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Published online by Cambridge University Press: 07 November 2014
The opinion of the Judicial Committee of the Privy Council in Attorney-General for Canada v. Attorney-General for Ontario, dealing with the cornpetence of the Dominion Parliament to implement international labour conventions, has received widespread comment not only in Canada and in England but particularly in Australia and even in the United States. The Commonwealth of Australia, like Canada, suffers certain disabilities peculiar to federations, because there, too, the power to legislate on conditions of labour rests in general with the Legislatures of the several states and not with the central Parliament. It is interesting, therefore, to compare Canadian and Australian procedures with respect to international labour conventions.
The Commonwealth constitution contains no exact parallel either to section 132 of the British North America Act, giving to the Dominion express power to perform obligations of Canada arising under treaties made between the British Empire and foreign countries, or to the residuary powers of the Dominion under section 91. The Commonwealth Parliament is endowed with the power of legislation only upon certain enumerated subject-matters, the residuary powers remaining with the states. Somewhat comparable to section 132, however, is the provision in section 51 of the Commonwealth of Australia Constitution Act that the Parliament of the Commonwealth shall have power “to make laws for the peace, order and good government of the Commonwealth with respect to … (xxix) External Affairs”. In regard to the meaning of this provision a Commonwealth communication of February 26, 1909, was addressed to the secretary of state for the colonies, informing him that the law advisers of the government had expressed the view that the Commonwealth Parliament possessed the power under section 51 (xxix) “to make such legislative provision as is necessary to secure the fulfillment of treaty obligations, and that accordingly the powers of the Commonwealth Parliament are substantially identical with those of Canada”. This interpretation had been reaffirmed by Justice Evatt in 1933.
1 [1937] A.C. 326.
2 See s. 107 of the Commonwealth Constitution, 63 and 64 Vict., c. 12.
3 63 and 64 Vict., c. 12.
4 Quoted in Commonwealth of Australia, Parliamentary Debates, 1 Edw. VIII, vol. 150, p. 1283.Google Scholar
5 Jolly v. Mainka, (1933) 49 C.L.R. 242, 287.
6 International Labour Organisation, Official Bulletin, vol. XX, no. 3, 08 15, 1935, p. 71,Google Scholar Draft Convention (no. 47) Concerning the Reduction of Hours of Work to Forty a Week. On May 6, 1936, Mr. Curtain, leader of the Opposition in the House of Representatives, introduced a motion of censure on the government for failure to promote the adoption of the forty-hour week in accordance with the convention. For this motion and the debates upon it see Commonwealth of Australia, Parliamentary Debates, 1 Edw. VIII, vol. 150, pp. 1277-1331 and 1357–1426.Google Scholar
7 Ibid., p. 165.
8 International Labour Conference, Report of the Director, 1925, p. 246.Google Scholar
9 See Commonwealth of Australia Gazette, 1931, p. 76,Google Scholar Orders-in-Council, Jan. 29, 1931.
10 Ibid., p. 253, Order-in-Council, March 5, 1931.
11 Commonwealth of Australia Gazette, 1931, p. 1820.Google Scholar
12 The subject of ratification of international labour conventions by Australia is reviewed by Senator Sir George Pearce, minister for external affairs, in Parliamentary Debates, 1 Edw. VIII, vol. 150, p. 64.Google Scholar
13 See Parliamentary Debates, 1 Edw. VIII, vol. 151, p. 564,Google Scholar statement in the House of Representatives, Sept. 25, 1936.
14 See International Labour Office, Official Bulletin, vol. XX, no. 1, 04 30, 1935, p. 22 Google Scholar; ibid., vol. XXI, no. 2, July 20, 1936, p. 102. See also Commonwealth of Australia, Parliamentary Debates, 1 Edw. VIII, vol. 150, p. 1375.Google Scholar
15 I take this point from Professor Bailey, K. H., “Australia and International Labour Conventions” (Australian and New Zealand Society of International Law, Proceedings, vol. I, 1935, p. 105).Google Scholar
16 Ibid., p. 121.
17 See Commonwealth of Australia, Parliamentary Debates, 1 Edw. VIII, vol. 150, pp. 1277–1331.Google Scholar
18 Moore, W. Harrison, The Constitution of the Commonwealth of Australia (ed. 2, Melbourne, 1910), pp. 461–2.Google Scholar
19 For documentary examples of the procedure followed by the Commonwealth government with respect to decisions of the International Labor Conferences see I. L. O., Official Bulletin, vol. XXII, no. 2, 07 15, 1937, pp. 71–4.Google Scholar Draft conventions and recommendations are presented to the Parliament of the Commonwealth. They may also be referred to the state governments for any legislative or other action which they may see fit to take thereon. The states are at the same time requested to furnish any information as to the extent to which any of the provisions of the instruments referred to them are covered by existing legislation, and as to any action contemplated in connection with them. Any information thus obtained from the states is communicated to the secretary-general of the League.
20 Yet it must be noted that the judgment of the Judicial Committee of the Privy Council in the case of Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C. 326, is not binding upon the High Court of Australia. Section 74 of the Commonwealth constitution provides: “No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon appeal shall lie to Her Majesty in Council on the question without further leave.” This certificate is seldom granted. The High Court, feeling itself bound by its own earlier decisions, may grant leave to appeal to the Judicial Committee if a reversal of the old decision is regarded as desirable. In the recent case of James v. Commonwealth, (1938) 52 C. L. R. 570, for example, the High Court of Australia “felt itself bound by its past decisions to give a decision which it thought wrong in principle, and at the same time expressed a hope that the Privy Council (whose aid in constitutional cases it had not been in the habit of welcoming) would reverse it on appeal” ( Hancock, W. K., Survey of British Commonwealth Affairs, London, 1937, p. 565 Google Scholar). The Judicial Committee did reverse the decision (James v. Commonwealth, [1936] A. C. 578).
21 (1936) 55 C.L.R. 608.
22 Australia, Commonwealth Acts, vol. XVIII, 1920, p. 159.Google Scholar
23 S. 4.
24 Britain, Great, Treaty Series, 1922,Google Scholar no. 2, Cmd. 1609. This is the same convention as that under which the Dominion of Canada adopted legislation for the control of aerial navigation and which was dealt with by the Judicial Committee of the Privy Council in the case In re Regulation and Control of Aeronautics in Canada, [1932] A.C. 54.
25 Article 34.
26 Article 40.
27 Imperial Conference, 1926, Summary of Proceedings (Cmd. 2768 of 1926), pp. 22–3.Google Scholar
28 The Royal and Parliamentary Titles Act, 1927, 17 Geo. 5, c. 4.
29 One of the latest instances in which His Majesty served as the high contracting party for all the members of the British Commonwealth was in the Convention for the Abolition of Capitulations in Egypt, signed May 8, 1937 (Cmd. 5491).
30 This legislation was adopted prior to ratification of the convention.
31 While readily agreeing that the first part of section 4 of the Air Navigation Act was a valid exercise of the power conferred in section 51 (xxix) of the constitution, Justices Evatt and McTiernan deemed it “impossible to regard the Commonwealth regulations as being regulations made ‘for the purpose of carrying out and giving effect‗ to the convention. The departures from the purpose and scheme permitted of carrying out the convention are so numerous that they evidence a different purpose” ((1936) 55 C.L.R. 608, at p. 695). As Justice Dixon declared, “wide departure from the purpose [of the convention] is not permissible, because under the colour of carrying out an external obligation the Commonwealth cannot undertake the general regulation of the subject matter to which it relates” (ibid., at pp. 674-5). Chief Justice Latham's position accords with these statements (ibid., at p. 645).
32 The meaning of section 51 (xxix) of the constitution empowering the Commonwealth Parliament to make laws with respect to “external affairs” has been interpreted also in McKelvey v. Meagher, (1906) 4 C.L.R., at p. 286; Attorney-General of New South Wales v. Collector of Customs for New South Wales, (1908) 5 C.L.R., at p. 842; Roche v. Kronheimer, (1921) 29 C.L.R., at pp. 338, 339; Victorian Stevedoring and General Contracting Co. Pty. Ltd., and Meakes v. Dignan, (1931) 46 C.L.R., at p. 122; and Jolley v. Mainka, (1933) 49 C.L.R., at pp. 284-8.
33 (1936) 55 C.L.R. 608, at pp. 612-3.
34 Ibid., at p. 643.
35 Ibid., p. 687.
36 A large number of publicists are cited by Justices Evatt and McTiernan in support of their opinion. See, e.g., Jenks, C. Wilfred in Journal of Comparative Legislation, ser. 3, 11, 1934, Feb., 1935 Google Scholar; Hudson, Manley O. in International Conciliation, 1935, pp. 129–30Google Scholar; K. H. Bailey, “Australia and International Labour Conventions” and Staricoff, Joseph, “Australia and the Constitution of the International Labour Organisation” (International Labour Review, vol. XXXII, 11, 1935, pp. 577–609).Google Scholar The latter writer draws the same conclusion as to the powers of the Canadian Parliament, a conclusion which the Judicial Committee of the Privy Council has since declared false.
37 Although, owing to the differences between the Australian constitution and the constitution of the United States, American decisions are not regarded as authoritative in Australia, yet it is certainly true that the Australian justices are not unaffected by the reasoning of Mr. Justice Field in Geofroy v. Riggs, (1890) 133 U.S. 258, at p. 267, and of Mr. Justice Holmes in Missouri v. Holland, (1920) 252 U.S. 416. Mr. Justice Field says that the treaty power does not extend “so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter without its consent. … But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country.”
38 Justices Evatt and McTiernan, 55 C.L.R. 608, at p. 696.
39 With Arnold D. McNair as its reporter.
40 International Labour Conference, twenty-third session, Geneva, 1937, Summary of Annual Reports under Article 22 of the International Labour Organisation, appendix (bound separately), report of the Committee of Experts on the Application of Conventions.
41 Ibid.
42 Attorney-General of Canada v. Attorney-General of Ontario, [1937] A.C. 326.
43 25 and 26 Geo. 5, c. 42.
44 The British North America Act, 1867, 30 and 31 Vict., c. 3.
45 Commonwealth of Australia Constitution Act, 1900, 63 and 64 Vict., c. 12.
46 25 and 26 Geo. 5, c. 42, s. 100(3).