Opinion Number. 322

Subject

TREATIES CRITERIA FOR ADHERENCE IN RESPECT OF PARTICULAR STATES . WHETHER COMMONWEALTH HAS POWER TO ENFORCE COMPLIANCE WITH TREATY OBLIGATIONS

Key Legislation

CONSTITUTION s. 51 (xxix)

Date

These papers were referred for a further memorandum*'> summarising the position and illustrating it by reference to different treaties.

PROCEDURE FOR ADHERENCE

The Imperial Government will only notify adherence-whether for a part or the whole of Australia-at the request of the Commonwealth Government.

ADHERENCE AS TO PARTICULAR STATES

The Imperial Government ask for advice of Commonwealth Ministers as to whether the Commonwealth Parliament has the same power as the Parliament of Canada to enforce observance of the treaty obligations of the Commonwealth or of a State.

If so, they propose-as in the case of Canada-not to notify adherence except as to the whole Commonwealth.

If not, they would apparently not make any such condition, but would leave it open to Commonwealth Ministers to make such a condition if they choose.

I have advised:

  1. That the proposal to notify adherence at the request of the Commonwealth Government only is satisfactory.
  2. That the Commonwealth has power to enforce compliance with treaty obligations.
  3. That where the treaty has any relation with trade, immigration, etc., the Commonwealth ought to adhere as a whole or not at all; but that in the case of a mere convention of scientific or humanitarian interest, it is a question of policy whether the rule of indivisibility should be adopted.

A review of various treaties by which the Commonwealth is bound does not suggest any special illustrations which would be helpful.

I would add, however, that the policy of adherence for a part of the Commonwealth, if adopted at all, should in my opinion be applied with extreme caution, so as not to hamper any possible Federal legislation in the future; and that where there is any doubt as to whether partial adherence may conceivably hamper the exercise of Commonwealth legislative power, such adherence should be refused.

[Vol. 7, p. 2]

(1) See Opinion No. 312.