§ 33. “And all Laws.”

No difficulty is suggested by the words, “and all laws made by the Parliament of the Commonwealth under the Constitution.” The words “under the Constitution” are words of limitation and qualification. They are equivalent to the words in the corresponding section of the Constitution of the United States “in pursuance thereof.” Supra. Not all enactments purporting to be laws made by the Parliament are binding; but laws made under, in pursuance of, and within the authority conferred by the Constitution, and those only, are binding on the courts, judges, and people. A law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative; it confers no rights, it imposes no duties; it affords no protection. (Norton v. Shelby County, 118 U.S. 425; see note § 447 “Power of the Parliament of a Colony.”) The Act itself is binding without limitation or qualification because it is passed by the sovereign Parliament, but the laws passed by the Parliament of the Commonwealth, a subordinate Parliament, must be within the limits of the delegation of powers or they will be null and void. To be valid and binding they must be within the domain of jurisdiction mapped out and delimited in express terms, or by necessary implication, in the Constitution itself. What is not so granted to the Parliament of the Commonwealth is denied to it. What is not so granted is either reserved to the States, as expressed in their respective Constitutions, or remains vested but dormant in the people of the Commonwealth. The possible area of enlargement of Commonwealth power, by an amendment of the Constitution, will be considered under Chapter VIII.

“Every legislative assembly existing under a federal constitution is merely a subordinate law-making body, whose laws are of the nature of by-laws, valid whilst within the authority conferred upon it by the constitution, but invalid or unconstitutional if

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they go beyond the limits of such authority. There is an apparent absurdity in comparing the legislature of the United States to an English railway company or a school board, but the comparison is just. Congress can, within the limits of its legal powers, pass laws which bind every man throughout the United States. The Great Eastern Railway Company can, in like manner, pass laws which bind every man throughout the British dominions. A law passed by Congress which is in excess of its legal powers, as contravening the Constitution, is invalid; a law passed by the Great Eastern Railway Company in excess of the powers given by Act of Parliament, or, in other words, by the legal constitution of the company, is also invalid; a law passed by Congress is called an ‘Act’ of Congress, and if ultra vires is described as ‘unconstitutional;’ a law passed by the Great Eastern Railway Company is called a ‘by-law,’ and if ultra vires is called, not ‘unconstitutional,’ but ‘invalid.’ Differences, however, of words must not conceal from us essential similarity in things. Acts of Congress, or of the Legislative Assembly of New York or of Massachusetts, are at bottom simply ‘by-laws,’ depending for their validity upon their being within the powers given to Congress or to the State legislatures by the Constitution. The by-laws of the Great Eastern Railway Company, imposing fines upon passengers who travel over their line without a ticket, are laws, but they are laws depending for their validity upon their being within the powers conferred upon the company by Act of Parliament, i.e., by the company's constitution. Congress and the Great Eastern Railway Company are in truth each of them nothing more than subordinate law-making bodies.” (Dicey's Law of the Constitution, p. 137.)

“Every Act of Congress, and every Act of the legislatures of the States, and every part of the Constitution of any State, which are repugnant to the Constitution of the United States, are necessarily void. This is a clear and settled principle of (our) constitutional jurisprudence.” (Kent's Commentaries, I., p. 314.)

“The legal duty therefore of every judge, whether he act as a judge of the State of New York or as a judge of the Supreme Court of the United States, is clear. He is bound to treat as void every legislative act, whether proceeding from Congress or from the State legislatures, which is inconsistent with the Constitution of the United States. His duty is as clear as that of an English judge called upon to determine the validity of a by-law made by the Great Eastern Railway Company or any other Railway Company. The American judge must in giving judgment obey the terms of the Constitution, just as his English brother must in giving judgment obey every Act of Parliament bearing on the case.” (Dicey, Law of the Constitution, p. 146.)

In Canada the Dominion Parliament has power to make laws in relation to all matters not coming within the classes of subjects exclusively assigned to the legislatures of the Provinces.

“There exists, however, one marked distinction in principle between the Constitution of the United States and the Constitution of the Canadian Dominion. The Constitution of the United States in substance reserves to the separate States all powers not expressly conferred upon the national government. The Canadian Constitution in substance confers upon the Dominion government all powers are not assigned exclusively to the Provinces. In this matter the Swiss Constitution follows that of the United States.” (Dicey, Law of the Const., p. 139.)

This characteristic of the Canadian Constitution tends greatly to strengthen the power of the Dominion at the expense of the Provinces, and so helps, in common with other features, to make it approximate to a unitarian rather than a federal form.

THE COLONIAL LAWS VALIDITY ACT.—A detailed reference may be here appropriately made to a subject which was not specifically discussed during the progress of the Commonwealth Bill through the Federal Convention, but which was raised by the Law Officers of the Imperial Government whilst the Bill was under consideration in England, namely, the applicability of the Colonial Laws Validity Act, 1865, to the Constitution of the Commonwealth. Can the Federal Parliament, legislating in reference to subjects assigned to it, enact laws repugnant to Imperial legislation applicable to the colonies, in force at the establishment of the Commonwealth, or passed subsequently?

It was a rule of common law that a colonial legislature was subordinate to the English and afterwards to the British Parliament; that it could not pass laws in conflict with the laws of England expressly applicable to the colonies. This rule was confirmed by Statute. It was declared by sec.9 of 7 and 8 Wm. III. c. 22 (1696) that all laws, by-laws, usages, and customs which should be in practice in any of the American plantations, repugnant to any law made or to be made in the Kingdom, “so far as such laws

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shall relate to and mention the said plantations,” were null and void. (Supra, p. 1.) This section was subsequently re-enacted, in substantially the same words, by 3 and 4 Wm. IV. c. 59, sec. 56 (1833). The commissions and instructions of colonial governors used to require that ordinances passed by the Governor in Council should not be repugnant to the law of England.

The extent of this prohibition was very uncertain, and doubts frequently arose as to what constituted a repugnancy. See, for instance, the Imperial Act, I Wm. IV. c. 20 (1831) passed to remove doubts which had arisen in Lower Canada. A vague limitation was even supposed to exist, that the laws of a Crown colony must not be repugnant to the common law. (See Tarring, Law relating to Colonies, 2nd ed., 144; Stephen, Hist. of Crim. Law, ii., 58.)

This vague and sweeping rule of invalidity was ultimately superseded by the Colonial Laws Validity Act, 28 and 29 Vic. c. 63. Sec. 2 of that Act declares that any colonial law which is in any respect repugnant to an Act of the Imperial Parliament extending to the colony (which is defined to mean “applicable to such colony by the express words or necessary intendment of any Act of Parliament”) or repugnant to any order or regulation made under any such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be absolutely void. Sec. 3 provides that no colonial law shall be void on the ground of repugnancy to the law of England unless it is repugnant to some such Act of Parliament, order, or regulation as aforesaid.

When this Act was passed, it was not regarded as a curtailment of legislative power in the colonies; it took away no power previously enjoyed; it was, in fact, looked upon as one of the charters of colonial legislative independence, next in importance to the famous Declaratory Act, 18 Geo. III. c. 12, in which the British Parliament, profiting by the lessons of the American rebellion, renounced its intention to again tax the colonies. It removed all doubts as to the powers of colonial Legislatures to alter or repeal the general mass of English law, such as the law of primogeniture, inheritance, &c., not made operative, by Statute, throughout the Empire. The Colonial Laws Validity Act was, therefore, an enabling Act, not a restrictive or disabling Act. This proposition may be best illustrated and confirmed by a reference to authorities.

The Imperial Copyright Act 5 and 6 Vic. c. 45 (1842) is by express words declared to extend “to every part of the British dominions.” In the celebrated copyright case of Low v Routledge, L.R. 1 Ch. 42 (1865), it was contended that the Imperial Act was not in force in Canada, because Canada had a representative Legislature of its own, and was not directly governed by legislation from England; that consequently it was not included in the general words of the Act. This contention was not sustained. In delivering the judgment of the Court of Appeal, Lord Justice Turner said the Imperial Copyright Act was in force in Canada; and consequently rights acquired under an Imperial Act in force throughout the Empire could not be affected by the law of a colony inconsistent therewith. This case was decided in 1865, before the passing of the Colonial Laws Validity Act.

Shortly after the grant of a new constitution and responsible government to Victoria, the Parliament of that colony passed an Act, No. 8, to amend the law of evidence. It purported to repeal the provisions of the Imperial Acts, 54 Geo. III. c. 15, 5 and 6 Will. IV. c. 62, and 14 and 15 Vic. c. 99, s. 11, so far as they applied to Victoria. The Secretary of State for the Colonies afterwards drew attention to the fact that it was beyond the competence of a colonial Legislature to repeal an Imperial Act applicable to the colonies. An Act was then passed by the British Parliament repealing the Acts of Geo. III. and Will. IV. so far as Victoria was concerned, and also enabling the Legislatures of other colonies to repeal those Acts if they thought proper. (22 and 23 Vic. c. 12.) The Victorian Parliament repealed its own Act, No. 8, and passed a new one, in which it was recognized and declared that the section of the Act 14 and 15 Vic. c.

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99, s. 11, which it had abortively attempted to repeal, was in force in Victoria. (Hearn's “Government of England,” 2nd ed., p. 597.)

These two precedents show that even before the passing of the Colonial Laws Validity Act it was recognized in law as well as in practice that a colonial Legislature could not repeal an Imperial Act applicable to the colonies, whether that Act was in force before or came into force after the constitution of such colonial Legislature. That Act limits rather than enlarges the doctrine of repugnancy; it enlarges rather than limits the power of colonial Legislatures (1) by repealing the common law rule that every colonial law repugnant to English law is void, and confining nullity for repugnancy to cases where statutes are expressly intended to apply to the colonies, and (2) by restricting the nullity to the inconsistent provisions only, and not allowing a particular variance to invalidate the whole colonial Act.

Attention may be now drawn to cases which have occurred, and contentions raised, since the passing of the Validity Act. In the case of Smiles v. Belford (1877), 1 Ont. Appeals, 436, the author of the well-known work, “Thrift,” published in England, brought a suit in Canada to restrain the reprint of his work in Canada. The work had been copyrighted in England under 5 and 6 Vic. c. 45 (1842), which we have seen is in force throughout the British dominions, but it had, not been copyrighted in Canada under the Canadian Copyright Act 35 Vic. c. 88. It was argued for the defendant that the Canadian Act repealed the Imperial Act, notwithstanding the Colonial Laws Validity Act. Proudfoot, V.C., overruled this contention. In the Court of Appeal (Ontario), the judges were unanimous in the opinion that the Federal Parliament had no authority to pass any law opposed to statutes which the Imperial Parliament had made applicable to the whole Empire.

In ex parte Renaud, 14 N. Bruns. 273, 2 Cart. 447 (1873), Chief Justice Ritchie referred to the Colonial Laws Validity Act as a clear statutory recognition of the supreme legislative control of the British Parliament over colonial Legislatures. So the same learned judge decided in the City of Fredricton v. The Queen, 3 S.C.R. (Can.) 529 (1880) that the power of legislation conferred on the Dominion Parliament and the provincial Legislatures, respectively, by the British North America Act, 1867, was subject to the sovereignty of the British Parliament.

In the case of the Merchants' Bank of Halifax v. Gillespie, 10 S.C.R. (Can.) 312 (1885), the validity of the Dominion Winding-up Act, 45 Vic. c. 23, which was apparently in conflict with the Imperial Joint Stock Acts of 1862 and 1867, was considered. Justices Strong and Henry expressed the opinion that the Dominion Act would have been ultra vires if it had purported to deal with a company incorporated under English laws, thus supporting the view that the Dominion Parliament had no authority to enact laws repugnant to an Imperial Act extending to Canada, whether such Act was passed before or after the creation of the Dominion. (Lefroy, Leg. Power, p. 210.)

A dictum somewhat in conflict with these decisions, to the effect that the Parliament of Canada had power to pass laws repealing Imperial Acts in force prior to federation and extending to the colonies, was expressed by Draper, C.J., in Regina v. Taylor, 36 Upper Canada Q.B. 183 (1875). But the opinion of that learned judge was based on the special wording of sec. 91 of the B.N.A. Act, which gives the Dominion Parliament “exclusive legislative authority” to make laws in certain cases. The word “exclusive” he considered as meaning exclusive of the British Parliament, and hence it was a renunciation of its right to legislate in matters exclusively assigned to the Canadian Parliament. This dictum, it will be noticed, turns on the word “exclusive,” which does not occur in sec. 51 of the Commonwealth Bill, defining the principal powers of the Federal Parliament. The opinion of Draper, C.J., was seriously doubted by the Ontario Court of Appeal in the later case of Smiles v. Belford, in which Moss, J., said: “I believe his lordship did not deliberately entertain the opinion which these

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expressions have been taken to intend. He simply threw out the suggestion in that direction, but further consideration led him to adopt the view that the Act did not curtail the paramount authority of the Imperial Parliament.” In a British Columbia case, Tai Sing v. Macguire, 1 Brit. Col. (Irving), p. 107 (1878), Gray, J., said: “It was difficult to see the foundation for the conclusion arrived at by Draper, C.J.” In Regina v. College of Physicians, 44 Upper Can. Q. B. 564, 1 Cart., p. 761 (1879), the Court of Queen's Bench of Ontario held that the British Medical Act (1868) applied to Canada, and that the provincial Legislatures could not pass a law repugnant to the Imperial Act, which declared that any person registered thereunder as a duly qualified medical practitioner should be entitled to register and practice in any part of the British dominions.

The Canadian case, Riel v. The Queen, 10 App. Ca. 675 (1885), illustrates the conditions under which a colonial Legislature may alter an Imperial Act operative within the colony. The Amending British North America Act, 34 and 35 Vic. c. 28 (1871), authorized the Parliament of Canada to make laws for the administration, peace, order and good government of any territory not included in a province. In the exercise of this power it passed the Act 43 Vic. No. 25, providing, inter alia, a summary procedure for the trial of criminal offences, including treason, committed in the North-west Territory. This summary trial for treason was alleged to be inconsistent with the Act 7 and 8 Wm. III. c. 3 (1696) and the Hudson's Bay Act, 31 and 32 Vic c. 105 (1868), under which a person charged in the territory with treason was entitled to trial by a judge and jury of twelve men with a right of challenging thirty-five. Riel was convicted under the new law. He applied for leave to appeal to the Privy Council, on the ground that the Parliament of Canada had no authority to abolish, in the North-west Territory, trial by jury in treason cases, and that the local Act was not necessary for the peace, order, and good government of the territory. The Privy Council held that the Canadian Act was properly passed in the exercise of the power conferred by the Imperial Act of 1871, and that the words of that statute authorized the utmost discretion of enactment for the object aimed at, and the widest departure from the criminal procedure as known in England.

On the 27th March, 1889, during a debate in the Canadian Parliament on the constitutionality of the Quebec Jesuits Bill, Sir John Thompson, Minister of Justice, raised for the first time, in the political arena, the doctrine that the Canadian Legislatures, federal and provincial, had legal authority to repeal or amend Imperial Acts passed prior to the B.N.A. Act, 1867, and relating to subjects within the exclusive jurisdiction of those Legislatures. The only relevant legal authority which he cited in support of the doctrine was that of Riel v. The Queen, supra. A reference to the report of that case shows that the validity of the Canadian Act was affirmed because it was authorized by the special and expressed terms of the Imperial Act of 1871.

Sir John Thompson afterwards renewed the same contention in connection with Canadian Copyright Bills; it was not acquiesced in, but strongly objected to by the Imperial law officers, and by at least two Secretaries of State. (Lefroy, Leg. Power, p. 223.)

The result of this review of authority may now be summed up. The great mass of legal decision in Canada and England, and official opinion in England, is to the effect that a colonial representative legislature cannot, even within the jurisdiction assigned to it, repeal or alter an Imperial Act operative throughout the Empire, whether the Act is in force before or passed after the creation of the colonial Legislature; to enable it to amend the terms of Imperial statutes generally in force it must have special and express authority.

These were the principles of Constitutional Government which were no doubt kept in view by the framers of the Commonwealth Bill. It was not thought necessary to declare that the Constitution should be read in conjunction with the Colonial Laws Validity Act. It was assumed, as a matter of course, that that would be done.

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When clause 5 was under consideration in the Sydney Convention an amendment, formulated by the Legislative Council of South Australia, was submitted, adding the words “in addition to the laws of Great Britain,” and making the last part of the clause to read—“in addition to the laws of Great Britain the laws of the Commonwealth shall be in force on all British ships.” The amendment, it was considered, was vague, confusing, and unnecessary. Mr. R. E. O'Connor suggested that the clause might be made clearer by inserting the words “the laws of the Commonwealth in so far as the same are not repugnant to any Imperial Act relating to shipping or navigation.” Mr. Isaacs suggested that even that addition was unnecessary, as the laws of the Commonwealth would be subject to the Imperial laws relating to repugnancy, the Imperial laws being paramount. Mr. O'Connor was of opinion that the Colonial Laws Validity Act would apply only to the legislation of the various States, and that “it would not apply to this Act at all;” but eventually the South Australian amendment was rejected, and Mr. O'Connor did not press his suggestion. (Conv. Deb., Sydney, p. 252.)

When the Bill was sent to England the question was raised, and a doubt expressed by the Law Officers of the Crown as to the application of the Colonial Laws Validity Act to Acts passed by the Federal Parliament. In support of the doubt attention was drawn to Mr. O'Connor's dictum, also to the definition of “colony” and “colonial legislature,” as given in sec. 1 of the Colonial Laws Validity Act, and to the definition of “colony” as given in Clause 6 of the Commonwealth Bill. The Imperial authorities had always held that the Parliament of the Dominion of Canada was “a colonial legislature,” as defined by the said Act; yet it was now submitted that the definition of “colony” in the Commonwealth Bill might raise a doubt whether “the Commonwealth” was a “colony” within the meaning of the Colonial Laws Validity Act, and consequently whether laws passed by the Federal Parliament would be laws passed by “a Colonial Legislature” as defined by that Act. It was, therefore, proposed to remove doubts by adding a paragraph to Clause 6 declaring that “the laws of the Commonwealth shall be Colonial laws within the meaning of the Colonial Laws Validity Act, 1865.” It was pointed out in the first Imperial Memorandum that Mr. O'Connor's dictum showed that there was room for misapprehension, which it was desirable to remove. It was important in the interests of the Commonwealth, as well as of the rest of the Empire, that there should be no doubt as to the validity of Commonwealth laws, or as to the supremacy of Imperial legislation. The Memorandum proceeded to argue that there was room for such misapprehension not only from the language of Clause 6 of the covering clauses, but also from sec. 51, sub-sec. xxxviii., of the Constitution, which conferred on the Commonwealth Parliament “the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution, be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia.” Sub-sec. xxix. of the same section of the Constitution, moreover, empowered the Commonwealth Parliament to legislate in regard to “external affairs,” and, consequently, under these provisions it might be claimed that the Parliament of the Commonwealth had power to pass legislation inconsistent with Imperial legislation dealing with such subjects as those dealt with by the Foreign Enlistment Act. The responsibility to foreign Powers for such legislation would rest, not on Australia, but on the Government of the United Kingdom, as representing the whole Empire; and in the absence of any definition or limitation of the privilege claimed by these provisions for the Commonwealth Parliament, Her Majesty's Government would fail in their duty if they left any room for doubt as to the paramount authority of Imperial legislation. (See House of Com. Pap. May, 1900, p. 23.)

The Australian Delegates maintained that the doubt raised by the Imperial Law Officers was unfounded, and that there was no necessity for any amendment. They were of opinion that the meaning of the Bill was clear, without any such legislative explanation. The doubt expressed by the law advisers of the Crown arose, as they

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explained, from the presence in Clause 6 of the words “Colony shall mean any Colony or Province.” It was submitted that this definition was framed simply for the purpose of clearly including South Australia in the Bill, and could in no wise exclude the definition of “Colony” in the Colonial Laws Validity Act from applying to the Commonwealth in relation to its laws.

“The definition in the Commonwealth Bill arises from the fact that South Australia has from time to time been variously designated in legislation as a Colony and as a Province. For instance, in the Imperial Statutes 4 and 5 Wm. IV. c. 95 and 1 and 2 Vic. c. 60, the designation is ‘Province;’ in 5 and 6 Vic. c. 61 ‘Colony’ and ‘Province’ are both used for the same purpose. In 4 and 5 Vic. c. 13, in 13 and 14 Vic. c. 59, and in all Imperial Acts relating to South Australia since the passage by the local Legislature of the Constitution Act (18 and 19 Vic. No. 2) the term ‘Colony’ is used. But in the Act last mentioned, and in all other local legislation since its passage. South Australia has uniformly been referred to as a ‘Province.’ Apart from legislation, the Letters-patent, Commissions and Instructions, issued in connection with the offices of Governor, Lieutenant-Governor, and Administrator of the Government for South Australia, have all employed the word ‘Colony’ alone to designate that possession, while the Regulations and other official documents under or in consequence of local Acts have as regularly referred to South Australia as a ‘Province.’ It was merely for the purpose of avoiding the constant repetition of the distinction between the words ‘Colony,’ as applied to the other states, and ‘Province,’ as applied to South Australia, that the definition in question was placed in the Bill. Inasmuch as Imperial legislation has so generally referred to South Australia as a Colony, it may be that excessive caution has been used by the draughtsmen in this instance. If after this explanation any doubt remains, the Delegates are of opinion that the real point of objection is in the definition itself as introducing that doubt, and if the definition is unnecessary it would not seem to be convenient to counteract any doubt by amendment elsewhere in the Bill. The Commonwealth appears to the Delegates to be clearly a ‘Colony,’ and the Federal Parliament to be a ‘Legislature’ within the meaning of the Colonial Laws Validity Act, and they cannot think that the larger meaning given to the word ‘Colony’ in Clause VI. to save words, can be held to take away the protection of the Act of 1865 from any law passed by the Federal Parliament. But the Interpretation Act of 1889 (52 and 53 Vic. c. 63) might itself be cited in support of the same contention. That Act prescribes that ‘unless the contrary intention appears, the expression “Colony” in any Act passed since the 1st January, 1890, is to mean any part of Her Majesty's Dominions, exclusive of the British Islands and of British India.’ The Interpretation Act goes on to require that where parts of such Dominions are under both a central and a local legislature, all parts under the Central Legislature shall, for the purposes of the definition, be deemed to be one Colony. It might be argued that this definition secures the application of the Validity Act to Colonial Statutes passed since the end of 1889, and if this be so it would be strange if the occurrence in Clause 6 of the few words quoted were held to deprive the laws of the Parliament of the Commonwealth of Australia of the same protection. It may further be observed that the Constitution of Canada contains no words similar to those proposed to be here inserted, even though that Constitution was enacted prior to 1889; yet it will not be denied that the Colonial Laws Validity Act applies to Dominion Statutes. What then is there which excludes its application to the Statutes of the Commonwealth?” (See House Coms. Pap. May, 1900, pp. 14, 15.)

On the question whether, if an amendment were made, it should be placed in the Covering Clauses or in the Schedule, the Delegates agreed in the opinion that a declaratory enactment of this kind would be looked for rather in the Covering Clauses than in the Schedule. But a separate enactment appeared to be a better vehicle for such a declaration than the measure itself.

The amendment declaring that “the laws of the Commonwealth shall be Colonial laws within the meaning of the Colonial Laws Validity Act, 1865,” appeared in Clause 6 of the Bill introduced into the House of Commons. As a result of subsequent negotiations, however, the Imperial Government decided to omit these words, and also to omit the definition of “colony,” and in Committee this was done. It may be assumed, therefore, that the Crown Law Officers were satisfied that the Colonial Laws Validity Act is applicable to the Constitution as it stands.

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