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5. Chapter V. Distribution of Powers in the Commonwealth Government.

THE Constitution follows the plan of the United States Constitution in committing the functions of government —legislative, executive, and judicial—to three separate departments.

“The legislative power of the Commonwealth shall be vested in a Federal Parliament (section 1).

“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to” the matters enumerated (sections 51 and 52).

“The executive power of the Commonwealth is vested in the Queen, and is exerciseable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth” (section 61).

“The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with federal jurisdiction” (section 71).

The Co-ordination of Powers.—As in the Federal Government of the United States, the departments of the Commonwealth Government are “co-ordinate in degree to the extent of the powers delegated to each of them. Each


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in the exercise of its powers is independent of the other; but all rightfully done by either is binding on the others. And the Constitution is supreme over all.”note The three departments of government equally owing their origin to the Constitution and deriving their functions from it, there is no ground for any claim by the Legislature to treat the Executive and the Judiciary as mere auxiliary organs whose sole duty lies in obedience to the mandates of the Legislature. Each of the departments has to interpret the Constitution for itself so far, and so far only, as is necessary for the discharge of its own functions. The Parliament which legislates, the Executive which carries out, and the Court which judges, may each in succession have to interpret the same power. But it may happen that the validity of a particular exercise of power never reaches the Courts for adjudication at all. In the ordinary affairs of life, it is notorious that many things are done without right, that many transactions are carried through which no Court would support, that many wrongs go unremedied and crimes go unpunished. So, in the Commonwealth, many an unconstitutional Act may be passed, and produce all the social and economic effects which would belong to it if it were lawful. The interpretation of the Courts is strictly a judicial act; the Courts act neither as advising the Legislature nor as allowing or disallowing its enactments. In order that the Courts may pass upon an Act of the Legislature, or a matter of executive action, there must be some litigation before them raising the question, and there may never be such litigation. The range of inquiry into the lawfulness of alleged authority which an English Court of Law will undertake is very wide; but it has its limits. It by no means follows that all who suffer damnum by an act in excess of authority can also show injuria; legislative and executive acts alike may be fruitful of consequences which extend beyond the known causes of action, and for which the Courts can offer no remedy. Judge Cooley has said: “The


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common impression undoubtedly is, that in the case of any legislation where the bounds of constitutional authority are disregarded … the judiciary is perfectly competent to afford the adequate remedy; that the Act, indeed, must be void, and that any citizen, as well as the judiciary itself, may treat it as void, and refuse obedience. This, however, is far from being the fact.”note We shall find many provisions in the Constitution which have none but “political” sanctions.

If the matter does become the subject of judicial investigation, the judicial interpretation binds the Legislature only in indirect fashion. The decision becomes an authority, raising a probability ranging, according to many circumstances forming part of the practice of our Courts, from practical certainty on one side to the gravest uncertainty on another, that that Court and other Courts will decide the same question in the same way. The Legislature will be aware of this probability, and will generally refrain from passing Acts which are likely to be ineffective by reason of the refusal of the Courts to enforce them.

The distribution of power between the Commonwealth and State Governments is sanctioned by the power and the duty of the Courts of Commonwealth and State alike to interpret the Constitution, and to refuse recognition to Acts of the Legislature of either encroaching on the sphere of the other.

The question remains whether this duty of interpretation extends to the definition of “legislative power.” May the Courts consider whether an Act of the Commonwealth Parliament—we shall see that the question can hardly arise as to an Act of the State Parliament—upon a matter committed to it is an exercise of legislative power in relation to that subject, or is a usurpation of executive or judicial power?




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The Constitution, we have seen, follows the plan of the Constitution of the United States, a plan which has been adopted also in the Constitution of every one of the American States. In America the separation of powers of the organs of government is uniformly sanctioned by the action of the Courts. The creation of separate departments is treated as an implied prohibition of each from exercising any of the powers that belong to another; and the Courts have constantly to consider not merely whether an Act of the Legislature which is in question deals with a subject committed to the Legislature, but whether the Act is a true exercise of legislative power or an assumption of judicial power. This view did not prevail without some question. In 1798 the Supreme Court of the United States laid it down that “if a government of legislative, executive, and judicial departments were established by a Constitution which imposed no limits on the legislative power, the consequence would invariably be, that whatever the Legislature chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void.”note And though the doctrine of the separation of powers is now thoroughly established in the American Courts, as an independent principle, the more important cases in which the Courts have called attention to the separation of powers have been decided, not on the implied prohibition arising from the separation, but upon express restraints imposed on the Legislature by the Constitution, as the prohibition of bills of attainder, and the making of ex post facto laws, and—in the case of States Legislatures —laws impairing the obligation of contracts, and laws infringing the Fourteenth Amendment. Had not the separation of powers been made, the disposal of executive and judicial duties must have devolved upon the department vested with the general power to make laws.note This is in accordance with the opinion expressed in Calder v. Bull, already cited, and Cooper v. Telfair,note where Patterson,


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J., said: “I consider it a sound political proposition, that wherever the legislative power is undefined, it includes the judicial and executive attributes.”

In the British Colonies there has not been a separation of powers; the executive and the judiciary have been organized under the legislature. An attempted exercise of power by the legislature contrary to that expediency which leaves the executive and the judicial functions to other departments, is checked by the power of the Crown to disallow Acts; and in the case of the American Colonies, Acts were frequently disallowed on this ground.note The Privy Council has emphasized the plenitude of the powers of the Legislature, and likened them to the powers of Parliament itself, even in those cases where, as in the Provincial Legislatures of Canada, the subjects of legislation are limited by enumeration.note In the Dominion Government of Canada, where the British North America Act, 1867, vests the executive power in an authority not the Legislature, the general grant does not prevent the Dominion Parliament from making full provision for carrying out its laws, and constituting appropriate authorities for that purpose. On the other hand, it is true that in several instances Canadian Courts have dwelt upon the purely legislative powers of the Provincial Legislatures, and have considered that the executive and judicial powers, not being expressly given, are impliedly withheld.note In the Privy Council itself, there have been observations indicating that the question, What is legislation? is one for judicial consideration. Thus, during the argument in Att. Gen. for Hong Kong v. Kwok-a-Sing,note Mellish, L.J., said that “It was assumed in Phillips v. Eyre that an Act of Attainder would be void.” In the leading case of R. v. Burah,note where one of the questions was as to the power


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of the Governor-General in Council in India to remove a certain area from the jurisdiction of the High Court, Lord Selborne, in delivering the opinion of the Board, uses language which, while not unambiguous, suggests that the question whether what has been done is legislation is a matter for the consideration of the Court. In the case of Fielding v. Thomas,note a Statute of Nova Scotia had conferred upon the House of Assembly the character of a Court of Record, with inherent power to punish for insults or libels on members during session, and had provided that members who were present and voted on the question of the arrest of an offender, should enjoy the immunities of a Court of Record. In considering the validity of the Act, the Judicial Committee said: “It may be that the words, if construed literally, and apart from their context, would be ultra vires. Their Lordships are disposed to think that the Legislature could not constitute itself a Court of Record for the trial of criminal offences.note But read in the light of other sections of the Act, and having regard to the subject-matter with which the Legislature was dealing, their Lordships think that these sections were merely intended to give to the House the powers of a Court of Record for the purpose of dealing with breaches of privilege and contempt by way of committal. If they mean more than this, or if it be taken as a power to try or punish criminal offences otherwise than as incident to the protection of members in their proceedings, section 30 cannot be supported.”

In determining the powers which may be exercised by each of the organs, regard must be had to history and


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common practice as well as to the nature of the power itself. Thus, the Courts exercise a power of making rules for the conduct of judicial business; each branch of the Legislature, without invading the “judicial power,” exercises functions which are judicial in their nature in regard to its own privileges, and in respect to its constitution. Nor can it be doubted that the Parliament may, without abdicating its legislative power, delegate to the Governor-General in Council powers of subordinate legislation. The complex conditions of modern life make such powers increasingly necessary. The same necessity leads to a further delegation of legislative power to the judges in regard to the administration of justice. As to the Executive, it is common experience that there are many offices which combine executive and judicial functions. The discipline of the services of the Commonwealth, both civil and military, involves the exercise of punitive powers by the Executive; these powers the Legislature can restrain by requiring that they shall be exercised only for specific causes, and after inquiry by tribunals acting upon judicial lines, and can extend (as it does in the case of the military forces) by adding to the ordinary official sanctions of degradation, suspension, or dismissal, the ultimate sanctions of the criminal law. Yet even in the United States it is conceded that the powers of a Court-martial are not within the judicial branch of the Government, and that Courts-martial belong to the Executive.note

Opinion seems agreed that all the powers of a government which do not belong to the executive or the judiciary belong to the legislature.note Thus the taxing power, though in itself hardly a “legislative power,” is always deemed to belong to the legislature. It follows that the plenary power


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possessed by the Commonwealth over the subjects committed to it is exerciseable by the Parliament whenever it is not exerciseable by some other power. Both executive and judicial power (the former so far as it is productive of any juristic consequences) involve the application of existing law. Such a power is very rarely usurped by a legislature; the temptation to which legislatures are liable, to which American Legislatures have succumbed, and which American Courts have sought to defeat by alleging an invasion of the judicial power, is to apply a new rule to past acts or events, or to deal with a matter independently of all rule. However mischievous and dangerous may be ex post facto laws and privilegia, their very mischief lies in the fact that they are something other than judicial acts; and the propriety, the justice, or the expediency of an Act of Parliament is a question which lies outside the jurisdiction of any Court. It may be conjectured that in this matter of the distribution of powers, our Courts will not closely follow the American precedents,note which would assign to the Commonwealth Parliament in its sphere a position quite different from the States Parliaments in their sphere. In America, as has been already pointed out, the practical restraints upon the legislature came rather from express prohibitions than from the implications of the separation of powers. The political ideas under the influence of which the United States Constitution was established, ideas which have been developed in the States Constitutions, are very different from those prevailing in Australia: the distrust of legislatures is not the first article of political faith in the new Commonwealth. It is suggested, therefore, that those questions of generality as to persons or circumstances, and of prospective or retrospective operation which are discussed in America on the distribution of powers among legislative, executive, and judicial organs, have not the same importance in the Commonwealth Government. The question of generality, it is true, may be important, but as an incident of the distribution


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of power between Commonwealth and Statenote rather than of the distribution of powers among the organs of the Commonwealth Government.

The Preponderance of the Parliament.—The distribution of powers by the Constitution is not inconsistent with the preponderance of the Parliament in the Government; the tradition of the identity of self-government with Parliamentary Government remains, and the Constitution is in the main regarded as a transfer of powers now exercised in the several colonies by the respective Parliaments to a Parliament which represents the whole. In addition to that kind of control over other functions which the power of making laws necessarily carries, the Parliament is expressly given considerable powers of control over the executive and judiciary. Parliament may make laws on any matter incidental to the execution of powers vested by the Constitution in any of the organs or officers of the Commonwealth (section 51, art. xxxix.). The organization and regulation of the executive is almost exclusively in the hands of Parliament, which fixes the number of Ministers (section 65), and controls the appointment and removal of all officers in the public service (section 67). Cabinet Government is everywere a matter of convention rather than of law, but it is more clearly adverted to in the Commonwealth Constitution than in the Constitution Act of any of the colonies (section 64). The financial necessities which secure Parliamentary control over the working of the public departments will of course exist in the Commonwealth as elsewhere; and the Constitution does not leave the assembly of Parliament to those necessities, but requires that it shall meet every year and at such times that twelve months shall not intervene between sessions (section 6). Even in the judicial department the establishment and jurisdiction of Courts other than the High Court of Australia are completely controlled by Parliament. The provision as to the tenure of judges (section 72) intended to secure them against arbitrary interference by either the


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executive or the legislature, rather indicate the course to be followed by the two Houses of Parliament in the exercise of the power of removal than impose any legal limits on their power to remove at will. In the important matter of the amendment of the Constitution, the power of initiation lies in the Parliament alone, and is not, as in the United States, shared with the States Governments, or, as in Switzerland, with the people.

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