1. Which components of the external affairs power are subject-matter powers, and which are purposive powers? Why is this distinction relevant?

2. In principle, should the external affairs power be given a narrow scope for the sake of Australian federalism, or a broad scope to assist Australia's participation in (growing) international affairs?

3. How would either approach accord with the intention of the framers or general principles of constitutional interpretation?

4. What amounts to an 'international concern'?

Problem Question

Shenchua Pty Ltd, a Chinese company, leases the Liverpool Coal Mine in New South Wales. The NSW Government, the mine's owner, agreed to this as an election promise. Extensive mining operations have begun and will be the largest in Australia. This has led to protests. Local farmers have been joined by Pacific Island neighbours. These neighbours are outraged that Australia still permits such extensive mining. They argue it is threatening their countries through climate change, and they are putting increasing pressure on their governments to cut off diplomatic ties with Australia in protest.

In response, Australia enters into a treaty with New Zealand [assume there is no other relevant international law]. The operative text reads:

1. The Parties acknowledge the desirability of reducing carbon emissions;

2. The Parties will take all reasonable measures to prevent the burning of fossil fuels.

The Commonwealth Parliament enacts the Coal Mine Stoppage Act 2016 (Cth). The Act prohibits mining at a 'designated mine'. The Minister may designate a mine under the Act:

(a) To give effect to Australia's treaty obligations; or

(b) To preserve Australia's relations with other countries.

The Minister designates the Liverpool Coal Mine under paras (a) and (b). Advise whether there are any constitutional grounds for challenging the designation.

Answer rating: 100% (QA)

1 The external affairs power is a plenary power meaning that it is not limited to any particular subject matter However there are two components of the power that can be distinguished Subjectmatter po... View the full answer