§ 15. “And by the Authority of the Same.”

These words clearly show that, although on the face of the Act the Queen figures as the chief legislator, the Auctoritas by which the Constitution has been created is blended and conjoined in the Queen in Parliament. This is the modern practice in connection with the political organization of colonies and in the grant to them of the institutions of self-government. In the early stages of English and British colonization, the Crown, without parliamentary sanction, expressed or implied, but in the exercise of its admitted prerogative, was accustomed to grant to newly settled, ceded, or conquered provinces, Patents and Charters, containing directly or indirectly authority to establish local Legislative Assemblies endowed with the power to pass laws for the peace, order and good government of such countries:—

“On obtaining a country, or colony, the Crown has sometimes thought fit, by particular express provisions under the Great Seal, to create and form the several parts of the Constitution of a new Government; and at other times has only granted general

  ― 309 ―
powers to the Governor to frame such a Constitution, as he should think fit, with the advice of a Council, consisting of a certain number of the most competent inhabitants, subject to the approbation or disallowance of the Crown. In most instance there are three departments forming the colonial government, each of which deserves attention. 1st. The governor, who derives power from, and is substantially a mere servant or deputy of, the Crown, appointed by commission under the Great Seal. The criterion for his rules of conduct are the king's instructions, under the sign-manual. 2nd. The colonial councils, which derive their authority, both executive and legislative, from the king's instructions to the governor. 3rd. The representative assemblies chosen by certain classes of the colonial inhabitants. The right of granting this assembly is vested exclusively in the Crown, subject to after regulations by the local legislatures.” (Petersdorff, Vol. v. p. 543.)

The constitutional right of the Crown, in exercise of its prerogatives, to grant Constitutions to colonies, has been recognized in a series of judicial decisions, some of which may be here cited in illustration of the system that once prevailed, under which the English, and afterwards the British, Parliament enjoyed no share in the organization and management of colonial settlements. The case of Kielley v. Carson (1842), 4 Moore's Privy Council 63, 7 Jurist 137, turned on the nature and constitution of the House of Assembly of Newfoundland, established in 1832 by virtue of a commission under the sign-manual of King William IV., appointing Sir Thomas Cochrane Governor of the colony, and authorizing him to convoke a Legislative Assembly; and on the question whether such Assembly had been granted power, or possessed inherent power, to commit a person to gaol for contempt, in attempting to interfere with one of its members out of doors. Baron Parke (Lord Wensleydale), delivering the judgment of the Judicial Committee, said:—

“To such a colony there is no doubt that the settlers from the mother-country carried with them such portion of its common and statute law as was applicable to their new situation, and also the rights and immunities of British subjects. Their descendants have on the one hand the same laws and the same rights, unless they have been altered by Parliament; and, on the other hand, the Crown possesses the same prerogative and the same powers of government that it does over its other subjects; nor has it been disputed in the argument before us, and therefore we consider it as conceded, that the sovereign had not merely the right of appointing such magistrates and establishing such corporations and courts of justice as he might do by the common law at home, but also that of creating a local Legislative Assembly, with authority subordinate to that of Parliament, but supreme within the limits of the colony, for the government of its inhabitants. This latter power was exercised by the Crown in favour of the inhabitants of Newfoundland in the year 1832, by a commission under the Great Seal, with accompanying instructions from the Secretary of State for the Colonial Department; and the whole question resolves itself into this, whether this power of adjudication upon and committing for a contempt was by virtue of the commission and the instructions legally given to the new Legislative Assembly of Newfoundland; for, under these alone can it have any existence, there being no usage or custom to support the exercise of any power whatever. In order to determine that question, we must first consider whether the Crown did in this case invest the local legislature with such privilege. If it did, a further question would arise, whether it had a power to do so by law. If that power was incident as an essential attribute to a Legislative Assembly of a dependency of the British Crown, the concession on both sides, that the Crown had a right to establish such an assembly, puts an end to the case. But if it is not a legal (incident, then it was not conferred on the Colonial Assembly unless the Crown had authority to give such a power, and actually did give it. Their Lordships give no opinion upon the important question whether, in a settled country such as Newfoundland, the Crown could, by its prerogative, besides creating the Legislative Assembly, expressly bestow upon it an authority not incidental to it of committing for a contempt, an authority materially interfering with the liberty of the subject, and much liable to abuse. They do not enter upon that question, because they are of opinion, upon the construction of the commission, and of its accompanying document, that no such authority was meant to be communicated to the Legislative Assembly of Newfoundland; and if it did not pass as an incident by the creation of such a body, it was not granted at all.” (7 Jurist, p. 139.)

In the case of Phillips v. Eyre (1870), L.R. 6 Q.B., p. 1, the plaintiff sued a former Governor of Jamaica to recover damages for assault and false imprisonment, alleged to have been directed by the defendant after the proclamation of martial law during the

  ― 310 ―
suppression of rebellion in the Island. The defendant pleaded an indemnity, under an Act passed by the Legislature of Jamaica, and assented to by himself on behalf of the Crown, after the rebellion was over, legalizing every act done by the Governor in arresting the rebellion by force of arms. The Legislature of Jamaica, at that time, consisted of a Legislative Council and Legislative Assembly, established not by an Imperial Act, but by a Commission under the Great Seal accompanied by royal instructions. The case turned on the power of the Crown to create such a Legislature in a settled colony. In delivering the judgment of the Court of Appeal, Mr. Justice Willes said:—

“Doubts were suggested in this Court upon what was taken for granted in the argument and judgment in the Court below, namely, the power of the Crown to create a Legislative Assembly in a settled colony. Assuming, but by no means affirming that, as contended for by counsel for the plaintiff, the colony in question, though originally conquered from the Spaniards, is now to be deemed a settled as distinguished from a conquered or ceded one, we consider these doubts as to the power of the Crown and of the local Legislature to be unfounded. There is even greater reason for holding sacred the prerogative of the Crown to constitute a local Legislature in the case of a settled colony, where the inhabitants are entitled to be governed by English law, than in that of a conquered colony, where it is only by grace of the Crown that the privilege of self-government is allowed; though where once allowed it cannot be recalled. In colonies distant from the mother country to which writs to return members to the Imperial Parliament do not run, it is essential, both for the due government of the country in dealing with matters best understood upon the spot, and with emergencies which do not admit of delay, and also for giving subjects there resident the benefit of a voice, by their representatives, in the councils by which they are taxed and governed, that the Crown should have the power of creating a local Parliament. Accordingly, it is certain that the Crown has, in numerous instances, granted charters under which Houses of Assembly and Legislative Councils have been established for the government of colonies, whether conquered or settled, and that such Councils and Assemblies have, from time to time, made laws suited to the ‘emergencies of the colony,’ which, of course, include all measures necessary for the conservation of peace, order, and allegiance therein. In effect, the inhabitants have been allowed to reserve the power of self-government, through their representatives in the colony subject to the approval of the Crown and the control of the Imperial Legislature. This opinion was reflected upon in the argument, but it is in accordance with just principles of government, with the law laid down by the text-writers, including Mr. Justice Blackstone; and it has now been drawn into doubt for the first time. We are satisfied that it is sound law, and that a confirmed act of the local Legislature lawfully constituted, whether in a settled or conquered colony, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial Parliament.” (Per Willes, J., Phillips v. Eyre, L.R., 1 Q.B., p. 1.)

“The first important deviation from this rule was in the case of the colony of Quebec, which by statute of 1774 received an improved form of local government. The precedent was followed, in the year 1791, by Mr. Pitt's famous Canada Act, which constituted the two provinces of Quebec and Ontario. It has been declared by high authority that the reason for the introduction of Parliamentary action into the government of Canada was the desire to concede to the Roman Catholic colonists certain rights inconsistent with the severe Conformity statutes then existing, and with which the Crown had no power to dispense. But the application of the principle about the same time to the government of India, and, soon after, to Australian affairs, make it more probable that the change was really due to the growing extensions of Parliamentary influence over all departments of State. Be this as it may, the practice of the present century has been, whilst leaving to conquered acquisitions as much as possible their previous forms of government, to confer local Constitutions by Act of Parliament upon possessions acquired by settlement The course of proceeding has been fairly uniform. First, there has been a purely despotic government, when the colony has been ruled as a military position by a Governor and a handful of officials appointed by the Home Government. Then there has been a Constitution, with a Legislative Council, partly appointed by the Governor and partly elective. Of this Council the Crown officials have always formed part, but the executive has been unassailable by the Legislature, and responsible only to the Colonial Office; possessions in these two stages being technically known as ‘Crown Colonies.’ In the third stage, there have generally been two Houses of Legislature, both elective, or one elective and one nominee, and the executive has consisted of officials chosen for their Parliamentary position, and liable to dismissal, like ministers in England, in consequence of an adverse vote of Legislature. This is the era of ‘Responsible Government.’ ” (Jenks' Gov. of Victoria, pp. 10–11.)

Short Title

1. This Act16 may be cited as the Commonwealth17 of Australia Constitution18 Act.

HISTORICAL NOTE.—Clause 1 of the draft Bill framed by the Sydney Convention of 1891, and usually known as “The Commonwealth Bill of 1891,” declared that “This Act shall be cited as The Constitution of the Commonwealth of Australia.” In Committee, Mr. James Munro proposed “Federated States” in lieu of “Commonwealth.” On a division, however, “Commonwealth” was retained by 26 votes to 13. (Conv. Deb., Syd. [1891], pp. 550–7.)

At the Adelaide Session of the Convention of 1897, the clause as framed in 1891 was adopted verbatim. In Committee, Mr. Symon proposed to omit the words “Commonwealth of,” leaving simply “Australia;” but this was negatived. Mr. Walker proposed to substitute “Australasia” for “Australia,” but this also was negatived. (Conv. Deb., Adel., pp. 616–9.) At the Sydney Session, a suggestion by the Legislative Council of New South Wales, to substitute “Dominion” for “Commonwealth” was negatived. An amendment by Mr. Barton, to omit “The Constitution of the Commonwealth of Australia,” and substitute “The Commonwealth of Australia Constitution Act,” was agreed to, in order to distinguish between the Act as a whole and the Constitution embodied in the Act. (Conv. Deb., Syd. [1897], pp. 224–5.)