XYZ v The Commonwealth [2006] HCA 25

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

XYZ PLAINTIFF

AND

THE COMMONWEALTH OF AUSTRALIA DEFENDANT

XYZ v The Commonwealth [2006] HCA 25

Date of Order: 17 November 2005

Date of Publication of Reasons: 13 June 2006

M14/2005

ORDER

The questions set out in the Case Stated dated 2 June 2005 are answered as follows:

(1) Q. Is either of sections 50BA and 50BC of the Crimes Act 1914 (Cth) a law "with respect to … External affairs" within section 51(xxix) of the Constitution?

A. Yes, both of them.

(2) Q. If the answer to question (1) is "no", is either of sections 50BA and 50BC of the Crimes Act 1914 (Cth) otherwise a valid law of the Commonwealth?

A. This question does not arise.

(3) Q. By whom should the costs of the Case Stated to the Full Court of this Honourable Court be borne?

A. The plaintiff.

Representation:

S J Gageler SC with K L Walker for the plaintiff (instructed by Buxton & Associates)

D M J Bennett QC, Solicitor-General of the Commonwealth with R J Orr for the defendant (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

XYZ v The Commonwealth

Constitutional law (Cth) – External affairs – Plaintiff charged with three offences of engaging in sexual activity with a child under 16 years while outside Australia contrary to ss 50BA and 50BC of the Crimes Act 1914 (Cth) – Whether either of ss 50BA and 50BC of the Crimes Act are laws with respect to external affairs – Whether "external affairs" extends to any place, person, matter or thing lying outside the geographical limits of Australia – Whether "external affairs" is restricted to subjects having some connection with Australia – Whether "external affairs" is restricted to matters touching or concerning the relationships of Australia with other countries and international organisations – Whether "external affairs" extends to "matters of international concern" – Relevance of proposition that "external affairs" extends to implementation of treaty obligations.