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Background

The Expansion of the scope of the External affairs power since Federation mirrors the growing independence of Australia from the Crown of the United Kingdom and its transition to Nationhood.  Do you agree or disagree? Discuss.

Thesis Statement: There is expansion of the external affairs and its powers since the Federation shows the growing independence of Australia from the Crown of the United Kingdom and its transfer into nationhood.

In Australia, it is encountered[1] an unknown expansion in relation with the other nations and with the growth of communication there was rapid success in the multilateral treaties that have been formed. This gave scope to matters that could now be discussed domestically[2]. However, in Australia this rapid growth did not have a good place as it faced a number of difficulties as a federal state. Australia could not present as single structure to the rest of the world in order to take part in the developing rules of the international[3] law. As a result of such rule, there were two provisions made by the Constitution of Australia so that they could participate in the international areas. The two provisions are the followings:

The first provision is of the concern that the federal executives and their powers can enter into agreements with other countries. This treaty making power has been understood by the Commonwealth government.

The second provision talks about the Commonwealths[4] ability in implementing the treaty and it legislative actions to do so.

Just like England, even Australia believes that obligations that come out from a treaty shall have no internal affect, with respect to the changes which are brought out in relation with the changes in the legal rights and duties without making the legislation by the Parliament. The Constitutional provisions blindly depended on the Commonwealth for implementation of foreign policies. We can see this in the case, Koowartu V. Bjelke-Petersen, the outcome in this case there was a dispute over an ownership of land. The Commonwealth under section 51(29) implemented the “International Covenant on the Elimination[5] of all Forms of Racial Discrimination[6]”. The High Court therefore, supported the Federal Act and on doing so it made ways and encouraged the matters of the external affairs and its powers. Also in the case of, Commonwealth V. Tasamania (the dams case), the High Court had declared in this case that the dam would be built at the opening of the Franklin and Gordon Rivers which would result in the ‘external affairs’.

Constitutional provisions for external affairs power


The provisions made in the Australian[7] Constitution for the external affairs or foreign affairs can be blamed on luck back in the days. Australia still holds an identity it had as the British Colony and is mostly dependent on the United Kingdom’s law making bodies. With the growth in international relations they removed referenced relating to the Commonwealths power of such affairs and also made restrictions over legislative[8] powers. Times before federation, the colonies that existed enjoyed the rights that were limited to take part the negotiation of commercial[9] treaties. Post 1901, the Commonwealth, had got rights to add or remove from the existing treaties through the Imperial Government. But certain matters like the matters of defence or matters concerned with high policy with the foreign countries could not be negotiated. The federal government has a role to play in the formation of the British policy and hence, was given permission for the technical[10] discussions in the treaty. But with time Australia had finally become a part of international body making its own identity and also had built its own capacity to enter into international agreement and exchange diplomatic representations.

It is of the opinion that the Federalism[11] is not working in its best form in Australia. It has been observed that Federalism gives importance to national issues more and less importance is given to the local issues. The Federal system[12] is working great in Canada unlike in Australia. In Australia the federal system has quite often been scrutinized due to its failure regarding the conventional[13] federal model. The federal system in Australia does not function properly, it was noted that when having three tier system of government in Australia it become a hindrance to promote political participation between its citizens. Hence, this disturbs the people of the country and gets them to question whether they are living in a democratic country or not.


There are various problems associated with the system of three tier government which are faced by Australia. It generally causes problems in the duping the governments and also overriding or going against certain policies in deferent sectors[14] of a country. Under section 109 of the Constitution of Australia, the Commonwealth has gained ultimate power. Such powers generally cause inequality between different States and gives rise to unhealthy completion which causes rivalry between the States. Under section 96 of the Constitution, the Commonwealth also has the power to manipulate the states for an amount. Therefore, Federalism, in Australia has had a negative impact as it ignores areas such as the public transport and education sector. Federalism was also considered to be an effort which supported a balance[15] between unity and diversity; it also brought forward participation of democracy and united various other communities in order to get good results for the country.  

Cases of Koowarta V. Bjelke-Petersen and Commonwealth V. Tasmania

The Commonwealth held majority of the power it causes a number of problems for the States and its citizens. The biggest problem caused by this power was that on the High Court of Australia, when the High Court[16] had to interpret the Constitution according to the Federal system of government. A lot of commotion has been caused in relation to the High Court’s decision in interpreting the Constitution that is the favour of the Commonwealth government[17]. The States then feel that the need as well as the thoughts or the ideas of their own citizens are not being given any importance and even if they oppose this in the High Court, it will still not be of any help as the High Court will be in the favour the Commonwealth government. This became clear when matters concerning the Commonwealth in relation with the amount of power that had been invested had been brought to the High Court which related to the external affairs. The High Court had favoured the Commonwealth government over its citizens.


It has been discussed above also in the case of Koowarta V Bjelke-Petersen that the Commonwealth over used its powers in relation to the external affairs and its legislations bringing out the international conventions. The British colonies in Australia that were governing themselves, had agreed to come together and untie with them Australian federal constitution 1901. The adoption of two different principles[18] made the federal system unconventional. It had derived from the American system of federation. The concept that was followed by the American system was de-centralised form of government. This is done by the following:

  • By distributing the powers so that there is a list of federal exclusive powers that are restricted
  • By forming a judicial authority, for example, the High Court of Australia has the power to judge the issues between the State and the Federal system and see who is not following their obligation
  • It has been noted that federal law often over lap state laws which can be regarded as having inconsistency with the federal system.

One very famous case for the external[19] affairs can be the Tansmania Dam case; it also touched the issues of federal system along with the external affairs. In a responsible government the executives are liable to the parliament and also to its people. Full power is given to the authority and the authority has to act for the best interest of its people. An integral and positive part of the Australian federal system can be Co-operation. In a co-operative federalism the state and the federal government work together to bring out the objective and achieve the decided object. It basically aims at achieving goals that are common.


It has been clear that the federal system in Australia is not appropriate in its nature. It is believed that there is one model of federalism. However, in practical terms there is no single form of federation that can be applicable everywhere. The notion involves the mixture of shared rules with regional rules in a political system[20] so that all are equal and there is no inequality among them in different ways and circumstances. The Australian model of Federation has failed to set up a conventional federal state. It incorporates two standards, and still has certain fundamental conditions regarding it which has to be specific in relation to the multi-tiered system of government.

Challenges with federalism

Reference

Abebe, Daniel, and Aziz Z. Huq. "Foreign affairs federalism: a revisionist approach." (2013).

Armstrong, Chris. The Politics of Federalism: Ontario's Relations with the Federal Government. 1867-1942. University of Toronto Press, 2016.

Bradley, Curtis A. "Foreign Relations Law and the Purported Shift Away from'Exceptionalism'." (2015).

Bradley, Curtis A., and Jack L. Goldsmith. Foreign Relations Law: Cases and Materials. Wolters Kluwer law & business, 2017.

Charlesworth, Hilary. "Internal and external affairs: the Koowarta case in context." Griffith Law Review 23.1 (2014): 35-43.

Demchenko, Oleg, and Grigorii V. Golosov. "Federalism, gubernatorial power and the incorporation of subnational authoritarianism in Russia: A theory-testing empirical inquiry." Acta Politica 51.1 (2016): 61-79.

Gerken, Heather K. "Federalism as the New Nationalism: An Overview." Yale LJ 123 (2013): 1889.

Hannah, James. "Indian foreign policy: an overview, Competing visions of India in world politics: India's rise beyond the West, and Globalizing India: how global rules and markets are shaping India's rise to power." International Affairs 93.1 (2017): 231-233.

Heo, Uk, and Terence Roehrig. South Korea's rise: Economic development, power, and foreign relations. Cambridge University Press, 2014.

Hook, Steven W., and John Spanier. American foreign policy since World War II. Cq Press, 2015.

Hueglin, Thomas O., and Alan Fenna. Comparative federalism: A systematic inquiry. University of Toronto Press, 2015.

Koktsidis, Pavlos I., and Menelaos Apostolou. "Ethnic Federalism and Power Sharing in Cyprus: Motives, Constraints, and Preconditions." Mediterranean Quarterly 27.3 (2016): 105-134.

Law, Anna O. "The Historical Amnesia of Contemporary Immigration Federalism Debates." Polity 47.3 (2015): 302-319.

Moravcsik, Andrew. The choice for Europe: social purpose and state power from Messina to Maastricht. Routledge, 2013.

Morone, James A., and Rogan Kersh. By the people: Debating American government. Oxford University Press, 2013.

Ramsey, Michael D. "Congress’s Limited Power to Enforce Treaties." (2014).

Reeves, Jeffrey. Chinese Foreign Relations with Weak Peripheral States: Asymmetrical Economic Power and Insecurity. Routledge, 2015.

Sitaraman, Ganesh, and Ingrid Wuerth. "The Normalization of Foreign Relations Law." Harv. L. Rev. 128 (2014): 1897.

Smith, Karen E. European Union foreign policy in a changing world. John Wiley & Sons, 2013.

Sprout, Harold Hance, and Margaret Sprout. Rise of American Naval Power. Princeton University Press, 2015.

Bradley, Curtis A., and Jack L. Goldsmith. Foreign Relations Law: Cases and Materials. Wolters Kluwer law & business, 2017.

Demchenko, Oleg, and Grigorii V. Golosov. "Federalism, gubernatorial power and the incorporation of subnational authoritarianism in Russia: A theory-testing empirical inquiry." Acta Politica 51.1 (2016): 61-79.

Sprout, Harold Hance, and Margaret Sprout. Rise of American Naval Power. Princeton University Press, 2015.

Moravcsik, Andrew. The choice for Europe: social purpose and state power from Messina to Maastricht. Routledge, 2013.

Sitaraman, Ganesh, and Ingrid Wuerth. "The Normalization of Foreign Relations Law." Harv. L. Rev. 128 (2014): 1897.

Bradley, Curtis A. "Foreign Relations Law and the Purported Shift Away from'Exceptionalism'." (2015).

Morone, James A., and Rogan Kersh. By the people: Debating American government. Oxford University Press, 2013.

Hueglin, Thomas O., and Alan Fenna. Comparative federalism: A systematic inquiry. University of Toronto Press, 2015.

Hannah, James. "Indian foreign policy: an overview, Competing visions of India in world politics: India's rise beyond the West, and Globalizing India: how global rules and markets are shaping India's rise to power." International Affairs 93.1 (2017): 231-233.

Armstrong, Chris. The Politics of Federalism: Ontario's Relations with the Federal Government. 1867-1942. University of Toronto Press, 2016.

Law, Anna O. "The Historical Amnesia of Contemporary Immigration Federalism Debates." Polity 47.3 (2015): 302-319.

Ramsey, Michael D. "Congress’s Limited Power to Enforce Treaties." (2014).

Heo, Uk, and Terence Roehrig. South Korea's rise: Economic development, power, and foreign relations. Cambridge University Press, 2014.

Reeves, Jeffrey. Chinese Foreign Relations with Weak Peripheral States: Asymmetrical Economic Power and Insecurity. Routledge, 2015.

Hook, Steven W., and John Spanier. American foreign policy since World War II. Cq Press, 2015.

Koktsidis, Pavlos I., and Menelaos Apostolou. "Ethnic Federalism and Power Sharing in Cyprus: Motives, Constraints, and Preconditions." Mediterranean Quarterly 27.3 (2016): 105-134.

Smith, Karen E. European Union foreign policy in a changing world. John Wiley & Sons, 2013.

Abebe, Daniel, and Aziz Z. Huq. "Foreign affairs federalism: a revisionist approach." (2013).

Charlesworth, Hilary. "Internal and external affairs: the Koowarta case in context." Griffith Law Review 23.1 (2014): 35-43.

Gerken, Heather K. "Federalism as the New Nationalism: An Overview." Yale LJ 123 (2013): 1889.

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