Opinion is sought by the Prime Minister-

. . . as to how far the Commonwealth is bound by the commercial treaties of the Empire. These treaties may be divided for the present purposes into the following classes:

1. treaties without any special reference to the colonial possessions of the Empire;
2. treaties with a proviso that they do not apply to certain of such possessions unless the adhesion of those possessions is specially notified, and to which some only of the Colonies which now form the Commonwealth gave their adhesion;
3. treaties with a similar proviso to which all the Colonies adhered;
4. treaties made since the establishment of the Commonwealth to which adhesion has been given by the Federal Government.

Opinion is chiefly sought with respect to the second class; as to-

. . . whether the status of the adhering Colonies having been altered by Federation, their engagements bind the Commonwealth. If so, do they bind the whole Commonwealth, or only those parts which adhered. If the latter, how are they affected by those provisions of the Constitution requiring uniform treatment of States and individuals.

1. Treaties without any special reference to the colonial possessions of the Empire

The position with respect to these treaties has been stated by Todd, Parliamentary Government in the British Colonies, p. 265:

It is a well-understood principle that the privileges and advantages, commercial or otherwise, which have been accorded to a nation, pursuant to any treaty or convention entered into with another nation, do merely extend to the particular state or sovereign power which has contracted the same, to the exclusion of the colonial possessions of such power unless they are expressly named in the treaty; and that colonies not so expressly included cannot claim to be admitted to share in the treaty privileges enjoyed by the mother country, as of right, on the ground that they form part of the empire. The colonies of a high contracting power not included in a treaty, can only be admitted to a participation in the benefits of the same by a further treaty or convention made on their behalf; or by a law, to be passed by the foreign state, admitting them to the enjoyment of the advantages sought to be attained.

2. Treaties with a proviso that they do not apply to certain of such possessions unless the adhesion of those possessions is specially notified, and to which some only of the Colonies which now form the Commonwealth gave their adhesion

The provision in a treaty to the effect that it is not to extend to colonies unless they notify their adherence is a recognition of a qualified status of self-governing colonies in international arrangements. Though the treaty is made through the sovereign authority, yet it is only to be binding on a colony when those entrusted with authority in the colony consent. The treaties for the greater part deal with matters of public policy; the control of the public policy is, under their constitutions, left by the imperial authorities to the colonies. Therefore, before they can be regarded as being bound by a treaty affecting the matters over which they have power, they must assent. Though in form when the colony adheres to a treaty, the treaty is a treaty with the empire, yet in substance it is a separate agreement between the foreign party to the treaty and the colony.

The rules with respect to the continuance of treaties between nations would be applicable to the interpretation of the agreement made with the colony through the imperial authorities:

If a treaty is consistent at the outset with the right of self-preservation it is an implied condition that it shall remain so. While a state may surrender by compact its natural right to independence, such an intention will never be inferred, it must be clearly expressed. Therefore a treaty, which was not intended to be a menace to the life or independence of a state at the time of its execution, becomes voidable the moment subsequent events invest it with that character. In the same way if a compact is made in contemplation of the continuance of a particular form of government in one or both of the contracting states, either may terminate it whenever internal constitutional changes render it inapplicable to the new circumstances. It is also an implied condition of the continuing obligation of a treaty that the parties to it shall retain their freedom of will with respect to its subject-matter. For example, if a state, independent at the time of the execution of a convention, subsequently becomes subordinate to another through the fortunes of war or enters into a confederation whose constitution restrains its liberty of action, its obligation to perform the prior agreement becomes subordinate to its restraints and obligations involved in its new relations. Such a case constitutes an exception to the general rule that a prior treaty takes precedence of a subsequent one. (Taylor, International Public Law, p. 401.)

See also the authorities cited in the opinion of the Attorney-General, 16 January 1902.⁽¹⁾

Apply these principles to the Australian conditions. In Australia, prior to Federation, there were six States, each of which possessed full power within its defined territorial jurisdiction to control public policy, inter alia, in matters affecting trade with other countries, and navigation and shipping. There were six distinct political entities who were within the ambit of their authority practically sovereign. With respect to matters under their jurisdiction, the power to adhere to treaties had been conceded, and having self-government they were able to direct their wills to comply with the provisions of any treaty to which they had adhered. Under Federation the position has been changed; a new political entity has been created; the six States have, in certain matters, become subordinate. Among these matters, they have surrendered their power to control public policy affecting trade with other nations, external affairs, customs, and navigation and shipping. Their freedom of will has gone so far as these subjects are concerned, and the direction of them passed to another sovereign power.

Undoubtedly treaties may be terminated by the absorption of Powers into other Nationalities and the loss of separate existence, as in the case of Hanover and Nassau, which became by conquest incorporated into the Kingdom of Prussia in 1866. Cessation of independent existence rendered the execution of treaties impossible. But where sovereignty in that respect is not extinguished, and the power to execute remains unimpaired, outstanding treaties cannot be regarded as avoided because of impossibility of performance. (Terlinden v. Ames 184 U.S. 270 at 283.)

In the case of the States of the Commonwealth, owing to the action of the Australian people in depriving the States of the power to deal with matters under section 51, and by the exercise of the transferred powers by the Commonwealth, treaties made with respect to these matters may become impossible of performance. The question is further mentioned at page 286 of the judgment cited above, and an extract is given from a statement of Mr J. C. Bancroft Davis:

The establishment of the German Empire in 1871, and the complex relations of its component parts to each other and to the Empire, necessarily give rise to questions as to the treaties entered into with the North German Confederation and with many of the States composing the Empire. It cannot be said that any fixed rules have been established.

Where a State has lost its separate existence, as in the case of Hanover and Nassau, no questions can arise.

Where no new treaty has been negotiated with the Empire, the treaties with the various States which have preserved a separate existence have been resorted to.

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Such a question is, after all, purely a political one.

See decision⁽²⁾ of the U.S. Supreme Court in an extradition case arising out of Treaty made with Prussia in 1852. Held that as the German Government had officially recognised and continued to recognise the Treaty between United States and the Kingdom of Prussia as still in force and not terminated because of impossibility of performance and the executive department of the United States Government had accepted that view and proceeded accordingly, it was not for the Court to question the correctness of the conclusions of the German Government as to the effect of the adoption of the Constitution of the German Empire.

As far as the Commonwealth is concerned, it is not bound by any treaty made with the States and to which it has not adhered. As regards the States, as the exercise by the Commonwealth of any of the powers of legislation with respect to matters transferred from the States the treaties would become impossible of performance by the States and thereby determined so far as the particular matter is concerned. ,

Following the analogy of the U.S. decision above cited, there may be certain treaties adhered to by the States which may be recognised. But the Commonwealth cannot, either by express agreement or by conduct, adopt any treaty affecting trade, commerce or revenue so as to give any preference to any State (section 99) or otherwise contravening the Constitution.

3. Treaties with a similar proviso to which all the Colonies adhered

The mere fact that all instead of some only of the States have adhered to a treaty does not alter the position. The principle of determination is the same in each case.

4. Treaties made since the establishment of the Commonwealth to which adhesion has been given by the Federal Government

No comment is necessary upon these.

[Vol. 6, p. 15]

(1) Opinion No. 37.

(2) Terlinder v. Ames, ibid.

*See also Opinion No. 301.