Opinion Number. 1649


proposed agreements with Government OF Eire regarding transfer and administration of moneys awarded under workmen’s compensation legislation: powers of commonwealth and states respectively to enter into agreements: options open to commonwealth

Key Legislation

Constitution s 51(xxix)

The Secretary, Department of External Affairs

I am in receipt of your memorandum of the 14th March, 1939, requesting advice as to the form of reply which should be sent to the Government of Eire in relation to the proposal that the Commonwealth should enter into discussions with a view to the conclusion of reciprocal agreements with that Government regarding the transfer and administration of moneys awarded under workmen’s compensation legislation.

The matter is largely a matter of policy. It raises the question whether it should be regarded as the function of the Commonwealth to enter into Treaties and Agreements with foreign countries and the various countries included in the British Dominions, or whether the States should enter into separate negotiations and make separate agreements with such countries concerning matters with respect to which legislative power is vested in the States.

With regard to the agreement now proposed, the Premier of South Australia has expressed the view that ‘under the distribution of legislative powers in Australia any such arrangements would have to be made between the individual Australian States and the Irish Free State and no such arrangement can be made with this State without South Australian legislation to authorize it’.

The Premier of New South Wales appears to hold a similar view. He says ‘the Government of New South Wales is prepared to enter into a reciprocal arrangement of the nature proposed.’

The Premier of Western Australia states that his Government is of the opinion that there is no necessity to take any action in the matter at the present time.

I am not prepared to accept the view that such arrangements must be made by the individual Australian States. On the contrary, I think the case of The King v. Burgess; Ex parte Henry (55 C.L.R. 608) is authority for saying that the Commonwealth can enter into such agreements and the Commonwealth Parliament can enact legislation to give effect to them.

It is probable that, as a matter of administration, it would be more convenient and expeditious for the State Authorities to take any action necessary to carry such an Agreement into effect. It does not follow, however, that separate Agreements must be made by each State. The same result could be achieved under an Agreement made by the Commonwealth.

The following courses appear to be open to the Government:

  1. The Government could enter into an agreement with the Government of Eire and enact Commonwealth legislation to carry it into effect. In this connexion, however, I think I should advise you that when the Prime Minister (Mr. Menzies) occupied the office of Attorney-General, he held the view that the power of the Commonwealth to legislate with respect to external affairs should be construed in a narrow sense, notwithstanding the wider interpretation given by the High Court in the case of King v. Burgess; ex parte Henry (55 C.L.R. 608). It is suggested, therefore, that, before any steps are taken to adopt the course referred to in this paragraph, the proposal should be submitted to the Prime Minister.
  2. The Government could inform the Government of Eire that the subject of workmen’s compensation falls within the legislative province of the States, and invite that Government to negotiate with the States with a view to entering into a separate arrangement with each State. It would also be necessary for that Government to enter into a separate Agreement with the Commonwealth in relation to the Territories.
  3. The Government could enter into discussions with the Government of Eire with a view to making an agreement to apply only to those States which desire such an Agreement and are willing to take the necessary steps to carry it into effect.
  4. The Government could inform the Government of Eire that few cases have arisen in which it has been necessary to transmit moneys outside Australia, and it is not thought that such an Agreement is necessary at present. I think it would be advisable to consult the States before adopting this course.

[Vol. 32, p. 287]