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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.

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