The external affairs power.(Letters)(Letter to the editor)

SIR: It is unfortunate that Dennis Rose's polemic (October 2005) against Justice Callinan's Sir John Latham Lecture (July-August 2005) lacks the rigour of its target.

First, Mr Rose contends that Sir John Latham would disapprove of Justice Callinan's approach to the external affairs power. This is to miss the point. Sir John Latham's approach was rejected by the majority in the Communist Party case. Justice Callinan makes it clear that he prefers the majority's view. His point is that despite the majority view, Sir Anthony Mason seems to have adopted Sir John Latham's approach.

Mr Rose cannot seriously be contending that but for the external affairs and treaties powers the Commonwealth government would have been able to enact the World Heritage Properties Conservation Act 1983 (Cth) to prevent the construction of the dam. The points that Justice Callinan makes are: first, that the enactment was very arguably a misuse of the power, a view which had the support of three members of the court in the Tasmanian Dam case; second, that by the time the litigation began, the duly elected Tasmanian government had formed a different view from its predecessor and wished to repel Commonwealth sterilisation of the area; and, third, that it was a matter for the people directly concerned and not overseas powers as to the use or non-use of the area.

Throughout his article Mr Rose speaks of Australia's obligations. No country or authority external to Australia has or had any power to impose obligations with respect to the dam upon Australia. "Obligations" is a misnomer. Australia's entry into any treaty or international instrument is entirely voluntary and accordingly any obligations arising under one are entirely self-imposed. This also may be said about the nature of the international instrument in question. Mr Rose speaks of exchanged undertakings. His implied assertion that there has been any exchange of undertakings would have had validity if he could point to even one instance of the registering by another country of a relevant site in exchange for the Commonwealth's listing of the Franklin River.

Mr Rose pronounces that "a State cannot be allowed to 'backslide'". What he seems to be saying is that a democratically elected state government cannot form a different view from the previous state government. Indeed, there is no reason why, on his thesis, any ...