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3. Chapter III. The Nature and Authority of the Federal Commonwealth.

ON September 17th, 1900, the Queen by Proclamation declared that the people of the colonies of New South Wales, Tasmania, Victoria, Queensland and Western Australia, and the Province of South Australia should be united in a Federal Commonwealth under the name of “The Commonwealth of Australia”; and on January 1st, 1901, the day appointed by the Proclamation, the Commonwealth became established and the Constitution of the Commonwealth took effect, in accordance with sections iii. and iv. of an Act of the Imperial Parliament known as the Commonwealth of Australia Constitution Act, 1900 (63 and 64 Vict., c. 12). The preamble of the Act recites the agreement of the people of the colonies “to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland and under the Constitution hereby established.” The enacting part of the Act consists of nine sections, known as the “covering clauses,” and of these section ix. contains the Constitution. Substantially the Act falls into two parts, of which the first eight sections and the introductory words of section ix. have the ordinary character of an Imperial Act and are unalterable save by the Imperial Parliament; while the second part consists of “The Constitution” in 128 clauses, and is made

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alterable by the Commonwealth. (Constitution, section 128.)

In addition to conferring the power to establish the Commonwealth, the covering clauses prepare the ground by (section vii.) repealing the Federal Council of Australasia Act, 1885, and (section viii.) providing that the Colonial Boundaries Act, 1895, shall no longer apply to any colony which has become a State of the Commonwealth, but that for the purposes of the Act the Commonwealth shall be taken to be a self-governing colony. Section ii. enacts that provisions in the Act referring to the Queen shall extend to her successors in the sovereignty of the United Kingdom; and section v. deals with the operation and binding force of the Act and defines the operation of laws made by the Parliament of the Commonwealth under the Constitution. Section vi. defines the leading terms of the Act.

It is one of the hindrances of political study that more than in most branches of knowledge we have to work with terms which, forming part of the popular language, are full of the vagueness of popular notions; they are employed with no single meaning, and are not susceptible of exact definition. The terms which describe the various unions of States share to the full this disadvantage, and though their ambiguity may be in some cases no more than an inconvenience, in others they are an impediment to clear thinking, and constitute a real and substantial evil.

COMMONWEALTH AND STATE.—As to “Commonwealth,” the Act does no more than explain that “the Commonwealth shall mean the Commonwealth of Australia as established under this Act.” But it introduces the term “State” as the designation of “such of the colonies (which includes ‘province’) of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States”; “and each of such parts of the Commonwealth shall be called a

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‘State.’ ” The enumeration of the colonies eligible in the first instance to become members of the Commonwealth is a matter of political significance. It includes none but “settlement” colonies, which have a common civilization, and which have all had a sufficient training in self-government. Fiji is a member of the “Australasian group” of colonies, as defined by more than one Act of Parliament, and she was a member of the Federal Council of Australasia. But the islands of the Pacific, whatever their importance, could hardly be associated as parts of a democratic government; and their organic relation with the Commonwealth, if it be established, will be that of dependents rather than members.

The term “Commonwealth” and the term “State” are both ambiguous in themselves, and are frequently used with implications and inferences that create further confusion. In the Australian Constitution the term “Commonwealth” describes the whole political organism, the term “State” the part; but in Mr. Burgess's Political Science and Constitutional Law—a work that was frequently referred to in the debates on the Constitution, and will be an important aid to its elucidation—the terms are reversed in the case of the United States, as the author found himself bound in defiance of the Constitution to assign the term “state” to its ordinary use amongst publicists, to describe the sovereign organism, and therefore had to find some other term to designate the part. I shall endeavour to mark the distinct uses of this term by writing “state” in the juristic sense with a small s, and “State” as used in the American Constitution and in this Constitution with a capital S.

The name “Commonwealth of Australia” has been vigorously attacked upon several grounds. In the first place, it has been contended that it is a break in uniformity; that Australia should have followed Canada, and become a “Dominion,” if it did not assume the title proposed for Canada but rejected in deference to the susceptibilities of the United States—“Kingdom.” It is

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enough perhaps to say here that the union of the Australian Colonies differs fundamentally from the union of the Provinces of Canada, and that the name Dominion has been associated for too long with features which Australia did not desire to copy. As to the term Kingdom, it must be remembered that the present union took shape in 1891 when patriotism had hardly begun to express itself in the passionate loyalty of to-day. The “Kingdom of Australia” would indeed be acceptable to none; one class would see in it a menace to democratic institutions, another would find in the creation of a “distinct dominion” a suggestion of dismemberment of the Empire. The name “Commonwealth of Australia” does not and did not in 1891 indicate a leaning to separation or republicanism. It was adopted by the Constitutional Committee in 1891 on the suggestion of Sir Henry Parkes, whose fancy led him to pay his tribute of admiration to the statesmen of the “Commonwealth Period.” Perhaps if this origin had been better known, the name would have met with more opposition. Commonly the title was associated with Mr. Bryce's American Commonwealth, first published in 1888, the great source of knowledge as to the working of federal government amongst English speaking people. The term passed without much notice into the popular discussion of federation, and having thus taken root was adopted almost as of course.

The name “Commonwealth” is not without ambiguity in the Act itself. The habit of identifying a colony with its government has not unnaturally led to the use of the term “Commonwealth,” where the constitution evidently means the central government or some particular organ of the central government. In fact, in the Act and Constitution it has at least three distinct though connected meanings:—First, the political organism established under the Act; secondly, the territorial limits of that political society; and thirdly, the central government or some appropriate organ thereof. Where the constitution prohibits “the Commonwealth” from making laws of certain kinds

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(as in sections 99, 100, 114, 116) the prohibition of course is addressed to the Parliament as the legislative organ of government; but such prohibition does not bind the Commonwealth as a political organism, for the constitution may be amended by the Commonwealth.

The Commonwealth is not an organization consisting merely of a Parliament exercising limited powers with an executive of judiciary to support it, though that is the implication of the common and convenient expression “Commonwealth Powers.” There is an organization behind the Parliament which, save for the supremacy of the Imperial Parliament, is the political superior over all its parts, and over all persons and things therein. The Commonwealth, in its ultimate organization, short of dissolving itself or otherwise infringing an Imperial Act, may exercise every power of government within its territory, and strip the States—which exist as governmental agencies only, by the sufferance of the Commonwealth—of every power. This is no more than follows from the analogy of the Commonwealth to a “state” in the juristic sense. It threatens nothing to the security of the States in the Commonwealth; for the acknowledgment of the organic nature of the Commonwealth does not imply anything as to the form of the organization, and certainly does not imply unitary action by bare majority.note

The Origin of the Commonwealth.

The Commonwealth, with its constitution, is a legal institution, since it was established under the authority of the acknowledged political superior. The Constitution is first and foremost a law which is declared (section v.) to “be binding on the courts, judges, and people of every State and of every part of the Commonwealth.” The agreement of the colonies, which was the occasion for the law, is no more than one of the circumstances to which resort may be had in interpreting the law. The form of the establishment of the Commonwealth may be compared with the

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preamble of the Constitution of the United States. The famous “We, the people of the United States, do ordain and establish” has a threefold significance. First, it points to the national or unilateral as distinguished from the conventional nature of the Union; secondly, as the act of the people and not of their governments, it negatives the old confederate union; and thirdly, it indicates the democratic basis of the state. In the formation of the Commonwealth, the free acknowledgment of the contract behind the Constitution may be made without impairing the stability of the Union, because the Constitution is the act of an undoubted sovereign authority. The people do not affect to ordain and establish; they have agreed to unite; and in the making of that agreement the most scrupulous care was taken to make the popular participation a reality and not a fiction; secondly, as in the United States, the Commonwealth of Australia, being a union of the people of the several colonies and not of their governments, is no mere confederacy; and thirdly, the insistence of “the people” indicates the democratic origin and nature of the union, and foreshadows the character of the institutions of the Commonwealth, that it is to be a state in which Lincoln's doctrine is to hold, where there is to be government of the people by the people for the people.

The Nature of the Commonwealth.

We have seen that the Commonwealth forms a single political community, though a dependent community; and we have now to consider what is meant by the description “federal.” In the first place, the term “federal,” which is generally used in conjunction with “state,” is more appropriately used to describe a form of government in the state. A federal government exists where a state distributes the powers of government between two classes of organization —a central government affecting the whole territory and population of the state, and a number of local governments affecting particular areas and the persons and things therein—which are so far independent of each other that

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the one cannot destroy the other or limit the powers of the other, or encroach upon the sphere of the other as determined by the state in the Constitution. Both are completely subject to the state. Either may be changed or abolished at will by the state.note This, while it imperfectly describes any existing Federation, is all that can be said of every Federation,note and would indeed require modification and explanation to fit the Dominion of Canada. But the observation of Federal Governments leads us in the case of any particular federation to consider what is its organization in various other particulars. The following are from this point of view, the leading features in the Federal Commonwealth of Australia:

1. The Commonwealth is formed of communities which, whatever their earlier condition, were at the time immediately preceding the Union separate and independent in their relation to each other. In the formation of the Commonwealth there is no severance of existing communities, as in Canada, where the legislative union of Upper and Lower Canada was dissolved by confederation. But the question of disintegration was raised in relation to Western Australia and Queensland; and there is full power to form new States within the Commonwealth, either by the division or the union of States' territory. (Constitution, section 124.)

2. The Commonwealth Government is a government of limited and enumerated powers; and the Parliaments of the States retain their residuary power of government over their territory.

3. The Commonwealth Government and the State are each organized separately and independently for the performance of their functions, whether legislative, executive, or judicial. The powers of the States come from the organization and powers which were their prior to the establishment of the Commonwealth. Though they owe

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their existence as “States” to the Act, there is no break in the continuity of the political existence which began as “Colony” or “Province.” But though the Commonwealth and State Governments are separately organized, the Commonwealth and the State system must be regarded as one whole; and in the United States the disposition to treat the federal and State authorities as foreign to each other has been condemned as founded on erroneous views of the nature and relations of the State and Federal Governments. “The United States is not a foreign sovereignty as regards the several States, but is a concurrent and within its jurisdiction a paramount sovereignty”; their respective laws “together form one system of jurisprudence which constitutes the law of the land for the State, and the Courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as Courts of the same country having jurisdiction partly different and partly concurrent.”note

It is no part of the purpose of the Constitution to recast the institutions of the State, and the Constitutions of the States and the powers of their Parliaments are in general terms continued as at present (Constitution, sections 106, 107, 108), but modified of course by the powers conferred upon the Commonwealth Government, and by certain restrictions imposed on the States. The organization of the Commonwealth Government,—the establishment of its legislative, executive, and judicial organs, and the definition of their functions,—is the principal subject of the Constitution.

4. The legislative powers of the Commonwealth Parliament are not in general exclusive powers. A few exclusive powers are expressly conferred, including the power over the matters of administration taken over by the Commonwealth Government (section 52); other arise from the fact that some of the powers conferred upon the Commonwealth Parliament are not derived from the existing powers of the

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States. The general relation of the “concurrent powers” —to use the popular term—of the Commonwealth and State Parliaments is fixed by the provision that in case of inconsistency the law of the Commonwealth prevails, and the law of the State is to the extent of the inconsistency invalid. (Section 109.)

5. Subject to what has been said in (4), the Commonwealth Government and the States Governments are in their relations independent and not hierarchical. There is no such general supervision of the State in the exercise of the powers belonging to it as is enjoyed by the Dominion Government over the provinces of Canada. This is not to say that the respective Governments do not owe certain duties to each other, or that the State or some of its organs may not be in some cases the instrument of the Commonwealth Government. The exception to this independence is in the department of judicature, for the High Court of the Commonwealth is the head of the judicial system both of the Commonwealth and of the States, and the States as corporate communities are in some cases now amenable and in others can be made amenable to the jurisdiction of the Commonwealth Courts (Constitution, chapter iii., “The Judicature”). The existence of a sphere of State activity which is subject to no sort of control by the legislative or executive organs of the Commonwealth Government, and the absence of any veto by the Commonwealth Executive upon State legislation, are facts of great importance in determining the limits of State powers. In Canada the existence of the controlling power of the Dominion Government has been referred tonote as a reason for taking a more liberal view of the powers of the Provinces than is taken of the powers of the States in the United States where the relations are similar to those set up in Australia.

6. The observance by the Commonwealth Government and the States of the limits set to their powers is secured generally, but not universally, by the action of the Courts whose judicial duties may involve the determination of the

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validity of the authority under which acts are done, whether that authority is the Crown, a subordinate legislature, or any whatsoever save the Imperial Parliament.

The Territory of the Commonwealth.

This expression may be used with different meanings. First, we have seen that the Commonwealth is a territorial community; and its territory is the sum of the territories of its parts. The territory of every State therefore is territory of the Commonwealth. But there are parts of the Commonwealth which, not forming part of any State (Act, sections v. and vi.; Constitution, section 127), stand outside the main principle of federal government, and these are distinguished by the expression “territory of the Commonwealth” from the “territory of the States.” Such parts of the Commonwealth outside the State organization include:

1. Territory of a State surrendered by the State Parliament, thereby becoming subject to the exclusive jurisdiction of the Commonwealth (sections 111 and 122).

2. Territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth (section 122).

3. By section 52 (1), the seat of government and all places acquired by the Commonwealth for public purposes are subject to the legislative power of the Commonwealth exclusively; and in the view taken in the United States, the exclusive power of legislation in the Federal Government, where it exists over any territory, carries with it exclusive jurisdiction in all respects, so that the territory in question ceases wholly to be in the power of a State.note

By section 125, the seat of government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred

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miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.

A third meaning with which the expression “territory of the Commonwealth” may be used, is in relation to property in the land and not governmental power. Nowhere is it more necessary than in communities in the economic condition of the United States, Canada, and Australia to appreciate the distinction between government and property. The vast areas of public and unappropriated lands form one of the most constant subjects of legislation and absorb the attention of one of the largest departments of administration. In the United States and in Canada the Courts have been called on again and again, in dealings between the central and the local power, to determine whether the transaction was one of cession or grant, of public power or private right.note

Section 125 is a typical case of difficulty. The terms employed—“granted to or acquired by,” “vested in and belong to”—are words of property rather than of jurisdiction; and it is open to question whether the section deals with government and jurisdiction at all, whether the exclusive power of the Commonwealth over the territory in question does not come from § 52 (1) alone. The last clause in § 125, which declares that such portion of the territory as consists of Crown lands shall be granted without any payment therefor, clearly designates a right of property. Its seems reasonable to conclude that the first clause in the section at any rate embraces property, and that the words “or acquired by” point to acquisition by purchase of lands other than Crown lands either by voluntary dealing or by the exercise of compulsory powers under § 51 (xxxi.).

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Union under the Crown.

The recital in the preamble is no mere expression of loyalty, but is a statement of fact to which the most important legal incidents attach. The Crown establishes the Commonwealth, is a part of the Federal Parliament, is the depositary of the executive power of the Commonwealth, and retains the power (subject to limitations to be considered) of entertaining appeals in Council. So much is provided in the Act itself; but the Act does not exhaust the relations of the Crown to the Commonwealth. The prerogative runs there as in other dominions of the Crown; and in analogy to the practice whereby in the United Kingdom the prerogative secures the people against an abuse of power by the instruments of government, so in the colonies the prerogative is no reservation of personal enjoyment or profit to the Crown, nor even to any great extent of power to the Imperial Government, but is an instrument for increasing and effectuating the powers of self-government. While the paramount power of the Imperial Parliament emphasizes the dependent condition of the colonies, the unity of the Empire is manifested in the omnipresence and indivisibility of the Crown. Save in the rare cases in which, for the purpose of suit in their own Courts, colonies have made an exception by statute, the Colonial Governments, like the Government of the United Kingdom, have no corporate existence save in the Crown.note For this reason, the governments of the colonies, though not sovereign, have in all parts of the Empire that immunity from suit which belongs to the Crown. A claim by the Crown in right of any part of its Dominions can be prosecuted, not merely in that part of the Empire which is immediately concerned, but in any Court which, according to ordinary principles, has jurisdiction of the cause; and the adjustment of interests as between the different parts of the Empire is in

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general not a matter for the consideration of the Court.note The indivisibility of the Crown is peculiarly manifested by the position of the Attorney General. The Crown appears in Court in any part of the British Dominions by the law officer for that part; and it is immaterial that the particular interest involved is imperial, local, or touches some other part of the dominions of the Crown. The Attorney General for a colony, like the Attorney General for England, represents the Crown and holds office under the Crown. In 1879 the House of Commons adopted the report of a Select Committee, supported by past and present Law Officers of the Crown, to the effect that by acceptance of the office of Attorney General for Victoria, Sir Bryan O'Loghlen, member for County Clare, had vacated his seat in the House.note

The establishment of the Commonwealth in no way affects the participation of the Crown in the government of the States; the principles which governed the relations of the colonies to the Crown will govern them as States. Notwithstanding the emphatic declaration of the Constitution (section 2), that the “Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth,” the Crown is represented in the States Governments by the State Governor, or other administrator of the Government. Even in Canada the existence of the Dominion Government does not sever the connexion between the Crown and the provinces so as to make the government of the Dominion the only government of the Queen in North America, and reduce the provincial governments to the rank of municipal institutions; the several provincial governments remain as Governments of the Queen within the limits prescribed by the British North America Act, 1867.note