Education and the External Affairs Power: Implications for the Governance of Australian Schools

Abstract

The High Court of Australia continued to develop its broad interpretation of the external affairs power of the Commonwealth Constitution (section 51(xxix)) in the Koowarta case in 1982. The arguments of the justices and the implications of the decision for the governance of schooling in the Australian federal system — given the several international conventions which have education as a central concern or allude to it and to which Australia is a signatory — are explored in this paper. The broad interpretation oy the Court both gives the Commonwealth powers over education not hitherto held and negates the commonly held view that education is a States’ right. The Court's decision, in which education is incidentally mentioned as being affected by the broad interpretation, necessarily involves the Commonwealth in the governance of Australian schooling, given its obligation to implement treaties to which it is a signatory.

References

Airlines of NSW Pty Ltd v. New South Wales (No. 2) (1965) 113 CLR 54.

Commonwealth of Australia Constitution Act (as altered to 31 August 1970). Canberra: Commonwealth Government Printer, 1970.

Commonwealth v. Tasmania Action No. C12 of 1983.

Convention against Discrimination in Education.

Treaty Series, 1966, No. 20.

Declaration on the Revision of History Textbooks. League of Nations Treaty Series, 1935, 182, p. 263. (The nomenclature was varied in 1937 to the Declaration on the Teaching of History.)

Franklin Dam case. See Commonwealth v. Tasmania.

International Covenant on Civil and Political Rights.

Treaty Series, 1980, No. 23.

International Covenant on Economic, Social and Cultural Rights.

Treaty Series, 1976, No. 5.

International Convention on the Elimination of all Forms of Racial Discrimination.

Treaty Series, 1975, No. 40.

10.

Koowarta v. Bjelke-Petersen and Others, Queensland v. Commonwealth of Australia (1982) 39 ALR 417.

11.

New South Wales.

Department of Education.

Handbook: Instructions and Information for the Guidance of Teachers. Sydney: 1968.

12.

New South Wales v. Commonwealth (1975) 135 CLR 337.

13.

Racial Discrimination Act 1975 (Commonwealth).

14.

R. v. Burgess, Ex parte Henry (1936) 55 CLR 608.

15.

R. v. Poole, Ex parte Henry (No. 2) (1939) 61 CLR 634.

16.

Submerged Lands case. See New South Wales v. Commonwealth.

17.

Vienna Convention on the Law of Treaties.

Treaty Series, 1974, No. 2.