Punching Within Its Constitutional Weight Class: The Australian Delegation at the Paris Peace Conference of 1919

Introduction

Later reflecting on his time at the Paris Peace Conference of 1919, Prime Minister Hughes remarked that ‘[e]veryone at the conference tried to get something for his country.’[1] Not to be excluded from that category, Prime Minister Hughes engaged in a slew of post-World War I negotiations characterised by a previously untrammelled assertion of Australia’s interests in the international sphere. With the assistance of a small cadre of officials (including Sir Joseph Cook and Robert Garran),[2] Billy Hughes won his bid for Australian control over the former German territory of New Guinea,[3] near single-handedly blocked Japan’s attempt to insert a racial equality clause into the League of Nations mandate[4] and perhaps most significantly, exercised newly granted permission from the Imperial Government to sign the Treaty of Peace.[5]

This essay focuses on the live question of the constitutionality of those activities, for the Australian Delegation had traversed uncharted territory in respect of the executive’s engagement with external affairs without statutory authorisation. To answer this question of whether the Australian Delegation ‘punched above its own weight’, this essay is comprised of three sections. The first section considers the legal character of the obligations incurred by Australia at the Paris Peace Conference.  The second section searches for a source of executive power to incur these obligations. And finally, after concluding that s 61 of the Constitution supported the Australian Delegation’s activities, the third section considers the modern legal and constitutional position.

I.  Did Australia Incur Any International Legal Obligations?

            The question anterior to the constitutionality of the Australian Delegation’s activities is whether its acts were effective at international law; if their acts were merely symbolic, no question of the existence of non-statutory executive power to accept rights and obligations conferred by treaty arises. On that basis, this section is comprised of two parts. The first addresses the question of what Sir Robert Borden called the ‘doubtful advantage of a double signature’[6] on the Treaty of Peace.[7] The second determines whether Australia acquired New Guinea at the Paris Peace Conference.

A.  Treaty of Peace

            The ‘doubtful advantage of a double signature’ aphorism refers to a construction of the Treaty of Peace that assigns no legal significance to the Dominions’ signatures. Proponents of this construction draw support from the instrument’s treatment of the Dominions as components of the British Empire,[8] as evidenced by the Treaty’s grouping of the Dominions under the heading ‘British Empire’ when reciting the parties,[9] and reference to the Dominion Ministers only after mention of five Imperial Ministers, who purport to sign on behalf of the King ‘of the British Dominions’.[10] In view of those features, this essay accepts that the Treaty does not conceive of Australia as a fully sovereign nation. Despite that conclusion, however, the Treaty of Peace did extend the right of signature to ‘Dominions’, such that Australia’s signature had the legal effect of satisfying the necessary precondition to the right to ratify the Treaty.[11]

            The primary basis for that conclusion is that the Treaty expressly provides that any ‘self-governing State, Dominion or Colony’ is eligible to become a Member of the League of Nations,[12] of which Australia is part according to the Treaty.[13] The eligibility requirement therefore founds the possibility that a Dominion may become a party to the Treaty of Peace, while possessing international personality falling short of that of a ‘State’. This interpretation is confirmed by the affirmation of the ‘territorial integrity and existing political independence of all Members of the League’.[14] Since the Treaty of Peace granted membership in the League to Australia, the Treaty appears to regard Australia as having enough political independence to, minimally, decide whether it should become a Member of the League. Moreover, notwithstanding the references to Australia as part of the British Empire in the recitation of parties, Australia was explicitly mentioned; if the care taken by the drafter to refer to Australia in a legally binding instrument is to be given effect (as the law of treaty interpretation required at the time),[15] then the soundest construction of the Treaty is one that requires Australia’s signature as a precondition of it becoming a party. Because the better view is therefore that the Australian Delegation’s signatures were legally effective so far as the Treaty was concerned, the question of the domestic lawfulness of these signatures arises.

B.  New Guinea

            At the Paris Peace Conference, Australia merely succeeded in convincing the Supreme War Council (the entity charged with allocating mandates) to preliminarily decide that Australia would receive the New Guinea Mandate.[16] It was not until 17 December of the next year that Australia was appointed as Mandatory,[17] an appointment that the Governor-General had already been statutorily authorised to accept.[18] Consequently, the Australian Delegation did not relevantly punch above its weight, as its bid for territory during the Paris Peace Conference produced no binding commitment until after Parliament pre-cleared acquisition of New Guinea.

II. Did the Australian Delegation Act Intra Vires?

The Treaty of Peace was signed during a decade of attritional transformation of Australia’s constitutional relationship with the United Kingdom.[19] As Professor Evatt notes, it was wholly accurate in 1914 to observe that Australia lacked treaty-making capacity or the power to declare war or peace.[20] Just five years later, however, the British Prime Minister sent a telegram to Australia affirming that the Treaty of Peace would be signed by Australian representatives whose ‘powers are issued by the King, but the issue should be based on formal authority from the Australian Government.’[21] The balance of power had therefore shifted; the Australian executive now wielded the former power of Imperial Ministers to issue advice to the King in respect of matters concerning Australia’s external affairs and defence.[22] This section examines whether this practice can be constitutionally rationalised.

A. Section 61 of the Commonwealth Constitution

The starting point is s 61 of the Constitution, which vests the executive power of the Commonwealth in the Queen and renders that power exercisable by the Governor-General. The difficulty, however, is that other than noting that the power extends to the execution and maintenance of the Constitution and Commonwealth laws, the provision does little to define ‘executive power’.[23] On that basis, recourse may properly be had to the ‘historical facts surrounding the bringing the law into existence’.[24] Examination of the historical facts reveals the settled doctrine of the common law that the governors of the colonies which agglomerated to form the Commonwealth each possessed a bundle of prerogative powers, which could be exercised without statutory authorisation.[25] In view of s 61’s laconic discussion of the ‘executive power’ and s 70’s advertence to the transfer of some of the executive power of each colonial governor to the Governor-General, s 61 accordingly directs attention to the common law prerogatives as a possible source of power to execute the Treaty of Peace.

B. The common law

            The common law prerogatives pertaining to the Australian Delegation’s activities are the ‘external prerogatives’, a collection of powers authorising the monarch to, inter alia, sign a treaty of peace and acquire territory.[26] Attributed to the monarch by British common law before 1788, these prerogatives powers, along with the remainder of the locally applicable common law,[27] migrated to Australia along with the First Fleet.[28] The local applicability of the external prerogatives derived from the common law’s doctrine of the indivisibility of the British Crown, which was ‘one and indivisible throughout the Empire’ so that it possessed the capacity to exercise its prerogative powers in any colonial possession.[29] Thus, the transplantation of the external prerogatives into Australia can be justified by their potential usefulness to the British Crown. Whereas the Church of England prerogative powers perished in the journey to Australia for want of applicability,[30] the presence of the external prerogatives in Australia allowed Britain to dictate Australia’s engagement with other nations, as it did until the beginning of the First World War.[31] Before Federation, it was therefore on this basis that the external prerogatives in Australia, absent displacement by an Act of Parliament, were the ‘the same as in England’.[32]

            The existence of the external prerogatives in Australia, however, was a different question from permission to exercise those prerogatives.[33] The ability of the colonial governors to exercise the external prerogatives, as was true of other prerogatives, was deduced from express authority in or necessary implication from their Imperial commissions.[34]  This reality poses a potential problem for the attempt to source a power to sign the Treaty of Peace, as Australian colonial governors were ‘simply commissioned “to do and execute all things that belong to [their] said office”’.[35] In light of the colonies’ subordinate status, a capacity to exercise external prerogatives could accordingly not be implied from the commissions of Australian colonial governors, a proposition that was recognised judicially.[36] The prevailing situation at the end of the 19^th century was thus that the external prerogatives could only be exercised on Imperial Minister advice,[37] and that ‘the officers of a Colonial Government [had] no power or authority to act beyond the limits of their colony’.[38]

            Enactment of the Australian Constitution, despite its frequent nods to extraterritorial capacity,[39] did not alter this situation. Most notably, the Imperial Government declared war in 1914 on behalf of all of its Dominions, committing Australia to war. Nor was this practice idiosyncratic; rather, until the First World War  the ‘Imperial Government adamantly maintained its right of general control over foreign policy, the declaration of war, and the declaration and maintenance of peace.’[40] In light of this practice, the authoritative view before 1914 was that ‘the Commonwealth, like other Dominions, [had] in general no international recognition save as part of the Empire and through medium of the Crown in its Imperial right.’[41]

The Commonwealth’s lack of authority in this domain has an important consequence for the connection between the external prerogatives and s 61. Section 61 grants the Governor-General the authority to exercise the Commonwealth’s executive power. Therefore, the Governor-General is able to exercise any prerogative subsumed in ‘executive power’. If, prior to 1914, the Governor-General could not exercise the external prerogatives (as the weight of authority suggests), then the external prerogatives cannot have fallen within the scope of ‘executive power’ during this period. This is precisely the conclusion reached (for broadly similar reasons) by Professor Zines, who argues that the external prerogatives were ‘not regarded as included within’ sections 61 or 70.[42] On that basis, any justification of the constitutionality of the Australian Delegation’s activities must grapple with the absence of a textual link to the external prerogatives before the start of World War I.

C. Back to s 61

The foregoing hurdle can be cleared by return to the words of s 61.  The previous section contended that the ambiguity inhering in ‘executive power’ led to identification of the common law prerogative powers. A critical step in the analysis, however, is acknowledgement of the phrase ‘executive power’ in its contextual whole: ‘executive power of the Commonwealth’. The Commonwealth, the entity upon which the executive power is fastened, changed in a significant respect during the years encompassed by the First World War. Those years witnessed the metamorphosis of a nation with minimal international recognition to one that committed over 400,000 troops to the War,[43] dispatched its own delegation to the Paris Peace Conference, actively contributed to the drafting of the Treaty of Peace,[44] and most importantly, secured a concession from the United Kingdom that Australia’s power to sign the Treaty no longer derived from permission of its former colonial superior.[45] For that reason, the word ‘Commonwealth’ in s 61 now referred to an entity with international personality, a characteristic that was not to be attributed to the Commonwealth before the War.[46]

This denotational[47] change in ‘Commonwealth’ is significant when viewed in the context of the word’s textual link to ‘executive power’ in s 61. As argued earlier, s 61’s exclusion of the external prerogatives from the ambit of ‘executive power’ was not due to the absence of the prerogatives from Australian common law, but was rather conditioned on a convention by which Australia was denied the right to exercise those prerogatives by the United Kingdom. As noted above, however, that convention had receded by the occasion to sign the Treaty of Peace arose on 28 June, 1919; directing attention to the common law prerogatives exercisable by the monarch, ‘executive power’ now embraced the external prerogatives (forming part of Australian common law) that had been withheld solely on account of a state of affairs that no longer existed. The consequence was that the Australian Delegation possessed the prerogative power to validly sign the Treaty of Peace on Australia’s behalf, and in the next year, place New Guinea under the authority of the Commonwealth.[48]

III. The Modern Legal and Constitutional Position

            In contrast to the prevailing view of s 61 contemporaneous with the Australian Delegation’s activities, later High Court authority has undergone a ‘preponderant drift’[49] towards an ‘inherent view’[50] of s 61. Rather than conceiving of s 61 as a signpost to common law prerogatives, the inherent view construes s 61 as itself harbouring executive power ‘appropriate to the position of the Commonwealth as a polity created by the Constitution and having regard to the spheres of responsibility vested in it’.[51] In the context of the Australian Delegation’s activities at the Paris Peace Conference, the inquiry of constitutionality is predicated on a polity charged with governance of a collection of States and Territories united in a federalist system.[52] Moreover, the signing of a treaty and the acquisition of territory as contemplated by s 122 occur solely on the interface between that system as a composite whole (Australia) and other sovereign nations. On that basis, the Australian Delegation’s activities constitute ones ‘peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’.[53] Accordingly, the Australian Delegation’s punches in Paris can also be constitutionally rationalised under the inherent view.

IV. Conclusion

            Based on Australia’s acquisition of swathes of New Guinean territory and the undermining of a competing Japanese proposal regarding the Covenant of the League of Nations, the Australian Delegation resoundingly succeeded in obtaining ‘something for [its] country’. But from a constitutional perspective, the Australian Delegation succeeded in a more meaningful and long-term way: the deliverance of knockout punches to the view that Australia’s executive continued to be devoid of non-statutory international capacity. The Australian Delegation left King Louis XIV’s Hall of Mirrors representing a nation taking its first great leap towards independence from the United Kingdom in its external affairs, exercising the same common law prerogatives that had been formerly denied to the executive governments across the Australian continent. Since exercise of those prerogatives was authorised by the text of s 61 of the Constitution, this essay respectfully submits that the Australian Delegation’s punches were within its constitutional weight class.

BIBLIOGRAPHY

A Articles/Books/Reports

Baker, P.J. Noel, The Present Juridical Status of the British Dominions in International Law (Longmans, Green and Co., 1929)

Bendiner, Elmer, A Time for Angels: The Tragicomic History of the League of Nations (Weidenfeld and Nicolson, 1975)

Blackstone, William, Commentaries on the laws of England (Clarendon Press, 1775)

Castles, Alex, The reception and status of English law in Australia (1963) 2(1) Adelaide Law Review 1

Chitty, Joseph, A Treatise on the Law of the Prerogatives of the Crown: And the Relative Duties and Rights of the Subject (J. Butterworth and Son, 1820)

Cobbett, Pitt, Government of Australia (unpublished manuscript, University of Sydney Law School) 181, as quoted in Evatt, H.V. ,The Royal Prerogative (The Law Book Company, 1987)

Condylis, Nicholas, ‘Debating the Nature and Ambit of the Commonwealth’s Non-Statutory Executive Power’ (2015) 39 Melbourne University Law Review 385

Crawford, James, The Creation of States in International Law (Oxford University Press, 2^nd ed, 2006)

Evatt, H.V., The Royal Prerogative (The Law Book Company, 1987)

Gageler, Stephen, ‘Foundations of Australian Federalism and the Role of Judicial Review’ (1987) 17(3) Federal Law Review 162

Gerangelos, Peter, ‘The Executive Power of the Commonwealth of Australia: Section 61 of the Commonwealth Constitution, ‘Nationhood’ and the Future of the Prerogative 12(1) Oxford University Commonwealth Law Journal 97.

Gummow, William ‘The Australian Constitution and the End of Empire – A Century of Legal History’ (2015) 33(1) Law in Context 74.

Gummow, W.M.C., ‘The Constitution: Ultimate Foundation of Australian Law?’ (2005) 79 Australian Law Journal 167

Hudson, W.J., Billy Hughes in Paris: The Birth of Australian Diplomacy (Thomas Nelson Australia, 1978)

Scott, Ernest, Australia During the War (Angus and Robertson, 7^th ed, 1941) vol 11

Starke, J.G., ‘The Commonwealth in International Affairs’, Rae Else-Mitchell (ed), Essays on the Australian Constitution (Hartson, Partridge & Co, 1961) 343

Twomey, Anne ‘Advice to vice-regal officers by crown law officers and others’ (2015) 26(3) Public Law Review 193.

Twomey, Paul, ‘Versailles and the 1920s’, Carl Bridge and Bernard Attard (eds), Between Empire and Nation: Australia’s External Relations from Federation to the Second World War (Australian Scholarly Publishing, 1961).

Winterton, George, ‘The Relationship Between Commonwealth Legislative and Executive Power’ (2004) 25 Adelaide Law Review 21, quoting Sawer, Geoffrey, ‘The Executive Power of the Commonwealth and the Whitlam Government’ (Speech delivered at the Octagon Lecture, University of Western Australia, 1976).

Williams, George, Brennan, Sean and Lynch, Andrew Blackshield & Williams Australian Constitutional Law & Theory (Federation Press, 2014)

Zines, Leslie, Commentaries on the Australian Constitution (Butterworths, 1977)

B Cases

Barton v Commonwealth (1974) 131 CLR 477

Cadia Holdings v State of New South Wales (2010) 242 CLR 195

Cameron v Kyte (1835) 3 Knapp 332

Commonwealth v Colonial Combing Spinning & Weaving (1922) 31 CLR 421

Cooper v Stuart (1889) 14 App Cas 286

Davis v The Commonwealth (1998) 166 CLR 79

Ffrost v Stevenson (1937) 58 CLR 528

Fishwick v Cleland (1960) 106 CLR 186

Jolley v Mainka (1933) 49 CLR 242

Joose v Australian Securities Investment Commission (1998) 159 ALR 260

Helljay Investments v Deputy Commissioner of Taxation (1999) 166 ALR 302

Mainka v The Custodian of Expropriated Property (1924) 34 CLR 297

Musgrave v Pulido (1879) 5 App Cas 102

New South Wales v Commonwealth (2006) 229 CLR 1

Pape v Federal Commissioner of Taxation (2009) 238 CLR 1

Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 326 ALR 369

Roche v Kronheimer (1921) 29 CLR 329

Solicitor General v Dunedin [1875] NZJur Rp 1

S.S. Wimbledon (United Kingdom et al v Germany) (Judgment) [1923] PCIJ (ser A) No 1

Tasmania v Commonwealth and Victoria (1904) 1 CLR 329

The Queen v The Bank of Nova Scotia (1885) 11 SCR 1

Toy v Musgrove (1888) 14 VLR 349

Victoria v Commonwealth (1971) 122 CLR 353

Victoria v The Commonwealth (1975) 134 CLR 338

Williams v Commonwealth (No 1) (2012) 248 CLR 156

Woolley v Attorney-General of Victoria (1877) 2 App Cas 163

C Other

Australian Constitution

Mandate for the Administration of the German Possessions in the Pacific Ocean situated South of the Equator other than German Samoa and Nauru, signed 17 December 1920, [1920] ATS 2 (entered into force 17 December 1920)

New Guinea Act 1920 (Cth)

Pegram, Aaron, Prisoners of War (Australia), International Encyclopedia of the First World War <http://encyclopedia.1914-1918-online.net/article/prisoners_of_war_austra... .

Pyke, John, The Treaty of Versailles, or “break in sovereignty” furphy, Australian Constitutional Furphies <http://constitutionalfurphies.info/sovereignty.php>.

Rear Vision, The Paris Peace Conference 1919 (23 December 2009) ABC Radio  <http://www.abc.net.au/radionational/programs/rearvision>

Treaty of Peace between the Allied and Associated Powers and Germany, and Protocol, signed 28 June 1919, [1920] ATS 1 (entered into force 10 January 1920)

Treaty of Peace (Germany) Act 1919 (Cth)