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10. Chapter X. The Relation of the Legislative Authorities (The Imperial Parliament, the Commonwealth Parliament, the State Parliament) and the Validity of Laws.

ACTS of non-sovereign legislatures may be unconstitutional on several grounds. If the Legislature is one of special powers, its Act may have dealt with a matter not granted. If the Legislature is one of general powers, its Act may relate to a matter expressly or impliedly excepted from the grant. In either case, the grant of power may, in respect to any matter, be subject to restrictions upon its exercise—the power is not to be exercised in certain directions, or certain modes or forms are prescribed. And the supreme Legislature may from time to time invade the sphere of the subordinate and exert its paramount authority, in which case it overrides existing laws of the subordinate and offers an obstacle to the making of new laws by the subordinate, which are inconsistent with it.

1. So far as any Act deals with matters not granted to the Legislature, or with matters withheld from it, or exercises power in a forbidden way, it is ultra vires. But the taint does not go beyond the restriction; an Act may perfectly well be ultra vires as to part only. The test adopted both in the United States and Canada is the separate nature of the enactments or their application. “Whether the other parts of the Statute must also be adjudged void because of

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the association, must depend upon the consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. … Where a part of the Statute is unconstitutional, that fact does not authorize the Courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other. … The point is … whether they are essentially and inseparably connected in substance.”note The separation is not necessarily affected by enactment in different sections or in different parts of the Act. On the other hand, connection is not conclusively established by inclusion in the same words; the words of the Act may apply and be unmistakably intended to apply equally to cases within and without the power of the legislature. “A legislative act may be clearly valid as to some classes of cases, and clearly void as to others.”note A State law, purporting to affect all commerce, might be ultra vires so far as it impaired the freedom of trade, commerce, and intercourse among the States, yet valid so far as its operation upon the internal commerce of the State was concerned. In Macleod v. A.G. for New South Wales,note the Privy Council decided that a colonial legislature has no power over crimes committed beyond its territory; accordingly, an Act purporting to deal with offences wheresoever committed, and plainly intended to include crimes committed abroad, would be ultra vires so far as those crimes are concerned. But a person indicted under the Statute for an offence committed in New South Wales would not be entitled to an acquittal on the ground that the Act extended to cases beyond the power of the legislature.note

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“The unconstitutional law must operate as far as it can, and it will not be held invalid on the objection of a party whose interests are not affected by it in a manner which the Constitution forbids.”note

2. Legislation by Paramount Authority.—The three legislatures—the State Parliament, the Commonwealth Parliament, and the Imperial Parliament—in matters which are within the power of all form a hierarchy.

(1) Control by Imperial Legislation—The Colonial Laws Validity Act, 1865.

The Imperial Parliament remains paramount, and is capable now, as at all times previously, of legislating for this as for all other parts of the dominions of the Crown. Whether an Imperial Act extends to the Commonwealth is a matter of interpretation, upon the principles of which there can hardly be any difference of opinion. The view that obtained some currency in Canada, that the “exclusive” powers of legislation conferred by the British North America Act, 1867, meant exclusive of the Imperial Parliament, is now so far discredited that it is unnecessary to discuss the grounds upon which it is based, especially as “exclusive” powers form so small a part in the Commonwealth Parliament. The subjects upon which there will be some difference of opinion are whether the circumstances which determine the application of an Imperial Act as a matter of “necessary intendment” are the same in the Commonwealth as in the colonies; and, further, whether there is any power in the Parliament of the Commonwealth to repeal or alter laws of the Imperial Parliament applying in the Commonwealth at the date of the establishment of the Commonwealth. The first of these questions relates to future legislation of the Imperial Parliament, the second to

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past legislation. Though the questions are distinct, it is obvious that they are governed by considerations which are in general the same or similar.

It is most important in this connection to observe that many of the matters within the power of the Parliament are exactly those matters in which, as being deemed of Imperial or international concern, the legislative power of the Imperial Parliament has been freely exercised, and (it may be presumed) will be exercised in the future. Thus the question of the relation of Commonwealth Acts to Acts of the Imperial Parliament is one of practical importance.

Whether or not the Commonwealth is a “Colony,” and the Commonwealth Parliament a “Colonial Legislature,” within the terms of the Colonial Laws Validity Act, 1865, future Acts of the Imperial Parliament will of course extend to the Commonwealth whenever they are made applicable by express words or necessary intendment. But what is necessary intendment? The test is a vague one, to be applied in the light of many circumstances, one of which is the status of the place, and the measure of self-government which it enjoys. It may be urged that an exercise of legislative power by the Imperial Parliament in these matters is less lightly to be presumed in the case of the Commonwealth than in the case of the colonies in their separate state;note that the express grant of power over them indicates a general intention that these matters henceforth are to be deemed primarily within the scope of self-government, and therefore ordinarily outside the exercise of Imperial power. In this, of course, there is no suggestion of any abandonment of legal power. On the other hand, it may be argued

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that the matters in question are in several cases matters in which the separate colonies had power by virtue of express grant; and that the general nature of the Constitution is to set up new relations within Australia, and not to create new relations between Australia and the Imperial Parliament. The subject is one upon which it is hardly possible to give a decided answer. The weight which a Court is disposed to give to the fact that a power of legislation has been conferred on the Commonwealth Parliament may well differ in the case of particular matters, but it would seem to be of some relevance in all. More than this the vagueness of the subject makes it impossible to say.

The second question is, How far does the express grant of power by the Constitution to the Commonwealth Parliament over the various specified subjects affect the past legislation of the Imperial Parliament thereon? Merchant Shipping Acts, Copyright Acts, Bankruptcy Acts—is the power to repeal or alter these Acts extending to the Commonwealth included in the power to make laws for the peace, order, and good government of the Commonwealth in respect to “navigation and shipping,” “copyrights,” “bankruptcy and insolvency.” A similar question has been raised in Canada, and Sir John Thompson has strenuously contended that in respect to all the subjects committed to the Parliament of Canada that Parliament must be considered to have the plenary power of the Imperial Parliament, including the power to repeal Imperial laws thereon operating in Canada at the establishment of the Dominion.note The Provincial Courts of Canada, which have considered the question in relation to the specific powers conferred on the Provincial Legislatures by the British North America Act, 1867, have taken divergent views of it. The Canadian Government has pressed the view of “plenary power.” The Colonial Office, on the advice of successive law officers of the Crown, has uniformly determined against the view of Sir John Thompson, and has on that ground disallowed Canadian Acts inconsistent with

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Imperial Acts passed prior to the Act of 1867. In support of this action, it is urged that the Colonial Laws Validity Act, 1865, is a general law dealing with the enactments of all subordinate legislatures throughout the British Dominions, except in the Channel Islands, the Isle of Man, and British India; that it is intended to apply to new political communities equally with those existing at the time of the Act, and that grants of constitutions are subject to the provisions of the Act. Therefore, the Dominion Parliament and the Provincial Legislatures are “Colonial Legislatures,” and their enactments “colonial laws” within the Act; and by section 2 “any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any Order or Regulation made under authority of such Act of Parliament, or having in the colony the force or effect of such Act, shall be read subject to such Act, Order, or Regulation, and shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.”

On the other hand, it may be urged that the specific grant of powers to legislate upon a given subject is a power to make laws upon that subject in the legal condition in which it is at the time of the grant. Power is given over the subject in the colony, and that includes the power to deal with existing laws thereon, whatever their origin. This view is probably strengthened by the fact that so many of the subjects of the specific grant are subjects on which there is existing Imperial legislation; and that the new Constitution of the British North America Act, 1867 (as of the Commonwealth Act, 1900), is devised as a liberal extension of the power of self-government.

It is argued with less force that in the case of any colony the repugnancy which avoids an Act is repugnancy to some Act passed after the creation of the Legislature of the colony; this would imply that every colonial legislature was empowered to repeal or vary all Imperial laws

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in operation in the colony at the time of the grant of a constitution. The suggestion has been made that the establishment of a new political community within the Empire is analogous to the acquisition of a colony by settlement or occupation; and that just as the legislature of such a colony has power over Imperial Acts in operation in that colony at the time of the settlement, so the Dominion Parliament or the Commonwealth Parliament has power over the Imperial laws in the Dominion or the Commonwealth at the time of its establishment. But the analogy fails for more than one reason. In the first place, it is at best a case of analogy and not of identical instances. The political re-organization of a portion of the dominions of the Crown, which has existing laws and institutions, is something widely different from the acquisition of new territories in which ex hypothesi there is neither law nor government. In the second place, such legislatures have not power over all Imperial Acts in the colony in virtue of the doctrine of the common law that a new settlement colony takes so much of English law as is suitable to its condition. Acts which are not merely part of English law, but are at the time of their enactment made applicable throughout the British Dominions cannot be repealed by a colonial legislature. And it is to this class that the legislation now in question belongs.

There are no circumstances to distinguish the Commonwealth of Australia from the Dominion of Canada in this respect; and the arguments which have been advanced in one case may be adduced in the other.

Note.—A phrase in sec. vi. of the Draft Bill suggested to the Law Officers of the Crown the advisability of inserting in sec. v. an express provision that “the laws of the Commonwealth shall be Colonial Laws within the meaning of the Colonial Laws Validity Act, 1865.” Section vi. having defined “the Commonwealth,” proceeded: “ ‘Colony’ shall mean any Colony or Province.” This, it was surmised, implied that the Commonwealth was not a “colony”; that consequently “the Parliament” was not a “colonial legislature,” and its Acts not “colonial laws.” It is obvious that such an effect might cut in either of two ways. If the Colonial Laws Validity

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Act really extend, the powers of dependent legislatures, a legislature which is without its scope is deprived of its benefits. But the exception of the Commonwealth Parliament from the scope of the Act would also except it from the restrictions imposed by the Act, and would strengthen in the case of the Commonwealth the arguments which have been held in Canada as to the power over existing Imperial legislation. Ultimately, the objections of the Law Officers were met by the omission of the definition of “Colony” in section vi. It is submitted that the objection was not sound. The purpose of the definition was clear—South Australia is designated a “Province” and not a “Colony,” and it was advisable to extend to her the term which described the other colonies. The definition, in common with other definitions in an Act of Parliament other than an Interpretation Act, applies only to the term as used in the Act itself. In the Act, “colony” (save as provided by section viii.) excludes “Commonwealth”; but for other purposes, including the application of other Imperial Statutes, the definition of section vi. would have been inoperative.

(2) State and Commonwealth Laws.

The relation between State legislation and Commonwealth legislation is laid down in sec. 109, whereby “when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

This provision operates where the State law conflicts with some exercise of power by the Commonwealth Parliament, not where it is inconsistent with the power itself. It assumes that each legislature is acting within its proper range of power, where the State law would be good and operative but for the exercise of paramount power by the Commonwealth Parliament, the case which has been described in America as that in which the State law fails, “not because it is unconstitutional, but because it is superseded by the paramount authority of the national legislature.”note It applies whether the State law has been passed after the Commonwealth law or the Commonwealth law has been passed after the State law.

The application of the provision raises two difficulties. The first is to determine when inconsistency arises; the second is as to the nature and extent of invalidity.

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First, inconsistency may arise otherwise than from the conflict of the very terms of the Acts. “The two laws may not be in such absolute opposition to each other as to render the one incapable of execution without violating the injunctions of the other; and yet the will of the one legislature may be in direct collision with that of the other.”note When the Commonwealth Parliament has made a law on some matter committed to it, it may well be intended that the law should be exhaustive of regulation upon that matter. In a case where the whole field of legislation is thus covered State laws making further regulations upon the subject will be inconsistent with the exclusive purpose of the Commonwealth Parliament, and invalid, though there be no inherent contradiction in the expressed terms of the laws. Indeed, it is clear that not a few of the subjects over which the Parliament has power, though they are not exclusive in the strict sense, are such that the legislation of the Parliament, to use the language of Story, “suspends the legislative power of the States over the subject matter.”note No universal rule as to “inconsistency” of this kind can be laid down; we must look in each case to “the nature of the power, the effect of the actual exercise, and the extent of the subject matter.”note

Inconsistency with Paramount Laws.—The provision of section 109 that a State law inconsistent with a law of the Commonwealth shall, to the extent of the inconsistency, be invalid, may be compared with the language of the Colonial Laws Validity Act, 1865, sec. 2, whereby a colonial law repugnant to an Imperial Act shall, to the extent of the repugnancy, but not otherwise, be and remain absolutely void and inoperative. An analogous doctrine is contained in the provision of the United States Constitution that the Constitution and the laws of the United States made in pursuance thereof shall be the supreme law of the land (article vi.); and, though there is no

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provision in the British North America Act upon the subject, it is now settled that, in case of conflict between Dominion and Provincial laws in matters within the competence of both, the Dominion law prevails.

The express provisions that the State law, to the extent of the inconsistency, shall be invalid, suggests on the face of it that it will be wholly null and void, so that it will not become operative on the repeal of the Commonwealth Act. And in the United States there are many decisions that “an unconstitutional Act is not a law; it is, in legal contemplation, as though it had never been passed.” But, as has been already pointed out, the distinction has been taken between unconstitutional Acts, which are void, and Acts conflicting merely with an exercise of paramount power. Both in the case of the United States and of Canada it has been held that a State or Provincial Act is only barred of its operation by the Act of Congress or the Dominion, and on the repeal of the latter it becomes operative. Thus in Butler v. Goreley note an Insolvency Act of the State of Massachusetts inconsistent with Acts of Congress of 1853 and 1867 repealed by Congress in 1878, need not be re-enacted, for “the repeal of the Bankruptcy Act of the United States removed an obstacle to the operation of the Insolvent Laws of the State.” In Att. Gen. for Ontario v. Att. Gen. for the Dominion of Canada and the Distillers' and Brewers' Association of Ontario,note the Judicial Committee of the Privy Council, having to consider a conflict between the Ontario Liquor License Law of 1890 and the Dominion Temperance Act of 1886, said: “In so far as they do (conflict), provincial must yield to Dominion legislation, and must remain in abeyance, unless and until the Act of 1886 is repealed by the Parliament which passed it.” By section 109 it is provided not merely that the Commonwealth law shall prevail, but that the State Law shall, to the extent of the inconsistency, be invalid. This seems to indicate more than temporary

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abeyance or failure of operation; and it is conceived that the State law will be, or become, according to the circumstances, a nullity, and will not be operative, except by re-enactment when the bar is removed.

The result appears to be the same where a Colonial Act is inconsistent with an Imperial Act. The Colonial Laws Validity Act, section 2, provides that a repugnant colonial law shall be, and remain, absolutely void and inoperative. And the matter is strengthened by the Interpretation Act, 1889, sec. 38 (ii.), whereby

“When this Act, or any Act passed after the commencement of this Act, repeals any other enactment, then, unless the contrary intention shall appear, the repeal shall not

“(a) Revive anything not in force or existing at the time at which the repeal takes effect.”

Formal Validity of Laws.—The Constitution in sections 53 and 60 has prescribed the modes of legislation or the forms of the law in certain classes of case. We have to consider how far any departure from the mode, or any defect in the form prescribed, affects the validity of enactments.

The case may well be different from that of the Imperial Parliament, where rules of procedure, whatever their importance as conventions of the Constitution, are secured by Parliamentary sanctions merely; a measure purporting to be an Act of the Imperial Parliament, if authenticated in the usual and proper way, could hardly be impugned by any external evidence.note The Colonial Constitution Acts have commonly dealt with the procedure to be observed in the case of Money Bills and Bills for the amendment of the Constitution; and doubts have been entertained as to the validity of Acts amending the Constitution which are not shown to have been passed by the statutory majorities or to have been reserved for the Royal Assent. In 1864 the Law Officers of the Crown (Sir Roundell Palmer and Sir Robert Collier) expressed the opinion that “when the power of legislation is given, not

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to a simple majority, but to certain specified majorities in one or both branches of the Legislature, it is evident that such majorities are a sine qua non to its exercise, and consequently that the judges are not at liberty to treat any law on that subject as valid if it appears either on the face of the law itself, or by other proper evidence that it was not, in fact, passed by the required majorities.” The customary forms of legislation, however, afford no indication of the use of any special procedure; and, in the opinion referred to, the Law Officers did not think it absolutely necessary “that it should appear on the face of the law itself that it was passed by the requisite majorities (if the fact can be otherwise proved) in order to authorize the judges to act upon such legislation as valid and effectual”; and they inclined to think, though they treated the point as admitting of some doubt, that “the judges ought to presume, until the contrary is proved, that every Act which has passed the Legislature, and which is authenticated as an Act of the Legislature, was passed by such a majority as would be necessary according to law to give it effect.” Accordingly the Colonial Laws Validity Act, 1865, section 6, provides that “the certificate of the clerk, or other proper officer of a legislative body in any colony, to the effect that the document to which it is attached is a true copy of any colonial law assented to by the Governor of such colony …. shall be prima facie evidence that …. such law has been duly and properly passed and assented to.” The question remains whether in all cases this presumption can be rebutted, and how in any case it may be rebutted. The proper evidence for rebutting the presumption would, of course, be the Journals of the Legislature; but as each House controls its own records, it seems to be within the power of the Legislature to refuse to make that evidence available. In Bickford, Smith and Coy. v. Musgrove note the question was raised as to the observance of the proper forms in the case of a Money Bill, and the issue fell

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because the Speaker of the Legislative Assembly of Victoria refused to allow the production of the Journals, and the Act was treated as valid. But, apart from the question of evidence, can the presumption of validity be rebutted? So far as the common provisions concerning Money Bills are concerned, the Judicial Committee of the Privy Council in Powell v. Apollo Candle Coy.note said: “It has been argued that the proviso that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax, or impost, shall originate in the Legislative Assembly in the colony is at least a direction on the part of the Imperial Parliament that all levying of taxes in the colony shall be by Bill, as in this country in the Lower House. It may be that the Legislature assumed that, with respect to customs duties, such a course would undoubtedly be pursued, as is in accordance with the usages and traditions of this country; but it appears to their Lordships impossible to hold that the words of an Act which do no more than prescribe a mode of procedure with respect to certain Bills shall have the effect of limiting the operation of those Bills.”note

“Laws” and “Proposed Laws.”—This is the assumption which underlies the use of the terms “law” and “proposed law” in the Commonwealth Constitution, sects. 53–59. They indicate the difference between the product and the machinery; “law” is sanctioned by ill usage as an equivalent for “act” or “statute,” “proposed law” is an innovation, and a somewhat clumsy one, indicating “bill.” Where the Constitution prescribes the procedure upon “proposed laws,” the provisions are generally directory merely; they are matters of Parliamentary practice attended with Parliamentary and political sanctions, and may be

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waived by the concurrence of the enacting authorities. Where on the other hand the Constitution speaks of “laws,” it makes the observance or non-observance of the provisions a legal and not simply a political question.note What is the legal sanction? In the absence of express direction, nullity. By section 55 laws imposing taxation, except laws imposing duties of customs or excise, shall deal with one subject of taxation only; if they deal with more than “one subject of taxation,” the whole will be void. “Laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only”; if an Act transgress either rule, it is invalid. But in providing that “laws imposing taxation shall deal only with the imposition of taxation,” section 55 expressly provides that “any provision therein dealing with any other matter shall be of no effect.”

There are two cases, however, in which the term “proposed law” introduces provisions which go to the validity of the enactments to which they relate—in section 60 and section 128. Section 128 deals with the alteration of the Constitution, and will be referred to under that head. By section 60 it is provided that “a proposed law reserved for the Queen's pleasure shall not have any force unless and until, within two years from the day on which it was presented to the Governor-General for the Queen's Assent, the Governor-General makes known by speech or message to each of the Houses of Parliament or by Proclamation that it has received the Queen's Assent.”

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Note.—In the United States the Courts have gone very far towards holding that the ordinary distinction between mandatory and directory provisions does not apply to Constitutions, and that as these high and solemn instruments do not condescend to procedure, all their enactments must be treated as mandatory. (See Cooley's Constitutional Limitations, p. 93.) I think, however, that the decision of the Judicial Committee in Powell v. the Apollo Candle Coy.note sufficiently indicates that in this, as in other matters touching the exercise of legislative power, the English and American Courts are travelling on different roads.