"Bernd Felsche" <bernie@no-spam> wrote in message
news:dnj0db.q2d.ln@no-spam
> Section 51 of the Constitution.
Which particular subsection of Section 51 do you mean, there are 39 of them
after all?
To my eye the only one relevant is 51 xxix which would of course been the
head of power used to sign on to the agreement
>
> The UN/ECE Agreement is dated 1949.
>
> >> Unfortunately, it was the Federal Government who signed the UN/ECE
> >> agreement for uniform traffic regulations and signals, making it
> >> difficult to ram it down the throats of the States.
>
> >I think you have that backwards too. By exercising the foreign
> >affairs power and entering into an international convention, the
> >Fed Gov does in fact then have the power to force the states to
> >adopt uniform codes/regulations/laws.
>
> See Section 51.
>
> >It is because of that agreement that they *can* do it.
>
> Under which clause of Section 51?
xxix It works this way.
The Cwth has powers to legislate to the purpose of good order and government
in respect of Sect 51. This is not quite the unfettered plenary powers that
States have, but its pretty broad.
Now, let's pretend that there is a situation where the Fed Gov wants to
impose its will on the States. Let's say (for example) that QLD is allowing
the destruction of a priceless natural heritage sand island by allowing
mining on it.
Now the first bit is god news, any State legislation that is inconsistent
with Fed Leg is invalid to the extent of the inconsistency.
The bad news is that becuase the Fed Gov is pretty limited (compared to the
States) they have to find a head of power that will allow them to assert
constitutional superiority over the States.
However. 51 (i) gives the Fed power to regulate trade an commerce both
overseas and within the States. So you make all sand mining subject to a
Cwth license and then refuse to issue any. Problem solved.
Or let's take a another situation. It's the 1980s and whilst the rest of
Australia has joined the 20th century, two States still have Laws making
homosexual relations between adult men a criminal offence (and one of them
is even silly enough to try to prosecute a poof).
States have plenary powers, but 51 (xxix) gives the Cwth "external affairs"
powers. Therefore, find a suitable international agreement, say the UN
charter on civil and political freedoms and sign on to it. Then ratify it by
way of fed legislation. Any State leg that is inconsistent is then invalid,
to the extent of the inconsistency.
Similarly 51(xxix) is how (and I haven't looked it up so I don't know the
details) in 1949 they could sign a UN charter on uniform traffic signals or
whatever.
BUT. If they never introduced enabling legislation, then it can sit on the
books forever having no effect. My guess is that they must have done so in
the past few years.
You can have a look on both the UN and ILO sites and see that there are a
staggering number of conventions, covenants, charters and agreeements that
Australia has signed, but never ratified.
A lot longer that you want I expect, but there it is.
But perhaps you see now how it is that it is *because* of Sect 51(xxix) they
can do it, not the reverse.
Tony Smith