§ 214. “External Affairs.”

SIGNIFICANCE.—Considerable speculation has been already indulged in by constitutional writers as to the meaning and possible consequences of this grant of power over external affairs. It may hereafter prove to be a great constitutional battle-ground. Mr. A. H. F. Lefroy, the well-known Canadian authority, says “it looks as though the Imperial Parliament intended, so long as the Commonwealth Bill should remain unrepealed, to divest itself of its authority over external affairs of Australia and commit them to the Commonwealth Parliament.” (Law Quarterly Review, July, 1899, p. 291.) Professor W. Jethro Brown (University of Tasmania) describes the power to legislate upon external affairs as a new departure of doubtful significance. (Law Quarterly Review, January, 1900, p. 26.) Professor W. Harrison Moore (University of Melbourne) is of opinion that this power is a somewhat dark one, and suggests the view that it may be used “to establish the doctrine that, in the Courts of the Commonwealth, Commonwealth laws, like Acts of the Imperial Parliament, cannot be impugned on the ground that they reach beyond local affairs; in other words, the rule against laws ‘intended to operate exterritorially’ will within the Commonwealth be a rule of construction only, and not a rule in restraint of power.” (Law Quarterly Review, January, 1900, p. 39.)

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. There is nothing in it indicative of an intention of the Imperial Parliament to divest itself absolutely of all authority over the external affairs of Australia and to commit them exclusively to the Parliament of the Commonwealth, any more than it divests itself absolutely of any other of its supreme sovereign powers. The same section which grants legislative power to the Federal Parliament over “external affairs” grants legislative power over naval and military defence, copyright, coinage, influx of criminals, naturalization, and other matters. If there is any final abandonment of Imperial authority over one of these matters there must be a similar abandonment with respect to all. Yet in view of the application of the Colonial Laws Validity Act to the interpretation of the Constitution it could not be successfully contended that any such divestment is intended. The other view, as we understand it, is that this grant of power may be used to give extra-Commonwealth operation to laws of the Federal Parliament founded on other grants; in other words, that a Federal law relating, say, to immigration or naturalization, and giving an extra-Commonwealth effect to some of its provisions, cannot be impugned, since the Federal Parliament has jurisdiction over “external affairs.” That view also, it is submitted, is not tenable. Sub-section 29 contains a distinct and independent grant of power. It is not intended and it cannot be used to enlarge, or qualify, other distinct and independent grants.

The expression “External Affairs” is apparently a very comprehensive one, but it has obvious limitations. As already pointed out, it can hardly be intended to confer

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extra-territorial jurisdiction; where that is meant, as in other sub-sections, it is distinctly expressed. 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.

EXTERNAL REPRESENTATION.—From the earliest period of colonial history, British colonies and settlements have been represented in England by Agents residing in London, whose duties were to convey to the home Government the views of the colonists on local questions; to give information and make suggestions concerning the defences of the colonies against foreign aggression; to encourage emigration from the mother country into the colonies; and to advance the trading and commercial interests of the communities on whose behalf they were employed. The designation “Agent-General” is said to have been first applied to the representatives of the New England colonies, prior to the declaration of American Independence. In modern times the duties of the office have been considerably enlarged, and its value, dignity, and usefulness have been correspondingly enhanced. Agents-General have had to superintend the conduct of important financial operations; to negotiate the flotation of public loans, and to make all the incidental arrangements. They have had to launch gigantic contracts, involving millions of money. In controversies that have arisen between the colonies and the Imperial Government on constitutional, commercial, postal, telegraphic, naval, military, and diplomatic questions, they have had to act as trusted and responsible envoys on behalf of their respective colonies.

Indeed the Agent-General's Department for each colony is now so much used, and is found so effective as a medium of official inter-communication, that a considerable amount of important work, which was formerly required to be done through the Governor, is now performed through the less formal but prompter agency. This expansion and differentiation of functions has developed without any material alteration in constitutional law, and without any desire or intention to supplant the Governor as the organic connecting link between the mother country and her colonies. The Governor still discharges those duties imposed upon him by his commission and by the Royal instructions. The Agent-General's office is used merely as a subsidiary means of communication and representation, and especially is it entrusted with matters springing out of the wider relations and increasing business responsibilities of the colonies. As such, it is unhampered by formality, and is extremely valuable by reason of the frank, confidential and friendly relations which are now established between the Agent-General for each colony and the Secretary of State for the colonies.

Another important feature in connection with the growth of the colonial Agency-General is this—that of late years there has been an organized co-operation among the officers representing the different colonies, in every matter of common concern and common interest, and that spirit of co-operation has so welded them together that they now practically constitute a united deputation, present a solid and unbroken front, and speak with one voice to the Secretary of State for the colonies on all questions which they are authorized by their principals to discuss.

Some years ago a discussion took place in official circles as to the expediency of changing the title and improving the status of the Agent-General. In an official communication to the Government of New Zealand dated 12th February, 1879, Sir Julius Vogel, the Agent-General for that colony, suggested that Agents-General should be called Resident Ministers in England for their respective colonies. An Agent-General's rank, he thought, should be equal to that of an ordinary Minister of the Crown, but, like an Ambassador, without the necessity of retirement with a government; he should be in the position of an Ambassador, making due allowance for the fact that he

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represented a colony forming an integral part of the Empire, and not an independent State. Sir Archibald Mickie, at one time Agent-General for Victoria, was of opinion that the designation “Agent-General” was a mistake, as it led to misapprehension of the true nature of his position. On several occasions he was mortified to find that some people in England were under the impression that an Agent-General was the head of a general commercial agency of a most enlarged description. On one occasion, it is said, he ordered the words “Agent-General” to be inscribed in gold letters on his office blinds. The painter substituted the words “General Agent,” believing that that was the correct and intended phrase. (Todd's Parl. Gov. in Col. 2nd ed. 236.)

In November, 1879, the Government of Canada appointed Sir Alexander Galt to represent the Dominion in England. With the consent of the Imperial Government his appointment carried with it a more definite position, larger powers, and the title of “High Commissioner and Resident Representative Agent of the Dominion of Canada in the United Kingdom.” The principal duties annexed to the office were attention to finance, immigration, trade and commerce, naval and military affairs, territorial questions, and diplomacy. (Todd's Parl. Gov. in Col. 2nd ed. p. 235.)

The subjoined statement shows the expenditure in connection with the offices of Agent-General for the various Australian colonies:—

Agency-General Departments.


—  New South Wales.  Victoria.  South Australia.  Western Australia.  Queensland.  Tasmania. 
Ordinary Maintenance  £5,664  £3,500  £4,987  £4,008  £2,758  £1,095 

The Federal Parliament will not have power to abolish the separate Agencies-General of each colony, but it will be able to create a new department similar to that of the High Commissioner for Canada, and to authorize the appointment of a High Commissioner for Australia, who would, in time, necessarily absorb and perform all the important work relating to public finance, trade and commerce, post and cable, naval and military defence, diplomatic representation and inter-communication, now done by the several Agents-General. The latter would be denuded of their prestige and most of their duties, and there would be no necessity or justification for the continuance of the old system. The Agent-General's office for each State, if not quite abolished, could be converted into that of a “General Agent”—a term so repugnant to the sensibilities of some of its past occupants.

COMMERCIAL TREATIES.—It is a recognized principle of international law that sovereign States only can enter into commercial treaties and conventions one with another; that one sovereign State will not enter into such a compact with a colony or dependency of another, except with the sanction or through the intervention of the sovereign State to which the colony and dependency belongs; that the privileges and advantages of such a compact do not extend to the colonial dependencies of the contracting powers, unless they are expressly named or provided for in the agreement. (Todd's Parl. Gov. in Col. 2nd ed. p. 265.)

It has been the practice of the Imperial Government, in entering into these treaties, to make them applicable to the British colonies, possessions and dependencies enjoying responsible government, only with the consent of the colonial legislatures.

“In 1877 the Italian and French governments, having notified the British Government of their intention to terminate the existing commercial treaties between themselves and Great Britain, and propositions being entertained for the negotiation of fresh treaties, Her Majesty's Secretary of State for Foreign Affairs communicated with

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the Colonial Secretary in reference to the inclusion of the colonies therein. In reply, Lord Carnarvon intimated the propriety of consulting the governors of colonies possessing responsible government in reference to the terms of the proposed treaties before deciding upon the same. He accordingly addressed a circular despatch to the principal colonial governments, transmitting a copy of a draft article, for insertion in future treaties of commerce, applying the same to the British colonies, but with the understanding that no treaty with a foreign power shall include or extend to any British colony which may desire to be exempted from the operation of the same. This article is as follows:—‘The stipulations of the present treaty shall be applicable to the colonies and foreign possessions of the two high contracting parties named in this article.’ (Here insert the names of the colonies, &c., to be included in the treaty.) They ‘shall also be applicable to any colony or foreign possession, &c., not included in this article upon the conclusion by the two high contracting parties of a supplementary convention to that effect,’ within a specified time after the ratification of such treaty.” (Todd, Parl. Gov. in Col. 2nd ed. p. 266.)

“In a new Anglo-French treaty, agreed upon in 1882, the British colonies were not included. This led to grave remonstrances on behalf of certain of the principal colonies. In reply the Earl of Kimberley (Colonial Secretary) intimated that the French government were unwilling that the colonies should participate in the advantages of the new tariff arrangements, because of the high duties placed on the importation therein of French goods, and because of ‘the customs autonomy of some of the colonies, and the inability of Her Majesty's government to bind them.’ In 1880 and 1881 correspondence passed between Sir A. T. Galt, on behalf of Canada, and the colonial and foreign offices, which resulted in the Imperial Government consenting that the Government of Canada should hereafter be relieved from the obligation of any new treaties with foreign powers to which objection was taken; that Canada should have the option of acceptance or refusal.” (Id pp. 267–8.)

NEGOTIATION OF COMMERCIAL TREATIES.—From time to time the Governments of British colonies have endeavoured to induce the Imperial Government to modify the rule according to which the negotiation of treaties with foreign powers should be conducted by ambassadors accredited by the Crown and responsible to the British Parliament, and to concede to the colonies the right to actively participate in the conduct of such negotiations, so far as they relate to commercial matters in which they are specially interested. In the years 1871–3 a correspondence took place between the Australian Governments and the Imperial Government with reference to a proposal that the colonies should be allowed to make reciprocal arrangements with foreign States. The Imperial Government refused to waive the prerogatives and obligations of the Crown in its international relations, but, as a concession, it agreed to secure the passage of an Act through the Imperial Parliament allowing the Australian colonies to establish intercolonial commercial reciprocity. The Australian Colonies Duties Act, 1873, gave full power to each of the colonies concerned to make laws imposing or remitting duties, whether differential or preferential or otherwise, for or against one another. But it retained the prohibition against the imposition of differential duties on goods imported into the colonies from foreign countries, or from Great Britain. It also forbade the levying of duties upon articles imported into Australia for the use of the Imperial army or navy, and the levying or remitting of any duty contrary to or at variance with any existing treaty between Her Majesty and any foreign nation.

The Government of Canada, however, continued to press its claim to direct participation in the conduct of negotiations for commercial treaties, and gradually the right was acknowledged and conceded. In 1871 Sir John A. Macdonald, the Premier of Canada, was appointed one of the plenipotentiaries to watch and represent the interests of Canada in negotiations with the United States in reference to trade, commerce, and fisheries.

In 1874 the Imperial Government agreed to allow Senator George Brown, of Canada, to be associated with the British Minister at Washington, in his negotiations with the Government of the United States for a treaty to promote reciprocal trade relations between Canada and the United States. It was, however, subject to the understanding that the Canadian Representative should not act independently, but that propositions made by the Government of Canada should be previously submitted to the Secretary of

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State for the Colonies. A draft treaty was agreed to by the British, Canadian, and American Commissioners, and was recommended for ratification. It was approved by the British Government, but failed to secure the sanction of the American Senate.

In 1879 the Imperial authorities permitted Sir A. Galt, as representing the Canadian Government, to share in the conduct of negotiations for improved commercial intercourse between Canada, France, and Spain. (Todd's Parl. Gov. in Col. 2nd ed. 272.) In 1883, and again in 1888, Sir Charles Tupper, as High Commissioner, was allowed to act as co-plenipotentiary in association with the British Ambassador in conducting commercial negotiations with Spain. In 1888 he was allowed to act in a similar capacity in negotiating with the United States. Sir Charles Tupper was similarly privileged in 1892–3 in assisting to discuss proposals respecting a reciprocal customs tariff arrangement between France and Canada. (Todd's Parl. Gov. in Col. 2nd ed. 268.)

In 1890 permission was given to the Governments of the West Indian colonies to send delegates to advise the British Minister at Washington on commercial questions and proposed reciprocal trade between those Islands and the United States. (Todd's Parl. Gov. in Col. 2nd ed. p. 273.)

These precedents serve to illustrate the way in which the power given to the Parliament of the Commonwealth to deal with “external affairs” may be exercised. It may pass laws authorizing 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.

INTERNATIONAL EXTRADITION.—Extradition is the surrender or delivery of fugitives from justice by one sovereign State to another. It is justified by the principle that all civilized communities have a common interest in the administration of the criminal law and in the punishment of wrongdoers. As, however, it involves an invasion of the right of sanctuary and asylum generally extended, in past ages, by humane and benevolent governments to refugees and exiles from countries ruled by despots, extradition, where agreed to, is surrounded with safeguards and discriminating exceptions. Extradition is a sovereign act. It can only be done at the will of the sovereign government. A colony or dependency of an empire, such as ours, could not of its own accord agree to surrender criminals to a foreign State. The right to do so is not included in the ordinary police power of a colony or dependency; the police power relates only to internal concerns. Extradition involves intercourse with a foreign State, and it can only be carried into execution by the treaty-making authority. (Holmes v. Jennison, 14 Pet. 540, 569–574. Baker, Annot Const. p. 162.)

Extradition, where it is practised, is therefore generally founded on treaty between two sovereign States; such treaty being, in the British Empire, ratified and enforced by an Act of the Imperial Parliament, whilst in the United States a treaty made by the President and ratified by a majority of three-fourths of the Senate has the force of law. All recent extradition treaties between the British Government and foreign States are made applicable to the colonies and foreign possessions of the two high contracting parties.

The Imperial Extradition Act (1870), 33 and 34 Vic. c. 52, consolidated the law then in force relating to the apprehension and surrender to foreign States of fugitive offenders. It provides that where an arrangement has been made by Her Majesty with any foreign State, respecting the surrender to such State of any fugitive criminals, Her Majesty may, by Order in Council, direct that the procedure and machinery of the Act should apply in the case of such foreign State: that Her Majesty may limit the operation of the Order to fugitive criminals in specified parts of Her dominions, and render it subject to such conditions, reservations, and exceptions as may be deemed expedient. The schedule to the Act contains a list of the crimes for which a suspected offender may be surrendered, subject to the restrictions that no fugitive shall be

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surrendered to a foreign State (1) for an offence of a political nature, or (2) unless provision is made by the law of that State that he shall not, when surrendered, be detained or tried in that State for any other offence committed prior to his surrender. The Act, when applied by Order in Council, is made to extend to every British possession, in the same manner as if, throughout the Act, the British possession were substituted for the United Kingdom or England, as the case may require, but with the following modifications:—

  • (1.) The requisition for the surrender of a fugitive criminal who is in or suspected of being in a British possession may be made to the Governor of that British possession by any person recognized by that Governor as a consul-general, consul, or vice-consul, or (if the fugitive criminal has escaped from a colony or dependency of the foreign State on behalf of which the requisition is made) as the Governor of such colony or dependency:
  • (2.) No warrant of a Secretary of State shall be required, and all powers vested in or acts authorized or required to be done under this Act by the police magistrate and the Secretary of State, or either of them, in relation to the surrender of a fugitive criminal, may be done by the Governor of the British possession alone.
  • (3.) A judge of any court exercising in the British possession the like powers as the Court of Queen's Bench exercises in England may exercise the power of discharging a criminal when not conveyed within two months out of such British possession.

“It is under the Imperial Act of 1870 that French escapees from the French settlement of New Caledonia are dealt with… Upon receipt of a requisition from the consul of France requiring the extradition of a person supposed to be in the colony, accompanied by proof of the conviction of the person to be dealt with of an extradition crime, and upon production of an affidavit stating that it is believed he is at large in the colony, the governor, acting according to the powers given in England, issues his warrant for the apprehension of the accused. Upon the arrest being made, the prisoner is brought before the governor, who takes evidence upon oath as to the conviction of the accused of a crime for which he may be extradited, and of his sentence not having expired, and if satisfied upon these matters commits the prisoner to Darlinghurst gaol, &c.; the further proceedings being as prescribed by the Act of 1870.” (Legal Year-Book of Australasia, Article by W. J. Williams, Crown Solicitor for New South Wales.)

It is provided by the Extradition Act of 1870, s. 18, that where by any law or ordinance, made by the legislature of any British possession, provision is made for carrying into effect within such possession the surrender of fugitive criminals who are in, or suspected of being in, such British possession, Her Majesty may, by the Order in Council applying the Extradition Acts in the case of any foreign State, or by any subsequent Order, either (1) suspend the operation of the Act or any part thereof, within any such British possession, so far as it relates to such foreign State, and so long as such law or ordinance continues in force there; or (2) direct that such law or ordinance, or any part thereof, shall have effect in such British possession with or without modifications and alterations. Partly by virtue of this power and partly by the British North Am. Act, 1867, sec. 132, the Imperial Extradition Acts are suspended in Canada during the continuance of the Canada Extradition Act, 1877, and Acts amending the same. With respect to extradition procedure generally and the preliminary judicial investigation as to the criminality and identification of the fugitive, necessary in order to give effect to extradition treaties, recourse is had, in Canada, to the Canadian Act of 1877 as amended by subsequent legislation. (Todd's Par. Gov. Col. 2nd ed. p. 290.) Similarly, the Commonwealth being a British possession within the meaning of the Imperial Extradition Act, the Government of the Commonwealth will, no doubt, hereafter contend that all negotiations and proceedings for the enforcement of extradition treaties entered into by Great Britain with foreign powers shall be conducted under uniform federal legislation, passed partly pursuant to the power vested in the Federal Parliament by this sub-section and partly pursuant to power conferred by section 20 of the Imperial Act. Indeed, it would appear from the definition of the term “legislature” of a British possession, contained in section 26 of the Imperial Act,

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that the Federal Parliament will have exclusive jurisdiction to exercise the power conferred by section 20, since where there are local legislatures, as well as a central legislature, “legislature” means the central legislature only. When such legislation is adopted, requisitions for the surrender of fugitive criminals, within the limits of the Commonwealth, will probably have to be made through the Governor-General of the Commonwealth instead of through the Governor of the State in which they may be found.

51. (xxx.) The relations of the Commonwealth with the islands215 of the Pacific:

HISTORICAL NOTE.—This sub-section dates back to the “Convention” of 1883, when the Federal Council Bill was drafted. Mr. Samuel Griffith's resolution in favour of a Federal Council proposed that its legislative power should comprise “Matters affecting the relations of Australasia with the islands of the Pacific,” and this power was accordingly given by the Federal Council of Australasia Act, 1885 (see p. 111, supra). The Council, however, never attempted to exercise this power. The sub-clause was afterwards included in the Bill of 1891, and in the Adelaide draft of 1897. At the Melbourne session there was a short discussion whether the sub-clause might be incorporated with the preceding one, “External affairs.” (Conv. Deb., Melb., pp. 30–1.)