§ 160. “Legislative Powers.”
This important section, containing 39 sub-sections, enumerates the main legislative powers conferred on the Federal Parliament. They are not expressly described as either exclusive powers or concurrent powers, but an examination of their scope and intent, coupled with subsequent sections, will show clearly that, whilst some of them are powers which either never belonged to the States, or are taken from the States and are
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vested wholly in the Federal Parliament to the exclusion of action by the State legislatures, others are powers which may be exercised concurrently by the Federal Parliament and by the State legislatures.
CLASSIFICATION OF POWERS.—The powers conferred on the Federal Parliament may be classified as (1) the new and original powers not previously exercised by the States, such as “Fisheries in Australian waters beyond territorial limits,” “external affairs,” “the relations of the Commonwealth with the islands of the Pacific,” &c.; (2) old powers previously exercised by the colonies and re-distributed, some being (a) exclusively vested in the Federal Parliament, such as the power to impose duties of customs and excise, and the power to grant bounties on the production or export of goods, after the imposition of uniform duties of customs; and others being (b) concurrently exercised by the Federal Parliament and the State Parliaments such as taxation (except customs and excise), trade and commerce (except customs, excise, and bounties), quarantine, weights and measures, &c. The rule of construction is, that the legislative authority of the Federal Parliament with respect to any subject is not to be construed as exclusive, “unless from the nature of the power, or from the obvious results of its operations, a repugnancy must exist, so as to lead to a necessary conclusion that the power was intended to be exclusive;” otherwise, “the true rule of interpretation is that the power is merely concurrent.” (Story, Comm., § 438.)
PLENARY NATURE OF THE POWERS.—An important point to consider is whether the Legislative powers vested in the Federal Parliament are to be regarded as plenary, absolute, and quasi-sovereign, or whether they are merely entrusted to the Federal Parliament as an agent of the Imperial Parliament, so as to come within the effect of the maxim delegatus non potest delegare (Broom's Leg. Max. 5th ed. p. 840), according to which a person or body to whom an office or duty is assigned by law cannot lawfully devolve that office or duty on another unless expressly authorized. The distinction between the two classes of powers, plenary and delegated, was discussed by the Privy Council in the case of The Queen v. Burah (1878), 3 App. Ca. p. 889. The question there raised was the legality of a section of an Act passed by the Governor-General in Council of India, conferring on the Lieutenant-Governor of Bengal the power to determine whether the Act or any part of it should be applied to certain districts. The Privy Council, per Lord Selborne, said:—
“Where plenary powers of legislation exist as to particular subjects, whether in an imperial or a provincial Legislature, they may (in their Lordships' judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the Legislative powers which it from time to time conferred.” Per Lord Selborne, The Queen v. Burah, 3 App. Ca. 906.)
At the same time their Lordships were of opinion that the Governor-General in Council could not create in India, and arm with general legislative authority, a new legislative body not created or authorized by the Imperial Act constituting a Council.
In the case of Hodge v. The Queen (1883), 9 App. Ca. 117, the question raised for the decision of the Privy Council was the constitutionality of the Liquor License Act (1877), ss. 4, 5, by which the Provincial Legislature of Ontario gave authority to a Board of Commissioners to enact regulations for the government of taverns. The appellant had been convicted for a breach of one of the regulations passed by the Commissioners, and he appealed on the grounds (inter alia) that the British North America Act, 1867, conferred no authority on the Provincial Legislatures to delegate their powers to Commissioners or any other persons; that a Legislature committing the power to make regulations to agents or delegates thereby effaced itself; and that the power conferred by the Imperial Parliament on the local Legislatures could be exercised in full by these bodies only, according to the maxim delegatus non potest delegare. The Privy Council
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in considering the legislative power of the Provincial Legislatures pointed out the difference between their constitution and that of the Legislative Council of India.
“They are in no sense delegates of, or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, and that its Legislative Assembly should have exclusive authority to make laws for the Province, and for provincial purposes in relation to the matters enumerated in sect. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by sec. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect. It is obvious that such an authority is ancillary to legislation, and without it an attempt to provide for varying details and machinery to carry them out might become oppressive, or absolutely fail. The very full and very elaborate judgment of the Court of Appeal contains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, and has many illustrations of its necessity and convenience. It was argued at the bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its power intact, and can, whenever it pleases, destroy the agency it has created, and set up another, or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature, and not for Courts of Law, to decide. (Per Sir B. Peacock: Hodge v. The Queen, 9 App. Ca. 132.)
Applying the principles established in the foregoing cases to the Constitution of the Commonwealth, we may draw the conclusions: (1) As the words of the Imperial Act, creating the Federal Parliament and conferring on it legislative powers, are similar in substance and intent to those of the British North America Act, conferring exclusive legislative authority, it follows that the Federal Parliament is in no sense a delegate or agent of, or acts under any mandate from, the Imperial Parliament. (2) Its authority within the limits prescribed by the Constitution are as plenary and ample as the Imperial Parliament in its plenitude possessed and could bestow. (3) Within those limits the Federal Parliament can do what the Imperial Parliament could do, and among other things it can entrust to a body of its own creation power to make by-laws and regulations respecting subjects within its jurisdiction.
LIMITATIONS OF FEDERAL LEGISLATIVE POWER.—As we proceed with an analytical examination of section 51 it will be seen that whilst several of its sub-sections contain grants of legislative power in general and unlimited terms, the grants conveyed by other sub-sections are qualified or subject to restraints. These are known as constitutional limitations. Take sub-section 1. There, the Federal Parliament is assigned power to legislate respecting trade and commerce “with other countries and among the States;” the words quoted are words of limitation excluding from Federal control the internal commerce of each State. This is obviously a federal limitation, justifiable by considerations of federal policy. It is not founded on any distrust of the Federal Legislature; it is not designed for the protection of individual citizens of the Commonwealth against the Federal Legislature. It is, in fact, one of the stipulations of the federal compact. So the condition annexed to the grant of taxing power is, that there must be no discrimination between States in the exercise of that power. This, again, is not a limitation for the protection of private citizens of the Commonwealth against the unequal use of the taxing power; it is founded on federal considerations; it is a part of the federal bargain, in which the States and the people thereof have acquiesced, making it one of the articles of the political partnership, as effectually as other leading principles of the Constitution. Another federal limitation annexed to a grant of legislative power is that bounties granted by the Federal Parliament “shall be uniform throughout the Commonwealth.” The authority of the Federal Parliament over bounties is fettered in the same manner and for the same reasons that its authority to tax is fettered.
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Attention having been drawn to federal limitations to be found in grants of power contained in sec. 51, the subject may be here further elucidated by the statement that sec. 51 is not the only section of the Constitution in which limitations to the grants therein made are to be found. Logically, if not for perspicuity, the limitation of a power ought to be associated with or in proximity to the conveyance of power. But this rule is not uniformally observed in the drafting of Constitutions. Thus the grant of power over trade and commerce in sec. 51-i. is subject to further qualifications and restrictions contained in subsequent sections. By sec. 92, the Federal Parliament, in common with the State Parliaments, is restrained from interfering with the freedom of inter-state trade and commerce, after the imposition of uniform duties of customs. By sec. 98, the Federal Parliament is unable to pass commercial regulations which may give preference to one State over another State. In like manner the taxing power is subject to other qualifications and restrictions. The Federal Parliament cannot impose a tax which would operate in derogation of the freedom and equality of inter-state trade and commerce; secs. 92 and 98. It cannot impose a tax on property of any kind belonging to a State; sec. 114.
The first part of sec. 115 declares that the Commonwealth (Federal Parliament) shall not make a law establishing any religion. This is an absolute prohibition, an absolute denial of power, which stands in contrast to a limitation or cutting down of a power which is granted. There is, in the Constitution, no express or implied grant of power over religion which the first part of this section can possibly qualify or limit (see Note § 462). The last part of the section, providing that “no religious test shall be required as a qualification for any office or public trust under the Commonwealth,” is a true and legitimate limitation of a power granted by sec. 69; yet that limitation cannot be described as a federal limitation, warrantable and explainable by federal considerations. It is a notable instance of a national, as compared with federal, limitation. It is an example of the limitation of power founded on what Mr. Lefroy calls “distrust of Legislatures.” (Law Quarterly Review, July, 1899, p. 286. See also Lefroy, Legisl. Power in Canada, Introd. p. xlv.)
NATURE AND DISTRIBUTION OF POWERS.—It was competent for the people to invest the Federal government with all the powers they might deem proper and necessary, to extend or restrain these powers, and to give them a paramount authority. (Martin v. Hunter's Lessee, 1 Wheat. 304; Baker, Annot. Const. p. 15.)
The Federal government can claim no powers not granted to it by the Constitution; powers actually granted must be such as are given expressly or by necessary implication. The instrument is to have a reasonable construction according to the import of its terms; where a power is expressly given in general terms it is not to be confined to particular cases, unless that construction grows out of the context or by necessary implication. (Id.)
The Constitution deals in general language. It does not provide for minute specifications of powers or declare the means by which those powers shall be carried into execution. (Id.)
“I now pass to that which is, perhaps, the most delicate and most important part of this measure, the distribution of powers between the central government and the local authorities; in this, I think, is comprised the main theory and constitution of Federal Government; on this depends the principal working of the new system; the real object which we have in view is to give to the central government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured on those questions that are of common import to all the provinces, and at the same time to retain for each Province such an ample measure of municipal liberty and self-government as will allow, and indeed compel, them to exercise those local powers which they can exercise with great advantage to the community.” (Lord Carnarvon, in presenting the Canadian Constitution to the House of Lords, 1867.)