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8. Chapter VIII. The Legislative Power of the Parliament.

THE definite and limited character of the Commonwealth Government is indicated in the enumeration of the powers of its principal organ—the Parliament. The legislative power is not contained in any one or two sections; it is found in all parts of the Act, for, as has been observed, the power of Parliament pervades the whole instrument. But as the main object of federation was to put under a central legislature matters which could not be dealt with effectively, or at all, by the colonial legislatures, the statement of those matters in sections 51 and 52 is the very kernel of the measure. The other powers of Parliament, dispersed through the Constitution, are in general adjective rather than substantive; they relate not to independent matters, but to the regulation, explanation, or restriction of the powers contained in sections 51 and 52, or to the regulation of the departments of government, including, in some matters, the constituent elements of Parliament itself.

The terms of grant are as follows:

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

The terms used correspond with the grant of power to the Dominion Parliament to make laws for the “peace, order, and good government of Canada.” In Australia the

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grant of legislative power to the colonies has been made in the same or similar terms. In the Australian Courts Act, 1828, and the Australian Constitutions Act, 1850, the word “welfare” is found in the place of the word “order,” which is in the Act of 1842; the use of the one word or the other seems to be a matter of indifference; either appears to deserve the description by the Privy Council of the Canadian form: “apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to.”note The plenitude of the powers of a colonial legislature has been already referred tonote; and the words used in the grant indicate the intention of the Act to confer powers, which, though limited as to subject-matter, are, as to the subject-matters, of the same nature and extent as those which have received the most authentic judicial construction. In R. v. Burah,note Lord Selborne described the powers of an Indian Legislature in terms which are applicable to colonial legislatures generally. He said: “The Indian Legislature has powers expressly limited by the Act of Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe those powers. But when acting within those limits it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large and of the same nature as those of Parliament itself. The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so is by looking to the terms of the instrument by which affirmatively the legislative powers were created, and by which negatively they are restricted. If what was done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction

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by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions.” That legislative powers are of the same nature where the subjects are limited by enumeration, appears from the judgment of the Privy Council in Hodge v. The Queen note in relation to the powers of the Provincial Legislatures in Canada.

In America, the delegate character has been imputed not merely to the Congress, but also to the States' Legislatures, and the doctrine delegatus non potest delegare has greatly hampered their action. In the dependencies of Great Britain this doctrine has not been applied; and the Privy Council has recognized the validity of important delegations in the case of Indian, Canadian, and Australian Legislatures.note But as a mere incident of legislative power, these legislatures could not create and arm with general legislative authority a new legislative power not created or authorized by their Act of Constitution (R. v. Burah), certainly not if it were in substitution for the legislature and probably not if it were to exercise by way of delegation the whole legislative power. Even this restriction does not apply to legislatures which, either by special grant or as representative legislatures under the Colonial Laws Validity Act, 1865, section v., have the constituent power. The Commonwealth Parliament has not the full constituent power, and therefore comes under the restriction indicated. But, in accordance with the decision of the Privy Council in Hodge v. The Queen, the delegation of power over particular subjects will be a proper exercise of legislative discretion. It has been held in the United States that Congress cannot transfer its legislative powers to a State; but, as we have seen, the American doctrine is against delegation generally. In Canada, it has

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been said that “in any case where, in the distribution of powers by the B.N.A. Act, certain matters are assigned to the legislative authority of the Dominion Parliament, it is not competent for that body to delegate its functions to the local legislature, so as by an absolute grant of discretionary power to enable the local authority to deal with the matter itself.”note It may be inferred that the Commonwealth Parliament cannot make the State its delegate in regard to matters expressly withdrawn from or forbidden to the States, and the same rule may apply to matters which are declared to be in the exclusive power of the Commonwealth Parliament. But, apart from these cases, there seems no reason why the Commonwealth Parliament should not make the State its instrument of legislation whenever it may think fit to do so, as it may undoubtedly use the agency of the State to execute its laws.

It must not be supposed, because the Commonwealth Parliament is a general legislature and the State Parliaments are local legislatures, that the legislation of the Commonwealth Parliament must necessarily be of general application and relate equally to all parts of the Commonwealth. Uniformity of bounties (§ 51), absence of discrimination in taxation (§ 51), and of preference in trade, commerce, and revenue (§ 99), are expressly provided for. But, otherwise, it would seem to be a matter of legislative discretion to determine whether the interests of the Commonwealth require uniform or diverse, general or local laws. So far as concerns those matters which are put under the exclusive power of the Parliament, and those new subjects over which the State Parliaments have had no power, the principle may be accepted without any qualification, since the Parliament possesses the sole legislative power exerciseable within the Commonwealth, and the State Parliament is unable to cover the local ground. In respect to other subjects over which the State has power within its own area, it is obvious that the interests of the whole may require special regulation in a single State or locality; and

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such regulation would be a law for the peace, order, and good government of the Commonwealth in respect to that subject, though it required something to be done or forborne only in the State or locality in question. But the position is more difficult where the law is clearly not part of a general system of regulation, but is local or special. For instance, could the Commonwealth Parliament pass an Insolvency Act for the State of Victoria or a Divorce Act for New South Wales, or an Act establishing old-age pensions in South Australia and not elsewhere? It has probably been settled for Canada that so far as the enumerated powers of the Dominion are concerned, the Parliament of Canada may pass a law affecting one part of the Dominion and not another, if in its wisdom it thinks the legislation applicable to or desirable in one and not in the other.note But this conclusion has been reached mainly because the Dominion powers over these subjects are exclusive powers; and, as it is not clear that the Provincial Legislatures may, under their power to make laws on “matters of a merely local or private nature in the Province,” deal substantively with Dominion subjects at all, there would be a defect of legislative power if the Parliament of Canada could not deal with them irrespective of area. This defect of power could not arise in Australia. Even in these cases there have not been wanting in the Judicial Committee indications of an opinion restricting the Parliament of Canada to “general legislation.” Thus in the L'Union St. Jacques de Montreal v. Belisle,note the Board say: “Their Lordships observe that the scheme of distribution in that section (§ 91 B.N.A. Act, 1867) is to mention various categories of general subjects which may be dealt with by legislation. There is no indication in any instance of anything being contemplated except what may properly be described as general legislation.” In Fielding v. Thomas,note

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Lord Herschell said: “There can be no doubt, speaking generally, that the object and scheme of the Act is in § 91 to give the Dominion Parliament those things which were to be dealt with as a whole for the whole Dominion.” The decision of the Judicial Committee in the Liquor Prohibition Appeal,note as well as the observations of members of the Board during the argument, affirms the doctrine that, so far as Dominion legislation proceeds not from the enumerated powers, but from the general power to make laws for the peace, order, and good government of Canada in relation to all matters not exclusively assigned to the legislature of the Provinces, it may not deal with “any matter which is in substance local or provincial and does not truly affect the interests of the Dominion as a whole.” It may be expected that in the Commonwealth the Courts will be guided by the considerations which belong to the meeting of the general residuary power of the Parliament of Canada, and the power over matters of “a local or private nature” in the Legislatures of the Provinces; that legislation by the Commonwealth Parliament for purely local or State purposes will not be intra vires except in the case of the exclusive powers and in some of the new powers, but that Commonwealth legislation may be directed to a particular State or particular States for the purpose of effecting any object of common interest. This is one of the matters in which legal and political issues mingle, and accordingly it is safe to affirm that the presumption in favour of the validity of an Act of Parliament, which is a leading rule of interpretation, will have even more than its usual force, and the Courts will be slow to say that the Parliament, assuming to act for the interest of the whole community, has dealt with a matter of no more than local concern.

Classification of Subjects of Legislative Power.—It has been said of the Canadian Constitution, to which in regard to the subjects of legislative power the Commonwealth Constitution presents a close resemblance, that it is

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difficult to refer the distribution of legislative power to any one principle.note Generally, the matters enumerated are those over which the legislatures of the colonies had power within their territories, so that there is apparently merely the transfer of power from a local to a central government. But there are also several matters which lay outside the powers of a mere “local and territorial legislature,” matters of an extra-territorial character, e.g. “the relations of the Commonwealth with the islands of the Pacific,” “external affairs.” Further, all laws of the Commonwealth, on whatever matter, have a limited extra-territorial operation, for by section v. of the Act it is provided that “all laws of the Commonwealth shall be 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,” an adaptation and restriction of section 20 of the Federal Council of Australasia Act, 1885, by which Acts of the Council had the force of law “on board all British ships, other than Her Majesty's ships of war, whose last port of clearance or port of destination” was in any colony which had become a member of the Council.

In the second place, the powers of the Parliament may be classified as direct or indirect. The greater number may be exercised by Parliament on its own motion; a few, however, can be exercised only (a) with the consent of the State concerned—cf. section 51, articles xxxiii. and xxxiv., acquisition of State railways, railway construction and extension in any State; section 124, separation of territory from a State; or (b) at the request or with the concurrence of the State or States directly concerned (the Parliament may exercise any power which can at the establishment of the Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia—section 51, art. xxxviii.); or (c) on reference by a State or States (any matter, but so that the law shall extend only to States by whose Parliament the matter is referred, or by which the law is afterwards adopted—section 51, art.

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xxxvii). In the Federal Council of Australasia, indirect power was the rule, direct power the exception.

In the third place, the legislative powers of Parliament may be grouped under certain heads of subjects. An enumeration of subjects of legislative power necessarily uses general terms,note but some of the subjects set out are related to each other, and lend themselves to grouping according to this relation.

Extra-territorial matters, defence, trade and commerce, communications, account for a large number of the articles of legislation. For the rest—the subjects enumerated are generally matters of private law falling within the departments of commercial or family law, wherein the conflict of laws and jurisdiction is especially likely to occur, and is always inconvenient and sometimes scandalous—it is in the recognition of the value of uniformity of the law in these departments that the Constitution makes its most notable departure from the Constitution of the United States.

Fourthly, the powers of Parliament may be classified according to the plan recognized by the Constitution itself, under which some of the powers are expressed to be exclusive (section 52).

In the United States, the Courts are constantly engaged in determining the spheres of the Congress and the State Legislatures, and ascertaining whether there is any inconsistency in their laws. In the Confederation of Canada, it was believed that the uncertainty introduced by the American system would be avoided by assigning to the Dominion and the Province respectively exclusive powers over the subjects committed to them. The plan, however, has not fulfilled its purpose. The necessary generality of the terms used in the distribution of powers, and the fact that the terms themselves were not terms of legal art, have

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added to rather than lessened uncertainty. On the whole, it appears that the difficulties which attend a distribution of powers increase where the powers of both authorities are enumerated, and become more serious where the powers of each are expressed to be exclusive. The Australian Constitution, therefore, falls back on the United States plan. In general, State Parliament and Commonwealth Parliament have concurrent powers of legislation over the subjects committed to the latter, and in case of inconsistency the Act of the Commonwealth Parliament prevails. In both the United States Constitution and the Australian Constitution, exclusive power on a few subjects is committed to the Federal Legislature, and in such matters of course State legislation is not merely controlled by the paramount power of the Commonwealth Parliament, but is ultra vires.

The designation by section 52 of certain powers as exclusive does not, however, necessarily imply that all the enumerated powers of section 51 are concurrent; the term “concurrent power” is nowhere used in the Act in regard to legislative power. Section 51 confers power on the Commonwealth Parliament, not on the States; and so far as the subjects therein enumerated are beyond the power of the Colonial Legislatures, they will be beyond the power of the States Parliaments; there was no need to prohibit the States from dealing with them.

The question whether an Act of the Commonwealth Parliament is valid depends upon whether it is an exercise of any of the enumerated powers; and this, of course, must be shown to the satisfaction of any Court in which the enactment is brought in question. This requires, in the first instance, the construction of the terms in which the power is conveyed; and makes it necessary to set legal bounds to descriptions which are necessarily general rather than precise. This is not due solely to the infirmities of the technical language of English law. The occasion was not one for the use of rigid and inelastic terms; and even where the terms used are technical it must be

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remembered that the legal definition of a subject is part of the law thereon, and, therefore, to some extent, from the nature of the case, within the legislative power.note The nature of a Constitution “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”note It is, no doubt, as Sir Montague Smith pointed out, a misfortune that the British North America Act, 1867, uses such general terms; and the Australian Constitution avoids the most troublesome of the difficulties by omitting the widest subjects—“criminal law,” “property and civil rights,” and “all matters of a merely local and private nature.” But even with the Australian Constitution there is wisdom in the advice of a Privy Council to those who have to undertake the difficult task of interpretation, “to decide each case which arises as best they can, without entering more largely upon an interpretation of the Statute than is necessary for the decision of the particular question in hand.”note

The second question which arises on an enactment is as to its true nature and character. An Act of the Parliament may have more than one aspect; in one view, a provision may be an exercise of power over one of the enumerated matters; in another it may be an exercise of power over some matter remaining in the exclusive power of the States Parliaments. Or again, an Act of a State Parliament may in one view be an exercise of authority upon some matter within the residuary power of the State Parliament; in another, it may be an enactment upon one of the subjects of the exclusive power of the Commonwealth Parliament. These questions have been of great importance in Canada, where

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the powers of Dominion and Province are generally exclusive, and in the United States have given rise to a large number of cases in which the Courts have had to determine whether Acts of the States Legislatures affecting trade and commerce are in substance enactments of commercial regulation, in which case they would be invalid as infringing federal powers which the Courts have held to be exclusive, or are within what is called the “police power” of the States—i.e. their general power of providing for the peace and welfare of the State. On the one hand, it is certain that a legislature cannot, by passing an Act which incidentally affects some matter within its power, in substance legislate upon some matter outside its control. On the other hand, the grant of exclusive power over a subject does not withdraw from the other legislature all power of affecting that subject as an incident to the provision which it makes for subjects left within its control.note In all cases of enactments of this kind, “the true nature and character of the legislation in the particular instance under discussion must always be determined to ascertain the class of subject to which it really belongs.note The difficult task of determining the true nature and character of Acts which have different aspects, may involve the exceedingly delicate inquiry whether the Act is a bona-fide exercise of power over a subject committed or left to the Legislature, or is a pretence, under cover of which an attempt is made to invade the province of the other Legislature. In discharging these duties, the Court must keep separate the subject and scope of the enactment, which are material, and the motive of the legislator, which is immaterial and irrelevant.note We can understand that some of John Marshall's fame as an expounder of the Constitution is due to the fact that he came to the Bench after a distinguished career as statesman

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man and diplomatist. In the Liquor Prohibition Case,note on appeal from Canada, Lord Watson said: “We are always inclined to stand on the main substance of the Act in determining under which of these provisions (of the British North America Act, 1867) it really falls. That must be determined secundum subjectam materiam, according to the purpose of the Statute, as that can be collected from its leading enactments.… There may be a great many objects, one behind the other. The first object may be to prohibit the sale of liquor, and prohibition the only object accomplished by the Act. The second object probably is to diminish drunkenness; the third object to improve morality and good behaviour of the citizens; the fourth object to diminish crime, and so on. These are all objects. What is the object of the Act? I should be inclined to take the view that that which is accomplished, and that which it is its main object to accomplish, is the object of the Statute; the others are mere motives to induce the legislature to take means for the attainment of it.”

Note.—The completeness of the legislative powers of the Australian Parliaments, and the absence of a competing power, has prevented the raising of such questions as are here discussed upon Acts of Parliament. But a similar question has arisen between the two Houses of Parliament as to their respective powers over finance. The Constitution Acts provide that Bills “for appropriating” revenue, and “for imposing” taxation must originate in the Legislative Assembly, and though they may be rejected they may not be altered in the Council. The question has been whether this limitation applies only to Bills having appropriation or taxation for their principal object, or extends to Bills which appropriate revenue or impose some charge as an incident in the accomplishment of some substantive purpose. Briefly, is a “Bill for appropriating” equivalent to “a Bill which appropriates”? The question has, of course, never presented itself for judicial decision; and the adjustment

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of powers between the Houses is necessarily affected by political more than purely legal considerations. The matter is ably discussed in Hearn's Government of England, second edition, Appendix.