Back to ABC after XYZ: Should we be Concerned about ‘International Concern’?
| DOI | 10.22145/flr.35.2.6 |
| Date | 01 June 2007 |
| Published date | 01 June 2007 |
| Author | Sarah Murray |
| Subject Matter | Article |
BACK TO ABC AFTER XYZ: SHOULD WE BE CONCERNED
ABOUT 'INTERNATIONAL CONCERN'?
Sarah Murray*
MR BURMESTER: Your Honour, I hope to say little on international concern because
there are all these other aspects of external affairs.
HAYNE J: It is just starting to look worried, very international.1
The recent High Court decision of XYZ v Commonwealth (‘XYZ’)2 has strengthened the
aura of uncertainty surrounding the concept of 'international concern' and its role in
widening the application of s 51(xxix) of the Commonwealth Constitution. This article
considers the XYZ decision in light of past judicial exegesis and addresses what may
lie ahead for this aspect of the external affairs power.
'International concern' has, for some years, hovered as a possible basis for the
subject matter of legislation to attract the Commonwealth external affairs power,
alongside other grounds such as the implementation of an international convention or
recommendation, geographical externality, relations with other countries or customary
international law. The head of power relies upon such grounds to colour a piece of
Commonwealth legislation with the hue of 'external affairs'. This 'colouring' therefore
enables a subject matter to be within the Commonwealth Parliament's legislative
competence.
THE FACTS OF XYZ
The XYZ case arose in the context of child sex tourism charges laid against the plaintiff
under Part IIIA of the Crimes Act 1914 (Cth).3 The plaintiff was an Australian citizen
and was alleged to have committed offences in Thailand in 2001. The legislation
operated extraterritorially, targeting sex offences committed by Australian citizens or
residents 'while outside Australia' against a person under 16 years of age. However, as
the facts themselves demonstrated, the victim of such offences did not have to be
Australian.
_____________________________________________________________________________________
* Sarah Murray is a Lecturer at the University of Western Australia where she teaches
Constitutional Law. The author is indebted to Dr Peter Johnston for his invaluable
recommendations on an early draft of this paper.
1 Transcript of Proceedings, Thomas v Mowbray (High Court of Australia, 21 February 2007).
2 (2006) 227 ALR 495.
3 The offences had been included in the Crimes Act 1914 (Cth) following amendments made
by the Crimes (Child Sex Tourism) Amendment Act 1994 (Cth).
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