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

SIR: Guy Favell's response (April 2006) to my article (October 2005) on Justice Callinan and the Commonwealth's external affairs power is a farrago of absurdities.

Mr Favell gets off to a bad start by saying that I relied on the dissenting judgment by Latham CJ in the Communist Party case. If he had taken the trouble to read my footnote 21, he would have realised that I was referring to Latham CJ's judgment in R v Burgess; Ex parte Henry (1936) 55 CLR 608 concerning the external affairs power, which had the support of two other Justices (Evatt and McTiernan JJ). Sir Owen Dixon, in a passage quoted by Justice Callinan himself, left open the question of whether the external affairs power extends to implementing a genuine treaty such as the World Heritage Convention.

Mr Favell, echoing Justice Callinan, claims support from the majority judgment by Sir Owen Dixon in the Communist Party case. As I explained in my article, that judgment is inapplicable to the question of whether the external affairs power enabled the implementation of the World Heritage Convention. The Commonwealth did not rely on any declaration by the Parliament that the World Heritage Conserv-ation Act 1983 would be conducive to Australia's external relations.

Next, Mr Favell (again echoing Justice Callinan) asserts that the Franklin Dam should not have been stopped, since the use or non-use of the area was "a matter for the people directly concerned and not overseas powers". He cannot reasonably believe that only the people of the state or local government district where an item of world heritage is situated (be it natural heritage or cultural heritage such as a great building) have a legitimate interest in its preservation. On the other hand, if he (sensibly) concedes that people in other states also have a legitimate concern, then why does he object to action to preserve the item pursuant to legislation enacted by the elected national parliament?

Next, Mr Favell makes the unintelligible remark that, since under takings under the World Heritage Convention are given voluntarily, the word obligations is a "misnomer". Presumably he thinks that he has no binding "obligations" under contracts that he enters into voluntarily.

He displays a complete failure to understand the World Heritage Convention. Obviously there was no need for other countries to give undertakings specifically in exchange for an Australian undertaking to preserve the Franklin Dam area. The international exchange of undertakings occurs when a country becomes a party to the Convention, thereby incurring obligations to protect any of its areas that ...