GENEVA CONVENTION DRAFT GENEVA CONVENTION ON ARMS AND AMMUNITION: POWER OF COMMONWEALTH TO EXERCISE CONTROL OVER PRIVATE MANUFACTURE OF ARMS AND TO ISSUE LICENCES TO MANUFACTURERS: TRADE AND COMMERCE POWER: DEFENCE POWER: EXTERNAL AFFAIRS POWER
DRAFT GENEVA CONVENTION ON ARMS AND AMMUNITION arts 3, 4, 5: CONSTITUTION s 51(vi)
The Secretary, Prime Minister’s Department, asks for advice on the questions raised in the following memorandum:
I would be glad if you could please furnish me with your advice on the following point.
The Commission of the League of Nations, charged with drawing up a draft convention relative to the supervision of the private manufacture and publicity of the manufacture of arms and ammunition and of implements of war, has prepared a text, Article 3 of which is as follows:
The High Contracting Parties undertake not to permit, in the territory under their Jurisdiction, the private manufacture as defined in Article 2 of the articles included in Categories I, II, III and IV, or of the arms, ammunition and implements the use of which in war is prohibited by international law, unless the manufacturers thereof are licensed by the Government to manufacture the articles referred to in this article.
This licence shall be valid for a period to be determined individually by each High Contracting Party, and shall be renewable for a further period at the discretion of the Government.
As regards arms, ammunitions and implements the use of which in war is prohibited by international law, authorisation shall only be given in cases where it is established beyond doubt that such articles are to be manufactured for purposes other than war.
Articles 4 and 5 of the same draft convention require the parties to furnish to the Secretary-General of the League of Nations certain information concerning the arms etc. privately manufactured in their country.
The question arises as to the power of the Commonwealth to exercise the control over the private manufacture of arms and to issue licences to manufacturers as is contemplated in Article 3. It is on this point that I would be glad of the benefit of your advice.
It may be observed that the representative of the United States on the above-mentioned Commission of the League of Nations has stated in respect to Article 3 that his Government have no power to prescribe or enforce a prohibition or a system of licences upon the private manufacturer of arms etc. in the States of the Union.
Copy of draft conventions is attached which I would be glad if you would return.
As to Category I (Arms, Ammunitions and Implements of War exclusively designed and intended for Land, Sea, or Aerial Warfare), and Category III (Vessels of War and their Armament), I am of opinion that the power of the Commonwealth Parliament to make laws with respect to ‘the naval and military defence of the Commonwealth and of the several States’ extends to prohibiting manufacture except under licence.
It has of course been held that the manufacture of articles for use in trade and commerce is not covered by the trade and commerce power; but I do not think that it follows that the manufacture of articles for use in war is not covered by the war power. The manufacture of the munitions of war–whether for use by the Commonwealth, or for sale to countries who may be possible enemies–is of vital importance to the defence of the Commonwealth.
Category II (Arms and Ammunition capable of use both for military and other purposes) raises difficult questions. On the one hand, the fact that articles may be capable of a peaceful use does not necessarily diminish their importance as munitions of war. On the other hand, the category of articles capable of use for military purposes is a very extended one (c.f., for instance, the lists of contraband in the Great War). On the whole, I am of opinion that the defence power as to the manufacture of articles in this category could not be held by the High Court to extend to the whole of this category.
As to Category IV (Aircraft, assembled or dismantled and aircraft engines), I think that control of the manufacture of these articles, as a class, would not be held by the High Court to come within the defence power. Doubtless any kind of aircraft may be of great value in war; but the same is true of motor-cars and any other vehicles. An aircraft in itself has no more direct relation to war that a wagon has. There may be some kinds of aircraft which are as distinctively military in their nature as ships of war, and the manufacture of these would be controllable by the Commonwealth Parliament on the principles applicable to ships of war.
In this opinion I have not dealt with the question whether legislation to carry out the convention could come within the power to make laws with respect to ‘External affairs’. That is a power which contains immense possibilities, but it has not yet been the subject of judicial decision; and opinions based on it must be highly speculative.
[Vol. 24, p. 110]