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International treaty obligations versus States' rights.

PETER THOMPSON: In his blueprint for the Coalition's assault on the Treasury benches at the next election, Alexander Downer has mounted one of John Howard's hobby horses - Australia's international treaty obligations. Mr Downer is saying that implementing these international treaties by domestic laws is selling out our sovereignty and, worse still, re-writing the Australian Constitution without a referendum. The issue has come to the fore recently with the United Nations ruling on Tasmania sodomy laws and the Federal Industrial Relations Act. Well, to cast some light on this constitutional issue now, I'm joined by our regular legal affairs commentator - the Sydney lawyer, Bruce Donald.

Is Labor changing the Constitution by using these foreign institutions like the UN to basically force change, unwanted change on States like Tasmania?

BRUCE DONALD: Well, look, no, not really. The Federal Constitution in section 51.29 which gives power to the Federal Government has always empowered the Federal Government to pass domestic laws putting into effect Australia's treaty arrangements. And it's quite a broad power. It's been there since 1900. So there's nothing new about this, and interestingly it's a power that's been used by political parties of all colour. Mr Downer himself, for example, when he was writing for the Chamber of Manufactures some years ago as a researcher pointed out how useful it can be in industrial relations. And of course, the whole airline system of Australia is an implementation of an international treaty arrangement, quite sensibly so.

PETER THOMPSON: Has the Coalition used the power, other than, say, for airlines?

BRUCE DONALD: The Coalition will have used the power in a whole host of areas: extradition treaties, currency arrangements, health arrangements, customs - all sorts of things like that. So, you know, it's not an unusual power.

PETER THOMPSON: But in this case, it's separate because it's being used as an exercise to override State law.

BRUCE DONALD: It's always used to override State laws. I mean, the great issue in the airlines case was that the States complained that it was the Federal law implementing power over their area of operation - their State airlines. And the High Court said that's perfectly valid, and has said so for nearly 20 years. So, it's a rather odd position, I think, for Alexander Downer to take that this is changing the Constitution and removing sovereignty.

Of course, yes, it does mean that Australia as the world internationalises, and has successfully done so for nearly 40 or 50 years, and certainly since the Second World War, if not before, then there will be areas where the Federal Government does have authority to act and override State powers, but that's just the nature of the changing world.

PETER THOMPSON: I guess so. It depends on the heat of the political issue. This power was used in the Franklin Dam case. It's now likely to be used again against Tasmania in the case of their sodomy laws. Is that the real problem rather than the principal? Is it merely the politics which is....

BRUCE DONALD: I think it is the politics and that's why it's rather strange to raise it because it's thrown into relief by these particular examples. Of course interestingly years later when we've saved places like the Tasmanian forests and the wet tropics, I mean, everyone realises it was probably a very good thing because you start to get income flowing from tourism in those particular cases or you use this power to break down what was a bad restriction on civil rights anyway. So, you know, in the aftermath, it usually turns out that sense has prevailed. And one important point is there's no loss of sovereignty here because it's always up to the Australian Parliament to pass the law before you implement the treaty. So we're not, as it were, handing over our law-making power to an overseas body.

PETER THOMPSON: In a few seconds, it's likely that the High Court would affirm this power if it came to the point.

BRUCE DONALD: No question. In the Kuwaiti case in 1982, quite clearly Stephen and Mason, even conservative judges would say yes.