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Wednesday, 25 June 1930


Senator DALY (South Australia) (VicePresident of the Executive Council) . - I lay on the table of the Senate the report of the conference on the operation of dominion legislation and mer chant shipping legislation, and also the report upon the conference by the Commonwealth representative, Sir Harrison Moore, and move -

That the reports be printed.

The Imperial Conference of 1926 declared that the dominions are " autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations." It then went on to state as principles that it was the right of the Government of each dominion to advise the Crown in all matters relating to its own legislation, and that legislation by the British Parliament should only apply to a dominion with the dominion's consent. It decided that it could notwith safety take more definite action until it had obtained expert guidance. It accordingly recommended that a committee should be set up to report on various aspects of the operation of dominion legislation, and that a subconference should inquire into the subject of merchant shipping' legislation. It was later decided that the committee and subconference should be organized as a single conference, and it met in London from the 8th October to the 4th December, 1929. The terms of reference were -

To inquire into, report upon and make recommendations concerning -

(i)   Existing statutory provisions requiring reservation of dominion legislation for the assent of His Majesty or authorizing the disallowance of such legislation.

(ii)   (a) The present position as to the competence of dominion parliaments to give their legislation extra-territorial operation; (b) the practicability and most convenient method of giving effect to the principle that each dominion parliament should have power to give extra-territorial operation to its legislation in all cases where such operation . is ancillary to provision for the peace, order, and good government of the dominion.

(iii)   The principles embodied in or underlying the Colonial Laws Validity Act, 1865, and the extent to which any provisions of. that act ought to be repealed, amended, or modified in the light of the existing relations between the various members of the British

Commonwealth of Nations as described in this report (i.e., the report of the Inter- Lmperial Relations Committee of the Conference).

To consider and report on the principles which should govern, in the general interest, the practice and legislation relating to merchant shipping in the various parts of the Empire, having regard to the change in constitutional status and general relations which has occurred since existing laws were enacted.

The conference was an advisory body, and its recommendations, contained in the report now placed before the Senate, are recommendations to the Governments of the various parts of the British Commonwealth of Nations, and as such will be considered by the representatives of those Governments at the Imperial Conference this year. The Constitutions of the selfgoverning dominions of the British Commonwealth of Nations are contained in acts of Parliament of the United Kingdom, and it is from this source that legal power exercised by the dominions under those Constitutions flows. The paramount power of the Parliament of the United Kingdom to make legislation binding on all the King's dominions exists in law, although its exercise is regulated by constitutional conventions. The implementing of the report of the Imperial Conference of 1926 resolves itself into a question of the Parliament of the United Kingdom formally renouncing the exercise of its legislative powers in respect of any or all of the dominions, except at the request of the latter. This, generally, expresses the major conclusions reached by the conference.

Taking the recommendations rather more in detail, the conference first of all pointed out that the deletion from the Australian Constitution of the provision for disallowance by the Crown of legislation passed by the Commonwealth Parliament, and reservation of legislation for theRoyal approval, are internal matters for the Australian Commonwealth itself. The conference next recommended that an act should be passed by the Parliament of the United Kingdom, with the consent of all the dominions, declaring that the parliament of a dominion has full power to make laws having extra-territorial operation. This recommendation was made . to meet the point of view of the other.- dominions, for the Commonwealth Parliament has, by its Constitution, power to make laws with effect outside the Commonwealth. Theprovisions of the Constitution with respect to external affairs, the relations of the Commonwealth with the islands of the Pacific, fisheries in Australian waters beyond territorial limits, immigration and emigration, and naval and military defence, give the Commonwealth Parliament a large measure of power in this respect. Section 5 of the Commonwealth Constitution Act declares that the laws of the Commonwealth shall be in force on all British ships whose first port of clearance and port of destination are in the Commonwealth. So far as the Commonwealth is concerned, such' an act would be subject to the Commonwealth Constitution, and would apply only to those subjects over which the Commonwealth, has jurisdiction.

The third subject which was referred to the conference for investigation, namely, the extent to which the provisions of the Colonial Laws Validity Act of 1865 should be amended or repealed in the light of the existing relations between the various members of the British Commonwealth of Nations, may be regarded as the central point of the work of the conference. The report of the Commonwealth Government's representative sums up the position in this respect, as follows: -

The general application of the principle of equality laid down by the Imperial Conference in 1920 was at once accepted, and with' the result that the unqualified paramountey of the legislation of the Parliament of the" United Kingdom must go. That involves that no future legislation of that Parliament should apply to a dominion without its consent, and, secondly, that dominion legislation should no longer be invalid or inoperative by reason of repugnancy to Imperial acts extending to a dominion. But the precise manner in which these applications of principle should be given effect to was the subject of long andanxious debate.

The conference adopted the view that the only way to give effect to the principles laid down by the 1926 Imperial Conference was to repeal the Colonial Laws Validity Act in so far as it applies to laws made by the parliament of a dominion, and recommended that legislation be enacted by . the Parliament of the United Kingdom to this effect. To guard against this purely negative solution of the problem leading to confusion. the conference recommended that this legislation shall also provide that dominion legislation shall not be held invalid on the ground that it is repugnant to the law of England or British legislation, and that the dominion parliament shall be empowered to repeal or amend a British statute, which forms part of the law of the dominion.

The conference recommended that the most desirable method of giving effect to the principle of the equality of status of the United Kingdom and the dominions, in so far as the legislative power of their respective Parliaments is concerned, is for the forthcoming Imperial Conference to place on record a constitutional convention, expressed as follows: -

It would be in accord with the established constitutional position of all members of the Commonwealth in relation to one another that no law hereafter made by the Parliament of the United- Kingdom shall extend to any dominion otherwise than at the request and with the consent of that dominion.

It is. recommended that this convention should be inserted in the recital or preamble of the proposed. ..act of the Parlia-ment of the United Kingdom referred to above. In order ,to meet practical difficulties it is recommended that this proposed act should contain a provision that no act of the Parliament of the United Kingdom shall in' future extend or be deemed to extend to a dominion unless it is expressly .declared therein that that dominion has requested and. consented to the enactment of such legislation.

The establishment of a number of parTliaments in ,the British Commonwealth of Nations with what will be in practice equal legislative authority raises the question how uniformity is to be secured with regard to the several matters as to which uniformity throughout the British Commonwealth is desirable. The succession -to the Throne, nationality, naval prize law and prize courts are the outstanding examples. The conference recommended that a constitutional convention should be agreed to by the different governments of the Empire that any alteration in the law touching the succession to the Throne or the Royal Style and Titles shall require the assent of the Parliament of the United Kingdom as well as the assent of the parliaments of all the dominions. It is suggested that this constitutional convention should be also included in the recital or preamble of the act of the Parliament of the United Kingdom referred to above.

The acquisition of equal legislative authority by the different parliaments of the British Commonwealth of Nations, and conferring on those parliaments of the power to give their laws extraterritorial force, gave rise to a discussion of the question of the nationality of British subjects. The problem which . will confront the various governments of the British Commonwealth of Nations will be that of reconciling the general rules providing for a single nationality for all British subjects with the particular rules which the parliaments of the different parts of the British Commonwealth may find it desirable to lay down in respect of the status of their own citizens. The conference did not come to any conclusions on this difficult question, which will require further examination.

The recommendations of the conference in respect of merchant shipping legislation are of a particularly technical character. . The disappearance of the paramount power of the Parliament of the United Kingdom in- respect of this subject will. give rise to questions of a somewhat special nature. The recommendations of the conference on the matters touching merchant shipping legislation are not exhaustive, and it is likely thai further consideration w.ill be required to be given to various points in connexion with them.

Finally, the conference realized that if in the future the' principle of agreement between the various members of the British Commonwealth is substituted for the paramount authority of the" British legislature, differences may arise between the Governments concerned' with regard to these agreements.

Honorable senators will remember that when Australian and other members of the British Commonwealth accepted the optional clause of the Statute of the Permanent Court last year all, except the Irish Free State, made the reservation that their acceptance did not apply to differences between themselves. Some method of settling such differences there must be, and the conference gave some consideration to the proposal for a tribunal to deal with differences between the different governments of the British Commonwealth.

What I have said will give honorable senators some idea of the many important matters dealt with in this report. Some of them affect the States as well as the Commonwealth, and it will be understood that careful examination here and further discussion at the Imperial Conference are necessary before the Government brings down detailed proposals for giving effect to them.

Debate (on motion by Senator McLachlan) adjourned.







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