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§ 314. “The Limits Inter Se of the Constitutional Powers.”

LIMITS INTER SE.—The two classes of questions as to which appeals to the Privy Council are forbidden, except by leave of the High Court, are questions as to the limits inter se

  • (a) of the constitutional powers of the Commonwealth and those of any State or States; and
  • (b) of the constitutional powers of any two or more States.

Each of these classes refers to two sets or categories of powers, which are placed in mutual opposition to each other by the words “inter se.” Thus in class (a) we have (1) the constitutional powers of the Commonwealth on the one hand, and (2) the constitutional powers of any State or States on the other hand; and the question is as to the limits “between themselves” of these two categories of powers. In class (b), we have (1) the constitutional powers of any State or States on the one hand, and (2) the constitutional powers of any other State or States on the other hand; and the question is as to the limits “between themselves” of these two categories of powers. The question in each case is as to the limits “inter se” of the two categories; that is to say, as to whether a particular power belongs to the one category or to the other.

The word “limit,” taken by itself, is not altogether free from ambiguity; it may mean either (1) the boundary of a contained area, or (2) the extent of a contained area. But the phrase “limits inter se,” applied to two mutually opposed categories, can hardly mean anything else than the dividing line between them. Thus the questions referred to in this section are questions as to the distribution of constitutional powers—




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  • (a) between the Commonwealth on the one hand, and any State or States on the other; or
  • (b) between any State or States on the one hand, and any other State or States on the other.

In other words, it is not enough, in order to constitute a “question as to the limits inter se of constitutional powers,” that this is a question as to the extent of the powers of the Commonwealth or of a State; there must also be mutual opposition, either between the powers of the Commonwealth and those of a State, or between the powers of one State and those of another. There must be a question, not merely whether one of them has the power, but which of the two has the power. Thus a question as to the extent of the federal power to legislate with respect to trade and commerce, is a question as to the limits inter se of the powers of the Commonwealth and the States, because any increase of the power of the Commonwealth in that respect involves a diminution, either actual or potential, of the power of the States. On the other hand, a question as to the extent of the federal power to legislate in respect of fisheries beyond territorial limits is not such a question, because the States have no power in that respect, and the extent of the federal power does not affect the powers of the States in any way whatever.

Before discussing the application of the section as between (a) the Commonwealth and the States, and (b) two or more States, it will be advisable to analyse the phrase “constitutional powers.”

CONSTITUTIONAL POWERS.—The word “constitutional” need not refer exclusively to the Constitution of the Commonwealth; it may refer also to the Constitutions of the States. In Clause 74 as adopted by the Convention, the matters as to which an appeal to the Privy Council were forbidden were matters “involving the interpretation of this Constitution or of the Constitution of a State”—with an exception in cases where the public interests of some part of the Queen's dominions outside the Commonwealth were involved. This Constitution, by secs. 106 and 107, expressly saves the Constitutions of the States, and the Constitutional powers of the State Parliament, so far as they are not affected by the Constitution of the Commonwealth. It is conceivable, therefore, that questions may arise as to the limits of the constitutional powers of the States, as defined by their respective Constitutions, as well as the limits of their constitutional powers as defined by the Constitution of the Commonwealth.

The word “powers” is wide enough to include all the powers of government. It includes the legislative power of the Commonwealth (sec. 1), the executive power of the Commonwealth (sec. 61), and the judicial power of the Commonwealth (sec. 71); and also the corresponding legislative, executive, and judicial powers of the States, as defined by their respective Constitutions.

QUESTIONS AS TO LIMITS OF POWERS.—We may now proceed to discuss the nature of questions “as to the limits inter se” (a) of the constitutional powers of the Commonwealth and of the States, and (b) of the constitutional powers of two or more States.

(a) As between the Commonwealth and the States.—Questions “as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States” are questions which arise in connection with the federal distribution of power between the Commonwealth on the one hand and the States on the other. Such questions, it may fairly be assumed, will be numerous and important. One of the most fundamental features of the Constitution is the distribution of the sum-total of quasi-sovereign governmental powers—legislative, executive, and judicial—between the Federal Government and the State Governments. The legislative powers given to the Federal Parliament by sections 51 and 52, and in other parts of the Constitution, are necessarily expressed in broad and general terms; and the interpretation of these, and their application to individual cases, is one of the most important and responsible duties which will devolve upon the High Court. In the United States, the various legislative powers of the Union


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—and especially the wide power to “regulate trade and commerce with foreign nations, and among the several States”—have received an immense amount of judicial interpretation, the effect of which is to define in detail the exact limits of the powers of the Union on the one hand, and of the States on the other. A similar process of judicial development of the Constitution may be expected to occur in Australia. In the case of nearly every one of the subjects of legislation assigned to the Federal Parliament, cases may arise as to the meaning and extent of the federal power, as to the consequent limitation of the powers of the States, and as to conflicts between Federal and State laws.

Not only in the field of legislation, but also in the fields of administration and adjudication, the system of the federal distribution of power may lead to conflicts of authority and jurisdiction which will become subjects of judicial determination. The exact limits between the executive power of the Commonwealth and those of the several States, and the exact limits of the jurisdiction of the Federal and State courts respectively, will have to be determined by the Courts from time to time, whenever questions arise in the course of litigation as to the meaning or application of the provisions of the Constitution upon these subjects.

(b) As between State and State.—Questions “as to the limits inter se of the constitutional powers of any two or more States” are of a different character, and are likely to be neither so important nor so numerous. In the case of the distribution of power between the Commonwealth and the States, we have to deal with two sets of governing organs, operating upon the same territory and upon the same people, but exercising different sets of powers; and the delimitation of their respective spheres of action is necessarily somewhat difficult and intricate. But in the case of two States, we have two sets of governing organs, exercising similar powers, but operating upon different territories and upon different people. The delimitation in this case is chiefly territorial, and is therefore much simpler. Questions of disputed boundaries, and questions of disputed territorial jurisdiction, would clearly come within the scope of this provision; but it is not quite apparent what other questions could arise as to the limits inter se of the constitutional powers of two States. A State might indeed make unconstitutional discriminations against another State or the residents therein (sec. 117); but a question arising out of any such discrimination would hardly be a question of the limits inter se of the constitutional powers of both States; it would rather be a question of the constitutional powers of one State and the constitutional rights of the other. A breach by one State of the obligation to give full faith and credit to the laws, public acts or records, or judicial proceedings of another State (sec. 118), might perhaps raise a question as to the limits inter se of constitutional powers.

GENERAL SCOPE OF THE PROHIBITION.—A consideration of this section shows that the general scope of the questions as to which an appeal to the Privy Council is forbidden is far narrower than under the clause as adopted by the Convention, which forbade such an appeal “in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the public interests of some part of Her Majesty's Dominions, other than the Commonwealth or a State, are involved.” That provision made the High Court the final arbiter of all questions of constitutional interpretation, except where the interests of some other part of the Empire were concerned. But there are many questions of constitutional interpretation, involving no interests outside the Commonwealth, which do not come within the range of the questions defined in this section. The Constitution, besides distributing powers between the Federal and State Governments, grants to the Federal Parliament certain new powers not previously exercised by the Parliaments of the States, and also prescribes the structure of the several departments of the Federal Government, and the mode in which the powers conferred are to be exercised. Questions may arise as to the valid exercise of some of these new powers, or as to the constitution of one of the organs of the Federal Government—such as the Inter-State Commission, or the High Court—or as to the proper procedure for the exercise of an admitted federal power. These would not be questions


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as to the limits inter se of constitutional powers, and would be subject to the Queen's prerogative right of granting leave to appeal.

The duty of defining the class of questions in which the prerogative of appeal is taken away will devolve chiefly upon the Judicial Committee of the Privy Council, upon applications for special leave. The High Court, upon an application for a certificate under this section, will also have to interpret the section; but it must clearly be governed, in the matter of interpretation, by the decisions of the Privy Council. (See note, § 315, infra.)

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