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9. Chapter IX. The Subjects of the Legislative Power of the Parliament.

A DIVISION of the powers of the Parliament into direct and indirect affords a convenient basis of classification.

Direct Powers.

A. Administrative Services Transferred to the Commonwealth (Sec. 69).

Five of the subjects of legislative power enumerated in sec. 51 are identical with the subjects of administrative departments of the States transferred to the Commonwealth (sec. 69). Over “matters relating to these departments” the power of the Parliament is, by sec. 52, exclusive.

1. Defence.

Sec. 51 contains two articles dealing immediately with this matter, viz.:

vi. The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.

xxxii. The control of the railways with respect to transport for the naval and military purposes of the Commonwealth.

By sec. 114 a State may not, without the consent of the Commonwealth, raise or maintain any naval or military force; and by sec. 119 the Commonwealth shall protect every State against invasion, and, on the application of


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the Executive Government of the State, against domestic violence.

There are several Imperial Statues affecting colonial defences and colonial forces, viz., the Army Act, 1881 (secs. 175–177); Colonial Fortifications Act, 1877; Colonial Defences Act, 1865; Naval Discipline Acts, 1866 and 1884; Imperial Defence Act, 1888.

2. Posts, Telegraphs, and Telephones. Sec. 51 (v.).

These services are subject to the control of the Commonwealth, not merely for foreign and intercolonial, but also for internal purposes. In all the colonies, postal, telegraphic, and telephonic communication has been a Government monopoly.

3. Lighthouses, Lightships, Beacons, and Buoys. Sec. 51 (vii.).

4. Quarantine. Sec. 51 (ix.).

5. “Customs and Excise” are dealt with under the general head of Finance and Trade.

B. Administrative Services not Transferred to the Commonwealth.

These are all matters in which a uniform system is essential to the full utility of the services. The Commonwealth is given power to provide for them; but any provision which may be made does not legally supersede, and may exist concurrently with, the provision made by the States.

1. Astronomical and Meteorological Observations. Sec. 51 (viii.).

2. Census and Statistics. Sec. 51 (xi.).

C. External Matters.

1. External Affairs. Sec. 51 (xxix.).

This is a power the extent of which it is difficult to measure. The most important external matters which have engaged Australian attention are, with a few exceptions, the subjects of special articles; and the “external affairs” of the Commonwealth, like the “foreign affairs”


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of the Empire, are primarily matters of administration rather than legislation. So far, however, as the conduct of external affairs may require the co-operation of the legislative power, the Parliament has authority to make provision. The enactment of laws for the execution of treaties made by the Imperial Government affecting the Commonwealth, or made by the Commonwealth itself under such powers as the Crown may confer upon it; of laws on extradition or neutrality, and the like; of laws giving effect to arrangements between the Commonwealth and other parts of the Empire—all these would clearly fall within article xxix. The question arises, how far a legislature which has power over “external affairs” may be described as “local and territorial,” a description which, as has been seen, indicates a great restraint of power in the case of Colonial Legislatures. It may be suggested that, in virtue of this power, Acts of the Commonwealth Parliament will, like the Acts of the Imperial Government, and unlike the Acts of the Colonial Legislatures generally, be free of the restraint which prohibits laws intended to operate exterritorially. Such an effect would in no way contradict the grant of power to make laws for the Commonwealth, for there would be no claim to enforce the Acts in Courts outside the Commonwealth, and their recognition abroad would depend upon their accordance with the principles of Private International Law. And it would not affect the rule of construction under which Statutes are presumed not to operate exterritorially. But that rule would be, as in the case of the Imperial Parliament, a rule of construction merely, and not a rule in restraint of power.

2. Trade and Commerce with other countries and among the States. Sec. 51 (i.). (See “Finance and Trade.”)

3. Fisheries in Australian waters beyond territorial limits. Sec. 51 (x.).

This is one of the powers which was possessed by the Federal Council of Australasia; and it was exercised to regulate the pearl, shell, and bêche-de-mer fisheries in


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Australian waters adjacent to Queensland (51 Vic., No. 1) and Western Australia (52 Vic., No. 1). In each of the Acts a schedule declared what were to be deemed Australian waters under the Act. It is not without interest to note that the United States invoked these Acts in support of their claim to regulate the seal fisheries in the Behring Sea, but overlooked the limitation that the Act applied only to British ships and boats attached to British ships.

4. Naturalization and Aliens. Sec. 51 (xix.).

5. The people of any race other than the aboriginal race in any State, for whom it is deemed necessary to make special laws. Sec. 51 (xxvi.).

This refers to the various race problems which arise in different parts of Australia, and enables the Parliament not merely to regulate the admission of alien races, but to establish laws concerning the Indian, Afghan, and Syrian hawkers; the Chinese miners, laundrymen, and market gardeners; the Japanese settlers and Kanaka plantation labourers of Queensland.

6. Immigration and Emigration. Sec. 51 (xxvii.).

“Undesirable immigrants” has been a subject fruitful of discussion and legislation in the colonies at Intercolonial Conferences, and more than one attempt has been made to secure uniformity of legislation upon the subject.

7. The influx of criminals. Sec. 51 (xxviii.).

This was one of the heads of legislative authority under the Federal Council Act of 1885; and although it would no doubt be included under “external affairs” or “immigration,” it was retained in the Constitution as calling attention to a particular evil of which the colonies have long complained—the escape of criminals from the penal settlements of foreign Powers in the Pacific.

8. The relations of the Commonwealth with the islands of the Pacific. Sec. 51 (xxx.).

This also was a head of legislative authority in the Federal Council Act, which was the outcome of the “Australasian Convention” of 1883, called to consider the “Annexation of neighbouring islands and the Federation of


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Australasia.” The position of the Pacific Islands has been the most important matter of foreign or external policy with which Australasia has concerned herself; and like “external affairs” in general the matter has been one to be dealt with rather by diplomacy than legislation. At the Convention of 1883, Australian Ministers promulgated her “Monroe Doctrine” by declaring that “The further acquisition of Dominion in the Pacific south of the equator, by any foreign power, would be highly detrimental to the safety and well-being of the British possessions in Australasia and injurious to the interests of the Empire.” Australian statesmen have often, and very recently, expressed the opinion that Australasian interests in the Pacific are over readily sacrificed by Imperial Ministers, and their hope no doubt is that the Governor-General may receive the powers of a High Commissioner in the Pacific, and may be instructed to exercise those powers on the advice of his Australian Ministry. How far this may be practicable will depend largely upon the attitude of New Zealand, whose recent action has gone some way to forestall the Commonwealth. Article xxx., therefore, stands for a policy which is certainly ambitious and may be aggressive. Even under present arrangements there is scope for the exercise of legislative authority, e.g. in the regulation of the trade with the islands, particularly the prohibition or regulation of the labour traffic and the punishment of offenders against the natives.

D. Mercantile Law.

1. Banking, other than State banking, also State banking extending beyond the limits of the State concerned, the incorporation of banks and the issue of paper money. Sec. 51 (xiii.).

Compare British North America Act, 1867, sec. 91 (15), and the interpretation by the Judicial Committee in Tennant v. Union Bank of Canada.note “The legislative authority conferred by these words is not confined to the mere constitution of corporate bodies with the privilege of


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carrying on the business of bankers. It extends to the issue of paper currency, which necessarily means the creation of a species of personal property carrying with it rights and privileges which the law of the province does not and can not attach to it. It also comprehends “banking,” an expression which is wide enough to embrace every transaction coming within the legitimate business of a banker.”

2. Insurance, other than State insurance, and also State insurance extending beyond the limits of the State concerned. Sec. 51 (xiv.).

3. Weights and Measures. Sec. 51 (xv.).

4. Bills of Exchange and Promissory Notes. Sec. 51 (xvi.).

5. Bankruptcy and Insolvency. Sec. 51 (xvii.).

Commenting upon a similar power of the Dominion of Canada, the Judicial Committee, in the Att. Gen. for Ontario v. the Att. Gen. for Canada,note say: “It is not necessary in their Lordships' opinion, nor would it be expedient to attempt to define what is covered by the words, ‘bankruptcy’ and ‘insolvency’ in sec. 91 of the British North America Act. But it will be seen that it is a feature common to all the systems of bankruptcy and insolvency to which reference has been made, that the enactments are designed to secure that in the case of an insolvent person his assets shall be rateably distributed amongst his creditors whether he is willing that they should be so distributed or not. Although provision may be made for a voluntary assignment as an alternative, it is only as an alternative. In reply to a question put by their Lordships, the learned counsel for the respondent were unable to point to any scheme of bankruptcy or insolvency legislation which did not involve some power of compulsion by process of law to secure to the creditors the distribution amongst them of the insolvent debtor's estate. In their Lordships' opinion these considerations must be borne in mind when interpreting the words ‘bankruptcy’ and ‘insolvency’ in the British North America Act.” See also


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Cushing v. Dupuy,note and L'Union St. Jacques de Montreal v. Belisle.note

6. Copyrights, patents of inventions and designs, and trade marks. Sec. 51 (xviii.).

Copyrights.—This is the subject on which has arisen the important legal and political controversy, hereafter referred to, as to the nature and exercise of the respective powers of the Imperial Parliament and the Parliament of Canada. It is impossible here to enter into the intricate history of Colonial copyright, or to consider the very difficult questions which remain unsettled.note The most important provisions of the Imperial law of copyright are those contained in the International Copyright Act, 1886, and the Order in Council of 1887, whereby (a) the author of a book first published in any part of the Queen's dominions has copyright in the book throughout the Queen's dominions for 42 years from first publication, or for the lifetime of the author and seven years afterwards, whichever time is the longer; and

(b) The author of a book first published in any foreign country belonging to the Copyright Union has copyright throughout the Queen's dominions for the same term, or any less term allowed by the law of the foreign country.

Her Majesty may, however, denounce the Berne Convention in the case of any British Colony, and thereafter the provisions as to international copyright shall cease to apply. The power of Colonial Legislatures over Imperial copyright is apparently limited to supplementing the Imperial law—to “Enactments for registration and for the imposition of penalties for the more effectual prevention of piracy.”note But by sec. 8 of the Act “Nothing in the Copyright Acts or this Act shall prevent the passing in a British possession of any Act or Ordinance respecting the copyright within the limits of such possession of works first produced in that possession.”




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Inasmuch as none of the powers in article xviii. are exclusive powers in the Commonwealth, there is prima facie nothing to prevent the State Parliament from making laws as to the grant of patents, and the protection of copyrights and trade marks. It may be assumed that when the Commonwealth Parliament does legislate upon these topics, it will be by a uniform law applying equally throughout the Commonwealth; and the question may be raised whether after such law it will be competent for the State, in virtue of its own laws, to grant patents or to protect copyrights and trade marks as it has done in the past—i.e. to protect within its own territory alone. It would probably be held in such a case that the Commonwealth law was a law not only for the whole Commonwealth, but for each and every part of the Commonwealth, and therefore superseded the State laws.

It may also be pointed out that a question may arise as to the operation of State laws on these subjects after the imposition of uniform duties of customs. Such laws, to be effective, must prohibit the introduction of articles manufactured or works produced elsewhere, otherwise the protection would be illusory. But would not such laws impair the freedom of trade, commerce, and intercourse among the States, in contravention of sec. 92?

7. Foreign Corporations, and trading or financial corporations formed within the limits of the Commonwealth. Sec. 51 (xx.).

This subject of foreign corporations is of especial importance in Australia, because many of the most important trading and financial companies and some mining companies are companies formed in England, while of the companies formed in the colonies large numbers carry on operations in several colonies.

The result is that there is much legislation in the various colonies as to “foreign corporations.” Article xx., of course, authorizes the Parliament to make a Companies Law for the whole of the Commonwealth; and there is no branch of the law in which a uniform law is more desirable.




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8. Currency, Coinage, and Legal Tender. Sec. 51 (xii.). This must be read in connection with Sec. 115: “A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.”

The words “and legal tender” are inserted in order to avoid the doubt raised in the United States as to whether Congress could, under a power to “coin money,” make paper legal tender.note

E. Family Law.

1. Marriage. Sec 51 (xxi.).

2. Divorce and Matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants. Sec. 51 (xxii.).

It is presumed that these powers include a power to regulate the property rights of husband and wife, upon marriage, during marriage, and on the dissolution of marriage. There is a good deal of diversity in the divorce laws of the colonies; and it is quite possible, so long as the colonies remain separate law districts, that parties may be married persons in the view of one colony and single persons according to the law of another. The matter is complicated by the fact that the relation is principally governed by domicil, and in countries like Australia the conditions of life make it peculiarly difficult to ascertain the domicil. It is to observed that “parental rights and the custody and guardianship of infants” is not a substantive power, but is only “in relation” or incident to “divorce and matrimonial causes.”

F. Administration of Justice.

The intimate social and economic relations of the Australian Colonies have intensified the inconvenience which belongs to their separate existence as foreign countries for purposes connected with the administration of the law. Though all had the common law of England, the law of one


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had to be proved in another as foreign law. No process of one colony would run in another; and the arrangements which independent states may make to supplement the limitations of territorial power were deemed to be beyond the power of mere “local and territorial legislatures.” The Imperial Acts dealing with the matters—6 and 7 Vict., c. 34, and 16 and 17 Vict., c. 118—were modelled upon extradition, and were confined to treason and felony. The mischief and scandal of criminals finding a refuge by crossing an imaginary line, early engaged the attention of Australians, and abortive attempts in intercolonial councils, and elsewhere, were made to deal with the matter. The Imperial Government was urged in 1867 to extend the Acts to misdemeanours, but protracted negotiations only ended in 1870 in a refusal by the Colonial Secretary (Earl Granville) to propose legislation until the colonies should have come to a common understanding, and in a suggestion that a solution of the problems “would be facilitated if it were possible for the Australian Colonies to enact in concert a common criminal code, based on the Imperial law, a measure which Her Majesty's Government would see with much pleasure both from its intrinsic convenience and its tendency to consolidate the great Australian group.” It was not until the Fugitive Offenders Act of 1881 that the special conditions of groups of colonies were recognized and provision made for meeting the want that had so long been urgent in Australia.

The laws of the colonies themselves did something, though not by uniform or concerted action, to recognize the judgments, the probates, the inquisitions in lunacy, and some other proceedings in other colonies of Australia, while it was very general to provide for an extension of jurisdiction by permitting service out of the jurisdiction. The Federal Council of Australasia Act, 1885, included among the few subjects on which direct power was given to the Council: (d) “The service of civil process of the courts of any colony within Her Majesty's possessions in Australasia out of the jurisdiction of the colony in which


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it is issued”; (e) “The enforcement of judgments of courts of law of any colony beyond the limits of the colony”; (f) “The enforcement of criminal process beyond the limits of the colony in which it is issued, and the extradition of offenders (including deserters of wives and children, and deserters from the Imperial or Colonial naval or military forces)”; (g) “The custody of offenders on board ships belonging to Her Majesty's Colonial Governments beyond territorial limits.” In its first session the Federal Council passed three Acts, which were in pursuance of these powers: No. 2, an Act to facilitate the proof throughout the Federation of Acts of the Federal Council, and of Acts of the Parliaments of the Australasian Colonies, and of Judicial and Official Documents, and of the Signatures of certain Public Officers; No. 3, an Act to authorize the service of civil process out of the jurisdiction of the colony in which it is issued; No. 4, an Act to make provision for the enforcement within the Federation of Judgments of the Supreme Courts of the Colonies of the Federation. These Acts, it must be remembered, apply only to those colonies which became members of the Federal Council. There is also a Federal Act—the Australasian Testamentary Process Act, 1897—applying to four of the colonies, which, in a very limited way, makes them auxiliary to each other. A few Imperial Acts do something to bring the courts of the Australian Colonies into touch with each other, as well as with other parts of the British Dominions, e.g. the Evidence by Commission Act, 1859; the British Law Ascertainment Act, 1859; and section 118 of the Bankruptcy Act of 1883. Finally, some of the colonies have gone far on the road to require their courts to take judicial notice of the laws and public acts of other Australasian Colonies. In 1898 Victoria (Act No. 1554), Queensland (62 Vict., No. 15), and Western Australia passed practically identical Acts for this purpose; while, by 55 Vict., No. 5, sec. 11, New South Wales requires its courts to take notice of the Statute law and the unwritten law of other countries, authenticated in the


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manner prescribed by the laws of such countries respectively.note

Turning now to the Constitution, we find that the legislative power extends over:

1. The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the Courts of the States. Sec. 51 (xxiv.).

2. The recognition throughout the Commonwealth of the laws, the public acts and records, and the judicial proceedings of the States. Sec. 51 (xxv.).

These provisions must be read with sec. 118, whereby

“Full faith and credit shall be given throughout the Commonwealth to the laws, the public acts and records, and the judicial proceedings of every State.”

Compare the United States Constitution, art. iv., sec. 1: “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” This clause in the Constitution of the United States has often received judicial construction. While it “implies that the public acts of every State shall be given the same effect by the Courts of another State that they have by law or usage at home” (Chicago and Alton Railroad v. Wiggins Ferry Coy.),note the provision and the Act of Congress upon it “establish a rule of evidence rather than of jurisdiction” (Wisconsin v. Pelican Insurance Coy.),note The laws of a State have not under it any exterritorial operation; they must be proved in other States as matters of fact; the Courts there will not take judicial notice of them.note Judge Cooley says:note “By this provision a rule of comity becomes a rule of constitutional obligation. It also becomes a


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uniform rule, and the common authority is empowered to pass laws whereby the courts may govern their action in receiving or rejecting the evidence presented to them of the public acts, records, and judicial proceedings of other States.” The provision has operated, and its limitations have been defined, principally in relation to the judgments of other States.note It is held that judgments recovered in a State of the Union “differ from judgments recovered in a foreign country in no other respect than in not being re-examinable on their merits, nor impeachable for fraud in obtaining them, if rendered by a Court having jurisdiction of the cause and of the parties.note In the words of Story (Conflict of Laws, sec. 609), cited and approved by the Supreme Court in Thompson v. Whitman note: “The Constitution did not mean to confer any new powers upon the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of other States domestic judgments to all intents and purposes, but only gave a general validity, faith, and credit to them as evidence. No execution can issue upon such judgments without a new suit in the tribunals of other States. And they enjoy not the right of priority or lien which they have in the State where they are pronounced, but that only which the lex fori gives to them by its own laws in their character of foreign judgments.” And it has been held that the rule that one country will not enforce the penal laws of another holds as between States of the Union, and extends to judgments recovered under such penal laws.note

The most general conclusion to which the cases point is that the provision does not carry us much further than the doctrines of the common law now well established but in their infancy in 1789, embodied in what is called Private


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International Law. In a sovereign State, however, these doctrines may be varied or excluded by the action of the Legislature; the provision in the U.S. Constitution prevents such action, and therein lies the aptness of Judge Cooley's observation, cited above, that by the provision, “a rule of comity becomes a rule of constitutional obligation.” A further consequence of inserting this provision in the Constitution is that the observance is brought under the protection of the federal judicial power.

These observations will apply to the Commonwealth. It should be noticed, however, that in the Commonwealth full faith and credit is to be given to the “laws” of a State as well as to its “public acts,” and, conformably with the American doctrine which treats the clause as evidentiary, it may be suggested that this enables the States Courts to take judicial notice of the laws of other States. English and Colonial Courts have properly enough treated the ascertainment of foreign law as a matter of fact, wherein in truth it does not differ from domestic law.note Less appropriately it has been treated as a question for the jury, and has to be proved by evidence in accordance with well settled rules. If the State Courts are required to take judicial notice of the laws of other States, such proof will no longer be required. “The true conception of what is judicially known is that of something which is not or rather need not be unless the tribunal wishes it, the subject of either evidence or argument—something which is already in the Court's possession, or, at any rate, is so accessible that there is no occasion unless the Court asks for it to use ‘any means to make the Court aware’ of it; something it may deal with quite unhampered by any rules of law. In making this investigation, the judge is emancipated from all the rules of evidence laid down for the investigation of facts in general.”note It has been pointed out that the State laws have already made considerable provision for the


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authentication of the laws of other States; and these will no doubt guide the discretion of the judges. Section 51 (xxv.) enables the Parliament to provide for the authentication of the laws, public acts, etc., following the terms of section 118.

There is some doubt whether article xxv. goes beyond this proof. Can the Parliament provide, e.g., that probate taken out in Victoria shall give to the executor the powers of an executor throughout the Commonwealth? Or that the committee of a lunatic or the guardian of an infant appointed in one State shall have the powers of a committee or a guardian throughout the Commonwealth, exercising in each State the powers which he would have had under an appointment there? This would undoubtedly be “recognition” of the public acts and judicial proceedings in question, and the provision would cause no difficulty in law and would be very convenient in practice.note It is submitted that the collocation of “laws” creates no difficulty, and that it would be satisfied by a construction which enables the Commonwealth Parliament to determine as amongst the States the difficult questions of jurisdiction and choice of law, which belong to the “Conflict of Laws” or the “Extra-Territorial Recognition of Rights.” Many indeed of the subjects which cause the greatest difficulty in this the most modern chapter of the law are already provided for as substantive heads of legislative power—bankruptcy, bills of exchange, corporations, marriage, and divorce. The inconveniences which attend the existence of separate law districts among a people whose relations must be intimate may be met in different ways. On the one hand, separation may be made to give way to unity, and this is no doubt contemplated in the subjects referred to. This may be easily and painlessly effected, because the colonies have already substantially the same law. On the other hand, the separate law districts may be maintained, but a uniform system of inter-state relation of law may be


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established. In general, the doctrines of Private International Law permit the forum to claim more than it is prepared to concede to other countries, and in such a case the fact that all the members of a group of countries apply the same doctrines does not facilitate a reconciliation of their claims. In this department, the Commonwealth Parliament may be able under articles xxiv. and xxv. to apply itself with advantage.

In regard to article xxiv., “civil and criminal” must probably be taken to embrace the whole range of judicial proceedings; and “judgments” will certainly include “decrees” and “sentences,” and probably also “orders.” There is no reason to suppose that the power is confined to final judgments, and does not extend to interlocutory proceedings.

G. Miscellaneous.

There are two heads of power which may be described as afterthoughts, and are to some extent to be accounted for by a desire to disarm the opposition of those who contended that federation “would do nothing for the people.” They reflect the popular political interests of the time, quite apart from the project of federal union. “Invalid and old-age pensions,” sec. 51 (xxiii.), and “conciliation and arbitration for the prevention and settlement of industrial disputes,” sec. 51 (xxxv.), were part of the political programme of some party, if not of all parties, in each of the States; and all were regarding with interest the experiments already made in New Zealand. The latter subject was made one of federal legislative power when such industrial disputes “extend beyond the limits of any one State.” “Invalid and old-age pensions” can no doubt be dealt with more effectively by the Commonwealth than by the State Parliaments. If a State is not to be burdened with pensioners who have resorted to it merely for the pension, it must require a considerable period of residence within its limits as one of the qualifying conditions. But with the nomadic population of the Australian Colonies


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such a requirement necessarily excludes from the benefit of the pension large numbers of persons who have “tried their luck” in various parts of the Continent. The Commonwealth Parliament may be satisfied with residence for a specified period in the Commonwealth.

Indirect Powers.

1. The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State. Sec. 51 (xxxiii.).

The opinion was strongly held that the railways, which had been so fruitful a source of intercolonial bitterness, should, for political and commercial reasons alike, be vested in the Commonwealth, and subject to federal control. This policy was not adopted, and the provisions in the chapter on Finance and Trade and articles xxxiii. and xxxiv. take the place of such an arrangement. As the article stands, there is no power in the Commonwealth to acquire State railways save by agreement with a State.

By virtue of sec. 98, the power of the Parliament to make laws with respect to trade and commerce extends to railways the property of any State; and it may be inferred that they will not have less power over the railways which they acquire from a State.

2. Railway construction and extension in any State with the consent of that State. Sec. 51 (xxxiv.).

In the United States it has been contended, and is apparently now established, that the commerce power of Congress includes as an incident the authorization and execution of all manner of works for facilitating inter-State and foreign commerce, including the construction of roads, railroads, bridges, and canals.note This is very much more than the general power of appropriating money for the general welfare where the objects of expenditure remain under State laws; it is a federal power in which the federal


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law prevails notwithstanding the obstacles of State law. The express power contained in art. xxxiv. may perhaps be taken as indicating that the commerce power in the Commonwealth Parliament does not extend to the construction of railways in a State without the consent of that State. But this is not the only view that may be taken of it. Article xxxiv. is clearly not limited to railways which are incidental to inter-State commerce. It might be held that the Parliament has as a matter of commerce (sec. 51 (1) and sec. 98) among the States power to make railways which are obviously in furtherance of that commerce; and that art. xxxiv. merely authorizes the exercise of legislative power with the consent of the State in regard to the construction of railways which have no direct relation to inter-State commerce.

3. Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliament the matter is referred, or which afterwards adopt the law. Sec. 51 (xxxvii.).

This section may be compared with the provision in sec. 15 of the Federal Council Act, 1885, under which legislative power was given to the Federal Council over a number of enumerated matters whenever the legislatures of two or more colonies should refer such matters. It differs from that provision in that reference may be made by a single legislature so that the Parliament may legislate for that colony. It offers a convenient method of extending the range of legislative subjects without resorting to an amendment of the Constitution. Any enactment by the Commonwealth in pursuance of such a reference will be a federal law in the sense that it cannot be altered by the State Parliament, and that State laws inconsistent therewith will be invalid.

4. The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the


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Parliament of the United Kingdom or by the Federal Council of Australasia. Sec. 51 (xxxviii.).

This is a very remarkable and far-reaching power. It appears to enable the Commonwealth Parliament, with the co-operation of the States, to assume the full measure of Imperial power within the Commonwealth; and to repeal without limitation of any kind Imperial Acts of Parliament in operation there. Of course, there is always the power in the Crown to disallow such Acts, and in the Imperial Parliament to withdraw the power. But as the Imperial Parliament is in the highest degree unlikely to recall a constitutional power, the latter safeguard has no great practical value. The fact remains that there is now within the Empire a “subordinate legislature” with a very extensive power of repealing Imperial legislation. It can hardly be suggested that the article is confined to the cases in which both the Federal Council and the Imperial Parliament could have acted. The expression “at the establishment of the Constitution” in this connection is rather curious. The Federal Council Act was repealed, and the Council itself ceased to exist when the Commonwealth Act received the Royal Assent on July 9th, 1900 (sec. vii. of the Act). The Commonwealth was not established, nor did the Constitution take effect until January 1st, 1901. What is the date of the “establishment of the Constitution”?

It is to be noted that art. xxxviii. stands outside the distribution of Commonwealth powers into legislative, executive, and judicial, for the supremacy of the Imperial Parliament, which is the measure of powers to be referred, does not admit of such a separation.

Auxiliary and Incidental Powers.

1. The acquisition of property on just terms from any State or person for any purpose in respect to which the Parliament has power to make laws. Section 51 (xxxi.).

This is a recognition of the power of “eminent domain”; it means that the Parliament may, by act of legislation, provide for the acquisition of property against the will of


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the owner, whether a State or a private person. The conditions are : (1) that the Commonwealth must acquire “on just terms,” i.e. not at a price arbitrarily determined by itself; and (2) that the purpose of acquisition must be some purpose in respect to which the Parliament has power to make laws. This does not, of course, set any limit to the power to acquire property; it applies only to compulsory acquisition. The provision may be compared with that in the Fifth Amendment to the United States Constitution—“nor shall private property be taken for public use without just compensation,” a prohibition reproduced in many of the States Constitutions.

2. Matters in respect of which this Constitution makes provision until the Parliament otherwise provides. Sec. 51 (xxxvi.).

The Constitution establishes many things “Until the Parliament otherwise provides.” This article is equivalent to a declaration that in such a case the Parliament shall have power to provide from time to time for the matters in question—that its power over the matter is not exhausted by a single provision.

3. Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. Sec. 51 (xxxix.).

Of the corresponding provision in the Constitution of the United States, Judge Cooley says: “The import of the clause is that Congress shall have all the incidental and instrumental powers … to carry into execution all the express powers. It neither enlarges any power specifically given, nor is it a grant of any new power to Congress, but it is merely a declaration, for the removal of all uncertainty that the means for carrying into execution those otherwise granted are included in the grant.”note

And it must not be inferred from this power to legislate that in the absence of legislation the various organs of


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government are without the instrumental and protective power which belongs by the common law to their like. Thus, though the lex et consuetudo Parliamenti does not apply to a colonial legislature so as to enable its constituent parts to exercise punitive powers, the chambers of such a legislature have all the powers necessary for their own protection, and for securing their proceedings against interruption or disturbance.note Again, the Courts of the Commonwealth may regulate the admission of persons to practise before them, and may exercise according to their degree the power of punishing for contempt. The Executive Government may take the measures allowed to the Executive authorities at common law to protect every branch of the federal authority in the performance of its duties, and by the Constitution itself, the executive power of the Commonwealth extends to the execution and maintenance of the Constitution. The nature of this power was illustrated in the United States in the case In re Neagle.note In anticipation of an attack being made by one Terry upon Judge Field, United States Circuit Judge in California, Neagle was ordered to attend him as deputy marshal for his protection; and when the anticipated attack was made, Neagle, in defence of the judge, killed Terry. For this an information was sworn in the State Court and a warrant issued against the judge and the deputy marshal. The latter was arrested, and sued out his writ of habeas corpus. The Circuit Court held that the prisoner was in custody for “an act done in pursuance of a law of the United States, and in custody in violation of the Constitution and laws of the United States,” and accordingly ordered his discharge. It was objected in the Supreme Court that there was no Statute authorizing such protection as that which Neagle was instructed to give Judge Field, but it was held, nevertheless, that it was within the power and duty of the executive to protect a judge of any of the Courts of the United States when there was just reason to believe that he


  ― 162 ―
would be in personal danger while executing the duties of his office. Answering the argument that the preservation of peace and good order in society is not within the powers confided to the Government of the United States, but belongs exclusively to the States, Mr. Justice Miller said: “We hold it to be an incontrovertible principle that the Government of the United States may by physical force exercised through its official agents execute on every foot of American soil the powers and functions that belong to it. That necessarily involves the power to command obedience to its laws, and hence the power to keep order to that extent.”note A fortiori is there such a power in the Commonwealth, where the principal organ—the legislature—is expressly empowered to make laws “for the peace, order, and good government of the Commonwealth,” in respect to the matters committed to it.

It is to be noted that powers over many of the subjects committed to the Parliament of the Commonwealth are exercised by Congress in the United States as “implied powers,” e.g. lighthouses and quarantine under the commerce power.

The Exclusive Power of the Parliament.

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

i. “The seat of Government of the Commonwealth, and all places acquired by the Commonwealth for public purposes.”

This has been already referred to in chapter iii. on “The Nature and Authority of the Federal Commonwealth,” under the head of “The territory of the Commonwealth”; and it has been pointed out that according to the American decisions the exclusive power of legislation over a place carries with it exclusive jurisdiction. Persons residing


  ― 163 ―
within it are not residents in any State; and are not entitled to vote as citizens of a State at any election.note Such territory and its government are without the most characteristic feature of a federation—the division of power between central and local governments; and the territory stands outside the “federal” arrangements of the Constitution, which adjusts the relations of the States. “Territory so placed becomes as extraneous to the State as if it were held by a foreign government.” This is true in the sense that the territory in question ceases to be part of its State. But in any other sense, such territory is not to be regarded as foreign even in the limited way in which that term can be applied to the relation of the States to each other. The Commonwealth Government exercises in regard to it the full powers of a national government throughout the Commonwealth; the government of the territory is not a distinct political entity, a separate persona, it is nothing else than the Commonwealth Government discharging its national duties.note It is obvious that the omnipotence of the Parliament in relation to Commonwealth territory, and especially the seat of government, may be made the basis of an exercise of power which may be of national importance.

In the United States the residents in the Federal District of Columbia and the territories are not electors for the Presidency, the Senate, or the House of Representatives. And in like manner the arrangements of the Constitution provide, in the first instance only, for the exercise of political power by electors of the States. Section 122, however, provides that the Parliament may allow the representation of territory surrendered by any State and accepted by the Commonwealth, in either House of the Parliament, to the extent and on the terms which it thinks fit.

ii. “Matters relating to any department of the public service, the control of which is by this Constitution


  ― 164 ―
transferred to the Executive Government of the Commonwealth.”

“By this Constitution” must be taken to include “under the powers of this Constitution.” Strictly speaking, the departments of customs and excise alone are transferred by the Constitution; the others become transferred on the proclamation of the Governor-General.

iii. “Other matters declared by this Constitution to be within the exclusive power of the Parliament.”

The question whether the power over commerce among the States is an exclusive power is discussed elsewhere.

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