The Australian States and Participation in the Foreign Policy Process
| DOI | 10.1177/0067205X7800900301 |
| Author | H. Burmester |
| Published date | 01 September 1978 |
| Date | 01 September 1978 |
| Subject Matter | Article |
THE AUSTRALIAN STATES AND PARTICIPATION
IN THE FOREIGN POLICY PROCESS
By
H.
BURMESTER
*
Recent assertions by the Australian States
of
aright to participate
in the foreign policy process, in particular by the conclusion
of
international agreements and by the establishment
of
relations with
foreign governments, are examined in the light
of
constitutional
and international law. Some reference
is
made to Canadian and
United States precedents.
The author concludes that the Federal Government has, to a
large extent, an exclusive executive and legislative competence in
matters
of
foreign relations. However, the States also have certain
legitimate concerns and aspirations in such matters. The way in
which these State interests can be met, while maintaining aunified
Australian voice, is discussed, with particular reference to the new
arrangements for co-operation between the Commonwealth and the
States in treaty-making, agreed to at the Premiers' Conference in
1977. The way in which the Commonwealth uses its constitutional
powers,
as
well
as
the responsibility which the States show in the
exercise 0/ their powers in relation to treaty implementation,
is
likely to determine the course
of
future constitutional development
in this area.
The
extent to which the Australian States
can
participate in
and
affect the conduct
of
Australia's foreign relations
is
an
issue which has
begun to receive attention from constitutional scholars
and
others.1
Recent developments suggest
that
it could develop into
an
issue
of
major
constitutional significance in the future.
Any
consideration
of
the subject soon indicates the wide range
of
issues
that
are
involved.
These include the extent of the legislative
and
executive powers of the
Stat~s
in
the
field
of
foreign affairs, the rights
of
the States
to
communicate
and
to conclude agreements with foreign entities, and
their
right to
playa
significant role in the formulation
of
foreign policy
and the domestic implementation
of
decisions
on
matters
of
international
concern.
Certain activities by the States in the field of foreign relations are
familiar: for instance, overseas trips by State Premiers for the
purpose of attracting trade and foreign investment
and
the institution
*B.A., LL.B. (Hons) (A.N.U.), LL.M. (Virg.); Principal Legal Officer,
International and Constitutional Branch, Attorney-General's Department, Canberra.
The views expressed are the 'personal views
of
the author and do not necessarily
represent the views
of
the Attorney-General's Department.
-,
1Sharman, "The Australian States and External Affairs: An Exploratory Note"
(1973)
27
Australian Outlook 307; Albinski, "Australian External Policy, Federation
and the States" (1976)
28
Political Science
1.
257
258 Federal
Law
Review
[VOLUME
9
of separate Agents-General in London representing individual State
interests. More recent efforts
by
the States to enter the
field
of foreign
relations have included attempts to secure representation on Australian
delegations to international conferences, such
as
the Law of the Sea
Conference, and assertion of aright to participate more fully in the
making and implementation of treaties by Australia. As well, the
States have, on occasion, used their domestic ,executive and legislative
powers to affect foreign relations, such
as
by the denial of access to
their ports of foreign nuclear powered vessels. Under the period of the
Labor Government, the States became concerned at what seemed to be
adetermined policy
by
the Federal Government to exercise its
constitutional power over external affairs
so
as
to conclude, and
implement at afederal level, treaties dealing with matters that were
traditionally of State concern. This led in the period since 1975 to
pressure from the States on the new coalition Government to come
to some arrangement whereby treaty negotiations on matters
traditionally within the responsibility of the States would only occur
after adequate consultation with them, and implementation of any
treaty or agreement involving such matters would remain amatter for
State legislation. At the Premiers' Conference held in Canberra on
21
October 1977 new arrangements designed to meet these State
concerns were agreed upon. These are discussed in more detail below.1
They point to anew era of co-operation between the State and Federal
Governments in matters of foreign relations.
It
is
necessary, however,
to
consider these new arrangements in the light of the constitutional
position and of existing practice in this area.
Efforts by the States to enter the foreign relations area can be
expected to continue. Areas where one can envisage such efforts include
maritime boundary negotiations, such as those concerning Torres
Strait where the attitude of Queensland has already had an impact on
Australian policy, regulation of foreign fishing in an extended zone of
fisheries jurisdiction, and foreign investment and control of the
activities of multinational corporations, where State interests may not
coincide with national
or
international concerns.
Any consideration of the issue of State participation in the foreign
policy process clearly raises constitutional and internatjonal legal
issues.
It
also raises more fundamental issues
as
to the appropriate
respective roles
a~d
functions of the Federal and State Governments
in the conduct of foreign relations having regard to the history and
present stage of development of the Australian federal system.
It
is
the
basic premise of this article that Australia
is
essentially ahomogeneous
nation in which it
is
appropriate that matters of international concern
should be perceived and dealt with from aunified national perspective.
2
Infra
pp. 280-282.
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