previous
next

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


  ― 160 ―
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


  ― 161 ―
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.

previous
next