The External Affairs Power: Another Province for Law and Order?

Abstract

Although there was some surprise when the prime minister announced that the government would legislate to give effect to certain conventions of the International Labour Organisation, the way has been open to take this initiative for many years. The possibility of relying on the external affairs power in the Constitution to invoke the conventions, and thereby regulate labour conditions, was first canvassed in the High Court in 1936. Since 1982, there has been a series of cases involving Common wealth legislation founded on conventions to which Australia is party and it is now well established that the external affairs power will support domestic legislation giving effect to Australia's international commitments. To date, Commonwealth legislative initiatives have been in such areas as prohibiting racial discrimination and the protection of world heritage properties, but the reasoning which has been applied by the High Court is equally relevant to legislation providing for regulation of labour conditions. Commonwealth legislation in this field has meant an erosion of state responsibility and the cumulative effect of such legislation raises questions about the disturbance of the federal balance established by the Constitution.