TREATIES WHETHER COMMONWEALTH MAY ADHERE IN RESPECT OF PARTICULAR STATES : WHETHER COMMONWEALTH HAS POWER TO LEGISLATE IN FULFILMENT OF TREATY OBLIGATIONS
CONSTITUTION, s. 51 (xxix) : THE BRITISH NORTH AMERICA ACT 1867 (IMP.), s. 132
The following despatch from the Secretary of State for the Colonies has been referred to me for consideration:
- I have the honour to acknowledge the receipt of your Excellency's despatch of 18 September last transmitting copy of a despatch from the Governor of Western Australia intimating the desire of his Government to adhere to the international agreement respecting the unification of the pharmacopoeial formulae for potent drugs.
- 1 have also received from the Governor of Western Australia a despatch stating that his Ministers approve of adherence to the international convention respecting the night work of women in industrial employment and that you have been so informed.
- 1 gather from the fact that your Ministers requested authority to communicate these two conventions to the State Governments that they regard their respective subjects as not matters primarily of Federal concern, and that they propose to consult the State Governments as to all treaties and conventions, which provide for the separate adherence of British possessions, and which deal with matters which under the Constitution of Australia are primarily matters of State concern.
- His Majesty's Government can take no objection to this procedure which is indeed understood to be in accord with the constitutional practice obtaining in Canada. Your Ministers are therefore at liberty without reference to me to communicate any similar treaties or conventions to the State Governments. It is clear that if such communication is desirable or necessary it should be made by the Commonwealth Government and not by His Majesty's Government.
- The question however arises as to the procedure to be adopted when your Ministers receive the views of the State Governments. When all the State Governments desire to adhere, there seems to be no difficulty, but the notification of adherence will be given only at the request and on behalf of the Commonwealth Government. His Majesty's Government are pledged to the view that, so far as the relations of Australia with foreign nations are concerned, the Government of the Commonwealth alone can speak, and that for everything affecting external communities the Government of the Commonwealth alone are responsible to the Crown. It follows from this that adherence to no treaty or convention with a foreign power, whatever its subject matter, can be notified for which the Commonwealth has not made itself responsible, in other words, which is not made on behalf of the Commonwealth.
- 1 turn now to cases where not all but only some of the States wish to adhere. The powers conferred on the Canadian Parliament by section 132 of the British North America Act are such that His Majesty's Government decline to notify the adherence of Canada to any treaty or convention with a foreign power, even if its subject-matter is constitutionally a purely Provincial concern, unless the adherence applies to the whole of Canada. In the absence of any authoritative interpretation of the provisions of section 51 (xxix) of the Constitution, it is not for His Majesty's Government to say whether they confer on the Commonwealth Parliament the powers expressly conferred on the Canadian Parliament by the British North America Act. In matters on which your Ministers do not consider it necessary or desirable to consult the State Governments as being of Federal concern, the Canadian rule must be applied to Australia. The considerations which require this are independent of the construction of section 51 (xxix) of the Constitution, but until that section has been authoritatively interpreted the Canadian rule can hardly be applied in matters of State concern, and His Majesty's Government are prepared to act on a request from your Ministers, that the adherence of the Commonwealth should be notified in respect of any particular State or States. While however, His Majesty's Government are not prepared to make it a condition of adherence in such cases that the adherence should be universal, it is open to your Ministers, in view of the fact that the adherence will be notified on behalf of the Commonwealth and on its responsibility, to impose such a condition. I shall be glad to learn the decision of your Ministers in due course: whatever may be the decision it must clearly be of general application.
- 1 enclose copy of a correspondence with the Governor of Western Australia from which it will be seen that I have informed Sir F. Bedford that I have asked for an expression of the views of your Ministers.
The despatch deals with two subjects: first, the procedure for requesting adherence on behalf of the Commonwealth to treaties; and second, the question whether adherence on behalf of the Commonwealth with respect to a part only of Australia should, in any case, be allowed.
(1) Procedure for requesting adherence
Whether the subject-matter of the treaty is primarily a matter of Federal or of State concern, it is proposed by the Imperial Government that notification of adherence, as regards Australia, should only be given by them at the request, and on behalf of the Commonwealth Government-the Imperial Government being pledged to the view that, so far as foreign relations are concerned, the Government of the Commonwealth alone can speak for Australia and is alone responsible to the Imperial Government. They leave it to the discretion of the Commonwealth Government whether, where the subject-matter of the treaty is one primarily within the jurisdiction of the States, the Commonwealth Government should consult the State Governments as to their wishes as regards adherence.
These proposals are, in my opinion, quite acceptable, and are in accordance with the principles laid down by the Imperial Government, and concurred in by the Commonwealth Government, with respect to the Vondel(1) and other cases. Whatever the subject-matter of a treaty may be, and whether it relates to matters which can be dealt with by State legislation or not, compliance with the obligations of the treaty is always a matter of Federal concern and Federal responsibility, and it is therefore appropriate that the request for adherence should in all cases come from the Commonwealth Government.
(2) Adherence with respect to particular States only
In Canada, by section 132 of the British North America Act, the Parliament and Government of the Dominion are expressly given 'all powers necessary or proper for performing the obligations of Canada or of any province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries'.
It is stated by the Secretary of State for the Colonies that, by reason of the above provision, the Imperial Government declined to notify the adherence of Canada to any treaty or convention with a foreign power, no matter what the subject-matter, unless the adherence applies to the whole of Canada.
With respect to Australia, they propose to follow the same course in matters of pri-marily Federal concern as to which the Commonwealth Ministers do not think fit to consult the State Governments; but, as regards matters of State concern, they call attention to the fact that, in the absence of any authoritative interpretation of section 51 (xxix) of the Constitution, they are not prepared to say whether the Commonwealth Parliament has the powers expressly conferred on the Canadian Parliament for secur-ing the observance of treaty obligations. In the absence of such authoritative interpret-ation, they are not prepared to make it a condition that in matters of State concern the adherence should be universal; though the Secretary of State points out that it is open to Commonwealth Ministers, in requesting adherence on behalf of the Common-wealth, to apply the rule-and he asks for the decision of the Commonwealth Govern-ment on this point.
Advice has previously been given (opinion of Mr Attorney-General Isaacs dated 5 May 1906(2)) that the Commonwealth Parliament has power under section 51 (xxix) to make such legislative provision as is necessary to secure the fulfilment of treaty obli-gations. If this view-with which I concur-is correct, the powers of the Common-wealth Parliament in this respect are substantially identical with those of the Parlia-ment of Canada.
I do not, however, quite understand the principle upon which the Imperial Govern-ment base the view that the question whether they will or will not accept adherence by the Commonwealth Government in respect of a part of Australia depends upon whether the Commonwealth Government has or has not power to legislate for the en-forcement of treaty obligations. If the Commonwealth Government, in reference to the subject-matter of a particular treaty, had no such power, that might perhaps be a reason for declining to accede to its request for adherence, either as to the whole or a part of Australia; but the Imperial Government propose, in such cases, to accede where the adherence relates to the Commonwealth as a whole.
As to the expediency, in any case, of the Commonwealth requesting adherence in respect of particular States only, there appears to me to be grave doubt.
Where the provisions of the treaty or convention relate to or have any bearing on trade and commerce or immigration, it appears to me that the Commonwealth ought invariably to be treated as one and indivisible.
But where the treaty or convention is simply an international agreement of a scien-tific or humanitarian character, such as the two conventions mentioned in the de-spatch, viz. the international agreement respecting the unification of the pharma-copoeial formulae for potent drugs and the international convention respecting the night work of women in industrial employment, it is more difficult to see the absolute necessity for the rule of universality.
I do not think that any serious difficulties will be likely to arise from partial adher-ence in such cases; but whether, as a rule of political convenience, it would be wise to except any class of cases from the rule, or whether the safer course would be to adhere to the rule without exception, is an important question of Commonwealth policy.
[Vol. 6, p. 402]
(1) See Opinion No.107.
(2) Opinion No. 244.
* See also Opinion No.322.