WAR GRAVES WAR GRAVES OF AUSTRALIANS AND MEMBERS OF OTHER BRITISH COMMONWEALTH FORCES IN NETHERLANDS EAST INDIES: WHETHER PROPOSED AGREEMENT BETWEEN AUSTRALIA AND NETHERLANDS EAST INDIES GOVERNMENT IS WITHIN PROPER CONSTITUTIONAL FUNCTIONS OF AUSTRALIA: WHETHER AUSTRALIA IS MOST APPROPRIATE PARTY TO PROPOSED AGREEMENT: PROVISIONS OF PROPOSED AGREEMENT RELATING TO IMPERIAL WAR GRAVES COMMISSION
I refer to your memorandum No. 47/930 of 10th November, 1947.
It is noted that the proposal is that Australia should make an agreement relating to the war graves, in an area outside Australia, not only of Australians, but also of members of forces from any part of the Empire. (I understand, however, that the only British graves in the area apart from those of Australians are graves of members of the United Kingdom forces and a few graves of members of the Indian forces).
I have some doubt whether the making of such an agreement is wholly within the proper constitutional functions of Australia. Moreover the agreement might appear on its face to be an unwarranted interference by Australia with matters which are the concern of other Governments of the British Commonwealth. For example it does not seem appropriate that Australia should agree with the Government of the N.E.I. that exhumation of the bodies of United Kingdom soldiers, for transfer to the United Kingdom, shall not be permitted.
On the other hand most of the provisions of the agreement are concerned with securing the rights and powers in the N.E.I. of the Imperial War Graves Commission—a body on which Australia is represented and in the activities of which in the N.E.I. Australia has a substantial interest.
On the whole I consider that it would be much more preferable if the agreement could be expressed to be made—
(a) by all interested British Governments; or
(b) by Australia on behalf of all other British Governments concerned, as well as on Australia’s own behalf (if such is the fact); or
(c) by the Commission itself (if the agreement would be within the functions of the Commission as set out in its Charter—a copy of which is not readily available to me).
However, if none of the above suggestions offers a practical alternative, having regard to the time available, and if the Australian Government is satisfied that the making of the agreement would not be objected to by any other Government in the British Commonwealth, I would not go so far as to say that there is any compelling legal reason why the agreement should not be entered into in its present form.
A number of minor alterations in the draft appear to me to be desirable, and I enclose two copies of a revised draft. Attention is drawn to the following points:
(1) The word ‘Northern’ (Ireland) is not part of the King’s title and has been omitted;
(2) The word ‘present’ has been omitted from the second paragraph;
(3) The words ‘or may die’ have been omitted from Article 1;
(4) In Article 5(2) the meaning of the expression ‘the Government concerned’ seemed open to doubt. My draft substitutes the words ‘the Government of the country in the forces of which the deceased persons served’;
(5) In Article 6, the word ‘granted’ has been substituted for the word ‘permitted’.
[Vol. 38, p. 79]