42400
PUBLIC RECORD OFFICE
19
C.O.8
Reference :-- .
.885
16 PUBLIC RECORD OFFICE, LONDON
We have taken the matter into our consideration, and in obedience to your commands have the honour to
Report
That in our opinion the confirmation of a death sentence is legally valid if signed by only two Judges of the Court of Appeal.
The Right Honourable
Sir Edward Grey, Bart., M.P.,
&c., &c..
&c.
We have, &c.,
JOHN L. WALTON W. S. ROBSON.
No. 89.
(AUSTRALIA.)
LAW OFFICERS to COLONIAL OFFICE.
[Points connected with the effect of the Constitution of the Commonwealth on Treaties to which the Australian States had adhered before confederation and on the right of the States to adhere to future Treaties.]
MY LORD,
Royal Courts of Justice,
December 2, 1907: We were honoured with Your Lordship's commands, signified to us in Mr. Bertram Cox's letter of the 26th June last, stating that he was directed to request that we would be so good as to favour Your Lordship with our opinion on certain points which had arisen in connection with the effect of the Constitution of the Commonwealth of Australia on treaties to which the Australian States had adhered before confederation, and on the right of the States to adhere to future treaties.
That our predecessors in reports of the 11th of March and the 16th of April, 1902,* * advised that despite the constitution of the Commonwealth the Treaty with Japan of 16th July, 1894, was still binding on the State of Queensland, which had adhered to it before confederation. That our predecessors had before them the fact that the Attorney-General of the Commonwealth had advised that the treaty had been terminated by the entry of Queensland into the Commonwealth, but that the grounds on which Mr. Deakin based that opinion were not then known to the Colonial Office. That during his recent visit to this country Mr. Deakin supplied a copy of the reasons for his opinion and also a copy of an opinion of the present Attorney-General dealing with the same matter. That it would be seen that the view held by Mr. Deakin rested on the analogy of the entrance of sovereign states into a confederation, and that while Your Lordship was advised that there was a considerable body of opinion to the effect that on the entrance of a State into a confederation all treaties or at least all treaties which conflicted in any way with the confederation-ipso facto terminated. That Your Lordship entertained considerable doubt whether this argument had any application to the case of the federation of a group of colonies. That, as pointed out by our predecessors, treaties were made by His Majesty on behalf of his dominions, and the mere change of the internal administration of portions of those dominions could hardly be put forward as a valid reason for holding that a treaty entered into on behalf of part of those dominions terminated on confederation.
That at the same time there arose the question' whether when treaties were concluded in future with foreign Powers, adherence must be made, if at all, on behalf of the Commonwealth as a whole, or whether any State might adhere separately. That our predecessors in a report of the 11th July, 1901,† advised that the Dominion of Canada could only adhere to the Convention between the United Kingdom and the United States of America relative to the disposal of real and personal property on the terms of New Brunswick being bound by it as well as the other provinces, from which it would appear that in their view no province of the Dominion could adhere separately to a treaty. That that report, however, was not conclusive for the case of the Australian States, since the terms of confedera- tion were in the case of Canada and Australia somewhat different. That in the case of Canada the Dominion Parliament was empowered by Section 132 of the British North America Act, 1867, to perform the obligations of Canada or of any province arising under treaties, so that the provinces had clearly no right to contract treaty obligations which were matters for the Dominion. That the Australian Constitution had no such provision, although the Commonwealth Parliament had. inter alia, power to legislate regarding external affairs (Section 51 (XXIX) of Constitution Act, 1900), but that that power was apparently merely shared with the States, though a Commonwealth Law could override a State Law.
That in those cases in which the Commonwealth had paramount legislative authority, whether exclusive or concurrent, Your Lordship would suggest that adhesion to treaties should be notified on behalf of the Commonwealth and on the advice of the Commonwealth Government alone. That the Commonwealth was
25
• Nos. 133 and 141 in Vol. VI.
W: 97 1/08 D & S E 30581
† No. 90 in Vol. VI.
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