Opinion Number. 1535


Migrant land settlement
Migrant settlement agreements: enforceability against commonwealth: liability for misrepresentations: responsibility for acts of agent of Victorian government: liability for representations of Commonwealth DirectOR of Migration: prospects of success of proceedings by individual migrants

The Secretary, Prime Minister

I am in receipt of your memorandum of the 7th April, 1933, forwarding for advice as to the responsibilities, if any, of the Commonwealth Government:

  1. A copy of the Report of the Royal Commission;
  2. A copy of a letter dated 3rd April, 1933, addressed to the Prime Minister by Messrs. John W. McComas and Co., Solicitors, who acted for most of the settlers before the Royal Commission; a copy of a formal acknowledgment of this letter dated 7th April, 1933, is also enclosed; and
  3. Brief summary of the Report dated 3rd April, 1933, prepared in your Department.

I am asked to take into consideration in this connexion the Findings of the Commission and the contractual obligations that exist as between the respective Governments.

I understand that advice is sought as to the legal obligations (if any) of the Commonwealth to individual migrant settlers brought to Australia under arrangements effected in pursuance of the Migrant Settlement Agreements.

The matter of the liability of the Commonwealth was not within the terms of reference to the Royal Commission on Migrant Land Settlement. Its consideration, so far as Governmental obligations are concerned, was restricted to the State of Victoria.

This limitation is referred to on page 11 of the report of the Royal Commission. It is there stated that the question whether the obligation of the State Government is extended to the Commonwealth Government is not within the ambit of the inquiry.

It is pointed out on page 2 of the report of the Royal Commission that none of the Agreements appears to have been made under statutory authority of the Commonwealth or the State of Victoria, but the terms of the Commission indicate that for its purposes they are to be treated as if they had been so made.

As a matter of strict law none of the Agreements are enforceable by reason of the fact that they are not made under statutory authority.

The report considers this aspect of the matter at pages 12 and 13 and states that, although the complainants may have no rights under the Agreements enforceable by law, there are special circumstances which give them a just claim upon the State for the fulfilment of the Agreements so far as the State undertook, by those Agreements, to confer benefits upon persons in the position of the complainants.

It is assumed, therefore, that it is proposed to disregard, so far as the Commonwealth is concerned, the legal objection above referred to which might be taken to the enforcement of the Agreements.

On this basis the legal liability of the Commonwealth would depend on:

  1. the falsity of any representations made by, or on behalf of, the Commonwealth in England which resulted in any migrant participating in the scheme; or
  2. any obligations expressly imposed on the Commonwealth by the Agreements.

The Commonwealth, by an Agreement of 21st September, 1922, made with the State of Victoria, agreed to borrow certain moneys on behalf of the State for the provision of 2,000 farms in accordance with a scheme of settlement, to arrange with the British Government a loan of £300 to be made by that Government to each migrant, and to arrange for the selection and conveyance of the migrants to Victoria, and from time to time as may be required by the State.

This Agreement, however, was cancelled by a later Agreement of 26th March, 1926.

Certain representations, to which exceptions have been taken, were apparently contained in a pamphlet entitled ‘Australia–Farms for British Settlers in Victoria’. It purported on its cover to be published by the Migration and Settlement Office, Australian Government, Australia House.

I have not at present enough information to say whether the Commonwealth was in any way responsible for the issue of this pamphlet, or whether any statement contained therein is of such a false or extravagant nature as to give rise to a right of action on the part of any person who suffered damage as a result of it.

Consideration has been given to the representations made by Mr A.B., the son of the Agent-General for Victoria. It would appear that Mr McWhae was appointed by the Agent-General to perform duties in relation to the obtaining of suitable settlers. It would appear that he was paid by the Commonwealth Government.

Notwithstanding the arrangements for the payment of his salary I am of opinion that the Commonwealth is not responsible for the statements made by Mr McWhae.

In 1924 Mr C.D.E. is stated to have arrived and taken up work by arrangement between the Commonwealth and State Governments.

It is stated in the Commission that Mr E. thought he had been specially sent to London by the Victorian Government to select applicants desirous of settling on the land in Victoria and so stated in a folder–‘Land Settlement in Victoria’ compiled and issued by him in London to intending migrants. The Commonwealth was entitled to use his services in other directions, but primarily his function was to obtain migrants for the State Government scheme.

It would appear that Mr E.’s activities on the part of the Commonwealth were restricted to duties altogether apart from canvassing for intending migrants.

There is nothing to suggest that the Commonwealth is responsible for any statement made by Mr E. in carrying out his duty to the Victorian Government in selecting applicants.

In an Agreement dated 29th November, 1923, and made between His Majesty’s Secretary of State of the one part, and the Commonwealth Government of the other part, it is provided as follows:

  1. The Commonwealth Government shall make arrangements with the State Government to ensure that adequate facilities are provided for the reception and absorption of the intending settlers on arrival, that they are treated fairly in all respects, and that they are given direction and supervision by experienced superintendents after a farm has been provided.
  2. The Commonwealth Government shall make arrangements with the State Government to ensure that the debt charged to the settlers in respect of land purchased shall not exceed the fair value of such land.

The arrangements undertaken to be made by the Commonwealth Government were in each case to be made with the State Government, and these arrangements were effected by means of Agreements with the State Government. If in fact the State Government has failed to carry out its Agreement made with the Commonwealth Government, it is not considered that this is any breach of agreement by the Commonwealth Government which merely undertook to make arrangements. The failure of the State Government to provide the adequate facilities above referred to would not create any right of action by an individual migrant against the Commonwealth.

The references on pages 8 and 9 of the report to the activities of the Commonwealth Direction of Migration in London suggest that extravagant representations were made by that officer. It is thought that the statements quoted are nothing more than an advertising ‘puff’ and cannot be invoked as justification for legal proceedings.

In the £34,000,000 agreement the Commonwealth Government in clause 9, makes certain undertakings. The undertakings are, however, somewhat vague in character. They are ‘to make arrangements’ for certain purposes, ‘to use best endeavours’ to ensure the success of the agreed undertakings, and other obligations stated in similar terms.

As mentioned in connexion with the Agreement of the 29th November, 1923, the Commonwealth has, in fact, made arrangements by subsidiary agreements with the State. The undertakings were not with individual migrants, and if the State has failed in its obligations to the Commonwealth under the subsidiary Agreements, it does not appear that individual migrants can succeed in proceedings against the Commonwealth for the failure of the State to carry out its Agreements.

[Vol. 26, p. 201]