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 Actare 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
XYZ v Commonwealth [2006] HCA 25
Case
[2006] HCA 25
Decision Date
CaseChat Overview and Summary
The case involved a plaintiff charged with offences under sections 50BA and 50BC of the Crimes Act 1914 (Cth), which prohibit engaging in sexual activity with a child under 16 years of age outside Australia. The plaintiff challenged the constitutional validity of these provisions, arguing they were not valid laws with respect to the external affairs power under section 51(xxix) of the Constitution. The matter came before the High Court of Australia by way of a Case Stated.
The High Court was required to determine whether sections 50BA and 50BC of the Crimes Act 1914 (Cth) constitute laws with respect to "external affairs" within the meaning of section 51(xxix) of the Constitution. This involved considering the scope of the external affairs power, specifically whether it extends to any place, person, matter, or thing outside Australia, or if it is restricted to subjects with a connection to Australia, matters touching Australia's relationships with other countries, or matters of international concern, particularly in the context of implementing treaty obligations. The Court also considered principles of constitutional interpretation, including the relevance of international law and the potential for legislative overreach.
The Court reasoned that the external affairs power is not confined to matters having a direct connection with Australia or its relationships with other nations. Instead, it encompasses the implementation of international law, including treaty obligations. The Court found that the impugned provisions were enacted to give effect to Australia's obligations under the Convention on the Rights of the Child and its Optional Protocol, which address the sexual exploitation of children. Consequently, the Court held that both sections 50BA and 50BC of the Crimes Act 1914 (Cth) are valid laws with respect to the external affairs power.
The questions set out in the Case Stated were answered as follows: Question 1, "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?", was answered "Yes, both of them." As this question was answered in the affirmative, the second question did not arise. The costs of the Case Stated were ordered to be borne by the plaintiff.
Orders
Orders of the court
The questions set out in the Case Stated dated 2 June 2005 are answered as follows:
1. 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.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GUMMOW, HAYNE AND CRENNAN JJ
KIRBY J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GUMMOW, HAYNE AND CRENNAN JJ,
KIRBY J