§ 285. “In the Authority Exercising Similar Powers.”
Of the administrative powers and functions which, under the Constitution, pass to the Federal Executive Government, some were previously vested in the Governors of the Colonies, some in the Governors of the Colonies with the advice of their respective Executive Councils, and some in local authorities within the Colonies appointed by law. Those described as vested in the Governors belong, technically, to the prerogatives of the Crown; those described as vested in the Governors with the advice of their respective Executive Councils, are dependent on statute law; those described as vested in “any authority of a Colony” were founded on statute and by statute were vested in Ministers, local boards, bodies, commissions, or officers. Thus in connection with the department of light-houses, light-ships, beacons, and buoys, certain powers and functions have been, under the Colonial system, generally assigned to marine boards; so in connection with the quarantine department certain powers and functions have been exercised by Boards of Health. Now, the intention of this section is that on the transfer to the Federal Executive Government of matters involving the exercise of Executive powers and functions, those powers and functions which in the pre-federal period were, by express terms, vested in the Colonial Governors, shall under the Federal regime and by express terms be vested in the Governor-General; that, likewise, those Executive powers and functions which were vested in the Colonial Governors with the advice of their respective Executive Councils shall, by express terms, be vested in the Governor-General in Council; and lastly, that those Executive powers and functions which were formerly vested in local authorities shall be vested in some Federal Authority, exercising similar powers under the Commonwealth.
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The difference between transferred powers and functions vested in the Governor-General, and transferred powers and functions vested in the Governor General in Council, is purely an historical one and not one of substance, and all such powers and functions will be exercised by the Governor-General through Ministers having the confidence of the Federal Parliament.
The substantive meaning of this section (which is adapted from section 12 of the British North America Act, quoted above) is that executive functions which were formerly exercised in relation to the separate colonies, but which are now to be exercised in relation to the Federal Government, are vested in some Federal officer or authority corresponding to the provincial officer or authority in whom they were formerly vested.
The section is intended to facilitate the proper performance of duties in connection with transferred departments, before those duties have been regulated by federal law. After the transfer, the exclusive legislative power in respect of those departments belongs to the Federal Parliament; but until the Federal Parliament acts in pursuance of its exclusive power, the departments will be administered in accordance with the provisions of this section. It does not appear to interfere in any way with the discretion of the Federal Parliament to afterwards assign any of these duties to what officers it pleases. It declares that all these powers and functions “shall vest” in the corresponding department, officer, or authority, but it does not declare that they shall continue to be so vested; and to construe the vesting as permanent would introduce a conflict with sec. 61, which declares that the executive power of the Commonwealth is vested in the Queen, and exercisable by the Governor-General as the Queen's Representative. The whole power is vested in the Queen; but particular statutory powers are to “vest in”—i.e., to be exercisable by—certain officers. The power of the Parliament (sec. 51—xxxix.) to make laws as to matters incidental to the execution of any power vested in the Governor-General of the Commonwealth, or in any department or officer of the Commonwealth, does not seem to be affected by this provisional vesting.
The only other point arising out of this section which requires consideration is, how is “the authority exercising similar powers under the Commonwealth” to be created? Could the Executive Government of the Commonwealth appoint a marine board to supervise lighthouses, &c., taken over according to the terms of a proclamation issued under sec. 90? Could the Executive Government establish a Board of Health to manage the quarantine department taken over according to a proclamation under the same section? Would Federal legislation be necessary in order to authorize certain proceedings and operations of those services to be conducted through the agency of Boards? It is conceived that such legislation would be necessary, and that pending its adoption those services, if taken over by proclamation only, would have to be managed directly by responsible Ministers of State. Probably those and other services would not be taken over by the authority of proclamation alone, but by proclamation accompanied by Federal laws, making temporary arrangements for preserving, in each State, the jurisdiction of local authorities until uniform Federal legislation is adopted.