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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.

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