Opinion Number. 335



The Prime Minister

The Prime Minister asks for advice on the questions raised in"the following memo by the Secretary, Department of External Affairs:

The Minister has had under consideration the question of putting a stop to arrangements known to be made in other countries, notably the colonies of Hong Kong and Straits Settlements, for the purpose of illicitly introducing Chinese to Australia.

It appears from a despatch from the Governor of Hong Kong that the legal authorities of that colony take the view that it is not an offence to conspire there to defeat the laws of Australia.

The Minister will be glad to learn whether the Attorney-General's opinion is to the same effect.

Mr Batchelor will further be glad to learn whether apart from the common law crime of conspiracy any cases are known where it has been made an offence to attempt or endeavour to persuade others to attempt to break the laws of an external country. If Mr Hughes is not aware of any such laws Mr Batchelor suggests for his consideration whether it would be practicable to arrange for a general law throughout the Empire to meet such cases. Probably the most effective means of obtaining general concurrence in such law would be to have it brought up for discussion at the next meeting of the Imperial Conference.

If the Attorney-General would draft a Bill on the subject the Minister would be obliged.

  1. Conspiracy, at common law, may be defined as a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a purpose by unlawful means. In my opinion, the purpose or the means must be unlawful according to the law of the country which is the situs of the conspiracy; and if that is the effect of the opinion of the law officers of Hong Kong I agree with it.
  2. It is a recognised principle of private international law that a state will not enforce the penal laws of another state-or aid their enforcement except by the extradition of fugitive criminals: see Minor, Conflict of Laws, p. 21; Westlake, Private International Law, ยง345; Dicey, Conflict of Laws, p. 20.
  3. The Imperial Parliament could pass a law providing that attempts made in one part of the British Dominions to incite persons to break the law of another part of the British Dominions should be punishable in the first-named part; though it appears to me problematical whether the Imperial Conference or the Imperial Government would support a proposal in such wide and general terms.

If however the Prime Minister thinks it desirable to bring the matter up, I will have a draft Bill framed for consideration.

[Vol. 7, p. 123]