referencing the scope of the external affairs power in s 51(xxix) of the Constitution; and
- (b) section 9(11) provides that the prescribed provision in Part II have effect "in relation to discrimination by … a trading corporation formed within the limits of the Commonwealth, or by or in relation to a person in the course of the person's duties or purported duties as an officer or employee of such a corporation", referencing the trading corporations aspect of the corporations power in s 51(xx) of the Constitution; and s 9(13) confirms that the provisions have effect to the extent such discrimination took place "in the course of" such a corporation's "trading activities".
155 The effect of s 9 is that the limits of Commonwealth legislative power affect the statutory construction of s 22, rather than the provision's validity: AB v Registrar of BDM at [96]–[97] (Kenny J, Gyles J agreeing). This requires some further explanation. The construction issue in relation to s 9 is that, if the meaning of the text to which it purports to apply a head of Commonwealth power, relevantly s 22 when read with s 5B, goes beyond the scope of that power, it will be taken to operate only to the extent that it falls within a head of power, not invalidating the provision entirely. The real issue is therefore not the meaning of s 9 per se, but the meaning of s 22 as affected by s 9.
156 The Commissioner contends that s 22 is supported by s 51(xx) and (xxix) of the Constitution, that is, the corporations and external affairs powers. Those submissions are adopted by Ms Tickle and only expanded upon further in relation to the assessment of whether Giggle is proven to be a trading corporation. In short, the respondents contend that CEDAW does not extend to gender, the ICCPR is too vague, and Giggle was not, on the evidence, a trading corporation. I consider each in turn.
(i) The external affairs power
157 The external affairs power supports legislation that is reasonably capable of being considered appropriate and adapted to implementing Australia's obligations under international instruments: Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 (Tasmanian Dam Case) at 259 (Deane J), see also at 130 (Mason J), 172 (Murphy J), 231 (Brennan J); Victoria v Commonwealth [1996] HCA 56; 187 CLR 416 (Industrial Relations Act Case) at 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). That, in turn, requires the Court to identify the nature of Australia's obligations under relevant international instruments, being a task of construing their terms.
