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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.

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