Common(wealth) Knowledge #2: Austro-Pacific Relations and the Constitution

The PM this week meet with leaders of other nations at the Pacific Islands Forum.

On 11 July, Prime Minister Anthony Albanese joined the leaders of 17 other Pacific nations in Fiji for the annual Pacific Islands Forum. Key items on the agenda include climate change and the Chinese interference in the region, especially given new Chinese security agreements with the Solomon Islands and Samoa, both members of the PIF. But was this level of engagement within the region always the plan?

Section 51(xxx) is an often overlooked part of the Australian Constitution. It allows the Commonwealth Parliament to pass laws regarding “the relations of the Commonwealth with the islands of the Pacific.” However, the previous provision, Section 51(xxix), authorises the passage of legislation relating to “external affairs.” So perhaps that could explain why the Pacific power is rarely mentioned.

The external affairs power is one of the broadest parts of the Constitution, as demonstrated in the Tasmanian Dams Case (1983). The Commonwealth government had passed the World Heritage Properties Conservation Act 1983 (Cth). It then used this to stop the construction of the Franklin Dam by the Tasmanian government. Tasmania, joined by Queensland, Victoria, and New South Wales complained to the High Court. They said it went against federalism and the ‘balance of powers,’ which split power between the Commonwealth and States. But the High Court said the Act was based on the United Nations’ Convention Concerning the Protection of the World Cultural and Natural Heritage, an international treaty, and so the actions of the Commonwealth government were valid.

Although the Tasmanian Dams Case didn’t relate to the Pacific, it does demonstrate the scope of the external affairs power. In the Seas and Submerged Lands Case (1975), Justice Mason rejected the claim that the mere existence of the Pacific power meant that the external affairs powers couldn’t cover topics that fell under the former (at 471). Justice Jacobs agreed (p. 475). But this does not mean that the Pacific power is useless.

When Nauru was governed by Australia, New Zealand, and the UK as a joint trusteeship from the United Nations after World War II, residents of the island could appeal to the High Court. Although Nauru got independence in 1968, this right remained somewhat intact under the Nauru (High Court Appeals) Act 1976 (Cth). In Parliament, Attorney-General Robert Elliot used the Pacific power as the basis for this legislation. And the High Court accepted both powers as relevant when it upheld that law in Ruhani v Director of Police (2002).

This seems to suggest that in every case where the Pacific power is relevant, the external affairs power is also applicable, but the inverse is not true. So, why did the framers even bother to include it in the Constitution?

In the Annotated Constitution of the Australian Commonwealth, published in 1901, it was suggested that the Pacific power represents an intention “that the Commonwealth is to enjoy a sphere of commercial and political influence in those islands” (at 757). This shows incredible forethought, as at the time all the Pacific islands were colonies. And it suggests that Australia was willing to move past the chequered history between Queensland and the Pacific, as Queensland had used South Sea Islanders as cheap labour for sugar cane plantations.

This willingness by Australia to interact with the region, even if it was intended to be limited to other British colonial possessions, suggests that Australia’s foreign policy originated in the Pacific. Britain had control over Australian foreign policy until the Statute of Westminster Adoption Act 1942 (Cth) was passed. And even after then, the two nations were reluctant to separate.

It was not until joining ANZUS in 1951, 50 years after Federation, that Australia entered any major alliance without Britain. And if not for America’s refusal to expand ANZUS any further, Britain might have joined too. Yet in the Annotated Constitution, there is some discussion of New Zealand’s Pacific aspirations (at 760-1). And Fiji and New Zealand, both members of PIF, participated in early discussions about Federation.

Australia’s involvement with PIF reflects Australia’s historical interests in the region. Even when Australia was unwilling to step outside of Britain’s shadow, Australia’s leaders were aware of the Pacific. The constitutional framers made it clear that the Pacific was important to the nation of Australia, and it was in the Pacific that Australia would enter into its first major military alliance, with the United States and New Zealand. Australia has now become the largest regional player amongst the Pacific island nations, and the Pacific remains a central aspect of Australian politics, as Australia’s “sphere of commercial and political influence.”

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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Sources:

Commonwealth of Australia Constitution Act 1900 (Imp), 63 & 64 Vict, c 12.

Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21 (‘Tasmanian Dams Case’).

John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (LexisNexis Butterworths Australia, 2015).

Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972.

Hansard, House of Representatives, 7 October 1976, 1647.

Nauru (High Court Appeals) Act 1976 (Cth).

New South Wales v Commonwealth (1975) 135 CLR 337; [1975] HCA 58 (‘Seas and Submerged Lands Case’).

Ruhani v Director of Police (2005) 222 CLR 489; [2005] HCA 42.

Statute of Westminster Adoption Act 1942 (Cth),

World Heritage Properties Conservation Act 1983 (Cth).