XYZ v The Commonwealth

XYZ v The Commonwealth - [2006] HCA 25 - HCA 2005 case summary — Zoe

[8]

GLEESON CJ. The issue in this case concerns the constitutional validity of legislation enacted by the Parliament which makes it a criminal offence, punishable by the law of Australia, for an Australian citizen or resident, while outside Australia, to engage in certain forms of sexual activity involving children. The Court was informed that legislation of that nature (aimed primarily at what is sometimes called "sex tourism") has been enacted by some 34 countries. The power relied upon to support the legislation is that conferred by s 51(xxix) of the Constitution, that is, the power to make laws for the peace, order, and good government of the Commonwealth with respect to external affairs.
Sections 50BA and 50BC of the Crimes Act 1914 (Cth) respectively make it an offence for a person, while outside Australia, to engage in sexual intercourse with a person under 16, or to commit an act of indecency on a person under 16. By virtue of s 50AD, the first-mentioned "person" relevantly means a person who was, at the time of the offence, an Australian citizen or a resident of Australia.
The plaintiff is an Australian citizen. He has been committed for trial in Victoria for offences against the above laws. The offences are said to have been committed in Thailand in 2001. The alleged victim is neither a citizen nor a resident of Australia. By a case stated, questions as to the validity of the laws were reserved for the decision of a Full Court. Those questions were answered at the conclusion of argument. The Court held that the legislation is valid, and said that reasons would be given at a future date.
No issue of statutory construction arises. That the legislation has, or purports to have, extra-territorial effect is clear. In terms, it relates to conduct outside Australia, but is limited in its operation to the conduct of Australian citizens or residents. Within Australia, territorial legislative jurisdiction with respect to crimes involving sexual abuse of children is exercised by the State and Territory legislatures. The assertion of extra-territorial criminal jurisdiction is not, in itself, contrary to the principles of international law. As has already been noted, an exercise of extra-territorial jurisdiction in respect of this kind of offence has been undertaken by many other countries. The territorial principle of legislative jurisdiction over crime is not the exclusive source of competence recognised by international law. Of primary relevance to the present case is the nationality principle, which covers conduct abroad by citizens or residents of a state. Jurisdiction is also exercised by states under the passive nationality principle, under which foreigners are punished for conduct harmful to nationals of the legislating state, the principle which enables protection of the security of the state, and principles concerning the repression of certain kinds of crime[1].
The fact that international law does not regard criminal jurisdiction as limited to jurisdiction based upon the territorial principle is relevant to the nature of external affairs. It identifies a topic of potential concern to a national legislature. The relevance does not result from any limiting effect upon the construction of the Constitution. Section 51 is a grant of legislative power, and the fact that conceptions of state sovereignty, both at common law and in international law, embrace the existence of a power of the kind exercised by the legislation in question is of assistance in giving content to the constitutional idea of external affairs. The considerations that there are other bases of jurisdiction, that their boundaries are not entirely clear, that the practice of states in asserting extra-territorial jurisdiction varies, and that such assertions may give rise to difficulties in international relations are additional reasons for not giving the power a narrow and confined meaning. Although the present case is not concerned with legislation governing, or purporting to govern, the conduct of foreigners in foreign countries, there are well-known examples of assertions by states of legislative competence of that kind, extending to conduct of foreigners which is lawful where it occurred. Antitrust legislation of the United States of America is one such case. In cases of ambiguity, rules of construction may guide the interpretation of legislation so as to conform to international law[2]. In this Court, in Meyer Heine Pty Ltd v China Navigation Co Ltd[3], early Commonwealth legislation against anti-competitive conduct was construed as applying only to conduct within Australia. Three aspects of that decision should be noted. First, the legislation was enacted in 1906, and amended in 1910, at a time when there was still "an uncertain shadow upon the competence of the Australian Parliament to pass an Act having extra-territorial operation"[4]. Secondly, there was in the language of the legislation itself a very clear indication that its operation was territorially confined. That was a decisive consideration in the reasoning of the majority. Thirdly, Taylor J said that the presumption of territoriality was a rule of interpretation only "and, if by a local statute otherwise within power, provision is made 'in contravention of generally acknowledged principles of international law' it is binding upon and must be enforced by the courts of this country"[5]. Anti-terrorist legislation provides another example of circumstances in which many states are concerned to legislate with respect to conduct occurring outside their territorial borders, and with respect to conduct of foreigners.
Where a state legislates with respect to the conduct abroad of its citizens and residents, and exercises judicial power only upon their return, there is ordinarily no invasion of the domestic concerns of the place where the conduct occurred. Plainly, however, it may be otherwise when other jurisdictional principles are invoked in aid of extra-territorial legislative competence. Professor Brownlie has summarised the effect of international law as follows[6]:

[13]

No doubt the provisions of s 50AD of the Crimes Act, confining (so far as is presently relevant) the operation of the legislation to the conduct of Australian citizens and residents, are explained in part by a desire on the part of the Parliament to conform to international expectations, and to confine the operation of extra-territorial legislation to a basis that is internationally accepted. As was noted earlier, we are not here concerned with a problem of construction of the Crimes Act. Legislation, including criminal legislation, is commonly expressed without territorial reference, and is construed and applied on the understanding "that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State"[7]. This legislation is expressed to apply to conduct outside Australia, but only where engaged in by persons over whom Australia, according to the comity of nations, has jurisdiction. Nor are we concerned with legislation which manifests a clear intention to reach beyond bounds that would be regarded as acceptable according to the comity of nations.
The issue raised in the present case is whether a law which applies to conduct outside Australia by Australian citizens or residents is within the legislative competence of the Parliament as being a law for the peace, order, and good government of Australia with respect to external affairs. The resolution of the issue turns upon the construction of the Constitution and, in particular, the expression "external affairs". It is not argued that the formula "for the peace, order, and good government of the Commonwealth" imports any relevant limitation on legislative power[8].
The argument for the plaintiff is that the Parliament's power to make laws with respect to external affairs is, and is only, a power to make laws with respect to relations between Australia and other countries. Because, in 1901, those other countries included Great Britain and other parts of the British Empire, "external affairs" was regarded as a more appropriate expression than "foreign affairs". Great Britain was not then "foreign". The power, it is said, was conferred to allow the Commonwealth Parliament to enact legislation regulating "relations between Australia and other countries, including other countries within the Empire"[9]. This, in 1901, and for many years thereafter, was seen as "the substantial subject matter of external affairs"[10]. The corollary of the argument is that s 51(xxix) does not confer a general power to legislate extra-territorially.
For this argument to succeed, it would be necessary for the Court to depart from the decision in Polyukhovich v The Commonwealth[11], and to decide that the construction placed upon s 51(xxix) by every member of the Court in that case was wrong. In my view, the Court, upon reconsideration, should hold that Polyukhovich was correctly decided insofar as the decision bears upon the question of construction that arises in this case. Insofar as the decision goes beyond that, and bears, for example, upon Ch III of the Constitution, it is not presently relevant and it is unnecessary and inappropriate to say anything further about it. There was a difference between the view of s 51(xxix) taken by Mason CJ, Deane J, Dawson J, Gaudron J and McHugh J, on the one hand, and the views of Brennan J and Toohey J on the other. That difference does not affect the point presently in issue. Polyukhovich held that the external affairs power covers, but is not limited to, the matter of Australia's relations with other countries. It also includes a power to make laws with respect to places, persons, matters or things outside the geographical limits of, that is, external to, Australia[12]. That conclusion represents the current doctrine of the Court on the external affairs power, and should be maintained because it is correct.
In Victoria v The Commonwealth ("the Payroll Tax Case")[13] Windeyer J, explaining the constitutional consequences of certain developments during the twentieth century, said:

[15]

The development of Australia's nationhood, which included the shedding of inhibitions on its capacity to legislate extra-territorially, and the attainment and maturing of its international status as an independent state rather than a component part of the British Empire, inevitably had consequences for the practical content of the constitutional concept of external affairs. No clearer example of the consequences of that development could be given than one which touches a matter of history upon which the argument for the plaintiff relies. It is true that, in considering the matter of Australia's relations with Great Britain and the other parts of the Empire, Australians in the late nineteenth century would not have described those as "foreign" relations or affairs. Yet, 100 years later, four members of this Court[14], in Sue v Hill[15], held that the United Kingdom was a "foreign power" within the meaning of that expression in s 44 of the Constitution. Reference was made to statements by Windeyer J in Bonser v La Macchia[16] that the law had followed the facts, and that Australia had become "by international recognition ... competent to exercise rights that by the law of nations are appurtenant to, or attributes of, sovereignty"[17]. The developments in nationhood and international status that affected so profoundly Australia's relationship with the United Kingdom have also affected the nature of the external affairs that are now of potential legislative concern. The same developments have been recognised for their effect upon the practical content of the power to make laws with respect to naturalization and aliens. An example of such recognition is Nolan v Minister for Immigration and Ethnic Affairs[18].
The rights that, by the law of nations, are regarded as appurtenant to, or attributes of, sovereignty include the right to regulate, by legislation, the conduct outside Australia of Australian citizens or residents. That is not the full extent of the right, but it is sufficient for present purposes. If the argument for the plaintiff is correct, how is that right now to be exercised by, or on behalf of, Australia? This was the concern raised by Jacobs J in New South Wales v The Commonwealth ("the Seas and Submerged Lands Act Case")[19]. In that case counsel for Victoria put the same argument as has been put for the plaintiff in this case. The argument is reported as follows[20]: "A law is not within s 51(xxix) simply because it deals with or operates upon a thing which is outside Australia. The subject matter is restricted to things which are the subject of the relations between Australia and other countries. The word 'affairs' in par (xxix) is apt to describe relationships between governments." Jacobs J's response[21] to that argument is worth quoting in full, because of its influence on later decisions, especially Polyukhovich:

[19]

That reasoning was criticised in argument in the present case as having been based upon a misconception as to the limits of State legislative power. The capacity of State Parliaments to enact legislation with extra-territorial reach, a matter now dealt with in the Australia Act 1986 (Cth), s 2(1), was discussed in Union Steamship Co of Australia Pty Ltd v King[22], and more recently in Mobil Oil Australia Pty Ltd v Victoria[23]. State legislation requires a relevant territorial connection, but the test of relevance is to be applied liberally, and even a remote or general connection will suffice[24]. Jacobs J was writing before Union Steamship, but Polyukhovich was decided after that case, and in Polyukhovich Deane J (who had been a party to the joint judgment in Union Steamship) expressly agreed with the passage from the judgment of Jacobs J quoted above[25]. Dawson J also emphasised the point that had been made by Jacobs J[26].
The legislation presently in question provides a compelling example of the matter that concerned Jacobs J. Let it be assumed that, consistently with conceptions of sovereignty, it is of legitimate concern for Australia to regulate the conduct, outside Australia, of Australian citizens and residents in relation to sexual abuse and exploitation of children. The proposition that Australia's capacity to respond to that concern depends upon legislative activity by the States and Territories is surprising. The plaintiff is a citizen of Australia. Presumably, on the plaintiff's argument, it would be for the Parliament of Victoria to regulate his conduct in Thailand. And, presumably, legislative competence would be based upon his Victorian residence. Even if that were sufficient connection, on the plaintiff's approach, Australia's capacity to deal with the phenomenon of sex tourism would be limited to the existence of a pattern of potentially different State and Territory legislation. The problem would be even more obvious in cases of extra-territorial legislation based upon the passive nationality principle or the principle of protecting Australia's security. What State power would extend to the enactment of a law aimed at conduct of foreigners, abroad, threatening or damaging Australians or their property? Would a State law against terrorist activity abroad aimed at Australian persons or property be limited to activity aimed at persons or property in that State?
There are some forms of extra-territorial legislation that would not have even a remote or general connection with the States. If the Commonwealth Parliament cannot legislate with respect to such matters, then the federal system "denies the completeness of Australian legislative power"; a conclusion which, as Dawson J said in Polyukhovich, "is unacceptable in terms of constitutional theory and practice"[27].
To deny to the Commonwealth Parliament the power for which the defendant contends would expose a substantial weakness in Australia's capacity to exercise to the full the powers associated with sovereignty. The plaintiff argues that this potential weakness is either non-existent, or exaggerated. In that respect only, the plaintiff invokes State and Territory legislative power and additionally points to s 51(xxxviii). If the power of the Commonwealth Parliament to legislate extra-territorially to the same extent as could the Parliament of the United Kingdom at 1901 depends upon the concurrence of the Parliaments of all the States, that supports the point made by Jacobs J.
Although the plaintiff points to State legislative power to answer the defendant's argument, the dispute about the meaning of s 51(xxix) that arises in this case is not one that raises the kinds of concern about what is sometimes referred to as the federal balance that are raised by some other disputes about that provision[28]. It is the aspect of the external affairs power that the plaintiff acknowledges, and asserts constitutes its entire content, that gives rise to problems of that kind. The plaintiff accepts that the power at least includes power to make laws with respect to matters affecting Australia's relations with other countries, and that includes matters the subject of treaties entered into by Australia. It has sometimes been said that, if a subject matter is of international and not purely domestic concern, that is itself enough to make that subject matter a part of Australia's external affairs. This was said, for example, by Stephen J, in Koowarta v Bjelke-Petersen[29], in a context where his Honour equated matters of international concern with areas properly the subject matter of international agreement. Indeed, in this case, the defendant, as an alternative submission, put that prohibition of conduct involving the abuse and exploitation of children is itself a matter of international concern, and of concerted international action. Because the defendant's primary argument, based on externality, should be accepted, it is unnecessary to resolve that question. The argument, however, and the potential width of a concept which may go beyond obligations assumed by Australia under a treaty, to matters that could properly be the subject of a treaty (if that be what is meant), illustrates the potential for extension of Commonwealth legislative capacity by resort to what is, in this case, the uncontroversial aspect of s 51(xxix). The range of topics that might, on one view, be described as being of international concern, is wide and constantly increasing. We do not need, in this case, to address the problem that arises from the need to relate the external affairs power to the federal scheme. That problem arises out of what is, on the plaintiff's argument, the essence of s 51(xxix). We are here concerned with that aspect of s 51(xxix) that allows the Australian body politic to exercise the plenitude of power which flows from nationhood and independence. That involves no threat to the legislative capacity of the States.
The reasoning in Polyukhovich was criticised as being based upon inappropriate literalism. In particular, it was said to be erroneous to consider, separately, the meanings of "external" and "affairs", and build a composite meaning from the result. There are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts[30]. In the law of defamation, "public interest" does not mean "of interest to the public"; and it may be doubted that a topic is relevantly of international concern simply because it is discussed at an overseas conference. The argument, however, does not do justice to the reasoning in Polyukhovich, which was based upon a consideration of the constitutional consequences of Australia's emergence as a nation, and its independence of Great Britain. Furthermore, the alternative solution offered by the plaintiff, said to involve a purposive construction, is in truth founded upon an incomplete and inadequate description of the relevant purpose. As was emphasised in Sue v Hill[31], the framers of the Constitution were building for the future, and creating a union that would become an independent nation. The Constitution's purpose is not to be taken to be circumscribed by the circumstances of dependence which then applied. Indeed, in 1901 much of what was involved in Australia's relations with other countries was attended to in London rather than in Australia. If the grant of power were not forward-looking, its scope would have been quite limited. Just as the United Kingdom has now become a foreign power, Australia has attained full independence, and the kinds of matters of extra-territorial legislative concern that were potentially the subject of regulation by the United Kingdom Parliament are now potentially part of the external affairs with which the Australian Parliament may be concerned.
It is for those reasons that I joined in the answers to the questions in the case stated that were announced at the conclusion of argument.
GUMMOW, HAYNE AND CRENNAN JJ. The plaintiff is an Australian citizen. On 18 September 2003, he was committed to stand trial in the County Court of Victoria on three charges of offences, each alleged to have been committed in Thailand between 4 July 2001 and 13 December 2001.
The first charge was that the plaintiff engaged in sexual intercourse with a child under 16 years, contrary to s 50BA(1) of the Crimes Act 1914 (Cth) ("the Crimes Act"). The second charge was that he attempted to engage in sexual intercourse with a child under 16 years contrary to s 50BA(1) of the Crimes Act and s 11.1(1) of the Criminal Code (Cth) ("the Code"). The third charge was that he committed an act of indecency on a child under 16 years contrary to s 50BC(1)(a) of the Crimes Act. The child referred to in the charges is not and never has been an Australian citizen or resident.
When committed to stand trial on the charges, the plaintiff entered a plea of not guilty. On 17 January 2005, the Commonwealth Director of Public Prosecutions filed an indictment in the County Court of Victoria alleging the commission by the plaintiff of the acts identified in each of the charges. In advance of his arraignment in the County Court, the plaintiff, on 25 February 2005, instituted an action in the original jurisdiction of this Court seeking a declaration that ss 50BA and 50BC of the Crimes Act are not valid laws of the Commonwealth. A Justice stated a case for consideration of the Full Court under s 18 of the Judiciary Act 1903 (Cth).
The following questions were reserved by the case stated for the consideration of the Full Court:

[60]

The phrase "matter of international concern" appears to have been introduced in the consideration by Willoughby of the treaty-making provisions of the United States Constitution[76]. In the first edition of his treatise, published in 1910, Willoughby sought to limit, not expand, the authority of the President in that regard by contrasting the use of the treaty-making power to regulate or control matters properly and fairly "matters of international concern", and its use to regulate or control matters of domestic law ordinarily relating "to the reserved powers of the States or to the private rights of the individuals"[77]. Thereafter, in 1920, arguments of that nature were rejected in State of Missouri v Holland[78].
In The Tasmanian Dam Case[79], four Justices appear to have indicated that the presence of a subject-matter of international concern sufficed to attract the exercise of the external affairs power even in the absence of a treaty. Dawson J preferred to see the requirement of international concern as a restriction on the power[80]. The subject was revisited in Polyukhovich[81].
Some of the unsettled questions concerning the use of the notion of international concern were raised in argument in the present case. However, given the direct path by which the legislation in question is upheld, these questions may be left for a later occasion on which they arise.
KIRBY J. These proceedings on a case stated for the opinion of the Full Court[82] concern the constitutional validity of two sections[83] of the Crimes Act 1914 (Cth) ("the Crimes Act"). It is pursuant to those sections that the plaintiff, who is an Australian citizen, has been charged with sexual offences involving "a person who is under 16"[84]. The offences are alleged to have occurred in the Kingdom of Thailand.
On 17 November 2005, having heard the arguments of the parties, this Court answered the questions stated in terms upholding the validity of the sections. I agreed in the answers given by the Court. It remains for me to state my reasons.
In his text on constitutional law, Professor P H Lane states that "external affairs" was "once a phrase that had some kind of peculiar connotation with a resulting extent". He complains that now this Court "does not explain 'external affairs' as an identifiable notion"[85]. Whilst this statement is not entirely accurate, at least in respect of that aspect of "external affairs" upon which the Commonwealth primarily relied for the validity of the legislation contested in this case, the general complaint deserves attention. The issue is of constitutional importance because of the risk, expressed by the plaintiff, that the approach to the constitutional validity of the federal legislation urged by the Commonwealth could cause an unravelling of the balances established in the applicable federal legislative power by reference, in particular, to facts, persons or things existing beyond Australia's geographical borders.
Unquestionably, this is a significant issue for the Constitution and for the meaning and limits of the powers of the Federal Parliament. The plaintiff charged that, in the recent elaborations of the "external affairs" power[86], this Court had taken a wrong turning. He submitted that the Court should now return to earlier doctrine lest the more recent explanation of the power become entrenched so as to wound the federation[87].
This case affords an occasion suitable to consider this submission[88]. In the end, it does not avail the plaintiff, for the constitutional validity of the legislation may be upheld on an alternative elaboration of the power. However, the point needs to be noticed so that it is not lost for a future occasion when it might prove to be determinative.

[61]

The facts: The plaintiff is charged with offences against ss 50BA and 50BC of the Crimes Act. He denies his guilt of the alleged offences. However, no submission was put to the effect that, if the offences are constitutionally valid, they do not apply to him, to a "person who is under 16" and to the place outside Australia (namely Thailand) where the "physical elements … of the offence[s]"[89] are alleged to have occurred.
The details of the charges are set out in the reasons of Gummow, Hayne and Crennan JJ[90]. It is not necessary for me to repeat them. One point to notice at the outset is that, as the general age of consent in Thailand was said to be fifteen years, there is thus a possibility that, under the impugned provisions, an Australian citizen or permanent resident might be rendered liable in Australia for acts happening in Thailand that would not constitute a criminal offence in that country. The plaintiff complained about this and about other features of the legislation. It will be necessary to return to those complaints[91]. Whether they ultimately have any relevance to the accusations against the plaintiff is unknown, lying as they do outside the facts appearing in the case stated.
International background: The federal legislation challenged in these proceedings has a background. It can best be understood in the context of a number of events occurring both within and outside Australia.
Of critical importance was the adoption by the General Assembly of the United Nations, on 20 November 1989, of the Convention on the Rights of the Child ("the CRC"). Australia ratified that Convention in January 1991[92]. So have most other nation states. Stimulated by the CRC, and by the commitments contained within it[93], a number of initiatives were taken within the United Nations Organisation, designed to protect children from various harms and dangers[94]. Eventually, an Optional Protocol to the CRC was adopted by the General Assembly on 25 May 2000. By Art 4.2(a) of that Protocol it is provided that:

[72]

The geographical externality criteria: The reasons of Gummow, Hayne and Crennan JJ explain the geographical externality principle, as it has been elaborated to describe the ambit of the powers of the Federal Parliament to make laws with respect to "external affairs", pursuant to s 51(xxix) of the Constitution[99].
Those reasons state that the principle, in the terms in which it was expressed in Victoria v The Commonwealth (Industrial Relations Act Case)[100], is "[t]he modern doctrine". This is the very complaint that the plaintiff makes against the principle, in so far as it claims to express part of Australian constitutional law. He argues that it represents a departure from a carefully formed past doctrine based on a more faithful application of the constitutional text. He submits that it involves the acceptance of an unsettling new approach which was not adequately considered when adopted[101] and has not been sufficiently analysed in the cases in which it has subsequently been applied[102].
In obiter remarks, I have earlier accepted the geographical externality principle in cases where it was not criticised or questioned in argument[103]. So, it seems, have other present members of this Court. The plaintiff argued that this was the error that should now be corrected[104]. The plaintiff said that the holding in Polyukhovich v The Commonwealth (War Crimes Act Case)[105], where, for the first time, a majority of this Court endorsed the geographical externality principle, had been accepted uncritically in subsequent cases. Now, so it was suggested, was the time to pause and reconsider the "modern doctrine" with the benefit of critical analysis, which the Court needed in order to sharpen its federal jurisprudence[106] and to correct a dangerous wrong turning.
Various arguments can be mounted to sustain alternative rationales supporting the actual orders of this Court in Polyukhovich, quite apart from the geographical externality principle. Thus, I agree with the reasons of Gummow, Hayne and Crennan JJ that the outcomes in Polyukhovich, and in later cases, can be supported "upon a qualified view of the scope of the external affairs power"[107].
In some of the cases since Polyukhovich, the constitutional validity of the federal law was not contested[108]. In one case the impugned principle was not critical to the point ultimately decided[109]. In other cases the law in question substantially relied on a treaty, implementation of which is an undisputed basis for a valid federal law relying on s 51(xxix) of the Constitution[110]. In other instances there were, as the reasons of Gummow, Hayne and Crennan JJ state, "obvious" and "substantial" connections between Australia and the contested subject matter[111]. Thus, in Polyukhovich there was at least one matter of "international concern", being the response of nation states to established instances of crimes of universal jurisdiction, provision for which is arguably also a matter affecting Australia's relations with other states and international organisations and thus a law with respect to "external affairs" upon those grounds[112].
Nevertheless, all this being said, the ratio decidendi to be derived from Polyukhovich depends not on what a majority of this Court might have reasoned in arriving at their conclusions but upon the way in which the majority in fact reasoned. Moreover, the binding rule is to be derived from the legal principles accepted by those members of the Court who, for common reasons, agreed in the Court's orders[113]. The principle in Polyukhovich did not emerge out of thin air. It had a number of heralds in the earlier dicta of individual Justices of this Court. These included Jacobs J in New South Wales v The Commonwealth ("the Seas and Submerged Lands Act Case")[114]; Barwick CJ in Robinson v Western Australian Museum[115]; Murphy J in Viro v The Queen[116]; Mason J in Koowarta v Bjelke-Petersen[117]; and Deane J in The Commonwealth v Tasmania (The Tasmanian Dam Case)[118].
Still, the turning point occurred in Polyukhovich when the geographical externality principle gathered support from a majority of the Justices. That majority included Dawson J[119] who, before Polyukhovich, had repeatedly expressed the strongest reservation over an expansive interpretation of the "external affairs" power of the Constitution, lest the power, so expanded, be used to disturb the internal federal balances between the Commonwealth and the States beyond that which was clearly required by Australia's participation in the international community and by its relations with other nation states and international organisations.
The consideration that Dawson J in Polyukhovich treated as critical to tipping the balance in favour of acceptance of the geographical externality principle was his view that "[t]he word 'external' is precise and is unqualified"[120]. Facts, persons and things lying outside the geographical limits of this country fell within the description "external to it" and thus within the language of s 51(xxix) of the Constitution. It was this reasoning that the plaintiff sought to challenge in these proceedings. In my view, this Court should not brush the challenge aside. We should address it, so far as it is necessary to do so in order to reach an outcome.
A binding rule? From the foregoing it follows that if the "modern doctrine", as propounded by a majority in Polyukhovich, correctly expresses the ambit of s 51(xxix) of the Constitution, the conduct proscribed by ss 50BA and 50BC of the Crimes Act, being with respect to facts, persons or things outside the geographical limits of Australia, falls within the meaning of the phrase "external affairs". This supplies a sufficient "constitutional fact" to sustain the validity of those sections[121]. That conclusion, without more, unless its underlying principle is overruled or re-expressed more narrowly, therefore supports the orders announced by this Court. It sustains the constitutional validity of the charges brought against the plaintiff.
The plaintiff did not really contest any of the foregoing. Nor did he suggest that it was possible, in the language of the impugned provisions, to read them down or to re-express them in some way, so as to affect their validity on this hypothesis. For its part, the Commonwealth did not argue for a source of constitutional validity other than s 51(xxix) of the Constitution. Nor, as I have said, was any treaty nominated, the implementation of which would sustain the validity of the contested provisions under that paragraph.
This being the case, it is necessary to consider immediately whether the plaintiff requires, and if so whether he should have, leave to reopen the geographical externality principle as a rule of Australian constitutional law.

[75]

Various considerations of principle and convenience argue against the reopening of the constitutional rules expressed in Polyukhovich. I will assume that the cases since that decision that have applied the geographical externality principle add nothing of importance to the content of that rule. The rule emerged, as I have shown, from observations and reasoning of individual Justices expressed over more than a decade. Brennan CJ and Toohey J, who expressed a different view in Polyukhovich, nonetheless appear (to the extent necessary) to have endorsed its reasoning without relevant qualification in the Industrial Relations Act Case[129]. In consequence, at least to some extent, the principle has been used to sustain particular provisions of federal legislation, the validity of which might be cast in doubt by adoption of a more qualified view of the scope of the external affairs power[130].
Yet are these simply the customary reasons for the exercise of care in giving effect to an opinion about constitutional meaning that is different from that adopted by an earlier majority in this Court? Or is there a procedural barrier of leave that must be overcome, in order to secure consideration by this Court of any submissions critical of past authority about the meaning of the Constitution?
No leave is required: In my view, leave is not required by a party in order to advance arguments contesting a previous determination by the Court as to the meaning of the Constitution. My reasons for that opinion are identical to those stated by Deane J in Evda Nominees Pty Ltd v Victoria[131]. As my own reasons have been stated in several cases[132], including recently[133], I will not repeat them now. In the present case, the plaintiff was allowed to present his full arguments. His counsel did so[134]. I therefore agree with the reasons of Gummow, Hayne and Crennan JJ that it is unnecessary in this case to embark on a detailed examination of the meaning and application of the majority opinion in Evda[135]. That question should be left to a case, if any exists, where it must be determined. This is not such a case.
I therefore proceed directly to the geographical externality principle. It was the primary basis upon which the Commonwealth supported the constitutional validity of the provisions of the Crimes Act challenged by the plaintiff. I accept that a number of arguments can be advanced in favour of the approach expressed in that principle. Many of them are collected, or referred to, in the reasons of Gummow, Hayne and Crennan JJ.

[80]

Whilst not specific to the geographical externality principle, the stated approach shows how, from the very beginning of the Commonwealth, federal officials and federal law were expected, within the Empire, to bear the sole responsibility for Australia's relationships ("affairs") with nations, organisations and entities external to Australia.
The external discrimen: Given the necessity to draw lines in respect of the respective lawmaking and other responsibilities of the federal, State and Territory polities, the relevant line that s 51(xxix) of the Constitution provides, suggested by the reference to "affairs" that are "external", is one that begins at the outer limit of the Australian land mass. This, at least, affords an objective discrimen. It refers to the entirety of the rest of the world and, indeed, so far as relevant, any "affairs" that lie beyond that[142].
"Affairs" and "relations": By reference to the juxtaposition of language in s 51(xxx) (with its mention of "the relations of the Commonwealth with the islands of the Pacific"[143]), the suggestion can be made that if it was intended that "external affairs" refer, and refer only, to "relations" of the Commonwealth with other states, that is what would have been said. Instead, the paragraph is more open-textured. It refers to several areas of legal operation including (but not limited to) the implementation of treaties entered with other nation states, organisations or entities[144].
Once it is accepted that the Constitution is not to be confined to meanings that were held, or to applications that were expected, at the time of its adoption in 1900[145], a functional analysis of its terms lends support to the geographical externality principle.
Responding to external concerns: Clearly, the ambit of international treaties has expanded enormously in recent decades, thereby unquestionably enlarging the denotation of s 51(xxix)[146]. It would be a constitutional misfortune if the Australian Constitution were unable effectively to respond to these changes[147]. If the legislative power conferred by s 51(xxix) were "inapt to embrace the wide responsibilities and obligations now falling upon the Commonwealth ... [which] needs a more ample grant of legislative power to enable it to conduct a foreign policy that is adequate to ensure its security, and to play its proper part as a member of the … institutions which contribute at the present time towards the maintenance of international order [and] the welfare of human beings on a world-wide scale"[148], the result would be a serious inconvenience. While such an inconvenience is not determinative, and some inconvenience is inherent in a constitutional instrument expressing limited powers, where the language of the grant suggests a broader view, that view will generally be preferred having regard to the character of the document in which the grant is made[149].
The geographical externality principle largely solves these suggested problems. It avoids the "irksome"[150] necessity to seek a formal amendment of the constitutional text. It allows the Constitution, read with today's eyes, to respond to the necessities of the present age. To the extent that the text permits it, Australia, as a nation, should be capable of enacting laws, as other nations can do, with respect to "a place, person, matter or thing [that] lies outside the geographical limits of the country"[151].
Safeguards for the federation: Whatever problems and fearsome possibilities may be conceived, including in the form of a Trojan horse dressed in the colours of "external affairs" that could invade the usual subjects of State powers under the Constitution (the anxiety that most troubled Dawson J[152]), that concern is irrelevant in the case of federal laws addressed to subject matters arising in or affecting facts, persons or things geographically external to Australia[153]. In such a case the dangers of constitutional nightmares are thereby avoided, or at least significantly lessened[154]. This is so because, substantially, States are only concerned with lawmaking for their own geographical territory and not beyond.
No constitutional "cripple": There are strong reasons of principle for interpreting the Constitution so as to avoid the risk that the Federal Parliament, in terms of its capacity to make laws apt to the contemporary world, would be an international "cripple", with a gap in its lawmaking powers where that gap is not compelled by the constitutional text[155]. To the plaintiff's suggestion that any "gap" of this kind could be filled, conformably with the Constitution, by invoking s 51(xxxviii)[156], the Commonwealth responded with a reminder of the cumbersome procedures and practical difficulties in adopting that course and limited instances where that paragraph has been used. That head of constitutional power hardly responds, in an effective way, to the current necessities of national and international governance[157]. The Commonwealth invoked the gradual expansion of the recognised powers of legislative extraterritoriality that had accompanied the emergence of Australia as an independent nation and the consequential decline of Imperial inhibitions that had been held applicable in the first decades after federation[158]. The geographical externality principle was thus, at once, a response to the changing international context in which the Constitution must now operate and a consequence of the necessity for the Commonwealth to be in a position to respond effectively to that context. So went the main arguments of the Commonwealth.
Resulting difficulties: Despite the powerful arguments of legal authority and also of legal principle and policy supporting the geographical externality principle, the plaintiff made a number of telling criticisms of that approach. It is necessary to take those criticisms into account in deciding whether the principle, now challenged, should be overruled or re-expressed.

[81]

The original expectations: So far as it is relevant, it seems tolerably clear that, in its purest form, the geographical externality principle was not an approach to s 51(xxix) of the Constitution that would have been accepted by the framers of the Constitution or accepted within the setting of the British Empire in the early decades of federation[159]. The reasons of Callinan and Heydon JJ demonstrate why this is so[160].
Historically, the very reason for adopting in s 51(xxix) the expression "external affairs", as distinct from "foreign affairs", was to address the comparatively limited grant of legislative power which, in 1900, was thought apt to the Federal Parliament of Australia. Most of the "affairs" relevant to dealings between members of the British Empire were then still the responsibility of the Imperial Government at Westminster. So far as legislating with respect to external relations was concerned, in the early days of federation that remained in large part the continuing responsibility and concern of the Imperial authorities.
"Affairs" and "relations": Allowing that the Constitution must be construed according to what it means now, not what it meant in 1900, the starting point for the plaintiff was suggested by the text. The word "external" in s 51(xxix) was designed to connote relationships and things connected with other nations and with international organisations, both within and outside the British Empire. But for the legal opinion that parts of the British Empire were not "foreign" to each other[161], the words in s 51(xxix) would probably have read "foreign affairs". That, then, was the real subject matter with which (absent the Imperial gloss) the power was intended to deal. Yet once that ambit is understood, it is clear that, in its ordinary Australian meaning, "external affairs" connotes "international relations; activities of a nation arising from its dealings with other nations"[162]. The plaintiff urged this Court to return to that meaning, which, he argued, was implicit in the composite idea of "external affairs". Even allowing for a contextual and non-originalist approach to the meaning of s 51(xxix) of the Constitution, the plaintiff submitted that the terms of the paragraph were confined to relationships with foreign nations, a concept that should be restored.
Uniform earlier authority: The plaintiff argued that the adoption of the "modern doctrine" of s 51(xxix) had involved a radical shift from the earlier decisions of this Court concerning the meaning of that paragraph. In R v Burgess; Ex parte Henry[163], counsel explicitly advanced an earlier version of the geographical externality principle. However, it was not accepted by the Court. It is clear enough from the reasons of all members of the Court in Ex parte Henry that they derived much significance for the meaning of the phrase from the word "affairs", used in conjunction with "external". Their Honours' approach was not ostensibly confined to construing the power strictly in accordance with what it had been taken to include in 1900. On the contrary, some of their reasons in that case explicitly traced the gradual emergence of Australia's international personality[164].
Nevertheless, the proposition that s 51(xxix) should be construed as giving power to make laws with respect to matters external to Australia, as such, was not adopted. Latham CJ said that "the substantial subject matter of external affairs" was "[t]he regulation of relations between Australia and other countries, including other countries within the Empire"[165]. The Chief Justice considered the phrase as equivalent to a power to make laws with respect to "foreign affairs or relations"[166]. A like connotation, equating "affairs" to "the more common expression" of "foreign relations of a State", was accepted by Starke J[167]. In his reasons, Dixon J expressed the "evident … purpose" of the paragraph as being[168]:

[85]

There is nothing in any of the reasons in Ex parte Henry to lend support to the geographical externality principle. On the contrary, all the reasons appear to accept that "external affairs" is concerned with external relations or relationships of Australia with other nation states. This is the essential meaning that the plaintiff asked this Court to restore.
Meaning of composite expressions: As a textual matter, there is a difficulty in some of the more recent reasoning of members of this Court, so far as they have attempted to explain the expression in s 51(xxix) by splitting up the words and giving separate meaning to "external" and to "affairs" as, arguably, Deane J did in Polyukhovich[170]. We now appreciate that this is an inaccurate way of construing composite expressions[171]. Each part of such an expression throws light on the meaning of the rest. Each must be taken into account.
The Constitution did not here use the word "foreign" or "external" in association with "matters"[172] or "people"[173] or "disputes"[174]. Still less did the Constitution confer on the Federal Parliament, as the British North America Act of 1867 had done in Canada[175], a legislative power to make laws with respect to the general subject of crime which, with expanding notions of extraterritorial operation of laws, could apply to facts, persons and things occurring in the territory of foreign countries.
It was the context of the phrase considered as a whole, and especially the use of the word "affairs", that led Gibbs CJ in Koowarta[176] to favour confining the application of the power in s 51(xxix) of the Constitution to "public business, transactions or matters concerning men or nations collectively"[177]. The plaintiff therefore urged that this meaning of the phrase "external affairs" was grounded in more than half a century of this Court's authority. It was more consonant with the evident purpose of the power and its history as appearing in a written Constitution conferring specific and limited powers upon the new Federal Parliament that it created. The plaintiff called for this Court to reverse its departure from the earlier doctrine that had followed the embrace by a minority of the new argument of the Commonwealth in the Seas and Submerged Lands Act Case[178].
Reconciliation with treaty strictness: Whilst the plaintiff accepted, and authority supported, the notion that s 51(xxix) extended beyond the making of treaties and laws to give those treaties effect within Australia, he submitted that a comparatively unbridled power, suggested by the geographical externality principle, was incompatible with a unified notion of the meaning of the paragraph in the Constitution. He argued that it risked unravelling the careful limitations which the Court's previous expositions of s 51(xxix) had established.
Thus, if all that were required to sustain a federal law as valid was some application or relevance to a place, person or thing existing beyond the geographical boundaries of Australia (and especially if, as some dicta proposed, the opinion of the Parliament was to be treated as conclusive as to that connection[179]) the previous insistence of Australian constitutional law upon close conformity between the provisions of a treaty and the federal laws enacted to give such treaty effect[180] would be effectively put at nought. Why bother implementing a treaty, the plaintiff asked rhetorically, if the strictures of compliance with the treaty were unnecessary and all that was required to uphold the validity of a federal law was that it could be characterised as one "with respect to" a fact, person or thing geographically external to Australia?
The plaintiff argued that there was an unresolved tension between the geographical externality principle and the principle upholding the constitutional validity of laws based on treaties. The tension could only be resolved by a return to the expositions of s 51(xxix) appearing in Ex parte Henry which, the plaintiff insisted, were already ample enough to permit lawmaking by the Federal Parliament as required for Australia's full participation in relationships with other nations where grounded in an obligation of legal derivation, not a nebulous concern.
Endangering past authority: In elaboration of this last submission, the plaintiff argued that, if the geographical externality principle were correct, it would open the constitutional doors to federal lawmaking with respect to an enormous range of subjects. It would suggest that earlier important decisions of this Court had been wrongly decided.
Thus, if it could be argued that the Communist Party Dissolution Act 1950 (Cth), held not to be a law with respect to "defence"[181], was nonetheless a law with respect to "external affairs"[182] because of the world-wide character of the communist threat found by the Federal Parliament to exist beyond Australia and because of the service outside Australia of an Army battalion then operating under the United Nations flag in Korea, the decision in the Communist Party Case[183] could have been different. That decision denied the power of the Federal Parliament, by statutory preamble, to find conclusively the existence of the requisite constitutional power[184]. There would remain questions of characterisation of the law as one "with respect to" facts, persons or things geographically external to Australia. However, the very large ambit encompassed by the "modern doctrine" is beyond question. Particularly is this so because of the accumulation of matters beyond Australia's borders that are now relevant to the claims of federal lawmakers to make laws having effect within those borders.
Dangers to federalism: The plaintiff also pointed out that it is not accurate to suggest, simply because a place, person or thing is geographically outside the mainland territory of Australia, that it necessarily falls beyond State lawmaking powers, so that any federal laws enacted on the basis of the "modern doctrine" could cause no effective disturbance to the federal-State balance.
States now enjoy substantial powers to enact laws having extraterritorial operation[185]. Quite apart from this consideration, as the present case demonstrates, the geographical externality principle, in its most ample application, would certainly authorise federal laws that cut across the enactment of State laws otherwise having operation within the State's own territory. An example may be seen in ss 50DA and 50DB of the Crimes Act providing "[o]ffences of benefiting from, or encouraging, offences against this Part". Those sections, which appear to be directed to travel organisations and like bodies engaged in advertising or promoting child sex tourism, might ordinarily be the subject of State laws, expressing State offences for conduct that would often occur wholly, or substantially, within the borders of the State concerned. The notion which Dawson J appeared to accept in Polyukhovich[186], that there was no danger to the federal-State balance in the geographical externality principle, appears erroneous or at least doubtful in the light of provisions such as ss 50DA and 50DB of the Crimes Act.
In constitutional terms, this particular issue might not be a large problem. However, it cannot be said to be "of no moment"[187], at least in the present case. The plaintiff complained that the Commonwealth had confused the expansion of the extraterritorial operation of a constitutional power that already exists and the expansion of the power itself, beyond its previously acknowledged ambit. The plaintiff urged this Court to return to adherence to that distinction, which, he said, was essential to the scheme of a written federal Constitution that divided power between the several lawmakers in Australia and demanded conformity with its provisions if enacted law were to be valid.
Whilst accepting that the grant of power to the Federal Parliament to make laws for the peace, order and good government of the Commonwealth was expressed in the language of a grant and not in terms of a limitation upon power, the plaintiff argued that the character of the federal Constitution and its purposes required a relevant nexus to exist between the constitutional interests of the Commonwealth and the subject matters to which an enacted federal law was addressed. To the extent that such a law went beyond "external affairs", in the sense of the relationships between nation states (and now relationships with international organisations), it exceeded the proper subject matter of s 51(xxix) of the Constitution. It was therefore invalid.

[87]

Conflicting features of the Constitution: The arguments of the plaintiff in this case have planted a doubt in my mind concerning the geographical externality principle. It is a doubt that was not previously there. I do not accept, as the plaintiff urged, that the Polyukhovich principle should be overruled. However, the plaintiff's submissions call attention to some difficulties in the "modern doctrine" that have not, so far, received sufficient attention from this Court. Such attention may be needed in future cases where the sole constitutional foundation available or propounded for a federal law is that it is made with respect to facts, persons or things external to Australia, without connection otherwise to relationships with other nation states and with international organisations that seem to be implied by the composite expression "external affairs".
In accepting arguments about the scope of federal legislative powers, this Court should be conscious of two important and sometimes conflicting features of the Constitution. The first is the federal character of the polity thereby created. This introduces checks and balances. It divides the power of lawmaking. The divisions are essential to the constitutional design. They are also protective of individual liberties and personal freedoms. Liberties and freedoms can sometimes be endangered by the concentration of power within modern government[188]. It may therefore be necessary for this Court to look afresh at its federalism jurisprudence to ensure that it accords with the constitutional text and purpose.
The second feature is the functional capacity of the Constitution to adapt so as to be relevant to a world in which Australia must now operate as an independent nation state - a world quite different from that of 1900. In that world, there are now so many facts, persons and things external to Australia's geographical borders that, if this is accepted as a valid criterion for sustaining federal laws applicable to facts, persons and things within Australia, there would be almost no limit to the lawmaking power thereby accorded to the Federal Parliament. This is why Brennan J in Polyukhovich[189] proposed the need for some additional factor of connection ("nexus" with Australia) to reconcile the second stated feature with the first. The present case suggests to me that the Court needs to revisit Brennan J's reasoning and to elaborate the geographical externality principle further before applying it as an accepted doctrine of Australian constitutional law.
Avoiding problematic issues: Having identified the problems raised by the plaintiff, I can circumvent them in this case. There is, in my view, an alternative foundation for the constitutional validity of the challenged provisions of the Crimes Act. At the risk of being criticised as "unduly timorous or full of self-doubt"[190], I will therefore place the geographical externality principle aside in the present case. I will do so because of what I regard as unresolved difficulties that can be left to another day.
The main alternative bases propounded by the Commonwealth for affirming that the impugned provisions of the Crimes Act constitute laws with respect to "external affairs" were that, on the uncontested materials placed before this Court, they were laws with respect to a "matter of international concern" or laws affecting Australia's external relationships with other nation states and with international organisations. Should either of these arguments be accepted? Do they sustain the provisions of the Crimes Act as valid laws, made under the Constitution?

[96]

Against the background of this international and national evidence, the Commonwealth submitted that, whatever the precise ambit of the expression "matter of international concern" might be, the subject of sexual offences against children by Australian nationals in foreign countries was such a matter. It was therefore one that attracted the power to enact laws under s 51(xxix) of the Constitution.
The contrary arguments: In resisting these submissions, the plaintiff repeated many of his earlier arguments to challenge the proposed criterion of "matter of international concern". Once it is accepted that the legislative power with respect to "external affairs" is not confined, as such, to giving effect to binding treaties, the plaintiff acknowledged that some other verbal explanation had to be found to support legislation apt to the full engagement of Australia with the external world, as it now exists.
The plaintiff complained that the suggested criterion of a "matter of international concern" was far too broad to provide a stable and meaningful foundation for the legislative validity of federal laws under s 51(xxix) of the Constitution. On this view, some additional adjectival qualification (such as "real", "genuine", "widespread", "pressing", "established" or "undisputed") had to be deployed to confine the power to an ambit that is clear and proper to its context[201]. Alternatively, some other controlling requirement must be introduced, by an alternative verbal formula (such as having a strong "nexus between Australia and the supposed subject of external affairs" or "capable of being reasonably considered to be 'appropriate or adapted'" to addressing the concern[202]) so as to prevent any suggested "matter of international concern" from becoming a means that would destroy the federal character of the Australian Constitution. Certainly, a vastly increased number of matters are now of "international concern". They expand every day. As a criterion of federal law, the concept would therefore be virtually limitless and potentially destructive of Australian federal arrangements.
It is desirable that the Federal Parliament, as the legislature of the national government of Australia, should be able to make laws with respect to matters of international concern to the fullest extent possible as the legislatures of other independent nations may do. However, this is subject to certain qualifications[203]. First, such laws must conform to the constitutional requirements stated in an instrument of government of defined and limited powers. Relevantly, they must be laws with respect to "external affairs". Secondly, they must be laws compatible with the divisions of power within the federal polity. Thus, at the very least, they must not, in the guise of being laws with respect to "external affairs", endanger the continued existence and constitutional viability of the States provided for in the Constitution. Thirdly, any such laws must conform to the other requirements of the Constitution, such as those contained in Ch III. The notion that the Federal Parliament in Australia must have plenary and untrammelled power to make laws having some relationship to international or external concerns is not one that is unarguably consistent with such a carefully calibrated, limited and federal constitutional document.
The powers of the Parliament under s 51(xxix) are broad indeed. They are more than ample for most purposes. But they are not and cannot be unlimited. It is the Constitution that limits them. And it is the duty of this Court to uphold the limits.
Conclusion: an undeveloped concept: As with the geographical externality principle, I prefer to put this second argument of the Commonwealth to one side. The suggestion that the constitutional validity of federal laws could be demonstrated by showing that they were made with respect to a "matter of international concern" is still undeveloped in Australia[204]. This second argument may, like the first, assign insufficient attention to the appearance of the word "external" in connection with the word "affairs".
It is therefore appropriate to move, finally, to the third argument for validity advanced by the Commonwealth, namely that the contested law is one with respect to the international relationships of Australia with other nation states and international organisations and on that basis is within the external affairs power of the Constitution. I can take this step immediately because, as will appear, I am of the view that it provides a convincing argument for validity. It is an argument that gives full force to the word "affairs" in the constitutional grant. It is also one that is consistent with the long-standing authority of the Court that the power afforded in s 51(xxix) is one concerned at its core with international relationships.

[98]

The active nationality principle: The understanding of how this third explanation of the ambit of "external affairs" comes about first requires brief mention of a development of international law that occurred during the first century of the Commonwealth. Starting from a general principle that "crime is local" and historically part of the public law of a nation[205], international law might have developed in a way that forbade one nation state making its own laws imposing criminal liability by reference to the conduct of its own nationals within the territory of another nation state[206]. Such laws might have been viewed as an infringement by the former nation state of the sovereign rights of the latter.
However, this is not the way international law in fact developed. Instead, the active nationality principle holds that "[t]here is no restriction on the competence in international law of a State to prosecute its own nationals for acts done on foreign territory"[207]. In the present case, both Thailand (under the territorial principle) and Australia (under the active nationality principle) could exercise jurisdiction over the plaintiff in full conformity with international law. The international relations of nation states, including those of Australia and Thailand, have developed in accordance with this principle of international law. Indeed, the principle has been clear, at least since the decision of the Permanent Court of International Justice in The Case of the SS "Lotus"[208] more than seventy years ago.
Necessarily, a prosecution based on the active nationality principle affects, to some degree, the external relations of Australia with other nation states, notably in this case with Thailand. It does so because both nations assert a right to impose criminal liability by reference to events that happened within the territory of Thailand and which involved alleged conduct with at least one person there who, by inference, is a Thai national or resident. That person and possibly others in Thailand might be called upon to give evidence in a prosecution of the plaintiff. Some might possibly have to come to Australia for that purpose. To this extent, the relations between Australia and a country external to Australia, namely Thailand, are affected, to some degree at least, by the provisions of the Crimes Act whose validity the plaintiff contests.
Once a relationship with another nation state is enlivened (as it necessarily is in the facts of the present case) there is incontestably an "external affair". No doubt or hesitation can arise in the attribution of that phrase to the relationship between states that is inherent in the criminal process envisaged in the present case by the contested provisions of the Crimes Act.
That the provisions intended to enliven the foregoing principle of international law governing the relations between nation states is clear from the terms of s 50AD of the Crimes Act stating that a person must not be charged with an offence of the impugned kind, allegedly committed outside Australia, unless, at the time of the offence, the person was an Australian citizen or a permanent resident of Australia. On the facts contained in the stated case, the plaintiff's Australian citizenship sufficiently enlivens that provision. It afforded a clear connection between the plaintiff and the subject matter of the federal law[209].
On this footing, within this view of the ambit of s 51(xxix) of the Constitution, power existed under that paragraph to enact the law. As the notion of the power of the Federal Parliament to enact laws having extraterritorial operation was enlarged[210], the impediments to the making of such federal law evaporated so long as the relationship with another state was affected by the intended prosecution. Subject to what follows, the effects on the relationship with Thailand (and in other cases with other nation states by the very terms of the contested provisions of the Crimes Act) sufficiently found the validity of the provisions in s 51(xxix) of the Constitution.
Characterisation of the law: There are dicta in the cases that might be understood as suggesting that the courts should defer to the Federal Parliament or the Executive of the Commonwealth in the determination of the relations of Australia with other nation states and with international organisations. Such dicta might suggest that whether such relations sustain laws of the impugned kind is a matter exclusively for the Parliament or the Executive to decide[211]. Certainly, in the Australian system of government, the conduct of foreign relations is peculiarly the responsibility of the Executive Government of the Commonwealth[212]. It is not, as such, a responsibility of courts.
Nevertheless, the rule of law is a foundational principle of the Australian Constitution. It is inherent in the provisions and purposes of Ch III of the Constitution. This Court cannot surrender, or renounce, its duty of determining the character of a law where the constitutional validity of that law is questioned. The Parliament cannot, by preamble or statutory assertion, exclude the courts from the performance of their constitutional function to decide contested questions as to the meaning and validity of a federal law. This is as true of a law said to be supported by s 51(xxix) of the Constitution as one supported by any other source of constitutional power.
It is not necessary in this case to explore this issue further. The Commonwealth did not rely solely on the language of the Crimes Act, without more. On the contrary, it placed much material before this Court to explain the background and purpose of that law. That material was received as affording constitutional facts upon which the Court was invited to act.
The facts so received unquestionably demonstrated the active involvement of many states, including Australia, in multilateral and bilateral relationships designed to respond effectively to sexual offences by the nationals of those states against children in other states. As well, active debates in the agencies of the United Nations and in other international and regional bodies over the past two decades have concerned the protection of children from sexual conduct on the part of foreign nationals. The material received by the Court affords clear evidence that the subject matter of the challenged provisions of the Crimes Act is (and already was when the law was enacted) one relevant to the external relations of Australia with the international organisations concerned. The participation of many nation states in the activities of such international organisations reinforces the conclusion already reached that the subject of the law is one with respect to the relations of the Commonwealth with nation states other than Australia and thus within s 51(xxix) of the Constitution[213].
Conclusion: validity is sustained: Subject to what follows, this conclusion is sufficient to sustain the constitutional validity of the impugned provisions of the Crimes Act. These provisions are shown to be laws with respect to the relationships (relevantly between Australia and Thailand) affected by the alleged conduct in Thailand of an Australian national. They also affect the relationship between Australia and the United Nations treaty body with responsibility for the implementation of the CRC, a treaty that Australia has ratified. Upon this basis, even on a qualified understanding of the external affairs power, a constitutional foundation for the challenged law is proved. The law, although having operation within Australia, is made with respect to Australia's international relationships. It is thus valid under the Constitution as a law with respect to "external affairs".

[99]

An argument of proportionality: The plaintiff had one last argument. It was not expressed in terms of proportionality. However, that is what, in my view, the argument involved. The plaintiff complained that, even if the constitutional criteria postulated by the Commonwealth for the validity of a federal law on sexual conduct of Australian nationals and permanent residents with children outside Australia were established[214], the impugned provisions of the Crimes Act extended beyond, and differed from, these criteria. The plaintiff argued that the provisions of the law, in their potential field of operation, were invalid because the contested sections of the Crimes Act far overreached the power relied upon. Having regard to the preceding analysis, the question so presented arises for me only in respect of that elaboration of the external affairs power expressed in terms of the relationships of Australia with foreign states and international organisations. Accepting that criterion, is the contested law disproportionate (that is, not "reasonably appropriate and adapted")[215] to the exercise of the external affairs power so understood?
In support of this argument, the plaintiff pointed to a number of features of the law. Thus, the relevant provisions of the Crimes Act are not confined (as they might have been) to the implementation of a treaty (such as the Protocol to the CRC) or even, if that would be valid, of any Memorandum of Understanding with Thailand, such as those that have since the enactment of the law been negotiated with the Philippines and the Fiji Islands. The result, so the plaintiff submitted, was a law of general application that imposed Australian criminal sanctions upon conduct occurring overseas, included some conduct that was not criminal in the place where the conduct happened. This was so in the case of Thailand where the age of consent was said to be fifteen years, not sixteen as provided in the Crimes Act of Australia. A fortiori, the law also applied to events involving Australian citizens and permanent residents in countries with substantially lower ages of consent for lawful sexual relations. For instance, Canada adopts a general age of consent of fourteen years for most sexual activity. The same age is said to apply in Albania, Croatia, China, Colombia, Germany, Hungary and Iceland. In some countries, such as Chile and Mexico, the age of consent is said to be twelve years[216].
In these circumstances, the plaintiff asked how criminalising, according to Australian law, conduct that was not criminal where it occurred could ever possibly affect the relationships between nation states or with international organisations? Instead, he submitted, the law represented an illegitimate and over-extensive attempt, beyond the available federal power, to impose Australian cultural norms on activities happening elsewhere in the world. The spectre was presented of an adult Canadian citizen who was an Australian permanent resident being prosecuted on his return to Australia for consensual sexual intercourse or activity lawful in Canada with a person older than fourteen but younger than sixteen years[217]. Alternatively, the danger was propounded of the Federal Parliament, supposedly based on Australia's relationships with other nation states or international organisations, enacting laws cutting across different laws enacted by the Australian States on a wide range of matters. Different ages of consent for the purposes of State and Territory criminal laws have long been a feature of Australian legislation[218]. The potential use of federal law to undermine the effect of reforms achieved by States and Territories locally was implicit in these submissions.
In default of a provision limiting criminal liability in Australia to a case of equivalent liability in the place where the relevant events occurred[219], the plaintiff argued that the true character of the impugned law was not, as asserted, a law with respect to the external relationships of the Commonwealth with other nation states or international organisations. It was revealed, instead, as a law with respect to a crime involving a matter of postulated domestic concern for which the Federal Parliament had no applicable legislative power under the Constitution.
The law is proportionate: Having regard to the terms of the impugned provisions of the Crimes Act, these arguments should not be accepted in the circumstances of this case. Assuming for present purposes that the constitutional power cannot rely on a criterion of operation merely by reference to geographical externality, and putting aside the suggested criterion of a "matter of international concern", the remaining explanation of s 51(xxix) of the Constitution suffices to sustain the validity of this law. This is so despite apparent discrepancies in the operation of the federal law in particular cases.
True, there is no statutory reason why an instance of the kind postulated involving the hypothesised Canadian citizen could not arise[220]. However, in a law of general application applying to acts occurring anywhere other than Australia, such discrepancies are bound to arise in a minority of instances because the Australian federal legislation chooses to adopt a uniform age of consent of sixteen years. The prosecutorial discretion; the judicial conduct of the trial; the common sense of juries; and the exercise of discretions in any punishment that is imposed might respond to disparities of the kind complained of by the plaintiff, were they to arise in practice. Such disparities do not deprive the provisions of the Crimes Act under which the plaintiff has been charged of the constitutional character that sustains their validity upon the basis that I have explained. They remain laws with respect to Australia's relationships with other nation states, in this case Thailand. And for constitutional validity that is enough.
It may be said that, if laws of the present kind were to become common, other countries could impose on people criminal responsibility for acts, not necessarily sexual, done or omitted whilst in Australia, although such acts are perfectly lawful here. However, these are complaints that do not affect the validity of the law contested in this case. There was no suggestion in the materials before this Court that any particular problem had arisen out of the legislation of a very large number of nation states that have already imposed extraterritorial criminal liability upon their nationals for offences against children occurring in foreign jurisdictions[221]. The age of sixteen chosen by the Federal Parliament is now the most common age of consent applicable in Australian criminal law[222]. In so far as it is relevant to determining the constitutional question of proportionality ("reasonably appropriate and adapted"), and thus the constitutional character of the law, the Australian legislation is neither unusual nor impermissibly overreaching. It appears generally consistent with laws passed by many other nation states. That feature of the law brings it within the external affairs power of the Constitution as that power has long been understood.
The validity of the impugned law can therefore be decided in the present case without reaching any final conclusion on the more difficult constitutional arguments propounded by the Commonwealth: namely "geographical externality" and "matter of international concern". In my view, both of these arguments require further analysis and elaboration to ensure that they are consistent with the essential constitutional postulate of federalism and with the notion inherent in that postulate that the Constitution is one of divided and limited lawmaking powers. Such division is often the best safeguard of limited government and of personal freedom. It is therefore a division to be cherished and safeguarded. When it is at any risk, it behoves this Court to proceed with caution.

[117]

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

[149]

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".
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.
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.

[155]

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.
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.
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].
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.

[159]

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.
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.
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].
Developments before Polyukhovich v The Commonwealth. The geographic externality view was next advanced in Robinson v Western Australian Museum[292] and Viro v The Queen[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.
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[298]. 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.
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].
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).
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.
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).
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.
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").
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.
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.
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.
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".
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.
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.

[163]

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].
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 implementation[323] 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.
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.
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.
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.

[165]

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.
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.
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.
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.
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.
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.
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].
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].
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".
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.
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]:

[383]

R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 687 per Evatt and McTiernan JJ ("the Parliament may well be deemed competent to legislate for the carrying out of 'recommendations' as well as the 'draft international conventions' resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations" - a dictum limited in several respects); Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 217 per Stephen J ("A subject-matter of international concern necessarily possesses the capacity to affect a country's relations with other nations and this quality is itself enough to make a subject-matter a part of a nation's 'external affairs'"), at 234 per Mason J ("a matter which is of external concern to Australia having become the topic of international debate, discussion and negotiation constitutes an external affair before Australia enters into a treaty relating to it") and at 242 per Murphy J ("matters of international concern" said to be "the observance in Australia of international standards of human rights"); The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 131 per Mason J, at 171 per Murphy J ("it is not necessary that the subject be one of concern demonstrated by the other nation States generally. For example, concern expressed by the world's scientific community or a significant part of it over action or inaction in Australia might be enough to bring a matter within Australian external affairs") and at 258-259 per Deane J (quoting Evatt and McTiernan JJ); Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 560-561 per Brennan J, 604-605 per Deane J and 657 per Toohey J. In Richardson v Forestry Commission (1988) 164 CLR 261 at 322 Dawson J said a majority in The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 supported "sufficient international concern" as a basis for attracting power under s 51(xxix); whether or not they did (his assertion that Brennan J did at 222 may be doubted and a key part of the passage in Mason J's opinion at 129-132 he relies on has been called "somewhat ambiguous": Zines, The High Court and the Constitution, 4th ed (1997) at 294), he proceeded to discuss the proposition with considerable coolness. In Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 604-605 Deane J suggested that several Justices in Richardson v Forestry Commission supported "sufficient international concern" but it is hard to see that any did apart from Dawson J in the special sense just mentioned. ↑

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