In the problem scenario below:

1. Can the high court interpret and expand constitutional powers? support with cases

2. can 'international concern' be included in the constitution's definition of external affairs authority?

* Provide supportive arguments for this scenario

* provide for and against arguments too

You are a researcher with the Commonwealth Government, working in the Department of Foreign Affairs and Trade ('DFAT'). The Department deals with many matters, including external affairs. This includes relations and communications with overseas governments and United Nations agencies, and treaties, including on trade and business development and multilateral trade policy.

There is concern that many Australian businesses do not comply with international human rights standards, such as the 2011 United Nations "Guiding Principles on Business and Human Rights" and other soft law recommendations and good practices. Thus, many Australian businesses are failing to do their due diligence in preventing and mitigating risks associated with negative impacts to human rights in their: activities; composition; ventures; financial operations; and contracts. In addition, failures concerning consumer data protection, work discrimination and harassment, and an extreme use of fossil energies are evidence of the lack of commitment to respect human rights.

DFAT is considering proposing that Commonwealth Parliament enacts a statute with the title 'Australian Legal Framework for Business and Human Rights'. This statute would require all Australian businesses to adopt governance policies enabling and protecting human rights. However, there is currently no treaty that covers exactly this matter.

You have been asked for a research essay in which you advise whether the Commonwealth Parliament can pass such a statute under the external affairs power in s 51(xxix) of the Australian Constitution, as a matter of 'international concern'.

1. You will first need to form an opinion on whether the current interpretation of the External Affairs power, and the concept of 'international concern', could legally support such legislation. Ensure that you consider arguments for and against this proposition.

2. You then need to form an opinion on whether the Constitution should be interpreted in this way. Rely on legal arguments to develop your view. Relatedly, if you believe that the jurisprudence does not currently support the use of 'international concern' in this way, you need to form an opinion on whether the High Court should interpret the 'external affairs' head of power to develop 'international concern'.