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14904.

PUBLIC RECORD OFFICE

Reference :-

‛། ༴། ། ། ། །། mmimmimC.O. 885

15 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

No. 141.-.

(QUEENSLAND.)

LAW OFFICERS to COLONIAL OFFICE.

[Effect upon the Anglo-Japanese Treaty of July 16, 1894, of the entry of Queensland. into the Commonwealth of Australia.]

Sra,

Royal Courts of Justice,.

April 16, 1902. WE were honoured with your commands, signified in Mr. H. Bertram Cax's letter of the 21st ultimo, stating that he was directed by you to acknowledge the receipt of our Report of the 11th March* upon certain questions which had arisen in connection with the Treaty of the 16th July, 1894, between this country and Japan-to which the Government of Queensland adhered subject to the provisions of the Protocol of the 16th March, 1897.

That, with reference to paragraph 2 (b) of our Report, Mr. Cox was to suggest the following considerations in regard to the apparent conflict between the Immigration Restriction Act of the Parliament of the Commonwealth of Australia and the provisions of the Treaty.

That it seemed to you that sections 1 and 3 of the Treaty might be construed in the light of its immediate purpose. That it was a Treaty of Commerce and Navigation, and that its provisions referred primarily to commercial dealings between British and Japanese subjects. That its title, the use of such phrases as the words " for purpose of residence or commerce " in Article IV., and the whole purport of Article III, and the stipulations of Articles V. to XVII. inclusive, might be taken to indicate that it had no reference to anything but the promotion of Anglo-Japanese commerce, and might support the contention that its scope was restricted to the facilitating and. promoting trade, com- merce and navigation between England and Japan, and to the objects immediately subsidiary and incidental to that purpose. That Article I. of the Protocol of 16th March, 1897, might be treated not as an exception to the provisions of the Treaty but as explanatory. That the rights of entry and residence which the Treaty conferred might, if that view were tenable, be held to be conditioned by the intention with which they were granted, and, in that case, could not be construed as extending to immigration, which was essentially the entering of a foreign country for the purpose of settling there and becoming a permanent member of the community.

That, on the other hand, it was precisely that kind of entry and residence uncon- nected with trade, and contemplating permanent settlement, which was the subject of the Immigration Restriction Act. That for instance the provision in section 5 (2) that an immigrant might, at any time within one year of his entry, be asked to comply with certain requirements of the Act implied that the ordinary immigrant would or might remain more than a year, and in fact permanently; and that the same inference might be drawn from section 3 (m) which dealt with the case of the wife and children of an immigrant. That such entry and residence, when the person entering was accompanied by his wife and family and proposed to remain for an indefinite period, was of a totally different nature from the entry and residence which was contemplated in the Treaty of 1894. That the right to entry and residence under the Treaty might, it was submitted, be held not to be a right to "immigrate " in the proper sense, and not therefore infringed by the Commonwealth Act.

That that view was to some extent supported by the fact that the Japanese Govern- ment themselves had not regarded the institution of the European language test as an infraction of the Treaty. That the Colony of Natal adhered to the Treaty at the end of 1895; but that nevertheless in 1897, after Natal had accepted the contingent obligation thereby imposed on it, the Colonial Legislature passed an Immigration Restriction Act which set up a test similar in principle to that embodied in the Commonwealth Act. That, so far from protesting against the Natal Law as an infraction of the Treaty, the Japanese

• No 133.

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