§ 238. “Matters Relating to any Department.”

The Federal Parliament has exclusive power to make laws with respect to “matters relating to any department” of the public service transferred to the Commonwealth.

A consideration of the expression, “matters relating to any department,” suggests that it does not cover the whole field of legislation relating to the subject-matter appropriate to the department. The exclusive power to make laws “with respect to matters relating to the department” of quarantine does not cover the same area as the power to make laws “with respect to quarantine;” and so with the other departments. There may be laws relating to a subject of legislation, but not relating to the corresponding department of the public service. A department of the public service is a branch of the Executive Government, not a segment of the legislative power; and what this sub-section gives to the Federal Parliament is exclusive power to control executive departments, not exclusive power to occupy legislative areas.

Matters “relating to any department” would clearly include all matters relating to the organization, equipment, working, and management of the department, the appointment classification, and dismissal of officers, and all the general body of law relating to its conduct and administration; it would cover all the machinery, procedure, and regulation, without which a public department would be impotent; but it does not seem to cover the whole of the principal and substantive law dealing with the matters controlled or controllable by the department. With respect to the whole of that field, of course, the Federal Parliament has “power to make laws” under sec 51, and it may, in the exercise of that power, occupy the whole field, and so exclude every particle of the concurrent jurisdiction of the States; but it is not by this section given “exclusive power” over the whole of that field.

Thus the gift of exclusive power to make laws with respect to matters relating to the departments transferred by sec. 69—such as those of posts, telegraphs, and telephones, light-houses, light-ships, beacons and buoys, and quarantine—does not entirely remove from the States the concurrent power to make laws with respect to “postal, telegraphic, telephonic, and other like services” (sec. 51—x.); “light-houses, light-ships, beacons, and buoys” (sec. 51—vii.); and “quarantine” (sec. 51—ix.). With respect to matters relating to the corresponding executive departments, the federal power is exclusive, but otherwise—so far as this section is concerned—concurrent legislative power of the States is not affected. As to the time when the federal control over “custom and excise” becomes exclusive, see sec. 90; as to “naval and military defence” see sec. 114; and as to “coinage” see sec. 115.

Apart, however, from the exclusiveness enforced by this section or flowing from the prohibitions contained in secs. 90, 114, and 115, the rule that the States may not pass laws inconsistent with the laws of the Commonwealth will, from the outset, give to the Federal Parliament, in connection with these departments, a large measure of exclusive power. Thus it would be inconsistent with the transfer of the postal department to the Commonwealth if a State were afterwards to establish a competing postal service, or authorize a corporation to do so. Nor will it be possible for a State after the transfer of departments to the Federal Government to issue legislative mandates to those departments. But though the States are excluded from the field occupied by the Federal Government, they are free to fill up nooks and crannies left unoccupied. It is easy to conceive of cases in which the States may make and execute laws auxiliary or supplementary to, and not inconsistent with, the laws administered by the transferred

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departments. Thus the State Parliaments could clearly, if thought necessary, grant subsidies in aid of particular federal services; afford facilities for the carriage of federal mails, and authorize the Executive of the State to contract with the Federal Government for such carriage; buoy and light harbours and channels not buoyed or lighted by the Federal Government; and so forth. These are “laws with respect to” postal services, &c., but they are not laws with respect to matters relating to the departments transferred; and therefore they are—so far as they are not inconsistent with any federal law—within the legitimate concurrent power of the States.

The next question is, when does this exclusiveness, with regard to the transferred departments, arise? It would seem that the Federal Parliament is intended to have exclusive power over matters relating to transferred departments, as soon as they are “transferred.” It may, however, be argued that the words “the control of which is by this Constitution transferred” are merely intended to identify the departments enumerated in sec. 69, and not to define the time at which the character of exclusiveness attaches; and that consequently, though the administration of the departments is not transferred till a later date, the power of legislation in respect of them is exclusively vested in the Federal Parliament from the establishment of the Commonwealth. As regards the departments of customs and excise, this question does not arise, because they become transferred to the Commonwealth on its establishment.

The extent of the exclusive power over the transferred departments, and the time at which the exclusiveness arises, having been discussed, the effect of the exclusiveness may be gathered from the preceding note (“Exclusive Power,” § 234, supra). The State Parliaments will have no power, from the moment when the federal power becomes exclusive, to pass laws in respect of matters relating to the transferred departments. It does not follow, however, that those departments will be at once emancipated from the control of the laws of the States existing at that date. On the contrary, until those laws have been superseded by federal legislation, the departments transferred from each State will be conducted by the Federal Government in accordance with the existing laws of the State—laws which the State Parliament is thenceforth powerless to alter or repeal, but which may be superseded at any moment by federal legislation.

With respect to the officers and staff of the transferred departments, the power of the Federal Parliament to make laws in respect of matters relating to the departments is subject to an important limitation. By sec. 84 every officer of a transferred department, who is retained in the service of the Commonwealth, preserves all his existing and accruing rights; and of those rights he cannot be deprived, even by the Federal Parliament. (See Note, § 356, infra).