The Prime Minister:

 

In the memorandum of 23 September 1902⁽¹⁾, prepared by the Attorney-General of South Australia and forwarded by the Ministers of that State to the Lieutenant-Governor, in relation to the proper channel of communication with the Imperial Government in matters affecting 'external affairs' and 'the position of consuls', Mr Gordon bases his conclusions on premises which it is impossible for the Government of the Commonwealth to accept.

 

Although professedly dealing with questions as to the channel of communication to be adopted in such matters, his propositions take a much wider scope, and involve much more fundamental considerations.

 

As will appear from the sequel, it seems to me that the bulk of the arguments advanced are not relevant to the only point at present in issue; but, as they are of the first importance, and would, if upheld, seriously affect the Commonwealth, it would be both courteous and convenient to consider them here.

 

Mr Gordon's first contention is that the only matters in which the Commonwealth Government is the proper 'channel of communication' between the Imperial Government and a State Government are matters-

1. connected with the departments actually transferred from the State to the Commonwealth;
2. upon which the Commonwealth Parliament has power to make and has made laws.

He bases his contention on the propositions-

1. that the 'channel of communication must be one in which some power relative to the subject of communication actually flows'; and
2. that no power exists in the Commonwealth Government (by which he evidently means the Commonwealth Executive) regarding either external affairs or the position of consuls.

Proposition (1), as I understand it, may be accepted as a rule, though not without exceptions; but with proposition (2), that the Commonwealth has at present no executive power apart from Commonwealth legislation, I wholly disagree.

 

In consequence, the limitation of executive power to cases (a) and (b) appears to me to be unsound.

 

Why any distinction should be made, and where it can be drawn, between the transferred departments and the new departments of the Commonwealth, it is difficult to understand. The new departments, as well as the transferred departments, are established under the Constitution (section 64), and must necessarily be taken to be invested with at least a sufficiency of executive power to provide for their proper administration.

 

It is true that section 70 of the Constitution effects a transfer of executive power from the States to the Commonwealth 'In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth'. But these words may include much more than executive power relating to the transferred departments. Though section 70 does not of itself add to the 'matters' in respect of which the Commonwealth has executive power, yet when it can be gathered from any part of the Constitution that any executive power in respect of any matter belongs to the Commonwealth, section 70 gives a very wide scope to the executive power of the Commonwealth with respect to that matter. And whatever it gives, it gives to the Commonwealth at the expense of the States, which are to that extent rendered functus officio.

 

What, then, are the matters with respect to which the Commonwealth has executive power? Section 61 of the Constitution provides that:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

This, it should be noted, is merely an inclusive definition, not an exhaustive one. No exhaustive definition is attempted in the Constitution-obviously because any such attempt would have involved a risk of undue, and perhaps unintentional, limitation of the executive power. Had it been intended to limit the scope of the executive power to matters on which the Commonwealth Parliament had legislated, nothing would have been easier than to say so. But the framers of the Constitution, while carefully refraining from limiting the executive power to the execution of the laws of the Commonwealth, were equally careful to expressly extend it to those matters, and to others also: 'The executive power of the Commonwealth . . . extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth'. The execution and maintenance of Commonwealth laws is the second consideration; the execution and maintenance of the Constitution is the first. The framers of that clause evidently contemplated the existence of a wide sphere of Commonwealth executive power, which it would be dangerous, if not impossible, to define, flowing naturally and directly from the nature of the Federal Government itself, and from the powers, exercisable at will, with which the Federal Parliament was to be entrusted.

 

The scope of the executive authority of the Commonwealth is therefore to be deduced from the Constitution as a whole. It is administrative, as well as in the strict sense executive; that is to say, it must obviously include the power not only to execute laws, but also to effectively administer the whole Government of which Parliament is the legislative department.

 

There is, however, another and fundamental consideration upon which it is only necessary in this connection to touch briefly, but the importance of which can scarcely be overestimated.

 

The executive authority of the Commonwealth, unlike its legislative authority, is derived in the first instance directly and immediately from its fountain-head, the Crown. Executive power exists antecedently to, and independently of, legislation; and its scope must be at least equal to that of the legislative power-exercised or unexercised. For the exercise of many executive powers no legislation is needed, and this is expecially the case in the administration of external affairs. In the very matter under discussion-the maintenance of treaty obligations-there has been no legislation by the States, and none is required. But the Commonwealth, by virtue of the legislative power vested in it, is now responsible for the performance of these obligations, and must have the executive power necessary to fulfil all its obligations.

 

In connection with this part of the argument, it should be observed that while Mr Gordon concentrates his attention exclusively on executive powers created by statute, section 61 points also to executive powers which belong to prerogative. 'The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative.' These words are advisedly declaratory, not enacting; they express the broad constitutional principle that the whole body of the prerogative, so far as it is capable of exercise in relation to the affairs of the Commonwealth, is exercisable by the Governor-General, and, of course, exercisable, in accordance with the principles of responsible government, by and with the advice of Commonwealth Ministers.

 

Shorn of prerogative powers, the Commonwealth Executive would be a mere appendage to the Parliament-a board of subordinate officers exercising such powers as might be conferred upon it, but without independent authority of any kind. Such a conception of the executive is wholly at variance, not only with every principle of English constitutional law, but with the clear and unmistakable provisions of the Constitution. Responsible government, though far more clearly established there than in any of the State Constitutions, would then be much more restricted in authority, character, and domain than it is in the States under their less explicit charters. 'The King's Ministers of State for the Commonwealth'-so described for the first time in a great constitutional document-would, individually and collectively, be less His Majesty's Ministers than are the members of the State Executives; the vast fund of powers held by the Crown in trust for the people would disappear; and the Commonwealth, instead of inheriting the fullest development of constitutional rights and privileges, would find its new political organisation had dwindled from a national to a municipal body, for making and executing continental by-laws.

 

It is impossible to resist the conclusion that the Commonwealth has executive power, independently of Commonwealth legislation, with respect to every matter to which its legislative power extends. It is not contended that the Commonwealth Government has power to administer State Acts which remain in force relating to matters within the concurrent power of the State Parliaments; nor that there are no executive acts requiring prior authority. What is clear is that in all matters within the scope of the legislative power of the Commonwealth, its executive possesses all the powers of the Crown properly exercisable within the Commonwealth. Although instances may be found in which there are, for the present, what may be treated as concurrent executive powers in the Commonwealth and the States, these are exceptions mainly of a temporary character. As a general rule, wherever the executive power of the Commonwealth extends, that of the States is correspondingly reduced.

 

That the view here taken accords with the intention of the framers of the Constitution appears from the history of section 61. The first draft of the latter part of that section, submitted to the Sydney Convention of 1891, was as follows:

The executive power and authority of the Commonwealth shall extend to all matters with respect to which the legislative powers of the Parliament may be exercised, excepting only matters, being within the legislative powers of a State, with respect to which the Parliament of that State for the time being exercises such powers.

In committee, Sir Samuel Griffith⁽²⁾ said:

This afternoon I have had circulated an amendment which I propose to make in this clause. It does not alter its intention, though it certainly makes it shorter. As the clause stands, it contains a negative limitation upon the powers of the executive; but the amendment will give a positive statement as to what they are to be. (Debates, Sydney, 1891, p. 777).

The clause was, accordingly, amended to read-'shall extend to the execution of the provisions of this Constitution, and the laws of the Commonwealth'.

 

The original clause, therefore, extended the executive power of the Commonwealth to all matters within the legislative power of the Parliament, with a negative limitation applying to the execution of State laws on matters within the concurrent power of the States. The form was altered, to avoid even a negative limitation, but the intention remained the same.

 

Reverting to other points raised by Mr Gordon, it is surely not correct to say that the Commonwealth Parliament has not legislated in respect to external affairs. It has passed Appropriation Acts for the expenditure (inter alia) of the Department of External Affairs-a Department which was created by the Governor-General, under the provisions of the Constitution, and whose functions are construed to include all relations between Australia and the Imperial Government, except those which affect only the domestic concerns of the States. The Department has been further recognised by the Commonwealth Public Service Act 1902, and has been charged with the administration of two Acts-the Pacific Island Labourers Act 1901 and the Immigration Restriction Act 1901. Will it be contended-as apparently it has been sought to contend-that until Commonwealth legislation there could be no such Department, and no authority in the Minister-or that even after the legislation referred to the only power of the Department is to appoint a staff, pay the salaries of its officers, and administer the two Acts committed to its charge?

 

So much has been said in general elucidation of the vital issues involved in the contentions of the Attorney-General of South Australia. But, as a matter of fact, these issues are not involved in the present question, which is far less open to discussion. For the conduct of the inquiry into the complaint of the Consul-General for the Netherlands no executive power, in the strict sense, was primarily needed, and therefore the limits of its exercise are not really called in question. Its nature has been considered, not because it was necessary to be defined in this case, but because it has been challenged under a misapprehension, and in order that there be no implied admission in a matter of so much importance.

 

Reduced to proper proportions and distinctly denned, the actual subject of dispute between the State Government and that of the Commonwealth is very simple. The action taken by this Government in regard to the Vondel can only be questioned if it is maintained that the Executive of the Commonwealth has not authority even to inquire into facts directly affecting its reputation and involving international relations under the trade and commerce power committed to its charge. Such a theory is obviously untenable. The prerogative rights vested in it must certainly be ample enough to permit of the fullest investigation into this or any other matter of a Federal character.

 

Should the exercise of executive power become necessary in order to obtain information, it cannot be contended that legislative authority is lacking. The Royal Commissions Act 1902, giving statutory powers to Commissioners appointed by the Governor-General to make inquiry, was an exercise of the general 'incidental' legislative power of the Parliament, and clearly covers inquiries into any matter relating to external affairs, as well as into any other matter relating to any subject concerning which power is vested in the Parliament or the Government of the Commonwealth. This in itself sufficiently disposes of the whole case.

 

It may seem unnecessary to extend these comments; but as the precedents established at this stage in regard to the relations between the States and the Federal Parliament and Government are likely to become of moment in the future, a few formal observations may not be out of place.

 

The power of the Commonwealth with relation to external affairs may not be wholly exclusive, but it is certainly paramount. The question of the 'channel of communication' in some aspects is one not of law, but of administrative propriety. Had Mr Chamberlain⁽³⁾ thought lit to communicate directly with the State, the Commonwealth Government could have remonstrated, but could not have prevented the correspondence. He communicated, and properly, with the paramount power.

 

Mr Gordon has taken unnecessary alarm in supposing that the power and dignity of the States is threatened by the action in this case. There is no question of the validity of any State law, or the exercise of any State power. There is no assertion by the Commonwealth of any control over State officers, as such, or of any right to interfere in the administration of State laws. There is simply the question of the proper channel for forwarding information to the Colonial Office, in relation to a matter which (1) is within the legislative power of the Commonwealth Parliament, (2) comes within the scope of a Commonwealth Department, and (3) may be made the subject of inquiry by a Commission exercising powers conferred by Commonwealth legislation.

 

Speaking of the scope of the legislative power as to external affairs, Mr Gordon says:

It may or may not mean that the Commonwealth has power to make laws to enforce Imperial treaties, and to punish State officers who violate such treaties; but no such law has yet been made ... It would be absurd to make the Commonwealth Government the 'channel of communication' in matters in which they are powerless to act.

It is not claimed that in the absence of legislation there is any power to punish State officers for violating treaties; and the assertion of such a power is not necessary to the Commonwealth claim as to the 'channel of communication'. The Commonwealth 'Government'-in which are included the executive, legislative, and judicial departments-has undoubted power to provide for the observance of treaty obli-gations; and, in order to carry this power into effect, the Commonwealth Executive has an undoubted right to information as to the action of State Governments and officers with regard to those obligations. The extent to which, under existing legislation, that right can be enforced, is immaterial to the present question.

 

It may be pointed out, in passing, that Mr Gordon's argument assumes a complete divorce between the executive and legislative departments of the Commonwealth Government. Though those departments are distinct, it is impossible to ignore the relations between them-relations upon which the whole system of responsible government depends. It would be impossible for the legislature to perform its duties if the executive were debarred from obtaining in the most direct manner the information necessary for the purpose.

 

Mr Gordon also seems to argue that because the words 'and treaties', which followed 'external affairs' in the draft Constitution of 1891, are omitted, there is a consequent lack of Commonwealth power of legislation in respect of them. The omission, as appears from the debates, was solely to prevent any assumption arising that the Commonwealth claimed an independent power of making treaties. Legislation with respect to the enforcement of treaty obligations is clearly within the scope of 'external affairs'. Mr Jenkins ⁽⁴⁾, in correspondence on this subject, seems to raise a similar contention when he urges that 'external affairs' means affairs external to the Commonwealth, not external to the Empire. With that statement I fully agree; but from the deduction that the observance within a State of Imperial treaties with foreign Governments is not an affair external to the Commonwealth I altogether dissent.

 

Mr Gordon also says:

It is important to remember with regard to treaties that the Commonwealth has no more legislative power than the State.

It may be that a State has still, to some extent, concurrent legislative power with respect to certain treaties relating to matters wholly under State control; but it certainly has not equal legislative power. The power of the Commonwealth, even where not exclusive, is clearly paramount, and can at any time displace the State power altogether. To speak of equality under such circumstances is misleading. The ultimate and absolute power is with the Commonwealth; the State exercise of the power in the meantime is, in a sense, permissive only.

 

With regard to the jurisdicton of the High Court as to 'matters arising under any treaty', Mr Gordon says:

There is no legislation which gives the High Court exclusive jurisdiction of matters arising under any treaty, and the State courts have in such matters equal jurisdiction.

But it is important to remember that the jurisdiction of the Federal courts in such matters may be made exclusive. Mr Gordon's contention that 'matters affecting the position of consuls' are not within the legislative power of the Commonwealth seems to be based on too narrow a view of 'external affairs' and 'trade and commerce'. Consuls are agents of foreign countries, whose main interests are commercial. So far as they are concerned with purely local matters, as of police, their proper application is to the State authorities; but in regard to trade and commerce with other States or foreign countries or in regard to other matters that pass under the Constitution to the Commonwealth, their only appeal lies to the Commonwealth Government.

 

In every aspect, therefore, the subject of complaint, relatively inconsiderable as it is, is Federal in character and calls for Federal treatment. The only claim of the State can be based on the supposition that the transfer of authority in regard to existing treaties has not yet been completed, though this point has not been raised. The Executive of the Federal Government has been criticised on two assumptions: that its direct intervention had been invoked in the case of the Vondel, and that though invoked it was inadequate. Both of these assumptions appear to be mistaken, and the contention in regard to the real and simpler issue, which they tended to obscure, proves on examination to be equally erroneous.

 

The present exchange of views will, it is hoped, prove useful as assisting to a better comprehension of the respective spheres of influence of the State and Commonwealth.⁽⁵⁾

 

[Vol. 2, p. 404]

 

(1) Published in Commonwealth of Australia, Part. Papers 1903, Vol. II, p. 1154.

 

(2) Then Premier of Queensland and Vice-President of the Convention.

 

(3) Joseph Chamberlain, Secretary of State for the Colonies.

 

(4) John Greeley Jenkins, Premier and Chief Secretary of South Australia.

 

(5) This opinion was published in Commonwealth of Australia, Pari. Papers 1903, Vol. II, p. 1160.