Since Federation the Commonwealth has taken over or partly so, powers which were originally State powers, such as taxation, health, education, transport and so on.

In these areas the transfer of these powers has been voluntary.Yet at the same time the Commonwealth has the power, by exercising its external affairs power, to override state legislation and policy which are the province of the states.

This has come about through the Commonwealth exercising its External Affairs power to enter into treaties, that is, formal agreements negotiated between national governments.

You will not find treaties mentioned in the Australian Constitution. But you will find in S 51 (xxix) of the Constitution what is known as the External Affairs power.

The External Affairs power has been interpreted by the High Court to give the Commonwealth Parliament power to implement treaty obligations as law for the whole of Australia. The extent of the Commonwealth power to use treaties as a means of overriding State legislation and policy was made clear by the High Court in several cases. One of several examples of this is the Croome and Toomen case.

In 1994 Rodney Croome, a homosexual living in Hobart, handed the Tasmanian Police a statutory declaration providing details of his private sexual activities with his then partner Nick Toomen. At this time, under Tasmanian law sex between adult males was unlawful and carried a maximum 2 years imprisonment if convicted.

Croome's object in giving his statutory declaration to the police was to provoke the police into taking action against himself and Toomen. They wanted the law relating to sex between consulting adult males abolished.

The Police and the Director of Public Prosecutions declined to take the bait and claimed that the matter was not in the public interest to pursue. Hence neither men were arrested nor prosecuted. As a result of the police inaction political lobbying took place to force the Tasmanian Government to repeal the anti-homosexual law. The Government accordingly bowed to political pressure and brought in a bill on five occasions to repeal this law. However, on each occasion when the bill came before the Upper House, it was defeated.

Croome and Toomen thereafter appealed to the United Nations Human Rights Committee pursuant to their right to do so with this body.

The Committee found that the Tasmanian law making it an offence to engage in sexual activity "against the order of nature" violated Australia's obligation under the Human Rights Treaty and therefore the Tasmaninan law should be repealed.

Nevertheless the Tasmanian Government took the view that it was a sovereign state and therefore the law should not be changed on the dictates of this body and took no action.

The Federal Government then stepped in and acted on the UN Human Right findings by passing the Human Rights ( Sexual Conduct ) Act.

The passing of this Commonwealth Act did not apply to Tasmania and as far as the Tasmanian Government was concerned it believed that it had good reasons for retaining its homosexual criminal law to protect public health and morality.

Again Croome and Toomen were frustrated in their efforts to have the law changed. Accordingly they embarked on another tactic : they appealed to the High Court on the ground that a citizen has the right to know which piece of conflicting legislation, state or federal, governs their activities. According to state law their activities were criminal, yet according to Commonwealth law their activities were lawful.

The High Court upheld Croome and Toomen's appeal on the ground that Commonwealth law applied where there was a conflict with a state law on the basis of S109 of the Federal Constitution.

After this decision the Tasmanian Government and members of the Upper House realised that they were beaten and repealed the homosexual criminal law.

Another case is Koowatta v Bjelke-Petersen (1982) 153 CLR 168. In this case the Commonwealth stopped the Queensland Government mining the Barrier Reef. Another case is the Commonwealth of Australia v Tasmania (1983) 158 CLR. This case prevented the Tasmanian Government damming the Franklin River.

The ramifications of these High Court decisions based on the Commonwealth obtaining jurisdiction through a treaty are far reaching. The process of treaty making has three stages : negotiation, signature and ratification. Whenever countries meet together in some diplomatic or international forum there is the potential to negotiate treaties on a variety of subjects and as the Commonwealth is Australia's national government, it can intervene in areas traditionally regarded as the province of the states. This means that the Commonwealth on the basis of a treaty can legislate to override state laws such as in environmental and human rights matters for example.

The Commonwealth's power to make and implement treaties therefore has the potential to undermine Australia's Federal arrangements without recourse to the Constitution's mechanisms. In the case of Victoria v Commonwealth (1996) 135 ALR 129 the High Court confirmed that :-

  1. Treaty obligations must be implemented by legislation if they are to have state legal force i.e. to become domestic law.
  2. Commonwealth legislation implementing treaty obligations will be valid and will override conflicting state legislation
  3. The law under the external affairs power which implements the treaty need not implement the whole treaty
  4. The Commonwealth has a great deal of scope in deciding exactly how it will implement treaty obligations.
It should also be noted that State Parliaments have the power to legislate to implement Australia's treaty obligations insofar as these concern domestic matters normally the subject of state powers.

There are few areas of human activity throughout the world which in one way or another do not impinge upon all of us, regardless of where we live. As a result, through the Commonwealth's treaty making power , our Commonwealth Government can address, if necessary, common worldwide problems such as climate change, nuclear proliferation, and avian flu to name a few, on a national basis without the need to negotiate with the states.

Jim Reeves