The Minister for External Affairs asks for advice on the question stated in the following minute:

1. The object of a passport is to afford effective protection and recognition to a citizen while visiting foreign countries. Obviously, therefore, it should be issued by the national rather than by a provincial government. I am not aware that any American State claims the right to issue passports to its citizens.
2. Clause 51 of the Constitution (section (xxix)) endows the Federal Parliament with authority to make laws concerning 'External affairs'. Clearly a passport-which is a message to a foreign government or other foreign authority-is an 'External affair'. See also section 70. Whether it is necessary to legislate in order that the Commonwealth shall have exclusive jurisdiction in the matter is a point on which the law authority might be asked to advise.
3. The matter was under discussion at the conference between Federal and State Ministers yesterday and today. Yesterday, when the Queensland Premier was not present, an understanding was arrived at that the right of issue of passports during the war should be reserved to the Governor-General. Today Mr Denham repeated the substance of his written objection (see file) but no formal decision was arrived at.
4. As the Governor of New South Wales appears to insist on the right of his State after the war is over to resume the issue of passports, I think that if legislation is not proposed (as suggested in para. 2) to confer exclusive rights on the Commonwealth, the Imperial Government should be asked to notify the State Governors that the issue of passports by them is to be discontinued, issue of such documents in future to be entirely in the discretion of the Commonwealth Executive.

A passport is in substance a document, issued by a government for identifying a citizen and authenticating his right to protection when in a foreign country.

In the United States for many years such documents were issued not only by the United States Secretary of State, but also by State Governments and even by municipal authorities.

Much confusion resulted, and complaints were made by foreign governments of lax issue of passports. In 1856 Congress passed an Act forbidding the issue of passports except by, or by authority of, the Secretary of State.

In 1889, the attention of the Department of State was called to a certificate issued by the Governor of Minnesota setting forth that the bearer was a worthy and respected citizen of Minnesota, about to travel in Europe, and bespeaking for him 'the kind attention of all to whom these presents may come'. Mr Blaine, Secretary of State, made representations to the Governor of Minnesota, calling his attention to the Statute, and the practice, which was of many years standing, was discontinued (J. B. Moore, Digest of International Law, Vol. 3,§ 493).

In my opinion, the Commonwealth Parliament could legislate to regulate the issue of passports, which clearly come within the scope of 'external affairs'. In the absence of legislation, there is no legal obstacle to the issue of passports by the State Governors; but such issue appears clearly undesirable, as the political organisation of Australia, as regards foreign countries, is represented by the Commonwealth exclusively.

I see no objection to a request being made to the Secretary of State for the Colonies to notify the State Governors that the issue of passports by them should be discontinued.

[Vol. 13, p. 215]

(1) This opinion is unsigned in the Opinion Book, but it is attributed to Mr Hughes.