Treaties and Intergovernmental Relations in Australia: Political Implications of the Toonen Case

By Gelber, Katharine | The Australian Journal of Politics and History, September 1999 | Go to article overview

Treaties and Intergovernmental Relations in Australia: Political Implications of the Toonen Case


Gelber, Katharine, The Australian Journal of Politics and History


This article explores the political implications of the Toonen case for studies of Australian federalism. The case involved a finding by the United Nations Human Fights Committee that Tasmania's anti-gay laws breached Australia's human rights obligations, and the subsequent passing of the Human Rights (Sexual Conduct) Act 1994 (Cth) designed to override sections of Tasmania's criminal law.

The Commonwealth's use of the external affairs power to ratify international treaties is outlined, and some questions regarding Commonwealth and state responsibilities and areas of concern flowing from treaty ratification are examined. The Privacy Act is discussed, and the character of intergovernmental relations and cooperation in this instance analysed.

The case raises the question of whether the Commonwealth's capacity to use and expand its powers is subject to effective checks and balances, or is limiting or eroding the powers of the states to the extent that the division and sharing of powers no longer represents that of a federal system. The article concludes that Australian federalism is dynamic and flexible, and reaffirms that a differentiation between the process and outcome of intergovernmental relations will enhance our understanding of its machinations.

   ... Australia's major constitutional problem lies [in] the expansive use of
   the external affairs power, [and] the ruthless use of ... UN treaties to
   override States.(2)

An event which had significant implications for debates around Australian federalism was the decade-long campaign to repeal Sections 122 and 123 of Tasmania's Criminal Code, known as "anti-gay laws", which was finally successful on 1 May 1997. The federal dimensions of this campaign reached a peak in 1994 when, following a complaint lodged by Tasmanian gay fights activist Nick Toonen, the United Nations Human Rights Committee [UNHRC] condemned Tasmania and by default Australia for its retention of these laws. In response, the federal government enacted the Human Rights (Sexual Conduct) Bill (Cth) 1994,(3) enshrining the fight to privacy for consensual adult sexual conduct,and attempting to invalidate Tasmania's criminal law under Section 109 of the Australian Constitution.(4) These events intersect with a broader theoretical debate regarding the nature and character of federalism. An analysis of the detail of events surrounding the Toonen case can provide useful insights into the workings of Australian federalism.

In the wake of the Toonen case some commentators condemned the Commonwealth's intervention in an ostensibly state area of responsibility. Colin Howard, for example, cited the Commonwealth's tendency since the celebrated Engineers' case of 1920 to expand its power "at the expense of the states"(5) and argued that due to the High Court's interpretation of the external affairs power, "the result has been increasing intrusion by the Commonwealth into areas of national life which the framers of the Constitution clearly intended should remain under the control of the States".(6) Senator Rod Kemp argued that, "by ceding sovereignty to international organisations the [federal] Labor Government has been able to acquire powers over the States".(7) Such claims are contradicted by scholars who point to the ongoing, and even enhanced role of the states within the Australian federalism system.(8)

Debates around the vitality of Australian federalism are not new and have taken two primary forms. The first is the question of whether federalism itself is a useful political system for the Australian polity. Contemporary scholars have argued inter alia that overlap, inefficiencies and the structural complications of a federal system detract from its ability to achieve policy objectives and provide representation.(9) Nevertheless, a broad acceptance has emerged of the fact that Australian federalism is here to stay, at least for the time being.(10) This leads to the second type of discussion: whether Australian federalism is able to fulfil its intended role. …

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