Blind Spots, Rigid Approaches and Uncertainties-The External Affairs Power and Australian Courts in 2003

In 2003, Australian courts handed down decisions on the use of section 51(xxix) of the Australian Constitution on Australia's external affairs power that attracted a great deal of attention. For example, the Family Court in B and B v Minister' created news when it held that it had jurisdiction over the welfare of children seeking asylum in Australia. Another case is Toben v Jones2 decided by the Full Court of the Federal Court. Three cases before the High Court, Ex parte Lam,3 Oates v Attorney-General,4 and Ex Parte Pacific Shipping also attracted much attention. These cases have played important roles in defining Australia's views on international law and they indicate the conservative judicial use, generally speaking, of section 51 (xxix). This article will examine the cases, assess Australia's relationship with international law, and show how this works in practice. The theoretical basis for discussion relies on the international relations works on socialconstructivism. According to this literature, state-to-state relationships are more complex than what rational choice-based theories are able to explain.6 In the study of international relations, it broadens the range of explanations available on how states become interested in particular issues including their norms of behaviour. It is a useful body of literature that helps to interpret cases by illustrating the "blind spots" that the courts may have when defining Australia's relationship with other states and when dealing with how international law is developed