Opinion Number. 1627



Key Legislation

Convention for the Regulation of whaling done at Geneva on 19 September 1931: WHALING ACT 1935 s 4: CONSTITUTION ss 51(x), (xxix), 99, 113, 116: INTERNATIONAL CONVENTION RELATIVE TO AIR NAVIGATION done at Paris on 13 October 1919 [1922] ATS 6

The Secretary, Department of External Affairs

The Secretary, Department of External Affairs has referred for advice a memorandum regarding several matters in relation to Whaling Conventions. Some of these matters are subject of other advisings. This advising is limited to the questions raised in section A of the memorandum. Section A is as follows:

A. CONVENTION FOR THE REGULATION OF WHALING (signed at Geneva, 24th September, 1931).

  1. This Convention was signed on behalf of the Commonwealth Government, but has not yet been ratified. During the last six years the question of ratification has received constant attention, but lack of agreement between the Commonwealth and one or more States on some aspect of the immediate course proposed has prevented the final step being taken.
  2. On 17th October, 1935, Cabinet approval was given to a submission that Commonwealth legislation to control whaling should be brought before Parliament so that the Commonwealth Government, after the Commonwealth Bill became law, might proceed to ratification of the Conventions subject to a reservation as to territorial waters. This reservation was to be withdrawn after the adoption by the Australian States of legislation similar to the Commonwealth Act.
  3. The Commonwealth Whaling Act (No. 62 of 1935) was assented on 9th December, 1935, and came into force on 24th August, 1936. On 16th December, 1935, ministerial approval was given for ratification of the Convention subject to a reservation as to territorial waters, but action along these lines was not completed before it was decided to list the matter for discussion at a Conference of Commonwealth and State Ministers, which met at Adelaide in August 1936. Representatives of the various States present at this Conference were of opinion that it was ‘undesirable that the ratification of the Convention by the Commonwealth should be limited to areas outside the territorial waters of the Commonwealth’, and it was decided to invite the State Governments to pass complementary legislation on the lines of the Commonwealth Whaling Act, so that the Commonwealth might ratify the Convention without any reservation as to territorial waters. Four States have either passed, or indicated their willingness to pass, such legislation, but since the decision of the High Court in the Aviation Case,(1) Victoria and Tasmania have suggested that State legislation is superfluous on the ground that the Commonwealth Government is able, under its ‘external affairs’ power, to ratify the Convention without any reservation and to control whaling under Commonwealth law in territorial waters. This question is now under reference to the Attorney-General’s Department.

The Whaling Act 1935 was passed on the assumption that it would be necessary for the various States to pass legislation complementary to the Commonwealth Act to regulate whaling in Australian territorial waters before Australia could ratify the Convention for the Regulation of Whaling (1931), without reservation.

Since the passage of that Act, the High Court has given its decision in the case of the King v. Burgess, ex parte Henry, 55 C.L.R. 608. By this decision, considerable light has been thrown on the extent of the ‘external affairs’ power in section 51 of the Constitution and the suggestion has been made that that power is wide enough to authorise legislation giving full effect to the Whaling Convention in Australian territorial waters as well as in waters beyond territorial limits.

In the case cited, the Justices of the High Court were unanimously of the opinion that the ‘external affairs’ power was wide enough to authorise the Commonwealth to enter into the Convention for the regulation of aerial navigation signed in Paris on the 13th October, 1919, and to pass legislation to give effect to that Convention.

The Court took the view, moreover, that the subject matters in respect of which the Commonwealth might make international agreements were so numerous and extensive in scope that they could not be exhaustively indicated and defined. The following passages from the judgment will serve to illustrate this view:

It is, in my opinion, impossible to say a priori that any subject is necessarily such that it could never properly be dealt with by international agreement. (Latham, C.J., at p. 641).

The power conferred by the Constitution upon the Commonwealth to make laws with respect to external affairs must be exercised with regard to the various constitutional limitations expressed or implied in the Constitution, which restrain generally the exercise of Federal powers. The Commonwealth cannot do what the Constitution forbids. But otherwise the power is comprehensive in terms and must be commensurate with the obligations that the Commonwealth may properly assume in its relations with other Powers or States. It is impossible, I think, to define more accurately, at the present time, the precise limits of the power. (Starke, J., at p. 658).

The limits of the power can only be ascertained authoritatively by a course of decision in which the application of general statements is illustrated by example. (Dixon, J., at p. 669).

The Commonwealth has power both to enter into international agreements and to pass legislation to secure the carrying out of such agreements according to their tenor even although the subject of the agreement is not otherwise within Commonwealth legislative jurisdiction. (Evatt, J. and McTiernan, J. at p. 696).

These dicta are not, I think, impliedly overruled by the decision of the Privy Council–given since the Henry case–in Attorney-General for Canada v. Attorney-General for Ontario and Others (53 T.L.R. p. 325),(2) because the British North America Act contains no provisions similar to placitum (xxix) of section 51 of the Commonwealth Constitution, and the Commonwealth Constitution contains no provisions similar to the provisions of the Canadian Constitution which were considered by the Privy Council.

I think it may safely be assumed, therefore, that the Commonwealth Parliament has power to legislate for the purpose of giving full effect to the International Convention for the Regulation of Whaling. The Constitution does not appear to contain any express limitation upon such power unless placitum (x) of section 51 is invoked, but this provision does not, in my view, prevent the exercise by the Commonwealth, within territorial waters, of powers conferred by placitum (xxix) of section 51. The Henry case indicates that the only restrictions on the power to make and give effect to international agreements are those provisions of the Constitution which specifically withhold legislative authority from the Commonwealth, e.g., sections 99, 113 and 116.

The Whaling Act 1935 does not need amendment in order that the Commonwealth may be in a position to carry out, in full, its obligations under the Convention for the Regulation of Whaling. Under section 4 of that Act, the Governor-General may, by proclamation, declare that the Act shall apply in Australian territorial waters. Upon the issue of such a proclamation, the necessary legislation will be in force in the Commonwealth giving full effect to the Convention.

I am of the opinion, therefore, that there is no necessity for the enactment of State legislation complementary to the Whaling Act 1935 in order that effect may be given to the Convention in the Commonwealth, and that, upon the issue of the proclamation mentioned, the Commonwealth would be in a position to ratify the Convention without reservation.

Whilst expressing the foregoing views, I think I should add that I discussed with the Attorney-General before he left for London recently the question of the scope of the ‘external affairs’ power and, following upon such discussion, concluded an advising to the Department of Trade and Customs with the following words:

From these dicta, it would certainly appear that Parliament is authorized to make laws to give effect to the Conventions in relation to dangerous drugs. The extent to which these laws would operate internally is, of course, dependent of the terms of the respective Conventions. But, whilst these dicta would appear to support this view as to the power of Parliament, the Attorney-General has already pointed out to Cabinet in connexion with the problem of the regulation of hours that the Privy Council would not, in his opinion, uphold that view in a final judgment.

Under these circumstances, the whole matter is in such doubt that I can go no further than to say that there is a distinct possibility of the validity of such a law being upheld by the High Court.(3)

I am now in communication with the Attorney-General concerning the general question of legislation by Commonwealth Parliament to give effect to Conventions, and, on receipt of his reply, I shall advise you further.

[Vol. 31, p. 247]

(1) R v Burgess; Ex parte Henry (1936) 55 CLR 608.

(2) [1937] AC 326.

(3) Opinion No. 1625.