Opinion No. 2
POSITION OF COMMONWEALTH AND STATES IN RELATION TO TREATIES : SOURCE AND EXTENT OF COMMONWEALTH EXECUTIVE POWER AND EXTERNAL AFFAIRS POWER : NATURE OF ADHERENCE TO TREATIES . CHANNEL OF COMMUNICATION BETWEEN STATES AND EMPIRE OR FOREIGN POWERS
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT, preamble : CONSTITUTION, ss. 51 (xxix), 61, 64, 74. 92, 99
28 May 1901
The Prime Minister
The Empire as a sovereign independent state possesses full contracting powers which are exercised by the Imperial Government alone. The Commonwealth has no treaty powers of any kind under its Constitution and being a dependency can acquire none save those with which it may be specially endowed from time to time.
It has become the practice of the Imperial Government to offer certain of its dependencies an option of adherence or non-adherence to treaties of a commercial or general character. Among those to whom this privilege has been extended have been the Australian Colonies now States of the Commonwealth, who have been severally named in certain treaties as entitled to such an option. The Commonwealth not having been in existence has not been so named hitherto. The Dominion of Canada has been so named and has evidently acted for all its Provinces. The particular Treaty with Honduras(1) and Conventions with the United States(2) and Japan(3) submitted to me are specifically referred to at the close of this memorandum and it will be desirable that every treaty or convention affecting Australia or any part of it be examined on behalf of the Commonwealth and for the protection of its interests. Subject to this condition-I am of opinion that in the case of treaties already executed in which the States have been singled out as parties upon whom an option has been conferred they may be allowed to exercise it under the special and peculiar circumstances now existing without prejudice to the rights of the Commonwealth. This will avoid any questions as to their being superseded by the Commonwealth or as to the necessity of amending the treaties so as to allow the Commonwealth to adhere for them.
For the future it would be well if the Secretary of State for the Colonies were invited to name the Commonwealth instead of the several States in all options under all treaties. These, to whatever they may relate, affect the people of Australia without regard to arbitrary provincial boundary lines.
The States in their domestic affairs where these are not diminished by the Constitution remain independent of the Commonwealth and of each other but in their relations with one another and with all authorities beyond their boundaries they have, both by the express enactment of the Constitution and its whole tenor and nature, renounced that independence and all individual right of action. They have united in one indissoluble Federal Commonwealth under the Crown constituting themselves a single state with but one executive head and one representative Government. Even appeals to the King in Council are not to be made in regard to the limits inter se of the constitutional power of the States or of the States and the Commonwealth (section 74) except at the desire of its High Court.
The Commonwealth must speak and act for the whole of its people over the whole of its territory in respect of all matters affecting them. Of course it need not ignore the States as such nor their wishes. Conceivably cases might arise in which it would be possible without coming into conflict with sections 92 or 99 of the Constitution to allow certain States to adhere to a particular treaty and certain others to refrain. The Secretary of State for the Colonies should therefore be asked that 'the Commonwealth of Australia itself or for any of its States' should be named as entitled to all options under all treaties. This is entirely within his choice and once done will prevent friction between the States or with the Commonwealth.
The question of the Secretary of State for the Colonies as to the classes of treaties to be referred to the States and the Commonwealth respectively is answered in anticipation in the foregoing memorandum. There are classes of questions already mentioned upon which the State Governments may or may not be consulted by the Commonwealth at its discretion. There are others in which they certainly ought to be heard. Certain treaties affect matters wholly within the legislative power of the States, e.g. disposal of estates of deceased persons (Japanese Treaty and United States Convention), which are beyond the legislative power of the Federal Parliament and it seems but natural that in such subjects the States should in most cases decide for themselves as to the course to be adopted. But even these subjects when they pass beyond the circumference of domestic statutes fall with every other subject under the unlimited category 'External affairs' when they are to be dealt with in relation to foreign powers or other parts of the Empire. The Commonwealth should be the sole channel of communication of the States with the Colonial Office or through the Colonial Office with foreign powers upon all classes of subjects or treaties.
The question of the Right Honourable the Prime Minister as to the necessity for legislation involves some other considerations. Adherence to a treaty under any option offered is an executive act. The States' Executives have exercised that power and undoubtedly the Commonwealth Executive is at least equally capable of the same determination. The legislative power of the Commonwealth is mainly carved out of that previously enjoyed by the States and is, so to speak, enveloped by the undisturbed portion of their regime.
The executive power of the Commonwealth unlike the legislative is derived directly and independently from its fountain head-the Crown. It may be contended that it has a higher and larger scope than that of the States (see sections 61 and 64) but it is not necessary to discuss such a claim here. Its powers are at least coextensive with its legislative charter. The power to pass laws relating to external affairs certainly carries with it authority to provide by statute for adherence to treaties and for all other relations with the Home Government and through it with foreign powers. At present this power is concurrent with that of the States so far as the States have or ever had any such power themselves. It by no means follows that this particular and novel legislative power of the Commonwealth does not comprise a considerable endowment of legislative and executive power over and above anything the States have ever enjoyed, but whatever its extent it is ample to cover adherence to treaties and all matters in connection with them. It would be judicious and advantageous to provide by Act that the Commonwealth Executive shall administer all existing State laws in regard to naturalization and aliens, the people of any race for whom it is deemed necessary to make special laws, immigration and emigration, the influx of criminals, treaties and conventions, and all other external affairs. These should be entirely under the control of the Commonwealth. The whole scope and spirit of the Constitution require that save for the purposes of their domestic policies within their own domains the States shall be blended and absorbed into one political entity. They may still appear in some respects as a body of allied States but to the Empire of which they form a part and to the world without it they have become and must remain a nation and a Commonwealth one and indivisible.
[Mr Deakin then considered the application of the subject Treaties.]
[Vol. 1, p. 7]