Opinion Number. 37

Subject

TREATIES AFFECTING COMMONWEALTH AT FEDERATION WHETHER TREATY BETWEEN UNITED KINGDOM AND JAPAN APPLIED TO QUEENSLAND BINDS COMMONWEALTH : WHETHER COMMONWEALTH BOUND BY AGREEMENT BETWEEN JAPAN AND QUEENSLAND : WHETHER COMMONWEALTH ACT INVALIDATED BY CONFLICT WITH IMPERIAL TREATY

Author
Key Legislation

IMMIGRATION RESTRICTION ACT 1901, s. 3

Date
Client
The Prime Minister

The material documents in this matter are:

  1. Treaty between Great Britain and Japan, signed 16 July 1894; especially Articles I, III and XIX.
  2. Protocol, 16 March 1897, setting out conditions of Queensland acceding to the Treaty.
  3. Agreement between Queensland and Japanese Governments, contained in correspondence.

Article I of the Treaty provides (inter alia) that the subjects of each of the two high contracting parties shall have full liberty to enter, travel, or reside in any part of the dominions and possessions of the other.

Article III deals with reciprocal freedom of commerce and navigation.

Article XIX applies the Treaty'so far as the laws permit', to all British possessions, with exceptions which include all the Australian colonies; and provides that it shall be made applicable to any of the excepted colonies on whose behalf notice is given within two years from the exchange of ratifications (subsequently extended to three years).

The Protocol sets out:

  1. that the stipulations of Articles I and III shall not in any way affect the laws, ordinances, and regulations with regard to trade, the immigration of labourers and artisans, police and public security, which are in force or may be hereafter enacted in Japan or Queensland;
  2. that the Treaty shall cease to be binding, as between Japan and Queensland, at the expiration of twelve months' notice on either side of a desire to terminate it.

The Right Honourable the Prime Minister asks for my opinion on the legal questions arising in relation to the Treaty and agreements mentioned and the Immigration Restriction Act 1901.

In the first place, I am of opinion that Act No. 17(1) of the Federal Parliament is not invalidated by conflict with the Treaty. See cases cited by Lefroy, Legislative Power in Canada, pp. 255-259. Strictly speaking, therefore, no further question of law arises; though legal principles must be applied to the construction of the Treaty in order to ascertain whether any breach of treaty obligations is involved in the passing or administration of the Act.

In the construction of the Treaty, the chief questions which arise are:

  1. whether the Treaty, having been applied to the Colony of Queensland before the establishment of the Commonwealth, has any application now that Queensland is a State of the Commonwealth;
  2. whether, if so, the Immigration Restriction Act involves any conflict with the Treaty.

It will be convenient to begin with the discussion of the latter questions. Assuming then for the purpose of the argument, that the Treaty still applies to Queensland, subject to the stipulations of the Protocol, the question is how far the Immigration Restriction Act 1901 applies to Japanese.

The scope of the Federal Act is comprised in paragraphs (a) to (g) of section 3, which define the several classes of'prohibited immigrants'. Of these, paragraphs (b) to (f) evidently come within the category of laws with regard to 'police and public security'; while paragraph (g) comes within the category of laws with regard to 'the immigration of labourers and artisans'. If therefore the Treaty continued in force paragraphs (b) to (g) would not be affected by it. The only question is as to paragraph (a)-the education test. With regard to this, no violation of the Treaty is involved in the mere passing of the Act. The application of the education test to Japanese labourers and artisans would certainly not conflict with the Treaty. Its application to Japanese other than labourers and artisans would be such a violation, unless it could be supported as a 'law, ordinance, or regulation relating to trade, police, or public security'.

Reading the words 'public security' in their widest sense, they might perhaps be held to cover the imposition of this obligation upon the whole Japanese nation, but reading the stipulations of the Protocol as a whole, with the provisions of the Treaty, this would be a very strained construction. I do not think it could be supported.

So far, it has been assumed that the Treaty still applies to the State of Queensland. I am of opinion however that this is not the case. The establishment of the Commonwealth may be deemed to have annulled the Treaty.

The text writers appear to be unanimous that the obligation of treaties is founded-

. . . not merely upon the contract itself, but upon those mutual relations between the two States, which may have induced them to enter into certain engagements. (Wheaton, International Law, 3rd English edn, p. 44)

The obligations of treaties, even when some of their stipulations are, in their terms, perpetual, expire in case either of the contracting parties loses its existence as an independent State, or in case its internal constitution is so changed as to render the treaty inapplicable to the new condition of things. (Halleck, International Law, 3rd edn, Vol. 1, p. 295; Sir Sherston Baker, First Steps in International Law, p. 104)

If, again, a treaty is made in view of the continuance of a particular form of government in one or both of the contracting states, either of them may release itself from the agreement so soon as its provisions become inconsistent with constitutional change.

It is also an implied condition of the continuing obligation of a treaty that the parties to it shall keep their freedom of will with respect to its subject-matter except in so far as the treaty is itself a restraint upon liberty, and the condition is one which holds good even when such freedom of will is voluntarily given up. If a state becomes subordinated to another state, or enters a confederation of which the constitution is inconsistent with liberty of action as to matters touched by the treaty, it is not bound to endeavour to carry out a previous agreement in defiance of the duties consequent upon its newly formed re┬Člations. (Hall, International Law, pp. 373-4)

The United States regards its treaties . . . with Hanover as terminated in consequence of incorporation with Prussia in 1866, with Nassau as terminated for the same reason in 1846, and its treaties with the Two Sicilies as terminated by absorption of that kingdom into Italy. (Wharton, Digest, pp. 63,64; Wheaton, International Law, p. 44)

In the present instance the Treaty was only local. Queensland was not a high contracting party, but a possession of one of the high contracting parties to the Treaty adhering separately and on special conditions. The Queensland Parliament had at the time the control of immigration into that Colony. The other Colonies which now are States of the Commonwealth declined to adhere to the Treaty. The control of immigration has now, by the establishment of the Commonwealth, passed from the Parliament of Queensland to that of the Commonwealth. So far as immigration is concerned, the boundaries between Queensland and the rest of the Commonwealth have been obliterated as completely as if the Commonwealth were a unified possession. The right of immigration into Queensland would practically, and perhaps legally, amount to a right of entering from Queensland into all States of the Commonwealth, though all the others had expressly refused to permit it. Under these circumstances the Commonwealth cannot be taken to be bound by the Treaty as accepted by the Colony of Queensland under a condition of affairs which has ceased to exist.

As regards the agreement between the Governments of Queensland and Japan made in connection with the Imperial Treaty, I am of opinion that it does not bind the Government of the Commonwealth. It was made on the eve of Federation, after the acceptance by Queensland of the draft Constitution, and it purports to be no more than an announcement of the policy which would be acted upon by the Queensland Government so long as it retained the control of the question, with express notice that the control would shortly pass out of its hands. Sir James Dickson's (2) letter accepting the proposals made by the Japanese Government is dated 3 October 1900, some time after the Commonwealth Act had received the Royal assent. It was therefore clearly a temporary and provisional arrangement and Sir James Dickson's letter explicitly directs attention to this fact.

Neither the Treaty nor the Agreement being binding upon the Commonwealth, and the Federal Immigration Restriction Act having been passed, it is probably desirable that an intimation of the change in the situation, consequent upon the creation of the Commonwealth, be conveyed to the Japanese Government in the most diplomatic and considerate manner possible through the Secretary of State for the Colonies.

[Vol. 1, p. 271 ]

(1) Immigration Restriction Act 1901.

(2) Chief Secretary of Queensland.