Opinion Number. 244



Key Legislation

CONSTITUTION, s. 51 (i), (ii), (xv), (xvii), (xviii), (xix), (xxvi), (xxix), (xxxix)

The Prime Minister

The Prime Minister desires advice on the questions raised in the following memo from the Secretary, Department of External Affairs to the Secretary of this Department:

I am directed by the Prime Minister to inform you that it has been stated that a question has arisen in New South Wales with respect to the Convention between the United States and Great Britain(1), 1899-1911900 Hertslet, Vol. XXI, p. 1088.

Copies of that Convention were sent to the States (then Colonies) in 1900, but, excepting in the cases of Victoria and South Ausralia, which signified their intention to adhere, nothing was done until after the establishment of the Commonwealth.

The matter was referred to the Federal authorities by the State of New South Wales, and after consideration a communication was sent to the Governor-General by the Prime Minister to the effect that Ministers desired that New South Wales should be recognised as adhering to the Convention. Similar communications were sent respecting the other States and the British Ambassador at Washington notified the United States Government in April 1902 that the Commonwealth of Australia had signified its desire to accede to the Convention.

By the terms of section 3 of the Convention it is provided that- 'In case of the death of any subject of Her Britannic Majesty in the United States, or of any citizen of the United States of America in the United Kingdom of Great Britain and Ireland, without having, in the country of his decease, any known heirs or testamentary executors by him appointed, the competent local authorities shall at once inform the nearest Consular officer of the nation to which the deceased person belonged of the circumstances, in order that the necessary information may be immediately forwarded to persons interested.

The said Consular officer shall have the right to appear, personally or by delegate, in all proceedings on behalf of the absent heirs or creditors until they are otherwise represented.'

The competent local authorities in this case must mean officers of the State Government, and in order to give the Consular officers the right to appear in the courts, i.e. to give effect to the Treaty, it is considered that State legislation is necessary. This raised the question on which the Prime Minister desires to be advised by the Attorney-General.

Where a treaty is made between Great Britain and a foreign country concerning matters which in themselves are not subjects on which the Commonwealth has power to legislate, what is the effect of the adherence by the Commonwealth to such a treaty? Has the Commonwealth any power to pass the legislation necessary to give effect to the treaty under the authority given to legislate respecting External Affairs, or is there any power to compel the States to pass such legislation? Further, in case the Attorney-General considers that the Commonwealth has power to pass legislation to bring the provisions of the treaty into full effect, the Prime Minister wishes to be advised whether that power can be exercised by a measure dealing generally with the subject, or whether it would be necessary to pass a separate enactment in the case of each treaty to which the adherence of the Commonwealth is expressed.

May I invite attention to the opinion of the Attorney-General dated 28 May 1901(2), on the subject of treaties generally?

With regard to the statement that the British Ambassador at Washington notified the United States Government, in April, 1902, that the Commonwealth had signified its desire to accede to the Convention, I notice that in Hertslet's Commercial Treaties, Vol. XXI, p. 1194, it is stated that 'Australia also acceded, but the notice to that effect was given a day too late'.(3) It is also stated in Hertslet (Vol. XXI, p. 1088) that the ratifications were exchanged on 28 July 1900. Article IV of the Convention states that its stipulations shall not be applicable to any Colony unless notice to that effect has been given to the United States Government within one year after the exchange of the ratifications.

The questions asked are very wide; and in a matter involving the interpretation of the scope of the legislative powers of the Commonwealth I prefer to confine the opinion to the precise question which has arisen, and to advise as to this particular Convention only-though much of the reasoning on which my opinion is based may have a general application.

The Convention is intituled as relating to 'the disposal of real and personal property'. More specifically, the Convention relates to-

  1. the disposal of real property, in the territories of one of the Contracting Parties, to a subject or citizen of the other;
  2. the disposal of real property, in the territories of one of the Contracting Parties, by a subject or citizen of the other;
  3. steps to be taken on the death, in the territories of one of the Contracting Parties, of a subject or citizen of the other, without having
    therein any known heirs or testamentary executors by him appointed.

As to the disposal of real and personal property the Commonwealth Parliament has, of course, no general legislative power. But where legislation as to such disposal is incidental to the exercise of any legislative power of the Commonwealth, the Parliament has power to effect such legislation. For instance, the Commonwealth Parliament has, or may have, certain power to pass laws affecting the disposal of real and personal property in connection with-

(1)trade and commerce, (2)taxation, (3)weights and measures, (4)bankruptcy, (5)copyrights, patents and trade marks, (6) naturalization and aliens, (7) external affairs, (8) the people of special races, etc.

The real question in this case is-assuming that the Commonwealth has acceded to this Convention-has the Commonwealth Parliament power to make laws to enable the obligations of the Commonwealth under the Convention to be performed? If that power exists, it must be by virtue of one or more of the specific grants of legislative power in the Constitution.

In my opinion, the power does exist, by virtue of the specific grant of power to make laws as to 'external affairs'. Those words are very wide: they express the converse of 'internal' or 'home' affairs. They would be equivalent to 'foreign affairs' if 'foreign' were taken to include relations with the United Kingdom and with other British possessions-and it may be assumed that the word 'external' was used instead of 'foreign' to include these relations.

We have then to interpret the words 'external affairs' in the light of the meaning of the well-known phrase 'foreign affairs', and in the light of existing constitutional practice-Imperial and colonial-with respect to 'foreign affairs'.

Now the 'foreign affairs' of a country are not matters which are wholly 'foreign' to the country-they are matters which in the first place are 'affairs' of the country, and

in the second place have relation to foreign countries. In other words, they are the affairs of the country in relation to foreign countries. Such affairs, as between independent states, are primarily regulated by treaties. But treaties are not-according to English notions of jurisprudence-'law' in the municipal sense; in order to have the force of law they require legislative sanction. Without such sanction, a treaty is a bare pledge between the contracting states. In many cases, a country may be able to perform its obligations under a treaty without resort to the legislative power; but in many other cases, it is necessary to invoke the legislative power in order to perform the obligations.

Now, the 'external affairs' of the Commonwealth are its affairs in relation to other countries-including the United Kingdom and other British possessions. The Commonwealth has not-except so far as expressly sanctioned by the Imperial Parliament or the Crown-any power to make treaties. The Imperial Government can conclude treaties for the whole Empire; and when it does so, the primary responsibility to the other Contracting Party for the performance of the treaty obligations rests with the Imperial Government-whilst the Imperial Government looks to the Governments of the several British possessions to see to the performance of those obligations within their territorial limits.

Frequently-as in the case of the United States Convention now under discussion-Imperial treaties are expressed not to be applicable to the colonies unless those colonies accede thereto. The only difference in that case is that the colonies are given a voice as to the application of the treaty to them; when the treaty is applied, the chain of responsibility is the same.

Then the Constitution empowers the Commonwealth Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to 'external affairs'. In the drafts of 1891 and 1897 the words were 'external affairs and treaties'- and covering clause 5 provided that the Constitution and all laws made by the Parliament 'and all treaties made by the Commonwealth' should be binding on the courts, judges and people; but at the Sydney and Melbourne sittings of the Convention, the words relating to treaties were (on suggestions made by the Legislative Council of New South Wales) omitted: Quick & Garran, pp. 345-6, 631; Convention Debates, Sydney, 1897, pp. 239-240; Melbourne, p. 30.

The gift of an express legislative power as to 'treaties' would probably have enabled the Parliament to provide for the making of treaties by the Commonwealth; and the allusion in the 1891 and 1897 drafts to 'treaties made by the Commonwealth' appears to show that the framers took this view. Whether the legislative power as to 'external affairs' enables the Parliament to provide for the making of treaties need not now be considered.

Assuming that this Convention is applicable to the Commonwealth, there is a treaty obligation that, on the death of a citizen of the United States in any part of the Commonwealth, without having there any known heirs or executors, the United States Consular officer shall have the right to appear in all proceedings on behalf of the absent heirs or executors until they are otherwise represented.

Whether there is anything in the law of any of the States which prevents this obligation being fulfilled I am not in a position to say. If there is, the States have power by legislation to remove the obstacle. The Commonwealth has no power to compel the States to pass the necessary legislation; but in my opinion, the Commonwealth Parliament has power, by a law relating to 'external affairs', to make such provision as is necessary to enable the obligation to be fulfilled. That such a law would affect procedure with respect to the disposal of real and personal property in the States is no objection; the Constitution does not reserve to the States exclusive legislative power as to such disposal. The law would be one relating to an external affair of the Commonwealth-namely, its relations, as a part of the British Dominions, with the United States of America-and as such, it would be within the competence of the Federal Parliament.

This view is borne out by a reference to American authorities. The United States Constitution does not contain any provisions corresponding to the legislative power in respect to 'external affairs'; but the President has power, by and with the advice of the Senate, to make treaties; and by Article VI, section 2 (corresponding to covering clause 5 of our Constitution) treaties made under the authority of the United States-like laws made by Congress-are the supreme law of the land and binding on the judges in every State, anything in the Constitution or laws of any State to the contrary notwithstanding. Treaties made by the Executive are thus placed on a level with laws made by the Congress; and it appears to be recognised, both by publicists and courts, that the treaty-making power, and the power of Congress to make laws for executing treaties, extend to matters which, in the absence of treaty relations, would be wholly within State jurisdiction. See Butler, Treaty-Making Power of the United States, Chapters I, XI-XV.

[Vol. 5, p. 250]

(1) Dated 2 March 1899.

(2) Opinion No. 2.

(3) In a memorandum dated 18 May l906 the Secretary, Department of Extemal Affairs advised that a sup- plementary Convention was arranged between the British Government and that of the United States extend- ing to 28 July 1902 the time for notifying accession of British possessions and that pursuant to that sup-plementary Convention the requisite nott cation was given to the United States Govemment, and aeeepted in a communication from the American Secretary of State, dated 7 April 1902. The supplementary Conven-tion is dated 13 January 1902.

* See also Opinion No. 312.