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§ 446. “Subject to this Constitution.”

The Federal Constitution withdraws powers and functions, but it does not abolish or interfere with any of the political institutions established in the States under their respective Constitutions. The States retain their executive, legislative, and judicial departments as before, but shorn of some of their powers and functions. The Governor and Executive of a State will not be required to discharge all the duties which belonged to the Governor and Executive of a separate colony. The Parliament of a State will not have the same quantity of work to get through as the Parliament of a separate colony. The Courts of the States, however, will not, to any appreciable extent, lose any of their old duties, whilst new Federal work may be imposed upon them.

UNIMPAIRED EXECUTIVE POWER.—The Executive Government of each State retains the right to hold direct and immediate communication with the Imperial Government in all matters relating to State business. In the Draft Bill of 1891, ch. V. clause 5, it was provided that “all references or communications required by the Constitution of any State or otherwise to be made by the Governor of the State to the Queen shall be made through the Governor-General, as Her Majesty's Representative in the Commonwealth, and the Queen's pleasure shall be made known through him.” In support of this section strong arguments were advanced by members of the Convention of 1891, of known sympathy with State rights:

“I have always maintained that one of the principal reasons for establishing a federation in Australia was because the Governments were always pulling in different directions. Australia speaks with seven voices instead of with one voice. Now, the hon. gentleman wishes that Australia should continue to speak with seven voices instead of with one voice. (Mr. Gillies: Only on matters appertaining to themselves! Dr. Cockburn: On matters appertaining to themselves they should not want to communicate with the Imperial Government at all!) I maintain that ministers in Australia are to be the Queen's ministers for the Commonwealth, and any communication affecting any part of the Commonwealth which has to be made to or by the Queen, should be made with their knowledge. Without that we shall not have the voice of one Commonwealth in Australia. I maintain that this argument is quite indisputable. The hon. member's argument amounts to this: somebody will not like it; some people object to it, and it is not absolutely necessary. I admit that it is not absolutely necessary; but I say it is necessary if we are going to establish a real Commonwealth in Australia. I think the idea is that there is to be but one Government for Australia, and that we shall have


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nothing more to do with the Imperial Government except the link of the Crown. We recognize the Crown, but do not desire to have the Governments of Australia all trying to attract the attention of the Secretary of State in Downing-street. (Mr. Gillies: We cannot prevent them from having agents-general!) Certainly not; but the agents-general will be limited to their functions as commercial agents. (Mr. Gillies: Will they?) They will no longer be diplomatic agents. I maintain that Australia is to have only one diplomatic existence, and, therefore, only one diplomatic mouth-piece in any other part of the world.” (Sir Samuel Griffith, Conv. Deb., 1891, p. 850.)

“I do not think there is in this Convention a stronger advocate of State rights and State interests than I am; but, still, I strongly support the clause as it stands, for it seems to me that one of the very fundamental ideas of a federation is that, so far as all outside nations are concerned, we shall be Australia to the outside world, in which expression I include Great Britain; that we shall speak, if not with one voice, at all events, through one channel of communication to the Imperial Government.” (Mr. R. C. Baker, id. p. 852.)

“It really does one good to hear so sound a sentiment from my hon. friend, Mr. Baker, to which I entirely respond. I cannot understand for the very life of me, how we can aspire to be one Australian people under the Crown, and have several channels of communication with the Crown. We must either be a nation or we must be a chain of unfederated States.” (Sir Henry Parkes, id. 853.)

The clause was carried by 16 votes to 6. The draft of the Constitution, as submitted by the Constitutional Committee to the Federal Convention at Adelaide, contained no such clause. In the Convention Mr. Deakin proposed to insert a clause similar to that of the old Bill. Such a provision, he argued, was absolutely essential to secure a proper national administration of Australasian affairs. There should be only one channel of communication with the Imperial Government. If there were separate and independent communications sent to the Imperial Government through the various State Governors, there would be the possibility of dissension and discord. There should be only one Australian voice heard in London, and to secure that, every official communication relating to public matters within the Commonwealth should go through the Governor-General. (Mr. A. Deakin, Conv. Deb., Adel., p. 1177.)

The proposed new clause was strongly objected to by Sir Edward Braddon and Mr. Kingston. It was agreed that the federation should speak with only one voice on behalf of Australia generally, but subject to the qualification that it should only speak on national affairs, and that it should leave State affairs to the management of the States without the slightest interference. If every communication relating to State affairs had to pass through the Governor-General, it would mean the subordination and degradation of the office of State Governor to the position occupied by a Lieutenant-Governor in Canada. The States would regard it as objectionable to have to send their reserved Bills to the Imperial Government through the Governor-General. It would be a serious blow to the autonomy of the States, and likely to lead to friction between the Governments of the States and the Federal Government; it might result in the loss of power and prestige, which it was not intended that the States should suffer. The proposed clause was negatived.

LOSS OF EXECUTIVE POWER.—Among the prominent executive powers to be transferred from the States to the Federal Government are the administration of the customs and excise departments, and the control of the payment of bounties, from the establishment of the Commonwealth; the administration of the post, telegraph, and telephone departments, the command-in-chief of the naval and military forces, the management of light-houses, light-ships, beacons, buoys, and quarantine, on dates to be proclaimed by the Governor-General after the establishment of the Commonwealth.

GAIN OF EXECUTIVE POWER.—The Governments of the States have, under the new Constitution, assigned to them some new executive powers, among which may be mentioned the issue of writs for election of senators (sec. 12); the certification to the Governor-General of the names of senators chosen for each State (sec. 7); on the place of a senator becoming vacant, before the expiration of his term of office whilst the Houses of Parliament of the State are not in session, the appointment of a person to hold the place temporarily (sec. 15).




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Saving of power of State Parliaments.

107. Every power of the Parliament of a Colony447 which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

UNITED STATES —The powers not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.—Amendment X. SWITZERLAND.—The Cantons are sovereign, so far as their sovereignty is not limited by the Federal Constitution; and, as such, they exercise all the rights which are not delegated to the Federal Government.—Art. 3.

HISTORICAL NOTE.—Clause 1, Chap. V. of the Commonwealth Bill of 1891, was as follows:—

“All powers which at the date of the establishment of the Commonwealth are vested in the Parliaments of the several Colonies, and which are not by this Constitution exclusively vested in the Parliament of the Commonwealth, or withdrawn from the Parliaments of the several States, are reserved to, and shall remain vested in, the Parliaments of the States respectively.” (Conv. Deb., Syd. [1891], pp. 849–50.)

At the Adelaide session, 1897, the clause was passed almost verbatim. At the Melbourne session, before the first report, it was re-drafted as follows:—

“All powers of the Parliament of a colony or province which at the establishment of the Commonwealth or afterwards becomes a State, except such powers as are by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, shall continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.”

After the fourth report the clause was altered to its present form.

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