Do you think the framers intended the scope of the external affairs

power to expand in the way it has been expanded by the High Court.
EXTERNAL AFFAIRS POWER s 51 (xxix)29 (1) The parliament shall, subject to
this constitution have power to make laws for the peace, order, and good
government of the commonwealth with respects to external affairs. Ambiguity
Important as to know the intention of the framers may give us insight into the
scope of the external affairs power as it was intended in the constitution.
Contentious as there are differing views between judges in high court decisions
on what the exact scope of the external affairs power is. See the previous
question which was discussed. However, there is no doubt that this scope has
been expanded since the implementation of the constitution as the high court
has come up against issues likely not forseen by the formers.
Polyukhovich v commonwealth 1991 (war crimes case) Justices Brennan,
Gaudron, and Toohey. If you go by just geographically external to Australia it
leaves the scope too broad. They said that the external affairs power should
legislate on issues which also need to have some connection with Australia not
just be geographically external. Litter in Paris analogy.
XYZ v commonwealth 2006
However in XYZ, it was held that the criminal (child sex tourism) act was valid in
the case. The reasoning being that it was under the external affairs power solely
because Thailand was geographically external to Australia. Not even on the basis
that it had a connection with Australia. So for the court to have adopted that
criteria:
It could potentially open the floodgates for commonwealth to prosecute any
criminal act under our legislation that happened over seas. Even if its not illegal
in the particular country it was committed in. Is it appropriate to prosecute
someone for doing something legal in a foreign country but prosecute it because
it is legal over here. Legal drinking age.
So, onto what the framers intended. I do think that external affairs was
included as a vague broad term intentionally, to incorporate unforeseeable
circumstances which the commonwealth may need to legislate for. This is the
grain pool argument Iain mentioned in the lecture. It is true that the external
affairs power has indeed expanded since the drafting of the constitution through
the High Courts interpretation.
I dont however believe that the framers intended that the power be expended
to such an extent as it has been. The external affairs power has extended the
power of the commonwealth government into additional areas at the expense of
the states and at the expense of the federal structure. See Tasmanian Dam case
commonwealth gaining the power to legislate in regards to the environment
where otherwise it would not have this power.
Separation of powers, is so fundamentally set out in the constitution that I doubt
the framers would have intended the federal government to have been given
potentially this much power by the High Court such as in the XYZ case. Leads to
issues like centralisation.

I will liken it to the defence power that we did last week communist party case,
commonwealth trying to writes itself power.