§ 234. “Exclusive Power.”

This section purports to confer on the Federal Parliament exclusive power to legislate concerning certain subjects. “Exclusive” in this section, as in the corresponding sections of the British North America Act, 1867, means the sole or exclusive right of the Federal Parliament, as opposed to the State Parliaments. (Per Hagarty, C.J., in Regina v. College of Physicians, 44 Upper Can. Q.B. 576.) If sec. 51 is designed to enumerate powers which, for a time, may be concurrently exercised by the Federal Parliament, whilst sec. 52 is supposed to specify powers exclusively vested in the Federal Parliament, then the classification intended has not been strictly observed in the allocation of subjects among these sections. There are several powers granted by sec. 51 which, on their face, could never have been exercised by any State Parliament and which are, ex necessitate, federal powers only, such as the powers to make laws in respect of “borrowing money on the public credit of the Commonwealth;” “the naval and military defence of the Commonwealth;” “fisheries in Australian waters beyond territorial limits;” “the service and execution throughout the Commonwealth of State process and judgments;” “the relations of the Commonwealth with the islands of the Pacific.”

COMMENCEMENT OF EXCLUSIVENESS.—Questions may arise as to the time when the character of exclusiveness attaches to any particular subject of legislation. In the case

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of the powers mentioned above as being necessarily exclusive in their nature, exclusiveness of course attaches from the moment when the federal power vests—that is, from the establishment of the Commonwealth. But the powers conferred by this section cannot all become exclusive immediately on the establishment of the Commonwealth. Power over the seat of government cannot be exercised at all—much less become exclusive—until its location has been determined by the Parliament; and similarly power over places acquired by the Commonwealth cannot be exercised—much less become exclusive—until such places have been acquired. The question of the time at which the several exclusive powers of the Parliament acquire the character of exclusiveness will be found discussed under the headings of those powers.

EFFECT ON STATE LAWS.—The gift to the Parliament of the exclusive power to make laws in respect of certain subjects withdraws from the State legislatures all power of making laws upon those subjects. From the moment when the exclusiveness attaches, the power of the State Parliaments to legislate is gone. The question then arises—how does this exclusiveness affect the laws of the States, in respect of those subjects, passed before the exclusive federal power attached? Do they continue in existence until superseded by federal legislation, or do they cease to have effect from the moment when the Parliament that passed them ceased to have power?

In the United States there was for many years much difference of opinion as to the nature of an exclusive power. Hamilton (Federalist, No. 32) thought that until Congress had acted in pursuance of an exclusive authority, the States could legislate on the subject. Chief Justice Marshall's opinion seems to have been that where Congress had exclusive power over any subject, the States could not pass laws dealing with that subject as such; but that State legislation upon a subject not exclusively delegated to Congress might incidentally affect the exclusive area, so long as it did not conflict with actual Federal legislation. (See Gibbons v. Ogden, 9 Wheat. at p. 204; Lewis, Federal Power over Commerce, p. 39.) Thus in Chief Justice Marshall's view, the federal power over inter-state commerce was exclusive; but this, though it prevented the States from legislating for the purpose of affecting such commerce, did not invalidate a State law which flowed from an acknowledged power of the State, but which incidentally affected commerce. “Commerce, as commerce, could not be regulated by the States if the power was exclusively in Congress; but, except in case of an actual conflict, commerce might in effect be regulated, or as we have chosen to call it, ‘affected,’ by a law passed by a State for the purpose of providing for the health or morals of her citizens.” (Lewis, Fed. Power over Commerce, p. 42.) A third view of the exclusive power was that adopted by Mr. Justice Story, that—the commerce power being taken to be indivisible and exclusive—the States were not only unable to regulate commerce as commerce, but were unable, even in the exercise of their acknowledged police powers, to pass a law affecting commerce. (New York v. Miln, 11 Pet. p. 132.)

The third view of the nature of an exclusive power was that most generally accepted, and it appears to have been thought that it involved the conclusion that a gift of exclusive power to the Union would not only prevent State legislation for the future, but would sweep away State legislation existing at the time of the Union. In Cooley v. Port Wardens, 12 How. 299, this was apparently assumed by the court, though the point was not in issue. The assumption was that when the legislative power lapsed, laws already made in pursuance of that power lapsed also.

The Constitution of the Commonwealth, however, is explicit where the American Constitution was vague. The distinction between State powers and State laws is expressly drawn (secs. 107, 108), and it seems clear that while powers which are exclusively vested in the Federal Parliament are, from the moment of such vesting, taken away from the States, laws of the States existing at that moment continue in force “subject to the Constitution.” That is to say, such laws, so far as they are not inconsistent with some provision of the Constitution itself, will continue in force until superseded by federal legislation. This is the view which was taken throughout the

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Convention (see especially Conv. Deb., Melb., pp. 227–257), and it is emphasized in sec. 90; where, in addition to providing that on a certain event the power to impose customs and excise duties and to grant bounties shall become exclusive, it is thought necessary to declare expressly that on that event all State laws imposing such duties or offering bounties shall cease to have effect. In this section there is no such provision.

Care must, however, be taken to distinguish between powers which are exclusive from an express gift to the Federal Parliament of “exclusive power to make laws,” and powers which are exclusive because any exercise of those powers by the States is expressly, or by necessary implication, prohibited. The provisions, for instance, that a State shall not raise or maintain any naval or military force, or impose a tax on property of the Commonwealth, or coin money, prohibit not only State legislation, but also State administration. A State will not be able, under cover of its existing law, to perform executive acts which infringe these prohibitions; and existing laws which purport to give the State such power will, for all practical purposes, cease to have effect. (See Notes to sec. 108.)