Opinion Number. 224



Key Legislation

CONSTITUTION, s. 51 (xxix) : CROWN SUITS ACT 1898 (W.A.)

The Prime Minister

It appears that in January 1903 Messrs Dutilh-Smith Macmillan & Co., an American corporation, pursuant to a contract with the Government of the State of Western Australia, supplied to that Government a number of railway wagons.

The specifications expressly excluded from the contract the provision of flooring and floor-bearers, but by mistake the contractors supplied flooring and floor-bearers-valued at £1,320.

The contractors state that in February 1903, becoming aware of the mistake, they rendered an account to the Government of Western Australia for £1,320 for the flooring and floor-bearers, but the State refused to pay.

Having failed to file a petition of right within twelve months after the claim arose, they cannot now proceed under the W.A. Crown Suits Act 1898 and the W.A. Government have refused to waive the objection.

The contractors have, through the American Charge d'Affaires, petitioned the King to direct that right be done in the matter and that the claim be referred to His Majesty's Supreme Court in Western Australia.

The memorandum of the Charge d'Affaires and the petition were, on 17 June 1903, transmitted by the Secretary of State for the Colonies to the Governor-General to be laid before his Ministers.

His Excellency informed the Secretary of State that in the opinion of his Prime Minister the Commonwealth Government were in no way concerned with the petition.

The Secretary of State replied by a despatch of 11 August 1905, maintaining the opinion that the memorandum from the American Charge d'Affaires had been rightly transmitted to the Governor-General in the first instance, but stating that as a measure of practical concurrence he had now addressed the State Government direct. He cited the correspondence in the Vondel case(1) as an authority for the proposition that the Commonwealth Government is 'the proper channel of communication with Australia in regard to all matters occurring in the Commonwealth which form the subject of communication from foreign Governments to His Majesty's Government'.

He also drew special attention to paragraph 7 of Mr Chamberlain's despatch of 15 April 1903, to the Government of South Australia(2)

So far as other communities in the Empire or foreign nations are concerned, the people of Australia form one political community, for which the Government of the Commonwealth alone can speak, and for everything affecting external States or communities which takes place within its boundaries that Government is responsible. The distribution of powers between the Federal and State authorities is a matter of purely internal concern of which no external country or community can take any cognisance. It is to the Commonwealth and to the Commonwealth alone that, through the Imperial Government, they must look for remedy or relief for any action affecting them done within the bounds of the Commonwealth, whether it is the act of a private individual, of a State official, or of a State Government.

The quotation made by the Secretary of State omits the concluding sentence of the paragraph referred to which is as follows:

The Commonwealth is, through His Majesty's Government, just as responsible for any action of South Australia affecting an external community as the United States of America are for the action of Louisiana or any other State of the Union.

With the above passages from Mr Chamberlain's despatch I fully concur. They have reference to matters in which-as in the Vondel case-a foreign Government complained of an alleged breach of international duty. Such a case comes under the heading of 'external affairs', involves the Commonwealth Government in responsibility, and is properly the subject of communication through the Commonwealth Government.

The case now under consideration appears to me to be of a totally different character. This is not a diplomatic remonstrance, but a petition by an American corporation for an act of grace in relation to a contract between the petitioners and the Government of Western Australia. I am not prepared to admit that the petitioners might not properly have directly petitioned the Governor of Western Australia in the matter. They have adopted the course of presenting a petition, through the American Embassy, to the King.

Whether the King in Council has power, under the circumstances, and in view of the W.A. Crown Suits Act 1898, to direct the petitioners' claim to be referred for trial by the Supreme Court of W.A., is not a matter on which I can advise. But the Governor-General in Council clearly has no such power. The whole matter is one in which the Commonwealth Government has neither jurisdiction nor responsibility. It is not a matter which-in the words of Mr Chamberlain's despatch-'affects a foreign community'. It is not a matter of 'external affairs' nor of any other Federal power. It is not a matter in which the Commonwealth Government could address to the State Government any representation or remonstrance, or take any effective action whatever; and therefore there is no constitutional or political necessity for the correspondence to pass through its hands.

I do not see the relevance to this matter of the proposition that 'the distribution of powers between Federal and State authorities is a matter of purely internal concern of which no external country or community can take any cognisance'. It is not suggested that the United States of America should take cognisance of the distribution of powers, but that the Secretary of State for the Colonies should do so. As far as the petitioners are concerned, they are clearly cognisant of the fact that they have contracted with the Government of the State of W.A.

I should be sorry to give any advice which would in any way qualify or limit the principle definitely laid down in the Vondel case, that in all matters affecting international obligations the channel of communication with the Imperial Government is through the Commonwealth Government: but I cannot see that that principle is in any way involved in this case.

[Vol. 5, p. 84]

(1) See Opinion No.107.

(2) Pblished in Commonwealth of Australia, Parl.Papres 1903,Vol.II,p.1167.

* See also Opinion No. 234.