§ 209. “Recognition.”

As service and execution are the dominant features of the preceding sub-section, so “recognition” is the ruling principle of this one. It is founded on Art. IV. sec. 1 of the Constitution of the U.S. of America, which is as follows:—“Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” This sub-section is partly reproduced in a declaratory form in section 118 of the Constitution of the Commonwealth which reads:—“Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public acts and records, and the judicial proceedings, of every State.”

Under this power the Parliament may legislate in order to give effect to sec. 118. The Supreme Court of the United States of America, in a series of decisions under a section of that Constitution corresponding to sec. 118 of ours, has decided that a judgment rendered in one State does not carry with it into another State the efficacy of a judgment affecting property or persons to be enforced by direct and immediate execution. In order to give it such force in another State it must be made a judgment there, and it can only be executed there as the laws of the States permit. The record of a judgment in one State, rendered after due notice, is conclusive evidence in the courts of another State, as well as in the courts of the United States, of the matter adjudged. A judgment so recorded differs from judgments recorded in a foreign country, in these respects (1) it is not re-examinable on its merits; (2) it is not impeachable for fraud in obtaining it, if rendered by a court having jurisdiction of the cause and the parties. This provision was not intended to confer any new powers upon the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of other States domestic judgments, to all intents and purposes, but only gave a general validity, faith and credit to their

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evidence. The above principles are deduced from cases cited in Baker, A.C., 152. “So I take it,” said Mr. Barton, “that the effect of this clause will be to cause the courts of the Commonwealth to take judicial notice of the laws, acts, and records of the States, without the necessity of requiring them to be proved by cumbrous evidence.” (Conv. Deb., Adel., p. 1005.)

This sub-section appeared in the Draft Bill of 1891. On the consideration of the sub-section by the Convention of 1891, Mr. (now Sir Richard) Baker asked whether it would include the recognition, in one State, of probate of a will issued in another. “There was,” he said, “a great deal of unnecessary expense and trouble in the registration of probates and letters of administration issued by one colony in another colony.” “I think,” said Sir Samuel Griffith, in reply, “that probate of a will must be regarded as coming under the heading of a judicial proceeding.”... “This is a clause to enable the Federal Parliament to make a law recognizing a judicial proceeding —that is, probate. But it recognizes the probate for what it purports to be; that is, the proof of the will and the committal of the administration of the property in that State to some person. The committal of the administration of the property in any State is a matter for that State. Another State will recognize the probate; but they do not necessarily commit the administration to the same person. They will recognize the will as far as the judicial proof of it extends and no further.” (Conv. Deb., Syd., 1891, p. 686–7.)

At the Adelaide session of the Convention of 1897, when the sub-section was discussed, Mr. Henry Dobson enquired “whether, under it, the courts of the other colonies would take cognizance of the appointment of a Receiver or Trustee of Lunacy or Curator of Intestate Estates; so that upon the registration of the document making the appointment, assets and lands in different colonies can be administered. I want to know whether under this section we can have some such machinery as that under the Probate Acts, where probate granted in one colony is sealed in another colony, whereby the will is practically proved in another colony, so that estates of an intestate or lunatic may be administered under the one authority. If a man dies intestate in one colony, would the administrator or curator be able to register his appointment in another colony and deal with the assets there?” In reply to these enquiries the American cases decided under the corresponding clause were cited by Mr. Barton. It was suggested that this sub-section alone merely meant to refer to the evidence necessary to secure the credit and recognition of laws, public acts, records, and judicial proceedings of the courts of the States, but that, read in conjunction with the preceding sub-section xxiv., referring to “service” and “execution,” it might mean something more than mere credit and recognition. It is submitted that under this sub-section provision might be made for the inter-state cognizance of such appointments as those of executor, administrator, curator of intestate estates, and trustee in lunacy, as these appointments are generally made by the courts, and hence come within the category of public acts, records, and judicial proceedings. If such legal representatives obtain a judgment or order in a court of competent jurisdiction, within the State to which the deceased person or the lunatic belonged, they could, aided by appropriate legislation under sub-sec. xxiv., issue process and enforce the same by sale of lands and chattels in another State. (Conv. Deb., Adel., 1897, p. 1005.)

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51. (xxvi.) The people of any race210, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws:

HISTORICAL NOTE.—In the Bill of 1891 the following sub-clause was comprised among the exclusive powers of the Federal Parliament:—“The affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorize legislation with respect to the affairs of the aboriginal native race in Australia and the Maori race in New Zealand.” (Conv. Deb., Syd., 1891, pp. 701–4.) At the Adelaide session the sub-clause was introduced and passed in substantially the same words. (Conv. Deb., Adel., pp. 830–1.)

At the Melbourne session, a debate occurred on the question whether this power ought to be exclusive, so that the State Parliament, in the absence of Federation, would be unable to make special laws in respect of alien races within their territory. Eventually the sub-clause was omitted, on the understanding that it would be placed among the concurrent powers of the Parliament. (Conv. Deb., Melb., pp. 227–56.) Accordingly before the first report the sub-clause was inserted in its present form.