real connection with the war against Germany and Japan. In other words, the action of the Government in declaring war and of Parliament in adopting that decision and legislating in pursuance of it itself created a defence situation which provided a basis for the legislation.

From this Latham CJ concluded that it was not open to the courts to challenge the truth of recitals in the impugned legislation averring that the activities of the Australian Communist Party made it necessary, for the security and defence of Australia, to dissolve it. This conclusion was not accepted by the majority ^[343] . Indeed, it went beyond the defendants' argument in that case which treated the preamble as conclusive not of the facts recited but only of the existence of the legislative opinions disclosed ^[344] . The similarity between Latham CJ's conclusion and the international concern doctrine in this respect casts grave doubt on the latter.

[224] Divisions about the doctrine. The international concern doctrine has never been decisive in this Court. Its life has been quite short. But it has caused sharp divisions within the Court already. Thus in The Commonwealth v Tasmania ^[345] Mason J said of a law being sustained as implementing a treaty under s 51(xxix):

The law must conform to the treaty and carry its provisions into effect. The fact that the power may extend to the subject-matter of the treaty before it is made or adopted by Australia, because the subject-matter has become a matter of international concern to Australia, does not mean that Parliament may depart from the provisions of the treaty after it has been entered into by Australia and enact legislation which goes beyond the treaty or is inconsistent with it.

Of this Dawson J said in Richardson v Forestry Commission ^[346] :

I cannot see why, if it is international concern which gives a subject-matter the character to bring it within the description of external affairs, the conclusion of a limited treaty upon that subject-matter should place outside the external affairs power that part of the subject-matter which is beyond the limits of the treaty. Nor can I see why legislation passed with respect to a matter of international concern should no longer be legislation with respect to external affairs simply because Australia becomes a party to a treaty upon a more limited basis than is reflected by the legislation.

One solution to these problems would be to reject the existence of "international concern" not reflected in treaties as a basis for s 51(xxix) validity. Indeed, Mason J was concerned to negate the possibility that s 51(xxix) gave no legislative power to implement a treaty unless it was shown, independently of the decisions of the executive to enter it and the legislature to implement it, to be of international concern; he did not appear to be endeavouring to advocate s 51(xxix) as giving a power to legislate on any matter of international concern ^[347] .

[225] There are immense difficulties facing any court wishing to recognise, as a matter of decision, the international concern doctrine. The arguments advanced in this case have not resolved those difficulties. In these circumstances it would not be right to uphold the legislation impugned in this case by reliance on the doctrine.

[226] Inapplicability of the doctrine to the present legislation. Even if there are relevant matters of international concern, and even if the international concern doctrine is sound, that doctrine could not support ss 50BA and 50BC. The material relied on by the defendant reveals concern -- let it be assumed to be "international" -- about the sale of children, child prostitution and child pornography. Sections 50BA and 50BC do not criminalise that conduct, they criminalise different conduct. The material also reveals general concern about sexual activity involving children under 12 -- not under 16, because some of the legislation relied on by the defendant for another purpose reveals that in some countries, no matter how many Australians might deprecate it, activity with children as young as 12 is lawful, and in others with children as young as 14 or 15. If the material demonstrates a general concern about children under 12, the legislation, in criminalising conduct with older children, goes beyond the area of international concern.

Questions reserved

[227] At the conclusion of the hearing the Court answered the reserved questions in favour of the defendant. For the reasons we have stated, we did not join in those orders.

[228] Instead, we favour the following answers to the questions reserved for the consideration of the Full Court:

(1)

No.

(2)

No.

(3)

The defendant.