Chapter 4
Treaties and the Commonwealth Constitution
Constitutional powers to enter into and implement
treaties
4.1 The Constitution deals with two different powers in relation to treaties.
First, there is the power to enter into treaties, which is an executive
power. Secondly, there is the power to implement treaties, which is a
legislative power.
4.2 Historically, the power to enter into treaties was exercised by sovereigns.
Treaties were entered into by English monarchs well before Parliament
existed.[1] The power was characterised as one of the royal prerogatives.
At the time of Australian federation the power was still exercised by
the Queen of England, but on the advice of the Imperial Government. Gradually,
as Australia became independent and gained control over its foreign policy,[2]
this royal prerogative became subsumed under the general executive power
of the Commonwealth Government in section 61 of the Constitution.[3]
4.3 Section 61 of the Constitution provides:
The executive power of the Commonwealth is vested in the Queen and
is exercisable by the Governor-General as the Queen's representative,
and extends to the execution and maintenance of this Constitution, and
of the laws of the Commonwealth.
4.4 The section does not specifically refer to treaties. This continues
to be the source of some confusion, as the power to enter into treaties
is often confused with the other constitutional power to legislate to
implement treaties under s. 51(xxix) of the Constitution.[4]
4.5 Section 51(xxix) of the Constitution confers on the Commonwealth
Parliament the power to legislate with respect to 'external affairs'.
This has been interpreted by the High Court to mean that the Commonwealth
Parliament may legislate, under s. 51(xxix) of the Constitution, to implement
in domestic law a treaty which has been entered into by the Executive
pursuant to its power under s. 61 of the Constitution. [5]
The evolution of the executive power to enter
into treaties
4.6 While it is well settled by the High Court that the power to enter
into treaties is an Executive power under s. 61 of the Constitution, it
is difficult to determine the exact date at which this power transferred
from the Imperial Government to the Commonwealth Government. The power,
in fact, has evolved as Australia has moved towards nationhood.
4.7 At federation, in 1901, the power to enter into treaties was possessed
by the Imperial Crown because the United Kingdom Government remained responsible
for the conduct of Australia's foreign relations.
4.8 Even before federation, however, there was some consultation between
the Imperial Government and the colonies on the subject of treaties. From
the colonial perspective, the most important treaties concerned international
trade and shipping. The colonies which had been granted responsible government[6]
argued in the 1870s that they should be consulted before the Imperial
Government entered into a commercial treaty which bound them, and that
they should have powers of their own to negotiate commercial treaties.[7]
4.9 While the Imperial Government did not, at that time, grant the colonies
power to enter into commercial treaties in their own right, the Secretary
of State for Foreign Affairs did agree, in 1877, that commercial treaties
entered into by the Imperial Government should not automatically apply
to those colonies which had been granted responsible government. Instead,
it was agreed that commercial treaties would thereafter contain a 'Colonial
clause' which would give the responsible government colonies the option
of adhering[8] to a commercial treaty within a certain period after the
Imperial Government became a party to it, if they so chose.[9] This did
not mean that the colonies had the power to enter into commercial treaties,
as this could only be done by the Imperial Government. They did, however,
have the relatively limited power not to be bound by commercial treaties
to which Britain became a party.
4.10 The colonies were not given the same powers in relation to political
treaties (such as treaties of alliance or extradition). This was the case
even after federation. In 1912, one of the authoritative commentators
on colonial affairs observed:
In political matters proper there has been no attempt to obtain separate
powers of adherence or withdrawal [in relation to treaties] for the
Dominions, and it is clear that such an attempt would be meaningless.
It is impossible as long as the Empire retains any unity, for one part
to be treated in political questions differently from another part,
and the separate adherence to and withdrawal from treaties is only possible
as in commercial treaties, where a differentiation of treatment could
be based upon a differentiation of locality.[10]
4.11 The limited powers granted to the colonies to adhere to or not to
adhere to commercial treaties, prior to federation, resulted in difficult
problems for the Commonwealth of Australia after federation. Some of the
States had adhered to commercial treaties when they were still colonies,
prior to federation, while others had not. For example, it was not clear
whether a treaty with Japan that Queensland had adhered to, would be binding
on the whole of the Commonwealth of Australia. The Attorney-General, Alfred
Deakin, claimed that it was not binding on the Commonwealth, because it
had been made by Queensland in its capacity as a separate colony, and
it no longer existed in that capacity.[11] The British Foreign Office
rejected this view, on the grounds that both before and after federation,
treaties were made in the name of the monarch of Great Britain, and this
had not changed. The Secretary of State for Foreign Affairs stated:
A Treaty binding upon an Australian Colony, prior to Federation, was
not from an international point of view between the particular colony
and the particular foreign country concerned, but between the British
Government and that power. The obligation of the Sovereign was in respect
of a certain portion of his Dominions, viz. a certain Australian Colony,
and that obligation was not based upon the particular character of the
government in force in that Colony, nor can it be lessened by the entry
of the Colony into a Federation, which is also part of his Dominions.[12]
4.12 During World War I, the significant contributions of the Dominions
to the war effort resulted in them being invited to participate in the
Imperial War Cabinet and the Imperial War Conference. The Imperial War
Conference passed a resolution in 1917 that a subsequent Imperial Conference
be convened which would consider the 'readjustment of the constitutional
relations of the component parts of the Empire' and base any readjustment
on the recognition of the Dominions as 'autonomous nations of an Imperial
Commonwealth' with the right to 'an adequate voice in foreign policy and
in foreign relations'.[13]
4.13 After the First World War, Australia was separately represented
at the Peace Conference, and the Dominions began to exercise greater powers
in the area of external affairs. Australia became an independent member
of the League of Nations and the International Labour Organisation in
1919.[14] In both these fora, the Dominions were given separate votes
and their representatives were accredited by, and responsible to, their
own Dominion Governments, rather than the Imperial Government. They did
not always vote in the same manner as Great Britain.[15] This admission
to the League and the International Labour Organisation involved recognition
by other countries that Australia was now a sovereign nation with the
necessary 'international personality' to enter into international relations.[16]
4.14 At the Imperial Conference in 1923, it was recognised that the different
Governments of the Empire had the right to make treaties with foreign
powers, subject to a duty to consider any potential effect on other parts
of the Empire, and a duty to inform other Empire Governments of their
intentions. Bilateral treaties which imposed obligations on one part of
the Empire only, could be signed by a representative of that part of the
Empire. Treaties negotiated at international conferences were to be signed
by representatives on behalf of all the governments of the Empire represented
at the Conference.[17]
4.15 The Imperial Conference resolution of 1923 made the following statement
about ratification of treaties:
(a) The ratification of treaties imposing obligations on one part of
the Empire is effected at the instance of the government of that part;
(b) The ratification of treaties imposing obligations on more than
one part of the Empire is effected after consultation between the governments
of those parts of the empire concerned. It is for each government to
decide whether Parliamentary approval or legislation is required before
desire for, or concurrence in, ratification is intimated by that government.[18]
4.16 At the Imperial Conference of 1926, these guidelines for entering
into treaties were revised and reinforced in what is known as the Balfour
Declaration.[19]
4.17 In his 1929 work, Australia and the British Commonwealth,
the Attorney-General, John Latham, concluded that 'full powers of dealing
with the subject of treaty making were conferred on the Commonwealth Parliament
by the Constitution', and that after the Engineer's case, 'there
can be little room for doubt... that under these powers the Commonwealth
parliament could legislate in such a manner as to vary rights which exist
under State law'.[20]
4.18 The right of the Commonwealth Government to enter into political
treaties with foreign countries was also acknowledged by the Royal Commission
on the Australian Constitution in 1929. The Commission noted, however,
that the 'government of the Commonwealth has not as yet exercised this
right'.[21]
4.19 The Royal Commission also noted that it had received evidence from
Mr E.L. Piesse that 'the means adopted to keep Parliament and the electors
informed on foreign affairs are inadequate, and that the establishment
of a Parliamentary Committee on Foreign Relations, as in France and the
United States was highly desirable'.[22]
4.20 The final step in Australia's progress towards controlling its own
foreign affairs was the enactment and acceptance of the Statute of
Westminster 1931 (UK). The Statute declared that the Dominions (which
included the Commonwealth of Australia) had full power to make laws having
extra-territorial operation. It also released the Commonwealth (but not
the States) from the application of the Colonial Laws Validity Act
1865 (UK). This Act had previously invalidated laws passed
by the Commonwealth Parliament which conflicted with certain British laws
which applied to Australia.[23]
4.21 The Statute of Westminster was adopted by Australia in 1942
by the Statute of Westminster Adoption Act 1942 (Cth), and given
retrospective effect to 3 September 1939.
4.22 The development of Australia's status as an independent nation has,
accordingly, resulted in the power to enter into treaties being transferred
to Australia, and becoming exercisable under the Executive power conferred
by section 61 of the Constitution. This power may be exercised by the
Governor-General on the advice of his or her federal Ministers.[24]
4.23 Professor Winterton summarised the situation as follows:
Thus, in 1901 'the executive power of the Commonwealth' included all
the prerogatives appropriate to the Commonwealth's sphere of activity,
and was 'exercisable by the Governor-General'. But, as has been seen,
there was at that date a reluctance, if not refusal, to accept that
the Commonwealth was completely 'independent' in foreign affairs and
defence matters; it was thought that the British government retained
some of the prerogatives relevant to these, such as the power to execute
treaties or declare war....
However, once it was accepted after 1926 that any powers exercisable
by the King were, like those of the Governor-General, exercisable only
on Australian advice, all executive power exercisable in respect of
the Commonwealth was controlled by the Australian Cabinet... Now that
all the executive power exercisable in respect of the Commonwealth was
controlled by the Australian Cabinet, the original reason for denying
s.61 its literal or 'correct' interpretation vanished....[25]
4.24 Other commentators have pointed to the general principle that in
allocating the royal prerogatives to the Commonwealth and the States,
this should be done to reflect the distribution of legislative powers
in the Constitution. Hence, as the legislative power in relation to external
affairs is granted to the Commonwealth under the Constitution, then the
corresponding royal prerogative to enter into treaties must also be conferred
on the Commonwealth Executive, rather than the States.[26]
The Framers' intention concerning treaties
4.25 The 1891 draft of the Constitution contained two main provisions
relating to treaties. The first was covering clause 7[27] of the draft
Bill, which provided:
The Constitution established by this Act, and all laws made by the Parliament
of the Commonwealth in pursuance of the powers conferred by the Constitution,
and all treaties made by the Commonwealth shall, according to their
tenor, be binding on the courts, judges, and people of every state and
of every part of the Commonwealth anything in the laws of any state to
the contrary notwithstanding.[28] [Emphasis added]
4.26 The second provision was contained in sub-clause 52(xxvi),[29] and
granted the Commonwealth Parliament power to make laws with respect to
'External affairs and treaties'.
The Constitutional Convention Debates
4.27 In the 1890s, treaties did not cover as wide a number of subjects
as they do today. Treaties primarily dealt with matters of trade and commerce,
shipping, political alliances, the law of war, and extradition. On the
whole, they did not cover the areas of human rights, the environment and
industrial relations, which have a greater impact on domestic law. Accordingly,
the subject of treaties was not as controversial in the 1890s. The consequence
of this was that the references to treaties in these two main provisions
in the draft Constitution, were not considered sufficiently controversial
to be debated at the Sydney Convention of 1891 or the Adelaide Convention
of 1897.
4.28 However, a concern was later raised that these provisions might
allow the Commonwealth to enter into treaties on its own behalf, rather
than leave this power exclusively to the Imperial Government.[30] At the
next session of the Constitutional Convention in Sydney in 1897, it was
proposed in a submission from the Legislative Council of New South Wales,
that the words 'and treaties made by the Commonwealth' be omitted from
covering clause 7.[31] This amendment was strongly supported by George
Reid, who argued that these words would be more in place in the United
States Constitution, than in the Constitution of a colony within an Empire.[32]
4.29 This amendment was adopted. An extract from the debate is at Figure
1.
Figure 1: Extract from the Official Record of the Debates of
the Australasian Federal Convention. Second Session, Sydney 2nd to
24th September 1897[33]
"Clause 7. The constitution established by this act, and all laws
made by the parliament of the commonwealth in pursuance of the powers
conferred by the constitution, and all treaties made by the commonwealth,
shall according to their tenour, be binding on the courts, judges, and
people, of every state, and of every part of the commonwealth, anything
in the laws of any state to the contrary notwithstanding; and the laws
and treaties of the commonwealth shall be in force on board of all British
ships whose last port of clearance or whose port of destination is in
the commonwealth.
Amendment suggested by the Legislative Council of New South Wales:
Omit "and all treaties made by the commonwealth," lines 4 and
5.
The Hon. E. BARTON (New South Wales) [12.4]: I think it is expected by
the Legislative Council of New South Wales that I should explain what
the meaning of this amendment is. In the first place, the desire of that
body is that, inasmuch as the treaty-making power will be in the Imperial
Government, we should omit any reference to the making of treaties by
the commonwealth; in other words, while they concede that we should make
certain trade arrangements, which would have force enough if ratified
by the Imperial Government, the sole treaty-making power is in the Crown
of the United Kingdom.
Mr. Higgins: Clause 52 refers to treaties!
The Hon. E. BARTON: And, in conformity with the amendment they suggest
in this clause, they desire that the words "and treaties" should
disappear from clause 52. There is a good deal of force in the contention,
I think. I do not think the constitution will be in any way minimised
or weakened by the omission of the words. As regards the remainder of
their amendments, they propose to confine the clause to laws, and not
to treaties..."
4.30 At the Melbourne session of the Convention in 1898, the submission
of the Legislative Council of New South Wales was again discussed. It
proposed that the words 'and treaties' be omitted from sub-clause 52(xxvi),
in conformity with the amendment to covering clause 7.[34] The amendment
was agreed to with very little discussion. An extract from the debate
is contained in Figure 2.
Figure 2: Extract from the Official Record of the Debates of
the Australasian Federal Convention, 20th January to 17th March 1898
"Sub-section (29) - External affairs and treaties.
Amendment suggested by the Legislative Council of New South Wales -
Omit "and treaties."
Mr BARTON - I propose to strike out the words "and treaties,"
in accordance with the suggestion of the Legislative Council of New South
Wales.
Mr GLYNN, - I see an objection to striking out these words in reference
to treaties. I am aware that similar words have been struck out in clause
7, but I doubt the policy of that. It may be wise to retain them
The CHAIRMAN, - We must be consistent.
Mr GLYNN, - I bow to your ruling, sir, but an opportunity for reconsidering
the matter should be provided.
The amendment was agreed to.
....
Mr DEAKIN(Victoria) - I understand that the leader of the Convention
will look at the words "and treaties," with the view to see
how far, by omitting them, we would limit the powers of the Federal Parliament
within the range of the powers that the Canadian Parliament already enjoys."
Comment on the significance of the removal of the word 'treaties'
from parts of the Constitution
4.31 The removal of references to 'treaties' from both the external affairs
power, and the covering clauses, has been considered by some as evidence
that the Framers of the Constitution made a deliberate decision not to
confer on the Commonwealth Parliament a power to implement treaties.
4.32 Mr Peter McDermott, from the University of Queensland, submitted
to the Committee that the Framers of the Constitution had not envisaged
that the external affairs clause of the Constitution would enable the
Commonwealth to implement treaties.[35] In his review of the drafting
of the external affairs provision, Mr McDermott concluded that:
The fact that the Commonwealth possesses unlimited power to enter into
treaties by virtue of Australia's evolution into an independent nation
is one matter. The implementation of treaties in a Federation is, of
course, quite another.... It may be, that on a future occasion, the
High Court will take into account that the delegates to the Australian
Federal Conventions did not intend to give the Commonwealth Parliament
any legislative power over "treaties" in considering the extent
of the external affairs power.[36]
4.33 On the other hand, the evidence in the Debates of the Constitutional
Conventions, points to the conclusion that that the reference to 'treaties'
was removed because it was believed that the inclusion of the term was
inconsistent with the status of Australia as a Colony. The delegates to
the Convention did not appear concerned about the relative legislative
powers of the Commonwealth and the States in implementing treaties.[37]
As Professor Zines put it:
It is clear that the reason for deleting the reference to treaties
in covering clause 5[38] did not necessitate the alteration made to
what is now section 51 (xxix). The fact that a Colony has no power to
enter into a treaty is not inconsistent with the legislature of the
Colony having power to implement any treaty binding on Britain in respect
of that Colony.... It is interesting, however, that no delegate raised
any objection to the paragraph in its original form at any of the Conventions
except in relation to the Imperial connection. Indeed the only members
at the Conventions to speak on it, other than Barton, namely, Glynn
and Deakin, would clearly have preferred the reference to treaties to
remain and asked that an opportunity be given to reconsider the matter.
On this occasion it was clearly Imperial, rather than States rights,
issues that resulted in the change of wording.[39]
4.34 The Hon Dame Roma Mitchell has also attributed this change to concerns
about the power to enter into a treaty, rather than an intention to limit
the legislative power of the Commonwealth. She concluded:
It may be that the Delegates to the Constitutional Convention were
not clear as to the effect of clause 51 (xxix). It seems from the little
that is recorded upon this matter that they were concerned with the
power to enter into treaties rather than with any legislation passed
in consequence of the entry into a treaty. As a treaty making power
was not envisaged for the Commonwealth of Australia they probably did
not apply their minds any further than to the question of trade arrangements
to be approved by the Imperial Parliament.[40]
4.35 In evidence before the Committee, Mr Fred Gulson, from the New South
Wales Farmers' Association, agreed that 'at the time the Constitution
was framed it was never intended that the executive or, indeed, the Parliament
of the Commonwealth would be armed with the powers to enter into international
agreements or obligations'.[41] Dr Thomson, from the Western Australian
Attorney-General's Department, also concluded 'that the words "and
treaties" were deleted because it was thought that only England could
make treaties'.[42]
4.36 It appears that the concern of the Framers of the Constitution was
that a legislative power in relation to treaties might also include a
legislative power to enter into treaties. This was confirmed in an opinion
by Sir Isaac Isaacs when he was Attorney-General in 1906.[43]
Comments by the Framers and their contemporaries on the scope of the
external affairs power
4.37 Commentators of the day did not seem to consider that the removal
of the reference to treaties necessarily limited the broad scope of 'external
affairs'. Indeed, at least one British commentator, Mr A.H.F. Lefroy,
considered that the external affairs power, if conferred in the 'naked,
absolute way' that it appeared in the draft Constitution, might lead to
the conclusion that the Imperial Parliament intended 'to divest itself
of its authority over the external affairs of Australia and commit them
to the Commonwealth Parliament'.[44]
4.38 The scope of the external affairs power was acknowledged by Quick
and Garran in 1901.[45] They commented that the external affairs power
'may hereafter prove to be a great constitutional battle ground'. However,
they disagreed with Mr Lefroy's opinion of the extent of the power, observing:
It must be conceded that the expression "external affairs"
is singularly vague, but it is submitted that it cannot be construed
in the wide and far-reaching manner suggested by the learned gentleman
whose views are quoted.....
The expression "External Affairs" is apparently a very comprehensive
one but it has obvious limitations.... It must be restricted to matters
in which political influence may be exercised, or negotiation and intercourse
conducted, between the Government of the Commonwealth and the Governments
of countries outside the limits of the Commonwealth. This power may
therefore be fairly interpreted as applicable to (1) the external representation
of the Commonwealth by accredited agents where required; (2) the conduct
of the business and promotion of the interests of the Commonwealth in
outside countries, and (3) the extradition of fugitive offenders from
outside countries.[46]
4.39 Quick and Garran went on to note that the external affairs power
may be used to provide for parliamentary approval of treaties. They stated
that under the external affairs power the Commonwealth may:
pass laws authorising the negotiation of commercial treaties - of course
through the direct agency of the Imperial Government, assisted and advised
by the representatives of the Commonwealth; and it may afterwards, like
the Senate of the United States, either ratify or refuse to confirm
them.[47]
4.40 Quick and Garran also considered that the external affairs power
gave the Commonwealth Parliament the power to legislate to implement extradition
treaties.[48]
4.41 In 1902, the breadth of the power was also acknowledge by Harrison
Moore, Dean of the Faculty of Law in Melbourne, in his work, The Constitution
of the Commonwealth of Australia. Moore commented:
So far, however, as the conduct of external affairs may require the
co-operation of the legislative power, the Parliament has authority
to make provision. The enactment of laws for the execution of treaties
made by the Imperial Government affecting the Commonwealth, or made
by the Commonwealth itself under such powers as the Crown may confer
upon it; of laws on extradition or neutrality, and the like; of laws
giving effect to arrangements between the Commonwealth and other parts
of the Empire - all these would clearly fall within article xxix.[49]
[Emphasis added]
4.42 In 1906, Sir Edmund Barton, a key figure in the drafting of the
Constitution, remarked that it was 'probable' that the external affairs
power 'includes power to legislate as to the observance of treaties between
Great Britain and foreign nations.'[50]
4.43 While the framers appeared generally to agree that the external
affairs power allowed the Commonwealth Parliament to implement treaties,
there was no clear agreement as to the power of the Commonwealth Parliament
where the subject matter of the treaty lay within the ordinary jurisdiction
of the States. In 1902, the Attorney-General, Alfred Deakin, advised that
there was a need to seek the concurrence of the States in the implementation
of the Venice International Sanitary Convention,[51] because it
may affect the laws of the States.
4.44 In contrast, in 1906, the Attorney-General, Isaac Isaacs, who had
also been one of the Framers of the Constitution, provided an opinion
to the Government that the external affairs power allowed the Commonwealth
to legislate to implement a treaty, even in relation to subjects over
which it would otherwise not have power. Isaacs noted that the Constitution
does not reserve exclusive powers to the States. He considered that a
law which implements a treaty is one relating to an external affair of
the Commonwealth, because it deals with the relations between the Commonwealth
and a foreign country, and that such a law is therefore within the competence
of the Commonwealth Parliament.[52]
Current comment on the intentions of the Framers
4.45 More recent commentators have also accepted that the external affairs
power includes the power to enact laws which implement treaties. Sir Anthony
Mason, former Chief Justice of the High Court, has argued:
There can be little doubt that the founders of the Constitution intended
that the Parliament should have legislative power to carry into effect
treaties and Conventions. Their vision may not have travelled beyond
more traditional treaties such as, for example, extradition treaties.
They probably did not foresee the vast expansion in international action
and co-operation that has taken place since 1950. But the failure to
foresee this development is not a reason for decreasing the content
of the power by reference to vague and unmanageable criteria such as
the need to preserve the "federal balance". Rather the power
must be interpreted generously so that Australia is fully equipped to
play its part on the international stage.[53]
Conclusion
4.46 At the time the Commonwealth Constitution was being drafted, the
subject of treaties was not considered particularly important. The attention
of the Framers was largely directed towards the financial relations between
the two Houses of Parliament, and how to balance federalism with a system
of responsible government. The power to enter into treaties was still
held by the Crown, to be exercised on the advice of the Imperial Government,
and although the Commonwealth Parliament was given power to implement
these treaties for Australia by way of legislation, the type of treaties
which existed at that time would have been unlikely to have a significant
impact on traditional areas of State responsibility.
4.47 The various views described in this Chapter indicate that it is
not possible to attribute a single view to all the Framers. Some viewed
the Commonwealth's powers in relation to treaties quite narrowly, others
viewed them broadly, and still others probably didn't consider them at
all. Consideration of these views contributes a deeper understanding of
the nature of the Commonwealth's constitutional powers in relation to
treaties, but does not affect the nature of that power as interpreted
by the High Court.
Endnotes:
- de Smith's Constitutional and
Administrative Law, 4th ed. by Harry Street and Rodney Brazier,
Penguin Books, 1981: p 136.
- This historical process is discussed
in more detail below.
- Minister for Immigration v Teoh
(1995) 128 ALR 353 at 361; R v Burgess; Ex Parte Henry (1936)
55 CLR 608; Simsek v MacPhee (1982) 148 CLR 636 at 642. Sir Maurice
Byers QC, Submission No. 25, Vol 2, p 251.
- Mr M. Goldstiver, Submission No.
50, Vol 2, p 431; Mr M. Goldstiver, Submission No. 104, Vol 6, p 1315;
Mr A. Pitt, Submission No. 47, Vol 2, p 423; Mr T. King, Submission
No. 53, Vol 3, p 443, Mr J. Pickering, Submission No. 54, Vol 3, p 448.
- The High Court's interpretation
of the external affairs power is discussed in detail in Chapter 5 of
this report.
- That is, those colonies with Parliaments
where the Government was formed by the majority in the Lower House,
and the members of the Lower House were elected by the people.
- G. Doeker, The Treaty-Making
Power in the Commonwealth of Australia, The Hague, Martinus Nijhoff,
1966: pp 26-29.
- Adhering to a treaty means, in
this context, agreeing to be bound by it.
- A.B. Keith, Responsible Government
in the Dominions, Clarendon Press, Oxford, 1912, Vol III, pp 1108-9;
and G. Doeker, The Treaty-Making Power in the Commonwealth of Australia,
The Hague, Martinus Nijhoff, 1966: p 28.
- A.B. Keith, Responsible Government
in the Dominions, Clarendon Press, Oxford, 1912, Vol III, p 1111.
- Opinion dated 16 January 1902,
Attorney-General's Department, Opinions of the Attorneys-General
of the Commonwealth of Australia, Vol 1, AGPS, Canberra, 1981: p
47.
- Quoted in: G. Doeker, The Treaty-Making
Power in the Commonwealth of Australia, The Hague, Martinus Nijhoff,
1966: p 50.
- G. Doeker, The Treaty-Making
Power in the Commonwealth of Australia, The Hague, Martinus Nijhoff,
1966: p. 10.
- For a discussion on the status
of the Dominions in signing the Treaty of Versailles and becoming separate
members of the League of Nations, see: A.B. Keith, Responsible Government
in the Dominions, 2nd ed., Clarendon Press, Oxford, 1928: pp. 877-893;
and P.J.N. Baker, The Present Juridical Status of the British Dominions
in International Law, Longmans, Green & Co., 1929: pp. 67-81.
- M. Lewis, 'The International Status
of the British Self-Governing Dominions' (1922-23) 3 British Year
Book of International Law, 21 at p. 33.
- H.V. Evatt, The Royal Prerogative,
Law Book Co., 1987: p. 151; J.G. Starke, 'The Commonwealth in International
Affairs' in R. Else-Mitchell (ed.), Essays on the Australian Constitution,
2nd ed., Law Book Co., Sydney, 1961, 343, at 349. See also the statement
made by the British Prime Minister, Mr Lloyd George, at the 1921 Conference
of Prime Ministers, quoted in R. Stewart, Treaty Relations of the
British Commonwealth of Nations, MacMillan Co., New York, 1939:
pp. 152-3.
- See copy of the Conference Resolution
in: J.G. Latham, Australia and the British Commonwealth, MacMillan
and Co. Ltd, London, 1929: pp 131-133.
- J.G. Latham, Australia and the
British Commonwealth, MacMillan and Co. Ltd, London, 1929: p 133.
- J.G. Latham, Australia and the
British Commonwealth, MacMillan and Co. Ltd, London, 1929: Appendix.
- J.G. Latham, Australia and the
British Commonwealth, MacMillan and Co. Ltd, London, 1929: pp 54-55.
- Commonwealth of Australia, Report
of the Royal Commission on the Constitution, Canberra, 1929: p 115.
- Commonwealth of Australia, Report
of the Royal Commission on the Constitution, Canberra, 1929: p 118.
See also: Royal Commission on the Australian Constitution, Report
of Proceedings and Minutes of Evidence,: p 1429.
- The Australian States were released
from the application of the Colonial Laws Validity Act 1865 by
the Australia Acts 1986.
- M. Coper, Encounters with the
Australian Constitution, CCH Australia, 1987: p 10.
- G. Winterton, Parliament, The
Executive and the Governor-General; A Constitutional Analysis, Melbourne
University Press, 1983: p 24.
- See Professor E. Campbell, Submission
No. 8, Vol 1, p 82, citing Professor L. Zines, The High Court and
the Constitution, 3rd ed., Butterworths, 1992: pp 214-219. See also:
Bonanza Creek Gold Mining Co. Ltd v Rex [1916] 1 AC 566, at 587;
and see generally: H. V. Evatt, The Royal Prerogative, Law Book
Co., 1987.
- The Constitution was eventually
enacted as part of a British Act of Parliament, passed by the Westminster
Parliament. The name of this Act is the Commonwealth of Australia
Constitution Act. Clauses 1 to 8 of this Act set out preliminary
and transitional provisions, including a provision stating that this
Act is binding on the courts, judges and people of every State and every
part of the Commonwealth, notwithstanding anything in the laws of any
State. These 8 clauses are known as the 'covering clauses'. Clause 9
of the Commonwealth of Australia Constitution Act contains the
entire Constitution.
- Official Report of the National
Australasian Convention Debates, Sydney, 1891: Appendix.
- Later to become s. 51(xxix) in
the final version of the Constitution.
- La Nauze, J.A., The Making of
the Australian Constitution, Melbourne University Press, 1972, pp
172-4. This concern was raised by the British Government and was passed
on to the Premier of New South Wales, George Reid.
- Official Record of the Debates
of the Australasian Federal Convention, Sydney, 1897: p 239.
- Official Record of the Debates
of the Australasian Federal Convention, Sydney, 1897: p 240.
- Official Report of the National
Australasian Convention Debates, Sydney, 1891: pp 239-240.
- Official Record of the Debates
of the Australasian Federal Convention, Melbourne, 1898: p 30.
- Mr P. McDermott, Submission No.
109, Vol 7, p 1401.
- P. McDermott, 'External Affairs
and Treaties - The Founding Fathers' Perspective', (1990) Vol 16(1)
University of Queensland Law Journal 123, at 136. Mr McDermott
also argued that the power under s.51(xxx) to make laws with respect
to the 'relations of the Commonwealth with the islands of the Pacific'
includes a power to implement treaties with Pacific island nations,
in contrast to the external affairs power which does not include the
power to implement treaties. He considered that s. 51(xxx) would not
have been necessary if s. 51(xxix) contained the power to implement
treaties. However, this point was also raised and dismissed at the Constitutional
Conventions in the 1890s. It was generally considered that s. 51(xxx)
fell within the broad scope of the external affairs power, but that
it should be left there out of an abundance of caution. See: Official
Record of the Debates of the Australasian Federal Convention, Melbourne,
1898: pp 30-31.
- Alfred Deakin may well be an exception,
expressing his concern that the removal of the words 'and treaties'
would 'limit the powers of the Federal Parliament within the range of
the powers that the Canadian Parliament already enjoys': Official
Record of the Debates of the Australasian Federal Convention, Melbourne,
1898: p 31.
- Covering clause 7, which is referred
to in the extracts quoted from the Official Record of the Debates
of the Australasian Federal Convention in the text above, became
what is covering clause 5 in the current Constitution.
- Zines L, 'The Federal Balance and
the Position of the States', in G. Craven (ed), The Convention Debates
1891-1898: Commentaries, Indices and Guide, Legal Books, Sydney,
1986, p 85. See also: Hansard, SLCRC, 14 June 1995, p 695, per
Mr H. Burmester.
- Honourable Dame Roma Mitchell,
'The External Affairs Power in relation to United Nations Conventions;
its effect upon the Balance of Power between Commonwealth and States',
Blackburn Lecture, the Law Society of the ACT, Friday 26 May 1995.
- Hansard, SLCRC, 14 June
1995, p 725.
- Hansard, SLCRC, 15 May 1995,
p 263.
- Attorney-General's Department,
Opinions of the Attorneys-General of the Commonwealth of Australia,
Vol. 1, 1981, No. 244: p 293.
- A.H.F. Lefroy, 'The Commonwealth
of Australia Bill', (1899) 15 Law Quarterly Review 281, at 291.
- J. Quick and R. Garran, The
Annotated Constitution of the Australian Commonwealth, 1901: p 770.
- J. Quick and R. Garran, The
Annotated Constitution of the Australian Commonwealth, 1901: pp
631 -632.
- J. Quick and R. Garran, The
Annotated Constitution of the Australian Commonwealth, 1901: p 635.
- J. Quick and R. Garran, The
Annotated Constitution of the Australian Commonwealth, 1901: pp
636-67.
- W.H. Moore, The Constitution
of the Commonwealth of Australia, 1902: p 143.
- McKelvey v Meagher (1906)
4 CLR 265, at 286 per Barton J. See generally references cited by Professor
Winterton in Submission No. 89, Vol 5, p 1070.
- Attorney-General's Department,
Opinions of the Attorneys-General of the Commonwealth of Australia,
Vol. 1, 1981, No. 60: p 77. See generally discussion in: C. Saunders,
'Articles of Faith or Lucky Breaks?' (1995) 17 Sydney Law Review
150, at 158. This treaty concerned sanitation on ships, and was entered
into by Her Majesty in 1897, on behalf of the British Empire.
- Attorney-General's Department,
Opinions of the Attorneys-General of the Commonwealth of Australia,
Vol. 1, 1981, No. 244: p 293.
- Sir Anthony Mason, 'The Australian
Constitution 1901-1988', (1988) 62 Australian Law Journal 755.
See similar comments in the Commonwealth v Tasmania (1983) 158
CLR 1, at 99-100.