1. Over what matters can Australia enact legislation under the External Affairs head of power? 2. What effects does Australia’s participation in international human rights instruments have on Australian domestic law and policy? What are the legislative mechanisms through which Australia
implements its obligations under various international human rights treaties?3. How effective are such mechanisms in protecting human rights such as the right to freedom from discrimination on the basis of sex or race?4. Is there evidence of a growing willingness to expand the range of legal mechanisms which allow for international human rights norms to find expression in the Australian legal system?5. Did increased international scrutiny over Australia’s domestic human rights record engender political resistance during the Howard era? If so, why?6. What have been some of the important consequences for the federal-state balance of recent High Court cases interpreting s 51(xxix) Constitution?
NB: Students should prepare written answers to the following discussion question and hypothetical before the seminar and be prepared to read and discuss your answer with the class.
7. In a speech delivered just months after the decision in the Tasmanian Dams case was delivered, Sir Daryl Dawson stated that “it is patent that the construction of the external affairs power which has now found favour offers Commonwealth new and independent heads of power on a potentially limitless range of subjects,
whatever restrictions are imposed or latitude allowed in the implementation of a particular treaty”. Other commentators have described the decision in the Tasmanian Dams case as the culmination of
a “transformation” of the Constitution by “extraordinary legal subterfuge” (see BW6, 918-920).Do you agree with the above statement? Why or why not?
In January 2003, Australia entered into a treaty with New Zealand (“The Trans-Tasman Gaming Treaty”) to establish a uniform gambling policy between the two countries. Recent media coverage in both
Australia and New Zealand has highlighted the links between the gambling industry and organized crime in both countries. The relatively unregulated travel between both countries has resulted in
Trans-Tasman money laundering schemes and other crimes associated with the gaming industry.
Article 1 of the Trans-Tasman Gaming Treaty states:“Both state parties to this Treaty hereby agree to regulate, prohibit and control gambling on a uniform basis to control the problems of organized crimes associated with the gaming industry.”
Article 2 of the Treaty further provides in relevant part: (a) “Both State parties to this Treaty agree there shall be no more than 1 pokie per 200 club members in any facility where gambling takes place. No more than 2 gambling facilities shall be allowed within a two mile radius in any city.” (b) “Both state parties to this Treaty agree to prosecute in their ordinary criminal courts offences specified in Schedule 1 to this Treaty, committed in either State, all of which are
associated with the gaming industry.”Pursuant to the Trans-Tasman Gaming Treaty, the Commonwealth government enacted the Uniform Gaming Act 2003 (Cth). Section 1 of the Uniform Gaming Act (Cth) provides: (a) There shall be no more than 1 gambling facility within a two mile radius in any city or town within Australia. (b) There shall be no more than 1 pokie per 150 club members in any facility where gambling takes place within Australia.
Section 2 of the Act provides: “Any criminal activity associated with organized crime in the gaming industry, as specified in Schedule 1 to this Act, shall be punishable in the ordinary criminal
courts in this country, whether the criminal offence takes place in Australia or New Zealand.”
Section 3 of the Act establishes a new Ministerial portfolio for Gaming. The Federal Minister for Gaming is empowered under this Section to veto or approve any advertisement whatsoever which has
the effect of criticising the Trans-Tasman Gaming Treaty. Section 3 specifically provides: (a) No person, Corporation or Authority shall without the Approval of the Minister publish any advertisement, handbill, leaflet or badge advocating the repeal or denunciation of the Trans-
Tasman Gaming Treaty; (b) Any person, Corporation or Authority may apply to the Minister for approval to publish material which would otherwise be prohibited under this Section; (c) The Minister may in his or her absolute discretion approve or veto any advertisement whatsoever which has the effect of advocating repeal or denunciation of the Treaty; (d) Notwithstanding anything else contained in this Section, the Minister shall not approve an application by or on behalf of a State government or instrumentality. After the enactment of this law, the Prime Minister issued the following Press Release: “The Commonwealth government is concerned over the Mounting evidence of links between organized crime and
gambling in both New Zealand and Australia which is destroying the fabric of our society. The creation of a new Ministerial portfolio for Gaming as well as the recently enacted Uniform Gaming Act
will allow us to monitor and control the spiralling crime rate associated with the Gaming industry as well as prevent the wealthy gambling lobby from propping up political parties or otherwise
spending funds to undermine our ability to regulate Australia’s currently out of control gaming industry.”
A few months after the enactment of the Uniform Gaming Act, a letter from the Australian Minister of Foreign Affairs to the New Zealand Minister of Foreign Affairs was disclosed under the Freedom
of Information Act 1982 (Cth). The letter states in pertinent part:“I am delighted we entered into the Trans-Tasman Gaming Treaty because my government will now be able to gain extensive control over gambling which was previously within the domain of the State
legislatures. State governments have demonstrated time and again that they lack the political courage to tackle the key players in organized crime associated with the gaming industry. The Federal
government is now in a position to take the lead on these issues.”Discuss separately whether Sections 1, 2 and 3 of the Uniform Gaming Act 2003 (Cth) are a valid exercise of the external affairs power found in s 51(xxix) Constitution.