Opinion Number. 1770

Subject

WHALINGSCOPE OF COMMONWEALTH’S EXTERNAL AFFAIRS POWER: RATIFICATION BY AUSTRALIA OF AGREEMENTS AND PROTOCOLS RELATING TO WHALING: VALIDITY OF LEGISLATION GIVING EFFECT TO AGREEMENTS AND PROTOCOLS

Key Legislation

CONSTITUTION s 51(xxix): INTERNATIONAL AGREEMENT FOR THE REGULATION OF WHALING done at London on 8 June 1937

Date
Client
The Secretary, Department of External Affairs

I refer to your memorandum dated 25th January, 1946, in connexion with the ratification, by Australia, of certain Agreements and Protocols relating to whaling.

Under placitum (xxix) of section 51 of the Constitution, the Commonwealth has power to make laws for the peace, order and good government of the Commonwealth with respect to external affairs.

The present state of the authorities appears to indicate that the ‘external affairs’ power permits Parliament to pass laws giving effect to an international agreement, provided that the agreement is a genuine agreement entered into for a common purpose, and provided that the legislation is confined within the limits of the terms of the agreement.

In a memorandum to you dated 23rd November, 1939, in connexion with the ratification of the Whaling Convention 1937,1 I expressed the view that it was desirable that the ratification should be made with a reservation as to the limitation of Commonwealth powers. This followed the opinion of the then Attorney-General, who inclined to the narrow interpretation of the power despite the Goya Henry Case.2 Should the question of the extent of the external affairs power come before the High Court again, it is a matter of conjecture whether a wide or narrow view would be adopted, but the decision of the Goya Henry Case would justify the assumption that the wider view would prevail.

I can only say that the legislation giving effect to the Agreements and Protocols in relation to whaling would probably be upheld in the High Court. Pending the receipt of information that the Agreements and Protocols have been ratified, I am not preparing any legislation which may be necessary to give effect to them.