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Federalism and the External Affairs Power

28 Pages Posted: 22 Jun 2009  

Mary Elizabeth Crock

The University of Sydney Law School

Date Written: June 21, 2009


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

Suggested Citation

Crock, Mary Elizabeth, Federalism and the External Affairs Power (June 21, 2009). Melbourne Univeristy Law Review, Vol. 14, No. 2, pp. 238-264,1983; Sydney Law School Research Paper No. 09/59. Available at SSRN:

Mary Elizabeth Crock (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006

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