The Prime Minister:

The Prime Minister asks for my views on the questions raised in the confidential Colonial Office despatch of 31 July 1903, with the file. Those questions appear to be:

1. Whether it is necessary that a consul should be recognized by a State Governor, or whether it will not be sufficient in future if he is recognized by the Governor-General and his recognition notified in the Commonwealth Gazette.
2. Whether communications as to consular appointments should-as is done provisionally at present owing to the attitude of the State Governments-be sent by the Colonial Office to the State Governors as well as to the Governor-General.

I understand that the present practice is as follows: When a foreign Government appoints a consul, and application is made to His Majesty for an exequatur, the Colonial Office (if the appointee is resident in Australia) notifies the application both to the Commonwealth Government and to the Government of the State in which the consul is stationed, asking for a report as to whether there is any objection to the appointment, and if not, asking that he should be provisionally recognized until the arrival of the exequatur. If the appointee is not resident in Australia, the procedure is the same, except that there is no request for a report as to objections.

The Governor-General then causes it to be notified in the Commonwealth Gazette that he has authorised the provisional recognition; and the State Governor causes a similar notification to be made in the State Gazette.

Upon the issue of the exequatur, the Colonial Office notifies both the Governor-General and the State Governor, who thereupon cause to be notified, in the Commonwealth and the State Gazette respectively, the appointment and the issue of the exequatur.

I further understand that the procedure adopted is the same, whether the consul is appointed to have jurisdiction throughout the Commonwealth, or only in a State or part of the Commonwealth-notifications in each case being sent to the Government of the State in which the consul is to exercise his functions, as well as to the Commonwealth Government.

In this minute, a consul having jurisdiction throughout the Commonwealth will, for convenience, be referred to as a consul-general, and a consul having jurisdiction in a part only of the Commonwealth will be referred to as a 'local consul'.

It appears also from the correspondence that there are differences of practice as to the relations between the consul-general and the local consuls of a country. Usually, the practice is for local consuls to communicate with the consul-general only, and not with the foreign Government; but in the case of some countries, the local consuls, though subject to general supervision by the consul-general, communicate direct, to a greater or less extent, with their Government.

The duties of a consul relate chiefly to the interests of the subjects of his country, especially in relation to shipping, commerce, customs, etc. Their dealings with Australian governing authorities are likely to be chiefly, though it cannot be said that they are wholly, with the Commonwealth. Shipping, for instance-though it is within the legislative power of the Commonwealth and a comprehensive measure dealing with the subject is now before the Parliament-is at present governed to a great extent by State laws. And the interests of foreign subjects may always be affected by State laws and administration in matters within the exclusive powers of the States.

Nor is it possible, in this respect, to draw a definite line of demarcation between the duties of a consul-general and of a local consul. A local consul, in his own district, will frequently be in touch with Federal authorities; and a consul-general has practically the functions of a local consul in the State or district where he is stationed.

From these preliminary observations I pass to a consideration of the precise questions submitted.

1. As regards the recognition of consuls, it seems to me not absolutely essential that a consul should receive formal recognition at the hands of the Government of the State in which he exercises jurisdiction, or (in the case of a consul-general) in which he is stationed. The recognition of consuls is clearly a matter within the scope of 'External Affairs'; and in accordance with Mr Deakin's opinion of 12 November 1902⁽¹⁾, in the matter of the Vondel, I am of opinion that it is within the executive power of the Commonwealth. The actual recognition of the consul's appointment is the King's exequatur; the notification by the Governor-General or the Governor is merely a public announcement of that authority. I think that such a notification by the Governor-General is technically sufficient. The case of provisional recognition, notified at the request of the Imperial Government before the issue of an exequatur, appears to be governed by the same considerations.

At the same time, in view of the relations of consuls with State Governments, I think it desirable that such notifications should also be made by the Governor of the State in which the consul exercises jurisdiction-or, in the case of a consul-general, in which he is stationed.

2. The question whether the Colonial Office should notify the State Governors, as well as the Governor-General, of consular appointments, is the second point on which the Secretary of State for the Colonies asks for my views.

The answer to the first question implies that the State Governor concerned should receive a notification of the appointment-whether of a consul-general or of a local consul. In my opinion, however-in accordance with the opinion already referred to in the Vondel case-the proper channel of communication in these matters is through the Governor-General. That this is so in the case of consuls-general appears abundantly clear; and I can see no satisfactory reason for a different course in the case of local consuls.

Whether the attitude adopted-and in my opinion mistakenly adopted-by the State Governments, makes it expedient for the Colonial Office, as a concession to State susceptibilities, to depart from this procedure by continuing the present provisional system is primarily, of course, a question for the Colonial Office itself; and I do not understand that an expression of my views on that question is asked for.

[Vol. 4, p. 176]

(1) Opinion No. 107.