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§ 450. “When a Law of a State is Inconsistent.”

Our analysis and explanations of secs. 106, 107, and 108 render it unnecessary to elaborate on sec. 109, which is practically a corollary to the three preceding sections. Sec. 106 provides that the Constitution of each State is to continue, subject to the Constitution of the Commonwealth. Sec. 107 provides that the power of each State Parliament is to continue, subject to the Constitution of the Commonwealth. Sec. 108 provides that every law in force in a colony is to continue, subject to the Constitution of the Commonwealth. The consequence of this subjection of State Constitution, State Parliamentary power, and State law, to the Federal Constitution, would have been obvious without the insertion of sec. 109. That section, however, places beyond doubt the principle that the Federal Constitution and the laws passed by the Federal Parliament, in pursuance of that Constitution, prevail over the State Constitutions and the State laws passed by the State Parliaments, in pursuance of the State Constitutions. The later laws, however, are declared to be invalid only to the extent of their inconsistency with the former.

“A law of the Commonwealth” means a valid law. A law passed by the Federal Parliament outside the scope of its authority would be no law at all. (Norton v. Shelby County, 118 U.S. 425.)

It has been held in the United States that the cases in which federal legislation will supersede the legislation of a State are those in which the same matter is the subject of legislation by both. (Davis v. Beason, 133 U.S. 333.) When a State statute and a Federal statute operate upon the same subject matter, and prescribe different rules concerning it, and the Federal statute is one within the power of the Federal Parliament, the State statute must give way. (Gulf, Colorado, and Santa Fè R. Co. v. Hefley, 158 U.S. 98.)

Provisions referring to Governor.

110. The provisions of this Constitution relating to the Governor of a State451 extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State.

HISTORICAL NOTE.—Clause 9, Chap. V., of the Commonwealth Bill of 1891 was in identical terms, with the addition of the words “by whatever title he is designated.” At the Adelaide session, 1897, this was adopted without modification. At the Melbourne session, drafting amendments were made before the first report and after the fourth report. (Conv. Deb., Melb., p. 645.)

Chap. V. of the Commonwealth Bill of 1891 also contained the two following clauses:—

  • 7. “In each State of the Commonwealth there shall be a Governor.
  • 8. The Parliament of a State may make such provisions as it thinks fit as to the manner of appointment of the Governor of a State, and for the tenure of his office, and for his removal from office.”

In Committee, Sir John Bray objected to clause 7 as unnecessary and inadvisable, and as an interference with the States. Sir Samuel Griffith did not remember why it


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was inserted, but suggested that it was to “indicate that the States are sovereign,” and are not merely to have Lieutenant-Governors. The clause was agreed to. Clause 8 was objected to as limiting the powers of the Crown, as an interference with the State Constitutions which was beyond the functions of the Convention, and as encouraging an undesirable system of elected Governors. On the other hand it was urged that the clause was merely enabling, that there should be some such power, and that the objections were imaginary. The clause was carried by 20 votes to 19. (Conv. Deb., Syd., 1891, pp. 865–77.)

At the Adelaide session the clause providing that there should be State Governors was introduced verbatim, but the clause dealing with their mode of appointment was omitted. In Committee, Dr. Cockburn moved to insert it, as otherwise the appointment of the Governors would practically be with the Federal Executive, as in Canada. This amendment would have enabled the Parliament of a State to provide for the election of the Governor, either by the Parliament of the State, or by a mass vote of the people. Mr. Grant suggested the substitution of “Lieutenant-Governor,” and Sir John Downer supported Dr. Cockburn, to make it clear that the State Governors are not Lieutenant-Governors. The clause was objected to partly on the ground that the Convention had no authority to interfere with the Constitutions of the States, even to make them more easy of amendment than at present; and partly on the ground that the clause was not only a power but an invitation to the States to elect their own Governors. On the other hand it was urged that the Constitution practically abolished the necessity for State Governors, or at least altered the character of their office; and that it was the duty of the Convention to empower the States to meet the altered circumstances. Eventually Dr. Cockburn withdrew his amendment on the understanding that the clause requiring that “in each State of the Commonwealth there shall be a Governor” should also be omitted. This was done. (Conv. Deb., Adel., pp. 992–1001.)

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