Opinion Number. 311

Subject

DEFENCE : EXTERNAL AFFAIRS WHETHER STATES HAVE POWER TO FORBID LANDING OF FOREIGN TROOPS OR CREWS OF FOREIGN WARSHIPS

Key Legislation

CONSTITUTION, s. 51 (vi), (xxix)

Date
Client
The Prime Minister

These papers have again been forwarded for consideration-attention being drawn to the action taken in connection with the matter since my memo of 27 November 1907.(1)

The action referred to is that four of the State Premiers-those namely of New South Wales, Queensland, South Australia and Tasmania-have expressed dissent from the Prime Minister's letter based upon my memorandum.

Moreover, the Secretary of State, in a despatch of 24 March 1908 has forwarded a revision of the memorandum of the Colonial Defence Committee, in substitution for that previously sent-the chief, if not the only difference being the omission of ref-erence to the local consular authority as the medium of communication with the local civil authorities or with the 'Governor'.

The letters of the Premiers of New South Wales, Queensland and Tasmania all base their dissent on the view that the matter is primarily one of local police, not of external affairs.

I have already given my reasons for holding that the real basis of the regulation is one of defence, not of police. The facts (1) that it relates only to sailors from warships; (2) that it is promulgated by the Colonial Defence Committee; (3) that the object is to bring the practice throughout the British Empire into harmony with that generally adopted by foreign countries, are strong confirmation of this opinion, which I see no reason to alter.

Moreover, it should be noticed that the requirement of application to the 'Gover-nor' is only where it is desired to land armed parties in connection with funerals, or to take part in public ceremonies of an exceptional nature. It can hardly be suggested that an armed naval force, on duty, is likely to need police surveillance. The reason for re-quiring the permission of the 'Governor' in such a case is that it is contrary to in-ternational comity for one country to make any demonstration of armed force in the territory of another, with which it is at peace, without authority.

The greater part of Mr Wade's(2) letter is also confirmation of this view-as where he points out that the regulation is derivable from the prerogative right of the King to exclude foreigners-a prerogative which is clearly now vested in the Governor-General-and his allusions to the comity of nations, the furtherance of international peace, and diplomatic remonstrances arising out of the violation of regulations of this kind-all of which are clearly matters relating to external affairs.

I would point out, too, that the stress laid by some of the Premiers on the fact of the Colonial Defence Committee having used the word 'Governor' and not 'Governor-General' appears to arise from a misapprehension. The memorandum is a circular one, for despatch to all colonies, and is not addressed to Australia alone; so that the use of the word 'Governor-General' would have been quite inappropriate.

I therefore remain of the opinion that the permission to land armed parties for funerals or ceremonies should be addressed to the Governor-General.

With regard to unarmed parties, the action of the local civil authorities is confined to according facilities and to consenting or refusing to consent to the landing of un-armed pickets to assist the local police. I cannot conceive of any foundation for a claim that the executive or the legislature of a State has power to forbid the landing of foreign troops or crews of foreign warships.

[Vol. 6, p. 399]

(1) Opinion No.293.

(2) Premier of New South Wales.