Notes and Comments
| Author | Robin L. Sharwood |
| Published date | 01 June 1965 |
| Date | 01 June 1965 |
| DOI | 10.1177/0067205X6500100205 |
| Subject Matter | Article |
NOTES AND COMMENTS
[Editors' Note: The intended scope
of
this section
of
the
Review is to bring to light points
of
legal interest which,
though
not
such as to warrant
an
article
or
extended com-
ment, should
not
be permitted to pass unnoticed. With
this in mind the Editors invite contributions from readers.
Contributions to this section
of
the Review should be
approximately seven hundred and fifty words in length.]
TREATIES
IN
CONSTITUTIONAL LAW:
A
COMMENT
ON
FISHWICK
v.
CLELAND
In
Fishwick
v.
Cleland,1one
of
the contentions
put
by counsel for the
plaintiff was
that
the Papua and New Guinea Act 1949-1957 was invalid
as inconsistent with the Charter
of
the United Nations and the Trustee-
ship
Agreement-
The power
of
the Commonwealth to pass [the Act] depends either
upon
s.
51
(xxix)
of
the Constitution2
or
upon
s.
122.3Section
51
(xxix) does
not
grant power
to
pass legislation inconsistent with
or
contrary to avalidly existing treaty
....
Even
if
s.
122 does
apply, the powers granted by
that
section are limited by the pur-
poses
and
prohibitions
of
the Trusteeship Agreement in the same
way as those granted by
s.
51
(xxix)
....
[I]f the Commonwealth
relies upon the external affairs power, and relies upon atreaty as
feeding that power,
it
must confine itself, broadly, to carrying the
treaty into effect.4
The report
of
the argument
of
the Attorney-General for the Common-
wealth is very compressed, and it is
not
always easy to distinguish his
various points,
but
he appears to have met this contention
of
plaintiff
as
follows-
There is aclear distinction to be preserved between the constitutional
power and the determination
of
its limitations on the one hand
and the international obligation
and
its performance
on
the other.
The former question must be decided as adomestic one; as such,
constitutional power
is
unfettered by the Trusteeship Agreement.
...lW]hether the Papua and New Guinea
Act
offends
an
international
obligation
is
not truly one for this Court to decide. [He referred
to Polites
v.
The Commonwealth (1945) 70 C.L.R. 60.] The prime
ques~ion
is
aconstitutional one.s
1(1960) 106 C.L.R. 186.
2
S.
51-'
The Parliament shall, subject to this Constitution, have power
to
make
laws for the peace, order, and good government
of
the Commonwealth with respect
to:-
...
(xxix.) External affairs '.
3
S.
122-'
The Parliament may make laws for the government
of
any territory
surrendered by any State to and accepted by the Commonwealth,
or
of
any Territory
placed by the Queen under the authority
of
and accepted by the Commonwealth,
or
otherwise acquired by the Commonwealth. . .
.'
4(1960) 106 C.L.R. 186,
189.
5Ibid. 190-191.
306
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