1. Introduction

Peter M. McDermott*

External Affairs and Treaties - The FoundingFathers' Perspective

123The University ofQueensland Law Journal Vol. 16 No.1

The Honourable Sir Anthony Mason, the Chief Justice of the HighCourt of Australia, discussed the external affairs, power conferredupon the Commonwealth Parliament by s.51(xxix) of the Constitu­tion in a recent address on "The Australian Constitution".1 TheChief Justice observed that the transformation of Australia, from acollection of colonies to a fully sovereign State in international law,underlies the proper interpretation of the external affairs power. HisHonour stated: "At an early stage it was appreciated that the powergave scope to the Commonwealth, by entering into treaties and con­ventions, to regulate topics not specifically committed to the Com­monwealth Parliament by the "Constitution" .2 One example of suchan early adoption of this perception of the provision's scope is foundin the views of Quick and Garran who, as early as 1901, expressed theopinion that the external affairs power enabled the implementationof treaties. These learned commentators remarked: "The power ofmaking laws to give effect to treaties, so far as they concern the Com­monwealth, must be deemed to be included in sec. 51-XXIX - 'Ex­ternal affairs"'.3 The Chief Justice considered that the FoundingFathers intended that the Commonwealth Parliament should havethis legislative power.4 This statement, which finds support in Quickand Garran,5 and which was the view of Sir Samuel Griffith,6 cer­tainly reflects the position evidenced by the initial draft of the Consti­tution, which was approved at the Constitutional Convention held inSydney in 1891. That draft conferred power upon the Common­wealth Parliament to legislate in respect of "external affairs andtreaties". The draft recognised that Australia's membership of thecommunity of nations necessarily requires that treaty obligationsmust be implemented by legislation. However, delegates to the Con­stitutional Conventions of 1897 and 1898 amended the draft Consti­tution to remove any power of the Commonwealth Parliament tolegislate in respect of" treaties" .

* Barrister-at-Law (Qld.), Lecturer in Securities (part-time), University of Queens­land.The Hon. Sir Anthony Mason, "The Australian Constitution 1901-198$" (1988)62 A.L.J. 752.

2 (1988) 62 A.L.J. 752, 754.3 See, J. Quick and R.R. Garran, The Annotated Constitution of the Australian

Commonwealth (1901), p. 770.4 (1988) 62 A.L.J. 752, 755.5 See, n.3 (ante).6 See, Vol. 89 N.S.W.P.D. (1st ser.), p. 3011 (17 August, 1897).

124

2. 1891 Convention, Sydney

Peter M. McDermott

In 1891, a National Australasian Convention was held in Sydney (2March to 9 April, 1891). The delegates to the Convention adopted thedraft Commonwealth ofAustraliaBill which included a draft Consti­tution of the Commonwealth of Australia. It is submitted that theirintent was that the Commonwealth should have the capacity to enterinto treaties, this being apparent from a perusal of the following pro­visions in the draft Bill:-

(i) Covering clause 7 of the draft Imperial Act, inter alia, providedthat

The Constitution established by this Act, and all laws made by theParliament of the Commonwealth in pursuance of powers conferred bythe 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 thelaws of any State to the contrary notwithstanding: and the Laws andTreaties of the Commonwealth shall be in force on board of all Britishships whose last port of clearance or whose port of destination is in theCommonwealth.7

(ii) Clause 52(26) of the draft Constitution provided:

The Parliament shall, subject to the provisions of this Constitution, havefull power and authority to make all such Laws as it thinks necessary forthe peace, order, and good government of the Commonwealth, withrespect to all or any of the matters following, that is to say:-

26. External affairs and Treaties;"8

(iii) The draft'Constitution provided that federal jurisdiction wouldbe vested in respect of:

Cases arising under any Laws made by the Parliament of the Common­wealth, or under any treaty made by the Commonwe8.lth with anothercountry;.9

The delegates to the 1891 Convention obviously intended that theCommonwealth should be able to enter into treaties. Covering clause7 of the draft Imperial Act referred to "Treaties made by theCommonwealth" and "Treaties of the Commonwealth". Similarly,it was proposed that federal jurisdiction would be vested in respect ofa case arising "under any treaty made by the Commonwealth withanother country" . It was certainly a radical step for the delegates todecide that the Crown in right of the Commonwealth should be ableto enter into treaties. J .Anderson, a senior official at the Colonial Of­fice who examined the 1891 draft Bill, considered that it was quite in­appropriate for the Commonwealth to enter into treaties, as this wasa matter for the Sovereign. lo There had been precedents where theImperial Crown had entered into treaties at the request Qf colonialauthorities; for instance, in 1873, when Her Majesty Queen Victoria,

7 See, Con. Deb. Syd. 1891, p. 944.8 Id., p. 952.9 Id., p. 957.10 See, l.A. La Nauze, The Making o/the Australian Constitution (1972), p. 172.

11 See, Dominion of Canada v. Province of Ontario [1920] A.C. 637, 644; H.V.Evatt, The Royal Prerogative (1987), p. 144.

12 Cf., Theodore v. Duncan [1919] A.C. 696; D.P. O'Connell, International Law(2nd ed., 1970) Vol. 1, p. 349.

13 See, J.1. Fajgenbaum & P. Hanks, Australian Constitutional Law (1972), p. 18.14 C. 7553 (1894).15 C. 7824 (1895) p. 15 (para. 7).16 (1892] A.C. 491.17 (1892) 13 L.R. (NSW) Eq. 101, 106.

acting on the advice of the Dominion Government of Canada, madea treaty with the Salteaux tribe of the Ojibeway Indians. 11

On a theoretical level, the doctrine of the "indivisibility" of theImperial Crown, which prevailed after World War I, would have pre­sented difficulties for the Commonwealth's unilateral entry into trea­ties. 12 On a more practical level, the Colonial Office would haveappreciated the possibility of conflict arising between the Common­wealth Government and the Imperial Government if they enteredinto differing treaty obligations. Even into this century, Whitehallensured that no Australian legislation was passed which would con­flict with the treaty obligations of the Imperial Crown. Royal Instruc­tions to the Governors of the Australian States provided that, in theabsence of instructions of a Secretary of State, assent should not begiven to "any Bill the provisions of which shall appear inconsistentwith obligations imposed upon Us by Treaty" .13 It was inconceiv­able, at this time, for the colonies to be given the power of makingtreaties. In 1894, the Ottawa Conference considered whether the col­onies could negotiate trade agreements. 14 Soon after in 1895, LordRipon, the Colonial Secretary, in a despatch to the Governors of theAustralian colonies commented:

To give the Colonies the power of negotiating Treaties for themselveswithout reference to Her Majesty's Government would be to give theman international status as separate and sovereign States, and would beequivalent to breaking up the Empire into a number of independentStates. A result which Her Majesty's Government are satisfied would beinjurious equally to the Colonies and to the Mother country, and wouldbe desired by neither. IS

The delegates to the 1891 Convention obviously intended that treatieswould, of their own force, be incorporated into municipal law. Thisis apparent from covering clause 7 of the draft Imperial Act whichprovided that "all Treaties made by the Commonwealth, shall, ac­cording to their tenor, be binding on the Courts, Judges and peopleof any State" and for" Laws and Treaties of the Commonwealth" tobe in force on board British ships. Also the proposal to confer federaljurisdiction in respect of a case "arising . . . under any treaty madeby the Commonwealth" impliedly recognised that treaties would oftheir own force have effect. The assertion that treaties were of theirown force to operate as law represented a radical departure fromBritish Law. In Walker v. Bairdl6 the Privy Council held that the pro­visions of a treaty did not, in the absence of statute, become incorpo­rated into municipal law and affect the private rights of a subject. Itmight be mentioned that in National Starch Manufacturing Co. v.Munn's Patent Maizena and Starch CO. 17, Owen C.J. (in Eq.) ap­peared to assume that a treaty per se affected the rights of a subject.

External Affairs and Treaties 125

126 Peter M. McDermott

It has been suggested that the Founding Fathers would have beenaware of the doctrine in Walkerv. Baird. IS However, the 1891 Con­vention preceded that decision, and the delegates, particularly in thearea of federal jurisdiction, would have relied upon the model pro­vided by the Constitution of the United States of America. In Aus­tralia, the doctrine of Walker v. Baird19 was applied in Bradley v.Commonwealth ofAustralia2°, in which the High Court held that thePostmaster-General was not legally entitled to withdraw postal andtelecommunications services, on the basis of resolutions of the Secu­rity Council of the United Nations that called upon member states tointerrupt communications with the Rhodesian Government.21 As hasbeen noted, at this time the founding Fathers obviously intended thatthe Commonwealth Parliament should have constitutional compe­tence to implement treaties, as s.52(26) of the draft Constitution en­abled the Commonwealth Parliament to make laws in respect of"External Affairs and Treaties". This provision was not, unlikeother provisions, restricted to treaties made by the Commonwealth,so that the proposed Commonwealth Parliament could, as in Can­ada, presumably implement treaties made by the Imperial Crown.

3. 1897 Convention, Adelaide

In 1897, a National Australasian Convention was held in Adelaide(22 March to 5 May, 1897). In relevant respects, the delegates to theConvention did not propose any major departure from the draft Im­perial Act and Constitution that had been adopted in 1891. The draftCommonwealth ofAustralia Constitution bill, adopted at this Con­vention, provided that "the laws and treaties of the Commonwealthshall be in force on board of all British ships whose last port of clear­ance or whose port of destination is in the Commonwealth" (cover­ing cl. 7).22 Under the draft Constitution, adopted at the 1897Convention, the Commonwealth Parliament was given constitu­tional competence to legislate for "External affairs and treaties" (cl.52 (XXIX».23 One minor amendment to the earlier draft provisionwas that federal judicial power was to extend to all matters" arisingunder any treaty" (cI. 73 (IIIfA rather than the earlier restrictive for­mula of "any treaty made by the Commonwealth with anothercountry"2S which would have excluded Imperial treaties.

18 See, P.H. Lane, Australian Federal System (2nd ed., 1979), p. 608.19 [1892] A.C. 491.20 (1973) 128 C.L.R. 557, 47 A.L.J.R. 504.21 See also, J.G. Starke, "The High Court of Australia and the rule in Walker v.

Baird [1892] A.C. 491" , (1974) 48 A.L.J. 368.22 See, Con. Deb. AdeI. 1897, p. 1222.23 Id., p. 1231.24 Id., p. 1235.25 See, n.9 (ante).

External Affairs and Treaties

4. N.S.W. Legislative Councll, 1 97

The draft of the Constitution, that had been approved by the del­egates to the Adelaide Convention, had necessarily to be ratified bythe Parliaments of the Australian colonies. This was certainly no for­mality and Sir Edmund Barton, a practising barrister, was appointeda member of the Legislative Council of New South Wales so that hemight take charge of the passage of the Federation Bill through thataugust and influential chamber.26 The Legislative Council of NewSouth Wales proposed a number of amendments to the Constitution,which were intended to have the consequence of not allowing anyCommonwealth involvement in respect of treaties. The first amend­ment was to covering clause 7 of the draft Commonwealth ofAus­tralia Constitution Bill, which provided that "treaties made by theCommonwealth" were to be binding, and that "the laws and treatiesof the Commonwealth" were to be in force on British ships. Onemember, Dr. H.N. MacLaurin, considered that the words, "and alltreaties made by the commonwealth" and "all treaties" , where thosewords next appeared in the covering clause, be omitted from coveringclause.27 Dr. MacLaurin remarked:

Ninety-nine out of every hundred believed that the dominion was not tobe a sovereign state, but a state under the Crown. Therefore, it would beincompetent for it to make treaties ... 28

Similarly, Sir Julian Salomons remarked:

Whilst we remained colonies we ought to leave the power of treaty-makingin the hands of the Imperial Government, unless the Imperial Governmentitself thought fit to allow us to make a treaty.29

Sir Edmund Barton had earlier commented:

It was in clause 52 that the treaty-making power was proposed by theconstitution to be given, and these words were to be used in this coveringclause by the Imperial legislature to give effect to such treaties as mightbe made under that power, so that they might operate in all parts of thedominion, in order that no court in any part of the dominion should saythat they had no validity. 30

In all strictness clause 52 did not itself empower the Commonwealthto enter into treaties. The clause enabled legislation to be passed in re­spect of treaties. It was in covering clause 7 that it was recognised thatthe Commonwealth would possess the requisite capacity to enter intotreaties. On the motion of H.C. Dangar, as amended by Dr. MacL­aurin, it w·as agreed that the covering clause should be amended so asto apply the laws of the Commonwealth to all British ships whose

26 See, La Nauze, Ope cit. (n.10), p. 161.27 See, Vol. 89 N.S.W.P.D. (1st ser.), pp. 3007, 3082 (17 August, 1897). The

Parliamentary speeches are transcribed in narrative form instead 'of in directspeech. The amendment also agreed to the insertion in covering clause 7 of thewords "expecting Her Majesty's ships and vessels of war", and by restricting theoperation of the clause to where the ports of clearance and destinatio were in theCommonwealth.

28 See, Vol. 89 N.S.W.P.D. (1st ser.) p. 3007 (17 August, 1897).29 Id., pp. 3008-3009 (17 August, 1897).30 Id., p. 3011 (17 August, 1897).

128 Peter M. McDermott

port of clearance and destination were in the Commonwealth. HerMajesty's ships and vessels of war were expressly excepted from theoperation of Commonwealth law. This amendment did not providefor treaties of the Commonwealth to apply to British ShipS.31

Some members of the Legislative Council recognised that the Im­perial Parliament would not have passed a Bill which would have en­abled the Commonwealth to enter into treaties. C.E.Pilcherconsidered that the Imperial Parliament would not give the coloniesthe power of making treaties with foreign countries, which were in­consistent with treaties entered into by the Imperial Crown. He re­marked:

If the Imperial Parliament passed the Bill there was an end of it; but hewould point out that, if the hone - and learned member, Mr. Barton,kept the clause in its present form, he would be running the risk of theImperial Parliament saying 'We cannot pass the Bill'. Therefore, thisprovision would be a stumbling-block in the way of the bill eventually,assuming that it passed through all the preliminary stages.32

J.H. Want remarked that:

He thought that if we sent home the bill with the provision that we wereto have power to make treaties, and that the laws and treaties of thedominion were to be in force of all British ships, we should be holdingourselves up as a laughing-stock, and be ridiculed on all sides.33

In actual fact, the Colonial Office would have insisted upon the Con­stitution being amended, by deleting any reference to the Common­wealth being able to enter into treaties.34

A crucial amendment that was succ~ssfully proposed by Dr. Mac­Laurin was to omit the words "and treaties" from sub-clause (29) ofcl. 52 of the draft Constitution, which provided for the Common­wealth Parliament to have constitutional competence to legislate inrespect of "External affairs and treaties". Dr. Cullen remarked thathe hoped that the words would stay as part of the clause, observing:

The clause simply provided that, in so far as the British Parliament left itopen to use to have any voice in treaties, whatever that voice, it should beuttered by the dominion, and not by the separate colonies. The provisionsimply meant that on that matter, which regulated our relations with theoutside world, Australia should speak with one voice, instead of with sixdifferent voices.3S

However, a motion that the words proposed to be omitted stand partof the clause was defeated (ayes, 12; noes, 20; majority 8). The recordof the proceedings records Sir Edmund Barton as..being in the minor­ity on this question.36 The only member of the majority who spokewas Dr. MacLaurin who remarked:

· .. it was hardly necessary to debate this matter, as it had been debatedover and over again; but, if desired, he would go at full length into the

31 Id., p. 3082 (18 August, 1897).32 Id., p. 3009 (17 August, 1897).33 Id., p. 3011 (17 August, 1897).34 See, La Nauze, Ope cit. (n.l0), p. 184.35 See, Vol. 89 N.S.W.P.D. (1st ser.), p. 3291 (24 August, 1897).36 Ibid.

s. 1897 Convention, Sydney

J .M. Creed observed:

,He might refer to the treaty recently made with Japan, which providedthat the colonies could make their own arrangements - that they couldaccept, or not accept, that treaty. If we had that power, we must use thephrase which the hone and learned member wished to have omitted fromthe clause, or some other that would make such arrangements binding onthe courts.39

The doctrine of Walker v. Bairf140 was not mentioned in any of thespeeches that were made in the Legislative Council.

arguments used before to prove that treaty-making was outside theprovince of any but sovereign states.37

It was apparent, from some of the speeches, that it was assumed thattreaties operated of their own force in the absence of domestic legis­lation. Sir Julian Salomons remarked:

The bill provided that while we remained colonies we should be allowedto enter into treaties. Those treaties were to be the law, not only of NewSouth Wales, but of all Australia, although they might conflict abso­lutely, and might be in repeal of treaties which Great Britain herself hadentered into.38

129External Affairs and Treaties

Later in 1897, the Second Session of the Australasian Federal Con­vention was held in Sydney (2 September to 24 September, 1897). Thedelegates amended the draft Imperial Act to remove any treaty-mak­ing power of the Commonwealth. Covering clause 7 of the draftCommonwealth ofAustralia Bill that was place before the Conven­tion provided:

Clause 7. The constitution established by this act, and all laws made bythe parliament of the commonwealth in pursuance of the powers con­ferred by the Constitution, and ail treaties made by the commonwealth,shall, according to their tenour, be binding on the courts, judges, andpeople, of every state, and of every part of the commonwealth, anythingin the laws of any state to the contrary notwithstanding; and the laws andtreaties of the commonwealth shall be in force on board of all British shipswhose last port of clearance or whose port of destination is in thecommonwealth.41

This clause was in the same terms as that which was approved by thedelegates fo the 1891 National Australasian Convention.

Sir Edmu~d Barton successfully proposed amendments to cover­ing clause 7, in accordance with the resolutions of the LegislativeCouncil of New South Wales. Covering clause 7 was amended by theomission from the clause 'of the words, "and all treaties made by the

37 Ibid.38 Id., p. 3008.39 Id., p. 3007.40 [1892] A.C. 491.41 See, Con. Deb. Syd. 1897, p. 239.

130 Peter M. McDermott

commonwealth" .~2 Also the latter part of the covering clause wasamended to read:

And the laws of the Commonwealth shall be in force on board of allBritish ships, excepting her Majesty's ships and vessels of war, whose firstport of clearance and whose port of destination are in the Common­wealth.43

The latter part of the covering clause omitted the reference to "trea­ties of the Commonwealth" which were to have force on Britishships, exempted Her Majesty's ships, and restricted the operation ofthe clause to where ports of clearance and destination were in theCommonwealth, so as to remove possible conflict on long voyagesbetween the Imperial merchant shipping laws and any Common­wealth legislation with respect to shipping.

In his speech to the delegates, Sir Edmund Barton declared:

I think it is expected by the Legislative Council of New South Wales thatI 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 willbe in the Imperial Government, we should omit any reference to themaking of treaties by the commonwealth; in other words, while theyconcede that we should make certain trade arrangements, which wouldhave force enough if ratified by the Imperial Government, the soletreaty-making power is in the Crown of the United Kingdom.44

Sir George Reid appreciated that under the draft Constitution it wasintended that treaties were to have the force of law, and that this wasa departure from British practice. He remarked:

This is an expression which would be more in place in the United StatesConstitution, where treaties are dealt with by the President and the senate,than in the constitution of a colony within the empire. The treaties madeby her Majesty are not binding as laws on the people of the UnitedKingdom, and there is no penalty for, disobeying them. Legislation issometimes passed to give effect to treaties, but the treaties themselves arenot laws, and indeed nations sometimes find them inconvenient, as theyneglect them very seriously without involving any important legal conse­quences. The expression, I think, ought to be omitted.4s

Prior to the Convention, Sir George Reid was briefed of the concernsof the Colonial Office by Joseph Chamberlain, the Secretary of Statefor the Colonies. De Garis has pointed out that Chamberlain had ob­viously hoped that Reid would be able to secure a fair proportion ofthe changes to the Constitution desired by Her Majesty's Govern­ment, without the risk of Imperial affront to colonial susceptibili­ties.46

42 Ibid.43 Id., p. 240.44 Id., p. 239.45 Id., p. 240.46 See, B.K. De Garis. "The Colonial Office and the Commonwealth Constitution

Bill". in A. W. Martin (ed.),ESsays in Australian Federation (1969), pp. 96-121.

7. Canada - British North America Act

In 1898, the Third Session of the Australasian Federal Conventionwas held in Melbourne (20 January to 17 March, 1898). At the com­mencement of this session, cl. 52(29) of the draft Constitution con­ferred Commonwealth legislative power in respect of "ExternalAffairs and Treaties" . The Convention agreed that the sub-clause beamended by the deletion of the words, "and treaties". Sir EdmundBarton remarked: "I propose to strike out the words' and treaties' , inaccordance with the suggestion of the Legislative Council of NewSouth Wales".47 The sole dissenting voice to this proposal was P.Glynn who commented: "It may be wise to retain them" .48

By way of contrast it might be mentioned that The British NorthAmerica Act 186749 conferred executive and legislative power for theperformance of the treaty obligations of Canada as part of the BritishEmpire.50 Section 132 of The British North America Act provides:

The Parliament and Government of Canada shall have all powers neces­sary or proper for performing the obligations of Canada or any Provincethereof, as part of the British Empire, towards foreign countries, arisingunder treaties made between the Empire and such foreign countries.

The Canadian Constitution was one of the instruments of Federationthat were considered by the Founding Fathers. 51 However., theFounding Fathers did not include a provision such as s.132 of TheBritish North America Act in the Australian Constitution. This is de­spite the fact that Sir Edmund Barton remarked that Sir Samuel Grif­fith was in favour of a certain degree of treaty-making power beinggiven to the Commonwealth, subject to ratification by the Crown,"to make such treaty agreements as those which Canada claimed tomake" .52 Section 132 of The British North America Act, however,did not enable Canada to make treaties.53 The provision only enabledthe implementation of treaties made by "the Empire" , that is the Im­perial Crown. It might also be mentioned that at this time Whitehalldid not grant Canada the power of independent negotiation, for todo so would concede its sovereignty in international law. Negotia­tions had to be conducted by the Imperial representative at the for­eign court, aided by a Canadian representative as a secondplenipotentiary or as a subordinate. Any treaty would be ultimately

131External Affairs and Treaties

6. 1898 Convention, Melbourne

47 Cony. Deb. Melb. 1898, p. 30.48 Ibid.49 30 & 31 Vict. c. 3 (Imp.).50 See, In re Regulation and Control ofAeronautics in Canada (1932] A.C. 54.51 See, W.A. Wynes, Legislative, Executive and Judicial Powers in Australia (5th

ed., 1976), p. l.52 See, Vol. 89 N.S.W.P.D. (1st ser.), p. 3011 (17 August, 1897).53 See, The Hon. Mr. Justice W.H.P. Clement, The Law of the Canadian

Constitution (1916), p. 135; W.J. Hudson and M.P. Sharp, AustralianIndependence (1988), p. 32.

132 Peter M. McDermott

ratified by the Crown on the advice of the British Government if theCanadian legislature so desired.54

Despite the absence from the Constitution of a provision which iscomparable to s.132 of The British North America Act, it has beenassumed that the Parliament of the Commonwealth possesses thesame power as the Canadian Parliament to implement treaties, eventhough the Fou~ding Fathers deleted any power of the Common­wealth Parliament to legislate in respect of "treaties" .In R. v. Bur­gess, ex p. Henry55, Latham C.l. remarked:

The Government and Parliament of the Commonwealth have, in relationto Australia, the powers mentioned in section 132 of the British NorthA merica Act 1867.56

Latham C.J. considered that this view was ('supported by a consider­ation of the object which must have been in contemplation when theConstitution was enacted" .57 The Chief Justice added: "Australiawas established as a new political entity and Australia was to be givencontrol of her own external affairs' '58 The Chief Justice concluded:

The plan of giving Australia full control of her external affairs is furthercarried out by the provisions in section 51 (xxix) that the CommonwealthParliament can make laws with respect to external affairs. The Common­wealth Parliament was given power to legislate to give effect to interna­tional obligations binding the Commonwealth or to protect nationalrights internationally obtained by the Commonwealth whenever legisla­tion was necessary or deemed to'-be desirable for this purpose.59

This passage of the Chief Justice was recently relied upon by DeaneJ. in Richardson v. The Forestry Commission60 who concluded:

Thus, the external affairs power encompasses the purposive power tocarry out treaties by domestic legislation: "all powers necessary or properfor performing ... obligations ... towards foreign countries, arisingunder treaties": cf. British North America Act 1867, s.132. 61

It should be appreciated that s.132 of the British North AmericaAct did not confer unlimited constitutional competence upon theParliament of the Dominion of Canada to implement treaties. In At­torney General for Canada v. Attorney General for Ontario62 thePrivy Council held that s.132 of the British North America Act onlyextended to the treaty obligations of Canada as part of the BritishEmpire, and not Canada by virtue of her status as an internationalperson. Lord Atkin said: "It must not be thought that the result ofthis decision is that Canada is incompetent to legislate in perfor­mance of treaty obligations. In totality of legislative powers, Domin­ion and Provincial together, she is fully equipped" .63 It was therefore

//

,/

54 See, W.P .M. Kennedy, The Constitution ojCanada (1931), pp. 347-348.55 (1936) 55 C.L.R. 608.56 (1936) 55 C.L.R. 608, 643.57 Ibid.58 (1936) 55 C.L.R. 608,643-644.59 (1936) 55 C.L.R. 608, 644.60 (1988) 164 C.L.R. 261.61 (1988) 164 C.L.R. 261, 309.62 [1937] A.C. 326.63 [1937] A.C. 326, 353-354.

9. Convention Debates

8. United States Constitution

clear from this decision that the Dominion could not, merely by mak­ing promises to foreign countries, clothe itself with legislative author­ity inconsistent with the Constitution which gave it birth.64

133External Affairs and Treaties

It is well-known that the Founding Fathers also had regard to theConstitution of the United States of America.6S The National Su­premacy Clause in the Constitution, inter alia, provides that "allTreaties made, or which shall be made, under the Authority of theUnited States, shall be the Supreme Law of the Land".66 Treatiesmade by the United States of America prevail over inconsistent Statelegislation. In Ware v. Hylton67 Justice Chase remarked that "atreaty cannot be the Supreme law of the land if any act of a State Leg­islature can stand in its way" .68 The United States Constitution pro­vides safeguards which recognise the legitimate interests of the Statesin that the President is empowered to make Treaties "with the Adviceand Consent of the Senate . . . provided two thirds of the Senatorspresent concur" .69 The operation of the doctrine of the Separation ofPowers ensures that Senators are not part of the Executive, and ac­cordingly possess a large degree of independence. Some commenta­tors have pointed out that no such safeguard for the interests of theStates is present in the Constitution of the Commonwealth of Aus­tralia, which has been held to enable the Commonwealth executive tocreate for itself a new area of legislative power. 70

The High Court has, in recent times, overcome a reluctance to placereliance on the Convention Debates as a guide to interpreting theConstitution. 71 There is a recent precedent whereby there has beenrecourse to the Convention Debates with the consequence that settledauthority on the interpretation of the Constitution was disturbed.72

Sir Anthony Mason has remarked:

One speaker may provide an unexpected insight or explain why a partic­ular draft was not accepted. What is more the debates are a primary sourceof material for commentaries by experts which the Court does not hesitateto use as an aid to interpretation. These factors, along with an increasing

64 [1937] A.C. 326, 327.65 See, n.51 (ante).66 See, Article VI, clause 2.67 (1796) 3 Dall. 199.68 (1796) 3 Dall. 199, 236.69 Article II, clause 2.70 See, L.J.M. Cooray and S. Ratnapala, "The High Court and the Constitution ­

Literalism and Beyond" in G. Craven (ed.), The Convention Debates 1891-1898:Commentaries, Indices and Guide (1986) 203, p. 217.

71 See, Seamen~ Union ofAustraliav. Utah Development Co. (1978) 144 C.L.R. 120at 143-144; Brownv. R. (1986) 160 C.L.R. 171 at 189,214; Colev. Whitfield (1988)165 C.L.R. 360 at 389-391.

72 See, Colev. Whitfield (1988) 165 C.L.R. 360.

134 Peter M. McDermott

use that we are now making of extrinsic materials in the construction ofstatutes, are likely to stimulate reference to the Convention Debates" .73

More recently, in New South Wales v. Commonwealth74 a majorityof justices remarked:

That the Convention Debates may be used to establish the subject to whichthe paragraph was directed is made clear by Cole v. Whitfield (1988) 165C.L.R. 360, at p. 385; see also Port MacDonnell Professional Fishermen'sAssociation Inc. v. South Australia (1989) 63 A.L.J.R. 671, at p. 683; 88A.L.R. 12, at p. 31. And the draft bills prepared by the Conventions of1891, 1897 and 1898 have long been considered a legitimate aid in theinterpretation of the provisions of the Constitution: see State of Tasmaniav. The Commonwealth ofAustralia and State of Victoria (1904) 1 C.L.R.329, at pp. 333, 350.7S

10. Conclusion

The final draft of the Constitution was certainly not intended to con­fer power upon the Commonwealth to make treaties. La Nauze hasrelated that: "Deakin did not assume that even in theory the Com­monwealth had power to conduct direct negotiations with foreignpowers" .76 Indeed, in 1906, Sir Issac Issacs as Attorney-General ofthe Commonwealth advised the Prime Minister that: "The Com­monwealth has not - except so far_ as expressly sanctioned by the Im­perial Parliament or the Crown - any power to make treaties. TheImperial Government can conclude treaties for the whole Empire . .• ". 77 In his opinion, Sir Issac Issacs also mentioned that the words"and treaties" were omitted from the Constitution. He commented:

The gift of an express legislative power as to 'treaties' would probablyhave enabled the Parliament to provide for the making of treaties by theCommonwealth; and the allusion in the 1891 and 1897 drafts to 'treatiesmade by the Commonwealth' appears to show that the framers took thisview. Whether the legislative power as to 'external affairs' enables theParliament to provide for the making of treaties need not now be consid­ered.78

By the conclusion of World War I there was no doubt that Australiahad acquired nationhood and the capacity to enter into treaties. Aus­tralia and other Dominions represented the British Empire at thesigning of the Treaty oj Versailles (1919). Imperial Conferences in1923 and 1926 recognised the right of Australia and other Dominionsto enter into treaties.79 However, King George'V is said to have"flown into arage" in 1923 on hearing that Canada had asserted its

73 The Hon. Sir Anthony Mason, "The Role of a Constitutional Court in aFederation" (1986-87) 16 Federal Law Review 1, p.26.

74 (1990) 90 A.L.R. 355.75 (1990) 90 A.L.R. 355, 361.76 See, J.A. La Nauze, Vol. I, Alfred Deakin (1965), p. 262.77 See, Vol. 1, OpinionsoftheAttorneys-GeneraloftheCommonwea/th ofAustralia

(ed., P. Brazil) (1981), No. 244, p. 293.78 Ibid.79 See, J.0. Latham, Australia and the British Commonwealth (1929), PP. 50-52,

131, 147-148.

80 See, A. Smith, Stitches in Time: The Commonwealth in World Politics (1981), p.268.

81 See, M. Coper, Encounters with the Australian Constitution (1987), p. II.82 See, W.J. Hudson and M.P. Sharp, Australian Independence (1988), p. 32.83 Ibid.84 (1983) 158 C.L.R. I.85 (1983) 158 C.L.R. 1,298.

independence by signing a halibut fisheries treaty with the UnitedStates.80

An interesting process of reasoning was involved in reaching theconclusion that the legislative power in respect of "external affairs"enabled the implementation of treaties. This is despite the fact thatthe Founding Fathers deleted reference to the proposed legislativepower in respect of" treaties" from earlier drafts of the Constitution.One commentator has remarked:

Although in the 1890s it was assumed that treaties affecting Australiawould continue to be made by the United Kingdom, it was also anticipatedthat there could be appropriate occasions for local implementation; Quickand Garran, in their classic commentary on the Constitution published in1901, saw the extradition of fugitive offenders as one likely area. Treatyimplementation, therefore, is a matter which falls easily within the exter­nal affairs power, whether one is guided in the interpretation of theConstitution by historical considerations or by abstract and possiblyahistorical textual considerations.81

It is submitted that this conclusion cannot be supported on groundsof "historical considerations" , for the Founding Fathers quite delib­erately removed any legislative power of the Commonwealth Parlia­ment in respect of "treaties". Some other commentators have con­cluded that "it is likely, then, that the listing of external affairs wasmeant merely to give to the federal authority a monopoly in the Aus­tralian implementation of the empire's treaties."82However, thisanalysis ignores that the "external affairs" power is not a powerwhich is exclusively vested in the Commonwealth Parliament. Thepower is concurrently vested in the Commonwealth and State Parlia­ments.

There appears to be no suggestion in the Convention Debates thatthe word, "treaties" , was regarded as surplusage, or that the words,"external affairs" , were regarded as conferring any power to imple­ment treaties. The delegates to the Federal Conventions quite deliber­ately removed any legislative power in respect of "treaties". Somecommentators have recently pointed out that Alfred Deakin "hopedthat deletion of reference to a treaty power in an Australian federalconstitution would not leave the Australian federation with fewerpowers than Canada" .83 In fact it is difficult to see why it was neces­sary to confer power upon the Commonwealth Parliament to legis­late in respect of "The relations of the Commonwealth with theislands of the Pacific" (s.51 (xxx), Constitution) if the "externalaffairs". power enabled the Commonwealth to implement treaties oragreements with other countries. In Commonwealth v. Tasmania(The Tasmanian Dams Case)84 Dawson J. commented:

There is in the Constitution no express power conferred ... upon theParliament to implement treaties if made on behalf of this country.85

External Affairs and Treaties 135

136 Peter M. McDermott

That statement is undoubtedly correct. It is, however, suggested thats.51(xxx) is a limited grant of legislative power to implement treaties.The reference in that paragraph to "relations", it is submitted, ex­tends to all forms of agreement or arrangement, including a treaty,that the Commonwealth may have with an island nation in the Pa­cific. This provision has the potential to enable the CommonwealthParliament to jmplement regional arrangements in the Pacific with­out reliance on the external affairs power.

The fact that the Commonwealth possesses unlimited power toenter 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.86 Writing in the pages of thisJournal in 1956, Professor Geoffrey &awer referred to the vexedproblem of whether the execution of an international agreement re­quiring domestic legislation can be carried out entirely by the Com­monwealth Parliament, irrespective of the subject of the agreement,or whether the required legislation must be enacted by the State Par­liaments in those cases where the general subject of the agreementfalls outside the ordinary sphere of Commonwealth power.87 Profes­sor Sawer added that "this is a problem common to severalfederations" .88 Quick and Garran did not consider that the Com­monwealth Parliament had unlimited power to implement treaties.Those commentators considered that laws could be made to give ef­fect to treaties "so far as they concern the Commonwealth" .89 It maybe, that on a future occasion, the High Court will take into accountthat the delegates to the Australasian Federal Conventions did not in­tend to give the Commonwealth Parliament any legislative powerover "treaties" in considering the extent of the external affairspower.90 This does not have any bearing on the capacity of the Com­monwealth to enter into treaties. The matter is not only of relevanceto the authority of the decisions in Commonwealth v. Tasmania(Tasmanian Dams Case),91 Richardson v. Forestry Commission,92and Queens/and v. Commonwea/th,93 which recognise that Com­monwealth legislative power may be increased through the mecha­nism of entering into a new treaty. It also affects fundamentalassumptions underlying the decision in R. v. Burgess; ex p. Henry94in which it was recognised that the external affairs power could beused to implement treaties.

86 C.F., Attorney-Genera/for Canada v. Attorney-Generalfor Ontario (1937) A.C.326, 352 per Lord Atkin (" no further legislative competence is obtained by theDominion-from its accession to international status, and the consequent increasein the scope of its executive functions").

87 See, G. Sawer, "Execution of Treaties by Legislation in the Commonwealth ofAustralia" (1956) 2 U.Q.L.J. 297.

88 Ibid.89 See, n.3 (ante).90 In the Commonwealth v. Tasmania (Tasmanian Dams Case) (l983) 158 C.L.R. 1

at 298 Dawson J. was the only member of the High Court who mentioned that theexternal affairs power originally extended to "external affairs and treaties" .

91 (1983) 158 C.L.R. 1.92 (1988) 164 C.L.R. 261.93 (1989) 167 C.L.R. 232.94 (1936) 55 C.L.R. 608. -