Opinion Number. 267



Key Legislation

CONSTITUTION, s. 51 (xxix)

The Prime Minister

Mr G. J. Benjamin, a resident of Queensland, left Queensland for the United States in March 1905, but was refused admission on account of alleged disease of the eye. He returned to Australia, and wrote to the Premier of Queensland, urging that a claim for £200 should be presented to the United States Government. The Premier forwarded Mr Benjamin's letter, with supporting documents through the State Government to the Secretary of State, without reference to the Commonwealth Government.

In July, the Secretary of State asked the Governor of Queensland to forward a copy of his despatch to the Governor-General, and also asked the Governor-General whether the Commonwealth Government concurred in the Queensland Government's request.

The Prime Minister asked the Governor-General to reply that the Commonwealth did concur, and to urge that strong representations be made to the United States Government.

Thereafter, the Secretary of State corresponded in the matter with the Governor-General, and not with the Governor of Queensland.

In a despatch dated 18 January 1906, the Governor of Queensland enclosed to the Secretary of State for the Colonies a letter from the then Premier of Queensland (Mr Morgan) protesting against the action of the Colonial Office in referring this matter to the Commonwealth authorities. The Secretary of State (Lord Elgin) replied in a despatch of 19 March, pointing out that the action of the Colonial Office was in accordance with the principles laid down by Mr Chamberlain in the Vondel(1) case-in which he (Lord Elgin) concurred.

In a despatch dated 6 June 1906, the Governor of Queensland enclosed to the Secretary of State a further letter from the Premier of Queensland (Mr Kidston). The Secretary of State has asked the Governor-General whether his Ministers desire to comment on this despatch, and the Prime Minister has asked the Governor-General to reply in the affirmative. The papers are now forwarded by the Prime Minister to me for my views.

The letter of the Premier of Queensland enclosed in the Queensland Governor's despatch of 6 June challenges the view that the action of the Colonial Office in this case is justified by the Vondel despatches.

Mr Kidston distinguishes this case from the case of a complaint by a foreigner against an Australian State; and contends that a British subject residing in an Australian State and aggrieved by a foreign power is entitled to apply for redress direct to the Imperial Government, without the concurrence of State or Commonwealth; that there is no need for the Colonial Office to apply to State or Commonwealth, except to obtain information as to the character and credibility of the complainant; and that, in this case, the Queensland Government knew more of the matter than the Commonwealth Government, the complainant being 'personally known to the late Premier of Queensland'.

Mr Kidston states that if Mr Benjamin had applied direct to the Colonial Office, and that Office had applied to the Commonwealth Government for particulars, the Queensland Government would not have protested and would have cheerfully given the Commonwealth Government any information asked for: but as Mr Benjamin applied through the Queensland Government, which investigated the case, he thinks the protest justified.

Mr Kidston then (referring to the relevancy of the Vondel case, and an illustration of Mr Chamberlain's in that case) distinguishes this case from the case of a citizen of Louisiana (U.S.A.) having a complaint against a foreign State. He argues that the Government corresponding to the United States Government in this case is the Imperial Government, which controls the naval and military forces. And he claims that citizens of Queensland complaining of a foreign power must enjoy the right of appeal to the Imperial Government 'either directly or through whatever channel of communication they find most convenient, which, at least to people residing in or near the State capital, would probably be the State Government'.

In short, Mr Kidston's argument is based, not on the nature of the communication with the Colonial Office, but on the channel which the individual complaining chose to select for his communication; and he claims that the selection by that individual of a particular channel of communication determines the question which Australian Government, if any, the Colonial Office ought to address.

It appears to me that the guiding principle must be looked for in a different direction.

The Constitution and Government of each Australian Colony before Federation was-and of each Australian State now is-limited to the concerns of the Colony or State. When a British subject residing in Queensland goes abroad in his private capacity, and not as representing the State, his individual rights and wrongs when abroad are, strictly speaking, not matters for the Government of Queensland as a Government. And if the subject, in relation to such wrongs, addresses the Colonial Office through the Queensland Government, that Government is no more than his agent-though a very powerful and influential agent-for transmitting his complaint to the Colonial Office.

But the Commonwealth has, by Imperial statute, been invested with power and responsibility-and so far as Australia is concerned with paramount power and responsibility-with respect to 'External affairs'. In the Vondel case, which is the exact converse of this case, the Imperial Government in recognition of the statutory principle referred to-in other words, of the national character of the questions involved-have laid down the rule that in matters relating to external affairs they will deal officially with the Commonwealth Government. Through whatever channel of communication a complaint by an Australian against a foreign power reaches the Imperial Government-or against whatever authority or individual in Australia a complaint is made by a foreign power-the Imperial Government has decided that their official communications in the matter shall be with the Government of the Commonwealth.

In my opinion, the views expressed by Lord Elgin are sound, and involve no interference whatever with State rights. Indeed, there are no State rights concerned; the rights are those of the individual subject and of the Empire; and the mode of communication in respect of those rights is a matter which rests solely with the Colonial Office, and with which the Colonial Office has dealt in a way which seems to me to accord with the spirit of the Federal Constitution. It is surely of the very essence of that Constitution that, in his relations with other countries, a citizen of the Commonwealth is to be regarded not as a Victorian or a Queenslander but as an Australian.

[Vol. 5, p. 417]

(1) See Opinion No. 107.