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Faulkner, James --- "Mere Externality Prevails: XYZ v Commonwealth" [2011] UNSWLRS 57

Last Updated: 23 December 2011

Mere Externality Prevails: XYZ v Commonwealth

James Faulkner, Commonwealth Attorney-General’s Department

This paper is available for download at


This paper was presented in 2007 UNSW Constitutional Law Conference. This paper may also be referenced as [2011] UNSWLRS 57.


The plaintiff in XYZ v Commonwealth was an Australian citizen who had beencommitted for trial in relation to offences under ss.SOBA and SOBCof the Crimes Act 19143. In short, it is an offence for an Australian citizen (or resident), while outside Australia, to engage in sexual activity with a person less than 16 years of age.The offences were alleged to have been committed in Thailand in 2001. The allegedvictim was not an Australian citizen or an Australian resident.The plaintiff brought a proceeding to challenge the constitutional validity of ss.SOBA and SOBC in the original jurisdiction of the High Court, naming the Commonwealth as defendant. The plaintiff contended the laws in question are not laws with respect to 'external affairs' within the meaning ofs.S1(xxix) of the Constitution and are therefore beyond Commonwealth legislative power and invalid. The plaintiff sought a declaration to that effect. A case was subsequently stated for consideration by the Full Court under s.18 of the Judiciary Act 1903.

In its submissions the Commonwealth advanced three alternative arguments for validity: -the 'geographic externality' argument - that ss.SOBA and SO BC are laws with respect to a matter physically external to Australia (ie, conduct outside Australia); -the 'external relations' argument- that ss.SOBA and SOBC are laws affecting Australia's external relations with other nations (being laws to curtail 'child sex tourism'); -and the 'international concern' argument- that ss.SOBA and SOBCare laws with respect to a matter of international concern (ie, 'child sex tourism').

The Full Court upheld the validity of the laws in question by a S:2 majority (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ; Callinan and Heydon JJ dissenting). The order regarding validity was made at the conclusion of the hearing by the Full Courton 17November200S. Reasons were published on 13 June 2006.

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