Opinion Number. 301



The Prime Minister

The Prime Minister forwards to me a copy of the Secretary of State's despatch dated 17 January 1908, in reference to the Anglo-Japanese Treaty of 1894(1). He proposes to give twelve months' notice to terminate the Treaty as regards Queensland, and asks for any remarks that I may desire to offer.

It appears from the despatch that the Japanese Embassy have made inquiries at the Foreign Office as to the present position of Queensland under the Treaty. Lord Elgin reviews the correspondence on this subject between the Colonial Office and the Commonwealth Government, and discusses at some length my opinion of 4 March 1907(2), as well as Mr Deakin's opinion of 16 January 1902.(3) He is advised by the Law Officers of the Crown(4) that the adherence of Queensland to the Treaty is still in force, and states that his Government propose to inform the Japanese Government that the Treaty is binding on the Commonwealth in respect of Queensland; and that they trust that Commonwealth Ministers, bearing in mind that the Treaty can be determined in respect of Queensland by giving twelve months' notice, will concur in this proposal, and in the principles on which it is based.

Lord Elgin adds that, apart from considerations of principle, Commonwealth Ministers will appreciate the difficulty of returning any answer to the Japanese Government other than that proposed, in view of the fact that goods exported to Japan from Queensland have, since Federation, continued to be admitted to the commercial benefits of the Treaty.

After a careful perusal of the despatch, and a consideration of its weighty reasoning, it still appears to me that the analogy drawn by the several Attorneys-General of the Commonwealth(5) between the position of an adhering Colony and a high contracting party is a much closer one than the Crown Law Officers are prepared to recognize; and that when the application of a treaty to a Colony depends on the continuing assent of the Government of the Colony it is difficult to see how, when the Colony ceases, so far as the subject-matter of the treaty is concerned, to have a separate existence, the application of the treaty to the Colony is not at an end.

But while I cannot concur in the principles enunciated in the despatch, it appears to me that the decision of the question what the obligations of the Treaty are is ulti-mately a matter for the Imperial Government; and I fully appreciate their difficulty in the matter. And in view of the power to determine the adherence on twelve months' notice, I see no reason why, without concurring in the principles enunciated, the Commonwealth Government should not acquiesce in the course proposed to be taken.

The power to determine the Treaty, in relation to Queensland, is clear. Though the Treaty itself, as between the United Kingdom and Japan, cannot be determined until the expiration of twelve years from the date of its coming into operation (i.e. from 17 July 1899-see Hertslet, Vol. 21, p. 674) yet by the Protocol of 16 March 1897, in which the adherence of Queensland was provided for, it was agreed that the Treaty should cease to be binding as between Japan and Queensland at the expiration of twelve months after notice given on either side of a desire to terminate it. I am therefore of opinion that there is no legal obstacle to notice of determination being given at any time.

[Vol. 6, p. 277]

(1) Dated 16 July 1894.

(2) Opinion No. 276.

(3) Opinion No.37.

(4) See opinion, 2 December 1907, in D. P. O'Connell & A. Riordan, Opinions on Imperial Constitutional Law, Melbourne, 1971 , p. 378.

(5) Also Opinion No. 239.