Extracts from a memorandum by the Department of External Affairs on extraterritorial jurisdiction prepared for the Conference on the Operation of Dominion Legislation

So long as the Colonial Laws Validity Act, 1865, remains in force, and so long as the Judicial Committee of the Privy Council have before them an array of decisive constitutional opinion recorded in the reported cases upon which their predecessors have pronounced since the days of the Colonial Empire, the danger will remain of laws expressly or impliedly exterritorial passed by the Commonwealth Parliament being declared invalid on the ground of the incompetency of those Parliaments to enact such laws. 'No real Imperial advantage', wrote Prof. Keith in 1928, 'attaches to this restriction on Dominion Legislation'(Responsible Government in the Dominions Vol. I. page 336), and it is now claimed that no such restriction can any longer be justified; and it can be maintained with emphasis that even the power to make laws for the purposes of peace, order and good government - however that power is derived - so far from imposing the restriction would appear to include where necessary or expedient the power to enact a law having exterritorial effect. [matter omitted] What authority is to decide whether an Irish Free State law or a Canadian law which expressly or impliedly operates ex territorially is or is not necessary for the peace, order and good government of the Irish Free State or of Canada? In 1924 it can hardly be doubted that the authority contemplated was in the last resort the Judicial Committee. [matter omitted] [T]here is no authority which can pronounce upon the validity of the laws passed by a sovereign Parliament. The body to decide what laws are necessary for the government of the Irish Free State is the Oireachtas, and the situation - if it still exists - that the function of the Courts of the Irish Free State is not only to interpret the laws passed by the Oireachtas but also to pronounce upon the validity of those laws must be brought to an end. [matter omitted] 'The United Kingdom', said Sir Wilfrid Laurier in 1911,¹ 'has asserted to itself the power to disallow any legislation which it is in the power of the self-governing Dominions to pass'. He might have gone further had his purpose required it and added - 'The United Kingdom has asserted to itself the right to declare that any legislation passed in the Dominions and purporting to operate exterritorially is ultra vires the power of the Dominion Parliaments'. That is what the whole doctrine of the incompetency of the Dominion Legislatures to enact as exterritorial law comes to. You could not fairly derive the doctrine from the words in the Constitutions which give power to make laws for the purposes of peace, order and good government. You must trace its origins to the arbitrary limit set to the powers of the Dominions by judicial minds steeped in the law-lore of the British Colony. 'Whatever the Parliament of the United Kingdom can do the Parliament of any other of the Associated States can do'.