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§ 225. “The Exercise … of any Power.”

It is not very clear what powers are referred to in this sub-section. It is apparently another “drag-net,” intended to enable the Federal Parliament, with the concurrence of the State Parliaments, to exercise certain powers which are capable of being exercised within the Commonwealth, but which are not among the enumerated powers of the Federal Parliament, and which, not being vested in the State Parliaments, cannot be referred by those Parliaments under sub-sec. xxxvii. In contradistinction to sub-sec. xxxvii., which refers to powers exercisable by the State Parliaments, this sub-section refers to powers which at the establishment of the Constitution are “only” exercisable by either (a) the Parliament of the United Kingdom, or (b) the Federal Council of Australasia. We must therefore enquire what powers there are which are capable of being exercised “within the Commonwealth,” and for the “peace, order, and good government of the Commonwealth,” but which at the establishment of the Commonwealth are only exercisable by the Imperial Parliament or by the Federal Council.

(a) POWERS EXERCISABLE BY THE IMPERIAL PARLIAMENT.—The powers referred to, being, at the establishment of the Constitution, “only” exercisable by the Imperial Parliament, must be powers which did not belong to the Parliaments of the colonies before they became States. But the Parliament of each colony had general powers to make laws for the peace, order, and good government of the colony, subject only (1) to the general exception expressed in the Colonial Laws Validity Act—that such laws must not be repugnant to any Imperial law expressly extending to the colony; (2) to certain particular exceptions expressed in the Constitution Act of each colony; and (3) to the limitation that such laws could not operate extra-territorially, except where express authority to that effect had been given by the Imperial Parliament.

It would seem, therefore that the only powers to make laws for the peace, order, and government of a colony which at the establishment of the Commonwealth are “only exercisable” by the Imperial Parliament are powers which come within one of these three classes of exceptions or limitations. Does this sub-section enable the Federal Parliament, with the concurrence of the States, to pass laws for the exercise of any of these powers?

When the Commonwealth Bill was before the Imperial Parliament, this sub-section was mentioned as one of the provisions of the Constitution which might raise a doubt as to the applicability of the Colonial Laws Validity Act. The opinion has already been expressed (pp. 347–352, supra) that this doubt was unfounded, and that the Commonwealth has no power to pass laws repugnant to Imperial legislation extending to the


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colonies—such as the Merchant Shipping Act of 1894. It seems equally clear that this sub-section does not enable the Federal Parliament to pass laws with an extra-territorial operation; the words “the exercise within the Commonwealth” exclude such a construction. Does it then enable the Federal Parliament, with the concurrence of the States, to exercise any powers denied to the States by the particular exceptions contained in the Constitution Acts of the States? Those Constitution Acts are Imperial laws, so that even this construction would involve, pro tanto, a conflict with the Colonial Laws Validity Act, which does not seem to be contemplated. It is difficult, therefore, to see what power can be conferred on the Federal Parliament by these words.

(b) POWERS EXERCISABLE BY THE FEDERAL COUNCIL.—It is equally difficult to give any effect to the power to make laws in respect of the exercise of powers which, at the establishment of the Commonwealth, were only exercisable by the Federal Council. In the first place, the Federal Council Act is repealed by covering clause 7 of the Commonwealth Act, which took effect on the passing of the Act on 9th July, 1900; so that at the date of the establishment of the Commonwealth no powers whatever are exercisable by the Federal Council. (See remarks by Mr. Isaacs and Mr. Barton, Conv. Deb., Melb., pp. 225–6.) But apart from this question, the powers expressly given to the Federal Parliament seem to include every power which was ever exercisable by the Federal Council. The Federal Council only had independent legislative authority over seven subjects (see pp. 111–2, supra), every one of which is covered by sec. 51 of this Constitution; and its powers of legislation upon reference by the Parliaments of the colonies were certainly no wider, and probably narrower, than those given to the Parliament of the Commonwealth by sub-sec. xxxvii.

51. (xxxix.) Matters incidental226 to the execution of any power vested by this Constitution227 in the Parliament228 or in either House thereof229, or in the Government of the Commonwealth230, or in the Federal Judicature231, or in any department232 or officer233 of the Commonwealth.

HISTORICAL NOTE.—The Constitution of the United States empowers Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” (Art. I. sec. viii. sub-s. 18.) In the Bill of 1891 the sub-clause stood: “Any matters necessary or incidental for carrying into execution the foregoing powers and any other powers vested by this Constitution in the Parliament or Executive Government of the Commonwealth or in any Department or Officer thereof.” In that form it was adopted at the Adelaide session in 1897.

At the Sydney session Mr. Isaacs called attention to the absence of any mention of the Judiciary. (Conv. Deb., Syd., 1897, pp. 1190–1.)

At the Melbourne session the sub-clause was amended, in Committee and after the fourth report. (Conv. Deb., Melb., pp. 226–7.)

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