Opinion Number. 722

Subject

TREATIES SUSPENSION OF PROVISION IN COMMONWEALTH LEGISLATION INCONSISTENT WITH TREATY: WHETHER STATE LAWS LIMITING RIGHT OF ALIENS TO HOLD LAND ARE INCONSISTENT WITH TREATY

Key Legislation

NAVIGATION ACT 1912, s. 422: ALIENS ACT 1867 (QLD), s. 4: ALIEN ACT 1861 (TAS.), s. 3: TREATY OF COMMERCE AND NAVIGATION BETWEEN GREAT BRITAIN AND RUSSIA (1859), Art. XIII

Date
Client
The Secretary, Department of External Affairs

Referring to the attached papers relating to the proposed treaty arrangement with Russia, I have carefully perused the papers and the memorandum by Mr L.F. East of the Department of Trade and Customs.

As regards the legal questions discussed by Mr East(1), I agree generally with his conclusions. It is, I think, quite clear that the Treaty itself does not override Commonwealth legislation, and it was for this reason that provision was inserted in the Commonwealth Navigation Act, section 422, which reads as follows:

422. Where the Governor-General is satisfied that the enforcement of any provision of this Act, in regard to ships of any country, would be inconsistent with the obligations of the Commonwealth under a treaty made between that country and the United Kingdom, he may by Proclamation suspend the operation of that provision with regard to ships of that country so far as is necessary to enable the obligations of the Commonwealth under the treaty to be fulfilled.

I do not, however, agree with Mr East's conclusion in paragraph 20 of his memorandum. That paragraph reads as follows:

Article XIII provides, inter alia, that subjects of either of the two Contracting Parties shall, in the dominions of the other, be at full liberty to acquire and possess every description of property which the laws of the country may permit other foreigners, of whatever nation, to acquire and possess.

In most of the States there is, so far as I am aware, no restriction on the acquisition and possession of property by foreigners. In two States, Queensland and . . . (2)

It is evident that, so far at least as these two States are concerned, Australian law does not conform to the provisions of the Treaty. The part of Article XIII referred to reads as follows:

The subjects of either of the two Contracting Parties in the dominions and possessions of the other shall be at full liberty to acquire, possess, and dispose of every description of property which the laws of the country may permit any foreigners, of whatsoever nation, to acquire and possess.

The provisions of the State Acts mentioned apply to aliens generally, and are therefore not inconsistent with Article XIII, which merely provides for the same treatment to Russians as to other foreigners.

Notwithstanding the foregoing remarks, I agree with Mr East on the general question raised, and I see no objection to following the course suggested in paragraph 24 of his memorandum.

[Vol. 14, p. 377]

(1) Mr East's memorandum not found.

(2) The rest of this sentence is missing from the opinion in the Opinion Book. The other State referred to by Mr East is believed to be Tasmania, where, until the passing of the Aliens Act 1913, the holding of land by aliens was limited, by the Alien Act 1861, to a maximum of twenty-one years, a restriction similar to that obtaining in Queensland at the time of writing of this opinion. The 1913 Act removed the restriction, but it would appear that Mr East was unaware of, or had overlooked, the coming into effect of this Act.