CHECK AGAINST DELIVERY j~ 7EMBARGOED AGAINST DELIVERY
4AUS IALA&
PRIME MINISTER
ADDRESS TO THE AUSTRALIAN CONSTITUTIONAL CONVENTION BY
PRIME MINI* STER, MR BOB HTAWKE, ADELAIDE, 28 APRIL 1983
* THE COMMONWEALTH GOVERNMENT SUPPORTS THE AMENDMENT PUT
FORWARD BY NEW SOUTH WALES.
* CONSISTENT WITH ITS BASIC PHILOSOPHY OF PROMOTING
NATIONAL RECONCILIATION, MY GOVERNMENT IS HAPPY TO SUPPORT
REFERENCE OF THE XTERNAL AFFAIRS POWER TO A SUB-COMMITTEE
OF THE STANDING COMMITTEE FOR CONSIDERATION AND REPORT,
BUT WE CONSIDER THE REFERENCE SHOULD BE ON AN EVEN-HANDED
BASIS. -THIS AMENDED MOTION WOUL~ D ALLOW THE SUB-COMMITTEE TO
PURSUE ITS WORK FREE FROM ANY FETTERS IMPOSED BY A
PARTICULAR DELEGATE'S PREJUDGEMENT
-IT IS APPROPRIATELY DIRECTED TO CONSIDERATIONS OF THE
LEGISLATIVE POWER AS IS s. 51 ITSELF
-AND IT INVITES ATTENTION TO THE COOPERATIVE ARRANGEMENTS
WHICH THE COMMONWEALTH, THE STATES AND THE NORTHERN
TERRITORY HAVE DEVELOPED IN HANDLING INTERNATIONAL
TREATIES.
* ALTHOUGH PREFERRING TO HAVE REMOVED THE EMOTIVE LANGUAGE
OF THE PROPOSAL BROUGHT BY QUEENSLAND TO THESE PROCEEDINGS,
THE COMMONWEALTH RECOGNISF. S TH-AT THE QUESTION OF THE
SCOPE OF THE EXTERNAL AFFAIRS POWER IS OF CONSIDERABLE
CONCERN TO AT LEAST SOME STATES.
* THE NEW COMMONWEALTH GOVERNMENT IS COMMITTED AS A
RESPONSIBLE FEDERAL PARTrNI7R TO APPROACH THE USE OF
THE EXTERNAL AFFAIRS POWER, AS INDEED IT APPROACHES
ALL COMMONWEALTH POWERS, IN A SPIRIT OF CONSULTATION AND
CO-OPERATION WITH THE STATES WHERE APPROPRIATE.
SI ulAMH APPY TO ASSURE PREMIERS THAT ON THE PARTICULAR
QUESTION 01' O AUSTRALIA'S APPROACH TO INTERNATIONAL
TREATIES, WE GENERALLY AFFIRM THE PRINCIPLES AND
PROCEDURES ENDORSED BY THE JUNE 1982 PREMIERS'
CONFERENCE I WILL BE IN TOUCH WITH PREMIERS AND THE CHIEF
MINISTER WHEN THE GOVERNMENT HAS EXAMINED THE
PRINCIPLES AND PROCEDURES IN DETAIL.
STHE NEW GOVERNMENT WILL CONTINUE THE PRACTICE OF
CONSULTATION DURING TREATY NEGOTIATIONS AND WILL RECOGNISE
THE ROLE STATES HAVE TO PLAY IN IMPLEMENTATION OF TREATIES
IN AREAS TRADITIONALLY GOVERNED BY STATE LEGISLATION.
BUT WE WILL ALSO MAINTAIN A RESPONSIBLE AND CREDIBLE
INTERNATIONAL, POSITION AND ENSURE THAT AUSTRALIA PLAYS ITS
PART IN DEVELOPING WORLD WIDE PRINCIPLES ON SUCH FUNDAMENT.
ISSUES OF INTERNATIONAL CONCERN AS HUMAN RIGHTS AND THE
ENVIRONMENT. THIS CARRIES WITH IT THE OBLIGATION TO ENSURE THAT
SUCHI TREATIES ARE IMPLEMENTED EXPEDITIOUSLY THROUGHOUT
AUSTRALIA, AND WE WILL NOT BE PREPARED TO SEEK TO
QUALIFY THAT OBLIGATION.
I HAVE SOME DISQUIET, AS THE LEADER OF A RESPONSIBLE
FEDEIRAl. GOVERN. LENT, WITH TWO ASPECTS OF THE MOTION MOVED
BY QUeil:-ENS , A\ ND.
THE ' FIRST [ wS THAT ' THE PREMISEIS LYING ijBEIIND THE MOTION
APPEARS TO BE THAT AUSTRALIA CANNOT MEET ITS INTERNATIONAL
OBLIGATIONS CONSISTENTLY WITH THE MAINTENANCE OF A
FUNCTIONING FEDERAL STRUCTURE.
SI TAKE STRENUOUS OBJECTION TO THIS PREMISE
THE RIGHT AND INDEED THE DUTY OF A FEDERAL
GOVERNMENT TO ACT ON BEHALF OF ALL AUSTRALIANS
IN MATTERS RELATING TO THE INTERESTS OF AUSTRALIA
AS A WHOLE IS A FUNDAMENTAL AND NATURAL PART
OF FUNCTIONING FEDERALISM.
COMMONWEALTH ACTION IN RESPECT OF SOUTH-WEST TASMANIA
IS CLAIMED BY SOME TO BE AN ABUSE OF THE EXTERNAL
AFFAIRS POWER
BUT HERE AUSTRALIA HAS RIGHTLY ENTERED INTO AN
INTERNATIONAL OBLIGATION TO PROTECT OUR HERITAGE
AS ALL RESPONSIBLE NATIONS SHOULD
WE HAVE MADE EVERY EFFORT TO PERSUADE TASMANIA,
AT WHOSE SUGGESTION THE WILDERNESS WAS NOMINATED FOR
THE WORLD HERITAGE LIST, TO RESPECT THIS AREA OF
NATIONAL AND INTERNATIONAL SIGNIFICANCE
LEGISLATIVE ACTION BY THE COMMONWEALTH SUPPORTED BY
NEW SOUTH WALES AND VICTORIA IS AN ACTION OF LAST
RESORT, BASED PARTLY ON THE EXTERNAL AFFAIRS POWER,
TO ENSURE AUSTRALIA DOES NOT BREACH AN EXISTING
INTERNATIONAL AGIEEMENT NOR FAIL IN ITS DUTY TO ALL
AUSTRALIANS TO PROTECT ' HE AREA.
THAT ACTION, IF UPHELD BY THE HIGH COURT, WILL BE
SHOWN TO HAVE BEEN COMPLETELY IN ACCORDANCE WITH THE
CONSTITUTION.
MY SECOND POINT OF CONCERN ON THE ORIGINAL MOTION REFERS
TO WHAT I DISCERN TO BE A POSSIBLE MISREADING OF THE
CONSTITUTIONAL SETTING.
IT NEEDS TO BE REMEMBERED THAT IT IS FUNDAMENTAL TO
THE CONSTITUTION, AND LONG RECOGNISED BY THE HIGH COURT,
THAT STATE LEGISLATIVE POWER IS NOT SPECIFIC, BUT
CONSISTS IN THE UNDEFINED RESIDUE OF LEGISLATIVE POWER
WHICH REMAINS AFTER FULL EFFECT IS GIVEN TO SPECIFIC
CONSTITUTIONAL GRANTS OF POWER TO THE COMDIONWEALTH,
INCLUDING THE EXTERNAL AFFAIRS POWER.
THE APPROPRIATENESS AND VALIDITY OF PARTICULAR
COMMONWEALTH LEGISLATION MUST BE JUDGED AGAINST THE
FULL POTENTIAL OF THE CONSTITUTION AND NOT AGAINST
WHAT IS OFTEN REFERRED TO AS THE ' TRADITIONAL'
DISPOSITION OF LEGISLATIVE AUTHORITY.
* THE COMMONWEALTH1 PARLIAMENT ' S POWER TO MAKE LAWS WITH
RESPECT TO EXTERNAL AFFAIRS UNDER SECTION 51( 29) IS AN
INTEGRAL PROVISION IN THE CONSTITUTION WHOSE IMPORTANCE
WAS FULLY RECOGNISED AT THE TIME OF FEDERATION.
IN 1907 ALFRED DEAKIN STATED ' INDEED ONE OF THE
PRINCIPAL REASONS THAT INDUCED AUSTRALIANS TO FEDERATE
WAS THAT AS REGARD ALL PLACED OUTSIDE THIS CONTINENT
THEY SHOULD SPEAK WITH ONE VOIC11"
* WHILE CHANGES IN GLOBAL CONC8RNS HAVE CONCENTRATED RECENT
ATTENTION ON THE TREATY MAKING ASPECTS OF THlE POWER, IT
MUST BE REMEMBERED THAT TREATY MAKING AND OBSERVANCE IS
ONLY PART OF THE GREATER WHOLE: THE LEGITIMATE CONDUCT
OF AUSTRALIA'S INTERNATIONAL RELATIONS.
* THE HIGH COURT HAS, OF COURSE, RECOGNISED THAT THE EXTENT
OF INTERNATIONAL AFFAIRS HAS BEEN CONSTANTLY EXPANDING
BUT THE COURT REMAINS AS THE FINAL ARBITRATOR TO PROTECT
THE AUSTRALIAN FEDERATION WERE THERE TO BE ANY ATTEMPTED
CAPRICIOUS USE OF THE POWqR BY A COMMONWEALTH GOVERNMENT.
IN SUMMARY, THE COMM1ONWEALTH VIEW OF THE EXTERNAL AFFAIRS
POWER IS THAT IT HAS EVOLVED IN A MANNER APPROPRIATE TO
PERMITTING THE COMMONWEALTH TO MEET AUSTRALIA'S OBLIGATIONS
AS A RESPONSIBLE MEMBER OF THE INTERNATI6NAL COMMUNITY.
* BUT COM1MONWEALTH GOVERNMENTS ON BOTH SIDES OF THE POLITICAL
SPECTRUM ARE SENSITIVE TO THE NEED TO COOPERATE WITH THE
STATES AND NOT UNDULY INTERFERE IN THEIR ROLES.
* NEVERTHELESS, I COMMEND TO THlE CONVENTION THE MOTION AS
MODIFIED BY THE NEW SOUTH W4ALES AMENDMENT, WHICH WILL
PROVIDE THE BASIS FOR A BALANCED REVIEW OF THE POWER.