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Operation of the Constitution and Laws.

5. This Act32, and all laws33 made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people34 of every State and of every part of the Commonwealth35, notwithstanding anything in the laws of any State36; and the laws of the Commonwealth37 shall be in force on all British ships38, the Queen's ships of war excepted40, whose first port of clearance39 and whose port of destination are in the Commonwealth.

UNITED STATES.—This Constitution, and the Laws of the United States which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding.—Const. Art. VI., sec. 2. The powers not delegated 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.—Const., Art. 3. GERMANY.— .. and the laws of the Empire shall take precedence of those of each individual State.—Const., Art. 2.

HISTORICAL NOTE.—Clause 7 of the Commonwealth Bill of 1891 was as follows :—

“The Constitution established by this Act, and all laws made by the Parliament of the Commonwealth in pursuance of the powers conferred by the Constitution, and all treaties made by the Commonwealth, shall, according to their tenor, be binding, on the courts, judges, and people of every State, and of every part of the Commonwealth, anything in the laws of any State to the contrary notwithstanding; and the laws and treaties of the Commonwealth shall be in force on board of all British ships whose last port of clearance or whose port of destination is in the Commonwealth.”

This clause was based in part upon sec. 20 of the Federal Council of Australasia Act, 1885 (48 and 49 Vic. c. 60), which was as follows:—

“All Acts of the Council, on being assented to in manner hereinbefore provided, shall have the force of law in all Her Majesty's possessions in Australasia in respect to which this Act is in operation, or in the several colonies to which they shall extend, as the case may be, and on board of all British ships, other than Her Majesty's ships of war, whose last port of clearance or port of destination is in any such possession or colony.”

The provision as to British ships in the Federal Council Act was not included in the draft of that Act framed at the Sydney Conference in 1883, but was inserted by the Imperial draftsmen.

At the Sydney Convention, 1891, there was some discussion as to this provision. (Conv. Deb., Syd., 1891, pp. 558–60.) At the Adelaide session, 1897, the clause as adopted in 1891 was introduced verbatim. The provision as to British ships was again discussed. It was thought to be much too wide, and was even criticized as “sheer nonsense,” but being sanctioned by the Federal Council Act, it was not altered. (Conv. Deb., Adel., pp. 626–8.) At the Sydney session, a suggestion by the Legislative


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Council of New South Wales, to omit the words “and treaties made by the Commonwealth,” was agreed to. Mr. Reid moved to omit the whole provision as to British ships; but this was thought to be going too far, and he withdrew it. The words “and treaties” were omitted; the words “excepting Her Majesty's ships and vessels of war” were inserted; and the final words were altered to read: “whose first port of clearance and whose port of destination are in the Commonwealth.” (Conv. Deb., Syd., 1897, pp. 239–53) At the Melbourne session, drafting amendments were made before the first report and after the fourth report.

When the Commonwealth Bill was first under the consideration of the Imperial Government in England, it was proposed by the Law Officers of the Crown that this clause should be amended by omitting the words “in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth,” and by adding the words: “and the Laws of the Commonwealth shall be Colonial laws within the meaning of the Colonial Laws Validity Act, 1865.” (See House of Coms. Pap., May, 1900, p. 19; Historical Introduction, p. 229, supra.) In the Bill as introduced into the House of Commons the clause was restored to the shape in which it was originally passed by the Convention, with the addition of a new paragraph relating to the prerogative of appeal, which was afterwards omitted in Committee. (See Historical Introduction, pp. 242, 248, supra.)

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