Federalism and the External Affairs Power

Abstract

The author considers the particular problems facing a federal system in the conduct and domestic implementation of its foreign policies. She shows how the paucity of constitutional provisions relating to foreign or external affairs has created conflict and uncertainty in the areas of executive and legislative power in the Commonwealth. In the first place, this lacuna has permitted States to assert independent capacity to operate in international circles. In the second, the expansion in the range of subjects treated in international accords highlights State fears that the Commonwealth use its power under section 51(29) to legislate in areas traditionally governed by State law. The author discusses the unprecedented scope that has been given to the external affairs power in recent years, paying particular attention to the two latest cases of Koowarta and the Dams Case. Although optimistic that these developments will benefit Australia's participation in the spreading and fostering of the rule of international law, she acknowledges that as long as the federation continues, this area will continue to be one of enormous political difficulty.

Keywords: federalism, external affairs, constitution, separation of powers

JEL Classification: K1, K3