XYZ v Commonwealth

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
XYZ PLAINTIFF
AND
THE COMMONWEALTH OF AUSTRALIA DEFENDANT
XYZ v The Commonwealth [2006] HCA 25
Date of Order: 17 November 2005
Date of Publication of Reasons: 13 June 2006
M14/2005
ORDER
The questions set out in the Case Stated dated 2 June 2005 are answered as follows:
(1)Q. Is either of sections 50BA and 50BC of the Crimes Act 1914 (Cth) a law "with respect to … External affairs" within section 51(xxix) of the Constitution?
A.Yes, both of them.

(2)Q. If the answer to question (1) is "no", is either of sections 50BA and 50BC of the Crimes Act 1914 (Cth) otherwise a valid law of the Commonwealth?
A.This question does not arise.

(3)Q. By whom should the costs of the Case Stated to the Full Court of this Honourable Court be borne?
A.The plaintiff.

Representation:
S J Gageler SC with K L Walker for the plaintiff (instructed by Buxton & Associates)
D M J Bennett QC, Solicitor-General of the Commonwealth with R J Orr for the defendant (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
XYZ v The Commonwealth
Constitutional law (Cth) – External affairs – Plaintiff charged with three offences of engaging in sexual activity with a child under 16 years while outside Australia contrary to ss 50BA and 50BC of the Crimes Act 1914 (Cth) – Whether either of ss 50BA and 50BC of the Crimes Act are laws with respect to external affairs – Whether "external affairs" extends to any place, person, matter or thing lying outside the geographical limits of Australia – Whether "external affairs" is restricted to subjects having some connection with Australia – Whether "external affairs" is restricted to matters touching or concerning the relationships of Australia with other countries and international organisations – Whether "external affairs" extends to "matters of international concern" – Relevance of proposition that "external affairs" extends to implementation of treaty obligations.
Constitutional law (Cth) – Constitutional interpretation – Whether permissible to consider separately the meaning of components of a composite phrase – Relevance of distorting or alarming possibilities – Relevance of possible lacuna in the plenitude of the combined legislative powers of the various Parliaments of the Australian federation – Relevance of original meaning of the Constitution – Relevance of development of Australian nationhood – Relevance of extra-territorial reach of other heads of legislative power in s 51 to the interpretation of s 51(xxix) – Relevance of principles of international law concerning extra-territorial legislation – Relevance of the federal character of the Commonwealth – Relevance of notion of proportionality.
Constitutional law (Cth) – Overruling – Whether leave necessary to reopen such authority of the Court as upheld the geographical externality principle – Whether such authority should be overruled.
Criminal law – Sexual offences – Child sex tourism offences – Crimes Act 1914 (Cth), ss 50BA, 50BC – Whether such offences valid laws under the Constitution.
Words and phrases – "external affairs".
Constitution, ss 51(xxix), 51(xxxviii).
Australia Act 1986 (Cth), s 2.
Crimes Act 1914 (Cth), ss 50AD, 50BA, 50BC.
Criminal Code (Cth), s 11.1(1).

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].
[1]Generally, see Brownlie, Principles of Public International Law, 6th ed (2003) at 299-306; Oppenheim's International Law, 9th ed (1992), vol 1 at 456-479; In re Piracy Jure Gentium [1934] AC 586 at 589.
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.
[2]R v Jameson [1896] 2 QB 425 at 430.
[3](1966) 115 CLR 10.
[4](1966) 115 CLR 10 at 43 per Windeyer J.
[5](1966) 115 CLR 10 at 31.
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]:
"Extra-territorial acts can only lawfully be the object of jurisdiction if certain general principles are observed:
(i)that there should be a substantial and bona fide connection between the subject-matter and the source of the jurisdiction;
(ii)that the principle of non-intervention in the domestic or territorial jurisdiction of other states should be observed;
(iii)that a principle based on elements of accommodation, mutuality, and proportionality should be applied. Thus nationals resident abroad should not be constrained to violate the law of the place of residence."
[6]Brownlie, Principles of Public International Law, 6th ed (2003) at 309.
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.
[7]Niboyet v Niboyet (1878) 4 PD 1 at 7, cited by Dixon J in Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 at 424. See also R v Jameson [1896] 2 QB 425 at 430 per Lord Russell of Killowen CJ.
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].
[8]cf Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 635-636 per Dawson J, 695 per Gaudron J.
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.
[9]R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 643 per Latham CJ.
[10]R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 643.
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.
[11](1991) 172 CLR 501.
[12]Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 528 per Mason CJ, 602 per Deane J, 632 per Dawson J, 696 per Gaudron J, 714 per McHugh J; Horta v The Commonwealth (1994) 181 CLR 183; Victoria v The Commonwealth (The Industrial Relations Act Case) (1996) 187 CLR 416 at 485 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.
In Victoria v The Commonwealth ("the Payroll Tax Case")[13] Windeyer J, explaining the constitutional consequences of certain developments during the twentieth century, said:
"The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in any strict legal sense; and certainly the Constitution did not make them so. They were self-governing colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former powers and gained no new powers. They became components of a federation, the Commonwealth of Australia. It became a nation. Its nationhood was in the course of time to be consolidated in war, by economic and commercial integration, by the unifying influence of federal law, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations."
[13](1971) 122 CLR 353 at 395-396.
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].
[14]Gleeson CJ, Gaudron J, Gummow J and Hayne J.
[15](1999) 199 CLR 462.
[16](1969) 122 CLR 177 at 223-224.
[17](1999) 199 CLR 462 at 487.
[18](1988) 165 CLR 178.
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:
"The words 'external affairs' must be given their ordinary meaning. It is true that the operation of the power may have been limited in 1900 by the concept that Australia, lacking sovereignty, could legislate only for its territory; but that limitation, if it existed, did not alter the meaning of the words. It is not a sufficient reason for reading down the meaning of these words that there are other provisions of the Constitution, eg s 51(xxx), which expressly confer power to legislate with extra-territorial effect or which, eg s 51(x), may place a particular limitation in favour of the States on the power to legislate extra-territorially.
The express power of the Australian Crown to make laws with respect to places outside, or matters or things done outside the boundaries of the Commonwealth is no more fettered by notions of extra-territoriality than is the power possessed by the British Crown. That power attached to the British Crown by virtue of the pre-eminence and excellence which it claimed and which, even though there be limitations imposed by the common law itself as well as by statute on its exercise by the Crown in Council, is wholly without limit when exercised by the Crown in Parliament. Hence sprang the sovereignty of the British Parliament at Westminster and it followed that no statute of that Parliament could be held invalid on any ground whatsoever, even if it invaded the rights of the Crown or of the subject under the common law, even if it operated extra-territorially and even if it violated international law.
Clearly the Crown in the Australian Executive Council and in the Australian Parliament has one bound which the British Parliament has not, for it cannot transgress the Constitution. But subject to that Constitution it in Council and in Parliament has that pre-eminence and excellence as a sovereign Crown which is possessed by the British Crown and Parliament. Exactly when it attained those qualities is a matter of the constitutional history of the British Commonwealth of Nations largely reflected in the Imperial Conferences following the Great War. Legal recognition came through the Statute of Westminster, 1931 and its later adoption by Australia. Now the Constitution is the only limitation. There is no gap in the constitutional framework. Every power right and authority of the British Crown is vested in and exercisable by the Crown in Australia subject only to the Constitution. The State legislatures do not have that sovereignty which the British legislature and now the Australian legislature possess. A State can only legislate in respect of persons acts matters and things which have a relevant territorial connexion with the State, a connexion not too remote to entitle the law to the description of a law for the peace welfare and good government of the State ... The words of s 51 of the Constitution do not import any similar territorial limitation and there now is none in the case of the Australian legislature. The words 'external affairs' can now be given an operation unaffected by any concept of territorial limitation. The result is that the Commonwealth, outside the boundaries of the States and subject to any particular constitutional injunctions, may make laws on all subject matters in exercise of its sovereignty."
[19](1975) 135 CLR 337.
[20](1975) 135 CLR 337 at 347.
[21](1975) 135 CLR 337 at 497-498.

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].
[22](1988) 166 CLR 1.
[23](2002) 211 CLR 1.
[24](2002) 211 CLR 1 at 22-23 [9].
[25](1991) 172 CLR 501 at 603.
[26](1991) 172 CLR 501 at 638.
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].
[27](1991) 172 CLR 501 at 638.
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.
[28]Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 632 per Dawson J.
[29](1982) 153 CLR 168 at 217.
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.
[30]eg General Accident Fire and Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax [1982] 2 NSWLR 52. In the course of argument before the Privy Council, Lord Wilberforce remarked that an Australian who looked up the words "commission" and "agent" in a dictionary would probably be surprised to be told that, in England, a commission agent is a bookmaker.
[31](1999) 199 CLR 462 at 487-488 [51]-[52] per Gleeson CJ, Gummow and Hayne JJ, 524-525 [162] per Gaudron J.
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:
(1)Is either of sections 50BA and 50BC of the [Crimes Act] a law "with respect to ... External affairs" within section 51(xxix) of the Constitution?
(2)If the answer to question (1) is "no", is either of sections 50BA and 50BC of the [Crimes Act] otherwise a valid law of the Commonwealth?
(3)By whom should the costs of the case stated to the Full court of this Honourable court be borne?
At the conclusion of the hearing by the Full Court on 17 November 2005, the Court answered the questions as follows:
(1)Yes, both of them.
(2)This question does not arise.
(3)The plaintiff.
What follows are our reasons for joining in the order made on 17 November 2005.
The legislation
Sections 50BA and 50BC are included in Pt IIIA of the Crimes Act (ss 50AA‑50GA). This Part is headed "Child Sex Tourism" and was inserted into the Crimes Act by s 3 of the Crimes (Child Sex Tourism) Amendment Act 1994 (Cth). The legislation has since been amended by the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)[32]. Section 50BA(1) states:
[32]Sched 10.
"A person must not, while outside Australia, engage in sexual intercourse with a person who is under 16.
Penalty: Imprisonment for 17 years."
Paragraph (a) of s 50BC(1) states:
"A person (the first person) contravenes this section if, while the first person is outside Australia:
(a)the first person commits an act of indecency on a person who is under 16".
Section 50AD, so far as material, provides:
"A person must not be charged with an offence against this Part that the person allegedly committed outside Australia unless, at the time of the offence, the person was:
(a) an Australian citizen; or
(b) a resident of Australia".
The second charge, that of attempting to engage in sexual intercourse with a child under 16 years, is founded upon s 50BA(1) of the Crimes Act supported by s 11.1(1) of the Code. The Code provision states:
"A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed."
As already indicated, the plaintiff contended that ss 50BA and 50BC were invalid because neither was a law supported by the external affairs power in s 51(xxix) of the Constitution. The questions stated for and answered by the Full Court identified the two sections without confining them to s 50BA(1) and par (a) of s 50BC(1), but no point was taken on that account. We proceed on the footing that, if s 50BA(1) and par (a) of s 50BC(1) are valid, the provisions as a whole are valid. It also is to be remarked that the answer by the Full Court that s 50BA and s 50BC are valid did not confine the reach of the external affairs power to acts allegedly committed outside Australia by Australian citizens or residents.
The modern doctrine
In the joint judgment of five members of the Court in the Industrial Relations Act Case[33], it was said:
"The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth[34]. Dawson J expressed the doctrine in these terms[35]:
'[T]he power extends to places, persons, matters or things physically external to Australia. The word "affairs" is imprecise, but is wide enough to cover places, persons, matters or things. The word "external" is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase "external affairs".'
Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ[36]; Deane J[37]; Gaudron J[38]; and McHugh J[39]. They must now be taken as representing the view of the Court."
[33]Victoria v The Commonwealth (1996) 187 CLR 416 at 485 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.
[34](1991) 172 CLR 501.
[35](1991) 172 CLR 501 at 632.
[36](1991) 172 CLR 501 at 528‑531.
[37](1991) 172 CLR 501 at 599‑603.
[38](1991) 172 CLR 501 at 695‑696.
[39](1991) 172 CLR 501 at 712‑714.
In the present case, the "matter or thing" which lies outside the geographical limits of Australia is the conduct proscribed by the terms of ss 50BA and 50BC of the Crimes Act ("A person must not" and "A person ... contravenes this section if" respectively). The result is that the proscribed conduct falls within the meaning of the phrase "external affairs" and supplies a sufficient "constitutional fact".
Such an outcome is consistent with what was foreseen by Dixon J in R v Burgess; Ex parte Henry[40]. His Honour accepted that the power conferred by s 51(xxix) would enable the Parliament to make laws operating outside the limits of the Commonwealth, even if the "primary purpose" of the head of power was not to regulate conduct occurring abroad. Dixon J added[41]:
"The limits of the power can only be ascertained authoritatively by a course of decision in which the application of general statements is illustrated by example."
[40](1936) 55 CLR 608 at 668‑669.
[41](1936) 55 CLR 608 at 669. See also the remarks of Deane J in The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 258.
The case law
The plaintiff's primary submission is that s 51(xxix) does not support a law "simply because that law operates on matters or events outside Australia". The Commonwealth submits to the contrary. The plaintiff further contends that, to the extent that this Court held otherwise in Polyukhovich[42] and Horta v The Commonwealth[43], those decisions are incorrect and should be overruled. The considered statement in the Industrial Relations Act Case[44], set out above, was said to be but comment made in passing.
[42](1991) 172 CLR 501.
[43](1994) 181 CLR 183.
[44](1996) 187 CLR 416 at 485.
At the time the information against him was laid, Polyukhovich was an Australian citizen and resident[45] and the charges arose out of events in the then Soviet Union during the Second World War, in which Australia had been allied to the Soviet Union. As to Horta, there was an obvious and substantial nexus between Australia and exploration for petroleum resources in the Timor Gap[46]. Hence, the outcome in those cases might be supported upon a qualified view of the scope of the external affairs power.
[45](1991) 172 CLR 501 at 523.
[46](1994) 181 CLR 183 at 194. See further Commonwealth v WMC Resources Ltd (1998) 194 CLR 1.
Two further authorities should be mentioned here. In De L v Director-General, NSW Department of Community Services[47], the Court upheld the validity of regulations made under the Family Law Act 1975 (Cth), whose support by the Hague Convention respecting international child abduction was called into question. In the joint judgment of six members of this Court, it was said of this submission[48]:
"The subject matter of the Regulations, the return of children abducted from Australia and the return of children abducted to Australia, is concerned with the movement of children between Australia and places physically external to Australia. It thus falls within the content of the phrase 'external affairs' in s 51(xxix) of the Constitution. Accordingly, the legislative authority for the making of the Regulations, found in s 111B [of the Family Law Act], is to be supported in this sense as a law with respect to external affairs[49] independently of the Convention[50], and the Regulations, in turn, take this character."
The citation of the Industrial Relations Act Case as containing an authoritative exposition of the external affairs power should be noted.
[47](1996) 187 CLR 640.
[48](1996) 187 CLR 640 at 650 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[49]Industrial Relations Act Case (1996) 187 CLR 416 at 485, 566‑568, 571‑572.
[50]Industrial Relations Act Case (1996) 187 CLR 416 at 486‑489, 566‑568, 571‑572.
Thereafter, in R v Hughes[51], the view was expressed by all members of this Court that a federal law regulating the placing by Australian investors of moneys in the United States would attract s 51(xxix). The law would relate to matters territorially outside Australia but would touch and concern Australia.
[51](2000) 202 CLR 535 at 556 [42], 583 [118].
Several points are to be made respecting these authorities. The first is that what was said in Hughes and decided in Polyukhovich, Horta and De L concerned legislation which touched and concerned Australia. Accordingly, these authorities may be supported on a narrower reading of s 51(xxix) than the requirement of a geographically external matter or thing, as urged by the Commonwealth and denied by the plaintiff. The second concerns the plaintiff's challenge to the broader reasoning apparent in these cases and the need for the plaintiff first to obtain leave before pressing his point to conclusion.
It is unnecessary to embark upon the question of what is involved in the statement in the joint judgment in Evda Nominees Pty Ltd v Victoria[52] that leave of the Court is required before the Court hears argument urging it to depart from "the actual decision" in earlier cases[53]. That is because any re‑opening would be futile. The reading of s 51(xxix) accepted in the Industrial Relations Act Case is correct and denies the reading for which the plaintiff contends in the present case.
[52](1984) 154 CLR 311 at 316.
[53]As to stare decisis in constitutional cases, see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 554.
The construction of s 51(xxix)

The broad terms in which heads of legislative power may be expressed in the Constitution do not provide a sound basis for a reading which restricts their scope out of fear of some distorting or alarming possibility. The point has been made in this Court on various occasions[54]. One such distorting possibility has had an apparent influence upon some minority judgments in cases upholding legislation based upon treaties touching "domestic" matters. But that particular concern is of no moment in the present case.
[54]Western Australia v The Commonwealth ("the Territorial Senators Case") (1975) 134 CLR 201 at 271, 275; Queensland v The Commonwealth (1977) 139 CLR 585 at 604‑605; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 380‑381 [87]-[88]; Sue v Hill (1999) 199 CLR 462 at 480 [26].
The distinction was explained as follows by Dawson J in the course of his judgment upholding the legislation challenged in Polyukhovich. His Honour remarked[55]:
[55](1991) 172 CLR 501 at 638.
"In perceiving that the Constitution requires the exclusion of domestic matters from the ambit of the external affairs power, I have elsewhere pointed to the division of legislative power between the Commonwealth and the States and have observed that, if international concern over entirely domestic matters were sufficient to bring those matters within the external affairs power, par (xxix) would have the potential to obliterate the division which s 51 was intended to effect. To construe par (xxix) in that way would be to disregard entirely its constitutional setting."
However, Dawson J continued[56]:
"But if, as I think to be the case, it is necessary to have regard to the scheme of the Constitution in construing the external affairs power, the result is different with regard to circumstances external to Australia. For although the sovereignty of the Australian nation is divided internally between the Commonwealth and the States, there is no division with respect to matters which lie outside Australia. There the sovereignty of the nation is the sovereignty of the Commonwealth which may act as if it were a unitary state without regard to the 'conceptual duality' within Australia to which Stephen J referred to in the Seas and Submerged Lands Case[57]. There is no corresponding capacity on the part of the States, either singly or together."
To that his Honour added[58]:
"Indeed, any limitation upon the power of the Commonwealth to legislate with respect to matters outside the country would leave a gap in the totality of legislative power which the Constitution bestows upon the Commonwealth and the States. An interpretation of the Constitution which denies the completeness of Australian legislative power is unacceptable in terms of constitutional theory and practice. Apart from express or implied constitutional prohibitions or limitations, it is not to be contemplated that there are laws which no Parliament has the power to pass".
[56](1991) 172 CLR 501 at 638.
[57]New South Wales v The Commonwealth (1975) 135 CLR 337 at 458.
[58](1991) 172 CLR 501 at 638.
Counsel for the plaintiff challenged this reasoning. They pointed to what was said to be the plentitude of the extraterritorial legislative competence of the States spelt out or confirmed by s 2 of the Australia Act 1986 (Cth) and the decision shortly thereafter in Union Steamship Co of Australia Pty Ltd v King[59]. Further, s 51(xxxviii) of the Constitution ensured there need be no "gap" between the competence of the Parliament at Canberra and that at Westminster, if there be the request or concurrence of State Parliaments[60]. The words "within the Commonwealth" in s 51(xxxviii) do not import a territorial limitation upon laws supported by that head of power[61].
[59](1988) 166 CLR 1.
[60]Paragraph (xxxviii) reads:
"[T]he exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia".
[61]Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 376‑378.
Of these submissions two things may be said. First, they assume at a theoretical level a common legislative purpose among the States. However, practical considerations suggest that a common purpose may sometimes be absent. Secondly, it is appropriate to recall, in dealing with the interrelation between s 51(xxix) and other heads of legislative power, what was said by Latham CJ in Burgess. His Honour remarked[62]:
"It has been argued that s 51(xxix) should be construed as giving power to make laws only with respect to some external aspect of the other subjects mentioned in s 51. Prima facie it would be as reasonable to argue that any other single power conferred by s 51 is limited by reference to all the other powers conferred by that section – which is really an unintelligible proposition. There is no reason whatever why placitum xxix should not be given its natural and proper meaning, whatever that may be, as an independent express legislative power."
[62](1936) 55 CLR 608 at 639. See also the judgments of Mason J and Jacobs J in the Seas and Submerged Lands Case (1975) 135 CLR 337 at 471, 497.
Words of O'Connor J, uttered in 1908 and often repeated in this Court[63], are in point when construing s 51(xxix). In Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association[64], after noting that the broad and general terms of the Constitution were "intended to apply to the varying conditions which the development of our community must involve", O'Connor J continued[65]:
"For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose."
[63]See, for example, R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225‑226; Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 378‑379; Street v Queensland Bar Association (1989) 168 CLR 461 at 527, 554. See generally Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 at 492 [16].
[64](1908) 6 CLR 309 at 368.
[65](1908) 6 CLR 309 at 368.
Hence that branch of the argument for the Commonwealth in the Seas and Submerged Lands Case[66] that the sea and the shelf were external to Australia and therefore proper subjects for legislation under s 51(xxix) because "external" means external to the Australian land mass. That submission was accepted and developed by Barwick CJ, Mason J and Jacobs J[67]. Murphy J[68] said that the power was not limited to the making of laws for the implementation of treaties or conventions. In particular, Mason J emphasised that the term "affairs" was not limited to relationships with other countries[69]. From this basis there developed the statements of principle respecting the construction of s 51(xxix) encapsulated a decade ago in the passage in the Industrial Relations Act Case[70] set out earlier in these reasons.
[66](1975) 135 CLR 337 at 342.
[67](1975) 135 CLR 337 at 360, 470‑471, 497‑498.
[68](1975) 135 CLR 337 at 503.
[69](1975) 135 CLR 337 at 470.
[70](1996) 187 CLR 416 at 485.
The plaintiff criticised this course of development in the construction of s 51(xxix), but it is in line with well‑settled principles of constitutional interpretation.
Particular submissions by the plaintiff
The plaintiff urged that the proposition that it suffices for validity of a law reliant upon s 51(xxix) that it operates on matters, persons or things external to Australia is contrary to the connotation of the phrase "external affairs" as understood in 1900. To that the following statement in the Industrial Relations Act Case[71] is in point:
"[T]he external relations of the Australian colonies were in a condition of continuing evolution and, at that time, were regarded as such. Accordingly, it is difficult to see any justification for treating the content of the phrase 'external affairs' as crystallised at the commencement of federation, or as denying it a particular application on the ground that the application was not foreseen or could not have been foreseen a century ago."
With respect to the position in the United States, Holmes J spoke memorably to like effect in State of Missouri v Holland[72].
[71](1996) 187 CLR 416 at 482.
[72]252 US 416 at 433 (1920).
The plaintiff further submitted that what is supported by par (xxix) is the implementation of international obligations under treaties and under customary international law. That may readily be accepted, but there is no pregnant negative that the power has no other operation. The point is illustrated by what was said by Dawson J in The Tasmanian Dam Case[73]:
"It is, of course, true that a law can be a law with respect to external affairs although it is not made in the implementation of any international obligation. The subject-matter of the law may of itself be within that category although it is not passed pursuant to any international obligation. Such matters as diplomatic rights and immunities, the treatment of fugitive offenders, the determination of external boundaries or the excitement of disaffection against other countries are affairs which, on their face and without more, are within the legislative power of the Commonwealth".
[73](1983) 158 CLR 1 at 300‑301.
Finally, the plaintiff referred to the territorial reach of other heads of legislative power in s 51 of the Constitution as bearing upon (and confining) the interpretation of s 51(xxix). That matter has been considered earlier in these reasons.
The Commonwealth's submissions
The Commonwealth correctly submitted that legislation proscribing conduct engaged in outside Australia, such as s 50BA and s 50BC of the Crimes Act, is supported by the external affairs power. That is so without the further requirement, here imposed by s 50AD, that the person alleged to have committed the offence outside Australia must be an Australian citizen or a resident of Australia.
However, the Commonwealth also submitted, as an independent ground for validity, that the subject-matter of the provisions in question is a "matter of international concern". Particular reliance was placed upon what had been said on that subject by Stephen J in Koowarta v Bjelke-Petersen[74]. His Honour remarked[75]:
"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'."
[74](1982) 153 CLR 168.
[75](1982) 153 CLR 168 at 217.
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].
[76]cf Henkin, Foreign Affairs and the Constitution, (1972) at 152, which gives the primary source as a speech by Charles Evans Hughes in 1929.
[77]Willoughby, The Constitutional Law of the United States, (1910), vol 1, §190; cf The Constitution of the United States of America, Analysis and Interpretation, (1996) at 486.
[78]252 US 416 (1920).
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].
[79](1983) 158 CLR 1 at 131‑132 per Mason J, 171‑172 per Murphy J, 222 per Brennan J, 258‑259 per Deane J.
[80]See Richardson v Forestry Commission (1988) 164 CLR 261 at 322‑323.
[81](1991) 172 CLR 501 at 561‑562 per Brennan J, 604‑605 per Deane J, 657‑658 per Toohey J.
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.
[82]Case stated by Hayne J, 2 June 2005. The name of the plaintiff was anonymised, taking into account s 15YR(1) of the Crimes Act 1914 (Cth). See [2005] HCATrans 311.
[83]Sections 50BA and 50BC.
[84]Crimes Act, ss 50BA(1) and 50BC(1)(a).
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.
[85]Lane's Commentary on The Australian Constitution, 2nd ed (1997) at 284.
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].
[86]Constitution, s 51(xxix).
[87]Specifically as to the plenary ambit of s 51(xxix) of the Constitution in any law with respect to facts, persons and things beyond the geographical limits of Australia.
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.
[88]Cf Dalton v NSW Crime Commission [2006] HCA 17 at [94]-[97].
The facts and legislation
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.
[89]Crimes Act, s 50BA(2). See also s 50BC(2).
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.
[90]Reasons of Gummow, Hayne and Crennan JJ at [21]-[23].
[91]See below these reasons at [146].
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:
"Each State Party may take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 3, paragraph 1 [including '[s]exual exploitation of the child'] … (a) [w]hen the alleged offender is a national of that State or a person who has his habitual residence in its territory".
[92][1991] Australian Treaty Series 4.
[93]CRC, esp Arts 19, 34.
[94]A World Summit for Children was held in September 1990, concluding with the World Declaration on the Survival, Protection and Development of Children.
Australia, through the federal Executive Government, took a leading part in drafting, proposing and securing the adoption of this Protocol[95]. However, the Commonwealth did not rely upon the Protocol as a treaty which the provisions of the Crimes Act in question were designed to implement[96]. Nevertheless, the Commonwealth submitted that the Protocol indicated that the subject matter of the Crimes Act was one of "international concern" and was relevant to Australia's relationships with other nation states and with relevant international organisations.
[95]See speech by the Hon D Kerr MP, Minister for Justice, at the opening of the World Congress on Family Law and Children's Rights, Sydney, 4 July 1993 at 4.
[96]The Protocol was not in force when the Crimes Act was amended in 1994 by the Crimes (Child Sex Tourism) Amendment Act 1994 (Cth). That amendment inserted in the Crimes Act the offences with which the plaintiff is charged.

The plaintiff raised no objection to the tender by the Commonwealth of a great deal of material concerning initiatives within the international community, and in Australia[97], concerning the protection of children from sexual acts by foreign nationals[98]. Such material provides further background against which the impugned provisions of the Crimes Act may be understood.
[97]Such as the convening of the First World Congress on Family Law and Children's Rights, Sydney, 4 July 1993.
[98][2005] HCATrans 957 at 2660. See also at 2999.
The issues
As I approach these proceedings, there are five issues:
(1)The geographical externality issue:Is a federal law that operates extraterritorially with respect to facts, persons or things geographically external to Australia, for that reason alone, necessarily a law with respect to "external affairs" within the meaning of s 51(xxix) of the Constitution? Does the present authority of this Court uphold that proposition? If so, should this Court simply apply that authority and, without more, answer the question stated adversely to the plaintiff, notwithstanding the criticisms of that authority advanced by the plaintiff?
(2)The leave to reopen issue:Contingently on a determination of the first issue adverse to his arguments, the plaintiff sought leave, if necessary, to reopen such authority of the Court as upheld the geographical externality principle for the content of the "external affairs" power in the Constitution. Is leave necessary to permit any such reopening of a past ruling concerning the meaning of a provision of the Constitution? If so, should such leave be granted?
(3)The reversal of authority issue:If leave to reargue the correctness of the geographical externality principle for the meaning of s 51(xxix) of the Constitution is granted or is not required, should the principle be reconsidered by the Court in the light of earlier authority, the language, structure and purpose of s 51(xxix) and other relevant considerations? Should that principle be overruled or re-expressed having regard to the plaintiff's arguments?
(4)The alternative validity issue:If the geographical externality principle should be overruled or re-expressed, or if that question should be reserved for a decision in a case where it is essential to the result, is the law impugned by the plaintiff in these proceedings nonetheless valid under the Constitution because:
(a)it is adequately demonstrated that the law in issue is with respect to a matter of "international concern" affecting Australia and thus, without more, concerns a subject within s 51(xxix) of the Constitution; or
(b)it is sufficiently connected with the legislative powers of the Federal Parliament with respect to crimes of the nominated type committed overseas by an Australian national or permanent resident on the basis that such crimes affect, or may affect, the external relations of Australia with other nation states or international organisations?
(5)The proportionality issue: Assuming that one of the suggested criteria for establishing the validity of the law impugned by the plaintiff is arguable, is the law nonetheless invalid because, upon analysis, it is disproportionate (not "reasonably appropriate and adapted") to the power of the Federal Parliament to enact such a law in the terms of the contested provisions of the Crimes Act?
The geographical externality principle
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].
[99]Reasons of Gummow, Hayne and Crennan JJ at [30]-[45].
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].
[100](1996) 187 CLR 416 at 485. See reasons of Gummow, Hayne and Crennan JJ at [30].
[101]Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 528-531 per Mason CJ, 599-603 per Deane J, 632 per Dawson J, 695-696 per Gaudron J, 712-714 per McHugh J.
[102]Horta v The Commonwealth (1994) 181 CLR 183 at 193-194; Industrial Relations Act Case (1996) 187 CLR 416 at 485 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ; De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 650 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; cf at 680-682 of my own reasons; Rv Hughes (2000) 202 CLR 535 at 556 [42] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
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.
[103]De L (1996) 187 CLR 640 at 668 fn 79; Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 334 [82] fn 103.
[104]Apart from Horta, the Industrial Relations Act Case, Hughes and De L, see, eg, Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 85 [182] per Callinan J. Specific mention is made in Aird (2004) 220 CLR 308 at 313 [7] of the subject provisions of the Crimes Act.
[105](1991) 172 CLR 501 at 528, 549, 599, 632, 696 and 712.
[106]Selway and Williams, "The High Court and Australian Federalism", (2005) Publius 467 at 476-478.
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].
[107]Reasons of Gummow, Hayne and Crennan JJ at [34]; cf reasons of Callinan and Heydon JJ at [205].
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].
[108]De L (1996) 187 CLR 640 at 668; cf Hughes (2000) 202 CLR 535 at 583 [118].
[109]Aird (2004) 220 CLR 308. The decisive point argued concerned the compatibility of the legislation with the requirements of Ch III of the Constitution.
[110]Industrial Relations Act Case (1996) 187 CLR 416.
[111]Reasons of Gummow, Hayne and Crennan JJ at [34].
[112]Polyukhovich (1991) 172 CLR 501 at 684 per Toohey J.
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].
[113]Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 417-418 [56]. See MacAdam and Pyke, Judicial Reasoning and The Doctrine of Precedent in Australia, (1998), Ch 10.
[114](1975) 135 CLR 337 at 497. See also at 360 per Barwick CJ, 470-471 per Mason J, 503 per Murphy J.
[115](1977) 138 CLR 283 at 294. See also at 335 per Mason J.
[116](1978) 141 CLR 88 at 162. See also Pearce v Florenca (1976) 135 CLR 507 at 528 per Murphy J.
[117](1982) 153 CLR 168 at 223. See also at 211 per Stephen J.
[118](1983) 158 CLR 1 at 255-256; cf at 171-172 per Murphy J.
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.
[119](1991) 172 CLR 501 at 632.
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.
[120](1991) 172 CLR 501 at 632, cited in the reasons of Gummow, Hayne and Crennan JJ at [30].
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.
[121]Reasons of Gummow, Hayne and Crennan JJ at [31].
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.
Constitutional reargument requires no leave
The supposed requirement of leave:As this Court unanimously said in Lange v Australian Broadcasting Corporation[122], it is not bound by its previous decisions[123]. Nor has it laid down any particular rule or rules or set of factors for reopening the correctness of earlier authority[124]. Obviously, the Court approaches with caution any suggested reconsideration of a legal principle, including one affecting an understanding of the meaning of the Constitution, which has been decided by a majority of the Justices. Nevertheless, there is no doubt that the Court will re-examine such a principle if it involves a question of "vital constitutional importance"[125] and it considers it to be "manifestly wrong"[126]. As all members of the Court said in Lange[127]:
"Errors in constitutional interpretation are not remediable by the legislature[128], and the Court's approach to constitutional matters is not necessarily the same as in matters concerning the common law or statutes."
[122](1997) 189 CLR 520 at 554.
[123]Damjanovic & Sons Pty Ltd v The Commonwealth (1968) 117 CLR 390 at 396; Queensland v The Commonwealth (1977) 139 CLR 585 at 610; Baker v Campbell (1983) 153 CLR 52 at 102.
[124]Cf reasons of Callinan and Heydon JJ at [204]-[205].
[125]Queensland v The Commonwealth (1977) 139 CLR 585 at 630. See also The Commonwealth v Cigamatic Pty Ltd (In Liquidation) (1962) 108 CLR 372 at 377.
[126]Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia (1913) 17 CLR 261 at 278-279; The Tramways Case [No 1] (1914) 18 CLR 54 at 58, 69, 83.
[127](1997) 189 CLR 520 at 554.
[128]Queensland v The Commonwealth (1977) 139 CLR 585 at 630; Street v Queensland Bar Association (1989) 168 CLR 461 at 588.
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].
[129](1996) 187 CLR 416 at 485. See also Horta (1994) 181 CLR 183; Hughes (2000) 202 CLR 535 at 556 [42].
[130]Amongst other legislation, the Commonwealth referred to Historic Shipwrecks Act 1976 (Cth); Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth), ss 5(a)(v) and 7; Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth), s 6(3)(b); Space Activities Act 1998 (Cth), s 108(2)(b); Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 5(2) and 5(5); Crimes at Sea Act 2000 (Cth); Transport Safety Investigation Act 2003 (Cth), s 6. Some at least of these provisions might be sustained by treaty obligations or by other explanations of the power afforded by the Constitution, s 51(xxix). It is unnecessary to decide such questions.
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.
[131](1984) 154 CLR 311 at 316.
[132]Eg Brownlee v The Queen (2001) 207 CLR 278 at 312-315 [100]-[108]; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30 at 80 [134].
[133]Permanent Trustee Australia Ltd v Commissioner of State Revenue (Vict) (2004) 220 CLR 388 at 451-453 [176]-[180].
[134][2005] HCATrans 957 at 1194.
[135]Reasons of Gummow, Hayne and Crennan JJ at [38].
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.
Support for the geographical externality principle
The textual foundation:If the anchor for constitutional interpretation is the text[136], certain textual indications lend support to the "modern doctrine". Section 51(xxix) does not, in its terms, confine itself to "Australia's external affairs". Nor does it expressly limit itself to subjects having some special, and defined, connection with Australia[137]. The word "affairs" has a "wide and indefinite meaning". This is what has led advocates of the current approach to conclude that s 51(xxix)[138]:
"encompass[es] both relationships and things: relationships with or between foreign States and foreign or international organizations or other entities; matters and things which are territorially external to Australia regardless of whether they have some identified connexion with Australia or whether they be the subject matter of international treaties, dealings, rights or obligations".
[136]Tucker, "Textualism: An Australian Evaluation of the Debate between Professor Ronald Dworkin and Justice Antonin Scalia", (1999) 21 Sydney Law Review 567.
[137]Polyukhovich (1991) 172 CLR 501 at 599 per Deane J.
[138]Polyukhovich (1991) 172 CLR 501 at 599.
The broad constitutional grant: The general principle commanding a broad construction of the constitutional text lends additional support to the geographical externality principle unless there is some countervailing consideration that has the effect of cutting down the grant[139]. Certainly, the principle as it presently stands involves a very wide view of the constitutional grant of power, encompassing as it does the power to make laws without limitation with respect to facts, persons or things anywhere in the world external to Australia.
[139]Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309 at 368 per O'Connor J. See reasons of Gummow, Hayne and Crennan JJ at [39]; cf reasons of Callinan and Heydon JJ at [180].

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.
[312]See, for example, Ha v New South Wales (1997) 189 CLR 465 at 503 per Brennan CJ, McHugh, Gummow and Kirby JJ.
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".
[313](1982) 150 CLR 49 at 56.
[314](1982) 150 CLR 49 at 56.
[315](1982) 150 CLR 49 at 57.
[316](1982) 150 CLR 49 at 58.
[317](1999) 201 CLR 49 at 104-105 [164].
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.
[318]See Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 484 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.
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.
Are ss 50BA and 50BC laws that, since they operate on conduct geographically external to Australia, necessarily affect Australia's external relations?
The defendant's argument was that since the legislation operated on a matter external to Australia, it had an "inevitable" effect on Australia's external relations. This does not follow. It might have such an effect; it might not. The effect is not established merely by pointing to the fact that the legislation operates on conduct geographically external to Australia.
Do ss 50BA and 50BC concern Australia's external relations?
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].
[319]Australia, House of Representatives, Parliamentary Debates (Hansard), 3 May 1994 at 73. He also, unlike the defendant in this case, relied on "international obligations to protect children", citing Australia's ratification of the Convention on the Rights of the Child on 17 December 1990.
[320]Report on the Crimes (Child Sex Tourism) Amendment Bill 1994, (1994), par 2.3.9.
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.
[321]The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 125 per Mason J.
[322]This is not a problem in relation to legislation, like that involved here, which is purely extraterritorial. It could be a problem where the legislation is not purely extraterritorial.
[323]Koowarta v Bjelke-Petersen (1982) 153 CLR 168; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1.
[324]The law could not discriminate against a State or prevent it from continuing to exist and function; there must be a Convention; the Convention must be "bona fide"; and the law must be reasonably and appropriately adapted to give it effect.
[325]The phrase is Lord President Cooper's in Davie v Magistrates of Edinburgh 1953 SC 34 at 40.
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.
Are ss 50BA and 50BC laws with respect to external affairs on the basis that the extraterritorial prohibition of the sexual exploitation of children is a matter of international concern?
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.
[326]It should be emphasised that the question whether the sexual exploitation of children, and its extraterritorial prohibition, is a "matter of international concern" within the legal context of the international concern doctrine and Australian constitutional law, which was controversial in this case, is entirely distinct from the question of whether the sexual exploitation of children is a "matter of international concern" in a more general sense which, of course, it is – it troubles many people around the world.
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.
[327]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.
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.
[328]Souliotopoulos v La Trobe University Liberal Club (2002) 120 FCR 584 at 598-600 [51]-[57] per Merkel J.
[329]Souliotopoulos v La Trobe University Liberal Club (2002) 120 FCR 584 at 598 [51] and 599 [53].
[330]See Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 562 per Brennan J.
[331]The criticism is Mason J's: The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 123.
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].
[332]This difficulty troubled Brennan J in Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 561-562.
[333]Attorney-General (Cth) v Tse Chu-Fai (1998) 193 CLR 128 at 149 [54] per Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[334]The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 125 per Mason J.
[335]Some of the materials on which the defendant relied revealed that Australian lawyers had expressed hostility to the enactment of the impugned legislation by reason of its potentially unfair effects on accused persons.

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].
[336]It will be remembered that although the defendant pointed to the Convention on the Rights of the Child to show that the sexual exploitation of children was a matter of international concern, it did not seek to uphold the challenged legislation as giving effect to that Convention.
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".
[337]See above at [209], notes 324 and 325.
[338]As Deane J suggested in Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 604-605.
[339]Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 487 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.
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.
[340](1951) 83 CLR 1.
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]:
"The decisions to fight Germany and Japan were not made by the Court. The Court was not asked, and did not presume, to hold laws valid or invalid on the ground that the war was or was not really a war for the defence of Australia. The laws were held valid not because the Court agreed with the policy of the Government and Parliament in regarding Germany and Japan as enemies, but because the legislation was held to have a real connection with the war against Germany and Japan. In other words, the action of the Government in declaring war and of Parliament in adopting that decision and legislating in pursuance of it itself created a defence situation which provided a basis for the legislation."
From this Latham CJ concluded that it was not open to the courts to challenge the truth of recitals in the impugned legislation averring that the activities of the Australian Communist Party made it necessary, for the security and defence of Australia, to dissolve it. This conclusion was not accepted by the majority[343]. Indeed, it went beyond the defendants' argument in that case which treated the preamble as conclusive not of the facts recited but only of the existence of the legislative opinions disclosed[344]. The similarity between Latham CJ's conclusion and the international concern doctrine in this respect casts grave doubt on the latter.
[341]The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 125 per Mason J.
[342](1951) 83 CLR 1 at 151-152 (original emphasis).
[343]See, for example, Dixon J at 200-201.
[344]See Dixon J at 191.
Divisions about the doctrine. The international concern doctrine has never been decisive in this Court. Its life has been quite short. But it has caused sharp divisions within the Court already. Thus in The Commonwealth v Tasmania[345] Mason J said of a law being sustained as implementing a treaty under s 51(xxix):
"The law must conform to the treaty and carry its provisions into effect. The fact that the power may extend to the subject-matter of the treaty before it is made or adopted by Australia, because the subject-matter has become a matter of international concern to Australia, does not mean that Parliament may depart from the provisions of the treaty after it has been entered into by Australia and enact legislation which goes beyond the treaty or is inconsistent with it."
Of this Dawson J said in Richardson v Forestry Commission[346]:
"I cannot see why, if it is international concern which gives a subject-matter the character to bring it within the description of external affairs, the conclusion of a limited treaty upon that subject-matter should place outside the external affairs power that part of the subject-matter which is beyond the limits of the treaty. Nor can I see why legislation passed with respect to a matter of international concern should no longer be legislation with respect to external affairs simply because Australia becomes a party to a treaty upon a more limited basis than is reflected by the legislation."
One solution to these problems would be to reject the existence of "international concern" not reflected in treaties as a basis for s 51(xxix) validity. Indeed, Mason J was concerned to negate the possibility that s 51(xxix) gave no legislative power to implement a treaty unless it was shown, independently of the decisions of the executive to enter it and the legislature to implement it, to be of international concern; he did not appear to be endeavouring to advocate s 51(xxix) as giving a power to legislate on any matter of international concern[347].
[345](1983) 158 CLR 1 at 131-132.
[346](1988) 164 CLR 261 at 325.
[347]The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 125-126.
There are immense difficulties facing any court wishing to recognise, as a matter of decision, the international concern doctrine. The arguments advanced in this case have not resolved those difficulties. In these circumstances it would not be right to uphold the legislation impugned in this case by reliance on the doctrine.
Inapplicability of the doctrine to the present legislation. Even if there are relevant matters of international concern, and even if the international concern doctrine is sound, that doctrine could not support ss 50BA and 50BC. The material relied on by the defendant reveals concern – let it be assumed to be "international" – about the sale of children, child prostitution and child pornography. Sections 50BA and 50BC do not criminalise that conduct, they criminalise different conduct. The material also reveals general concern about sexual activity involving children under 12 – not under 16, because some of the legislation relied on by the defendant for another purpose reveals that in some countries, no matter how many Australians might deprecate it, activity with children as young as 12 is lawful, and in others with children as young as 14 or 15. If the material demonstrates a general concern about children under 12, the legislation, in criminalising conduct with older children, goes beyond the area of international concern.
Questions reserved
At the conclusion of the hearing the Court answered the reserved questions in favour of the defendant. For the reasons we have stated, we did not join in those orders.
Instead, we favour the following answers to the questions reserved for the consideration of the Full Court:
(1)      No.
(2)      No.
(3)      The defendant.

[2006] HCA 25

17 November 2005 (Date of Order); 13 June 2006 (Date of Publication of Reasons)