Opinion Number. 293

Subject

EXECUTIVE POWER OF COMMONWEALTH WHETHER COEXTENSIVE WITH LEGISLATIVE POWER : WHEN IS STATE EXECUTIVE POWER DISPLACED : WHETHER COMMONWEALTH HAS POWER BY EXECUTIVE ACT TO PERMIT LANDING OF FOREIGN TROOPS OR CREWS

Key Legislation

CONSTITUTION, ss. 51 (vi), (xxix), (xxxix). 61,109: DEFENCE ACT 1903. s. 63

Date
Client
The Prime Minister

On 14 December 1905, certain regulations governing the landing of foreign troops and crews of warships were made and gazetted under the provisions of the Defence Act 1903.

In September 1906, a memorandum on the subject by the Colonial Defence Committee was received from the Imperial Government. This memorandum recommended that the Colonial Governments should be asked to rescind the then existing regulations governing this subject and substitute for the practice established under those regulations a new practice, set out in paragraph 6 of the memorandum.

On 24 October 1906, the Prime Minister requested the Governor-General to inform the Secretary of State for the Colonies that the Commonwealth Government concurred in the recommendations of the Colonial Defence Committee, and that the necessary alteration in the regulations would be made.

On 15 January 1907, the previous regulations were accordingly cancelled. No new regulations governing the matter have been made.

On 7 March 1907, the consuls were informed by circular from the Governor-General's Office of the cancellation of the regulations, and of the new practice which it was proposed to adopt. At about the same time, the State Premiers were informed of the action taken by the Commonwealth in the matter, and were asked to co-operate in giving effect to the recommendations of the Colonial Defence Committee.

So far, therefore, as the Government of the Commonwealth has authority in the matter of the landing of foreign troops and crews of warships, it has officially determined the practice which is to be adopted and has given the fullest public notice of that determination.

The practice adopted by the Commonwealth Government is that recommended by paragraph 6 of the Colonial Defence Committee's memorandum. This is as follows:

Commanders of foreign ships of war and transports to be at liberty to give shore leave to unarmed sailors for purposes of recreation without the necessity of previously obtaining formal permission from the Governor of the Colony.

Where it is desired to land large numbers of men, notice to be given through the consular officer at the place to the local civil authorities who will be prepared to accord all the facilities of which the local conditions will admit, and are authorised to consent to the landing of unarmed pickets to assist the local police.

The condition as to landing without arms not to apply to officers.

If it is desired to land armed parties in connection with funerals, or to take part in public ceremonies of an exceptional nature, applications to be made to the Governor through the local consular officer.

It will be observed that the Colonial Defence Committee refer throughout to the 'Colonial Governor', and make no reference to the new conditions established in Australia by the fact of Federation. Obviously, however, the word 'Governor' must be read as referring to the officer who, under the law, is the proper officer to deal with these matters. The Commonwealth Government has assumed that in this case this officer is the Governor-General, and in the circular to foreign consuls, already referred to, it was announced that applications for leave to land armed men should be addressed to the Governor-General.

The State Premiers, it appears, do not concur in the view that this is a matter in which the Commonwealth has exclusive authority to settle the practice. The question was discussed at the Premiers' Conference in Brisbane, in May 1907, and with full knowledge of the practice which had already been adopted by the Commonwealth Government, and of the fact that this practice had been announced to the foreign consuls, the following resolution was adopted:

That no armed men shall be landed from any foreign ship of war or transport, except to attend funerals or take part in public ceremonials of an exceptional nature, and then only with the permission of the Governor obtained through the local consular authority.

Unarmed men, not to exceed thirty in number, on shore at any one time may be landed for recreation.

Should it be desired to land unarmed men in excess of that number on shore at one time, or should the local police authorities ask for assistance of unarmed pickets from any foreign ship of war or transport, consent to the landing of such must be obtained from the Governor of the State through the local consular officer.

The practice suggested in this resolution is at variance with that adopted by the Commonwealth in three respects:

  1. It limits the number of unarmed men to be allowed on shore at any one time for purposes of recreation to thirty.
  2. It makes it necessary that the consent of the State Governor should be obtained to the landing of unarmed pickets, and that a request by the local police authorities should be a preliminary to the asking of such consent.
  3. In the case of the landing of armed men, permission is to be obtained from the Governor, and not from the Governor-General.

It is clear that if the State Governments act according to the practice embodied in the resolution adopted by the Premiers very serious difficulties may arise.

The question is whether the Commonwealth Government or the State Government has authority in the matter. There can be no doubt that the Commonwealth has legislative authority with reference to it-

(1)Under the power to pass laws with respect to the naval and military defence of the Commonwealth and of the several States

The Parliament has already indeed passed a law covering this subject, for the Defence Act 1903, section 63, provides that 'The Governor-General may . . . (f) Subject to the provisions of this Act do all matters and things deemed by him to be necessary or desirable for the efficient defence and protection of the Commonwealth or of any State'. The regulations of 14 December 1905, relating to the landing of foreign troops and crews of warships were made under the power conferred by this section.

It can hardly be disputed that the power of controlling the landing of foreign troops or crews in time of peace is incidental to the defence of the Commonwealth. Unless this is disputed, however, the exercise of legislative power with regard to it, whether in the shape of a direct enactment or in the shape of a power to make regulations, can hardly be successfully challenged.

So far as this subject is regarded as coming within the category of defence,therefore, the position is that the Commonwealth Parliament has the power to legislate with regard to it, and has actually exercised this power.

(2) Under the power to pass laws with respect to external affairs

The regulations relating to the landing of foreign troops and crews in time of peace are intimately connected with the maintenance of friendly relations with foreign powers. This is sufficiently illustrated-if illustration were needed-by the incident which evoked the memorandum of the Colonial Defence Committee already quoted-viz. the difficulty which arose in connection with the visit of the French cruiser Protet to New Zealand in September 1904. Every matter which is so closely connected with the maintenance of the friendly relations of Australia, and through Australia of the Empire, with foreign powers is, it is submitted, within the wide grant of power which is made by the use of the words 'External affairs' in section 51, sub-section (xxix) of the Constitution.

Putting aside for the moment the fact that the Commonwealth Parliament has already legislated on this subject under the power with regard to defence, it is sufficiently clear that the subject is within the legislative power of the Commonwealth, under either or both of the heads mentioned above.

It is hardly necessary to enter again upon the discussion of the questions as to the executive powers of the Commonwealth which were so fully discussed in connection with the Vondel case.(1) It will suffice to state that, as far as the Commonwealth Government is concerned, it must be taken to be settled law that the executive power of the Commonwealth is coextensive with the whole range of its legislative powers, whether those powers are exercised or unexercised: and further, that there is vested in the Governor-General under section 61 of the Constitution the whole undefined mass of executive powers which are necessarily implied in the creation of a new political entity, sovereign within its own sphere. These general propositions are of course subject to the limitation that where the matter is one which is governed by a State law which has not been displaced by a law of the Commonwealth, the State executive power under the State law still remains. This limitation however has no application to the matter now in question.

It follows from this that the Government of the Commonwealth must have the power of regulating a matter of this kind, which is clearly within its legislative power, by mere executive act, even in the absence of any legislation. It follows, too, that any regulation of a State Government inconsistent with that adopted by the Commonwealth must give way to the Commonwealth regulation.

The practice set out in the circular sent to foreign consuls by the Official Secretary to the Governor-General on 7 March 1907 must therefore be taken to be authoritative and any action by the State Governments inconsistent with that practice would be a clear invasion of rights which the Constitution vests in the Commonwealth.

It has already been observed that this subject has been legislated upon by the Commonwealth Parliament, in the Defence Act 1903, section 63, and the regulations of 14 December 1905. Those regulations however have been cancelled, and there are at present no regulations dealing with the matter in existence. It would, of course, be perfectly simple, as a matter of law, to embody the practice set out in the circular to foreign consuls of 7 March in regulations under the Defence Act. This course, however, is deprecated by the Colonial Defence Committee (see paragraph 5 of the memorandum) and there appears to be no sufficient reason, as far as the law is concerned, why a course which is at variance with the recommendations of that Committee should be adopted.

The circular of 7 March and the letters informing the State Governments of the practice proposed to be adopted seem to be a sufficient expression and publication of the determination of the Commonwealth. The absence of more formal evidence of an exercise of executive power can hardly cause inconvenience, except possibly in the very unlikely event of litigation; and even in that event the inconvenience would not be serious.

So far as can be gathered from the Report of the Debates on this subject at the Premiers' Conference in Brisbane (see pp. 271, 299) the resolution of the State Premiers is based upon the view that this question is merely one involving the domestic or internal peace of the States. To quote the words of the President (at p. 276): 'It is merely a matter of policing. It is simply a safeguard against domestic violence and social disorder and in that case the Commonwealth has no rights at all except by invitation of the States.'

If this view were correct, the claim of the State Premiers that the matter is one with which the Commonwealth Government is not directly concerned could hardly be disputed. But it is submitted, with great respect, that for the reasons already mentioned the matter is not merely one which concerns the domestic peace of a State. It concerns the defence and the external relations of the Commonwealth and it is therefore, to the extent to which those matters are involved, a subject within the legislative and executive power of the Commonwealth. After foreign troops or crews have landed, their conduct on shore may no doubt involve questions concerning the internal peace of a State. The State Governments have therefore the right and the duty of making regulations, if any should be found necessary, or of taking appropriate action, if occasion should arise, for maintaining public order while foreign troops or crews are on their territory. But the conditions under which the landing of such troops or crews may be permitted are quite a different thing from the conditions which may be imposed upon them after they have landed for the purpose of maintaining domestic order: and the fact that the State Governments have the responsibility for the second of these purposes does not invest them with the right to control the first.

It must not be overlooked, of course, that, although the Commonwealth Government is primarily responsible for the conditions under which the landing of foreign troops and crews is to be permitted, the carrying out of the recommendations of the Colonial Defence Committee in their entirety must involve the co-operation of the State authorities. In the circular of 7 March 1907 to the foreign consuls, in which these recommendations are embodied, occurs the following passage:

It is requested, however, that in cases where it is desired to land large numbers of men, notice may be given by the consular officer at the place of landing to the local civil authorities, whose co-operation has been sought in the direction of according all the facilities of which the local conditions will admit, and who are now authorised to consent to the landing of unarmed pickets to assist the local police.

If the State authorities refuse the co-operation indicated in this passage, it will be of course impossible to give full effect to the practice defined in this circular, and the Commonwealth will be compelled to modify it so far as may be necessary to enable the whole of the arrangements regarding the landing of foreign troops and crews to be carried into effect by its own officers.

I would advise that the State Premiers be again communicated with and their attention drawn to the practice desired to be established by the Imperial Defence Committee, such practice being based upon weighty consideration of the Imperial policy. It might be pointed out that the course proposed by the Premiers is in conflict with this practice and likely to lead to serious results, and the Premiers might be again invited to join the Commonwealth in making the practice proposed by the Defence Committee effective by arranging with their civil authorities to co-operate in the manner suggested. The attention of the Premiers might also be drawn to the notice sent by the Governor-General to the consular authorities, which is still operative.

[Vol. 6, p. 184]

(1) See Opinion No. 107.

* See also Opinion No. 311.